Bill Moyers
December 12, 2008
Glenn Greenwald On The George W. Bush Administration and The Rule of Law

BILL MOYERS: Welcome to the Journal.

For a fellow who's still supposed to be in charge of a country in deep crisis, President Bush has been spending an extraordinary amount of his little remaining time mounting a last-ditch courtship of the media. He's eager to tell us how he would like to be remembered.

CHARLIE GIBSON: Much has been made of his historically low approval ratings, but Mr. Bush tells us he's leaving office with his head held high.

LESTER HOLT: They took some time out to talk to NBC's John Yang about what it's been like to go through the past eight years together.

JOHN YANG: I think a lot of people are curious, I'm curious, about what it's like to live in the residence, with the bright lights on the building.

BILL MOYERS: For all the questions put to him about his legacy, however, the press seems strangely uninterested in his controversial treatment of the Constitution and the Rule of Law: torture, surveillance without a warrant, or prisoners of war, the Geneva Convention and the claims the president has made for expanding the power of his office. That unlimited view of authority may well be the centerpiece of his legacy.

So there are plenty of tough questions to be asked about it, and Glenn Greenwald, a constitutional lawyer, has been asking them. Visitors to the blogosphere will recognize the name immediately. His blog on, Unclaimed Territory, is one of the most widely read on the internet. His loyal readers describe him as "A blogosphere superstar," and "One of the smartest and most important new voices in politics." And, I would add, journalism.

The new media is his stage. But he's also written two best-sellers: How Would A Patriot Act? about President Bush and executive power, and this one, A Tragic Legacy, an analysis of the president's record. His most recent is Great American Hypocrites.

Glenn Greenwald, welcome to the Journal.

GLENN GREENWALD: Great to be here, Bill.

BILL MOYERS: Even before the president set out on this recent round of efforts to shape how we think about his legacy, you had already pronounced it a tragic legacy. What's tragic about it?

GLENN GREENWALD: There are conventional measurements that historians typically examine in order to assess presidential legacies. Obviously you can look at the two wars that this president started, one of which, in Iraq, is viewed by overwhelming majorities of Americans as being a grave mistake. It was launched based on false pretenses, an extraordinary way to start a war. It inflicted severe damage on our readiness and the credibility of the United States around the world. The other war is now seven years old in Afghanistan and is worsening by the minute. It's very difficult to even envision a positive outcome sufficient to render the initial decision to invade a smart thing to do independent of whether it was justifiable. The economy is obviously in shambles. And obviously the legacy, when looked at by those standard measurements is an unparalleled disaster.

I call it tragic because after 9/11 the president really had an opportunity to rejuvenate the American sense of unity and common purpose. People — including vehement ideological opponents of his — were lined up behind him, supporting him in the wake of 9/11. And not only was that opportunity squandered — the reverse happened. The country was as divided as it ever has been before and the way in which Americans regard their government is at an all-time low.

BILL MOYERS: But the paradox is that you were impressed with the president after 9/11. You talked about his eloquent and principled response to terrorism. And you yourself said Islamic extremism is a threat to this country. And then you lost your faith in him.

GLENN GREENWALD: Well, if you go back and read the speeches that were given in the immediate aftermath after 9/11, the president that appears in that time period is literally unrecognizable. The emphasis was not on any of what ended up taking place. There was no sense of we are going to go to war with the Islamic world or start invading countries indiscriminately or creating gulags and secret prisons and institute a torture regime. Not only was none that mentioned, the opposite was emphasized, that our response was going to be extremely directed. He made a personal point of meeting openly with Muslim leaders in the United States and emphasized that our war was not with the Muslim world, that it was critical if we were to conduct our response intelligently and effectively that it be targeted and restrained and limited to the extremists who were waging war against the United States.

And had he adhered to those original commitments, I think the presidency would have been much different. At the time, I was living in Manhattan and was litigating constitutional cases. As you say, my interest was much more in vindicating constitutional values on a case-by-case basis, rather than being active politically. And it was only once I saw how radical of a war was being waged on the rule of law and our constitutional values by this administration, justified by the 9/11 attacks, that I think that political activism was necessary.

BILL MOYERS: You talked about Iraq, the present-going war. But then you come back and use the term "war" in response to a war on the Constitution?

GLENN GREENWALD: Well, if you look at things that people have said who are responsible for what I call the war on the Constitution, before 9/11, what you find is that these ideas, including removing Saddam Hussein, but beyond that, wildly expanding executive power, erecting a wall of secrecy around our government such that transparency is virtually non-existent. Empowering the president to ignore literally laws that are passed by Congress in the name of national security.

