president ken di throughout his career and was -- kennedy throughout his career and was treasured because of his irish wit. his described the scene this way, never in the history of the massachusetts democratic party had so many gathered on such a beautiful day with so few under indictment. [laughter] >> it is with this appreciation of the importance of humor that we are deeply honored to have one of the finest storytellers garyson keilor, best known for "the writteners almanac." he's the author of hundreds of books in which he explains of his lifelong political affiliation is formed by the scandinavian wisdom of his youth. .

i will return to the podium -- podium to close the session. it may seem like catching up with an old friend. the committee your voice we have invited in our living room, kitchen, and cars and whose stories, poems, and songs as touched chords and our hearts. please join me in welcoming garrison keillor to the kennedy library. [applause] >> thank you so very much. i don't remember the president having that pronounced an asset -- accent when i heard it back in a pall of the 1960's.

memory can be deceiving. i cannot help but think of a talk i gave in detroit for a fund-raiser with the united fund, a couple of years ago. it was at the henry ford museum. they were about be an enormously wealthy people sitting -- 50 enormously wealthy people sitting at tables on the museum for. they were circulating around and having drinks and i walked around and caught the lay of the land, and behind me was the bus from montgomery, alabama that they had written on which had led to dr. martin luther king

jr. and the bus boycott of montgomery which led to so much else in the south. they're all the various cars. and i realized that i stood up in front of these people, that black lincoln limousine back there, that long limousine was the car that mr. and mrs. kennedy were writing and in dallas on november 22, 1963. indeed it was. i knew it somehow. it was sitting there just beyond this group of people having drinks and waiting for me to talk about lake wobegon, minnesota. it was an enormous disconnect to attempt to beat a humorous and lookout at this monster, this monster of history, this dragon,

this car which you and i have seen how many hundreds and maybe thousands of times in newsreel footage over and over, making that turned in dealey plaza and coming up under the elm trees. i could not get it out of my mind and yet i was not there to talk about this, you see. i was there to tell stories. but it was there, this car, which was the scene of a great change in the history of our country. we can talk about that for years to come, but it was. , peoplehat momento start to feel disconnected from their own government, conspiracy theories abounded that the government itself had killed the president's, so much darkness

followed from that very moment. how many times had we gone back and rewound that film, wanting it to come out a different way? it seemed to be monstrous that we're sitting here are round tables and having drinks and their that car was parked. just beyond us. and yet this is a challenge of humor, somehow it must comprehend darkness and death. it must take this into cognizance. i stood up in front of them and i switched directions and i started to tell stories about death. [laughter] not what the united fund people were hoping for. [laughter] but you feel this disconnect in

your mind is going one direction, and your voice is trying to take you someplace else. and in the end, you have to follow your head. so i told them a story about mr. tolphopson of the grain elevator who had an affair with the english teacher, though each of them were married to other people, and he went down to visit her in her classroom and to recite love poems to her. he worked up in the grain elevator. he was an unprepossessing man, he was wiry and his hair stuck up and he was dealing with hair loss and he wore black warm round glasses repaired with masking tape. [laughter] and he had soybean dust on him

and cornmeal in the cuffs of his jeans. but he went up there to recite a poem to her, let me not to the marriage of true minds admit impediments. love is not love which alters when it alteration fines. and before long, there were down to the moonlight base supper club. and they sat in a back booth around a little read cut glass decanter with the candle inside, and they ordered bombardiers, a drink that is powerful, that you would not order if you meant to keep your good judgment. [laughter] and they win often parked in his little pickup truck just down the gravel road, just over the hill from where the state highway curves off to the west toward the dakotas. they parked just over the hill and they steamed up the windows

for a while, never imagining that lumber truck would take that turn too fast and this sit and then go over that rise and go fishtailing down the gravel and sideswiped the pickup truck and roll it over eight or nine times. and she who that passenger seat belt, or nearly you would not do what you are steaming up the windows -- [laughter] she suffered cuts and contusions. and his naked body -- [laughter] because a man who was steaming up the windows times tain some element of mobility, he is -- his naked body was thrown out on to the gravel where it lay there and the sheriff's hepplewhite's when he came. and he inspected the pipe -- in

the sheriff's headlights when he came. the man had put that on himself for safety. in this case it had not worked. [laughter] they brought the body up to the mortuary and put him in his suit and he was taken up to the lutheran church for the funeral, at which the pastor reached a very stiff sermon on the obverse, be sure your salmon will find you out. got season the rest of us will find out about it inevitably. be sure your sin will find you out. got gloves -- it will be found out. the pastors old church

secretary, and jean in the third row, burst into tears and sat there sopping, her bosom heaving, and so that story came out. [laughter] and the pastor had to be dismissed. [laughter] the chairman of the church council live voted for -- who voted was involved with the woman but she destroyed his letters to her but there was one that he could not bear to lose. it was a letter to marine telling and what a wonderful lover he was and how strong and our imaginative and how generous and in during. -- enduring.

this letter recommendation he held onto. [laughter] and put it for safe keeping in a book in the library. which was up but no one would ever read, a book of statistics of american agriculture in 1929- 1930, the chapter on flax which we do not grow around there. it was safe for years until the library and grace was a reading out books and the letter came fluttering down to the floor and she read it, and she thought surely this cannot be my brother eugene. is the chairman of the church council. she showed a letter to her sister read it and thought nothing of it. the person described in the letter bore no resemblance to her husband. [laughter]

but she asked him about it and he dropped an armload of china. and so he had to be sent off to think about his sins, to his brother roger, who himself was caught three weeks later, having gone to town to play penuchle with his friends, he said, and came home a 1:00 in the morning which is much too late for penuchle. it is a game for old man and always ends up at 10:00. he had a gash over his left eyebrow. because he could not think of a good story, he was forced to fall back on the truth, which was not to his advantage. [laughter] he had been struck by a mirror that fell off of the ceiling of a motel room. [laughter] where he and the young woman lying in theere

jacuzzi and miring each other in the mirror on the ceiling, and he opened up bottle of cheap french champagne and the court bounced off the mirror and suddenly their reflection started to get bigger and bigger and bigger. [laughter] i told this story to the united fund the people. [laughter] i think they were expecting something else. something about neighborliness and something about generosity and coming to the aids of those less fortunate. but who could be less fortunate? those struck by a mirror fallen off of the ceiling? [laughter]

my own. jack was the less fortunate man. y uncle was a less fortunate man. he took to jim beam for solace and develop alcoholism as a major copy. had to be sent away, sent off to live in a hunting shack out on the other side of the lake. and there he lived. i loved him. he was a dear man. he wrote songs. not the right kind of songs, he knew "annabel lee" by heart. he knew all sorts of forms by heart. he died. he died. they all died, you know. i do not kill them off deliberately in my stories, but my uncle did die.

he had come into the sidetrack tap to medicate himself and he was on his way, a bitterly cold january day in minnesota. it was 40 below zero and may have been colder than that. our outdoor thermometers only go down to 40 below. we don't want to know about anything colder. [laughter] he was on his way to the sidetrack tap, a heavyset man with a friend of red hair and a brushy red mustache, making his way, and he went into -- ran into his nemesis who was walking toward him and with him he had had a life long argument about the authenticity of the kensington moonstones, a stone found in a corn field in western minnesota in the late 1870's,

runic writings on the stone, which translated said something like 14 of us have come down with the red disease and are on our way back to the votes to sail back to vinland. which some people, mr. birkie being one, felt was authentic, and prove that the vikings were amazing navigators to be able to find them -- their way to the middle of north america just by the stars. other people including my own called jack thought it was an obvious that anyone with the iq of a potted plant would know that this was the work of some soybean farmer with time on his hands. if you were sick and dying, why would you take a week to carved into a stone and meaningless

message in a language that nobody around here understands? they had an argument about this. they have an argument about this in the streets. they were shrieking at each other in norwegian, of language rich in invective. and then my uncle felt the elephant step on his chest. he reached for the parking meter. they just put up one as an experiment back in the early 1950's. they got one for cheap and they just never worked out. and so they did not put up any more. he grabbed hold of it for support and his last words on this earth, though he could not have intended this, work, "and you have got shit for brains." [laughter]

and then he fell. mr. burke he said, "you go to hell." then he felt that might be the case in nicolle but the constables and the sheriffs and the ambulance, but corner, the fire department got involved somehow. you had this scene of an emergency and walk and talk is going off, and you had read in blue flashing lights and yellow tape around a man lying there, this whole scene of crisis and emergency, which my uncle love more than anything else in this world and such a shame that he should miss it by just 10 minutes. [laughter] humor has to include all of these things to comprehend them.

we cannot close it off. humor is not silliness. humor embraces our life and there is a connection between humor and politics. more than just politicians telling jokes. when we talk about him, we mean first of all -- humor, we mean first of all good humor, a general good humor among

up bias toward trusting each other, a communal spirit. such as we feel around christmas, even if you do not believe in any of it, if you cannot be impervious to this feeling amiability which is at the heart of christmas. christmas does not require a big outlay of cash. especially as you get older and greed is less and less a part of that. christmas requires cookies and christmas carols and candles. it is good if it is cold. i cannot imagine christmas and florida. i guess other people can but i cannot. it requires a few simple things. some lights and candles and cookies, saffron cookies, bayberry candles, but your choice, really. [laughter] and this feeling of amiability, of good will which is everywhere you look around you at christmastime. some people are offended by the

manger scene. some people feel marginalized by it. we live in an age of complaint. i say to them, "get over it." [laughter] you are in america, that is where you are. if you are in france, you wouldn't expect buttermilk pancakes for breakfast. you work in france, you're with the french know. it's a catholic country and france. don't expect they will -- they will publish box scores. you will have to go elsewhere for them. there's this feeling of amiability even among people who do not believe that jesus was the son of god and who appeared in human form in a cradle on

december 24 back in bethlehem. there is this feeling of amiability, of people coming together, good humor. this is crucial. and if we lose this, if we lose this in our society, we have also lost something in politics. we are living in this intensely partisan era, not the first time in our country's history, god knows, but it is worrisome when you have a poll that says that 57% of republicans in our country believe that barack obama is muslim. that 48% believe that he was not born in this country. when 38% believed that he is doing many of the same things that adolph hitler did.

