Transcript

353:

The Audacity of Government
Transcript

Originally aired 03.28.2008

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Prologue.

Ira Glass

You probably missed this. It wasn't big news this week. Congressman Charles Schumer of New York held a press conference on Monday with the head of the New York City police. Two auxiliary policemen had been shot and killed in the line of duty a year ago while confronting a gunman named David Garvin. Federal law says that the families of public safety officers, even volunteers like these auxiliary police, should get death benefits when something like that happens.

But the Justice Department turned them down on a technicality, and on Monday Schumer was mad.

Charles Schumer

The officers, they were in uniform, they had shields. They had gone through four months of the NYPD's basic training course. They acted to protect their fellow New Yorkers that night as trained, experienced, NYPD volunteers. What more could the Justice Department be asking for? Yet they disagree. They don't qualify as officers of the peace through a faulty, narrow interpretation of the law that says because they didn't have the authority to arrest Mr. Garvin, they don't qualify.

Ira Glass

Auxiliary officers have the power to detain a suspect, but not to arrest him.

Charles Schumer

It's as if the bureaucrats in Washington were looking for a way to get out of this responsibility. And what we have to do is persuade the Justice Department to stop playing these tawdry and really low games.

Ira Glass

Just a couple months ago, the family of volunteer fireman Glenn Winuk finally got the Justice Department to pay his death benefit. He died on September 11, at the World Trade Center, doing rescue work at the south tower. Again, the department had fought the benefit on a technicality, and only paid after five years of fighting, when the federal courts ordered them to.

There is a style to this administration, what Yale Law professor Jack Balkin calls a "lawyering" style, where they fight as hard as they can every battle on all fronts, unrelentingly to get their way.

Jack Balkin

It's been an emphasis on taking extremely hard line positions on executive power and pushing them, really, as far as you can. Sometimes taking positions that would be seen to be unreasonable in the hopes that, in fact, either you'll get your way, because people will give in, or else, if they push back, they'll push back to a place where you actually get a lot of what you wanted in the first place.

Ira Glass

For example, he says, take the way the administration has tried to get around the ban on torture. This is an area where the law had been thought to be completely clear. There are lots of statutes, there are treaties, that all made torture illegal in the United States. But the administration had several strategies to get around these.

Jack Balkin

One strategy was simply to define the word torture, or cruel, inhuman, degrading treatment, in such a narrow way that they didn't capture a lot of what ordinary citizens would think of as being torture. So what it is is just very narrow construction, unreasonable construction.

Ira Glass

But the most interesting argument, the most innovative argument, the Bush administration made was this.

Jack Balkin

That if push came to shove, and somebody were to claim that the president was in violation of the anti-torture statute, and the War Crimes Act, and all these other things, well these laws are simply unconstitutional as applied to the president when the president acts as commander-in-chief. Now that claim, the last claim, which was the president can't be bound by Congress when he acts in his capacity as commander-in-chief was, in fact, the most radical of all of the claims. It was close to the idea of the president as dictator. Since the president, when he acts in his capacity as commander-in-chief, can basically rule by decree. And he can't be bound by laws to the contrary.

Ira Glass

There are really two things about this that are new. First is the sheer inventiveness with which the president's men go about asserting the president's powers. They're using tactics and arguments that other presidents have not used, or used rarely. Second, and more important, the president is claiming that he has all kinds of powers the previous presidents have not claimed.

The president's men say that everything the executive branch does-- and, picture, that is a lot of things. These are the federal agencies that oversee the environment, and immigration, and education and energy policy. And especially when it comes to the job of commander-in-chief of the armed forces, they say nobody, no law, even a law passed by Congress and signed by the president himself, no law can tell the president what to do or how to do it. They say it's unconstitutional.

This is such a radically new idea that even some conservatives have trouble with it. When the president was ignoring a law called the FISA law-- the FISA law says that if the president wants to spy on Americans' phone calls and emails, he can do that, but first he has to get permission from a special secret court to do it. When the president declared that he could just ignore that law, that law that is specifically targeted at his behavior, George Will said that this was a monarchical doctrine that was quote "refuted by the plain text of the Constitution." Grover Norquist said quote "There is no excuse for violating the law." Paul Weyrich wondered, what if a president he didn't like decided he could ignore any law. He worried, what would a president Hillary do with these same powers?

Today we're going to talk about this lawyering style, this unrelenting style that the administration has. It's a style that kind of makes sense, when you're dealing with issues of national security and keeping the country safe-- with big stuff. But this style has become a habit. It seems to be applied to almost anything, even death benefits for firemen and police.

Well from WBEZ Chicago, it's This American Life, distributed by Public Radio International, I'm Ira Glass. Our show today, The Audacity of Government. We're going to talk about this style the administration has. This unrelenting style. We have two stories for you. Not about big things, not about big government policies. These are tiny examples. Two of the thousands of little things that the federal government does that most of us never, ever hear about. Things so small that it is hard to understand why the administration is putting up such a fight about them in the first place. We look for answers. Stay with us.

Act One. The Prez Vs. The Commish.

Ira Glass

Act one, The Commish versus the Prez. OK, let's stop and think for a second, and try to imagine the least controversial thing our government does when it comes to foreign policy. And I'm sure that there's some job out there stamping custom forms at the airports, or something like that, that is very, very, very, very uncontroversial. But, certainly, right up alongside that vital but boring task is the task of keeping crap off the border with Canada.

That's right. For 10 feet on either side of our Canadian border, in what is called the 20 foot swath, or the border vista, nobody is supposed to build any buildings, or plant any trees, or erect any fences or do anything that would block the view. It's impossible to patrol the border if we can't actually see it and monitor it with security cameras and move freely along it. And so 10 feet on either side of the border is always kept clear, for the security of both countries.

Since the year 1908, this important job has been done by a special international commission run by two guys-- one from Canada, one from the US. They make the official map of the border, they put up little markers indicating where the border is. And occasionally, just a couple times a year, they have to tell somebody not to build 10 feet from the border.

