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Thursday, September 25, 2008

Symposium Live Blog: Executive Power Panel

10:29: We'll be getting started in just a few minutes.

10:31: Nan Aron kicks things off again. She observes that a lot has been written about executive power, and that our panelists will synthesize the key issues. We're also being introduced to moderator Herman Schwartz, a long-time advocate for civil liberties and law professor at Washington College of Law.

10:32: Prof. Schwartz says he's going to try to keep this complicated subject to his 60 second intro time, the executive power version of the complete works of Shakespeare in two hours. He observes that the Bush administration has taken commander-in-chief to be c-in-c of the American people, not just the military. He also notes that the bounds have been stretched beyond any previously recognized boundaries.

10:35: That 60 seconds has passed, but Prof. Schwartz has a number of important things to say. He observes that the administration stance on the bail-out--the administration's stance that they not be subject to any sort of legal or judicial review. As the professor observes, this pretty accurately sums up the administration's stance generally.

10:38: Dahlia Lithwick of Slate is the first panelist on the executive power panel to speak. She's discussing a poll that was released on Constitution Day. 2/3 of Americans opposed changing the balance of powers to strengthen the executive. She says it seems that 2/3 of Americans have understood what the administration's done, but that it isn't entirely clear that our leadership does. The argument that the administration has been offering is that they feel they can meddle with the boundaries of executive power because nobody cares, and we need to talk about the issue in a meaningful way--as part of the national discourse, not just confined to the many books published--in order to show that Americans really do care in order to put a stop to the power grabs.

10:42: Moving on to signing statements. Dahlia finds them intriguing vis-a-vis the administration. Symbolically, they are one of the most important things the Bush administration has done, but actively, they are more benign than other actions like extraordinary rendition. There are real consequences of signing statements, but symbolically they are an affront. Historically, the are "presidential throat clearing" before signing a bill. There wasn't a lot going on with the statements; they just served as a formality. That is, until the Reagan administration and its view that the statements can be used to move the law.

10:44: Since assuming office, Bush has used signing statements to alter 1100 laws, compared to the 600 over the previous 200 years. Bush's are far more troubling than priors, many of which are of a "thank you Elks" formality approach. Bush's are used to promote the unitary executive and the ultimate power of the executive branch.

10:46: Why do signing statements matter? The courts haven't really taken on the question of how binding a signing statement is. But, the statements act as directives to agencies, like the one used on the anti-torture bill, so ultimately formerly clear legal lines are muddied. A GAO study shows that agencies have disobeyed the law as the result of following directives from signing statements.

10:47: Signing statements also show us the MO of the administration: the president isn't bound by law and a refusal to explain what standards are for determining the boundaries on executive power. The history of waterboarding shows this MO laid out--secret memos, no transparency and no clarity. Our AG was explicitly asked about the legality of waterboarding, and he punted with "it depends on what the president thinks." This is the core worry of signing statements: when the exective branch aggregates power to itself, it's done secretly with no clarity and based on the decision of one person.

10:50 Congressman Ellison has begun to speak. He is talking right now about the huge bailout being discussed in Congress. He said Congress was told repeatedly that the economy is fine. Last Friday, Congress was told they needed to bailout the financial sector without asking questions. The first draft from the White House asked for $700 billion without any judicial review, and with all conflicts of interest waived automatically. The White House said they would resist bankruptcy protection for homeowners threatened with foreclosure. As Ellison sees it, this bailout started with Bear Stearns, then other brokerage houses. And here we are, last Friday, "give us $700 billion or else." This is another case of executive usurpation. He has never seen so many free-marketeers running to get government help.

10:55 There has been wage stagnation for the past 30 years. As a result, people do not consume based on savings, they consume based on debt. They go into their home equity to fund important purchases.

10:58 The right has begun to blame the progressive Community Reinvestment Act for the financial problems of today; but the real cause is financial deregulation and increasing use of debt. The abuse of executive power by the Bush administration has gone to new heights during this financial crisis.

11:00 We have seen massive abuses of executive authority. "Anyone who says that government should be shrunk to the size it can be drowned in the bathtub, should be drowned in a bathtub."

11:01 Agnieszka Fryszman has begun to speak about the roundup of suspected terrorists.

11:02 Supreme Court held that detainees at Gitmo had statutory right to test their detention by habeas corpus.

