AMY GOODMAN: “Warrantless Surrender” — that’s what the Washington Post called the Democrat-led Congress handing President Bush a major legislative victory this weekend when it voted to broadly expand the government’s authority to eavesdrop without warrants on the international telephone calls and email messages of American citizens.

After weeks of pressure from President Bush, both the House and Senate approved rewriting the Foreign Intelligence Surveillance Act, or FISA. The New York Times reports the new law sharply alters the legal limits on the government’s ability to monitor millions of phone calls and email messages going in and out of the United States. No protections exist for Americans whose calls or emails are vacuumed up.

The new legislation moves the power to approve the international surveillance from a special intelligence court to the attorney general and the director of national intelligence.

The legislation was rushed through both the House and Senate in the last days before the August recess. On Friday, President Bush pressured Democrats to support the bill.

PRESIDENT GEORGE W. BUSH: We work hard and in good faith with the Democrats to find a solution, but we are not going to put our national security at risk. Time is short. I ask Congress to stay in session until they pass a bill that will give our intelligence community the tools they need to protect the United States.

AMY GOODMAN: Democrats quickly responded. Hours after Bush spoke, the Senate passed the so-called Protect America Act of 2007 by a 60-to-28 vote with its 16 Democratic senators supporting the Republicans. Then, on Saturday, 41 Democrats joined Republicans to pass the bill in the House.

The American Civil Liberties Union condemned the votes. Anthony Romero of the ACLU said, “This congress may prove to be as spineless in standing up to the Bush administration as the one that enacted the PATRIOT Act or the Military Commissions Act.”

Critics of the legislation say it gives the Bush administration the power to order the nation’s communication services providers to create permanent spying outposts for the federal government. According to Wired.com, this could affect traditional phone companies, Internet service providers, Internet backbone providers, Federal Express, instant messaging sites and online phone companies. The law also grants immunity from liability to any company that cooperates with the government’s spying operations.

Today we’re joined by two attorneys and commentators who have been closely monitoring the Bush administration for years. Glenn Greenwald is a political and legal blogger for Salon.com. He’s a constitutional attorney and author of the new book, A Tragic Legacy: How a Good vs. Evil Mentality Destroyed the Bush Presidency. He joins us from Washington, D.C. And here in our firehouse studio in New York, we’re joined by Marjorie Cohn, a professor at the Thomas Jefferson School of Law, president of the National Lawyers Guild. She’s the author of the new book, Cowboy Republic: Six Ways the Bush Gang Has Defied the Law. We welcome you both to Democracy Now!

Glenn Greenwald, let’s begin with you. The Democrats — that’s the Democrat-led Congress, not Republican-led Congress — have now passed this legislation. Can you explain what it does and what your thoughts are on its passage?

GLENN GREENWALD: Well, it’s inconceivable on every level that the Democrats would capitulate in this way, and it’s disgraceful beyond what I think can be adequately described.

The Democrats have been offering to revise FISA in whatever ways the administration wanted for several years now. And the administration has repeatedly said, “We don’t need revisions to FISA. We don’t want you to revise FISA,” in essence because they were violating FISA and eavesdropping however they wanted. Suddenly, about several weeks ago, the president insisted that FISA had to be revised almost immediately and essentially said that if it wasn’t revised in exactly the way he wanted that the nation would be at risk to terrorism.

What really precipitated this was that the FISA court issued a ruling several months ago that in a very narrow way said that for certain types of calls, namely where there’s one person calling another person and both are outside of the country, and yet the call, because of technological reasons, is routed through the United States, that the Bush administration would need a FISA warrant in order to eavesdrop on that category of phone calls. And that was never the intent of FISA. It was a ruling that really for the first time said warrants were required, and everybody agreed that FISA should be revised in order to fix that one deficiency. And yet, the Democrats offered a bill that would have fixed that deficiency. The White House said, “No, we want much greater eavesdropping powers far beyond even this one fix,” and the Democrats ended up capitulating and giving the president vast new powers to eavesdrop on Americans without warrants.

AMY GOODMAN: Marjorie Cohn, you have a chapter in Cowboy Republic: Six Ways the Bush Gang Has Defied the Law — you may have to revise your title, “Six Ways the Bush Gang and the Democrats Have Defied the Law” — but spying on Americans. Explain exactly right now what this legislation not only will mean, but does it justify what has happened in the past, and was that part of the president’s push to get this passed?

