AMY GOODMAN: Last month, President Bush defended bypassing the Foreign Intelligence Surveillance Act, or FISA, court to directly order the NSA to eavesdrop on phone and email conversations inside the United States.

PRESIDENT GEORGE W. BUSH: You’re referring to the FISA court in your question. Of course, we use FISAs, but FISAs is for long-term monitoring. What is needed in order to protect the American people is the ability to move quickly to detect. Having suggested this idea, I then, obviously, went to the question: Is it legal to do so?

AMY GOODMAN: Vice President Dick Cheney and others have long defended such executive power. Cheney told reporters earlier this week, quote, “I believe in a strong, robust executive authority, and I think that the world we live in demands it.”

JUAN GONZALEZ: Ever since the September 11th attacks, legal experts within the Justice Department have claimed the President has near imperial powers. Shortly after the attacks, Justice Department attorney John Yoo wrote that Congress could not place, quote, “limits” on the President’s determinations as to any terrorist threat, the amount of military force to be used in response, or the method, timing and nature of the response. Yoo went on to write, quote, “These decisions under our Constitution are for the President alone to make.”

At the time, Yoo was a deputy assistant attorney general in the Office of Legal Counsel at the Justice Department. He’s now a law professor at the University of California, Berkeley, but on several occasions the courts have expressed reservations about the President seizing such powers. Last year, Sandra Day O’Connor said, quote, “A state of war is not a blank check for the President when it comes to the rights of the nation’s citizens.” As for President Bush, he once suggested, in jest, that it would be easier if he were a dictator. This is what the President-elect said five years ago, during his first visit to Capitol Hill, following the 2000 election.

PRESIDENT GEORGE W. BUSH: If this were a dictatorship, it would be a heck of a lot easier. Just so long as I’m the dictator.

AMY GOODMAN: Today, we’re going to examine the issue of presidential powers with two guests: David Golove is a New York University law professor who specializes in issues of executive power; Scott Horton is also joining us, Chair of the International Law Committee of the New York City Bar Association. He is also an adjunct professor at Columbia University. We welcome you both to Democracy Now!

I want to start off with the signing statement — many people have perhaps never even heard of that term, a “signing statement’” — that President Bush quietly signed off on at the same time he signed the much-heralded McCain bill, the act that says that the U.S. government, that no representative of the government will engage in cruel, inhuman, degrading treatment of others. Your response, Professor Golove?

DAVID GOLOVE: Yes, well, the signing statement’s not a legal document. It’s a practice which was not invented by the Bush administration. But a recent article by a professor from Portland State University, I believe, Phillip Cooper, shows that the Bush administration has used signing statements in the way that has been employed in this case on, I think, 500 occasions, or they’ve — maybe it was that they’ve claimed that there were unconstitutional provisions 500 times in these various signing statements. So it’s some practice which has now become very common.

It’s not a legal document. It has no legal force. It’s a statement of the President’s opinion about the law that is going into effect, because he’s signing the law. But it tells us something very important about what the President’s intentions are with respect to that law. And when the President says in the signing statement that the law is unconstitutional in some respect, he’s telling us that he doesn’t intend to follow the law, if it’s not in his judgment the right thing to do.

JUAN GONZALEZ: And are these signing statements, are these then, do they become part of administration policy? Are they shared with those departmental officials that are in charge of implementing various laws, as directives? I mean, what happens to them?

DAVID GOLOVE: Well, technically, there aren’t rules that govern how these are used. But as a practical matter, of course, yes, the answer is yes, they are made for a purpose, and they are to signal to the officials in the relevant agencies how the President views this law and what they should do in implementing the law or not implementing the law, as the case may be.

AMY GOODMAN: I wanted to ask you, Scott Horton, about the José Padilla case, the significance of the Supreme Court decision.