11:03 Under Bush administration's review, almost everyone at Guantanamo was found to be an "enemy combatant," without any opportunity to see or contest the evidence against them.

11:03 Ms. Fryszman located the charges against one of her clients on the internet, even though the Defense Department would not tell her. This client was seriously mistreated at Guantanamo, and there was no evidence that he was an enemy combatant.

11:07 Four years later, the Sup Ct rules that the CSRT process is not an adequate substitute for habeas. Months after that, no detainee has yet had a habeas hearing. Ms. Fryszman has concluded her presentation.

11:09 Congressman Ellison asks about a woman (Ms. Sadiki) who is a neurologist who was shot in the stomach while in US custody and is now being held incommunicado. Ms. Fryszman describes that lawyers representing detainees are generally prohibited from talking about their clients. She does not know much about this case, whose details are murky.

11:11 Ms. Fryszman reminds the audience that we are still operating secret detention sites around the world and that Guantanamo is being duplicated at other locations.

11:13 Ms. Lithwick is talking about the evolution of US interrogation policy. She talks about how this policy was literally developed based on Jack Bauer of FOX television's 24.

11:15 Moderator Herman Schwartz states that the Bush administration believes everything done before its tenure is meaningless, and that they can do whatever they want. This, he says, is a profoundly antidemocratic view.

11:17 Fryszman talks about how the handling of terrorists has been bungled because people were tortured. The actual terrorists in custody could have easily been convicted in our regular criminal court process, but it may now be too late for that.

11:19 She talks about Mr. Hamdan, who was finally tried and convicted of some charges by a military tribunal, and sentenced to some time in prison; but the government asserts that it can continue to detain him indefinitely beyond his sentence.

11:21 Ms. Lithwick says that undergirding much of the administration's policy is the goal of stripping the courts from reviewing executive action. She uses the "state secrets" doctrine as an example of a way to shield government misconduct. It took much too long for the courts to push back.

11:23 Prof. Schwartz blames the Sup Ct in part for avoiding constitutional clashes by deciding cases involving detainees on statutory grounds, but this has meant that the administration could continue to manipulate the law. He believes the court should have said right from the beginning that the administration was violating the Constitution. The Court failed to recognize that Congress was "completely supine," and would do whatever the administration wanted to perpetuate its detention.

11:27 Now questions are being taken from the audience. The first question is about the role f Congress in the expansion of executive power. Ms. Lithwick says that "supine" is exactly the right word, and that even Barack Obama abdicated on the issue of warrantless wiretapping under FISA. She believes Congress is fearful that it will be viewed as obstructionist and endangering national security.

11:30 The next question is about a "shadow government," and Ms. Lithwick talks about the secret legal memoranda justifying torture or warrantless wiretapping from the Office of Legal Counsel at the Justice Department.

11:33 The next question is from AFJ Vice President Marissa Brown -- what needs to be done in the next administration? Ms. Fryszman suggests closing Guantanamo, issuance of executive orders barring torture. Ms. Lithwick suggests looking at the responses from McCain and Obama to Charlie Savage on signing statements - and a publication by the Brennan Center on 12 steps to curtail executive overreaching.

11:36 The next question is about the pardon power, and whether Bush would use it to pardon key malfeasors.

11:38 The next audience question relates to what happened to McCain's views on torture. Ms. Lithwick comments that she does not understand how McCain's view have changed so much over the past year from opposing torture unequivocally to voting against legislation that would extend the Army Field Manual's interrogation limits to the CIA.

11:41 The next question is about government interference between the attorney-client relationships between detainees and their lawyers. Ms. Fryszman tells the story of a letter from her client describing his suffering - and discovering that the letter is 6 months old. When she manages to arrange to meet him 6 months later, she is told that he refuses to meet with her. In fact, he then meets her, tells her he did not refuse to meet with her, but in was being force-fed when she arrived so he could not meet with her. Also, you have to convince the client that you do not work for the CIA, etc.

11:45 Question from audience: has the Bush administration's advocacy for a unitary executive caused the courts to stand up to the executive? Ms. Lithwick thinks the passage of time has led the courts to be more skeptical of blanket executive secrecy and broad executive power. But Ms. Fryszman adds that in her experience with habeas cases the courts are still letting deadlines slip at the government's request.

11:49 The panel concludes.

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