MARJORIE COHN: The reason that FISA was enacted in the first place in 1978 was in response to incredible overreaching and illegality by the FBI with its COINTELPRO, Counter-Intelligence Program, targeting Martin Luther King Jr. and other organizations and Richard Nixon’s illegal surveillance of people who dissented against his policies. FISA set up a very conservative system with judges, who meet in secret, appointed by the chief justice, and in almost every case have issued warrants for wiretapping based on probable cause.

AMY GOODMAN: So, in a sense, it was a rubber stamp.

MARJORIE COHN: It was basically a rubber stamp. But that wasn’t good enough for the Bush administration. Bush, in 2001, secretly set up his so-called Terrorist Surveillance Program to illegally spy on Americans and — Americans and other people, as well, but it included Americans. And, in fact, the violation of FISA is a felony. And each violation can result in five years in prison. So the Bush administration has been breaking the law, has been committing crimes.

And what’s happened now with the Congress capitulating to really a much broader program than even the Terrorist Surveillance Program, they have not only legalized what Bush was doing before, but I think it’s highly unlikely that the Bush administration officials will be brought to justice for the felonies that they have been committing since 2001.

AMY GOODMAN: Now, Nancy Pelosi, the House speaker, called this “violence against the Constitution,” yet in the editorials, The New York Times has editorialized against what the Democrats did, The Washington Post in their piece called — talking about the warrantless legislation, also attacked the Democrats, as well as the Republicans. How does it get passed without the Democratic leadership in some way conceding?

MARJORIE COHN: Well, there were several Democrats — 16 Democrats in the Senate, 41 Democrats in the House — this could not have been passed without the Democrats. And so, in essence, this Congress is very — there’s very little difference between this Congress and the Congress that gave Bush the PATRIOT Act without reading it, gave Bush the authorization for the Iraq War, gave Bush the Military Commissions Act. They have rolled over consistently, and they even rolled over on the Iraq spending bill after Bush vetoed it, instead of saying, “Look, Bush is the one who isn’t supporting the troops, because he vetoed our spending bill, even though it had timetables.” They said, “Oh, we don’t want to be perceived as not supporting the troops.” This has been a Congress that has remained terrorized by the Bush administration since 9/11.

AMY GOODMAN: We’re going to go to break and then come back. Marjorie Cohn and Glenn Greenwald are our guests. They are just back from the YearlyKos convention, the bloggers convention in Chicago. We’ll be back with them in a minute.

[break]

AMY GOODMAN: We are talking to Marjorie Cohn and Glenn Greenwald. Both are attorneys. Both have just written books. Marjorie Cohn, head of National Lawyers Guild, has written, Cowboy Republic: Six Ways the Bush Gang Has Defied the Law. And Glenn Greenwald has just published the book, A Tragic Legacy: How a Good vs. Evil Mentality Destroyed the Bush Presidency. And we’re talking about the bill just passed this weekend, or several of them, by the Democratic-led Congress around eavesdropping, around funding of war.

On the issue of eavesdropping, Glenn Greenwald, can you talk about how this affects the telephone companies?

GLENN GREENWALD: Well, it affects the telephone companies in several ways. For one, it makes it compulsory for telephone companies to gather and collect data and make available to the federal government whatever information the federal government compels them to make available. And secondly, and I think more importantly, one of the principal ways that the advocacy groups and civil rights groups have attempted to hold the administration accountable is by suing the telecom companies for violating privacy rights and breaking the law in their complicity with these illegal programs, and the legislation that was just passed by the Democratic Congress makes it — it essentially bestows onto these telephone companies and telecom companies an immunity from any liability, even if they act illegally, based on the premise that they’re doing so at the behest of George Bush.

AMY GOODMAN: And what does it mean for what they have done in the past, the scandal breaking out in the country when it was learned that companies were allowing the Bush administration to come in and monitor, put eavesdropping bugs on the major switches in phone companies in places like San Francisco?

