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Gregory Koger, Explaining The American Filibuster

Political scientist Gregory Koger's new book, Filibustering: A Political History of Obstruction in the House and Senate, addresses the institutionalization of the filibuster — and describes congressional loopholes by way of which fast thinking and hard work can beat the numbers. Koger teaches American politics at the University of Miami. He joins host Terry Gross for a conversation about what has happened to simple majority rule.

21:30

Other segments from the episode on January 25, 2010

Fresh Air with Terry Gross, January 25, 2010: Interview with Gregory Koger; Interview with Gary Wills; Review of the television show "Damages."

Transcript

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Gregory Koger, Explaining The American Filibuster

TERRY GROSS, host:

This is FRESH AIR. I'm Terry Gross.

Now that Republican Scott Brown has been elected to fill Ted Kennedy's
Senate seat, the Democrats no longer have the 60 seats in the Senate
they need to override a filibuster. That could kill the health care
bill.

The threat of filibuster has been looming over the proceedings of the
Senate all year, but today on "Good Morning America," Ed Rendell, the
governor of Pennsylvania, said, quote, "Make them filibuster. Make the
American people look at a modern-day spectacle of what a filibuster
would entail," unquote.

Democratic Senator Tom Harkin would like to reform the filibuster rules
of the Senate so that eventually, a simple majority vote could pass
legislation.

During the George W. Bush presidency, when Democrats were in the
minority in the Senate, they used the threat of filibuster to block some
of Bush's judicial nominees.

So with all this controversy over the use of the filibuster, we're going
to take a look at how the filibuster was created and how it's functioned
over time. My guest is Greg Koger, the author of the forthcoming book
"Going to the Mattresses: The History of Filibustering in Congress."
He's an assistant professor of political science at the University of
Miami.

Greg Koger, welcome to FRESH AIR. Before we get into what's happening
politically now, I'm just going to start with the very basics. Tell us
what we mean now by a filibuster and what you need to get a filibuster
to end.

Professor GREG KOGER (Political Science, University of Miami; Author,
"Going to the Mattresses: The History of Filibustering in Congress"):
Right now, a filibuster means that some senator or group of senators
will not allow the Senate to set a time for voting on a bill or
nomination. And what they are threatening is that they will speak
forever, although they won't actually be forced to speak forever. And
the way that majorities in the Senate typically respond to that is by
filing for a cloture petition, and it takes 60 votes to successfully
invoke cloture. And what that does is it limits debate on a bill or
nomination to 30 hours.

GROSS: The impression many people have now is that the filibuster is
being used by Republicans to block just about any piece of legislation
that the Democrats are trying to pass. Having studied the history of the
filibuster, do you think that the filibuster is being used more
frequently now and for more reasons now than has ever historically been
true before?

Prof. KOGER: Over the last 20 years, we sort of reached a very high
plateau for filibustering in which any senator feels comfortable
threatening to filibuster legislation or nomination. And since a
minority party is usually more than 40 - holds more than 40 seats in the
Senate, that usually means that if they stick together, they can block
any piece of legislation.

So what's changed over the last, say, 10 years is just this - is the
combination of the system that allows filibustering to occur quite
easily and the polarization of the two American political parties so
that it's much more likely that the minority party can stick together on
these cloture votes and that they might do so for strategic reasons.

GROSS: Most people think of the filibuster as the classic filibuster
where somebody's just making a long-winded speech endlessly or reading
from the phone book or just, like, reading from anything in general just
to keep the filibuster going.

Nowadays, filibusters are just the threat of a filibuster. You don't see
senators on the floor actually making endless speeches. It's just the
threat of having enough votes to prevent cloture. Why is that? Everybody
wants to know: Why don't the Democrats, when they're threatened with a
filibuster, why don't think insist oh, yeah? Well, go ahead and make
speeches for days and days and days. Go ahead.

Prof. KOGER: Well, you're right. It used to be that way, up until the
early 1960s. And what basically happened is that senators realized that
it was very difficult to actually wait out a filibuster, and at the same
time, that the other things they could be doing with their time were
very valuable to them.

They could flying back home or holding fundraisers or working committee.
And so there was a sort of collective decision that they weren't going
to try to fight these old-style battles anymore, that they would file
what's known as a cloture petition, and if they had the votes, they'd
win. If they didn't have the votes, they'd lose, but they'd live with
that and they wouldn't try to wait out a filibuster.

GROSS: If the Democrats, who are the majority party now, did insist that
they wanted the Republicans to do the full-fledged filibuster, do the
whole theater of it, what would that mean for the Republicans? What
would they have to do?

Prof. KOGER: They would have to continuously occupy the floor of the
Senate. At least one person would have to be there speaking or making
motions at all times.

Now that, actually, wouldn't be that difficult for them on, say, health
care bill, because there's, you know, now 41 of them, and many of them
are very passionate opponents of this bill. And so they'd probably enjoy
standing up and speaking for four to six hours against it.