SCOTT HORTON: Well, I think, in a sense, the decision that was just handed down, turning him over to a civilian authority for the commencement of the criminal case, is not a surprising one. The decision that the Fourth Circuit had put down a couple of weeks ago, denying his turnover, was really more of an expression of judicial outrage at the Department of Justice. It was a group of judges, very conservative Republican appointee judges, saying, 'We feel that we have been misled by the Department of Justice, and in response, we're not going to permit this. We want the Supreme Court to look at it and make a decision.’ And now they’ve made that decision. I don’t think it’s a controversial one.

JUAN GONZALEZ: But the continuing problem of the administration, basically holding him under suspicion of being a dirty bomber and then lowering the charges in terms of what they’re looking at, in terms of a civilian court. Your concern and response about that?

SCOTT HORTON: Well, I think it’s quite clear — remember, this case got started with a press conference that was held in Moscow by John Ashcroft. I mean, as it’s all developed, that was a very appropriate location for the announcement, with very dramatic statements being made about Padilla’s involvement with plans for a dirty bomb to be unleashed in an American metropolis, and so forth. And it’s turned out that there really wasn’t evidence to support these charges, and what’s being brought now are far more modest charges. Indeed, we know that there was a considerable discussion within the administration about the idea of just turning Padilla free at some point. So there’s clearly been a high degree of theatrics on the part of the administration with respect to this case, and when push comes to shove, it’s not had the evidence to back up its claims.

AMY GOODMAN: And Scott Horton, your response on McCain, on that bill passing, and the signing statement?

SCOTT HORTON: Well, I think this is a striking example that puts a spotlight on a much broader issue of reservation by the executive. And I think if we look at this in context, what it means is a secret government, effectively. We have hundreds of pieces of legislation that have been enacted by Congress, and we have the administration reserving, effectively, whether it’s going to enforce these laws or not, and that means if we look at the totality of the United States code, there are many, many provisions where we simply don’t know if these things are the law and the contemplation of the government. That’s a constitutional crisis.

DAVID GOLOVE: I might want to add, that it’s not only the bills that are affected by the signing statements that are under a cloud now, because we know that the criminal statutes, which Congress has passed over the years, even before the Bush administration came into office; the torture statute, the statute that makes it a felony offense to commit grave breaches of the Geneva Conventions; the FISA statute, which deals with electronic surveillance; and a number of other statutes —

SCOTT HORTON: The Uniform Code of Military Justice —

DAVID GOLOVE: The Uniform Code of Military Justice, which has governed our military since the beginning of our history; all of these, the administration has claimed to be unconstitutional in various respects and has done so secretly. Those claims of unconstitutionality, we only know about because, eventually, documents were leaked. But the administration has taken upon itself to claim that they’re unconstitutional, in secret, to not apply those laws. And only when the information came out can we even have a public debate about the questions that these raise.

JUAN GONZALEZ: Well, I’d like to ask Scott Horton about the whole issue of Samuel Alito’s nomination to the Supreme Court and his view on presidential powers, and several — the Boston Globe is reporting that several senators — Ed Kennedy, Charles Schumer and Patrick Leahy — are planning to make that a major issue in the confirmation hearings, as to his past views on presidential powers. Could you talk about that a little bit?

SCOTT HORTON: Well, in fact, also Jess Bravin in the Wall Street Journal yesterday had a major article, I think an extremely good and insightful article, on exactly this issue, and these questions are closely related. The presidential statement made about McCain, and Judge Alito, if we look back at the history of the development of this device, presidential statements, presidential reservations of rights, the idea of the unitary executive, it’s quite clear that Judge Alito is one of the intellectual authors of this entire approach. And he has consistently taken a view of executive rights and executive prerogatives that is extreme. Clearly, also he’s had the view that in wartime, the commander-in-chief powers trump other powers and may trump legislation that Congress has enacted, so this is an alarming factor.