Shirley Leu

So you're looking right into Canada is what you're doing right now. And you can just barely see the mountains today, just barely. But they really are, they're magnificent. And that's what we wanted. We wanted something that was peaceful and quiet.

Ira Glass

72-year-old retiree Shirley Leu, and her husband Herbert, moved here to Blaine, Washington. To a piece of land right on the border, in 2003. It is not entirely peaceful and quiet. They're just up the road from the third busiest border crossing between the United States and Canada. There are helicopters and border patrol and sensors in the ground and from her backyard you can see a watch tower. People are illegally crossing all the time.

The border itself is a ditch at the back end of her land. And the Leus accidentally started an international incident, one that may lead to the dismantling of a hundred year old treaty, and a redefinition of the president's powers. And they did it by building a wall. A wall near the edge of their property. A wall. That lots of people seem to hate. A wall--

Shirley Leu

That everybody takes pictures of when they stop their cars, and shake their heads.

[HORN HONKING]

Shirley Leu

See what I mean? They beep horns. They moon us. They threw garbage at our wall.

Ira Glass

The wall is four feet high, maybe 85 feet long and it's solid, concrete with rebar inside. Designed to keep Shirley's land from eroding into the ditch at the border. And, she said in the past, to hold the show dogs that she raises. Pomeranians, and poodles.

Shirley Leu

It's inside our property line. And when we bought the land there was nothing on our deed, or nothing on any of the old records, saying that there was a 20 foot swath there.

Ira Glass

No restrictions on where you could put anything.

Shirley Leu

No restrictions at all, on any of our papers. And when my contractor went down to the city and county of Blaine, they didn't have any restrictions on it.

Ira Glass

You basically showed them, here's what we're going to build. You showed them plans, drawing of the--

Shirley Leu

We took down a plan.

Ira Glass

And the drawing of the lot.

Shirley Leu

Hm-mmm.

Ira Glass

And they looked at it, they said fine.

Shirley Leu

Yep. They said it was perfectly OK, go ahead and build it.

Ira Glass

So how did you hear that your wall had become the matter of an international dispute?

Shirley Leu

A guy came to the door, and knocked on the door, and handed me a pamphlet, and said I broke the treaty.

Ira Glass

What do you do, do you invite him in?

Shirley Leu

No, I just stood there with my mouth wide open and looked at him. And I said, I don't understand, I broke a treaty? What treaty?

Dennis Schornack

Surprisingly, it's relatively rare. We maybe get one or two instances per year. But most people that live along the boundary know about the boundary. They know about the restriction on building permanent obstructions within 10 feet of the boundary line.

Ira Glass

This is Dennis Schornack, he was the US Representative to the International Boundary Commission at the time. And if all of this sounds like a lot of fuss over a three foot encroachment to our 5,500 mile border with Canada, you have to understand that the two boundary commissioners see themselves as custodians of a 100 year old trust. To keep the border clear in a fair, evenhanded way, with no favoritism to either side.

With that in mind, they send out crews every summer to chop down trees. They have bulldozed buildings. A couple years ago, Commissioner Schornack and his Canadian counterpart had to visit 40 Canadian homeowners, and give them the news that they gave the Leus. Which is why didn't cut the Leus any slack. They want to treat everybody-- Canadians and Americans-- exactly the same.

Dennis Schornack

There was one exception granted back in the 70s, and it was always referred to by staff and in documents as quote "The mistake." But there are no other exceptions that I'm aware of all along this 5,525 mile boundary.

Ira Glass

But then, on April 6, 2007, Shirley Leu and her husband did something that no American citizen had ever done in 100 years. They sued the Boundaries Commission saying that they have the right to build this wall on their own land.

Shirley Leu

It's my property, I paid for it. I pay taxes on it. It belongs to me. It doesn't belong to the United States. It doesn't belong to Canada. It belongs to me. I paid for it.

Ira Glass

And, at that point, this stopped being a story about some retirees and the wall they built, and it became something much, much bigger. The Pacific Legal Foundation, a conservative watchdog group for property rights issues, and the oldest one, and one of the best known in the country, took the Leus' case for free. The Boundary commissioners were very worried about what kind of precedent this lawsuit might set.

So they went to the State Department for advice. But officials there said, we can't actually help you, because you are not part of the United States government. You are an international body. Go hire your own lawyer. So they hooked up with a fancy private attorney who handles these kinds of big international cases. A guy named Dr. Elliot Feldman. When Canadian lumber barons, or Australian wheat gluten magnates need to hire some guy to deal with their tariffs, or their import quota problems, they call Elliot. He's that guy.

And Elliot Feldman did a little research. And as best as he could tell, the commissioner did seem to have a pretty solid case.

Elliot Feldman

He wasn't doing anything different from previous commissioners. He was probably right in doing what he was doing.

Ira Glass

The international treaty that gave him that power had been ratified by the Senate and, according to the Constitution, any treaty that goes through that process becomes the supreme law of the United States. All very straightforward. But then, the US government did a very strange about-face. Remember, the State Department had originally suggested that the Commission hire its own lawyer. But then, commissioner Schornack found himself on the phone with a senior official from the Department of Justice named Ron Tempas, who seemed to think otherwise.

Dennis Schornack

He was rather brittle and rather harsh, and declared that I had to fire Dr. Feldman and turn total control of the case over to the Department of Justice. It was very threatening, quite frankly. And he said that I, personally, risked exposure under criminal laws if I continued to retain and pay Dr. Feldman. He refused to discuss the law or their approach to the case, other than to note that with respect to the Pacific Legal Fund, he said, "We know them, and they know us. I'm sure we can work something out."

Ira Glass

That actually sounded alarming to the commissioner. Like Mr. Tempas might actually agree with the Leus, and the Pacific Legal Foundation.

Dennis Schornack

And about a week later I was summoned to his office, along with my deputy commissioner. And at my insistence I took along Dr. Feldman. And we were met there, at the Justice Department, by, literally, a phalanx of nine attorneys. And Mr. Tempas opened the meeting by declaring quote "There's no question that the IBC is an agency of the United States government."