that 24% believe that he may be the anti christ. they are talking about a kid from hawaii who was the son of a single mother, and who strode in classic american style, going to the best schools could get into, winning the prizes, and replanting himself on the south side of chicago and go into the swamp of chicago politics, somehow one scathed -- how did that happen? and bearing the first woman he was really in love with and making his way up the ladder in a sort of classic dickensian story, at this striver, this earnest striver, that have been

so misread by such a large majority of people. pure racism in my opinion, but still disquieting, if you believe that the bedrock of politics is some sort of, and good will -- some sort of common good will among the american people, it is very disquieting. when you talk about humor, pure also talking about jokes, which are a crucial part of american culture and american literature. we pride ourselves on this, one being people who appreciate jokes. this is an age of celebrities and celebrity does not go with jokes. celebrities are precarious,

fragile people who are properties and who are brands and they must defend their brands against humor, against satire. they must be very, very careful not to be caught off guard. it is a very precarious thing especially in this day and age, when there are so many celebrities. there used to be 45. [laughter] and now there are about 475 olson. -- 47,300 famous people in america, which means that most famous people in america are people who most americans have never heard of. but they are nonetheless a liberties and they travel around in celebrity cars and they get beyond the velvet rope very easily, and they enjoy a great privilege, until one day

humor comes after them and people start to make fun of them, and then it starts to fall apart, and it happens in so many ways. you get out of your black car and your publicist, jennifer, a lead you on to the book signing, and there you are, and people passed by the velvet rope and hours go by. you go for an interview on tv, and then you stop in the men room on the way back and you look and there is an enormous, greenish tint coming out of your less -- left nostril that has been moving in and out as you breathe. and you looked as in horror. you are a famous person admired by literally of thousands of

people for your cable tv show, but nobody, not one person, walked up to you and said, hey, you need a hankey. and youe fired jennifer go into hiding. you go into the betty ford center. [laughter] and you hire a new publicist, vivian, and vivian puts out the word that you suffer from a rare condition which creates excess mucus. [laughter] and you pick this up when you are over and africa trying to and adopt an orphaned child. she does her best at damage control but the damage is done. you've suffered this sharp blow

and your image is forever craft. and it will never, ever recover. people will always look get you and they will be looking at your nostril first. this is how it is. so celebrity culture and humor, jokes do not go with each other. i grew up in a era of cruel humor, desperately cruel. the age of the practical joke. people do not do this anymore but they used to do it and they would send for ads in the back pages of popular mechanics, and they would bite itching powder, and they would buy dribble glasses, give one to uncle

louis and liquid would run down his tie and everyone got a big kick out of it. and you would put salt in the sugar bowl. i can barely remember when a group of boys put sheep in their friend's bedroom. put a sheet, led the sheep up the stairs and their the sheep was, and the sheep was left in there for a long time. so she made a mark on that bed room. these were country people. but there was a real cruelty behind it. nonetheless person in america to remember the era of tipping, a profound thing. people in my child did not have indoor plumbing but not at the

summer cabins. they still have outhouses. boys who were near a lake as i was occasionally did this out of extreme boredom. you would hang around in the woods in the evening as the sun went down, and in particular you were watching harold stars' cabin. he was a good republican and he made a good target. he had an outhouse behind his cabin. and you knew that he would make that walt down that path in the dark. he knew that we were there. this was not a surprise. he knew that we were waiting out

there and knew what we had in mind because he had been young himself. so as he came out the cabin door, he yelled at us, "i know you are out there." and he brandished a shotgun. thinking it would scare us off. it did not. it was just a challenge, that's all. he went into the powerhouse and when he closed the door, we came sneaking down through the tall grass, until we were about 30 feet away, and we could hear. and when we heard the unmistakable sounds of him doing what he had come out there to do we made a rush for the house. you had to do it quickly. you could not discuss this. you were there for one purpose. and that was to push this over

onto the door as fast as you could. he yelled and his kerosene lantern broke and this big coup of flame. he fired the gun but it went toward his own cabin. there were flames in there. we were. hellbent four-letter up the hill. and he came up the only exit bill was available to him. he came leaking out and there was the hole waiting for him. he knew it was there but he slid right down into it. nobody would ever do this today. [laughter] we could discuss why. it is an interesting question. i do not know why. people are not nicer now. but there are so many out house

is now, i expect. he would yell at us and threaten us and told us he was going to find us if it took him the route -- the rest of his life. but he had a pretty good idea of who he -- who we were and he settled down and realize that this was simply part of a game. we had come after him because of this high rescission -- position. it was a tribute in a way. [laughter] you do not pull practical jokes on week are vulnerable people. it is not done. it is not funny. you go after the powerful. and the mighty. and so he was able to accept this. we do not do this anymore. we are in the nature of political correctness, which i do not mind. i consider it to be a form of

good manners and i did grow up during the 1950's at a time when men more less rich release said deprecating things about their wives to other men. this was a guy humor. i do not miss it. it was not funny to me then and is not funny to me know. what has really put a damper on humor is not so much political correctness, as a tendency that we have to make any sort of human oddity into a syndrome, into a dysfunction, into a disorder. we have made light clinical, somehow. and we have taken the human conditions that we used to just live with and the curious about

and we have made them into problems to be solved, possibly with pharmaceuticals. [laughter] so that everyone has some sort of disorder and we each have long list of problems which have some sort of clinical or therapeutic solution. this gets in the way of humor. humor requires a certain sort of fatalism. the this denies us back. -- this denies us that. if you wake up in the morning in new have empty ice cream cartons in bed with you, there is a reason for this, and you discover it. it comes from taking ambien sleeping tablets and one possible side effect in the

small print written on the pamphlet inside the box is eating disorder, late night excessive eating disorder. nocturnal excess eating disorder. n-e-e-d, need. so instead of making a joke about this, if you solve it, and you google nocturnal leading and one-half cent at you, with 36,749,000 hits. most of which have to do with owls. [laughter]

but here is one that identifies your problem and shows you the way to a group that is meeting every week. always in the basement of a unitarian church. [laughter] always on tuesday nights they are meeting and you sit there in a room, in a circle of folding chairs, with people with styrofoam cups of not very good coffee and you talk in the circle about your life and about your needs and your disappointments and so forth. other people are meeting in other rooms here in the basement. it is full of people. in one circle or another, aa is here and when did daughters of emotionally distant fathers, men coming to terms with their own bodies, men who mothers told

them to eat everything on their plate so that would grow up big and strong, but they just grew up big. [laughter] so they have to talk to their mother in their feelings about mother, disappointing hurt they do not finish everything on their plate, and anger anonymous, a group of mostly parents of adolescent children who had been so sweet tempered and then fell in among that company and took a wrong turn and went to live in little basement rooms in the parents' house until they were in their mid 20's and there they live like trolls in dark smoky taverns, strange smoke coming out from under doorways, psychotic music playing down their and odd instance, and the

parents begging their children to please, it is christmas, just come be with us, you do not have to eat the same food that we eat, you do not even have to make eye contact, just be in the same room with us. and the child opens the door and hisses at the parents, evil spirits, and children who once were happy and gay -- will not gay, but they were happy. [laughter] now they are dressed all in black, expensive black clothing ripped to pieces, and what is that on the neck? a spider web something. where did that come from? meddle everywhere, their eyebrows and i lives and their careers and their lips and the

nose and their tongue as well. matal everywhere. it's like a bill faced first and to the tackle box. -- it is like they felt pace first -- fell facefirst into the tackle box. people who shriek that their parents and yelled at them and the child recorded all on the cellphone. so they could refer to child services and now you have to go sit in the circle and drink coffee. [laughter] every week. this is the enemy of humor, the enemy of jokes. i grew up in the era of jokes. jokes were democratic. small the democratic. -- small d democratic.

it did not matter who you work, if you have a lot of money, if your life was a mess, it your all -- all wrong politically, if you belong to the wrong church -- if you could tell a joke until it cleanly, but you were ok. this is how you could wake -- make your way in america. i saw it over and over. in the chatterbox cafe, if you're the guy who had married the daughter of the former, you knew nothing about farming, and so they had very little in common with you. you came from the city, you war fought clothes, and you're here to not look right, what was that you put on yourself? why would you want to smell like citrus fruit? they had plenty of reasons to

dislike you. but if you sat there, as people told jokes, you waited your turn, you did not rush, but as the conversation moves in its odd way from lutherans to moose to highways to soybeans two uncles to in a wet -- inuit, there is your moment. a new step in and say, not, not. eskimo. eskimo who? eskimo questions, i'll tell you no lies. [laughter] not, notthe worst just. it's not as bad as sam and jack,

but it is good enough. and you told it well. there are beautiful gems. the week after bill clinton admitted to having canoodeled with the intern, people in lake wobegon were telling this joke. there's a sale down at the store, men's pants half off. every word in that joke needs to be exactly where it is. you need to tell it with confidence. no hesitation. nobody in that chatterbox cafe would ever be caught saying, i cannot remember jokes. i do not know. i do not have the knack for telling them. you would never admit to this. the joke -- the joke is the key

to fitting in anywhere. the door that you can easily open, and even if you are all wrong, and all sorts of ways, if you could tell a joke they will give you a lot of credit. this is the basis of more in politics than you or i may realize. the same ability to tell a joke maybe applicable in all sorts of other situations. i think that good humor is the basis of good politics. i truly believe this, that there is a sort of common trust, appealing about the common good netiquette parlays itself in tumor. and when we lose that, we lose too much, we lose much too much.

i am going to close until a story and then i will take your questions. but i am sure the questions will be interesting. -- i probably do not know the answers, but i am sure the questions will be interesting. [laughter] it is a story about death. [laughter] since i have that on my mind. i do not have my cell phone on me so i do not know what time it is. it does not matter. my parents lived in lake wobegon a little town out in the middle of nowhere. as we say in lake wobegon, it is not the end of the world, but you can see it from there. [laughter] we are out there and we get this ferocious winter that comes down from saskatchewan and manitoba,

these blizzards, rolling and regularly. starting right about now, starting sometimes as early as halloween, but always by thanksgiving, snow on the ground. this is our reason for being, somehow. we are historical people -- still -- stoic people and winter gives us something to be stoic about. we are strivers to get the job done and our job, living there in the northern tier states is to defend our country's long border against the rapacious canadians. [laughter] and to keep the highways cleared. because once these people get in and get across, we have a hard time telling them from each other. [laughter] so there we are.

winter is part of the basis of our understanding of ourselves in minnesota. we are little lost and confused during the summer. summer is a beautiful time, of course, and yet it raises hopes that cannot be satisfied. and it leads people into all sorts of questions and who in my and why am i here, what is the purpose of my life? in winter, this is all perfectly clear. we are mammals. that is who we are. we are meant to seek shelter and food and keep that food supply coming. and have children, and have extra children in case the wolves carries some away. [laughter] and if you do not carry children -- if you do not have children, you should at least practice making children, and this is

what we do in the wintertime. i grew up when winter was much harder than it is now. we had no light weight formalwear back then before the space program. we just put on layers of long woolen underwear and sweaters and sweat shirts and had these mackinac's. we kept warm by wearing heavy clothing on our backs. but the exertion of carrying heavy clothing, at 87-pound shirts going out over the frozen tundra and carrying 42 pounds of clothing on your back, you stayed warm. the exertion of it kept you want. in the storm, you marched when you're a child. school was never, ever counseled and minnesota, ever, not for any reason whatsoever. once you start canceling school in minnesota, where you stop?

