Exploring the Limits of Executive Power In the aftermath of Sept. 11, President Bush took charge of what he called a new kind of war. The White House aggressively asserted increased presidential powers. Now, with the Supreme Court's Hamdan decision and Congress pushing for oversight, the tide is shifting.
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Exploring the Limits of Executive Power

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Exploring the Limits of Executive Power

Exploring the Limits of Executive Power

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This is TALK OF THE NATION. I'm Neal Conan, in Washington.

In just a few minutes time, President Bush is expected to exercise the power of the veto for the first time in his presidency to nullify the bill on stem cell research. We'll have more about the politics of stem cells later in the program.

There will be a lot of questions about the wisdom of the president's decision, but seemingly for the first time in months, no argument about whether he exceeded his powers. Presidential veto is unambiguously spelled out in the constitution.

Throughout his tenure in office, President Bush has advocated robust presidential authority that is not so clearly described. Many of his critics believe he's exceeded his constitutional powers on several fronts. They include the treatment of enemy combatants in prisons that - according to the administrations - lay beyond the review of federal courts, surveillance programs that proceed under his authority alone without authorization from Congress or the courts, and presidential signing statements on hundreds of laws that outline how the executive branch intends to interpret and enforce acts of Congress.

Last month, the Supreme Court rejected the president's military commissions, and it now looks as if the White House may agree to a compromise on Congressional and court review of wiretaps.

Later in the hour, our Political Junkie focuses on yesterday's primary in Georgia, and as I mentioned, the politics of the stem cell debate. If you have questions about either issue or about races you're interested in, you can send us e-mail now. The address is talk@npr.org.

But first, we're going to talk about checks and balances and presidential power. If you have questions about the extent of presidential power, how it's been used or abused in the past or the theory of the unitary executive, our number here in Washington is 800-989-8255. That's 800-989-TALK. The e-mail address is talk@npr.org.

Joining us in Studio 3A to talk about how the executive branch has changed under the Bush presidency is Jeffrey Rosen, an associate professor at the George Washington University School of Law, legal affairs editor at the New Republic Magazine, where his article Power of One appears in the July 24th issue. And Jeffrey, always nice to have you on TALK OF THE NATION.

JEFFREY ROSEN: Good to be here.

CONAN: And can you define, in simple terms, this theory of the unitary executive?

ROSEN: I guess its simple enough, but the definition keeps changing, so I'll give you three of them.

The first definition of the unitary executive, which was devised in the 1980s, is that the president needs complete control over the administrative state. So he should be able to fire any executive official he likes, like the independent counsel, for example, or the head of an independent agency. And preventing him from doing that infringes on his constitutional power. That was the theory that conservatives came up. Their idea was that an out of control Congress had to be reined in by a strong executive - strong power was necessary to limit government authority.

The unitary executive idea changed at the beginning of the Bush administration. Some Bush aids, John Yoo, who I think we'll hear from later...


ROSEN: ...said that the president needs to be able to declare war without congressional authorization, although Congress can cut off the funds if it likes. That wasn't a very radical idea, but it was not accepted by all.

That idea morphed later in the Bush administration into the stronger view that the president can do whatever he likes in certain areas of national security, even if Congress says no. And that's the idea that is at the core of the claim that he can engage in warrantless wiretaps, detention, and so forth, even in the face of laws that - some critics, anyway - argue prohibit those actions.

CONAN: And this argument and this discussion and this debate has certainly taken on far greater resonance after 9/11.

ROSEN: Very much so. And the critics claim that this new vision of the unitary executive that the president can ignore unambiguous laws or stretch them in ways that ignore congressional limitations has been the most controversial part of the Bush's administration's domestic policy. And the Supreme Court seemed to reject the strong vision of the unilateral executive in the Hamdan case just a few weeks ago.

CONAN: And as you look at this idea of the unitary executive, what's good about it, and what's not so good about in your view?

ROSEN: The first part, the vision that was articulated in the 1980s, does not seem to me to be very bad. Many liberal scholars are sympathetic to parts of it. The president should have strong control over the executive branch. Another thing that's not bad is the idea that the president and national security should have very broad authority to act in the face of congressional silence.

And even the Clinton administration really reaffirmed about 75 percent of what the Reagan administration had done in the national security arena. So there wasn't a huge amount of daylight, as it were, between Democrats and Republicans when it comes to the president acting strongly for national security.