Ira Glass

This may sound like nothing to you and me, but to Commissioner Schornack, this was pretty much the worst thing that Tempas could have said. The IBC, the International Boundary Commission, Mr. Schornack's commission, had managed the border for 100 years independently, without interference, as an international organization.

Elliot Feldman

Here they were saying, you may think it's an international organization, but we're not going to treat it as an international organization. We're going to treat it as subject to the authority of the president.

Ira Glass

Again, that's Elliot Feldman, the commissioner's lawyer. He says this was basically a power grab. The president's men at the Justice Department included some strong supporters of private property rights. They'd given speeches, they'd litigated on behalf of those rights in the past. And at this meeting they indicated a certain sympathy for the Leus' property rights claims.

Ron Tempas said, according to the commissioner, don't you agree they have a Fifth Amendment right to their private property? A lawyer from the State Department said he agreed with the Leus' point of view. Don't you agree, he asked the commissioner. The commissioner did not. He and his Canadian counterpart wanted the wall to come down.

And Elliot Feldman said the whole point of the 1908 treaty which created the commission was to keep politicians from doing exactly what the Justice Department lawyers were doing right then. Interfering with what happens on the border.

Dennis Schornack

The treaties came about because there'd been over 100 years of armed conflict along our border with Canada. Americans don't remember any of that, perhaps. But Teddy Roosevelt, at the beginning of the century, undertook a series of treaties to try to pacify all kinds of questions. And this treaty, the 1908 treaty, and the boundary waters treaty of 1909, was all part of that general movement to say, these kinds of things we don't have wars about anymore. We don't want any more violence about this. We're going to settle it. And the way to settle it is the depoliticize it, turn it over to technicians. Let them sort out the border.

So the treaty has words in it, like, "expert" and "surveyor" and "geographer"-- it's, if you like, I like to think of it is as one of the first technocratic treaties. Where you cede power to technocrats, and you say to them, scientifically, you figure out exactly where the border is. You mark it and maintain it. We won't interfere.

The two countries have to do everything jointly. The two commissioners are required to act by consensus only. And they're not to be interfered with. And that way we don't have a border conflict.

Ira Glass

That was the old way of viewing the commission. And for 100 years, it worked. The border's been peaceful. But in this meeting of the Justice Department, the Assistant Attorney General, Ron Tempas, outlined a new way of seeing it. Commissioner Schornack should see himself as serving the president, and doing what the president wants. The commissioner was, after all, appointed to this job by President Bush.

The Justice Department lawyers told him that sometimes the interest of the commission would be subordinate to other US interests. And, of course, most important of all, he was told that the commission itself is not independent. It is not one Canadian and one American commissioner, deciding everything together. It is just another agency of the US government, taking its orders from the president.

Here's Dennis Schornack.

Dennis Schornack

I was literally floored by that because for-- well, this is an old organization. We have archives full of memoranda and documents. Including some from the Department of Justice itself, clearly stating that we were an independent treaty organization.

Ira Glass

Well, if they thought that you were part of the United States, what did they think that your co-commissioner, who was Canadian-- what did they make of his existence? I mean he existed as your co-partner in running the thing.

Dennis Schornack

Well, I think you'd have to ask them that. I don't know. I can't speak for them.

Ira Glass

Now, in this meeting did they tell you you better watch out or this could cost you your jobs? Were they as direct as that?

Dennis Schornack

Yeah. They were. It was rather blunt at times. They couched it in terms like, "we'll take this to a higher authority" but it was very obvious to me what was at stake.

Elliot Feldman

That, to me, was very plainly a threat to his job. And in the course of the meeting, they had also made reference to-- they would see to it that we, the lawyers, would never be paid. And so we were being threatened, you'll never be paid. He was being threatened, you'll lose your job. And those were what I think they believed to be the principal levers to get what they wanted.

Ira Glass

Justice Department officials, including Ron Tempas, declined the chance to be interviewed for this story. A spokesman sent this email. "We believe that we have a duty not to discuss deliberations that are protected by attorney-client privilege. In addition, the district court judge has cautioned the parties regarding their comments to the press." But in court documents and transcripts from the Leus' lawsuit, the Justice Department explains their prospective.

There's actually an interesting moment in the oral arguments were Assistant Attorney General Brian Kipnis tells judge Marsha Pechman how hard it was for the State Department, and various parts of the justice Department and Homeland Security to even figure out where they stood in the issues in this case. This is the first lawsuit ever against the commission by an American. And the relevant 1908 and 1925 treaties doen't say much about how the commissioners should be doing their jobs, and about what kind of entity the commission is.

Assistant Attorney General Brian Kipnis says to the judge at one point, "What I was trying to convey to you is the fact that this isn't about politics. This isn't about ideology. This is about trying to get it right. This is about dealing with a lawsuit which involves issues that are, to be generous, murky."

Judge Pechman of the Ninth Circuit is skeptical. "Mr. Kipnis," she says, "You say this isn't about politics, but there's a lot in this case the kind of looks like politics. It smells like politics. It talks like politics. What about this case isn't about politics? It certainly isn't about a Pomeranian dog run."

And then Brian Kipnis says something that gets to the heart of the government's case. He says, "If there's one thing that presents great problems for us, it would be where somebody who is a US commissioner, who represents the US in international relations, takes positions in lawsuits that are not consistent with the Department of Justice. To have a US commissioner that is not under our control, taking positions we do not agree with. That is the government's view."

Then Dennis Schornack's lawyer says, that's actually the point of this treaty. To cut the president and his men out of the equation.

Elliot Feldman

And this case is the very case that the treaties were written to prevent. That is, here's a president saying to a commissioner, I don't want you to do something you think you're supposed to do on the border. And the commissioner is saying, Mr. President, I have to do it. I'm sworn to the treaty. This is my obligation. And the president says, if you don't do what I'm telling you to do at the border, I'll fire you.