[laughter] so you win often called the school bus or maybe a slave would come for you if the school buses could not get through -- sleigh would come for you at the school buses could not get through. it would pull you off through the snow, and that a runner broke off, u.n. often to the eyes of the mississippi river and author river u.n., swerving sometimes off to one side, to avoid these tattered men in gray who came down from behind rocks and trees, running towards us, the last remnants of the army of northern virginia trying to snatch little kinky children -- little yankee children for ransom so that the confederacy could rise again which it never did until the renaissance of the

republican party. [laughter] anyway, another subject. but winter is a manly obligation. you are not supposed to be defeated by this or even complain about it. everybody else is just as cold as you are, so do not tell me how you feel. this is not a personal experience, ok? just keep to yourself. you are supposed to get out there and shovel snow and throw that snow up on to the bank until in february or march, you have 30-foot high canyons of snow coming into your little house. you can throw that's no way up there -- that snow way up

there, and up there is a cougar waiting for you to waver if you look lost, and you have to preserve life. that is what we do in the winter. my father and my mother, long many years ago, lived in a little house in lake wobegon with my older brother and my oldest sister. my father went out to shovel snow off roof. it was around twilight. the sun was just going down. he went out there and put up a ladder against the house and declined up to shuffle off the snow. you have to do this because you have no idea how heavy the snow is. if it is heavy enough, it could collapse the house, and you could all die, which would be embarrassing. [laughter]

silly man has to do this. a man could hire someone else to do it, but that is not a good kid -- a good thing. unman needs to shoveled his own room. if the hire someone else, then this is one more step down the path which leads to people reaching for your elbow when you go down the stairs. people saying, you look good. which they never said when you did look good. [laughter] it leads to people suggesting that maybe you should not drive at night, and injured children taking your car keys away, and you wind up in the good shepherd home and you are hanging out with people you have been avoiding all your life. and finally dementia settles down and then they shovel you into the box in the suit did you

used to wear to other people's funerals. and it is much too early and they hold you in the church pastor pew and down front, and someone who barely news you gives you a eulogy and it is all wrong, the distinguished thing that you did light privy tipping, they did not touch those. that puts you in this blacken. you meant to take more car trips but this is the last one. the pallbearers carry you over rough ground and they sit you down over this frame over the hole in the ground and they seemed to vs of all by by me. and that is all. two verses of me."de by the grave diggers are talking

about drainage problems, the last thing you want to know about. and so to prevent this from happening too soon come when you go up and shovel snow off of your route. [laughter] and he did, he was shoveling snow any doubt war now. it was a heavy snow and the sun and gone down and he was going to rest for a moment. he lay back against the steep roof and he braced his heels in the gutter. and then he fell asleep. local up about half an hour later. -- woke up about half an hour later. and he realized that his jacket had frozen to the route. it had this can now, but police in, and it throws into the shingles on this cold night.

he tried to move his hips, his legs, he could not move anything. it was a long jacket. he could kick with his heels against the roof, but he could not move his hips. from the bent over the kitchen, he could smell but tuna noodle casserole that my mother was making for supper. the little children had gone to bed. she was making supper for him and here he was trapped on the roof, cars going by. he could not wave to them. he could only move a thinker. they drove by, back and forth, some halt. -- some honked. he tried to signal them with his index finger and he could not. and it dawned on him, he could die of. no one can buy.

it was very cold, 40 below zero. he heard a crunch in his back pocket. he realized as he felt all liquid going down his leg that he had lost at a bottle of peppermint schnapps that he had brought up. to keep himself warm. he had broken it, and now he realized that when he did die on the roof, this is what people will talk about. he had a drinking problem. [laughter] that would say that he had a drinking problem. he had to go up on the roof to drink. that is how desperate he was. he drank and then he'd pissed his pants. [laughter] so he was almost resigned to this in a crucifix position when my mother. standing in the snow down below. she said, are you almost

finished? he said, yes, i am. she said, when a mine going to come in? as soon as i get this jacket lose from this route. oh, mercy, she said, and up the ladder she came. this woman afraid of heights came clamoring the ladder and the steep group holding on to the jacket, she pulled herself up until she lay there on him and she grabbed that zipper and she pulled it as hard as she could, and he came leaking out and he came down the route with her, writing and straddling, off the roof, and down into the snow bank, and jumped up. nobody had seen them. [laughter] they went into the house. she put away the tuna casserole. she got

they had defeated death. she had a little wine that they used for cooking. she poured it into a class for him and he drank it. she bake a potato with sour

yes, we are ok. we are fine. we just wondered because we saw a jacket of on your route. he said, that is the jacket -- i put that up there. that is a cougar trap. [laughter] would be used for baked? he said, peppermint schnapps. my parents, my parents, the defeated death. and that was about we come through the other side. we survive. they had narrow scrape bus somehow, here we are. a bunch of humorous people. what is humor about. it's about what we have in common, which is what politics is about as well. these are times when we have so much less in common than before.

the world is split up into little pieces. the most successful tv shows have rather small audiences, maybe 5 million, 6 million, maybe 8 million people out of this who's vast country. there used to be elvis and frank sinatra and the beatles. there aren't people like that anymore. people who everyone would recognize by their voice. we've become different and estranged from each other but humor and politics can bring us back together and if politics can't, then i have my doubts about humor, too. thank you. [applause] [captioning performed by national captioning institute] [captions copyright national cable satellite corp. 2009]

>> thank you very much. thank you so very much. we have a couple of microphones here and i see people edging that way. a young woman has leaped or leapt to one. yes, ma'am. >> i have had the joy of seeing you at tanglewood the last seven years -- >> where were you sitting? >> i notice you all have scripts but when you do lake wobegon you have no script, yet the show comes out on time. my question is, how do you do that? >> when you're telling the truth you don't need a script. you just remember things as best you can. no, it's not really required

that you have a script. the president has to have one, i understand that, the teleprompter and all of that, because, you know, if a sentence of his skids off into the wrong subordinate clause, you know, the markets in japan react. but the rest of us don't. you and i don't need a script, right? we're americans. >> but you still manage to conclude the story in a logical, funny way and the show always ends on time. >> i'm an older person. a person ought to develop some skills, you know. you lose a few and gain a couple. yes? >> i'm curious as to how you got your start in humor and i'm

sure there was a wealth of characters to base stories on but how did you develop this ability to go from one -- something leads you to something else to something else and then we kind of come back to the beginning again. how does that happen? how did you start that? >> well, i was -- i had a need to do this as a child. and my mother enjoyed having me around, watching her as she worked. she had six children. and she would wash and clean and cook and iron, she even ironed sheets. and i was her little boy who memorized jokes out of reader's digest. soy told her jokes and she was very charmed by this.

and then when i was 6, she did something i didn't understand, she went and she got pregnant and -- by my father -- and she had twin boys. my younger brothers. and when you are the charming third child in a family, which then adds twins, you disappear. you become invisible. people gathered around to watch these infants, you know, it was like the dion quintuplets or a smaller scale and we didn't charge admission. but this is a source of wonder to people and there i was, gasping for air, because my brothers sucked it out of the room. and out of -- out of a troubled

childhood comes the urge to entertain other people. your parents may have deprived you by giving you a happy, satisfied, comfortable childhood. and shame on them. and make sure that you give your children the gift they deserve. which is a little misery. and neglect. so that's the secret there. you grew up the middle invisible child in a family of calvinnists -- >> pretty close. >> and you need nothing more. you've got it all. >> thank you so much for your stories which transport me each week to such a wonderful, civil place, a luxurious place.

my question is president kennedy had a vision and a story that compelled us, as did president reagan and all, it seems, the great leaders do. i'm wondering, what's the story that president obama should be saying to us? >> president obama has been gaven truckload of trouble, he came into office on it. i was there in washington on january 20, along with millions of other people and it was just one of the great days of my life. it was a lot of trouble to get to washington but i and all those millions of other people felt we had to be there and when we saw the obamas walking down pennsylvania avenue toward the white house, i just -- i had a beautiful feeling.

