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NEAL CONAN, host:

It's time now for the TALK OF THE NATION: OPINION PAGE.

Over the past eight years, Senator Arlen Specter was among the few Republicans to challenge the expansion of executive powers under President Bush, mostly on the issues of warrantless wiretaps, presidential signing statements and the legal status of terror suspects.

In the most recent issue of the New York Review of Books, Senator Specter proposed legislation to address what he called the imbalance in our checks and balances.

If you'd like to talk with a ranking member on the Senate Judiciary Committee about the politics of the balance of power, give us a call, 800-989-8255. Email us, talk@npr.org. You can also join the conversation on our Web site, go to npr.org, click on TALK OF THE NATION.

Senator Specter joins us now by phone from Pennsylvania. Nice to have you back on TALK OF THE NATION, senator.

Senator ARLEN SPECTER (Ranking Member, Senate Judiciary Committee; Republican, Pennsylvania): Nice to talk to you, Neal. Thank you for the invitation.

CONAN: And some people would ask why, after the end of the Bush administration, why didn't Republican do more about this during the past eight years?

Sen. SPECTER: Well, because there was not the will to do so. People were very much concerned about the threat of terrorism. My efforts to get judicial review of the terrorist surveillance program were not successful when we were trying to subpoena the telephone companies in, or they did not have executive privilege. You know, celebrated dispute with Vice President Cheney, the vice president went behind my back to get Republican members of the Judiciary Committee to oppose it and the Democrats knew they had a live issue and we couldn't get effective congressional action.

But the main point, Neal, was that the Supreme Court ducked the issue. A Detroit federal judge declared the terrorist surveillance program unconstitutional, went to the sixth circuit which ducked it on grounds of standing. There was a forceful dissent, sending us a very flexible doctrine. The court could and should have taken it up. And then the Supreme Court denied a review.

CONAN: And…

Sen. SPECTER: And one of the items I'm pressing now is legislation to mandate the Supreme Court to take that case and other cases like it. Congress can't tell the Supreme Court how to decide cases, but we have the authority to tell them what cases to hear.

CONAN: When you complained about the Supreme Court being slow to take up this, and they have traditionally been slow to take up some controversial cases. As you note, it's been a long time since the seizures of the detainees who are now still at Guantanamo Bay and court decisions dealing with them, and, well, dilatory bills in Congress too.

Sen. SPECTER: Well, every time one of those issues comes up, and it's a hot potato, the Supreme Court - through normal judicial processing, it does take time. They could expedite it if they wanted to. But it may be that they find it more comfortable to wait until there's not an emergency that the terrorist concerns died down a little bit.

But when you take up terrorist surveillance program, that's a very important issue as to whether the president has constitutional authority under article two to supersede the Foreign Intelligence Surveillance Act which makes it plain that the president does not have the authority to do a wiretap without court order.

Now, the constitutional provision supersedes it if in fact he has that authority. But that's for judicial determination.

CONAN: What makes you believe, first of all, that the concerns about expanded executive powers are still justified after we've - one president has left office and another one has taken office. And, well, start there. What concerns you, if anything, about the Obama administration?

Sen. SPECTER: The new president has issued a signing statement which cherry picks legislation. Look here, Neal, the Constitution is plain. Congress makes the presentment of the law, the president signs it or vetoes it. President Bush, on many occasions - and now President Obama has started the same practice of looking at legislation, deciding not to veto it, but issuing a signing statement to disregard certain portions of it. And that kind of cherry picking is, in my opinion, unconstitutional. That's why I had, several years ago, introduced legislation on a (unintelligible) pushing it again to give the Congress a standing to go to court to stop it.

CONAN: The - is this, to some degree - we're going to get callers on with you in just a moment - but is this, to some degree, a partisan political issue -Republicans reluctant to challenge the expansion of powers under a Republican presidency? Do you suspect Democrats will be reluctant to, well, to do what they complained about when they see this president doing what they complained about the last president doing that they're not going to do anything about it.

Sen. SPECTER: Well, this Republican wasn't reluctant to challenge the president. And the reality is that some members, senators, members of the House of Representatives are influenced to some extent. It's hard to quantify, but it's possible.