GLENN GREENWALD: Well, the legislation does not expressly provide retroactive immunity from criminality. And so, if the president and his administration and private telecommunication companies have in the past broken the law — and, as Marjorie said, we know they have, the warrantless eavesdropping by itself is a felony under federal law — there is still the opportunity, at least theoretically, for the Department of Justice, certainly not under Alberto Gonzales, but under a subsequent attorney general, to criminally investigate both telecommunication companies and political officials who have engaged in that felonious behavior. But what this legislation does, as a practical matter, is make that sort of accountability virtually impossible, because now there is a bipartisan and congressional stamp of approval on this behavior.

AMY GOODMAN: Now, it does say that it will be — it will sunset in six months, Marjorie Cohn, or it will have to be re-voted on in six months. But what does that mean if Congress can’t even track who is being eavesdropped on — I mean, if this doesn’t have any kind of judicial review?

MARJORIE COHN: That’s a good question. It basically hands over the power. It takes the power out of a judge’s hands and puts it in the power of Alberto Gonzales and the director of intelligence. And in six months, there’s going to be even more political pressure on Congress to appear tough on terror, leading up to the 2008 presidential election. And I don’t see how they would backtrack from what they’ve already done, especially because the Bush administration is likely, if its past behavior is any indication, to keep from Congress the information about what is actually being done, to say that it’s classified and to basically hide the information. Bush has issued signing statements saying he is not going to comply with congressional laws that require him to report on, for example, compliance with the PATRIOT Act. So I can only see it getting worse in six months, not better.

AMY GOODMAN: Who carries this out? Who actually carries out the spying? Who places the taps, the bugs? What part of the government?

MARJORIE COHN: I assume it’s the National Security Agency, which has been engaging in the illegal surveillance since 2001. And under Bush’s program, Bush’s illegal program, before the Congress just rubber-stamped it, the decision about whether or not to do wiretapping was taken out of a judge’s hands and put in the hands of a bureaucrat at the National Security Agency.

AMY GOODMAN: Glenn Greenwald, you wanted to add something there.

GLENN GREENWALD: I wanted to add to Marjorie’s point about the six-month sunset provision. You know, this week, this last week, it was just revealed, in order to defend Alberto Gonzales, that when the president ordered the NSA program back in 2001, he did so as part of an executive order of which warrantless eavesdropping was but one of numerous covert spying programs aimed at Americans, the content of which we still do not know. And two months earlier, James Comey testified before the Senate that he and Ashcroft and others had discovered that whatever it was that they were doing from 2001 to 2004 was so illegal, so unconscionable, that they had all decided to resign en masse from the government unless that behavior ceased immediately.

And I had the opportunity this weekend at YearlyKos to interview several senators, including Senator Chris Dodd, and I asked him whether or not senators have any idea of how they have been using their secret spying in order to spy on Americans, what these additional programs are, what it is that we’re doing that made James Comey and John Ashcroft threaten to resign from the government. He has absolutely no idea, nor do the other senators.

And so, what they’ve done is they convened Congress and stayed in session under the president’s order to revise a law at his direction, that they actually have no idea how it’s been administered and what this government has been doing. And Marjorie is exactly right. This government does not tell the Congress what it is that they’re doing with the powers that they’re given. And so, six months from now, their rhetoric will be ratcheted up, and there’s no reason to expect anything other than what just happened to happen again.

AMY GOODMAN: I wanted to ask about this Newsweek report that the FBI has used a secret warrant to raid the home of a former Justice Department lawyer named Thomas Tamm. During the raid, FBI agents seized three computers and personal files. According to Newsweek, the FBI is trying to determine who leaked details of the government’s secret warrantless eavesdropping program to the news media. Tamm had worked in the Office of Intelligence Policy Review, a unit that oversees surveillance of terrorist and espionage threats. Your response, Marjorie Cohn?

MARJORIE COHN: Well, who leaked the so-called Terrorist Surveillance Program to The New York Times? Who leaked the data-mining program to USA Today? There are people inside the administration that are just fed up with the law breaking and the attacks on the Constitution that are coming from the White House, and that’s why we have these leaks.

One interesting thing is that when Alberto Gonzales was on the hot seat because of inconsistent statements about what he said when he went to John Ashcroft’s bedside and tried to twist his arm into agreeing to legalize Bush’s illegal — agreeing to not legalize, but agreeing to put his stamp of approval on Bush’s Terrorist Surveillance Program, what came out is that the government admitted for the first time that what they were talking about was not really this Terrorist Surveillance Program, but rather data mining. And this is the first time that the administration has actually admitted that they are doing this data mining, which the USA Today leaked. The data mining intercepts millions and millions of phone calls and email communications to track what the patterns are, but experts inside the administration say that, in fact, they also have access to the content of the communication. So we have no idea, and Congress probably doesn’t either, of the scope of all of these so-called intelligence activities, which, by all accounts, are not making us any safer.

