Charlie Savage, In Pursuit of the Imperial President

DATE September 5, 2007 ACCOUNT NUMBER N/A
TIME 12:00 Noon-1:00 PM AUDIENCE N/A
NETWORK NPR
PROGRAM Fresh Air

Interview: Charlie Savage, author of "Takeover," on the expansion
of executive power in the Bush-Cheney administration
TERRY GROSS, host:

This is FRESH AIR. I'm Terry Gross.

My guest, Charlie Savage, has been reporting on the expansion of executive
power in the Bush-Cheney administration. Savage covers national legal affairs
for the Boston Globe. Now he's written a new book called "Takeover: The
Return of the Imperial Presidency and the Subversion of American Democracy."

Savage won a Pulitzer Prize this year for his series of articles about
President Bush's unprecedented use of signing statements, statements that
allow him to bypass sections of new legislation when he signs a bill into law
if he decides those sections are unconstitutional. Savage has also
investigated how the Bush administration politicized the civil rights division
of the Justice Department. And he's written about the firings of US attorneys
for political reasons. We've spoken to him before about those subjects. His
new book offers many other examples of how the Bush administration has
expanded executive power.

Charlie Savage, welcome back to FRESH AIR. You write that the expansion of
executive power in the Bush-Cheney administration isn't just coincidental.
It's part of a plan and there's a theory behind the plan. It's the unitary
executive theory. Would you give us an explanation of what that theory is?

Mr. CHARLIE SAVAGE: The unitary executive theory is a theory that grew out
of the Reagan administration and has been dramatically expanded under the Bush
administration. It is a revisionist interpretation of the Constitution that
says that all the executive power, which is to say that all the things the
government is doing, should be wielded exclusively by the president himself
and the subordinates who are directly controlled by that president. So that
it is unconstitutional for Congress to pass laws that establish rules and
regulations that in any way fracture the president's control of the
government. And this is manifested more recently in such disputes as the
torture dispute in which Congress has passed laws and also ratified treaties
that limit what kinds of techniques interrogators can use when questioning
prisoners, and the president is saying, `I am the commander in chief. I wield
the executive power. I will decide what we can do and what we can't do when
it comes to questioning prisoners.'

GROSS: Now, you say that one of the main ways that the administration has
expanded executive power is through the Office of Legal Counsel. You compare
the Office of Legal Counsel to a Supreme Court for the executive branch. What
is its function?

Mr. SAVAGE: The Office of Legal Counsel is the most powerful agency in
government that no one has ever heard of outside of Washington. Although it's
based in the Justice Department, but it's essentially the president's advisers
on what is the law and what can he do and what can he not do without violating
the law. Especially in the area of national security, where what the present
government is doing is a secret and it's never going to get into a court for a
variety of reasons. They have the final authority to sign off on proposed
policy, and say, `Yes, this can go forward,' or `No, you have to stop this
because there is a law that prevents it.' And they also have the power to
preemptively clear a government official who takes an action based on their
assertion that something is legal of any later prosecution for having violated
the law because they were acting in good faith based on the legal theories
promulgated by this obscure but enormously powerful office.

And so when the Bush administration took office in 2001, they installed in
this office several officials who had demonstrated in their previous academic
work a very aggressive, out-of-the-mainstream, forward-leaning understanding
of the limits, or lack thereof, of presidential power and took these scholars,
who could be counted on to say that the president essentially can do anything
he wants, especially in the national security context--even though most other
scholars disagreed with them--and gave them the power to issue essentially
binding final Supreme Court-like rulings on what is the law and what is not
the law.

GROSS: And one of the people you have in mind when you refer to their--is
John Yoo, who is deputy attorney general and was responsible for a lot of the
memos in the early days of the war on terrorism after September 11th outlining
the powers that the president had. What are some of the memos that John Yoo,
who was in this Office of Legal Counsel, was responsible for?

Mr. SAVAGE: John Yoo, who was and now is again a tenured professor at the
law school at Berkeley had, in the 1990s, made a name for himself by writing
scholarly articles arguing that presidents had powers that were almost
king-like in the area of national security in declaring war and taking combat
activity very contrary to most interpretations of what the founders were
trying to do after they had rebelled against the British king. In the summer
of 2001, he took a leave from Berkeley and became the official who would be
charged with writing Office of Legal Counsel opinions on matters of national
security and international law for the Bush administration.