And the treaties were designed to say, he can't do that because there's to be no political interference.

Ira Glass

Feldman says this action on the 1908 treaty is typical of the way this particular administration deals with treaties. "We are routinely lawless," he says. There's big stuff that's been in the news, like the president unilaterally declaring that treaties, like the Geneva Convention, don't apply to certain kinds of prisoners. A reinterpretation that presidents haven't done before this way.

But there's also small stuff that most of us haven't heard of. During one of our interviews, something popped up on Feldman's computer screen about a World Trade Organization case he's been following.

Elliot Feldman

And the news story that popped up on my screen was that the United States has refused to comply with the WTO ruling. And the United States does this routinely. It routinely refuses to comply with WTO rulings, and complains that the WTO isn't being fair to the United States. The United States is a very sore loser. And when it loses, it simply doesn't do what it's supposed to do.

Ira Glass

And how can we do that? I am not sure I understand. If it's a treaty that we've signed, isn't it exactly the same as US law? Aren't all the people deciding not to do it, aren't they basically breaking the law?

Elliot Feldman

Yeah. But there are no enforcement mechanisms. The UN can't enforce anything, neither can the WTO.

Ira Glass

Boston Globe reporter Charlie Savage has followed the way the Bush administration has dealt with international treaties.

Charlie Savage

The administration has taken a very aggressive view that the president is not bound by treaties that have been ratified by Congress, by the Senate, across a range of issues. Or that the president, alternatively, has the power to reinterpret for himself what those treaties mean.

Ira Glass

He says the change really started on December 13, 2001, when President Bush, on his own, pulled the US out of the the anti-ballistic missile treaty. Before this it hadn't been clear if a president could do that.

Charlie Savage

This is just a huge defense treaty. He doesn't go to Congress, he doesn't go to the Senate to see if they want to de-ratify it. He just does it on his own. And that locks down, now, into precedent, the idea that a president, in fact, has that authority. Because Congress went home. They didn't challenge him on it. There was people at the time, saying, well, wait a minute. Is that really how it's supposed to work? What if some future president goes crazy and wants to pull us out of the United Nations? Or pull us out of NATO?

Because of the Bush precedent now, a President Obama or President Clinton could simply declare, we're out of NAFTA, without going to Congress. That would be an example where conservatives would probably not be very happy about the fact that this policy decision had been made without any even consultation of Congress.

Ira Glass

For two weeks after their meeting at the Justice Department, Dennis Schornack and Elliot Feldman tried to get higher level officials to step in and take their side in this dispute. But no luck. Finally, Dennis Schornack got a call from a White House official in the personnel office.

Dennis Schornack

And after some brief pleasantries, he proceeded to explain, once again, to me the nature of unitary government. He said, we all work for the president and we serve at his pleasure. And that I had until 3 o'clock that day to fire Dr. Feldman, and turn everything over to the Justice Department or else that pleasure would run out.

He went on to ask me if I was a Republican. He questioned my patriotism. And so at 3 o'clock, I called him back and said that the commission would not fire Dr. Feldman and that what he was asking me to do was, in my view, to breach my oath to the treaty, and I just wouldn't do that.

Ira Glass

What'd he say?

Dennis Schornack

"Fine." And he hung up.

Ira Glass

Now, do you agree that you serve at the pleasure of the president?

Dennis Schornack

Well, no. Not as boundary commissioner. I believe I serve under the instrument of the treaty. And the treaty is very clear that a president can only fill vacancies. So I believe, and my lawyer advises me, I'm still commissioner. But I'm here in East Lansing, and not in Washington DC.

Ira Glass

And then, if I understand right, the White House appointed somebody else to be the commissioner.

Dennis Schornack

They did. There was a gentleman by the name of David Bernhardt. He came in one day and took that day to, I guess, go through all my email or something, and also to send a letter to Dr. Feldman asking him to do no more work on the case. And it's my understanding, because I still talk with my staff in Washington, that he essentially hasn't been in the office since.

Ira Glass

Schornack, and his lawyer Feldman, both continue to say that they have not been fired. Boundary commissioner is one of those positions, like International Trade commissioner and Head of the Securities and Exchange Commission, where the president can appoint you, but he cannot fire you.

Which meant that what followed were several months of very odd legal wrangling, with two sets of lawyers-- the Justice Department and Elliot Feldman's team-- each claiming to represent the Boundary Commission. And two commissioners, each claiming he was the real commissioner. At one point the Leus' attorneys from the Pacific Legal Foundation filed a motion pleading with the court quote, "Before this case proceeds any further, this mess needs to be sorted out. The Leus are entitled to know which of the two defense teams represents the defendants."

Canada, by the way, stayed out of this. Saying it was up to the US to figure out. Finally, in October, Judge Pechman, in the US District Court in the Ninth Circuit, ruled that the president did, in fact, have the power to fire Commissioner Schornack. Judge Pechman didn't disagree with the arguments that Schornack's lawyer made about the treaty, and how it intended to set up a Boundary Commission that would act independently, insulated from the president's power. But she said there are a whole other set of rules and precedents regarding who the president can fire that took priority in this case.

Dennis Schornack is appealing the judge's decision.

Ira Glass

Now, you were a supporter of President Bush.

Dennis Schornack

I was, yes.

Ira Glass

Did you campaign for him?

Dennis Schornack

I did. Worked quite hard on both of his campaigns.

Ira Glass

So what do you make of this treatment?

Dennis Schornack

Well, you know, I'm extraordinarily disappointed. I mean, I think this is just a terrible thing. And it's one reason I wrote that I'm talking to you, because I believe the president and his men here must be stopped. I'm shocked and stunned at this seeming desire to push this very narrow property rights agenda over all of those other considerations.

Ira Glass

If Dennis Schornack loses his very last appeal, than the Leus will finally get their day in court with somebody. And it will be the Justice Department representing the Commission. If the Justice Department decides to come to a settlement, if they decide that it is OK for the Leus to keep their wall, Dennis Schornack fears that it will be impossible for the Commission to stop anybody else from building along the border.