AMY GOODMAN: Isn’t it remarkable, Glenn, that the FBI is raiding one of its own attorneys’ homes?

GLENN GREENWALD: Yeah. Think about how dangerous that is. If you look at all of the most controversial Bush programs, and the patently illegal ones, from torture and rendition and black sites and warrantless eavesdropping, the only reason that we know about any of them, it’s not because we have an establishment press that has investigated and uncovered it, and it’s certainly not because we have a Congress that has exercised oversight, it’s because there are whistleblowers, honorable and noble whistleblowers inside the government, who have waved the flag and disclosed the fact that the government is breaking the law. And what this clearly is is an effort on the part of the FBI at the direction of Alberto Gonzales to intimidate any would-be whistleblowers, to cut off the one source of information that we’ve really had about what the Bush administration has been doing behind this wall of secrecy. And it’s an incredibly dangerous effort to really stifle the only flow of information that we have about what our government is doing.

AMY GOODMAN: And this meeting that took place at the bedside, the hospital bedside, of John Ashcroft, about what it was that Alberto Gonzales did while there, what he was trying to force Ashcroft to do?

GLENN GREENWALD: Well, think about what it was that Comey and Ashcroft said, which was, there’s a pool of intelligence activity, is it’s not warrantless eavesdropping because warrantless eavesdropping is something that both Comey and Ashcroft ultimately approved of. It was something else, something else that we don’t know that was even more extreme than warrantless eavesdropping and so clearly illegal that they had told the president they were all going to quit unless he immediately ceased that activity. And that activity was spying on American citizens that went on for three years and that was in clear violation of the law. That’s what they were trying to coerce Ashcroft into authorizing. And it is inconceivable that, given that this intelligence activity ceased three years ago and given that it was so clearly illegal that the whole Justice Department was ready to quit over it, that the Democrats in Congress have not demanded that we learn what it was that our government was doing in breaking the law for all that time and how they were spying on American citizens.

AMY GOODMAN: Marjorie Cohn, can you continue on Alberto Gonzales? And we’ll see what happens with him, whether he’s forced to resign, whether — well, there have been calls for his impeachment, and is that how it would work? And what you think he is guilty of?

MARJORIE COHN: Well, a few years ago I wrote a piece for Truthout, and it’s been republished in a book, and it’s called “The Gonzales Indictment.” And even though I’m a criminal defense attorney, I quite enjoyed writing up a sample indictment of Alberto Gonzales for war crimes. He’s a war criminal, because it was memos that he signed and policies that he put into place, he convinced Bush to put into place, that led to the torture of prisoners in U.S. custody. And now we have evidence of even more law breaking by Alberto Gonzales.

One difference between the Republican-led and the Democratic-led Congress is that they are holding hearings and they’re doing investigations. And one of the things they’re investigating is the mass purges of U.S. attorneys, some nine-plus U.S. attorneys, who were not, according to Kyle Sampson, loyal Bushies.

And so, Alberto Gonzales has been called before Congress, and he has made material misstatements, which could constitute perjury, which of course is a federal crime. And Bush refuses to let him go, mainly because if there was a new attorney general, a new attorney general might actually — might actually enforce the law, and that might mean that Bush and Cheney and company would be involved.

But I don’t know. These calls for impeachment of Alberto Gonzales, I don’t know where they’ll lead, but given the way that the Congress has backed down repeatedly, I have my doubts that they’ll actually amount to an impeachment.

AMY GOODMAN: Can you talk about the torture of prisoners, one of the titles of one of your chapters?

MARJORIE COHN: Torture is illegal under our law. It’s illegal under three treaties we have ratified: the Geneva Conventions, the Convention Against Torture, and the International Covenant on Civil and Political Rights. And notwithstanding the Bush administration’s distaste for treaties and so-called international law, our Constitution has a provision called the Supremacy Clause. And it says that treaties shall be the supreme law of the land. That means that treaties are U.S. law, and pursuant to those treaties, we’ve enacted two federal U.S. statutes, the Torture Statute and the War Crimes Act. And under the War Crimes Act, grave breaches of the Geneva Conventions constitute war crimes.