And so he was in place on September 11th to establish the legal framework that
the executive branch would understand to be its powers as the war on terrorism
began, and he authored a series of memoranda over the next year, all which
were initially secret, which gave legal cover to proposed policies that the
White House wanted to take which would be in conflict with statutes and
ratified treaties that imposed checks and balances on presidential power.
Among them were the first memo saying that it would be all right for the
president to authorize the National Security Agency to intercept Americans'
international phone calls and e-mails without warrants, despite a 1978 law
that requires the government to obtain warrants when it wants to eavesdrops on
Americans' phone calls of that nature.

GROSS: And some of the, like, underlying reasons he gave for this, like in a
memo in September of 2001 asserting that no statute passed by Congress could
limit the war powers of the president, he wrote, `We think it beyond question
that Congress cannot place any limits on the president's determination as to
any terrorist threat, the amount of military force to be used in response, or
the method, timing, and nature of the response. These decisions under our
Constitution are for the president alone to make.' So the memos that he was
writing were defining an expanded presidential power.

Mr. SAVAGE: Yes, they were asserting as fact a very aggressive,
out-of-the-mainstream understanding of presidential power. In my book I try
to break this down a little bit so that people who are not legal scholars can
sort of understand the one-two punch of what it is they were pushing.

The first punch is an embrace of a theory that presidents have very broad,
inherent power. That is to say, unwritten power, especially in their capacity
as the commander in chief of the armed forces to take whatever action they
deem appropriate and necessary to protect national security. And even there,
previous presidents have occasionally asserted this, and when they've gotten
into court there's have been problems, because the Supreme Court has quite
rightly pointed out, that just because, assuming an inherent power exists, it
doesn't mean it's an exclusive one. It doesn't mean that Congress can't step
in and then regulate how that action is going to be taken by, for example,
saying, `Yes, you can wiretap to look for spies and terrorists but you've got
to make sure a judge signs off on it while you're doing that.'

But then they combined this theory of inherent power with what I was talking
about earlier, with this expanded understanding of the unitary executive
theory, which is to say that anything that's an executive power must be only
the president's to decide how to go about exercising. And so when you have
very broad inherent powers and Congress cannot regulate how you go about
exercising those inherent powers, you end up with a situation in which the
president can do anything he deems necessary at his own discretion and
Congress is powerless to impose any checks and balances on those actions.

GROSS: Now, you've just outlined some of the ways in which the Office of
Legal Counsel has expanded presidential powers and given the underlying theory
for those expansions. Let's talk a little bit about how the Office of Legal
Counsel became so powerful in the Bush-Cheney administration. Now, John Yoo,
the person writing the memos we've talked about, he wasn't even the head of
the Office of Legal Counsel. He was like number two. So how did he get so
powerful that he could write all these memos expanding executive power?

Mr. SAVAGE: Well, he wasn't even the number two. There was a dispute in
2001, when the administration was first getting going, over who was going to
control this very important office. This dispute was between Attorney General
John Ashcroft and the White House legal team, whose power centers were in the
office of Vice President Cheney, chiefly his chief legal adviser David
Addington, and then to a lesser extent, though to a greater extent on paper,
White House counsel Alberto Gonzales.

Ashcroft wanted his guy to be the head of the Office of Legal Counsel. The
White House had a different person in mind, and this dispute ground on for
months, which meant that the head of this office, who had to be
Senate-confirmed, Senate-vetted person, remained vacant for that time. And
they finally settled on one person, and it looked like it was going to be
settled and then that person withdrew. An they finally settled on another
person and that person--his name is Jay Bybee, was a UNLV law professor--had
already agreed to teach a fall term of classes. And so he did not show up
until essentially December of 2001. That meant that the office had no
Senate-confirmed leader on 9/11 and for the first few months after 9/11, and
that meant that the deputies and the assistants, who were handling these very
important matters about presidential power and the war power and the limits of
what you could do to respond to 9/11 were unconfirmed. People who were
supposed to be reporting to the boss, but there was no boss.