Dennis Schornack

The commission would be eviscerated. It would no longer have any authority to do its job. The United States not only is pushing the commission around on this case, but they've fallen behind in funding for the commission as well. It's supposed to be a 50/50 deal according to the treaty. But for the last three years, 2/3 of the resources have come from Canada.

Ira Glass

And what would the rationale for that be? It seems like this commission is doing the least controversial thing possible, which is maintaining the border with a country that we're entirely at peace at.

Dennis Schornack

Uh-huh. It astounds me. I don't understand it.

Ira Glass

Recently, he says, the Department of Homeland Security came to the commission, and asked it to clear trees and brush for 10 miles of the border in New York State, so it could test its new electronic fence. Now if the commission were actually a US government agency doing that job, they would have to pay homeowners for the foliage they were tearing down under the Takings Clause of the Constitution. The federal government can't do stuff like that without paying you back.

But because the commission is an international agency, and not the US government, the Boundaries Commission doesn't pay anybody back. Which leads to this interesting thought, this whole lawsuit could lead to a very counter-intuitive and undesirable result for the government. If the administration chooses to let the Leus have their wall, if they prevail in their argument that the Boundary Commission is actually an agency of the United States government, then the short term result is going to be that it'll be a lot harder, and a lot more expensive, to keep the US, Canadian border clear and secure.

Coming up. What could be harsher than playing hardball with volunteer firemen who died on 9/11? OK, maybe nothing. But something that's just as harsh. In a minute, from Chicago Public Radio and Public Radio International, when our program continues.

[MUSIC - "OH, CANADA"]

Act Two. This American Wife.

Ira Glass

It's This American Life, I'm Ira Glass. Each week on the show we choose a theme, bring you a variety of different kinds of stories on that theme. Today's show: The Audacity of Government. Stories of the Bush administration's lawyering, unrelenting style, where they're inventing new ways to be unrelenting, even on tiny matters that most of us have never even heard of. We've arrived at Act two of our show. Act two, This American Wife. We have this story, from Jack Hitt.

Jack Hitt

Who doesn't love a good love story? Think about that moment when you first saw that girl, or that guy over there, and then, like the big bang, they expanded into everything. Even when these stories are about people we don't know, you feel a thrill and then a little jealousy, that it's not you. Like this one, about Raquel and Derek.

Raquel is from Brazil, and came to Florida to see America and learn to be a nurse. And then she met Derek one night on the way home from a party at a gas station. They talked, but it was getting late and she had to work the next day. Well, let Raquel tell it.

Raquel

And then we exchanged telephone numbers. I went home. He said, what time are you going to be back tomorrow from work? And I said, I'll be home around 5 o'clock. And 5 o'clock, the telephones rings. And I was like, wow, how are you doing? I didn't expect you to call me exactly at 5:00. 5:03 or something. I just walked in the house. He didn't give any chance to breathe.

Jack Hitt

A year later, Raquel and Derek got married. And for her to stay in the US as his wife, she had to become a legal resident. So here's how this is supposed to work: you apply for a green card. And then, sometime in the first two years, you have to go through a personal interview to prove the marriage is real. Soon enough, Raquel and Derek had some pretty solid proof.

Raquel

We were actually on our, supposedly, honeymoon on New Orleans. And I went to the cafe, the Cafe Du Monde, on the corner right there. And had some beignets, with cafe latte. And then I just had some upset stomach right after that. So that clicked in my head that, hmm, something must be. And I told him and he said, oh, baby, you got to get the test or something. So when we get back, I got the test and it was positive.

And we're like, oh my gosh. Oh my gosh. I can't believe it, I'm pregnant.

Jack Hitt

This personal interview they were waiting for is conducted by the immigration service, known as the United States Citizenship and Immigration Services, or USCIS. You know this interview, it's practically part of American legend. It's where some immigration officer grills a couple with intimate questions about the color of their wallpaper, or whether the husband sleeps in pajamas. Sometimes getting the interview scheduled can take a few months, sometimes dozens of months. It just depends on when USCIS gets around to it.

And typically it's no big deal. Nothing interferes with the process going forward, with one exception. One devastating exception.

18 months into their marriage, Raquel woke up to find Derek, who'd been complaining of insomnia in the living room.

Raquel

When I looked at him on the couch, I could tell that something, something, was going on. Something was wrong. Then I got closer, and, like, baby? And call him. I just could see that he's not breathing. And I jumped and I did everything I could, CPR, whatever. And then I jumped on the phone and get the phone and just started desperately saying, I need somebody here to help me, please.

It was tough. Ugh. The worst day in my life.

Jack Hitt

Derek had suffered from sleep apnea, and that night he died of heart failure, leaving Raquel a widow. She moved in with her in-laws. And, after a few weeks, worked up enough energy to go tell immigration what had happened. She wanted to find out how best to finish up the application for residency, so she could get on with the business of raising their son, Ian.

Raquel

I've made appointment, went there. I gave Derek's death certificate. And they said, oh, your case is going to be denied. You're going to have to go back to Brazil. You going to have a letter from us, because you guys were not two years married.

And I said, but what? Wait a minute. I have my son here with me. He's American citizen. They say, yes ma'am, but you can go, he can stay. Just like that.

Jack Hitt

Wow. I mean was there-- how did you react to that?

Raquel

I just said, uh huh. That doesn't make any sense. Of course, my son's going to go wherever I go.

Jack Hitt

So at this point, did you just leave the immigration office?

Raquel

I left. Exactly. I think I'm just going to go out of that door right then. And then I actually got the letter that our case was denied.

Jack Hitt

So you got that piece of paper.

Raquel

Right.

Brent Renison

And then what did you do?

Raquel

We start thinking, contact lawyers, to see what we could do. Because right there and then, I'm illegal.

Brent Renison

There is no rule saying automatic denial. There is no law passed by Congress mandating automatic denial. They just made the law up.