it's not gone away. but it's been put slightly on the shelf. his first two years, i think, were anybody else, he might have trumpeted this more than he has. i think that he and the congress got a great deal done. we come from -- i come from northern liberals, however, and these are people who are dark people. and we are fault finders and we are dissatisfied with our own and so i try not to listen to people who believe as i do. they seem to be a poor guide to this administration. i have great hopes for it. out of trouble, which he has

recently experienced a little bit of, i think great things will come. i think that these cables that wikileaks released, i haven't read them all, neither have you, but these cables show the administration, i think, in a pretty good light. so i have high hopes, high hopes for them. [applause] not the best answer i could have come up with but i don't have to revise this. >> it's the best presence, though, we like that my question is, you were in a new york state of mind a few times back and it's kind of two-part, either part i'm curious about. what drew you to the big apple and today, now, are there

things that linger in it that so new york city. >> what drew me was "the new yorker magazine" which i started reading when i was a kid, my cousin kate subscribed to "the new yorker," she was two years older than i, she probably showed it to me when i was 13 or so. she was a very adventurous person in our family a real bohemian, growing up in a fundamentalist, evangelical family. she smoked and she could smoke really well and she could swear really well and she understood the cartoons, the cartoon of the chicken and the egg lying in bed together and the egg is lighting a cigarette and

saying, well i guess that answers that question. [laughter] but she loved the writers and i did too. i loved s.j. perlman and a.j. liebling unreasonably and i loved john cheever, john updike, later, who was more my age and i wanted to be a writer for "the new yorker," so i went off to new york when i was 24 to write a tryout piece for them. i'd been writing for them for years but they didn't know about that. so i went, they were very decent to me. they didn't buy my tryout piece but i sent them a piece a couple of years later and that was one of the great events. if you were a a -- i was an

english major. if you were an english major and a writer, the new yorker was the gold standard. i wanted to write for them. then i moved to the city years later. i decided i didn't want to live there and be poor when i was 24. it just involved too much squalor. ened you could be very poor in minnesota and live with a you could rent a farmhouse when

farms were being consolidated out in minnesota, you could rent a farmhouse, and i did, for $80 a month. and live there in splendor with a vegetable garden and that money in new york would have bought you a couch in a studio apartment sharing it with two other people. there's in comparison between the two. but i moved back there in 1989, 1990, and i got to work at the new yorker -- at "the new yorker" and write talk of the town pieces. i love the city, it's a pedestrian city and there aren't many of them in america. it's a city where everything is out on the street and you walk down the street and all this humanity brushes by you and when you come from out on the frozen tundra, this is a wonderful thing. it may not be wonder ffl you grew up in queens, but it's wonderful if you grew up on the prairie where you sit and look out across corn stubble and soybean fields and you can see for miles and nobody is coming to see you and nobody ever will. and in new york, all this humanity passing you and it's just -- it's just -- it's just

amazing. you know, you walk down the street and here comes somebody on roller skates with no pants. and you glance at them and they say, what are you looking at? it's just one sight after another all of this life. i grew up in an earlier day, you see. before there were malls. and so, when i walked down upper broadway, when i walked down lexington avenue, past shop after shop after shop after shop, that's my childhood fantasy, how a city is supposed to look, one shop after another, and not just chain store and not big box stores but shop, shop, shop, shop, shop. bloomingdale's, shop, shop. >> thank you.

>> i could go on. >> my wife nancy and i lived for three winters in minnesota in the mid 1970's, every morning we would wake up to your morning radio program sponsored by jack's auto repair and human services. what happened to jack's auto repair and human services and what can each of us do to help restore humor and civility to american life? >> it's something we do every day, isn't it? we live in cities that -- we live in cities that militate against this. they are cities in which we move to and fro in little steel boxes. and we work in cubicles. but still, there are ways for us to touch other people. that's all. that's all we can do. we can only deal with the

people that we come in contact with. i'm not trying to organize a campaign, i'm only being descriptive. i think that the world has changed for humor and for comedy and i regret that and i believe that it has in politics.

but i'll leave it to other people to develop that thee thee sis to and come up with a -- come up with a prescription. anonymity is an enemy of civility. i'm sorry, but it is. this is shown so, so clearly on the internet. no solution for it but at least, you know, we can be aware of the world that we live in. all of this formless anger that's drifting around in clouds, i wait for it to pass. thank you so much. jang's auto repair was just one more disgruntled sponsor, that's all. we didn't reach the right audience, i guess. >> hi. i am concerned with the amount of acrimony and partisanship in our legislative branch and i'm wondering if you think perhaps surrounding the buildings by privies and outhouses would help at all. how else do we get back good will? it's scary to me. >> well, smarter people than i have written about this and -- but the point is, is one that

people in politics are not able to make to the voters. and it is the simple point that for all of the trouble of the great recession, high unemployment, this is not that bad. this is the rock bottom truth. there are people who thrive on dramatizing it. many of them on television. many of them highly paid pundits who thrive on creating a sense of chaos and suffering and deprivation. but if you want to see deprivation, go to india.

other countries. go to somalia, if you want to see real trouble. go to the north of africa. you'll find a reality that we don't have in america. and we've come loose from our sense of retail. we need to discover it somehow. i don't know how that's going to happen. but it has to. we have to realize that in this world among our species, we are among the most fortunate in the history of the world. and if we want to know what true suffering is, what abject suffering is, we don't have to look that far. the people who come to this

country illegally are people we have to admire. people who are coming to this country illegally are coming in behalf of their children. they don't have that much hope for themselves. but they have hope for their children. i admire that. there's no sacrifice like the sacrifice of immigrants, be they legal or illegal, not much difference. they gave up their country, they gave up their language, they gave up their jokes, their music, their culture in order to struggle on in an alien country and all in behalf of their -- all in behalf of their children. this is reality and it's around us everywhere in every city in america.

and it's here. we have it. and they want it. [applause] [applause] >> coming up next on c-span, legal experts discuss power. up next, our "q&a" with john burns and public radio host garrison keillored on humor and politics.

on monday, the group americans for tax reform will host a debate among the candidates for chairman of the republican national committee. five candidates have put their names forward to challenge incouple went michael steele. we'll have live coverage on c-span beginning at 1:00 p.m. eastern time. c-span's original documentary on the supreme court has been newly updated. sunday, you'll see the grand public places and those only available to the justices and their staff and you'll hear about how the court works from all the current supreme court justices, including the newest justice, elena kay began. also learn about some of the court's recent developments. the supreme court, home to america's highest court, airing for the first time in high definition, sunday at 6:30 p.m. eastern on c-span. >> next, former solicitor general walter dillinger leads a discussion on presidential

power and whether the president has to follow the law. southern methodist university law school hosted the discussion on november 18 in dallas. other panelists include stanford university law professor kathleen sullivan, former solicitor general kenneth starr and author of the bush administration tore tur members john yu. this is a little less than two hours. >> we'll start with our first panel, executive power, does the president have to obey and follow the law. my panel members, i'll go from my right and your left, i guess, we have kathleen sullivan, chair and partner of quinn emmanuel. next, david cole, professor at georgetown university. walter dellinger, our moderator is seated in the center and he is appellate chair and partner in meltonny and myers.

and john yu is at berkeley law and ken starr, president of baylor university. i know that somewhere in your materials you have the resumes of all these individuals. this is truly an all-star panel. it is a true privilege for me to be able to introduce them. but i could take the entire time our panel has to tell you about everything that all of these individuals have done rather than do that, i'll tell you a little bit about what we are as a group and what the panel is as a group. of our group, we have five law professors, five three that have been deans of law schools, we have four that have been appellate clerks, circuit clerks, three that have been supreme court clerks, we have of oral arguments in front of the combined -- combined in front of the u.s. supreme

court, 70 oral arguments in front of the supreme court and hundreds of arguments before the intermediate court of appeals throughout the country. we have two solicitor generals, two members that have been head and deputy of office of legal counsel for the president. one circuit judge. we have independent counsel and we have members of our panel that have worked with presidents starting with president reagan through clinton, bush one, bush two, we don't have anybody on the obama administration at this point but they probably wouldn't be able to talk about what we want to talk about now if they were presently serving. so we can talk about it and perhaps we have authors, all of them have been -- have written a great many pieces but probably two of particular relevance are, we have john yu who has written most recently

on "crisis in command" and we have david cole who wrote "on the torture members" and -- memos" and he said that john yu co-authored that with him, i'm not sure he did. he was a silent partner as the author. probably last but not least, we have an actual president -- president judge ken starr system of with that all in mind, we will get started on the topic. i will let you know that we will have time at the end for questions and answers and if you notice in the room, we've got a mike to my left and to my right so when walter dellinger indicates it's time for the q and a's, line up at either side and we'll welcome your questions. without further ado, walter, i turn it over to you. [applause]

>> good afternoon in addressing a panel of federal and state judges and those who appear before them as advocates, it may seem strange we're talking about constitutional interpretation not by judges but by the president and his executive branch. we've become so familiar in our legal culture with thinking that interpreting the constitution is the province of judges that it often comes as a surprise to confront the degree to which the president is a constitutional interpreter and decisionmaker. this might not have been the case if the constitutional convention had not made a dramatic change in the nature of the presidency in the final 11 days of that remarkable event that took place in philadelphia between may 17, lasted throughout the summer

until september 25, 1787. the constitution in its next to final draft as the convention took its one recess of the summer, it's next to final draft of august 6 provided that the president was just to be a manager for congress. the president was to be chosen by congress and was remove bibble congress for bad administration or the dwhrect of duty. the congress chose not only the president but the treasurer, the congress had the power to make war, not simply to declare it. the senate had the exclusive authority to enter into treaties and the senate had the power with no participation by the president to appoint all judges and ambassadors.

that was the constitution in its necks to final draft. as they returned september 4 with 11 days to go. yet we know something very dramatic happened at the end. a method of choosing the president which the framers knew would be popular input they assumed electors would be popularly chosen in some fashion, and that they would reflect the wishes of the general public. those who favored direct election of the president by the people but due to practical difficulty felt this was the next best thing, the immediate -- not immediate but one step removed selection by the people that gave the president an independent basis. it taught them the removal standards -- toughened up the removal standards to remove the president, gave the president a role in negotiating treaties

and in nominating judges and nominating ambassadors. all very dramatic. what happened to cause this dramatic change? what happened was, i think over the course of the summer, the national division triumphed in philadelphia and national government was given power over international commerce and a lot of domestic commerce. it was a lot of power, going way beyond anything anyone had imagined, except perhaps madson, sitting aloan in his study in the winter of 1785. going beyond what anybody could have imagined would be proposed by this convention. with that pow ethey realized it needed executive leadership.