And in this case, John Yoo, therefore, was sort of free to write memos that
were in line with his previous, very aggressive legal scholarship without much
check. And, furthermore, because he was covering things that were classified,
even his own colleagues, who normally would read and discuss sort of over the
water cooler, had no idea what he was working on. And that meant that one
could essentially write anything down and have it become the binding structure
for what the executive branch was going to do without much even internal
oversight, let alone external congressional oversight.

GROSS: I just want to reiterate the way you define the importance of the
Office of Legal Counsel. You say, you know, if the executive, the president
wants to do something illegal, it's the Office of Legal Counsel's job to tell
the president, `This can't be done. It's illegal.' But if the office gives
the green light, it absolves the president for the responsibility of
wrongdoing because the president can just say, `Well, the office told me it
was legal.'

Mr. SAVAGE: That's right.

GROSS: So this is an office with a lot of power in defining what a president
can and can't do, and how a president can absolve himself of doing something
that may be illegal.

Mr. SAVAGE: This is one of the more interesting things that we saw later on.
You know, there's been some attention paid to this rebellion that we didn't
know about at the time but we subsequently found out about it in the spring of
2004 when then-deputy Attorney General Jim Comey said no to re-authorizing the
wiretapping program as it existed then. This is the famous incident when John
Ashcroft was in the hospital and Alberto Gonzales was rushing to try to get
him to overrule what Comey had said.

The origins of that now-famous dispute are personnel changes in the Office of
Legal Counsel. A new head of the office came in, because the previous one,
Jay Bybee, had been made into a federal appeals court judge in California.
And the new guy, Jack Goldsmith, took a look at some of these memos that John
Yoo had written about the commander in chief's absolute power to do what he
wanted and said, `This goes too far. This violates the rule of law. I can't
sign off on this. This is not legally correct.' And he went to Jim Comey and
that sort of re-evaluation, because new people had come in who had a somewhat
more mainstream understanding of checks and balances and sort of presidential
power, led to that crisis.

Jack Goldsmith, of course, then, along with Comey and the others, who had
stood with him were subsequently purged from the administration, either
resigning or being denied promotions and such that they all eventually left.

GROSS: My guest is Pulitzer Prize-winning reporter Charlie Savage. His new
book is called "Takeover." We'll talk more about the expansion of the
executive power in the Bush administration after a break. This is FRESH AIR.

(Announcements)

GROSS: If you're just joining us, my guest is Pulitzer Prize-winning reporter
Charlie Savage. He writes for the Boston Globe. His new book is called
"Takeover: The Return of the Imperial Presidency and the Subversion of
American Democracy." And he's been writing for some time now on the expansion
of executive powers under the Bush-Cheney administration.

Alberto Gonzales replaced John Ashcroft as attorney general, and Gonzales, of
course, recently resigned. Was Gonzales a believer in the expansion of
executive powers? Do you think that that's one of the reasons why he got the
job? Or do you see him as just somebody who the Bush administration could
count on to help them in their expansion? I guess the larger question is,
where did he fit in in the expansion of executive powers?

Mr. SAVAGE: Well, the answer is sort of both of the two options you just
played out. I don't believe, having looked at his history, that he arrived at
the White House with a particular interest in expanding executive power.
Nothing in his past as a corporate lawyer in Texas indicates that he had any
sort of well-thought-out views on this particular topic. On the other hand,
he was very eager to carry out the agenda that was handed to him by his
superiors.

And one of the things I did discover in the research for this book was that in
the very first White House Counsel's Office meeting in January of 2001, right
after inauguration, when the new Bush administration legal team was gathering
for the first time, he conveyed to them instructions that he had received from
the president. He said, you know, in addition to their normal work, just
handling the legal work that passes through the White House, they were to have
an affirmative agenda of two things that they were to look out for
opportunities to implement. One was to move very quickly on getting
conservative judicial nominees into the pipeline, since the Republicans had
the Senate and the White House now for the first time since 1986. And the
other was to seek out and seize--aggressively--opportunities to protect and
expand executive power.

Alberto Gonzales conveyed to the new White House legal team from the president
that the president thought the powers of the office had eroded in the hands of
his recent predecessors and that it was time to fix it up and leave the office
stronger than he had found it. Through my subsequent research, I've come to
believe that this was not really George Bush's agenda, this was Vice President
Cheney's agenda, stemming from his own 30 years of experience in Washington
and his deep experiences following Watergate and Vietnam when he was White
House chief of staff to President Ford and all kinds of limits were being
imposed on presidential power. And Vice President Cheney himself has spoken
publicly about this agenda of expanding executive power, using the very same
phrase that that day Alberto Gonzales conveyed to the new legal team. Which
is to say to leave the office stronger than they had found it was a core
agenda, long before 9/11.

