Chris Dodd on FISA, habeas corpus and Democratic capitulation

An interview at Yearly Kos with the long-time Senator from Connecticut.

Published August 5, 2007 6:04PM (EDT)

(updated below)

Chris Dodd represented Connecticut in the U.S. Congress for 33 years -- 6 years in the House (1974-1980) and 27 years and counting in the U.S. Senate. Dodd is attempting, admirably, to highlight as the central issue in his presidential campaign the assault on our constitutional framework under the Bush presidency. His campaign offered to make Sen. Dodd available for an interview at Yearly Kos and following is the transcript of that interview (edited slightly for length):

GG: Let me begin by saying that I write a lot about habeas corpus and the Military Commissions Act and your efforts to restore habeas corpus are appreciated. I have several questions about that. But I want to begin with last night's Senate vote approving the FISA amendments which George Bush demanded.

Can you describe what you think it is that motivated 16 of your colleagues in the Democratic caucus to vote in favor of this bill?

[FISA discussion posted yesterday here]

CD: A very important question in presidential politics. I know there a lot of people talking about agents of change, and give me the new guy, and people have been around too long and so forth. But part of the benefit of having been around -- depending on what you did while you've been around -- is that you have gone through some of this stuff, so you get tested on these matters. Where you have been when these matters came up in the past? I'm not suggesting perfection on my part, don't get me wrong --

GG: Let me ask you about that, because - let's take the vote to authorize the use of military force in Iraq, which is a vote that you regret, right?

CD: Right.

GG: Part of what is so dispiriting is that there have been all these public acknowledgements of errors in that regard from Democrats. And obviously, Democrats ought to be emboldened by the fact that Republicans have been so weakened. Republicans tried before 2006 to make warrantless eavesdropping a centerpiece of their campaign - "Democrats don't want to listen in when Osama bin Laden is calling," etc. And yet the Republicans got smashed.

And yet you see that same pattern repeating itself now, and it's very dispiriting, because if the Democrats in the Senate on an issue like FISA - which the President has been violating openly and has been saying he doesn't want revisions to FISA and then suddenly demands them and Democrats comply - if Democrats can't stand up to the President even on what ought to be the strongest possible ground, it really does prompt the question - what will they ever stand up over and assert any kind of resistance against the administration?

For people who are reacting that way -- and I can assure you it is a vast segment of the political faction represented by this conference -- what do you think would be a cause for any optimism about what the Democrats are doing in Congress with the majority that they were given in 2006?

CD: Well again, Democrats certainly are not monolithic. There are people who are running for office and winning from all sorts of different places whose views are substantially different. Yet they are running as Democrats. So you've got that problem. I'm not justifying it, but it is a reality.

So we tried to win control back, so you get a Pat Leahy as Judiciary Chair, and a Joe Biden as Senate Foreign Relations Chair, and myself as Banking Chair and dealing with credit card companies and sub-prime lenders and so forth. So you're willing to support and back candidates who, even in their candidacies, take different positions than you. It's not pretty necessarily, but it's like trying to keep frogs in a wheelbarrow when you got people jumping out all over the place.

With the October in the Fall of 2002 vote -- people look at you and ask about the vote -- also, look at all the things I was saying at the time of the vote, after the vote, into 2003, about where I felt we ought to be in terms of how we address this. Yet I've explained it and it's a legitimate question, people ought to answer it.

GG: But you say you regret the vote, so what errors did you make? We all make errors, and nobody should expect any political leader to be perfect, but what errors do you perceive you made with that vote, what lessons have you drawn from your mistakes?

CD: People come and tell you that these things exist. I mean, Carl Levin said "I disagree with the solution, but I accept the fact that they exist" -- the weapons of mass destruction and the like. So it was part of the thing, and that had an awful lot to do with people's conclusions, and again, we argued at the time for extending it into March or into the winter anyway, to give the inspectors more time to reach that determination.

GG: But those are really justifications. That's saying: "Look, here is why I did this, why I thought it was right." But to say "I regret that vote" means "I made errors in judgment. There are things that I should have done differently." What are those things?

CD: I should have been more skeptical about it. I grew up in a time with the old anecdote of Kennedy sending Dean Acheson over to meet Charles de Gaulle to show him airiel photographs of Soviet missiles in Cuba. And they met in de Gaulle's office and de Gaulle said "Take these down. I don't want to see them." And Acheson asked: "why not"? And de Gaulle said: "the word of an American president is good enough for me."