These ideas were implemented after 9/11 and using the 9/11 attacks as justification. But the ideologues who implemented them, Dick Cheney and David Addington and John Yoo and the whole cast of right-wing ideologues who fill the Justice Department, have been advocating these ideas, which for decades were fringe and discredited ideas long before 9/11 and just like the idea of removing Saddam Hussein, they were empowered to institute them as a result of these crises.

BILL MOYERS: Well, you were saying they were discredited. But all wartime presidents expand the powers of the office. Woodrow Wilson, Franklin Roosevelt, Lyndon Johnson, Richard Nixon. I mean, there's something inherent in war and the expansion of powers. Are you saying that Bush and Cheney took it further?

GLENN GREENWALD: I'm saying they took it to an entirely different level. What we have, in the last eight years, is not merely a case of individual and isolated law breaking. It's a declaration of war on the whole idea of a law itself, on the idea that our political leaders are constrained in any way by the limitations of the American people imposed through our Congress. The rule of law has essentially ceased to exist. And that I do think is quite new.

BILL MOYERS: Was there a moment when what you lay what you have called "creeping extremism" became apparent to you in a minute particular?

GLENN GREENWALD: Actually, there was. And I'll describe to you exactly what it was. It was in 2002 when Jose Padilla, an American citizen born in the United States on U.S. soil, was essentially abducted by the government — by the U.S. government. And it was — he was accused in a press conference held by John Ashcroft of being the dirty bomber.


GLENN GREENWALD: Of seeking to detonate a radiological weapon within an American city. Obviously something that is a crime and it should be prosecuted as a crime. But rather than announce that they intended to indict him and bring charges against him, as the Constitution requires, the Bush administration instead announced that it has the power to arrest and detain American citizens on U.S. soil indefinitely based solely on the say so of the president without having to charge that person with a crime and without even having them have access to a lawyer.

And that's exactly what was done to Jose Padilla, a U.S. citizen in this country for years. And the lynchpin of American liberties since the founding, as the founders said, has been that the government does not have the power, not even the British king had the power since the Magna Carta, to order citizens imprisoned without charges based solely on the unchecked say so of the president. That is the power that this government assorted and seized and exercised. And that's when I realized that things had gone radically awry.

BILL MOYERS: What do you mean when you call President Bush a Manichean warrior? I mean, most people don't know what Manichean is and don't care. What do you mean by it?

GLENN GREENWALD: Well, the idea of being a Manichean comes from this third century BC philosophy that — or religion really — that basically understood the world, a never-ending battle between the forces of pure good and the forces of pure evil. And all human events could be understood said adherence to this religion through that prism. And it was a very simplistic idea that even early Christianity rejected as not appreciating the complexities of how the world actually is and the ambiguities, the moral ambiguities that characterize who most of us are in most situations. George Bush views the world and his followers viewed the world through this lens of pure good versus pure evil. And it's not me saying that. He said that in virtually all of his speeches. And when you see the world that way what it means is that if you're on the side of pure good, as he asserted that he was and we are, it means that anything that you do, no matter how limitless, no matter how brutal and immoral, is inherently justifiable because it's being enlisted for service of the good.

And by contrast, anything that you do to those on the other side is inherently justified as well because they're pure evil. And from the war in Iraq to the torture camps and secret prisons that we set up, all of the things that have done so much damage, I think that's the mentality that lies at the heart of it.

BILL MOYERS: But wasn't — isn't Islamic extremism, any religious extremism — isn't it pure evil?

GLENN GREENWALD: Well, I think clearly the people who perpetrated the 9/11 attacks or the people who just unleashed that terrorist attack in Mumbai and so many others over the past several years, if anything, embodies evil. I think it's fair to say that they do. To say that the world is not divisible into pure evil and pure good is not to deny the existence of pure evil. Pure evil exists. It's just the exception and not the rule. And to view the world in these clean and clear and absolute moral categories will inevitably lead you astray. It'll do worse than lead you astray. It'll lead you to abandon the moral principles that you claim make you on the side of good in the first place.

BILL MOYERS: To be fair, you make a strong case in here that we have to stand up to extremism but that we have to protect our own constitutional principles while we do. And as I read both of these books, it is the sense that out of this Manichean view there came this whole notion that you say is alien to America, this unitary executive powers of the presidency. Have I stated that right?