The part that I have some questions about are that additional claim, the additional 25 percent that says when even when a law is pretty unambiguous - like the foreign intelligence surveillance act, which seems to say you can't engage in this sort of stuff without some kind of warrant - the president may be able to ignore or reinterpret that restriction because it infringes on his inherent authority as commander in chief.

That does seem to me a recipe for arguably saying that the president can refuse to obey congressional laws with which he disagrees, and that is troubling.

CONAN: Well, you mentioned the name John Yoo. He teaches law at the University of California at Berkeley, and worked in the office of legal counsel at the Justice Department during President Bush's first term. He is considered one of the architects of this idea about the unitary executive, and John Yoo joins us now from a studio on the University of California campus in Berkeley. And Professor Yoo, it's nice to speak with you again.

JOHN YOO: Oh, thanks for having me back on again, Neal.

CONAN: And your idea of this - your interpretation of this unitary executive, where does it come from and what does it authorize in your view?

YOO: I would probably say the roots of it go a little farther back, perhaps than Jeff pitched it. I think it really starts with Alexander Hamilton in the Farrows papers, when he's explaining why we have a president, why the president has some independent powers like the commander in chief power. And the phrase unitary executive comes from something Hamilton actually said.

He said the presidency brings unity, energy, and activity to government. And Hamilton specifically talked about war as one of those areas where you really couldn't wage war successfully with a multi-member large body like Congress, that you needed to have the power and one person's hands who was also more accountable, but also could act more quickly.

And I think the, you know, the early history of the republic followed that view. For example, George Washington decided on his own that the United States would be neutral in the Napoleonic wars, even though we had signed a mutual defense treaty with France. He never checked with Congress. In fact, he tried to prosecute people without any law from Congress for violating neutrality.

And then I think Lincoln, obviously, exercised a lot of inherent power, although I think Jeff is quite right, he checked with Congress after he took a lot of emergency actions in the Civil War.

But I think it really comes to fruition with Franklin Roosevelt. President Roosevelt - in the lead-up to World War II - took a lot of actions that were inconsistent with Congress' efforts to keep the United States neutral in World War II, like giving the British destroyers, planning, engaging in planning and so on.

And then Truman and Kennedy, you really see it come to fruition. Truman waged the Korean War without any congressional authorization. Kennedy engaged in a blockade of Cuba without any congressional authorization. So I think it has a longer history than the fights we've seen in the '80s, '90s, and today.

CONAN: Mm hmm. But, Jeffrey's description of those fights of the '80s and the '90s and today, I assume you would have some distinctions there, too.

YOO: Well, I think that there's more tradition of presidents acting even where Congress has said no, don't do that. So I think Jeff is quite right, a lot - I think people on both sides agree when Congress does nothing, there's more flexibility to the president to act and then Congress can come in afterwards and try to block those actions. But the one great example is the War Powers Resolution. This was passed in the wake of Nixon's scandals, in the midst of Watergate, and it says...

CONAN: After Vietnam, yes.

YOO: Yes, after Vietnam. And it says a president cannot use force abroad longer than 60 days without Congressional approval. No president has ever consented to that resolution or obeyed it. In fact, President Clinton's war in Kosovo was directly a violation of that law because it went past 60 days.

So there. I think there are examples where the presidents have said, look, in terms of the commander in chief power, I cannot allow Congress to unconstitutionally interfere with my authority to lead troops. But on the other hand, as Jeff said, I think Congress can cut off funds for any of those wars. And that's, in fact, how the Vietnam War ended.

CONAN: Mm hmm. We want to get listeners involved in this conversation. Obviously, to some degree this is abstract - to some degree it's very concrete. These are issues that are being debated in Congress today as we talk, certainly, about the warrantless wire tap programs. Certainly about the treatment of prisoners, and this has come up again in the situation of the Supreme Court in the Hamdan decision that we just heard last month and which has been greatly discussed.

We'll get into all of that - 800-989-8255, 800-989-TALK. Our e-mail address is talk@npr.org.

And why don't we begin with, this is Gary. Gary's calling from Memphis, Tennessee.

GARY: Hi Neal, great show.

CONAN: Thanks.

GARY: Regarding this issue of executive authority in this case, there's two questions I had partially answered. What is the historical contrast between President Bush now and Lincoln in the past, Roosevelt in the past? And my second question is how much don't we know about how to wage a war of this kind, because as I recall, this is the first war we've ever waged against a non- country.

This is such a new kind of war, I was wondering if your panelist could talk about that as such a grey area for even their minds or the court's minds to comprehend at this time.

CONAN: All right. Jeffrey Rosen, I think we heard John Yoo on Roosevelt and on Lincoln. Why don't you weigh in?