CONAN: Let's see if we get some callers in. Our guest, of course, is Senator Arlen Specter, Republican of Pennsylvania, author of "The Need to Roll Back Presidential Power Grabs" that was published in the New York Review of Books, their most recent issue. 800-989-8255. Email, talk@npr.org.

And Ned(ph) is on the line with us from Charlottesville in Virginia.

NED (Caller): Thank you so much for the opportunity. Senator, I'd like to ask you if you think that the War Powers that President Obama inherited from President Bush are, in fact, constitutional. I remember in 2001, Congress passed a law which authorizes the president to use military force against any persons or organization he determines - repeat, he determines - had anything to do with 9/11. And of course, this is in direct contradiction to Article 1 Section 8 of the constitution, because they're authorizing the president by statute to go from a condition of no war to a condition of war using only his own volition and authority.

CONAN: Senator Specter?

Sen. SPECTER: Well, the statue, Neal, that we passed on the Friday after 9/11, which is a Tuesday on the 14th of September, has been used by the Department of Justice as a crutch to say that that included warrantless wiretapping which I think is an absurd argument. But your question may be touching on a separate issue, and that is the constitutionality of the Congress, saying the president can go to war when he wants to. (Unintelligible) in the 2002, we did that. And the president didn't start the hostilities until months later. And that grabbing authority was justified, arguably, on the grounds that if the president had the authority and Saddam Hussein knew that, maybe we wouldn't have to go to war. But there are strong constitutional authority that says that Congress' authority to declare war to not be delegated, Congress has to make a decision at the time the war is started because circumstances may change.

CONAN: And…

NED: Thank you so much, sir. That support my view and I've been very frustrated by the fact that this has occurred. It's a shameful state of affairs for our nation. And I appreciate your opinion. Thank you.

CONAN: And Ned…

Sen. SPECTER: I'm interested in your frustration joining my frustration.

(Soundbite of laughter)

CONAN: Yet, as you well know, Senator Specter, the Congress of the United States has not declared war. One single time since, what, December 8th, 1941.

Sen. SPECTER: Well, it's - there are some practices which are not exactly constitutional or kosher and people get away with them.

CONAN: Let's see if we can get another caller in on the line. This is Lou(ph). Lou with us from Dayton, Ohio.

LOU (Caller): Hi. Senator Specter, two-part question - do you believe that former President Bush has committed war crimes? And if so, would you be willing to have him subpoenaed to answer questions before Congress?

Sen. SPECTER: I do not think he has committed war crimes. On the state of the record, I think that there's no basis for saying that he acted other than in good faith. If you're implying that there's a reason to subpoena a president, I wouldn't hesitate. When we had the impeachment proceeding of President Clinton, I had great reservations as to whether we should have done that. In fact, I'm on the record with the New York Times op-ed piece saying we ought to defer the issues as to President Clinton until after his term was over and have a criminal prosecution on the perjury and obstruction of justice rather than take the time of the country. But once we had it, I argued that he should've been a witness. Why not have the president testify on these key issues. He could take the privilege against self incrimination, Fifth Amendment if he wanted to, but no reason why we shouldn't have had his testimony. So a president's not above the law if there's cause to call him, but I don't think there's any reason to call President Bush on the state of the record.

LOU: Okay. Thank you, sir.

CONAN: Lou, thanks very much for the call. And Senator Specter, the President Obama has recently released or declassified the so-called torture memos. That's something - many of your fellow Republicans have criticized that as endangering the United States by disclosing sources and methods. Is that something that you support?

Sen. SPECTER: Well, I think the more critical question is what's going to happen? And there are a lot of calls for prosecutions of the people who carried out interrogation tactics which are now being challenged. We really don't know all the facts on the interrogation techniques. But I think the attorney general is right when he said that if - and this is the standard law on the issue - if you act on the basis of advice from competent counsel, you're not responsible. And I think President Obama, too, has been correct that, saying that we ought to look forward. The analogy has been used to the Latin American Banana Republics where they always prosecute the outgoing administration. And I think if there's evidence of torture or evidence of bad faith by the interrogators, the attorney general has the authority to act on that.