GLENN GREENWALD: You have. Let's just quickly describe in the most dispassionate terms, as few euphemisms as possible, where we are and what has happened over the last eight years. We have a law in place that says it is a felony offense punishable by five years in prison or a $10,000 fine to eavesdrop on American citizens without warrants. We have laws in place that say that it is a felony punishable by decades in prison to subject detainees in our custody to treatment that violates the Geneva Conventions or that is inhumane or coercive.

We know that the president and his top aides have violated these laws. The facts are indisputable that they've done so. And yet as a country, as a political class, we're deciding basically in unison that the president and our highest political officials are free to break the most serious laws that we have, that our citizens have enacted, with complete impunity, without consequences, without being held accountable under the law.

And when you juxtapose that with the fact that we are a country that has probably the most merciless criminal justice system on the planet when it comes to ordinary Americans. We imprison more of our population than any country in the world. We have less than five percent of the world's population. And yet 25 percent almost of prisoners worldwide are inside the United States. What you have is a two-tiered system of justice where ordinary Americans are subjected to the most merciless criminal justice system in the world. They break the law. The full weight of the criminal justice system comes crashing down upon them. But our political class, the same elites who have imposed that incredibly harsh framework on ordinary Americans, have essentially exempted themselves and the leaders of that political class from the law. They have license to break the law. That's what we're deciding now as we say George Bush and his top advisors shouldn't be investigated let alone prosecuted for the laws that we know that they've broken. And I can't think of anything more damaging to our country because the rule of law is the lynchpin of everything we have.

BILL MOYERS: What do you think it would take to arrest what you call the erosion of law and hold officials accountable? What do you think should be done?

GLENN GREENWALD: Well, there's first of all, it's probably the case that if you have a president who repeatedly and deliberately broke some of the nation's most serious laws, and the country decides that, just like ordinary Americans when they break the law, the president should be held accountable and subjected to investigation and prosecution, there probably is no way to do that without creating some divisiveness.

I mean, it's going to be a controversial thing to do. The problem is that if you decide that you're not going to do it in order to pursue political harmony or bipartisanship, what you're essentially announcing is what we've been announcing for decades — when we pardoned Richard Nixon for his crimes, when the Iran-Contra criminals were pardoned and now even continue to serve in government — which is that the rule of law is not for our highest political officials.

Barack Obama could do several things. He could form a commission of the type that investigated 9/11 attacks that is endowed with absolute subpoena power to disclose all of the facts — which, to this day, are still suppressed — regarding how this government spied on American citizens, what it is that we did to detainees, all of the other programs that we don't know about that are violative of the law so that all of those facts are disclosed and the American citizens can assess what ought to be done.

He could appoint a prosecutor, someone like Patrick Fitzgerald, who's renowned for independence and integrity, and tell him, "Investigate these accusations the way that all other criminal accusations are investigated. And wherever the chips may fall that's what should happen," because we don't have a country where our political class has a license to break the law.

BILL MOYERS: But Glenn, realistically, if Obama did that, wouldn't he be unleashing the partisan dogs? Wouldn't he be just dividing the country hopelessly?

GLENN GREENWALD: Well, I'm not sure that that's the case. I mean, certainly Richard Nixon watched as all of his top aides in the White House were hauled before tribunals of every kind. Many of them actually did go to prison, although Richard Nixon should have but didn't. And the American people understood that we cannot have a country where our political leaders are free to break the law.

Because what happens if you allow serious law breaking to go unpunished is you're telling political leaders, current and future, that there's no need for you to abide by the law. There's no reason for you to consider yourself constrained or limited in what you do. Because even if you commit crimes while in office, we're going to be too afraid of creating divisiveness, that we're going to allow you to do that. And you incentivize the political class, as they've been doing, to break the law at will. And the damage that comes from that is infinitely worse than whatever this divisiveness is that so many people are afraid of when citing why we should let these criminals go free.

BILL MOYERS: But how do you investigate your own party? The fact of the matter is Democrats knew about this wiretapping without warrants that conducted by the telecoms. And then they voted to give the telecom communications companies immunity. Barack Obama opposed giving them immunity and then reversed himself on it. So how does an incumbent president or an incumbent party in Congress investigate itself?

GLENN GREENWALD: Well, I think what you're getting at is the reason why the political class on a bipartisan basis is coming together to say, "Oh, no, we don't want to investigate these crimes. We think it's best to let it go." It's not because they're being magnanimous. It's not because they think it's important that Barack Obama be able to fix the economy undistracted by the controversies that would be created. It's because, exactly as you said, top Democrats were complicit in these crimes and assented to them. I mean, it wasn't just the warrantless eavesdropping.