And I think we need to view this in another context, too. If we look at the three nominees that the President has put forward — Judge Roberts, Harriet Miers, whose nomination was withdrawn, and now Sam Alito — these nominees all have one thing in common, which is that they have embraced this extremely radical view of executive prerogative; particularly when we view the executive vis-à-vis the courts and the Congress, they have embraced the view of an imperial presidency.

AMY GOODMAN: Professor Golove, your response on that?

DAVID GOLOVE: Well, my response is largely that I think I agree with what Scott Horton has said. I think it’s a major concern in relation to the Alito hearings and the confirmation process. I think in the next five or ten years, it’s fair to say that the major, major constitutional questions that will come before the Supreme Court will deal with the scope of executive power, rather than the scope of civil liberties, as we generally have understood them and has been so controversial in the past.

And so these issues need to be focused on very closely, because the balance in the court is at stake with Justice O’Connor stepping down, particularly, who was a justice who tended to find herself in the middle of the court, wrote the decision for the court in the Hamdi case, which did indeed impose some constitutional limitations on executive power, and as the quote that you read before suggests, she does not view the commander-in-chief power as a blank check for the President to do whatever he wishes, without regard to the laws.

AMY GOODMAN: Explain the Hamdi case.

DAVID GOLOVE: Well, the Hamdi case is interesting also in light of the discussion of the Padilla case, because the Hamdi case was another American citizen who was deemed an enemy combatant. He was actually captured in Afghanistan and then brought eventually to the United States and was held in military custody for two years, most of that time incommunicado in solitary confinement, not even being allowed to see a lawyer.

The case — the administration claimed in that case, as they claim in the Padilla case, that the judiciary had no authority to review, in any respect, what it was that the administration was doing, once it had deemed somebody an enemy combatant. No due process was required. Eventually the case did go to the United States Supreme Court, and Justice O’Connor wrote the opinion for the court, which is where the quote comes from, and Justice O’Connor said that in this particular narrow instance of an American citizen, who was actually captured abroad on a foreign battlefield in Afghanistan, the President did have authority under the law that authorized the use of force in Afghanistan to hold him as an enemy combatant, but that due process still applied, and that he needed to be giving a hearing.

Now once the Supreme Court announced that Hamdi had to have a hearing, the administration very rapidly decided to release him, rather than to actually go forward and present evidence to an impartial tribunal that would have shown the basis on which it was holding Hamdi. And there’s a disturbing parallel, I think, with the Padilla case, because, here again, the administration, at least, even if the Supreme Court had been willing to uphold the President’s power to hold him as an enemy combatant, which was very, very doubtful, but had it done so, they would have had to give him a hearing, as well, and I think they didn’t relish the idea of giving him a hearing.

AMY GOODMAN: We’re talking to Professor David Golove, N.Y.U. law professor, specializes in issues of executive power, teaches constitutional law and international law; and Scott Horton, Chair of the International Law Committee at the New York City Bar Association. We’ll be back with the two of them in a minute.

[break]

AMY GOODMAN: Our guests are Professor David Golove of New York University Law School and Scott Horton, Chair of the International Law Committee at the New York City Bar Association. We’re talking about issues of executive power. Professor Golove, you were saying this is of particular importance in the Sam Alito hearings. Can you explain his history on this?

DAVID GOLOVE: Well, it’s hard to speak too specifically. There have been a number of memorandum that he wrote over time that dealt with various executive power issues. I think it’s maybe best to speak of them as a collective body, and I think that Scott Horton’s characterization of them as a collective body of views about executive power suggests that Judge Alito does indeed share many of the ideas that the Bush administration shares about executive power and that he’s likely — of course, it’s impossible always to say what someone will do when they sit on the Supreme Court. We have too much experience with appointees doing things that are unexpected once they arrive at the court.

But he’s been on the Court of Appeals now for many years and has a long record, so we have reason to believe that he’ll continue to act in the way that he’s acted in the past, or his views are similar to the views he’s expressed in the past. And I think those views, taken as a whole, suggest that he has quite an extreme view of executive power, that is similar to the kinds of views that have been expressed by the Bush administration.