So torture is illegal all the time. And, in fact, the Torture Convention says no exceptional circumstances, even a state of war, can ever be used as a justification for torture. And yet, pursuant to a carefully thought-out policy and memos written in the Department of Justice by John Yoo and David Addington and others, there has been a policy of torture and abuse that comes from the highest levels. It’s not just a few bad apples, and it’s gone on in Abu Ghraib prison, all around Iraq, in Afghanistan, in Guantanamo and in the CIA black sites around the world.

AMY GOODMAN: What about this piece Jane Mayer has just written? You may not have gotten a chance to read it, in The New Yorker magazine, but on the CIA’s black site, the U.S. network of secret overseas prisons that you’re talking about, Mayer reports that the International Committee of the Red Cross has concluded the CIA’s detention interrogation methods are tantamount to torture. Sources told her that this confidential Red Cross report that U.S. officials — warned U.S. officials that they may have committed grave breaches of the Geneva Conventions and may have violated the U.S. Torture Act. The Red Cross issued the confidential report to the Bush administration last year. But according to the reporter, The New Yorker reporter, Jane Mayer, only a handful of people inside the administration have seen it.

MARJORIE COHN: Well, that means, if that’s true — and I believe it is, given the evidence that we see continually coming out of the whistleblowers and the Red Cross and the U.N. commissions that have been investigating — that means that Bush administration officials are guilty of war crimes. But one of the things that the Military Commissions Act does is to give immunity to Bush officials for these war crimes that they’ve committed. And so they — and this is pursuant to these legal memos, these so-called legal memos by John Yoo and David Addington, which basically informed Bush how to torture and get away with it, how to get around liability under the War Crimes Act.

AMY GOODMAN: Glenn Greenwald, in A Tragic Legacy, you talk about the good-versus-evil mentality, and you say that is destroying the Bush presidency. Explain what you’re getting at, and then maybe you can tie that into the issue of torture.

GLENN GREENWALD: Well, the rhetorical justification for everything that has happened under the Bush presidency is that, in essence, that we are engaged in this epic battle of pure good versus pure evil. And that resonated after 9/11, and yet that continued to be the template that was applied over everything, not just foreign enemies, but complex situations like Iraq and domestic political debates, as well. And once you embrace the premise that we are fighting a war on behalf of pure good against pure evil, anything becomes justifiable by its very nature. Any means employed in service of that battle becomes warranted, because it’s in service of the good and in defeating evil.

And the point that I want to underscore about what Marjorie just said with regard to, for example, torture, one of the means that was used in order to win this battle against evil, is that, you know, in 2004 and 2005 all of these extremist measures were the byproduct of secret programs that were created by the Bush administration and implemented in a lawless manner. Congress did not authorize them. That is no longer the case. If you look at, for example, the war crimes that the Bush administration committed and the lawless detention that they imposed on thousands of people and the enhanced interrogation techniques, i.e. torture, that now has legal authorization of the American people through our Congress. And so, repeatedly, with each of these steps, while the blame originally lay with the Bush administration, it now increasingly lies not just with the Republicans in Congress, but also with the Democrats in Congress, who not only stood by and allowed these measures to become the officially sanctioned law of the United States, but now that they’re in the majority are actively participating in their legalization. And I think that’s a critical change in the way we need to talk about these policies. They’re no longer just the policies of George Bush, but the bipartisan policy of the United States.

AMY GOODMAN: We have to break. We’re going to come back to this discussion with Glenn Greenwald, who has written A Tragic Legacy: How a Good vs. Evil Mentality Destroyed the Bush Presidency, and Marjorie Cohn, president of the National Lawyers Guild, author of the new book, Cowboy Republic: Six Ways the Bush Gang has Defied the Law. Stay with us.

[break]

AMY GOODMAN: We’re talking about the Bush presidency. We’re talking about what happened this weekend with Congress going out on summer session, August recess. Our guests are Glenn Greenwald, author of A Tragic Legacy: How a Good vs. Evil Mentality Destroyed the Bush Presidency, and Marjorie Cohn, president of the National Lawyers Guild, has a new book Cowboy Republic: Six Ways the Bush Gang Has Defied the Law.