GROSS: So also, you know, in answer to the people who say how come the
Democrats now aren't, like, getting the Republicans to do the full-blown
theater of filibuster, you say one of the reasons why is the quorum
call, that the Republican - the lone Republican in the chamber who's
doing the filibuster can, at any time, do a quorum call. What does that
mean, and what would the implications of that be in the middle of a
filibuster?

Prof. KOGER: Right. The Constitution says that a majority shall
constitute a quorum of either chamber. And what that means is that at
any point in time, if a legislature is trying to do something, there has
to be at least half the membership there, present and ready to
legislate.

So what that means in the context of a filibuster is that if somebody is
speaking, and then what they can do is they note the absence of a
quorum, which means I don't think there's really a majority of the
Senate here. Which is probably true, because on any given day, there's
very few people actually sitting in the Senate chamber.

So if there's a filibuster going on, and a senator notes the absence of
a quorum, what that means is that the supporters of the bill, the people
who are fighting the filibuster, have to prove that there is a majority
of the chamber there, and so they have to, you know, they would have to
be in the chamber. They flood in the chamber from, you know, maybe
they're sitting right outside, and prove that there is, in fact, a
majority of the chamber ready to do business.

And if there isn't a majority ready to do business, then the whole
chamber just sort of comes to a screeching halt, and it just sits there
empty - well, doing nothing until the supporters of the bill actually do
bring in a majority of the chamber and prove that it's ready to do
business.

GROSS: But it's kind of doing nothing, anyways, during the filibuster.

(Soundbite of laughter)

GROSS: So what's the difference between doing nothing because it's shut
down and doing nothing because there's a filibuster occupying all the
time?

Prof. KOGER: Well, at least in theory, if somebody is standing and
speaking, that's doing something. And - whereas if there's no quorum,
then doing nothing means literally they just sit and look at each and
say, well, I wish there were more people here.

And so - and the only thing they can accomplish at that point is to just
go home, to adjourn, or they can ask the sergeant at arms to bring in
some of the missing senators.

There's a famous case of this in 1988, when Robert Byrd, the majority
leader, he's trying for really the last real time to have a live
filibuster and actually make, in this case, the Republicans conduct a
live filibuster against campaign finance reform.

So Byrd moved to have the sergeant at arms bring in missing senators.
And the sergeant at arms then went up to Bob Packwood's office. He's a
Republican from Oregon. Packwood had, like, blocked the door of his
office, had put a desk there to keep the sergeant at arms out.

So the sergeant at arms gets some other - some aid, and forces the door
open. In doing so, he sort of injures Packwood's arm, and then they
literally carry him, like a protestor, to the Senate chamber and say
here's one of the missing senators.

GROSS: Do you think filibustering was a different kind of tactic before
politics was as polarized as it is today, where parties - and probably
particularly the Republican Party - tends to vote in a bloc? There seems
to be much less bipartisanship than in other eras. So has that made
filibustering into a different animal?

Prof. KOGER: In some ways, yes. I mean, in my writing, I've defended the
filibuster because it does promote, you know, compromise and
bipartisanship and moderation. And in the long run, I think these are
good things.

But faced with a minority party that seems completely unified - and
partially that's for strategic reasons - it seems difficult, we'll say,
to have a set of rules that promote bipartisanship. They're intended to
thrive in an environment of bipartisanship and compromise when, you
know, very few - it's very difficult to get any member of the minority
party to engage in a conversation.

So, yeah. I mean, there does seem to be, we'll say, a mismatch between
the existing Senate rules and the behavior of the minority party in the
current Senate. Although, I mean, to be fair, the Republicans would
suggest that the Democrats have not gone as far as they could have to
reach out.

GROSS: To reach out across the aisle and make compromises.

Prof. KOGER: That's right.

GROSS: My guest is Greg Koger, the author of the forthcoming book "Going
to the Mattresses: The History of Filibustering in Congress." We'll talk
more after a break. This is FRESH AIR.

(Soundbite of music)

GROSS: My guest is Greg Koger, author of the forthcoming book "Going to
the Mattresses: The History of Filibustering in Congress." We're talking
about some of the questions many people have about how the threat of a
filibuster is used in the Senate.

GROSS: You know, the Constitution says that in the Senate, it should
take a simple majority to pass legislation. And nowadays, like right
now, it seems to take 60 votes to pass any legislation instead of 51,
because 60 is what you need for cloture.

And some people are raising the question: Have we gotten to the point
where the Senate is operating in a way that's unconstitutional, since
the Senate says that unless it's a treaty, impeachment, expulsion from
office or a constitutional amendment, it should be just a simple
majority? So I wonder what you'd respond to on that, what you'd respond
on that.

Prof. KOGER: Well, I think the key phrase of the Constitution is from
Article 1. It says that each house may determine the rules of its
proceedings. And the Senate has the rules that it has on some level
because this is the way they want to do business. And so that makes it -
to me, that makes it constitutional, and so it's hard to say that, you
know, the Senate is unconstitutional.