Jack Hitt

That's Brent Renison, the lawyer who finally took Raquel's case. In his regular job, his paying job, he's a corporate lawyer. Mostly for Nike and some other companies. And he specializes in employee immigration issues. He's become, possibly, our nation's leading expert in cases like Raquel's, entirely by accident.

Six years ago, a woman found him in the yellow pages. It was an odd little case of signed, sealed, but not delivered. A woman had filed all her papers to become a resident, and very close to the two year mark, her husband died of cancer. So the government turned her down.

Brent Renison

Really, I thought that would be the one strange case on this that I'd ever have. And then Carla Freeman came into my office and it happened all over again.

Carla had that same kind of situation. Bob Freeman was heading to work-- actually on his day off-- and a Pepsi truck went right across the center lane, into his lane, and collided with his car head on, killing him instantly. And that's when I met her. I went with her to her immigration interview. And we went into the officer's office there and he had her stand and swear to tell the truth.

And we sat down and started talking about the application. He said, "There's somebody here to see you." And we turned and looked and in the doorway was an officer. He showed her his badge and he said, "Mrs. Freeman I'd like to first offer my condolences on your loss, but I have to ask you to come with me." And she was just terrified. And they took her away.

Jack Hitt

They shackled her in chains and put her in a holding cell. Renison ran down the street to the federal court and managed to get an emergency order to get her out. He couldn't believe it had gotten this far, because it seemed so obvious that an absurd unfairness lie at the heart of these cases. And here it is: if immigration had scheduled that personal interview before Carla's husband died, Carla would have become a resident. But because there was a delay, and he died before the bureaucracy got around to it, she is subject to what they call "automatic denial." It all depends on the timing of the bureaucracy. Not the facts of the case, or the reality of the marriage.

And when Renison did some research into this rule, he found something that seemed impossible. This particular rule had long ago been debunked and discarded by none other than the agency's own Board of Immigration Appeals.

Brent Renison

Yeah, comes from a decision in 1970 which dealt with a woman who had married an American citizen who was in the Navy. And while out at sea, on duty, he died. And they denied her, saying she was stripped of the status of a spouse.

Jack Hitt

And for years after that, if your spouse died, you'd be denied residency. Because they were no longer your spouse.

Brent Renison

That was in 1970. Then, in 1985, there was a another case, Matter of Sano, that was litigated on the very same issue. And the same court said, whoa, we made a mistake. We had no jurisdiction to rule in that type of case. We're going to modify that accordingly, and we think that decision was inappropriate. I mean, the words inappropriate were used, and they're modifying the decision.

Jack Hitt

So understand what happened here. In 1985 the immigration court held that it had no business deciding who was a spouse and who wasn't a spouse. In legal terms, no jurisdiction to decide this matter. But instead of changing the rule, the bureaucracy came up with an interpretation that let them keep doing what they were doing all along.

Number one, they said they still had the power to say, you're not a spouse, based on the 1970 case.

Brent Renison

And, number two, you have no right to appeal.

Jack Hitt

How do they draw the no right to appeal from the second case.

Brent Renison

Because there's no jurisdiction from the court.

Jack Hitt

Wow. Wow, that's amazing.

Brent Renison

Yeah, it is amazing.

Jack Hitt

So they draw these two completely at odds conclusions from these two cases?

Brent Renison

Right, exactly.

Jack Hitt

So they can strip you of your status, and you can't review it.

Brent Renison

Exactly. I'll read to you a portion of the letter that is very much the standard letter here for denial. This particular letter says, "The evidence of record indicates that your husband passed away on June 2, 2005. You are no longer the spouse of a citizen, and therefore not entitled to the status as immediate relative. There is no appeal to this decision."

And that's right from one of the denials. And they all have a little different flavor. Some say I'm sorry for your loss, or please accept our condolences for your loss. But, you know, you're denied and you have no appeal. It's very Kafka-esque.

Jack Hitt

Renison became obsessed with these cases. And as word got out about him, more and more widows and widowers showed up at his door. When I talked to him in, he had 134 clients. In 2006, he wound up in the Ninth Circuit Court of Appeals with Carla Freeman, the client he saw put in shackles. And the court ruled expansively in his favor, saying, a spouse is a spouse.

Here's precisely what they said. Quote, "Congress clearly intended an alien widow, whose citizen spouse had filed the necessary forms, to be and to remain an immediate relative, a spouse, even if the citizen spouse dies within two years of the marriage," end quote. Case closed, right? Exactly. With one exception. One devastating exception.

Brent Renison

After she won her court case, they decided to find some other reason to deny her. And this is directly quoted from their denial. "Since your late husband is deceased, denial of your admission will not have any legally cognizable effect on him." And the word legally cognizable, that's a legal term, but I think it just means that he's not going to know what's going on with your case, and so why should we care?

Jack Hitt

In other words, even though she won her case, they found other grounds to throw her out, and fought this Ninth Circuit ruling in every possible way. They didn't obey it outside the Ninth Circuit. In fact, in three other circuits around the country, widows have won similar arguments and every case is being appealed by the Immigration Service.

Inside the Ninth Circuit itself, they've dragged their feet. And finally, when forced to reply to a class action lawsuit brought by Renison, the government issued a memo two days before the deadline that said they'd abide by the Freeman ruling, but only in the Ninth Circuit, and only if the spouse met some tough conditions.

Among them, spouses have to prove they need to stay in the United States for humanitarian reasons, because of dangerous conditions in their home countries, and they have nowhere else to go. And if some widow managed somehow to jump through all these hoops, the government can do to her what they did to Carla Freeman. To expel her from the country, they used a terrorism law. The Real ID Act of 2005 contains a clause that boosts Immigration's power. Not only can they reject any immigrant at their discretion, for any reason they want, now that don't have to tell anyone what that reason is.

Brent Renison

And they said those decisions that are made, as long as they're made on discretionary reasons, shall be unreviewable in any court.

Jack Hitt

I'm sorry, isn't this like 1984 or something? Not to push it--

Brent Renison

I'd say absurd.

