07/02/08 – Jacob Sullum – The Scott Horton Show

Welcome back to Anti-War Radio, Chaos 92.7 FM in Austin, Texas, and introducing our next guest, Jacob Sullivan.
He's a senior editor at Reason Magazine and Reason.com, and a nationally syndicated columnist of New York Post, Washington Times, Las Vegas Review Journal.
He's the author of two books, Saying Yes in Defense of Drug Use, and For Your Own Good, The Anti-Smoking Crusade, and The Tyranny of Public Health.
He's got a new one in Reason Online.
Would President McCain obey the law?
Welcome to the show, Jacob.
Thank you.
All right, so I guess that's the question.
To what degree, and this has really been argued over the last few years, hasn't it?
To what degree, if at all, do statutes bind the behavior of the President of the United States?
Right.
And in wartime?
Well, that's the issue that's been raised, of course, by the Bush administration, and their position seems to be that the President has very wide authority when it comes to national security, when it comes to protecting Americans from terrorism.
And if he's operating in that area, he can pretty much do what he wants, regardless of what Congress says.
Okay, now there's been a lot of controversy on the left half of the blogosphere lately about Barack Obama endorsing the latest amendments to the FISA statute, although I guess compared to McCain, it seems like at least Obama is saying that he's bound by the law.
Right.
Well, you know, I'll take what I can get.
You know, I would rather that they not make it so easy to do wiretapping, and that they continue to require warrants even for Americans' international communications.
But if they're not going to do that, at least they should make the changes openly, and it should be passed as a statute, modifying the law, so that people know what's going on and that, you know, Congress is filling its role.
So at least he's saying, without a change in the statute, this is illegal.
He's very clearly said that, that this program that President Bush authorized after the 9-11 attacks and continued, the administration continued to operate for years, where they were doing warrantless wiretaps of telephone conversations involving people in the United States, that that was illegal.
Now they're making it legal.
Congress is passing a law to make it legal.
Of course, you can argue, you know, a statute is fine, whether it's constitutional, whether the Fourth Amendment applies in this area of international phone calls or not, but at least he's saying we need to do this legally.
So that's a step in the right direction.
Yeah.
No, now, see, that's an interesting question, whether the President has to enforce what he sees as unconstitutional law.
I mean, obviously, in this case, Bush just wants around the law to be even more extreme than the law.
But as you, you know, implied there, FISA itself has got some Fourth Amendment issues, doesn't it?
Yeah, well, I think it does, but he's going even beyond that and saying, you know, because Congress can certainly establish more protections than the Constitution provides.
And Congress can say, as it has said, this is the only way you can do wiretaps, period.
You know, these three sections in federal law, if you don't do it that way, it's illegal.
Congress has the authority to do that.
Now, I think that Bush is denying that they do.
I think Bush is saying, no, because this is an area involving national security.
They may, you know, ostensibly be trying to restrict my behavior, but they cannot constitutionally do so because he has a very wide view of his role as, you know, Commander-in-Chief.
Now you could imagine situations where the President might, you know, although it sort of begs the question of why doesn't it raise the question of why would he sign such a law?
But say they pass a law over his veto that really is clearly unconstitutional.
You can imagine a situation where he would refuse to enforce such a law, you know, turn it around the other way and say Congress is trying to violate people's rights.
Suppose Congress passes.
I know this is hard to imagine, but suppose Congress passes an unconstitutional statute that restricts freedom of speech, let's say.
The President vetoes it and Congress overrides his veto.
So that's a serious moral question as to what you do if you're in that situation.
But you can also imagine a statute that clearly violates the President's constitutional powers.
So if, say, Congress decided it was going to appoint his whole cabinet on its own, right, that would clearly be unconstitutional, right?
But what we're talking about here is something that's in much more of a gray area, you know, and I would argue that if you look at the text of the Constitution and what it authorizes Congress to do in terms of national security, it has a number of different powers, including regulating what the Pentagon does.
So I think it's pretty clear if you look at the text of the Constitution that Congress does have the authority to say, no, the NSA, you know, as an agency within the Pentagon, may not do this, may not do these warrantless wiretaps and listen in on American conversations or read their email without getting warrants, that Congress is authorized to do that by the Constitution.