that's why the president was created not so much as the manager, as had been foreseen in the early days of the there- there's not even need to stress that in the constitution. by the end, they wanted a strong an independent branch of government. and you have a president that is his own constitutional officer, not an employee, not a staffer. make up the executive and for how long they should serve. there's no need to specify that in the constitution. in that year, whatever congress wants, one person three years, three people, by but by the end they wanted a strong and independent branch of government. that's given us an executive branch where the president is his own constitutional officer and that's what a president can take a position they can make and were obligated to make their own determination about acts of congress. so just to introduce the scope

of our discussion, obviously every president has to interpret the constitution or congress has -- if congress has not acted a at all the president needed to decide to what extent he could engage in surveillance and seek his own counsel on that. a president in the absence of a military code of uniform justice had to make a decision about thousand discipline the troops and what the constitutional requirements would be. but harder questions are those where congress has set the limits of the president's authority. we can assert those are unconstitutional. every modern president has taken the position that the president can decline to obey some laws. and that has been unremarkable in the sense that the supreme court in 1926 in myers vs. the united states thought it unremarkable that the president ignored an act of congress and

discharged a post-master without the con sthovente senate as required by congress and the president declined to defend that law in the supreme court, counsel for the senate came forward to do so. and the supreme court thought it unremarkable that the president had not done. so more recently, there's been a debate about the degree to which the president should show deference to congress even though he ultimately has to make his own decision. and whether, particularly in fighting the war on terror, the president declined to comply with acts of congress that were in fact constitutional while claiming they were unconstitutional. we'll hear debate on that as time goes on. that's the matrix of issues. there's one more recent one, when is the president authorized to tell his attorney general to tell the supreme court that it ought to strike down an act of congress? like, for example, don't ask, don't tell. that the president is complying

with but has said he believes to be unconstitutional. what can you tell the court about your position? what is the duty to defend? it's a big menu of issues about the president's constitutional decisionmaker and therefore we fittingly start with a president, president sfar of baylor. >> thank you, walter, thank you, it's good to see so many friends. let me begin with the text, i'll come to the oath of office, but article 2, section 3, enumerates in brief compass the powers of the president and one of those critical powers is he shall take care that the laws be faithfully executed. the oath of office set forth in article 2, section 1 and here is the oath, i dosomely swear or affirm, i will faithfully execute the office of the president of the united states

and will to the best of my ability preserve prork tect and defend the constitution of the united states. taking those two together as well as the fundamental bedrock concept that ours is a system of law not a -- of person the will of the people as man tested -- manifested in law, what cardoza called the justice that express themselves in law not in philosophy or ideology but what is in fact the law. wilson, as in woodrow wilson, as an academic at princeton, is the first nonlaw school chair wrote that the president is account to believe darwin not to newton. government is modified by its environment, necessitated by its tasks, shaped to its functions by the sheer pressures of life.

when the question is posed, mr. president or bay the law, the intuitive answer of those who looked up the values of the rule of law is, yes, of course. but maybe there are exceptions because i sort of remember reading about rain hamlin con and the lincoln presidency. perhaps at another occasion there's room for debate about lincoln's fidelity to constitutional norms. but the lincoln presidency to a certain extent the presidency of all those presidents called to serve during what turned out to be a time of war raises in my mind the most critical -- critically clear dimension which is intentional, willful disobedience by the president to a clear norm. i know what the law is and i'm simply not going to obey it. it seems to me that a way of looking about that, and you'll probably have a debate with

respect to that more currently but think of lincoln, perhaps think of wilson. think of others who have perhaps, quote, taken the law into their own hands. i think a way of thinking about it is to draw from sort of olsf law. we know through the case law that there are existence circumstances, getting a warrant, having probable cause, benzidine circumstances -- eggs and circumstances -- exigent circumstances. in corporate a very powerful norm of protection of privacy, of human dignity, interest. yet we know through the case laws that there are exigent circumstances to getting a warrant, having probable cause. there's an exigent

circumstances, an exception, perhaps the presidency, the president and his advisors. another is, and i think this is seen in the lincoln presidency and president yu -- and professor yu and others can speak to the history of the presidential obedience to law, but corporate law that management can take actions that may be viewed as ultra vires, perhaps intrude into the bort of directors. that was a jeffersonian idea, one may say it's lincoln's idea as well. another 1r58 a more modern value, is that drawn from the bucket of securities law. disclosure, transparency, ill luol pim -- illumination, the bran dician type of value, this is a disinfectant. a way of thinking about it in the worst situation, willful disobedience of a cognizable norm is democratic accountability. perhaps exigent circumstances, coupled with doctrines of ratification and disclosure transparency help us to understand that and to look back on a lincoln presidency and not come to the conclusion that he was a dictator as some

have said. the second point is where there is, and this is, i think, the sort of insidious question, whether there is an undermine, perhaps knowledgeable, intentional undermining of existing constitutional and legal norms, without a clear, undisputed, called on the docks violation, i think historians might have well -- very well identify president wilson's conduct in world war i, especially with regard to civil liberties very controversially, obviously, infamously is president roosevelt's internment of the japanese in world war ii. i realize other cases upheld that after the fact but decisions that have largely, if not completely, been discredited. which brings me to my third and final point, in the midst of all this, what should be the role of those of us who have

been privileged to serve and our predecessors and successors in the justice department. what i would like to lift up for conversation and reflection is the fact that at its best, the justice department will be the conscience of the presidency. the justice department will be filled with great lawyers who will be holding up yellow cautionary signs. they will be flashing red lights. we saw this, stop signs, and we saw that in connection with the- american community. one of the great heroes of that losing battle was francis biddle, the attorney general. in his memoirs, confirmed by others as well, he fought very valiantly that he did not resign, saying that this cannot be -- this should not be -- in a free society -- the grounds are

not there for this. american community because one of the great heroes of that losing battle was francis biddle, the attorney general, and in his memoirs, but it's confirmed by others, he fought very valiantly but remaining within the administration, he did not re-sign, saying this really cannot be, it should not be in a free society. the grounds are not there for this. it seems to me that that is one arena that to serve the rule of law values that the role of the attorney general himself or herself and then those called upon to serve in the justice department is extremely high in terms of the values of the conscience of the presidency and fidelity to the rule of law. a quick war story, now uncontroversially but when congress time and again came forward with a device called a legislative veto that we, a single house or even single committee, can overrule a legislative veto, this was, by the way a pro-good government reform introduced by the hoover commission on the reorganization of government and ordained by president roosevelt, the government is growing how do we get control of the growing bureaucracy. one arena or device that was suggested was the legislative

veto. then candidate ronald reagan had in the republican flat form and he referred to it in a couple of speeches, was the legislative veto device. but once he took office and advised by the office of legal counsel ted olson, jood vised by the attorney general of the united states, william french smith, bill smith, both of whom i was privilege to serve, the president the united states did a mea culpa and repented of his position, much to the chagrin of the domestic policy folks in the white house who felt this was an important device. why did the president change his vuseview with respect to the legislative veto? because the justice department told him it was unconstitutional. that to me is one of the great rolers in justice department to play, to ensure presidential fidelity to law.

>> you've got some people on this panel who celebrate the president's fidelity to, his oath to uphold the constitution and his decision to subordinate the obligation to take care that the laws be enforced is a superior obligation to the constitutional over statutory law. i think from time to time you've expressed some concern that those in the executive branch have gone too far in asserting the president's authority to do this. how can you defend such an ill-considered view? >> well, i haven't worked in the justice department and i think that to work in the executive branch has no doubt has sered the experience of my very esteemed fellow panel members toward seeing the need for presidential action and maybe it's a perspective one

takes when you're in the moment of crisis. but what i'd like to do is refocus us perhaps to the theme of this conference, the role of the courts and the point i'd like to make is that in a time of emergency, like the one we witnessed over the last decade since the terrible events of 9/11, when you ask the question, does the president need to take emergency steps? does the president need to act without prior, clear authorization by law or treaty to protect the homeland, does the president have to act with zeile and dispatch and to invoke predecessors from jefferson to lincoln to roosevelt as the source of authority, or should the court step in and prevent the president from doing so? i'll argue that the courts have played an important role in eare straining excessive executive exercises of discretion in this period. the other body that might have stepped in is, of course, the congress. i want to talk a little bit

about what the framers intended the role of congress to be, how congress can't play that role today and why it is all the more important that the judiciary, the independent judiciary play a role of restraint on the legislative branch. to go back to the executive branch for a minute, we don't have emergency powers in the constitution. unlike the constitution of most other industrial democracies and new democracy, there's no exception clause, there's no exigent circumstance clause in our constitution. and therefore when the president asked extra-constitutionally because of emergency or national security crisis, he's doing so on his own initiative without a particular constitutional warrant for that. now, of course, the fourth amendment doesn't have an exigent circumstances clause either. but not only is the president doing that without constitutional warrant, he's doing so in the modern era, in most cases with also very extravagant claims of secrecy in his power to do so. the invocation of state secret privileges. we can't even find out what the

reasoning is about why you invoked the exigent circumstances clause. the president will not be self-restrained. this is not a matter of one party or the other party, presidents of both parties and both sides throughout our history as party definitions have changed, presidents always want to maximize the power of the president to protect the country as he sees it. that's why you see members of the clinton administration and obama administration with writing memos about powerful executive authority just as much as members of the reagan, bush and w. bush administration. to go back to francis biddle, ken starr told you that francis biddle counseled against the japanese internment. he lost. he said of f.d.r., i don't think the constitutional difficulty greatly troubled him. i don't think the constitutional difficulty has ever troubled a wartime

president. that's the rest of biddle's memoir. truman was unrepen tant about the steel seizure. the court struck down truman's seizure of the steel mills to avert a stoppage of the production of steel that was necessary going to troops in battle in korea. the supreme court struck down that act saying it exceeded executive authority, it lacked legislative authority and they did so at a time when his approval ratings were hovering around 22%. it may have been perceived the court can stand up to a president that is less powerful. when the court smacked lincoln for suspending the writ of habeas corpus, it did so after the war. the court may only stand up to the president at a time when the president is weak. truman was unrepen tant but he

didn't think the court was right he went to a dinner party at justice black's house soon after the decision, black had written one of the principle opinions invalidated the procedure and it's said the conversation was stiff but at the end of the evening after libations had flowed, apparently truman said to black, well, sir, your law is no good but your bourbon is. i bring these anecdotes to bear just to suggest that if roosevelt was unconstrained an truman was unrepen tant, it will rarely be the case that the president whose action is struck down by the supreme court will think it was the wrong decision at the time. what about the congress? the framers knot withstanding walters' account at je outset of the drat mattick shift toward greater presidential power at the end, it's true they went from a pure agent

manager to a vision of executive leadership and a fully separated set of branches of co-equal status but the single most important principle of the framing was that legislation must constrain discretion that congress must constrain the president. that the president not withstanding that he has the power to take care that the laws be faithfully executed that that is a power of agency to execute laws that have to have a prior and teen se dent course. some issues the framers thought the congress would be in grave restraint -- a grave restraint on the president's power and the concern was maximal about military and foreign affairs we often think that the president needs more freedom in military and foreign affairs because that's where the deals are done

and how can you have a multiparty body that takes time to deliberate, but in fact they wanted him to have less freedom. they wanted to end royal prerogative to maintain standing aims. to the raising or keeping of a standing army within the kingdom in time of peace is not allowed unless it be with the consent of parliament. it's against the law unless it be with the consent of parliament. if you think -- i don't know if your family reads the declaration of independence aloud every july 4, it's a tradition i've tried to instill with limited success, one of the most stirring lines is that he had kept among us in times of peace standing armies without consent of our legislature, he effected to render the military independent of and superior to the civil power.