JUAN GONZALEZ: Turning to another issue, because there’s so many now in terms of this issue of presidential abuse of power, the National Security Agency’s domestic spying directive that the President allows the N.S.A. now to spy on American citizens, as well; could you talk a little bit about that and the implications there?

SCOTT HORTON: Well, I think it fits in with a pattern that we saw starting with the torture scandal. And the torture scandal, of course, we had a criminal statute — the anti-torture statute. We also had the Uniform Code of Military Justice that precluded a number of the things that were being done. And in this case, the FISA Act envisioned that the N.S.A. would engage in wiretapping, including wiretapping of American citizens. But it provided a special expedited process through which that was to be authorized; warrants were to be obtained ex parte through a special secret court.

And what we know now is, of course, that that process was avoided, that it began to be avoided after the court itself began raising questions about some of the requests that were made, and particularly, this has to do with roving wiretaps. It seems clear that a couple of judges questioned whether they could be authorized under any circumstances. Instead of coming back and presenting a better case for it, the administration simply decided to do it on its own initiative without judicial approval. And we now know through disclosures that have appeared in the Washington Post and The New York Times just in the last week that indeed a lot of this wiretapping commenced without even presidential direction or authorization, which makes it plainly illegal, even under the administration’s own theory that the President could authorize it.

AMY GOODMAN: I wanted to read a piece from the Washington Post of yesterday, of January 5th. It says, “Members of the secret federal court that oversee government surveillance and espionage in terrorism cases are scheduled to receive a classified briefing Monday from top Justice Department intelligence officials about the controversial warrant-less eavesdropping program, according to sources familiar with the arrangements. Several judges on the Foreign Intelligence Surveillance court said they want to hear directly from administration officials why Bush believed that he had authority to order, without the court’s permission, wiretapping of some phone calls and emails after September 11th attacks. Of serious concern to several judges is whether any information gleaned from intercepts by the N.S.A. was later used to gain their permission for wiretaps without the source being disclosed. The court, made up of 11 judges on a rotating basis, hear government applications for surveillance warrants.”

And it goes on to talk about how “Last Friday an attorney for Seifulla Chapman, one of the men convicted as part of the Virginia jihad network, formerly asked federal prosecutors in Virginia to determine whether warrant-less N.S.A. wiretaps were used to gain information about his client. Chapman, serving a 65-year sentence for conspiring to provide material support to a foreign terrorist group, he was the subject of a secret FISA warrant. Some judges who spoke on condition of anonymity said they want to know whether warrants they signed were tainted by the N.S.A. program. Depending on the answers, the judges said they could demand some proof that wiretap applications that were not improperly obtained.” Now, this goes to overturning cases that have already been decided. Also, one of the FISA judges has already resigned. Your response.

SCOTT HORTON: Well, I think it’s a very significant development that’s going to complicate a number of these pending prosecutions in terror cases. I mean, we know, for instance, again through investigative reporting, that one of the more confrontational hearings occurred in the FISA court occurred when an F.B.I. agent made representations that the court later determined to be fraudulent misrepresentations. And they refused to receive any further applications from that agent. So there seems to be a rising level of doubt or suspicion on the part of the court about the honesty of the representations that are being made by the administration in seeking these warrants.

AMY GOODMAN: That’s when the applications are made. What about when they’re not?

SCOTT HORTON: And that’s another problem. But I think, you know, specifically they, of course, are concerned when people come before them and make applications, are they using poisoned fruit, we would call it? That is, are they using results they got from unlawful wiretaps to make the new applications? Because, of course, that would not be permitted, that would be unlawful. And it’s important that the court make inquiry into that and act on it.

JUAN GONZALEZ: What is the impact around the world when, week after week, we’re getting reports in the American media about our own federal government circumventing and skirting and sometimes violating our own laws on judicial procedure? What is the impact worldwide of these constant revelations?