And I grew up in a time when people were supposed to be giving just facts -- based on their best judgment and information. And what was subsequently learned, with John Bolton going to the UN, was that they were threatening to fire people, cooking books, creating numbers, doing whatever they could to suit their ideology. I wish I had known that. . . .

They say what have you learned from all of this, and I say -- I need to be more of a skeptic. It sounds quaint, the story about de Gaulle - he was prickly -- but the fact that he said the word of the American president was good enough for him. Part of why I'm running in a sense is I'd like to get back to those days.

GG: One last question about eavesdropping -- there have been several revelations over the past couple months. The first one was just this week, in order to defend Gonzales, the administration admitted that when the President issued his Executive Order in 2001 authorizing warrantless eavesdropping, it was but one of numerous covert spying programs aimed at Americans.

And two of months earlier, James Comey said that what he and Ashcroft discovered in 2004 that they were doing was so patently illegal -- so unconscionable -- that had it not stopped immediately, they had decided they would resign en masse, along with FBI Director Mueller.

As a member of the Senate, do you have knowledge -- I'm not asking you what they are, just if you have knowledge -- of what those programs are in terms of how they spied on Americans, of what it was that they were doing, whose conversations were surveilled, what those other programs are where they spied on Americans in violation of the law?

CD: No. I have consciously stayed off the Intelligence Committee for the simple reason that I don't ever want to be in the position where I can't talk about things. And you find that a lot. I respect the people who serve on it, but you get in a room, and all of a sudden they lock you down, and you're prevented from saying what you're hearing.

Even if you read it in the New York Times, publicly disclosed activities, you are prohibited, and so I always try to keep myself arms length from it. So your ability to communicate with people, you have concerns about these things. You have to judge that. It is a difficult choice to make, but I try not to be in that box.

GG: I want to ask you about habeas restoration. And the first question I want to ask you is this - obviously, the reason why it is so difficult now is because you have to get a veto-proof majority in order to restore habeas. But had the habeas elimination statute not been enacted in October, we wouldn't be in this situation now. Was there a real consideration in the caucus about filibustering the Military Commissions Act?

CD: I'm smiling because . . . I have this book coming out on the 12th. . . . I tell the story of what happened with the Act. There was a caucus meeting. Carl Levin makes the case that this may be the best we can do. It's not great, but it's not as bad as it could be, and we've got the support of John Warner and John McCain and Lindsey Graham. They're fighting and they're going to stick with us and keep this thing on a basic constitutional level.

And Pat Leahy spoke up and I spoke up and Leahy was very clear -- this may be the worst potential vote if it goes sour on us -- the last vote, the [Iraq] Authorization, didn't matter as much because Bush was going to war no matter what. This was real, it had real effects. The other thing [about the Iraq AUMF] - now we know they were going to do it anyway.

GG: Right - they only sought a vote in advance on the war once they knew they would win it.

CD: Right. So then they mark the bill up in the Armed Services Committee, and of course the three Senators who voted for it were lobbied, and they changed it dramatically. It was really what caused me to become so concerned about it.

And I was on the floor of the Senate, one of those spontaneous moments, and I was with Byron Dogran, and we were both talking about it -- this is really bad -- and we spontaneously walked into Harry Reid's office and we said we want to filibuster, and he said, "look, you'll have 10 votes."

And a lot of guys here, we went through Max Cleland, in 2002, and all the morphing and so forth. In a sense, it was one of those moments, because at the end, there were 34 votes against it. And I think had we really had worked it a little longer, we could have produced those 40 votes.

GG: But the reality was -- and this is what I find just so baffling about what just happened with the FISA vote -- most Democrats in the Senate did end up voting against the Military Commissions Act, and yet Karl Rove did make it a key issue in the 2006 election anyway.

What happens is -- you don't filibuster it and let it get enacted because you don't want it to be used against you, but it ends up being used against you anyway, so by not making the case for it, by not taking a principled stand -- while 34 Democrats did vote against it, most of them did not even announce their vote until the day before the vote was held because they had been hiding behind John McCain and John Warner and Lindsey Graham -- so the debate was never engaged by Democrats.