It may be that President Bush has the lowest polling in modern polling history, with 65 percent of Americans disapproving of what he’s doing in office. Only Richard Nixon had more with 66 percent disapproving, and he redesigned four days later. And yet, even with this extraordinarily low approval rating, the Democratic-led Congress felt pressured to comply with his demands. Marjorie Cohn, we’re talking about on spying. We’re also talking about the funding of war.

MARJORIE COHN: Under the Constitution, the Congress has the power to actually end this war. They can cut the funding for the war, and they can put limits on the war. And yet, they have refused to do that. They have backed down when Bush vetoed the spending bill and agreed to no limits.

The founding fathers put into the Constitution three separate co-equal branches of government to check and balance each other so that no one branch would become all-powerful, and they were particularly concerned about a president, an executive, especially in times of war, overreaching and amassing too much power.

And yet, this is precisely what Bush has done in his signing statements. Congress has the power to pass the laws. The president has the power to veto them or sign them — only two choices. Bush has signed most of the laws — all but three laws — and then he attaches a signing statement, and he has done this more than all other presidents combined, saying, “I’m the commander-in-chief, and I can disobey the law when I want.”

And one of the things that appears in these signing statements is this concept of the unitary executive, where it’s a very radical right-wing theory that Judge Alito and Clarence Thomas and Scalia all subscribe to, that says that all executive power rests in the hands of the president, and, in fact, all governmental power really resides the hands of the executive. And this is why, interestingly, when we see the U.S. attorney hearings and Bush asserting executive privilege, the witnesses who have testified have said that Bush had nothing to do with it. But Bush — since Bush thinks that he is the executive, anybody who is in the executive branch, he thinks, is under his control, and he can tell them not to obey the subpoenas. Since Dick Cheney has said that he’s not part of the executive, they really ought to subpoena him, because he wouldn’t be able to claim executive privilege, since he’s not part of the executive.

AMY GOODMAN: Are you saying that facetiously —

MARJORIE COHN: Yes.

AMY GOODMAN: — or do you think that could be something they would do?

MARJORIE COHN: I don’t think they would do that, but if you really listen to his words, that’s where it leads.

AMY GOODMAN: Glenn Greenwald, you use the word — and tell me if I’m mispronouncing it — “Manichean.”

GLENN GREENWALD: Right. Manichean, it’s good.

AMY GOODMAN: Explain. It’s throughout your book, every chapter. Explain the theory.

GLENN GREENWALD: Well, technically, the term derives from this third century BC religion founded by the Persian prophet Mani, which had as its central belief the idea that the world can be understood and easily divisible into two categories, pure good and pure evil, and that all events are the byproduct of this overarching battle between good and evil, and one’s duty is to pick sides and fight on behalf of good. And once one does that, everything else falls into place.

And in a contemporary sense, it really refers to somebody who sees the world in simple binary terms of good versus evil. And whether George Bush actually believes that — and I think one can debate whether he does — it is certainly the case that the entire rhetorical justification for his presidency has been to divide the world between good and evil and take all sorts of disparate groups that could easily be navigated and played off against one another and simply group them all together as evil and declare that the only solution is belligerence and to wage war against them. And that has become the national identity, the national policy of the United States under the Bush presidency, and it’s what has ushered in all of these abuses that we’re talking about this morning.

AMY GOODMAN: You devote a chapter to Iran. Why? And what do you see President Bush doing with Iran by the end of his presidency?

GLENN GREENWALD: Well, I don’t think there’s much of a chance that the troops are going to be withdrawn from Iraq, and I don’t think there’s any chance, in fact, that that will happen before the end of the Bush presidency. I think the greatest threat, the truly unresolved issue, is whether we will have a military confrontation with Iran prior to the end of the Bush presidency.

And it’s critical to note that it was all the way back in 2002 in his State of the Union speech when George Bush declared Iran, along with Iraq and North Korea, to be evil. And that is a moralistic premise that he has never abandoned. He has steadfastly refused to negotiate with the Iranians, even when they were eager to reach an overarching agreement. We have done increasingly provocative steps, including deploying aircraft carriers and purposely detaining diplomats in Iraq. And if you look at what the U.S. military says on a virtually daily basis, it’s designed to blame the Iranians for engaging in acts of war against the United States. It’s a very serious danger. And the only ones who can stop it are our Congress, if anyone can, and one has to have very little confidence in their willingness to do so.