In 2002, as the Washington Post documented, Nancy Pelosi was brought to the CIA and along with Jane Harman and Bob Graham and Jay Rockefeller, the key Intelligence Committee Senators, were told about the torture program that the CIA had implemented, that we were going to water board and had water boarded certain suspects, that we were going to do things like hypothermia and stress positions and forced nudity and sleep deprivation — all of the tactics that we've always said characterized tyrannies that used torture. That we were going to start using them ourselves, even though they clearly violate both international and domestic law. And according to all public reports — and they're not denied by the participants — every single Democrat in that session either quietly assented to it or actively approved of it. And so the question then becomes, well, as a matter of political reality, how is Barack Obama going to encourage investigations of crimes to be undertaken when the leading members of his own party were, if not —

BILL MOYERS: Good question.

GLENN GREENWALD: — participants were certainly complicit? And there are things that he could do. He could appoint, as I said, an independent prosecutor and say take this road to wherever it leads. And if it leads to leading Democrats who you think have criminal liability, so be it.

BILL MOYERS: So would you be prepared as a lawyer to narrow this down to just the perpetrators, if they can be identified, who authorized, knowingly authorized torture and a violation of the Geneva Accords? Would you begin there? And if so, whom would you indict?

GLENN GREENWALD: I would absolutely start at the top. We know from public reports that interrogation techniques — specific interrogation techniques that every civilized country regards as torture — were choreographed and approved of at the highest levels of the Bush administration inside the White House at the so-called principles meeting. We know that the president himself ordered illegal surveillance on the American people even after his own Justice Department told him that doing that was illegal and even after they threatened to resign if it didn't stop. So this is the kind of criminal intent, deliberate law breaking that we punish on a daily basis in this country.

BILL MOYERS: What would you like to see Obama actually do about this the moment he becomes president?

GLENN GREENWALD: I think it's imperative that the inaugural address be an expression of the political values that he intends to have guide him during his presidency from the first day on. And so I think it's vital that he renounce the core theories that have made the Bush presidency so lawless. And so, for instance, I think he needs to say that he doesn't intend to view himself as being above the rule of law, that he intends to be faithful to the vision and design of the founders that the president, like everybody else, is subjected to the rule of law and to the laws that the American people enact through their representatives in Congress. I think that's vital.

BILL MOYERS: I've never known a president — it's not in the nature of political men to give away the powers inherited in their office.

GLENN GREENWALD: Well, that's — there are real difficulties for him to fulfill the agenda that he committed to as he spent the last two years running for president. He renounced the core theories of the Bush administration that vested the president with the powers that we've been describing and vowed that he would renounce them almost immediately upon taking office. The idea that Article Two allows the president to disregard congressional statutes or to interrogate prisoners — there are certain things that he could do by executive order such as closing Guantanamo, ordering the enhanced interrogation technique, so-called — the torture program to cease immediately. But what really is necessary beyond those specific measures that he can do unilaterally is to have a restoration of the separation of powers and the checks and balances in our government. I mean, Congress has become virtually invisible, impotent, powerless, by its own accord, almost voluntarily. And so until Congress reasserts itself and insists that the president's powers be constrained by what the Constitution prescribes, Obama can take steps that are positive unilaterally. But it won't really be a true restoration of our constitutional form of government. It'll almost be as though we have a benevolent dictator, somebody who exercises unilateral power in ways that are good or ways that are better. But we need Congress to reassert itself in terms of how the government functions.

BILL MOYERS: In a classic sense, I mean, your book is A Tragic Legacy. But in a classic sense, tragedy refers to the downfall of a great man against superior forces, usually his own destiny. Shakespeare, in a sense — it's a sense of someone who comes to a disastrous conclusion that causes one to feel pity or terror. I don't have a sense that people feel pity or fear of Bush right now. So it — can you say it's a tragedy?

GLENN GREENWALD: I don't think George Bush is a tragic figure who inspires the kind of emotions that people who are the victims of tragedy typically inspire, which are pity and sympathy. Tragic is an adjective that modifies legacy. And the reason why I think his legacy is tragic is because there was an opportunity for the 9/11 attacks to generate very positive things for this country. And that opportunity was squandered by a whole variety of forces, not just George Bush, but the people around him who manipulated him quite successfully to fulfill this preexisting ideological agenda. And so I think if you look at George Bush, I think he's not tragic. He's culpable. But I think if you look at the legacy that his presidency is leaving for the country that does fulfill the criteria of tragedy.

BILL MOYERS: Glenn Greenwald, thank you very much for being with us.

GLENN GREENWALD: My pleasure. Thank you.

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