But that's really what it comes down to.
And I think, you know, John McCain indicated that his view of the Commander-in-Chief's authority was not quite as wide as President Bush's.
See, that's what I thought.
Didn't he last December pretty much sound like Obama in saying, no, whatever the law is, the law is?
That's right.
I mean, he pretty much said that in so many words that he would not engage in the kind of, you know, having your take and eating it too approach that President Bush had, where he signed the law, but says, you know, I may not follow it.
Right.
A common technique the President has used is that he signs the law and he says, you know, there's some parts of it that I don't really like, I don't think they're really constitutional.
McCain very clearly said, I would never, I would not do that.
I would either sign it or not sign it, but if I do sign it, I'm going to follow it.
Now, do I remember right that this was part of Charlie Savage's series for the Boston Globe and that he sent all these questions to different candidates to get their answers?
And he was one of the only Republicans who answered, right?
Yeah, the Boston Globe did this, sent a bunch of questions about, specifically about the powers of the President to all the different presidential candidates.
McCain answered, I think, all or nearly all of the questions, whereas many of the candidates either didn't respond or chose, picked which questions they wanted to respond to.
So he was pretty forthright if you go look at that, you know, he clearly says, President, it may not violate the law, you know, the President has to follow the law.
And so that's why it was surprising when one of his top advisors recently wrote this letter to the National Review online, where he said that the post 9-11 warrantless wiretapping program was clearly constitutional, that everybody, you know, except for some ACLU lawyers, agreed that it was, and he's not just offering his own opinion, he put these words in the mouth of McCain saying, this is the Senator's position, that there's nothing to apologize for, that there was nothing wrong with what the President did, nothing wrong with what the telecoms did in assisting the Bush administration in doing this eavesdropping.
And you know, the implication is, we don't really need, the Congress doesn't really need to change the law, because the President already has the authority to do whatever he wants to do in this area.
But he's just sort of being nice and polite by asking for permission, and this whole thing is really unnecessary, strictly speaking.
And that's, you know, so he said that that was McCain's position.
And you have to understand that the context of this is that Daniel McCarthy wrote this piece for National Review, and he's a real hardliner who has a very broad view of presidential power, and he thought, he was speculating, McCain was a little too soft in this area, that McCain, you know, might not take as expansive a view of executive power as President Bush.
So McCain's advisor wrote in to correct the record and say, no, no, no, he's a real hard ass and he's, you know, he takes a very broad view, he's going to do whatever is necessary to protect Americans from terrorism.
And he specifically cited his Article 2 powers as President, and the reason that's significant is that the implication is that that authorizes him to do things that maybe Congress wouldn't authorize.
Yeah, I noticed in there he used the phrase, constitutional and appropriate, not legal and appropriate.
Yeah, I mean, of course, he would say that what's constitutional is legal, by definition.
The Constitution is the highest law.
But what was significant about it is that he said, specifically in the area of surveillance, that he would authorize any programs that were necessary and were appropriate under his Article 2 powers, not necessary and appropriate and as authorized by statute.
So the implication is that he might very well do something that is illegal that is contrary to statute.
But he would argue, of course, it is, the statute itself is invalid, because it impinges upon the President's, you know, constitutional authority.
That's the argument.
So the question is, is that what McCain believes?
Because it's not what he seemed to be saying.
Has anybody asked him?
To the Boston Globe's questions?
Has anybody asked him to explain this?
He did respond to it when this came out, and it was a front-page story in the New York Times.
And they asked his campaign, what's the deal?
You know, because this directly contradicts what he told the Globe.
And they denied that it was a contradiction.
Yeah.
That was the first thing.
They said, no, there's no contradiction, he's always taken this position.
What position?
Yeah, which one?
It's not clear what position that is.
Yeah.
And then they said, they didn't say this guy was speaking out of turn, he misrepresented the Senator's views.
They didn't say that, and they had plenty of opportunity to say that.
But instead, they said something like, if things that people are said are misconstrued, they shouldn't be, or something like that, something really weaselly.
And that was what made it into the New York Times article.
But then after the article came out, McCain himself didn't say, this guy spoke out of turn.
He didn't say, I still believe that you have to follow the law if you're President.