preconstitutional practice reflected this, that the legislative must constrain the executive even with respect to military and foreign affairs they have continental congress actively debated washington's articles of war, actively debated the term ofse 1779 peace actively debayed the terms of the treaty with spain. nobody thought the congress was incapacitated because it was a multimember body from being actively engaged in reviewing and ratifying or criticizing the president's decisions. all right, so you might say, great, that sounds good. congress will restain the president. but what think framers didn't imagine and had no expectation of is that we would have the party system we have today. and the party system, i think, had has radically undercut the power of the congress to constrain the president. the fidelity to one's party will trump the fidelity to one's branch. congress will act more as two fighting coalitions of partisan

blocs whose loyalty will run to their president or whose electoral concerns in relation to an opposing president will constrain their actions. congress, i think, because of the unanticipated pow over parties, separation of powers not separation of parties, has undercut the ability of congress to constrain the president. i think the behavior of congress in the wake of 9/11 has illustrated the point. congress has not stood up to the president meaningfully in any respect with respect to exercising discretion in the war on terror. it was debated, if you can call it that, the initial u.s. patriot act in a matter of days, an act making substantial changes in the powers of surveillance and other powers over domestic conduct of the war on terror, it eventually ratified after the supreme court struck it down president george w. bush's improvisation of new forms of military tribunals. the court later struck that down too, saying congress had

violated the writ of -- the habeas corpus clause a suspension of the writ clause, suspending the writ of habeas corpus where it was applicable and not providing a substitute. congress has, with respect to tribunal theansd patriot act and its re-authorization has not meaningfully done one thing to try to embody the framers' vision that the executive should be subordinate to lex, that legislation should be superior to discretion. that takes us to the courts. i think one of the most remarkable stories of the last decade in constitutional law and appellate advocacy has been the systematic way in which the courts and in particular republican appointees on courts as the deciding vote, thoss in the a partisan thing, the courts as institutions have constrained the president in a remarkable series of decisions. the decision that the

improvisations in the detention center at guantanamo either exceeded due process, as the hamdi case, or the military tribunals were not authorized by the geneva conventions or any other law. there were a number of judges that thought the authorization for the use of military force, which authorized the war in afghanistan did not extend to homeland. there's the great line in the case where the -- one of the concurring opinions said just because the president is the commander in chief of the military does not make him command for the chief of the economy. you might say because the president is the commander in chief of the military, he's not command for the chief of all military systems by which we gather information. with respect to all of these issues to do with detention and tribunal the supreme court has systematically in a series of narrowly decided decisions said no to assertions of military

power and also to decisions -- congressional power that the court said was beyond the limits in the constitution. it's a remarkable story because there are countries where the courts wouldn't be able to stand up to the executive at all, so it's a remarkable story of judicial independence and it's a remarkable story in that there's obedience to these decrees. the great justice stephens once said, when asked what do judges of other nations admire most about our courts, he said it's the ability to have our decrees obeyed this was not -- chaffs not taken for granted in many systems. the remarkable story is the courts stepped in to play a role that in fact the congress was intended to play but probably can not under the modern system of divided partisan government because congress will always, especially with our frequent elections, will always defer to the president, it's never good

politics, especially near an election to do anything that seems to endanger national security. last point then i'll defer back tour moderator, i don't mean to overstate the case. there have been limits to the ability of the courts to constrain what i think has been an compless of -- an excess of executive zeal and the courts have been powerless to stop expansions of invisible domestic surveillance practices, in large part because of the assertion of a kind of executive privilege called the state secret privilege. that's one in which the court has not gone very far to try to reach the approach that president starr referred to earlier, an approach of disclosure and transparency. you might say that corporate executives are free to engage in business judgments but the disclosure rules for publicly traded corporations force a lot of information out into the public about the bases on which the executive discretionary

decisions have been made. what is missing from the system if we think the executive needs that freedom is the trands parentcy and the courts have not enforced that. that's one place the courts have not gone far enough. i'm eager to hear later from my fellow panelist, i know professor yu has advanced a view of the modern presidency that is different than the framers, so i'm much more traditionalist -- originalist than prfsor yu. >> kathleen takes a position that's come pat wble the -- with professor yu's position, it was ever thus. people have always made these claims. i want to ask, was there an ex-travel grant claim of

executive power that was not co-extensive with what had come before and represented a more radical shift? i think everyone agrees that a president has the authority to disobey some laws passed by congress, real laws. otherwise with respect to some kinds of laws, they would be unconstitutional laws in place forever. if congress said the president may not fire a cabinet officer or indicate -- without the consent of this esenate and the senate complies with that it will never be tested. there's no way a case gets to court. if that's the case, the lame duck congress should say, all of obama's cabinet shall serve for 10-year terms, and anyone would call that

unconstitutional, as would i. i think we too often cite cases like lincoln the suspension of habeas corpus is provided for by the constitution, it shat not be suspended unless in cases of rebellion or invasion the public safety may require it. this was such a case. the issue was, it doesn't say who shall suspend it. >> it's in article 1. >> i understand. but it is still silent on the question. but what is clear about lincoln's assertion of power is that he did it publicly. there was no secret violation of federal law. and he was ready and willing for congress to revise it and acknowledged the power of congress, indeed, congress cut back on the procedures for suspending habeas corpus and lincoln unhesitatingly complied with congressional limitation on the pow sore i think it's

porn to distinguish, as i turn this over to john and then to david between inherent power in the sense that i think the president has a lot of, the power to act when the only claim against his acting is that it would be ultra vires, there's no law of on the subject at all. presidents can engage in a lot of things. and a different means of inherent power, the authority to limit congress once congress has placed a limitation. so by some accounts, including mine, the refusal to comply with the foreign intelligence surveillance act, for example, and acts of congress restricting torture were a violation done in secret without justification. .t

actually appear in court. i hope never to appear in cour [laughter] when i told my wife would be speaking before 300 some judges and appellate lawyers, i said, you'd have to pay me to step before judges. then i realize that that is what all of these people have to do, too. i appreciate the invitation to speak. but i just want to make the point that i'm not a pellet argue or -- not an appellate arguer.

the first point i would like to make is that, i have learned in my life not to disagree with kathleen sullivan. kathleen is bright. i am happy to testify that if she comes up for confirmation. i am the admirer of the living cotitution. in that respect, at i that this happened with the presidency is that the framers established the principles of the sick of power -- of executive power. the constitution created what looked like on paper as a weaker presidency. as america gets involved in the world and participates and wars and the powers would grow, too. the one thing is that, if kathleen were right, then why should we have a presidency?

why not just let congress create the agency that carries out its functions. the reason why we have an executive branch, a creative innovation at the time, was of the there would be always a branch of the government in existence that could react swiftly and quickly to unforeseen circumstances. congress and legislatures cannot anticipate the future. so you need to have some branch of the government that can respond to immediate circumstance. the example they give is war. alexander hamilton said in federalist no. 70 that the one best example of where you need one person in office at the time that something happens to act immediately is what he called the management of war. that was an example that they gave. you needed a president who could act independently of congress. this is supposed to be the way things were all the time.

the feminist thought that congress would be the dominant branch. most of it -- the framers thought that congress would be the dominant branch and the president would be for emergencies and cases of war. to this point, the presidency is also an independent and accorded branch. because of that, the course and -- the courts and congress cannot have the right to tell the president how to interpret the constitution any more than the president has the right to tell any of the other branches how to interpret the constitution. walter and can are flipping through their constitutions as . people think i have a secret code? attached to mine -- a secret

codex attached to mine. they have to interpr the constitution in a course of deciding cases between parties. under that same logic, t other two branches have to interpret the constitution when there do their jobs. when congres passes a law, hopefully, they think about the constitutionality of the law first and do not enact and caution to national laws. when the president enforces the law, he had she has to figure out what that law means and he or she should not enforce unconstitutional laws either. the president is charged with faithfully executing the law, just like in marbury. what if the constitution and a statue tell you to do two different things?

what does the president do? the president has to follow the constitution first and not follow the unconstitutional. -- and constitutional law -- the unconstitutional law presidents, from the very beginning, have follow this logic. thomas jefferson, when he came into oice, it was a crime to criticize the government. john adams loved this law, obviously. when he came to all this, the release from jail everyone prosecuted under that law. the courts has upheld the law

and they think it is constitutional. he said, i think the law is unconstutional and i am allowed to pursue that view when i perform my constitutional functions. i think the president has every right to refuse to carry out unconstitutional criminal legislation when he decides or she decides who to prosecute or not. >> that we just interject what is the fundamental difference between the president declining to enforce the law, which places constraints on others, and violatg a federal criminal statute that makes with the president will do a crime? they are quite different situations. >> i think it is a great question. a second example is lincoln. he actually -- unlike jefferson who was passive and refuse to

enforce unconstitutional laws, lincoln took actions where he actively did things which did not just maile congressional statues, but did things that argued with supreme court isss of the day. he also refused to release a confederate spy in direct contradiction by order of the chief juste of the united states at the beginning of the war. think about the emancipation proclamation. the president of united states freed all the slaves in the south as part of his commander- in-chief power. we are all lawyers. does anybody remember what the governing supreme court ruling was on slavery? dread ott is still along of the land in 1863. hes still the chief justice of the united states in 1863.

in 1863, lincoln? inconsistently with supreme court precedent when he -- lincoln acted inconsistently with supreme court precedent when he did that. he wasnly acting in his powers as commander-in-chief during the war. fdr, in the years leading up to world war ii, congress passed a series of neutrality acts. i am only picking presidents that most people think our great presidents. . am not trend to convince you [laughter] e neutrality acts before world war made it legal for the u.s. to asst any of the parties in the fighting. these are famous cases to justice department people that president roosevelt started sending airplanes, destroyers to britain. he was asked are you not

directly violating the neutrality act? he would say, those destroyers are so old, we just do not need them anymore. they are obsolete. he called them over-aged. and then he ordered the military, the navy to start deploying on boys to attack german submarines. those were in violation of neutrality acts. and all of these cases, i am glad that result, lincoln, jefferson, did what they did -- i think they did it the best interest of the country. they did not good to grasp power. it was better for the country that they did what they did. and i wish they had done it earlier in all the circumstances. the last point, the bush to administration and the policies of the last years and kathleen raised issues of the responsibility of the court -- again, i never disagree with kathen sullivan.