CONAN: We're talking with Senator Arlen Specter on the opinion page this week. His piece "The Need to Roll Back Presidential Power Grabs" was published in the New York Review of Books.

You're listening to TALK OF THE NATION from NPR News.

And this is an email question from Russ(ph). Many suspect strongly that the Republicans are going to dump Senator Specter in the coming midterm elections. Many Pennsylvania Democrats would support him as an independent, myself included, but we are watching his record carefully. In the meantime, well, that election is, I guess, more than a year away. Senator Specter, nevertheless, any opinion polls that currently you trail a Republican opponent.

Sen. SPECTER: Well, it is true that the polls are bleak. When I voted for the stimulus package, one of just three, and was in position along with Senator Snowe and Senator Collins, to provide the decisive votes, there was a very strong adverse reaction. There was a resolution filed in state committee to censure me. The state chairman and the national chairman said they didn't know if they could support me. My office was picketed. And it's a tough proposition. I've overcome challenges before, and I'm working on a game plan.

CONAN: I expected to hear the only poll that counts is the one on Election Day.

(Soundbite of laughter)

But we'll wait a while before we hear that. Senator Specter, thanks very much. We'll see if we can get another caller on the line. And we'll go now to George(ph). And George is with us from Arlington, Massachusetts.

GEORGE (Caller): Thanks for taking my call. Senator Specter, you know, I had a question but I'm going to scrap it now. My question is this, two minutes ago when you spoke of the torture that was carried out in my name and your name by the Bush administration, referred to it as interrogation tactics that have been challenged. And I'd like you to know, sir, that I find that disingenuous. We (Unintelligible) that they were torturing, and we know that we prosecuted that torture in the Vietnam War, and we prosecuted someone - a Japanese soldier, if I'm not mistaken - who waterboarded somebody in World War II. And I don't know why you insist on this kind of doubletalk. Can you explain that?

Sen. SPECTER: Well, let me start by saying I'm not being disingenuous. But if you think the question needs a little insult, it's a free country - freedom of speech. The Japanese torture issue is not relevant in my legal opinion. Here you have a situation where opinions were given in 2002, when there was a real threat of repeated terrorist attacks. And I don't think that the people who dealt with the Japanese were operating under opinions by the assistant attorney general from the Office of Legal Counsel. And you have take a specific look at what they did and what the circumstances were…

CONAN: And Senator Specter, we just have a couple of minutes left. You've already said you do not think the interrogators ought to be pursued on these questions. What about the people who wrote those legal opinions? Should they be reprimanded in any way? One of them currently serves as a federal judge.

Sen. SPECTER: Well, I think they had a pretty good reprimand for what they've done. There are pictures of them plastered all over the newspapers. And their conduct has been called into question. Whether there's a basis for a criminal prosecution is another matter. The analysis by a number of legal scholars who have studied it, and it's a complex issue that I wouldn't want to render a horseback opinion on, is that there really is no crime. Nobody has cited a relevant federal statute to say that a crime has been committed.

CONAN: Do you think you got the full truth from Jay Bybee when he testified before your committee as a nominee for the federal judgeship and ought there be an impeachment proceeding? And I'm asking you that with 30 seconds left. I apologize, sir.

Sen. SPECTER: Well, I have to take a look at his testimony. I haven't read his testimony. But it's available for the attorney general to take a look at. When you talk about impeachment, that's customarily something that is done for conduct during a term of office. I've never seen it applied for some conduct prior. There's really a major effort here for reach as far as you can go. And if the House of Representatives wants to entertain it, they have the authority to do so and it would come to the Senate. Then I have the chance to vote on it, guilty or not guilty. But let's take a look at Bybee's testimony. Do you know what he said on this issue?

CONAN: I'd have to reexamine the record myself, but I've read what other people have said and it's pretty interesting, Senator. Anyway, we'll have to pursue that question another day.

Sen. SPECTER: But being interested doesn't mean as subject to prosecution. It's all very interesting.

CONAN: Senator Specter, thank you very much for being with us.

Sen. SPECTER: Always glad to talk. Thank you.

CONAN: Arlen Specter, Republican of Pennsylvania.

This is TALK OF THE NATION from NPR News.

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