GROSS: So what do you think Alberto Gonzales did in his period as attorney
general to help expand executive powers?

Mr. SAVAGE: Well, to back-step one step, when he was still White House
counsel he was certainly on board for the solicitation and acceptance of these
various Office of Legal Counsel memoranda that provided legal cover for such
actions as sidestepping the Geneva Conventions and authorizing interrogations
that went beyond the limits imposed by law and treaty. He solicited these
memos. They were addressed to him, and he accepted them instead of sending
them back to be rewritten.

After 2004, when Ashcroft leaves and Gonzales is sent out to become the
nation's top law enforcement officer, these trends continue, obviously as we
know from the US attorney firings and turmoil on the civil rights division and
so forth that the alleged politicization efforts to impose greater political
control over the permanent workings of the Justice Department intensified.
And there's little evidence there was any putting of the foot on the brake
from then on.

GROSS: Do you see the resignation of Alberto Gonzales as being significant in
the expansion of executive powers? In other words, does that signify a limit
or an end to the expansion?

Mr. SAVAGE: I don't see why that would be--I mean, other people have come
and gone now. What's important now, especially as the Bush administration,
you know, heads towards its final year is not what power will President Bush
exercise, you know, will he respect laws and treaties, or see them as merely
as advisory and able to be discarded. Will he respond to oversight or just
keep things secret, because the clock is ticking on this administration.

What's important is that these various legal theories and tactics for evading
checks and balances, for centralizing authority in the White House, have been
acted upon for years now and therefore are no longer theories but are
precedents. They are precedents that future presidents, including liberal
Democrat presidents, will be able to cite to unilaterally impose their own
agendas on the country and on the world when they want to take an action that
might be seemingly prohibited by a law or treaty, or when they want to keep
what they've been doing secret, or when they want to impose greater political
control over some aspect of the government bureaucracy and so forth and so on.

And so, you know, the Bush administration could leave office entirely tomorrow
and the agenda will already have been completed because the strategy here was
not, `Let's increase our own power and then whatever happens after 2009, you
know, who cares? We won't be around.' The strategy was, `We are going to
permanently expand the power of the presidency as an institution for all
future presidents to wield. We are going to throw off the restraints that
were imposed in the '70s after Watergate and Vietnam. We are going to magnify
the powers that the historian Arthur Schlesinger Jr. dubbed "the imperial
presidency," which had arisen just in the first couple of decades of the Cold
War, peaked under Nixon and were sort of brought under control again after
Watergate and Vietnam.'

So the departure of Alberto Gonzales is irrelevant to that. What's going to
matter is, you know, 10 years from now or 50 years from now when President
Whomever, in a situation we cannot now conceive of, wants do something that
the law says he or she can't, they can simply have their Office of Legal
Counsel say `It's well established that the president can do X because look,
in 2002 the president did X and therefore it can be done.'

GROSS: Charlie Savage covers national legal affairs for "The Boston Globe."
His new book is called "Takeover." We'll talk more about it in the second half
of the show. I'm Terry Gross, and this is FRESH AIR.

(Announcements)

GROSS: This is FRESH AIR. I'm Terry Gross back with Pulitzer Prize-winning
reporter Charlie Savage. His new book, "Takeover," is about how the Bush
administration has expanded presidential power and limited the checks and
balances of Congress and the courts. Savage covers national legal affairs for
"The Boston Globe."

Even after President Bush leaves office, his Supreme Court appointments will
remain in the Supreme Court. Do they share his views on the expansion of
executive powers?