AMY GOODMAN: And yet, your explanation of the Democrats and how they’re dealing with the president at his lowest polling ever, perhaps in modern polling history, still caving in bill after bill.

GLENN GREENWALD: Well, what is so baffling about it is, you know, I think people forget that immediately before the midterm elections in 2006, Karl Rove’s strategy was to force a vote on both the Military Commissions Act and warrantless eavesdropping. And Democrats voted largely against the Military Commissions Act, though they didn’t filibuster, and they also prevented enactment of a warrantless eavesdropping statute. And Republicans ran around the country saying the Democrats are soft on terrorism, they don’t want to listen in when Osama calls, they don’t want to interrogate a terrorist. And the Republicans got crushed with that strategy.

And yet, Democrats simply refuse to realize that that strategy no longer works. Americans are largely immune to this fear-mongering, and yet they’re guided by these consultants, and they themselves, to a large extent, believe this, that if they don’t capitulate every time, that they will be jeopardized politically. And it’s unprincipled and dangerous, but it’s also so politically stupid, because when they do this, all they do is end up looking as weak as they in fact are.

AMY GOODMAN: In fact, they, too, at one of the lowest popularity points in — for a modern congress.

GLENN GREENWALD: Right. And a lot of people in the media try to use that to suggest that this shows that they’re being too obstructionist and Americans want them to focus on legislation and not investigating the president. And, in fact, if you look at the polling data, it reveals the opposite. The reason why their polling numbers are so low is because liberals and Democrats express dissatisfaction with them to a very large extent because there’s obvious disappointment in their failure to use the power they have been given to stop the war and to assert meaningful opposition to the president. That is what explains their low standing in the polls.

AMY GOODMAN: Glenn, how much of this conversation was taking place this weekend? I mean, the YearlyKos convention of thousands of bloggers drew in the major Democratic forces in this country, though I understand Nancy Pelosi didn’t show up as they were casting these votes, though was supposed to — the major Democratic presidential candidates, like Obama, like Hillary Rodham Clinton, like John Edwards. What was the climate there? What kind of questioning was going on?

GLENN GREENWALD: Right. Nancy Pelosi and Harry Reid were scheduled to appear, but they were ordered by George Bush to stay in Washington, and so they were unable to make it.

But the mood was furious, particularly once the Senate on Friday night passed FISA and it was clear that the House would. I did a panel with ACLU Director Anthony Romero on Saturday morning to talk about his new book, and the room was filled with furious people who only wanted to talk about why it was that the Democrats capitulated to the president. And I think there’s an increasing sense that while it is a positive development that the Republicans were removed from power in the Congress, that the political movement represented by the YearlyKos faction understands that that will only be a meaningful development if the Democratic Party is materially different and is changed. And the influence has to be exerted not just to remove Republicans from power, but to change how Democratic congressional leaders approach these issues, as well. And that was very much the mood. It was not a celebration of Democratic party politics. It was an affirmation of these principles and a demand that Democrats abide by them.

AMY GOODMAN: There was also the questioning. Marjorie Cohn, were you there when the presidential candidates had their panel?

MARJORIE COHN: I wasn’t. I was on my way to New York for a National Lawyers Guild meeting.

AMY GOODMAN: The questioning of the candidates, of Clinton, of Edwards, of Obama, on the issue of campaign funding. Glenn Greenwald, how significant do you think this is when you’ve got these millions of dollars pouring in from the pharmaceutical companies, from the military contractors?

GLENN GREENWALD: Well, one of the issues that provoked the most boisterous response was the insistence from Edwards and Obama that Hillary Clinton follow their lead and refuse to take money from Washington lobbyists and also Barack Obama’s insistence that elections be publicly funded. I mean, clearly, one of the principles of the net root is that our politics generally is corrupted by large lobbyists and large corporations, and there is an eagerness on the part of, I think, a broad spectrum of Americans that the Beltway be returned to the American people and away from these lobbying factions.

AMY GOODMAN: Marjorie Cohn, a lot of people talk about the war as being a terrible mistake. You don’t. You go way further than that.