i think i am the only person has worked for congress. i worked as an aide to senator hatch 15 years ago now. i think congress has ample constitutional authority to stop the president from doing anything he really wants to because it has the power of the purse. and i agree with her that you have seen that congress does not want to do it. if we wanted to change in administration policy, it was not that hard to do it when i was in congress. it is an issue of political will, not constitutional power. all of these policies tt the bush administration pursued, surveillance, interrogation, military commissions, habeas corpus detention -- to me, this is exactly why the presidency was created. we had an attack on 9/11 that was unforeseen and unlike any war we have been in before. the president immediately reacts and response. he is trying to figure out how to adapt our system to this new kind of war where we are not

fighting a nation state, but a state list terrorist organization. -- a stateless terrorist organization. congress can address any of those things and they do not. the courts stepped in and struck a policy down. the last thing i would say is that i do not think what we have seen is out of line with historical example when compared to other presidents during wartime. i think the bush said administration, bush tried to work with congress, but they gave him the authority to act first and with initiatives. that does give congress and the courts there shot with issues immediately after the fac if you see a situation where people think the bush administration went too far or now the obama administration is going too far in unilateral authority, they are, but the congress and the courts have

ample authority to stop them if they want. i think the consequences for the country has been better when those bridges have worked with the president to make sure we have the most aggressive policies we can within the constitution to fight the kind of threats we have before us now thank you very much. >> david cole has challenged executive power in cases that he has argued before the courts. he is likely to have a less sanguine view of the extreme indifference to the lawhat congress exhibited in recent administration. >> i can tell you that i have learned not to disagree with john yoo [laughter] i am sure it was not lost on you that 90% of those accomplishments in that collective introduction word

judge, general, dean, president star. 10% or the other members of the panel. i don't know why i am here. [laughter] that was just brilliant. i think everybody on this panel agrees that the president, particularly in moments of crisis, often have overreached, taken matters into their own hands, have exercised autrities that might well have been questionable. the difference is and how they do it.

walter raised that point. there is a difference between doing something publicly and doing something secretly and the difference between declining to enforce a law and acting in direct violation of that law. what you see when we look at the last 10 years there is a tie between success in office in broad visions of executive power and have counterexamples. one of them is president bush. the other is his immediate predecessor, president nixon. many people will remember his interview with david frost where he asked him, why do you think you have the power to engage in

-- and the president said, in my view, if the president says it, it is not illegal. president bush and wh the assistance of john resurrected that principle with one caveat. it is not that if the president do it is not illegal. if the vice president doesn't, then -- [laughter] but if the president does it and he is doing it in his commander- in-chief authority, it is not illegal. in that respect, i think the bush administration's assertions of executive power to disregard a law is unprecedented.

they asserted not just an inherentower to take initiative in an emergency situation, as president lincoln did, and then go to congress and say, look, here's what i am ing and i am doing it because you're not in session and the troops were coming up from baltimore. i had to take action so i descen-- so i suspended habeas corpus. but if you think it was the wrong thing to do, tell me it was wrong. but that is not what happens. he said that, in secret, they wrote opinions that said that the president can blatantly violate laws that are directly restrictive of infractions. they did in two concepts, both on torture -- they concluded

that torture is something that i do not think anyone else ever thought torture was limited to. but then they said, even if what is being done is clearly falls within the terms of the torture statute, that statute cannot be applied to the president. why? because the president of commander-in-chief cannot be checked by either branch of government when it comes to engaging the enemy. he decides to engage and we nd torture the enemy that is his prerogative. the president decided to crush the testicles of a child, that would be within his constitutional authority. >> that is not true. >> he told the office of professional responsibility. if the president ordered the extermination of a village, that

would be his executive authority. that ithe kind of assertion of power that we saw. a real failure to live up to what judge dean, a general, president start suggested is the failure of lawyers in the justice department to say no. as far as wiretapping, we have the statutes and the books that maket a crime to engage in wiretapping without a warrant. it expressly contemplates a limited exception for wartime of 15 days. then you have to come to congress and get further authority. the president took the position that i can engage in this wiretapping. some argument was made to the supreme court when it came to review of the detention of enemy combatants.

the government argued in the first case that it would raise serious constitutional questions if the court were to interpret the habeas statute to extend to guantanamo because then you'd have congress and the courts checking the president with respect to engaging the enemy in wartime. they cannot check the president when it comes to engagement of the enemy in wartime. all nine justices of the supreme court suggested that position. in the second case, they took the position that the court uld not assess the factual validity of the -- justice o'connor said thawe certainly can and we must durinunder the constitution under the prior administration,

there was an assertion of executive authority that goes far beyond the kinds of examples that we have seen from history. i think the lesson of history, unlike the lesson of history with respect to lincoln nor fdr, the lesson of history will be that these were grave mistakes, that theseere failures of vision, and that this is precisely why it is critical to have a system of separation of powers with checks and balances that does not permit one man to engage in uncheckable executive power. >> john, i will let you respond. >> thankou i have three quick points. first, i actually do not think that the president has the power to act outside the constitution.

i think that the commander-in- chief authority is a broad power, but only triggered during wartime. the problem nixon had is that he tried to claim very broad authority to combat an internal security threat that was nonexistent. that is the big difference between nixon and other presidents. and with president bush, it is undeable that we were attacked on 9/11 by a foreign enemy. i think president bush, like president nixon, made of some kind of crycrisis to expand his prerogative. we were fighting wars in two places and the war on terrorism and he used his constitutional authorities to do things more so than the bush and administration, like using predator drones to assassinate members of the enemy. secondly, it cannot be the case

that congress has the full authority to tell the president to do whatever it wants. . is that consistent with the constitution? there has to be some presidential power that congress is not able to take away. can congress pass laws ordering the troops -- the case i am giving you the one that triggered the impeachment crisis of andrew johnson. they said the president could not direct the generals in the on not -- in the occupied south. if congress did not like it, they try to impeach him. they almost removed him from office by one vote. things like fisa and the torture statute, those laws were not

written with this kind of war in mind. yes, the president could have gotten a new law writed. you have to reveal a lot of information public that could destroy the very advantages that you have been this type of covert conflict. what the president tried to do is update those laws and tried to tell congress what they were doing. obviously that did not work very well. there was an effort to try to deal with the secret war that we have. and the last thing, i think also i am fully happy to be judged on the consequences. it's easy to say now that one might think that history will judge bush badly or it could vote -- could judge obama badly. it will take 20-30 years to tell. i do not think that bush overreacted to the kind of challenge that we had.

i do not think the constitution is going to give you that answer. if you want to make it based on whether it was worth it, then we will have to wait and see. my particular view is that it was. i think the american -- the president stopped terrorist attacks from occurring to this country. we will continue that success. if you want to judge it on those grounds. if you want to judge it on those grounds. >> in your opening remarks, you said congress has the authority to control the president. if you have situation like this, the president has gone back to the 1950's and assume that they have the authority to have the ability to use the intelligence

like thi when more and force that was not the object. the u.s. supreme court rejected that proposition and said that you are not exempted from the fourth amendment because you are labeling this feign intelligence surveillance. congress passed the foreign intelligence surveillance law and the purpose was to authorize foreign intelligence surveillance. when you put the machinery in the hands of the executive branch, congress thought, it is important to make sure that this is not misused. a special court of judges will meet in a secure place and and they will be asked authorize and memorialize the basis on

which this is conducted. that is why you don't end up tapping al gore or john kerry. it might be that they approved 100% of the applications. this was a great restraint. you had to go before three judges and make this submission. congress said that if this does not work, you can have 72 hours. they needed two weeks instead of 72 hours and he did not have to comply with this. ultimately, you have to comply when it is not impractical to do so. what happened is that the president did not comply and did not tell anybody. he secretly engaged in wiretapping and it does this violate the procedures set up

by congress? it is only because of a leak any of us know this. how is this pposed to work when a president declines to act with the law? >> the president has constitutional authority over battlefield intelligence. how far does that power go? when does it become law enforcement? on the other hand, the 9/11 attacks caused a huge problem for that system. walterescribe how the system works. you need to have a target in line. is is written very much in the law enforcement mauled, you have to have reasonable reasons to think that someone is a terrorist or enemy before you

can get a secret wiretap. that is not the problem. we did not have an list of the suspected members of al qaeda but we have a list of the people who work in the soviet embassy. if he wanted to look at all of the e-mail that went from the u.s. t afghanistan, and you cannot do it under the authority. the president had to make a oice. he said we will stick with the system and our ability to get intelligence will be limited or we will try to intercept all of the milk coming from afghanistan to the u.s. without a specific taet. the administration has to do that in secret. if you announce to the world that you need a new law that we need a new law to be able to intercept e-mail from pakistan,

that would have stopped using the mouse system within 24 hours. what they did was to try to have oversight and corp. but in secret. the administration did brief the members of congress about this program and asked if there was an objection. if any of those leaders said that you're not going to do this, they would have stopped. last thing they wanted was to have a conflict between the president and congress right after we had been attacked. there is no obvious way to conduct oversight and public when you're conducting a war were a lot of the actions are covert but that does not mean that they cannot do it and informal ways. they could have cut off funding for this program and the nsa

would have stopped the next day. as far as i can tell, congress essentially it authorized the program and continue to to find it in the same robust nature that it had been going on under bush. >> there is the endless war, the indeterminacy of the war into a time where we are really grappling for a legal and constitutional scaffolding. what you have sent suggests that there is a wide sense of agreement that there needs to be some form of consultation with the article onbranch. their knees to be some kind of engagement. we don't want an imbalanced government. madison warned about the dangers of the article one branch or the

legislative branch and we need to build the instructors and protecting the presidency through the veto power and so forth. the problem may have been over these past 10 years one of a perception that endures the those of us who are not privy to all that john and those involved in the litigation are the appearance of the executive unilateralism. that has been the principal complaint laid at the feet of the administration and one might say where was congress? there simply might be institutional limitations by virtue of the partisan nature in the emergence of political parties and so forth. working on capitol hill during the days of vietnam, i heard j.