Mr. SAVAGE: Yes. This is--I have a chapter devoted to looking at John
Roberts and Sam Alito and, to a lesser extent, Harriet Miers, solely from the
lens of executive power. And this is a factor I think that was overlooked
largely during their confirmation hearings when everyone was focused on
abortion and other social issues, affirmative action. My theory, when I go
back and I walk through the sort of once-secret memos they wrote when they
were Reagan administration attorneys that were released by the National
Archives after their nominations and we were all pouring over them, tens of
thousands of pages, and the question is, what are you going to focus on? When
you just look at executive power you can see that both John Roberts and Sam
Alito are very aggressive presidentialists. They have--their entire careers
have been shaped by the views that came out of the Reagan administration's
struggle to impose its conservative agenda despite Congress, which was then
controlled by Democrats, that the president ought to be more powerful, that
checks and balances that limited what the president could do unilaterally
ought to be eroded, that secrecy around the executive branch that allows them
to operate without accountability ought to be expanded.

And so when you want to understand why were these three individuals nominated,
I think you can see that there is a large universe of very qualified, very
conservative legal scholars and lower court judges out there from whom they
could have chosen. They chose specifically veteran executive branch legal
lawyers who had been steeped and marinated in power and disputes over
executive power from the perspective of the White House and who are now ready
to bring that view of maximal presidential powers to the Supreme Court so that
in future disputes, today over something like Guantanamo prisoners but
tomorrow who knows what, they can be counted on to take a more White
House-friendly position in declaring what the law is and where the limits of
presidential power, if any, may lie.

GROSS: Now, you credit a lot of the underpinning philosophy for this
expansion of executive power and a lot of the push for it to Vice President
Dick Cheney and to his legal counsel, David Addington. And you credit David
Addington with the theory about the vice president that the vice president
isn't under any duty to comply with disclosure rules. Like, the vice
president, for instance shouldn't have to disclose who was at his Energy
Commission meeting. What is the theory?

Mr. SAVAGE: Well, this goes back to one of the first fights over
presidential power of the administration. Before 9/11, the first big fight
was Cheney's Energy Task Force papers. There were several laws that said that
Congress, in the form of the Government Accountability Office; and the public,
through the Federal Advisory Committee Act, ought to be able to know who this
task force was meeting with and what was being said at those meetings.

And when the GAO and the public first asked and then sued to try and get those
papers, the administration, there led by David Addington, put up a very
stone-wall defense saying that neither Congress nor the public are entitled to
such information, because the president and his top advisers must be able to
receive candid advice about policy matters. And this is a recurring theme in
the secrecy part of this agenda, that the outsiders cannot know what we're
doing, what we're saying to each other, have access to documents, because that
would intrude upon the president's ability to receive unfettered, candid
advice. And, to a large part, they've been very successful in expanding the
zone of executive privilege such that the White House and the upper reaches of
an executive branch become a black box despite these laws in which Congress
had previously, in its role as regulating the executive branch, said that the
government should be as open and transparent as possible.

GROSS: Explain this paradox. You know, Cheney, you say, is the driving force
behind the expansion of executive power and yet recently Cheney and David
Addington, who's his long-time legal counsel, said that the vice president
isn't really subject to all limitations on executive power because since the
vice president is the tie breaker in Congress, he also lives outside of
executive powers. That seems kind of paradoxical to me that the person who's
kind of driving the expansion of presidential powers also says that he lives
part time outside of the executive branch, so he shouldn't even be subject to
whatever limitations on presidential powers exist.

Mr. SAVAGE: Mm-hmm. Yes. What you've identified is one of the little
quirks that has come out of these fights, especially out of the vice
president's office, where--adopting one position when it would expand his
power, or the executive branch's power, and adopting another one, an opposite
one, to also expand his power, where each is most convenient. So in this case
the vice president is part of the executive branch when it comes to shielding
his information from outsiders, enjoying the president's executive privilege,
but he's not part of the executive branch when it comes to obeying internal
executive branch oversight rules. It's just a maximum flexibility towards the
end of reducing accountability and oversight wherever possible.

GROSS: You devote the beginning of your book to Dick Cheney and his early
days in the Nixon and Ford administrations, and what he learned about the
expansion of executive powers in those administrations, and you say, first of
all, that after Watergate and after the Vietnam secrecy, Congress responded by
trying to limit executive powers, and Cheney was very opposed to that and he
wanted to counter what he saw Congress doing in their attempts to limit
executive powers after Nixon abused executive power.