And that is what is so frustrating -- to see this same mindset over and over and over again -- where Democrats say they have to capitulate or else it will be used against them, and then it's used against them anyway, but it's even more effective because Democrats haven't fought or made the case for their position.

Is this conventional wisdom among Democratic politicians that this is a smart way to proceed because that is what consultants are telling them -- why is this so embedded culturally? Look at what the Republicans are doing. They are filibustering everything, they are not afraid of being labelled "obstructionist." Why are they so much more aggressive in the tactics they are willing to use?

CD: A lot of questions. First of all, in fairness to Harry Reid, going in spontaneously and trying to confront him with this, I'm not a nose-counter, trying to organize and if you get only 10 votes, then that's all you're going to get. Although, 34 votes against it. I think we could have gotten the 6 votes.

Beyond that, it is what you and I have talked about already. It is this sense somehow that you're going to avoid this - and I never understand why people make the same mistake over and over and over again.

We had, last night, one Senator decided that the Mental Health Parity issue was not going to happen. Well make the guy filibuster. Make him stand up - have someone there so he can't hand the ball off to someone in the middle of the night. To filibuster, you have to stand there, and word will eventually go out that you're serious about this stuff.

GG: One of the things that I think could be invigorating about your campaign is that you are making these constitutional issues the centerpiece of your campaign. You said in the debate that one of the most critical issues we face is the assault on our constitution, which you indicated was unprecedented.

Can you talk about why this assault on the constitution is so fundamentally different than anything that has come before it? You were in the Senate during the Iran-contra scandal under Reagan. What is it about what they are doing now that makes it so fundamentally different?

CD: Well, it's so pervasive. I mean, its domestic. It's foreign. And it is has been so calculated on so many levels. With Iran-contra, Reagan wanted to give money to the contras. I didn't like the motivation, but it was very targeted, focused point.

But here -- winning elections. And pursuing people or not pursuing people. That takes it to a whole new level. The power of the U.S. attorney is real power. Power. The power to prosecute people is enormous.

It saddens me that it even has to be an issue -- the fact that "defending the Constitution" even has to be an issue in the presidential race.

But there is an audience for this. This is really important. This is not a narrow audience. This is a broad audience. This is an audience that will surprise you if articulated well. We can win on this.

A campaign for president allows you to have a megaphone here on a national scale to talk about these things, at a time when this crowd, if it continues, can enable you to stop them, do even more than raise the issues. But secondly, if I don't win this thing, I want everyone else to be talking about these issues.

I think it reaches into a conservative constituency who ought to care about this as much, and does in many ways. So it gives us a chance to do that.

I carry every day, and have for 26 years, a copy of the U.S. Constitution given to me by Robert Byrd [takes Constitution out of his back pocket]. And to me, what could be more fundamental? With all due respect, I care about health care, education, global warming. But if you get this wrong -- what do you got? A trade association. Who wants to be president of a trade association?

And this [holding the Constitution] is the spark, the illumination, it is, if I may so say, the envy of many around the world. We have been a guiding set of principles. What is going on with the rule of law isn't just happening here. . . Other countries are saying, "We can do this, too." So there has been an erosion in the world with the rule of the law. Having led the world in the rule of law in the post-World War II period, and having nations reluctantly moving in the direction we were moving in, and they now see the U.S. has retreated, and they are making a hasty retreat themselves.

Josh Tucker [of NYU] makes the point about the Soviet Union collapse -- You can make the case that it was military, and that was part of it, but he believes and I believe that it was the rule of law. It was Eastern European countries recognizing that this was a total sham, beginning with the Prague Spring and 1956. The Soviet Union collapsed because it rotted from within, they just rotted without the rule of law. So in addition to the other factors, this has international reverberations, beyond just what happens in our own country.

GG: Well, it is good to see the real passion and conviction that you obviously have for these constitutional issues.

CD: I will never forget, it was a night in New Hampshire back last fall, and I'm talking about health care and talking about education and something else -- and I said "I just want to share with you something I care about." And I talked about this and the room exploded. And I was startled and I realized, "God, people really do care." I thought I was the only one who did. You sound very arcane when you talk about the Military Commissions Act. But this really reasonates.

UPDATE: TPM has a video interview with Dodd from this weekend that is worth watching. He explains why he wants to make constitutional issues a key issue in his campaign, and the video provides a visual supplement to this transcript.

By Glenn Greenwald

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