ROSEN: I guess the question to answer is whether Lincoln and Roosevelt asserted the president's power to act in the face of Congressional silence when Congress hadn't said anything, whereas President Bush - according to his critics - has converted that into a license to act in the face of Congressional opposition. Even when Congress has a law on the books, the president says he can ignore that.

And the Supreme Court - very interestingly in the Hamdan case - rejected that very strongly. They cited a famous opinion from 1952 where President Truman tried to seize the steel mills, and the court said no. When the president acts in the face of Congressional ambiguity, he's in a twilight zone, but when he acts in the face of Congressional opposition, his power's at its lowest ebb. And the Supreme Court in Hamdan reaffirmed that.

So so far, we have no Supreme Court decisions, despite what John properly said is the practice about the War Power Resolution. The Supreme Court has never said president, you can actually ignore a law that you think infringes on your inherent authority.

CONAN: Yet, John Yoo, I know that you've said that the idea that the presidential power may be at their lowest ebb, that doesn't mean they go away.

YOO: That's right. I think it still begs a question, what is the presidential power that is core and inherent to the executive branch, no matter what Congress does? So, for example, as you led the showing about the veto, we wouldn't say Congress could pass a law taking away the president's veto. There's some things which are inherently executive and will always will the president. And we still have to decide those questions.

I: which branch of the government is best able to respond to something new like that? And I think the framers thought it would be the presidency.

CONAN: Gary, thanks very much for the call. We'll continue this conversation after we take a short break. If you'd like to get involved, our number is 800- 989-8255, 800-989-TALK. E-mail us, talk@npr.org.

I'm Neal Conan, we'll be back after the break. It's the TALK OF THE NATION from NPR News.


CONAN: This is TALK OF THE NATION. I'm Neal Conan, in Washington.

Since 9/11, President Bush has taken charge of what he calls a new kind of war with new kinds of rules. In the process, he's advocated strong executive powers. In recent weeks, he's faced resistance from Congress and the Supreme Court. We're talking about the power of the president and how it's changed under the Bush Administration.

Our guests are Jeffrey Rosen, associate professor at George Washington University Law school and legal affairs editor at the New Republic. Also with us John Yoo, former deputy assistant attorney general in the office of legal counsel at the Justice Department and now at the University of California at Berkeley.

Of course, you're invited to be with us. 800-989-8255, 800-989-TALK. E-mail is talk@npr.org. And let's get another caller on the line, and why don't we turn to Mary. And Mary's calling us from St. Paul, Minnesota.

MARY: Hi. I have a question about what president in the past - if any - has attempted to expand the powers of the executive branch to the degree that President Bush has?

CONAN: Jeffrey Rosen, according to your article, I might begin with Richard Nixon.

ROSEN: Yes. He certainly made broad claims of executive privilege which were argued all the way up to the Supreme Court and were rejected by the Supreme Court, ultimately defeating and narrowing the very executive power that he meant to defend.

CONAN: He fired that special prosecutor and the process' attorney general, and a couple of other people resigned.

ROSEN: Absolutely so. And when the Supreme Court finally heard the case, they said the independent counsel law is not unconstitutional. Only Justice Scalia had a fiery descent.

President Clinton, during the Lewinsky investigation, made a bunch of strong claims about executive power and his ability not to turn over documents to the special counsel. The Supreme Court rejected those, too.

So ironically, we're seeing here a pattern where every time a president makes very broad claims of untrammeled executive authority, it often goes up to the court and executive power is narrowed in the end. But it - for Mary's question, has there been another president who's made such broad claims of executive power in war time? Maybe John will view this differently, but I would say Roosevelt, Lincoln, all of them asserted power to act in the face of uncertainly, but then went to Congress after the fact and got approval. And I gather that only President Bush has really said not only do I not need Congressional approval, but I can act in the face of active Congressional opposition.

CONAN: John Yoo, would you agree? I'm sorry Mary did you have...

MARY: I have a question. Do you think that this will be challenged up to the Supreme Court with President Bush?

ROSEN: I do. Of course, parts of it already have been. The military commissions were challenged and recently struck down. The indefinite detentions were also struck down in the Hamdi case. So every time the court has heard a different aspect of this broad unitary executive claim, so far it's rejected it.

CONAN: And John Yoo, I wanted to bring you in on this. I know that you think that the Supreme Court - in its way - overreached in the Hamdan decision by bringing up Geneva.