Mr. SAVAGE: To understand what has happened to executive power during this
administration, you have to look back at Cheney's career. And Cheney himself
has said this repeatedly, that all this agenda is coming out of what he
experienced 30 years ago. He got his first government job as a mid-level
Nixon administration official helping Nixon expand White House power over the
bureaucracy at the height of the imperial presidency. And then he himself,
Cheney, rose to the heights of executive power very fast at the age of 33, as
the White House chief of staff to President Ford after Nixon had resigned.

Right at that moment where he was getting his chance to wield the imperial
presidency's powers, Congress had awakened. They were passing all kinds of
new laws and holding oversight hearings to re-establish the constitutional
equilibrium between the executive branch and the other two branches, imposing
new checks and balances on how the president could go about his business, what
he could do, what he could not do, what information he had to share with the
public and Congress. And to Cheney, inside the executive branch at that era,
it felt like a siege. it felt like it was an outrageous situation. These
powers were being taken from his hands just as they were his to wield.

And he would spend the next 30 years trying to roll back what had happened in
the mid-'70s, first during his 10 years as a member of Congress during the
Reagan administration's fights with Congress, its defending the White House
against Congress during the Iran-Contra scandal and so forth, then as
secretary of defense under the first President Bush, urging him to launch the
Gulf War without going to Congress for permission despite a law that had been
passed after Vietnam saying the president always had to consult Congress
before launching a major military action, such as the Gulf War. And that
advice was rejected.

But when Cheney becomes vice president in 2001, one of the most experienced
vice presidents ever working with one of the least experienced presidents
ever, and then fills the administration in addition with his people who he had
worked with the previous 30 years and would be in key positions to shape
policy making and decisions, he is able, finally, to begin working to achieve
the goals that were established in the mid-1970s, in his mind, which was to
put back what had been lost after Nixon fell. To re-establish, although he
wouldn't use this word, the imperial presidency.

GROSS: You also say that Cheney learned lessons in the Nixon administration
how to take control away from agencies that oppose the president's agenda.
Give us an example of what you see as a lesson that Cheney learned in the
Nixon administration about how to do that.

Mr. SAVAGE: Well, Cheney joined the Nixon administration as the assistant to
Donald Rumsfeld, who was the head of the Office of Economic Opportunity. This
was an umbrella group of social programs that Congress had passed as part of
the great society programs under Johnson, and they included all kinds of
things that were intended to help poor people, essentially. And among them
was, for example, a program that provided government lawyers to the poor, and
this was per the height of the litigation era, of the progressive movement.
Nixon really hated this agency, and conservatives in general hated this agency
because, in addition to helping the poor people with landlord-tenant disputes
and sort of small scale issues, they were bringing class action lawsuits
against people like Governor Ronald Reagan in California to roll back cuts to
Medicaid programs and to improve working conditions at giant factories and to
get rid of police brutality in cities and all sorts of things that outraged
Republicans and their donors. But Nixon couldn't just shut this agency down
because it had been established by a law, and Congress was unwilling to repeal
that law.

And so what he did was he put Don Rumsfeld and then Cheney with him in charge
of this agency with the agenda of bringing it to heel, and you can see this in
internal White house transcripts and in diaries kept by H.R. Haldeman, and I
interviewed the guy who was the head of the legal services program. His name
is Terry Lenzner, and he's still around. They wanted them to fire the lawyers
who were bringing aggressive lawsuits and to filter lawsuits through people
who could quash them before they were being watched. And eventually they
fired the head of that agency because he was unwilling to comply because it
would have been illegal for him to do so under the statute.

You can see echoes of that policy, of that tactic today in the politicization
controversies over the executive branch, both the US attorney firings, the
changes to the hiring decisions for career civil rights division lawyers, the
movement to put White House appointees in charge of creating new regulations
on businesses or giving them them the power to quash those proposals before
they even get put in the federal register, and in many other ways. The sense
that the president and his agenda should rule the entire government regardless
of what some statute setting up some agency to do some mission or say is
something that comes out of the Nixon era and has been revived today.

GROSS: My guest is Pulitzer Prize-winning reporter Charlie Savage. His new
book is called "Takeover." We'll talk more about the expansion of executive
power in the Bush administration after a break. This is FRESH AIR.

(Announcements)

GROSS: My guest is Pulitzer Prize-winning reporter Charlie Savage. His new
book, "Takeover," is about how the Bush administration has expanded executive
power.