william fulbright. i heard the president's own party stand against vietnam and i saw eugene mccarthy make the decision to challenge the president. this is really all about the war. obviously, this will come down to a position and a situation of leadership and this sense of how important is this issue and how do we disagree? one of the top 10 stories is that the ngress did not disagree openly, overtly enough to prevent what is now seen in retrospect as executive unilateralism. >> i agree completely with ken stark and john's earlier comments that it is a matter of political will and not

constitutional to trade on what -- i would like to go back to the commander in chief for a moment and disagree a bit with my friend john on the scope of that clause. in trying to root the argument in the original constitution rather than the living constitution,ou don't want to over read this clause. this is often overstated as the simplification of the power. he is an agent of the congress. the original framers concern was harmony and making sure that they d not run roughshod over the civilian populace and constrain the army. we should not look at this as

the broader source of these claims and the conception of the battlefield that encompasses not just time and an indefinite war into the future but also the indeterminate space. if you want to have a lifting constitutional conception of the constitutional commander in chief, if they are entities that are governed by the laws of war, that is one thing. if you use this to justify surveillance and homeland because you say that that is in affect the battlefie, then we lose all distinction between the realm of war oone hnd and t rommel law-enforcement on th other. the court was able to stand up to the claims of executive power in a series of cases was the claims of the need for urgen

seem overstated. there was a decision that said that it was not permissible to have a military tribunal for a man from ohio who was suspected of access criminality during the civil war. the civilian courts were open and there was no need for martial law in ohio and therefore you could have alwed the law-enforcement system to proceed. there is a bit of that assumption that the court may have had here. you can't tell us that you need to improvise modes of detention and military commissions that are not authorized by law when it has been for years, five years, seven years. you can no longer say that these red and necessary response to an

emergency. the civilian courts were (a dumb -- the civilian courts were open. the civilian courts can't take care of a lot of problems such as we have seen in the recent episodes of suspected terrorist activities and have been tried in civilian courts. the most articulate spokespeople in question in the military tribunal system or not civil libertarian lawyers, it was the men and women of the jag corp. of the military brass whose fidelity to the geneva system -- with the sense that they have to follow procedures and military system. it is no accident that justin's seasons justice stevens was the only living member of the cou

who have served and served with great distinction and the navy in world war ii. i don't think that the commander in chief klaus can do all the work that john attributed to it. >> there is a tremendous article by david baron and -- who were both with and the office of legal counsel for the bush administration and ey were looking at the history of the commander in chief cause and concluding that the history quite contrary to what john has suggested has shown tt congress has in very great detail regulated and restricted to the way in which the president conduct wars. they say where you can fight, where you cannot bomb, what tactics you can use, what

tactics you can use. the cannot torture, for example. they have been saying things along those lines for our entire history. i wanted to talk about just how one story of the problems with secrecy and this kind of checking function, whether this comes from the courts or congress or from the public'. that can be undermined. this pose states jo leaving the office. the office of legal counsel should be held responsible when the memo that john wrote authorizing water boarding and the like became public, as soon as it became public, it was unacceptable and it was

rescinded immediately and they started working on something else. they substituted something for it in 2004, and public memo. at the same time, they wrote a cret memo that said that you can continue to do all of the ings that we told you could do in their rescinded memo that john wrote. then it came out that they had interpreted the prohibition on cruel treatment not to apply at all when you interrogate foreign suspects abroad. maybe you can argue whether this is torture or not but you cannot argue that it is not cruel, but slapping people in the face, keeping them awake for days on end. you cannot argue that that is not cel. what did they say in secret?

they said it does not apply to foreigners. there is a human rights portion and a treaty that we helped to sign and now it is not whatwe follow. john mccain led the charge and almost unanimously congress said, that prohibition applies to every human being wherever they are held, this is a human rights treaty, not a citizens protection act. so, what does the office of legal counsel do? they wrote another memo, now have to apply this cruel and unusual treatment provision,ut none of these are cruel and inhumane and not even combination. if you keep someone up for 11 hours, slammed them against the

wall, that is not cruel or inhumane. we cannot guarantee that a court would agree with us on us but don't worry, it won't go to court. then, a year later, the supreme court said that the geneva conventions apply to how we treat al qaeda detainees. there is an even lower andard or a higher standard depending on how you look at it, on how you treat detainees in wartime. they wrote another memo in 2007, again, and sacred, and now none of these tactics are even in human or any man or a violation of the way in which our country is obligated to treat our own people. they were saying in secret that it would be perfectly legal for another country to engage in a war with us and to take our

servicemen and subject them to all of those tactics, perfectly legal. when president bush was asked that question, president bush would not answer that question because he knew he could not answer that qution. of course, it would be unacceptable if it was done to our people. this should be unacceptable as it is done to any human being. we were making it more clear that human beings cannot treat humans -- cannot be treated this way. the office of legal counsel continued to say that they could continue to do what you're doing. >> i don't see a failure and the checks and balanc in the president and congress. congress was fully aware of the interrogation methods that were

used. they might not be aware of the legal justification is that the executive branch might have but congress has their own ability to make their own judgments and they can enforce this through the decisions on funding at the creating of military intelligence agencies. ty have to be fully briefed before this can do any kind of covert action. congress did restrict the military's ability to conduct interrogations'. they did not pass a law applying the same provisions to the cia. congress is playing an interesting game where they want to take some responsility for some areas but they want to leave the intelligence agencies a free hand. if you loo at the opinion polls, 65% approval for aggressive interrotion methods of al qaeda leaders.

that is why congress is doing what they're doing and it does not get into the nitty gritty grade. they can pass a code but they have not been dow. >> what troubles me about those directives is that were fully briefed and those 8 members of the congress say, we were not told, yes, you were. whatever the truth of that, it shows a failure when you ve a public long we have taken a positionn something like that in a demracy in where it is supposed to be based upon the consent of the government, not

on 8 members of congress. this seems to fundamentally undercut. i am not as sanguine as others about the fact that congress was told or 8 members were told. if we cannot be specific, we are authorizing the president to engage in unspecified methods of data retrieval for the duration of whatever. we have been talking about how we stay out of court by saying we will not comply with a lot. what you don't know, what are you. we will let you know when we need you.

the president is a constitutional actor before the courts. how does the president's role and those of his officers differed fromrivate counsel or others? that may put a particular example of a lock on the fire, one which never came to fruition but which i think was the single hardest question at the office of legal counsel in 1995 when congress passed sometime after midnight a floor amendment to the emergency authorization act that provided that every member of the military who was hiv- positive would have to be discharged within 60 days of military service.

the bill passed and congss adjourned. the president was going to sign an emergency defense appropriation act that was given as far as all lawyers were concerne this act was a problem? --. not only didiv support groups oppose this, it was all so harmful to the military. the white house wanted the justice department and it is unconstitutional. you don't have to apply -- comply. the president can sign this knowing it would not be a problem. i had to go to the white house

and we cannot say it was unconstitutional and in the sense that the court would agree with this. the queson was wther the president could ignore the law if he believed that this was part of the constitution and he would not comply. this would lead to a judicial review of the matter as it did in u.s. vs. myers by his refusing to comply and firing the postmaster. he got a judicial test. given the deference that the supreme court had given to the political branches to axe of congress and the military, we thought that the court would

veryikely uphold this. uphold mail on the selective service, for example, in deferee to the miliry. we cannot say that the court was likely to stke it down and the president had to comply. the question became what we do win and lost a suit that was brought by a member that was discharge, how could we argue that this was constitutional given the fact that the president and his senior officers said it was harmful. on the government might not make an imposition on your liberty unless it advances some governmental purpose it cannot impose needless constraints on your liberty and the purpose being advanced here was a more efficient military. the military disagreed with that. that is what congress thought.

the chairman of the joint chiefs believed that we are going to lose critical people who are a symptomatic. also the critical skills of the leading cartographer would be lost. it also felt that there was systems in place for people that have all kinds of symptoms for illnesses and a regular protocol but he said that we have sent these kids all over the world and have been taken from their farms and cities and this is leaving your wound behind. we do not leave our wounded behind. a war that the president knows actually harms milary preparedness can hardly be defended as unnecessary imposition on libey. but when announced was that the president would comply with this

and i'm not sure that was the right decision. the first discharge would be processed. we knew it would be sent. then we announced that the justice department while nominally representing the justice of defense in court, would tell the court that we believe that this is unconstitutional and we would not make a half-hearted defense and we would inform congress that they might wish to secure the representation of congress who would argue that this was constitutional. in his belief, this does not advance a legitimate government goal. what the court would have done would have been fascinating. who did they deferred to when the president dry and upon the advice of military leaders says

that he thinks it is harmful, who would to the court before -- prefer to? the coat is not of the deference and an area that is somehow this responsibility. congress repealed the statute rather than retaining counsel to do it. there are other examples. there were instances when the council declined to defend axe of congress. one of them we successfully fended.

this has been vigorously defending. what should the president do now that he has been more forthright about his position. what should they do if the health care litigation comes to the four when they are and the power. in some ways it works better for the system of the president gives his honest belief. why shouldn't the court appoint

-- we can hear the court -- have the court here from someone appointed for ever might want to step forward and argue wholeheartedly. there is a mechanism for someone -- that is the issue. gov. schwarzenegger and attorney general brown did not appeal the decision in california striking down the proposition that once again said that opposite sex

marriage only in california. i think that they were obligated to appeal or they could have told the court that they believe it was to be unconstitutional. if they are sotrong that it is unconstitutional, they should have ordered the state authorities not to comply with ts and it applies to everyone. if you are going to fan , account in --

his administration is defending. >> the principal value of overarching consideration is, do we keep the process open for the separation of powers to work? so if you have a system in place where -- and there is such a system and the president decides i am not going to appeal it, he is obligated to notify the senate and the house. they have the power to direct their counsel to appeal the case on behalf of congress and to argue the case. sometimes they do, sometimes they did not. i have seen cases like that where they are not going to appeal that. they notified the senate and house and they did not care either. as long as you have some value

in place that gives the final say in no way that is difficult to check, that is what i find disturbing about the secrecy of this process. as long as you make a claim publicly, so that the system of separation of powers can allow it to continue i do see it as problematic for the administration so we disagree. i've seen cases where the supreme court struck down one statute, every member us of congress stayed overnight before the fourth of july weekend to say that this is outrageous, the bush administration? >> i was on the opposite side of that. >> that is right. you defended it, but in a very

tepid way. [laughter] jettied just because i was unsuccessful. >> but during the debate, the congressional debate over whether to pass it, the president said in his vote person say it would be unconstitutional. so they had to pass it because the president had said it was unconstitutional. it was not a hard case for us to argue >> i think that makes david's point rather uniquely. he testified for both houses of congress that even if congress did all the things