YOO: Yeah, I do think that Hamdan went too far. I would correct Jeff a little bit. I think that the court has been kind of split on the war on terrorism, so in Hamdi a few years ago, the court did say the president can detain even American citizens or enemy combatants without charge. They have to get a hearing of some kind - and we're still not sure what that looks like - but they could be held without criminal charge. And that's a pretty significant, I think, recognition of presidential power in war time.

Jeff's quite right. The military commission, the presidents got pushed back, although the court was trying to be careful not to address executive power issues per se. They limited themselves to interpreting Congressional statue. I think they went too far because they tried to import the Geneva Convention Common Article Three into what it thought - Congress thought it was doing in 1950 when it recognized military commissions. And in doing so, it reversed 50 some years of executive branch understandings of the Geneva Convention not applying to non state terrorist organizations.

Now, getting back to Mary's original question, I do think that other presidents have gone pretty far in claiming executive power. Lincoln and Roosevelt do come to mind. Also, let's be clear. I don't think Bush's rhetoric is - I mean, Bush's practice goes as far as his rhetoric. He has said that he has these inherent powers, but you look at the war in Afghanistan and the war in Iraq, he got Congressional approval for both wars before the fighting started. And he has been trying to claim that the authorizations that were given do permit many of these things - these warrantless surveillance programs and enemy combatant detention policies, and that only if those statutory claims lose - only if the courts refuse to acknowledge that Congress did allow the president to do this - do you have to fall back on this claim of inherent presidential power, which I'm afraid I think he does have to do now.

CONAN: Mary, thanks very much for the call.

MARY: Thank you.

CONAN: All right, e-mail question from Glenn in Frankfort, Kentucky.

Is Congress no longer charged with the responsibility of declaring war? Is seems like they have not accepted this responsibility since World War II. In modern times, is this responsibility better executed by the executive branch? If so, does the Constitution need to be amended? Jeffrey?

ROSEN: I'm trying to answer it yes or no. I think that the consensus has been - as John argued in his article in 1996 and his fine book of last year - that when it comes to war, the president needs broad ability to act unilaterally and to respond quickly, although it may be important for him to have Congressional authorization after the fact. But we shouldn't limit the debate to that question, because the controversy today is really not arising about Afghanistan or the war power, it's arising when it comes to the construction - or critics would say the ignoring - of domestic laws, laws regulating the president's conduct in spying on citizens, for example. And here, the president says they don't - he's arguing, as lawyers like to say, in the alternative.

First, I already have the authorization. But if I don't, I don't need it is what he's saying. And that is what the critics have found unconvincing and the Supreme Court has so far been skeptical of.

CONAN: All right. Let's get another caller in and this is Chris(ph). Chris calling from San Diego.

CHRIS: Hi, I was calling - my comment is it seems to me that if we're moving to an unfettered executive, how are we any different than these regimes we're toppling because they step on the rule of law? It seems that if we are going to have the moral high ground to act in different parts of the world, that we better have that same standard at our own home.

CONAN: John Yoo, is this unfettered power? Is this equivalent to dictatorship?

YOO: I knew you were going to put that question to me.


ROSEN: It's all yours. Somehow, Jeff wasn't ready for this.

CHRIS: Well, I think all Americans are questioning this.

CONAN: Yes, go ahead.

YOO: I would say, I mean, I think there's a lot of differences between the United States and the regimes we're questioning. First, as our president is elected in a democratic election, unlike a lot of these other regimes. But I think the second and more important point is that I actually don't think it's possible for the president to wage any of these wars or conduct any of these activities without Congressional consent of acquiescence of some kind. And I think when we focus on some of these sort of formal declarations of war like Glenn asked in the last question or so on, we tend to expect - we want to see it in a certain way, some kind of declaration or statute. But Congress consents in a lot of different ways. They fund all of these activities. Right, if Congress wanted to get rid of the wireless surveillance program, they could just stop the funding tomorrow. They could close Guantanamo Bay tomorrow. They could kill off all the military commissions.

I don't think that's what Congressmen do. The Congress - I think what it does often - not just in this area, but in a lot of administrative issues domestically, like who sets the clean air standards, who sets the clean water standards - they are very content to let the president take the first step, go out on a limb, set the policy, take responsibility for it. And then only if it fails or turns out badly do you see Congress maybe several years afterwards come into the equation and pass a statute. In the intervening time, they're content to fund the president and let him take the risks. But I think that's a sign of Congressional approval of some kind, it's not a sign that Congress is actual fighting against the president.