I would like you to give an example of an expansion of executive power during
the Bush-Cheney administration that you think most Americans aren't even aware
of.

Mr. SAVAGE: Well, I think that, off the top of my head, you know, the
ability to unilaterally pull out of a treaty without consulting the Senate as
Bush did in the anti-ballistic missile treaty in December of 2001, which means
some future president who doesn't like NATO or the UN could just say, `We're
out,' and we would be out. The ability to impose martial law over the
objections of a state governor. The ability to hold a US citizen without
trial or without charges perpetually by naming them an enemy combatant. The
ability to keep all matters of documents and government activity secret from
lawsuits and from Congress in a much broader fortress of secrecy than previous
presidents have enjoyed. A much more aggressive use of the ability to shut
down lawsuits simply by uttering the magic words "state secrets."

And just in general, I think--I don't know that people who aren't part of the
Washington scene have fully thought about and grasped the implications of a
president who can, on his own, in secret, declare that some law or treaty that
restricts his actions doesn't apply to him. That, at his own discretion, he
can set aside any such limit and do whatever he wants, both abroad and on US
soil.

GROSS: Charlie, you won your Pulitzer Prize for your investigation into
President Bush's use of executive signing statements, and these are statements
like, when he signs a bill into law, he can selectively basically like cross
out parts of that law and say that he personally finds them unconstitutional
and therefore he's not going to follow them. So he started using these
signing statements during a Republican Congress. Now that we have a
Democratic-controlled Congress, has he been using the signing statements any
differently, do you know?

Mr. SAVAGE: He has yet to issue a single signing statement of the type that
we're talking about, instructing the executive branch not to enforce or obey
some section for constitutional reasons of the bill he has signed. However,
Congress has passed very little substantive legislation in the first nine
months that it's been under Democratic control. It tried to pass the Iraq war
timetable bill, and Bush simply vetoed that. And it passed a law expanding
the military's ability to wiretap, which he was happy with and had no reason
to signing statement. But for the most part it's only been passing bills that
change the names of post offices and things like that.

This fall we're going to see the major authorization and appropriations bills
for each of the departments coming through and those are typically the ones
where in a single bill, which is challenged, you know, 10 or 100 of the laws
created by that bill. Because that's where the really substantive law making
happens, and so it will be very interesting to see whether he keeps
aggressively wielding the signing statement under Democratic control. The
White House says he's going to, but we haven't seen it yet.

GROSS: You know, one of the paradoxes of what we've been talking about is
that, you know, the Bush-Cheney team, they're a conservative team. And yet,
you know, typically conservatives are against the expansion of government
powers, and we're talking about an administration that has worked really hard
to expand executive powers. Is there a conservative moment against that
expansion?

Mr. SAVAGE: Yes. And one of the critical insights in this entire
conversation and discussion is to understand that presidential power is not a
partisan issue. In the past, in the future again, we will have Democratic
presidents who will be able to invoke these same extraordinary powers that the
current administration has pioneered in order to unilaterally impose their own
policies. And we saw Republicans worried about executive power in the, you
know, under Truman and under Johnson and under Clinton, even, and we'll
probably see that again.

So preserving the founders' vision of democracy in which government power is
shared and balanced and prevents the concentration of too much unchecked in
anyone's hands is in the interests of all Americans. And we're seeing now,
especially at this moment in which this administration's on the way out the
door and it's unclear who's going to be in the White House a couple of years
from now, more and more conservatives are coming forward, or maybe they
already believed it all along but they're finding a more receptive audience to
say a core conservative principle is, you know, mistrust of concentrated
government power, preservation of existing institutions such as, you know, the
checks and balances system that the founders established for this country..
And we're seeing more and more conservatives who are breaking with the
administration and saying that we ought to restore the equilibrium, as it
were.

GROSS: Do you find it significant that they've waited this long to break with
the administration on that? They've waited till the end of the Bush-Cheney
administration?

Mr. SAVAGE: Well, that may not be fair to them, but certainly in some of
them all along, sort of more libertarian-minded were becoming alarmed, and I
think especially in December of 2005, early 2006, when the warrantless
wiretapping program was made public, as well as the administration's theory
that the president as commander in chief can't be bound by laws, you started
to see many Republicans and conservative figures starting to say publicly,
`Wait a minute. That's a monarchical vision. That's not an American vision.
That's not our system.' And so it's a movement which maybe has been late to
raise its voice, but it's been growing and it's here now.