MARJORIE COHN: Yeah. The war was a premeditated, deliberate violation of the law. The U.N. Charter, also a treaty, also part of U.S. law, says the only two instances where a country can use force against another is in self-defense or when the Security Council agrees. And there was never any evidence that Saddam Hussein posed a threat to us or to any other country. He hadn’t invaded any country for 12 years, since Kuwait, and he had really been — his military had been neutered by the Gulf War, by the punishing sanctions, by the bombings in the no-fly zones. And the Bush administration knew that. They knew that, and yet they sold this war. They sold this war.

They intended to invade Iraq since way before 9/11. And now it’s really clear why they did that. And that is, to install huge permanent military bases, the biggest in the world, and the biggest U.S. Embassy in the world in Baghdad and to privatize Iraq’s oil. They’re trying to push through this Iraqi oil law that even Congress is touting as a benchmark for Iraqi progress, and it would give control of three-quarters of Iraq’s oil to foreign oil companies.

And yet, we see the leading Democratic candidate, Hillary Rodham Clinton, who is saying, well, she is not talking about taking the bases out. She’s saying we’d leave a force there, which means we would leave the bases there. So — and I don’t hear anyone but Kucinich actually talking about an end to the occupation, which is what we should be talking about.

But I think that it’s very important not to say the war was a mistake, the war is being fought incompetently. The war is illegal, and it’s also immoral. It’s killing thousands of U.S. soldiers. It’s killing tens of thousands of Iraqis, and it’s draining our National Treasury. And the majority of American people know this, but Congress has not caught on yet.

AMY GOODMAN: What is the National Lawyers Guild doing about this? You came to the meeting of the National Lawyers Guild here in New York. What can you do as a body of lawyers in dealing with this?

MARJORIE COHN: We have a new joint antiwar task force, which is coordinating our work — the military law task force, which counsels thousands of GIs every month, who are disenchanted, who don’t want to go back to Iraq, who want to file for conscientious objection status. Some of them go to Canada. We have mass — a huge mass defense project, where we do legal observing at antiwar demonstrations, and we have an international committee that deals with these issues, as well. And we are putting out literature to try to convince members of Congress who don’t think that high crimes and misdemeanors have been committed by the Bush administration, that in fact the war is illegal. It’s not a mistake. And so, we have been coordinating all our work and really focusing the major part of our work on ending the occupation.

AMY GOODMAN: Glenn Greenwald, you usually are in Brazil when we interview you. You’re here in the United States, went to the convention. You’re here with your book, A Tragic Legacy.

One of the controversies that has surrounded Senator Obama is that he said in his first year as president he would meet with the so-called enemies. For example, he would meet with the heads of Iran, of North Korea, of Chavez of Venezuela. And he has been castigated firmly by everyone, from Hillary Rodham Clinton to all the pundits on television. Your response?

GLENN GREENWALD: Well, I think one of the actually positive developments of this last week was that there was a memo written by Obama’s top foreign policy adviser, Samantha Power, who is a Harvard professor and author, and she wrote an extremely compelling response to all of this disapproval of Obama’s breaches of all these foreign policy orthodoxies that we’re all required to pay homage to at the risk of being declared unserious if we don’t.

And what she said was this entire foreign policy community, its so-called bipartisan foreign policy establishment, is exactly what has brought us the worst foreign policy disaster in American history and cheered on George Bush’s invasion and warned of mushroom clouds over American cities and misled the country into believing that the occupation would go well and supported George Bush as he expressed nothing but belligerence to anyone who didn’t submit to our will. And as a result, this foreign policy establishment has lost all credibility. They have lost the right to judge who is serious and who is responsible, because they themselves have proven to be so reckless and unserious. And obviously, we need a fundamental change in how we’re dealing with the world. And that has to begin with the immediate end of this idea that we can isolate and ignore those who disagree with us.

AMY GOODMAN: Ten seconds, Marjorie Cohn.

MARJORIE COHN: Ultimately, I think this war is going to end when the Iraqi people kick us out. The majority of Iraqi people are against the occupation, and there is growing resistance within the U.S. military to disobeying unlawful orders, which our law allows, because the war is illegal, the torture is illegal. And I think that, like Vietnam, that’s what’s going to end the occupation of Iraq.

AMY GOODMAN: Marjorie Cohn, Cowboy Republic, Glenn Greenwald, A Tragic Legacy, I want to thank you both for being with us.