CONAN: Yeah, Congress is not exactly exercising its powers, Jeffrey.

ROSEN: It's not. And John is absolutely right that one of the frustrations for people who believe in the fettered executive is Congress' refusal to actually fetter him and make his views clear until forced to do so by the Supreme Court.

However, that doesn't change the fact that although the current Congress may be willing to have the current president bend or ignore the law, there are unambiguous laws on the books - critics would say - like the Non Detention Act which prohibits the detention of citizens, which this president is asserting the right to ignore or reinterpret because of his inherent authority.

So that's why the question - Chris' question about what about the unfettered executive, doesn't this amount to the claim that the president is above the law is arguably the case in situations where the president is saying even with an old law in the books, I don't have to follow it if it infringes my inherent authority.

CONAN: Chris, thank you.

CHRIS: Thank you.

CONAN: Let's turn now to Verle(ph). Verle's calling us from Kennewick in Washington.

VERLE: Yeah, hi. I guess my question is two-fold, really. One is are we really dealing with the situation here that is really kind of is this unfettered power or a renegade executive? Or is it really the fact that we have a process that works in that one individual, one branch of the government gets ahead of the others and the others effectively use the powers that be that are framed within the constitution to (unintelligible) back within the context of what we feel is responsible.

But (unitelligible) I think the comment before - I guess I have a real, kind of a problem with the fact that we start talking about unfettered power and the president doing things, you know, directly in violation of laws. If that were the - if we start making those kind of comments, basically we're saying we got a renegade executive.

CONAN: Mm hmm.

And I don't necessarily feel like that's the case. I feel like - to a large degree - we have a structure that's set up, and someone has to take the lead in this situation. And I'm not necessarily a big Bush supporter, but in this situation, he has basically taken the lead. And a lot of it is the structure, the government we have and he has two terms and a congressman or a senator has essentially unlimited terms, and has more to lose by taking political risks like that.

CONAN: Well, anyway, that's the way the Constitution happens to have designed it. But are these think these things are cyclical, do you think, John Yoo?

YOO: I think they definitely are. You brought up, for example, and Jeff brought up Nixon. It's a good example. He pushed executive power quite far and Congress pushed back. And I think that is how the constitution is designed. You know, we kind of expect to see a process where the Congress pass the laws, the president executes it, and the court adjudicates cases.

But I think foreign affairs and national security are different. The framers did seem to design this system that doesn't clearly give authority to one branch or the other over different areas. It kind of invites a struggle. There is a famous Princeton political scientist named Edwin Corwin who wrote a book saying that all the foreign policy was an invitation to struggle between the president and Congress.

The only think I would say about Phil's point is this is a tension that goes way back. I mean, this goes back to Hobbes and Locke and why we have an executive at all. And I think it's a partial response to Jeff's point. What the people were thinking at the time of the constitution were worried about is that, you know, written laws could not anticipate future emergencies and future problems.

That's a good example with 9/11 when FISA was written, no one anticipated that we'd have an enemy that wasn't the state, that was using cell phones and Internet e-mail, moving around constantly. And we built up this wall between national security and law enforcement that we interpreted out of FISA to protect civil liberties because we didn't anticipate an enemy like al-Qaida.

That hurt us, but that's an example, because our laws - which are written down an earlier time - can't anticipate new future circumstances. That's one of the reasons we do have an executive to respond quickly as President Bush did. And I think some of the things he's done has helped prevent future, you know, attacks over the last five years. Some people would say not or you can't know, but he did respond aggressively and adapted - tried to adapt the laws to this new emergency. It's very much what Lincoln did. I think that his how the system was designed to work.

CONAN: Jeffrey?

ROSEN: He didn't do what Lincoln did. What Lincoln did is he suspended habeas corpus when he thought the exigency required it, but very soon after when Lincoln went to Congress and said, Congress, please ratify my action. President Bush could've said FISA is not adequate to the emergency, I got to act quickly right after 9/11. He then could've gone to Congress and said, Congress, please ratify my actions.

But he didn't do that. He said, I'm going to act unilaterally, and I don't have to go to Congress because I can do what I like without Congressional approval. And even if the Congress challenges me and says I'm misinterpreting their laws, I can ignore that, too, because I have an inherent authority to do so.

What strikes me about this claim is how politically foolish it is and counterintuitive it is. This Congress would've given the president anything he liked within days if he had the courtesy to ask. He would've avoided years of litigation, which resulted in the diminuation of his presidential authority.