GROSS: Charlie Savage, thank you so very much for talking with us.

Mr. SAVAGE: Thanks for having me on.

GROSS: Charlie Savage is the author of the new book "Takeover." He covers
national legal affairs for the Boston Globe.

Coming up, Kevin Whitehead reviews two classic piano trio albums from 1958,
one featuring Bill Evans, the other Phineas Newborn. This is FRESH AIR.

* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *

Review: Kevin Whitehead on two classic piano trio albums from
1958, "Everybody Digs Bill Evans" and "We Three"
TERRY GROSS, host:

Two classic piano trio albums from 1958 have just been reissued, or rather,
re-reissued. One is "Everybody Digs Bill Evans" by the pianist soon to appear
on Miles Davis' "Kind of Blue." The other is "We Three," featuring
Memphis-born pianist Phineas Newborn. Our jazz critic Kevin Whitehead has
reviews of these two CDs.

(Soundbite of music)

KEVIN WHITEHEAD reporting:

Roy Haynes on drums and Phineas--or Fine-ess--Newborn on piano with Paul
Chambers on bass. They're all billed as co-leaders on the album "We Three,"
but it was really Haynes' date, and like other trios where the drummer's in
charge, the balance of power tips a bit from piano to percussion. Not that
pianist Newborn lies low, with a fearsome technique to match his heavy blues
feel. Sometimes he'll play the same fast run with both hands in parallel
motion octaves apart. It's dazzling, but he knows not to overdo it.

(Soundbite of music)

WHITEHEAD: This trio cooks over a low flame, too, stretching out on Avery
Parrish's 1940s hit "After Hours." At one point the trio sustained three
distinct layers of rhythm, maintaining different relationships to the ground
beat, but they don't forget it's the blues.

(Soundbite of music)

WHITEHEAD: This edition of "We Three" is part of a series newly remastered by
the guy who recorded it, esteemed--if secretive--engineer Rudy van Gelder. `I
remember the sessions well,' he says in a boilerplate note, but he never
shares any anecdotes. You'd do better on that score with another series of
reissues built around a legend from behind the glass, producer and writer
Orrin Keepnews. He annotates a new Keepnews edition of "Everybody Digs Bill
Evans."

By 1958 the pianist was already playing what would soon make him
famous--gossamer, impressionistic ballads showing off his exquisite touch at
the keys. But he also plays fast and forceful be-bop, feeding off a terrific
rhythm section. Check out the drama in drummer Philly Joe Jones' change-ups
on "Oleo" as bassist Sam Jones walks on like nothing's amiss.

(Soundbite of music)

WHITEHEAD: This music was recorded a few months before Bill Evans played on
and helped shape Miles Davis' milestone "Kind of Blue," where players soloed
over daringly simple backdrops. There's a warm-up for that here. Improvising
on a two-chord back-and-forth vamp to introduce a solo take of "Some Other
Time," Evans got stuck on that intro till it grew into a free-standing number.
In one episode late in "Peace Piece," he sounds like he's conjuring bird
calls.

(Soundbite of music)

WHITEHEAD: Both these albums came from the holdings of Fantasy Records, which
ran a massive, idealistic reissue program before it was sold three years ago.
Its new owners put a stop to that, preferring to repackage already available
albums like this pair. No points for idealism there. But if it takes a
couple of gimmicky series to keep some classic Roy Haynes and Bill Evans in
the marketplace, bring on the gimmicks.

(Soundbite of music)

GROSS: Kevin Whitehead teaches English and American Studies at the University
of Kansas and he's a jazz columnist for emusic.com. He reviewed "Everybody
Digs Bill Evans," featuring pianist Bill Evans, and "We Three," featuring
pianist Phineas Newborn.

(Soundbite of music)

GROSS: If you want to catch up on programs that you've missed, you can
download podcasts of our show by going to our Web site, freshair.npr.org.

(Credits)

GROSS: I'm Terry Gross.
Transcripts are created on a rush deadline, and accuracy and availability may vary. This text may not be in its final form and may be updated or revised in the future. Please be aware that the authoritative record of Fresh Air interviews and reviews are the audio recordings of each segment.