Jack Hitt

But it's like, you have this special decision making power, that will be applied only with these special standards. Oh, by the way, no one can know what the standards are.

Brent Renison

Well, you know, why I laugh about this discretionary review, so to speak, and the lack of any appeal on it, it's really nervous laughter because these are people's lives that they're destroying.

Jack Hitt

The most puzzling part of this whole story is this, what problem is the government trying to solve? What threat is worth these hardball tactics? It's not like there's a wave of widows storming our shores. These aren't fake marriages, these aren't suspected terrorists. These cases are rare. It's not like people are intentionally getting married, having kids, filing their paperwork, and then having their spouses accidentally die as a scheme to get a green card.

Jack Hitt

How much bureaucratic time would it take to just process those 134 cases, as compared to fighting this in all the circuit courts around the country?

Brent Renison

Well, these people paid all the filing fees, and so there's no additional burden.

Jack Hitt

So, I mean, they could hire a couple of clerks, basically, to finish off the paperwork here and be done with this in a couple of weeks practically.

Brent Renison

No, no, they don't have to hire any clerks. They do this is as a regular business. They adjudicate 30,000 applications for benefits a day.

Jack Hitt

Wow. And this is 134. And they're going to the mat for the right to automatically deny these 134 widows.

Brent Renison

I'd say, yeah, they're going to the mat.

Jack Hitt

Why?

Brent Renison

I've been on the mat for a while with them.

Jack Hitt

Why, do you think? Why is this such a point of contention for them?

Brent Renison

Well, I don't know. I honestly don't know.

Answering Service

You've reached the office of communications for US Citizenship and Immigration Services. If you're a member of the media, please press one now.

[TELEPHONE BEEP]

[TELEPHONE RINGING]

Chris Ratigan

Office of Communications.

Jack Hitt

Chris Ratigan.

Chris Ratigan

This is Chris.

Jack Hitt

Hi, Chris, this is Jack Hitt from This American Life.

Chris Ratigan

Hey, Jack.

Jack Hitt

Hi. I'm recording this for broadcast, if that's OK.

Chris Ratigan

Not with my permission.

Jack Hitt

Oh, can we get your permission?

Chris Ratigan

No.

Jack Hitt

That's as much as Immigration would tell me, and it took weeks to hear that. I had called Immigration Service, and the Department of Homeland Security, and sent emails, getting either passed on, or sent to a voicemail. The main thing I wanted to ask was, why? Chris Ratigan wouldn't tell me why. It's possible the Immigration service sees this as just another part of the crackdown on immigrants that began after September 11, trying to send anybody it can home.

But, in this case, it seems like it's more about an agency that's doggedly determined to win. Just look at the constant barrage of legal talent, and massive expenditures of tax money by the Immigration service in order to toss out these widows.

Renison now has a class action suit on behalf of the 134 spouses, and he's adding more spouses every week.

Jack Hitt

Brent, isn't it likely that you'll just win this case and then they'll just invoke discretionary power in every case after that? And throw everybody out anyway?

Brent Renison

I really hope not.

Jack Hitt

Don't you think that's a very possibility, since it happened in the Ninth Circuit?

Brent Renison

Yes. I try not to think about that too much, because it's really overwhelming. The power that's been given to the executive branch. And I'd like to take some of that back, but it's not my job to do that. It's Congress and it's the courts. I mean, that's how our system works. If Congress and the courts can't keep the executive branch in check, then we're really hurting in this country.

Jack Hitt

What's your greatest fear in all this? What's your nightmare outcome?

Brent Renison

I know what it is, but--

Jack Hitt

Are you afraid to say it because you think it might come true?

Brent Renison

Oh. Well, I don't know if I want to-- I don't know if I, well-- I think my worst fear is that I'll die before this is changed.

Jack Hitt

How old are you, Brent?

Brent Renison

I'm 39.

Jack Hitt

Do you think you might be litigating this for the rest of your life, is that what you're saying?

Brent Renison

I will if they don't change this policy.

Jack Hitt

If Renison sounds overwhelmed, it's not because he's got 134 clients, but because he's also fighting for the old fashioned justice system. The one where a good argument before a neutral judge could prevail. Renison can sound over the top when he talks about this stuff, invoking the founding fathers, quoting America's original documents, and saying words like tyranny. But what kind of language are you supposed to use when you reread the Declaration of Independence, and realize it's just a laundry list of complaints about a unitary executive granting too much power to petty bureaucrats.

What are you supposed to say when you read a sentence like this one? "He has erected a multitude of new offices, and sent hither swarms of officers to harass our people." That old-timey language suddenly doesn't sound so old anymore.

Ira Glass

Jack Hitt lives in New Haven.

[MUSIC - "GOODBYE" BY THE POSTMARKS]

Act Three. 44.

Ira Glass

Act three, 44. A big part of the unrelenting style of this president is connected to a particular view of the Presidency, that there are inherent executive powers embedded in the Constitution, between the lines, that the Congress has no right to oversee or regulate anything the president or the executive branch does.

So, for example, you may have heard President Bush issuing hundreds and hundreds of signing statements. This is when Congress sends him a law to sign that has things in it that he doesn't think that they should be able to force him to do. Rather than go back to Congress and fight for a different bill, he simply signs the bill, and then issues a signing statement listing all the parts of the bill that he intends to ignore.

Earlier in the show we heard from a reporter, Charlie Savage, who won the Pulitzer Prize for reporting on these issues for the Boston Globe. He's also written a history of all the ways that the president has claimed powers that other presidents haven't claimed. A book called Takeover, it's just about come out in paperback. The quotes from George Will and the other conservatives that I read to you from the beginning of the show actually come from his book.

We were wondering what is going to happen next January, to this presidential style. This unrelenting style. When the 44th president is sworn in.

And Charlie Savage has interviewed the current candidates about where they stand on these questions of presidential power that we've been talking about.