Regardless of the academic merits of the Unitary Executive Theory - which is awfully interesting to debate - it strikes me that this has been just - in practical terms - a disaster for the Bush administration's own goals because it's gotten them none of what they wanted, and has ended up shrinking executive authority rather than shoring it up.

CONAN: Verle, thanks very much for the call.

We're talking about presidential powers, and you're listening to TALK OF THE NATION from NPR News.

And, John Yoo, I wanted to quickly follow-up on Jeffrey's last point. Would asking Congress to have approved this action - the warrantless wiretapping - would that have eroded presidential powers in your view?

YOO: Let me sort of give two answers. I think one is that one thing - and having worked in the administration at that time when these decisions were being made - one thing has changed and has caused this political setback, I think, has been the Supreme Court. The Supreme Court already pulled the rug out from the administration by changing what the law was.

If you go back to 2001, no one thought there needed to be a new statute for military commissions, because there were two Supreme Court cases on the book from World War II that had said Congress has already authorized military commissions when the president needs to use them in war.

The warrantless surveillance - again, you know, the Supreme Court hasn't decided, but there have been lower court decisions which have said, look, in domestic police operations, we don't allow the president to conduct warrantless surveillance. But we're not going to reach that question when it comes to national security threats from abroad. And other courts have suggested that there is this power in the president to try to use warrantless surveillance to try to catch enemies who come from abroad.

So I would've thought - I wouldn't say that going to Congress to prove the NSA program, for example, would've diminished executive authority. I think what has happened is that the rules on the ground have changed, you know, in the middle of wartime because of the actions of the Supreme Court.

Second - and this is the other point - I think what the administration has been very conscious of is operational security. I think they would have loved to go to Congress and say, please amend the FISA law to make warrantless surveillance possible. The problem is once you do that, you're going to reveal to al-Qaida that we're - what we're doing, that we re surveilling these kinds of phone calls.

So what they tried to do - as we now know - is they went to the leaders of Congress and tried to brief them on the program, see if they were okay with it. That, of course, didn't protect them when news of the program came out in the New York Times, and then some of these people...

CONAN: Well, leaders of Congress say they did go to the leaders and brief them. They didn't ask them if they were okay with it, but...

YOO: I think that's what they were trying to do, though. By briefing them, they were trying to get political cover - this is more goes to (unintelligible) - they're trying to get political cover for the program to make more inclusive those people who were involved and might know about it.

CONAN: And at this point - let's see if we can squeeze in one more phone call before we have to go. And this is Michael. Michael calling us from Springfield, in Pennsylvania.

MICHAEL: Hi, gentlemen. My question is, with renting(ph) a war, you have a finite end. This war, there will always be terrorists somewhere in the world. Do you think the president is going to give up this major card?

CONAN: The card of being able to...

MICHAEL: Being at war.

CONAN: Being at war. John Yoo, he's got a point. In a stateless conflict, it's very difficult to figure out when it ends.

YOO: Yeah. I think that's a great question from Michael. And I think it's in some ways the hardest legal question - pure legal question about the war on terrorism is when does it end? And I think, in part, the fault is due to the Bush administration's rhetoric. When we say war on terrorism, it does sound like this is a war on a social problem - like war on crime and war on drugs.

And I think we have to be careful - you know, we citizens and we the government - have to be careful that it's not really a war against a social problem like that, because then it could go on indefinitely. So I think, you know, we have to think of it as a war on al-Qaida, and that the president's powers, you know, that he's exercised - these extraordinary war powers - are going to terminate when we have been able to figure out when has al-Qaida as an entity been defeated.

CONAN: Mm hmm. All right. Michael, thanks very much for the call.

MICHAEL: You're welcome.

CONAN: And I'd like to thank our guests today - Jeffrey Rosen, who's at the George Washington University Law School, legal affairs editor at The New Republic. His article, Power of One, appears in the current issue. And our guest, John Yoo, professor of law at the University of California at Berkeley, a visiting scholar at the American Enterprise Institute.

B: An Insider's Account of the War on Terror by John Yoo comes out next month. And The Most Democratic Branch: How the Courts Serve America by Jeffrey Rosen came out last month. And you can get copies of both those, well, pretty soon, I guess, for the John Yoo book.

Anyway, John Yoo, thanks very much.

YOO: Thank you.

CONAN: Jeffrey Rosen, thank you very much.

ROSEN: Thanks.

CONAN: When we come back from a short break, our regular Wednesday look at the week in politics. Political Junkie Ken Rudin joins us.

I'm Neal Conan. It's the TALK OF THE NATION from NPR News.

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