SCOTT HORTON: Well, I think the U.S. has been viewed as, you know, the carrier of the banner of civil liberties in the world for generations. And this is certainly undermining our reputation around the world. But I think, more specifically, it’s causing suspicion to be focused on the Bush administration itself, and on the person of George Bush and Dick Cheney, and their intentions. It raises questions, frankly, about the criminality of this administration. And in particular, I’d focus on the situation in Europe today, where we have arrest warrants outstanding and issued for more than 20 C.I.A. agents, impending investigations, which touch on dozens more federal employees. Now, their conduct may be viewed as in the national security interests in the United States, but in the countries in which they’re acting, it’s viewed simply as torture, kidnapping, assault, simple criminal conduct.

AMY GOODMAN: We’re talking to Scott Horton, Chair of the International Law Committee of the New York City Bar Association, and NYU law professor, David Golove.

DAVID GOLOVE: There’s another aspect of the matter concerning the judges on the FISA court that you brought up. I think it’s an example of how the separation of power system on our constitutional order is finally beginning to assert itself. I think it began with the Supreme Court’s decisions in the major cases that came before it the summer before last, the Hamdi case, which we discussed, the Rasul case, which held that the courts would supervise executive action in Guantanamo Bay. And now we see it with the lower court judges, in the FISA court, and we see it in Congress, as well, where the McCain bill was just passed by overwhelming majorities. I think that’s a healthy sign of the robustness of our constitutional system and our constitutional tradition.

But the signing statement, to go back to where we started, is an indication that the administration is going to fight back. Its first approach was to assert very broad powers secretly, and not only to assert the powers, but to act on the assertions of powers in memos, which were written by mid-level Justice Department officials, asserting constitutional claims of a very extreme character. And in fact, the memos that have been revealed, have been leaked, show that the legal reasoning that was used to justify these claims was very, very thin, at best.

So now that the various aspects of this have come to public light, we’re seeing a reaction in the other branches of the government. And yet, the signing statement tells us that it was one thing, maybe initially, to fight it in secret, and now the administration at least is coming forward more publicly and announcing, albeit quietly, that it doesn’t necessarily intend to listen to what the other branches have to say.

AMY GOODMAN: Scott Horton, I want to ask you about General Ricardo Sanchez, Lieutenant General. His career seems to be ending. He’s retiring. Can you talk about his significance in the Abu Ghraib case, and what this means?

SCOTT HORTON: Well, I think, you know, there was an effort made to acquit him in the Abu Ghraib case early on, but the documentary evidence that’s accumulated subsequently puts more and more suspicion on General Sanchez, continues to suggest that he wasn’t acting alone in some of the activities that he supervised, but he was acting, in fact, in direct coordination with the Secretary of Defense, Secretary of Defense’s office. So there’s been a lot of concern about what was going to happen with him right now. It’s clear that Rumsfeld was trying to protect him, but now his career seems to have come to an end, on the basis of the fact that there’s no way any new appointment for him would require review and approval by the Senate. And it’s quite clear that leadership in the Senate and both parties, frankly, would have placed a hold on him.

AMY GOODMAN: And what about responsibility at Abu Ghraib? We had General Karpinski, though she has been demoted, no longer a general. She, it seems, has been the highest-ranking person to be blamed for this.

SCOTT HORTON: Well, I think we can say clearly that the last word has not been written on the command responsibility issue. There’s going to be a lot more that’ll happen on this. There’s going to be litigation about it in the courts. And I think, ultimately, there’s going to be further criminal prosecution, and that prosecution is almost inevitably going to involve General Sanchez and probably also the Secretary of Defense, whether as witnesses or as defendants.

AMY GOODMAN: Well, I want to thank you both very much for being with us. We’ve been joined by Scott Horton, Chair of the International Law Committee of New York City Bar Association, and David Golove, NYU law professor, teaching constitutional and international law. Thank you for joining us.

DAVID GOLOVE: Thank you.

SCOTT HORTON: Thank you.