Charlie Savage

McCain, Clinton and Obama all had reservations about some of the things that the Bush administration has done. Some of the legal claims they've made. McCain, Clinton and Obama all seem to suggest that they would take a more restrained view of executive power when it came to the question of whether a president had to obey treaties that might restrict what he or she could do as commander-in-chief, and laws involving surveillance and interrogation.

In marked contrast, I should say to, for example, the now defunct candidate Mitt Romney who embraced everything the Bush administration had done. And had he become the republican nominee, I think we would have seen a much starker contrast between whoever the eventual Democrat is and the Republican. McCain, more restrained.

On the other hand, there were some differences. Sometimes in surprising ways. For example, John McCain has said that he, if elected president, will never issue a signing statement. That he will only sign a bill or veto it. Period. And both Barack Obama and Hillary Clinton, while criticizing the Bush administration's rather aggressive use of signing statements, nevertheless say that they will keep using signing statements to reserve a right to bypass provisions of law that they say contradict the Constitution. Just less aggressively than Bush has done.

Ira Glass

The three candidates, where do they stand on the power to bypass laws in the way that the Bush administration has done. For example, the FISA law, which was signed to force the president to authorize any kind of wiretaps with a secret court before he did the wiretaps.

Charlie Savage

I asked all three of them whether they thought the president had inherent power, under the Constitution, to conduct surveillance for national security purposes without judicial warrants. Even if a federal statute said a judicial warrant was necessary. And all three of them said that they did not think a president had that power. John McCain said, I don't think the president has the right to disobey any law.

Now the problem with these questions is that there's still a lot of unanswered questions embedded in an answer like, I don't think the president has the right to disobey any law. The Bush administration might say that superficially too, but what they contend is that the statute that restricts the president's actions is not a law at all, because it's unconstitutional insofar as it restricts the president's constitutional powers. And, therefore, is just a bunch of words on a page, but it's not law.

Ira Glass

What did the candidates say about the power to disobey or ignore treaties that the US has already signed?

Charlie Savage

McCain and Obama and Clinton all indicated that they took a mainstream understanding that a ratified treaty was binding on the executive. And the question, of course, will be how does that carry over once they're in office? Once they're not being judged by voters, but are instead being forced to govern in difficult circumstances.

One of the things that's interesting about this as well is that Senator McCain's campaign legal advisers now are headed up by Ted Olson, who was a key player in the Bush administration's legal team. He was the Solicitor General. Ted Olson has been part of a movement that has adopted a much broader view of a president's power. And so it's one thing for a president to say, as a general matter, I think these things are binding.

But a lot of the lifting here happens several layers lower in the Justice Department's Office of Legal Counsel, in the White House Counsel's office, in day-to-day matters and legal memos that are complicated, and that may never come to the president's attention. And so who the president hires, I think, will also have enormous implications for whether these trends continue, or are stabilized, or even are rolled back.

Ira Glass

Are there other questions that you asked the candidates?

Charlie Savage

One thing that was interesting is I asked them whether they believed that the Constitution allows a president to imprison a US citizen without trial or charges. And what's interesting about that question is that the Supreme Court, in the case of Yaser Hamdi, and the Fourth Circuit Court of Appeals in the case of Jose Padilla, have said yes, you can be held perpetually.

And so when I asked the candidates whether they thought that the Constitution allowed that kind of perpetual, executive detention, McCain pointed to that precedent. And Obama and Clinton said, no, they didn't think the Constitution allowed that. Which is interesting because now we have courts that have said, yes, it does allow that.

Ira Glass

There have been 20 presidential debates on the Democratic side. And fewer on the Republican side, but still, a lot. It's been a year of campaigning. Do you believe you've seen much discussion of these issues at all?

Charlie Savage

There's been virtually no discussion of these constitutional issues. It's something that everyone should be paying attention to. And the changes over the last seven or eight years have been so dramatic that what the next president does with the legacy they will inherit from the Bush administration will be enormously important. If the next president keeps exercising these powers, they will become further embedded in our system, and that will just be how our democracy works going forward.

Ira Glass

Is it your sense that one of the reasons why this is not become a more active issue in the presidential debate is because most people simply don't understand the kinds of powers the president has been claiming for himself?

Charlie Savage

I think that's right. I think that most people who don't pay attention to this stuff on a day-to-day basis, it's a little bit abstract.

Ira Glass

In a way, it's a very abstract. But in a way, I have to say, it's the most basic thing in the world. It's does the president think he's above the law?

Charlie Savage

It is. It is and it isn't, because, of course, the Bush administration's legal theories is all about what is the law? They say, of course, the president's not above the law. But in their view, the law is not a statute that Congress has passed and that a president had signed. But the law is this unwritten, sweeping, inherent, undefined, constitutional powers of the president as commander-in-chief to do whatever he or she thinks is necessary in any given moment to protect national security at his or her own discretion. That's the "law" quote, unquote.

The semantics here quickly become easily clouded. It's very easy for a legal team to write a scholarly seeming brief that says the law is not what the law appears to be, the law is whatever the president wants to do at any given moment. And here's a bunch of cites, and here's a bunch of pages, and this memo is never going to see the light of day, but now you are cleared, sir, to proceed and do whatever it is you want. And no one will ever be prosecuted for it because we've decided it's legal.

That's certainly what this administration did over and over and over again. And there's very little to prevent future administrations of either party from doing that going forward. In fact, it's easier now than it was before because of all the precedents that have been established during the past seven or eight years.

Ira Glass

Charlie Savage, author of the book Takeover.

Our program was produced today by Jane Feltes and myself, with Alex Blumber, John Jeter, Sarah Koenig, Lisa Pollak, Robyn Semien, Alyssa Shipp and Nancy Updike. Our senior producer is Julie Snyder. Adrianne Mathiowetz runs our website. Production help from Seth Lind and Emily Youssef Music help from Jessica Hopper

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Our website, www.thisamericanlife.org. This American Life is distributed by Public Radio International.

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Ira Glass

I'm Ira Glass. Back next week, with more stories of This American Life.

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