What he said was, this is all water under the bridge.
We don't need to worry about whether what the President did was legal or not legal.
It might have been legal, maybe it was legal, maybe it wasn't.
He actually said that.
He said, it's not clear.
Who knows?
But you know what?
It's not important.
God, as though he spent the five years in the Hanoi Hilton there practicing not answering people's questions.
Jesus.
But that's astonishing, really.
It's astonishing.
Because, I mean, here you have a candidate who is emphasizing his bona fides as far as pursuing the war on terror goes, who's all gung-ho about going after the terrorists, but at the same time has at least paid lip service to the idea of the separation of powers and the rule of law, and has made a pretty big deal out of saying, I'm not going to be weasel-y about this, I'm not going to sign a law, I'm not going to follow it.
The law is the law, you have to follow the law.
If you don't like the law, you seek changes in it.
He said all that.
But now he's saying, you know, it doesn't really matter.
That's ancient history.
Yeah, yeah.
It really is.
I was just going to say, that's one of my favorite non-answers is, oh, why you got to bring up old stuff, you know?
It's actually hard to think of something that's more important in terms of, an issue that's more important in terms of what the next president is going to be doing than how far does he think his powers go?
Does he think that he has to follow the law, or does he think that he can pick and choose which statutes he follows based upon his own idiosyncratic interpretation of the Constitution?
That's a pretty important question.
I mean, that's why the Boston Globe did this whole, you know, survey where they gave a list of specific questions having to do with executive power.
But now McCain is saying, you know, we don't need to talk about it.
Well, there's one good lesson here for him, and I hope his campaign isn't listening, but it occurs to me that there's a pretty powerful lesson in that when you do these major flip-flops on issues like this, it's best to do them in writing rather than out loud in front of a TV camera, because then they can make a YouTube out of it and show both answers back and forth and make fun of you.
But in writing, who's going to go read the National Review?
I mean...
You're probably right.
It's better not to do it on camera.
Yeah, there you go.
And also, I wanted to bring up one more thing here real quick before I let you go, was the CIA exemption to the torture statute.
I mean, this is the having a cake and eating it, too, to the nth degree here, where this guy is not just a war hero, but an anti-torture war hero who has the gravitas to oppose Cheney's torture regime, because he knows, because he's been there, and yet he turns around and rubber-stamps everything that says the CIA can still torture whoever they want.
Yeah, and it's not clear whether that was a genuine change in his opinion, that he was told something that, you know, maybe something secret that we don't know about, that changed his mind, or if he's just triangulating.
He's in a sort of tough situation, because he does have to play two Republicans, hardcore, self-described conservative Republicans, like McCarthy in the National Review.
He has to play to them and not seem soft, but at the same time, well, I'd like to think he has to worry about other people who will see him as being lawless or going his own way and being unilateral.
I think that the unilateralism of the Bush administration has gotten a bad publicity.
I think people, a lot of people, are uncomfortable with that, exactly how they feel about the warrantless surveillance, I'm not sure, but I think the notion that they've just been like a steamroller and trying to get their own way without consulting with Congress and not paying attention to what Congress or the courts are saying, I think that that has gotten a lot of negative attention for Republicans.
I think he does have to worry about that, but at the same time, he's got to placate the hardcore Republican.
Yep, tough position.
I'm glad I'm not running for president and have to pretend to oppose torture and then support it and all these contradictory positions all day and night.
And by the way, I think I saw a poll over at Glenn Greenwald's blog that had a pretty solid majority opposed to the wiretapping stuff, just by the way.
Yeah, I imagine it depends on how you phrase it.
But yeah, I've been surprised that there hasn't been more of an uproar about that, because most of the email I get, of course, I'm getting published in places that are read by a lot of conservatives, but most of the email I get says, you know, what makes you think the government's listening to your conversation?
Yeah, well, why do you care?
What's so special about you?
You're so full of yourself.
That's just been the general response.
Yeah.
And also, they're fighting for your freedom.
Well, all right, everybody.
It's Jacob Sullum.
Thank you very much for your time today.
Thank you.
He's the senior editor at Reason Magazine and a syndicated columnist.
You can read him in newspapers all around the country.
And this is Anti-War Radio.