I mean, but what you can say instead is that, you know, that because the
combination of the Senate filibuster and, you know, the polarization of
parties, that there is more stability in the legislative system than the
authors of the Constitution ever intended there to be, that it's so much
harder to get anything done than ever intended.

GROSS: Are there ways that the majority party can get around the
minority party when the minority party is filibustering? Like, are there
tools in this case that the Democrats could use that they haven't used?

Prof. KOGER: Definitely, yes. The central theme is that the rules of the
Senate are interpreted by a majority of the Senate, and that includes
the possibilities of just suggesting that there's some constitutional
mandate or obligation which trumps the letter of the Senate rules. So
any strategy would probably take advantage of that idea.

My favorite example, because it's relatively simple, is that these - one
Senate rule provides for a motion to suspend the rules, which is exactly
what it sounds like. It says - it means that, you know, no matter what
the rules say, that it's inconvenient to follow them because I want to
do this one thing.

And that one thing could be setting a date and a time to actually vote
on, say, health care reform. And so you can suspend the rules to do
that. The problem...

GROSS: Wait a minute. Would you need 60 votes to suspend the rules?

Prof. KOGER: No. What you do need is a two-thirds super-majority. But
the letter of the rule doesn't say that, and so by implication, the
proper interpretation of the rule is that it takes a simple majority.

Back in 1915, ironically, a majority of the Senate decided that it takes
a two-thirds majority to suspend the rules. But that's just an
interpretation, and I think it's just a defiance of what that rule
actually says. So you could restore the proper interpretation of that
rule and suspend the rules by a simple majority vote.

The other thing that senators would have to do is enact a second
precedent, an interpretation, saying that a motion to suspend the rules
cannot itself be filibustered, as the House has done in the past. The
combination of those things, preventing the obstruction of a motion to
suspend the rules and restoring a threshold to a simple majority, would
give the majority party, or a majority faction of the Senate, a
parliamentary device that it could use to prevent a filibuster on a
bill.

GROSS: So then the filibuster would be nullified any time there was a
simple majority to bypass the filibuster.

Prof. KOGER: That's right.

GROSS: Any other insider, technical ways that a majority party has of
getting around a minority party's filibuster?

Prof. KOGER: Yeah. I mean, historically one way to get around some of
the difficulties that legislators have with the rules is to assert that
there is a constitutional mandate which overrides the letter of the
rules.

So if the majority party lost a cloture vote on something that they
consider to be very important, then they could simply raise a point of
order and say, actually, it takes a majority to invoke cloture on
legislation. And that's not the letter of the Senate rules, but our
mandate to govern overrides the letter of the Senate rules. And so from
this point forward, because we have this constitutional mandate, it only
takes a simple majority to invoke cloture.

GROSS: I don't understand how you could just say that, though.

(Soundbite of laughter)

GROSS: You just say, we're reinterpreting this, and we're going to
change it.

Prof. KOGER: Well, the trick is to not think of this as law. I mean, we
use some of the vocabulary of law, like precedents and rules and so
forth. But at the end of the day, it's politics. These are politicians.
They have to get reelected, and they're supposed to be governing us. And
that's the underlying thing.

The rules are there to help politicians govern this country, and if the
rules are getting in the way, then it is the prerogative - some might
even say the mandate of politicians - to reinterpret the rules so they
can govern effectively.

GROSS: But that can't be easy, to just say we're the majority party, so
we're going to reinterpret the rules now because we have a mandate.

Prof. KOGER: The constraint on politicians' ability to do that is
politics. If they go back to - if the majority party did that and then
they went back to their constituents and said here's what I did, and
they said: Really? That's a transformation of the way we thought the
political system worked, and I'm outraged. Well, then they'd pay a heavy
political price for that.

And so if Democrats are confident in what they're doing and they believe
that they have a mandate to follow through on it, then they could take
the risk of, you know, imposing a new interpretation of how the Senate
ought to work.

But that is a risk, I mean, and it would be a political risk, that they
might lose elections and be discredited because of it.

GROSS: Now, Democratic Senator Tom Harkin of Iowa wants to change the
filibuster rules. How does he want to change them?

Prof. KOGER: What he wants to do is enact a new rule that the threshold
for cloture decreases by three votes every time you vote on a particular
proposal.

So say there's a health care bill on the floor, and the first vote to
impose cloture on it fails because there isn't 60 votes. Well, then the
next - the second time you vote on the same issue, it would be 57, then
54, then 51. Harkin proposed the same thing back in 1995, with Joe
Lieberman as his cosponsor.

GROSS: So the logic of this is that eventually, over time, if there's 51
votes, if there's just, like, a majority of votes, then you can actually
vote on the bill.

Prof. KOGER: That is the intent of the rule. I mean, my personal opinion
is it's a really misguided proposal because it doesn't take seriously
how senators will behave if the rule is adopted.

If I was a senator and the rule was adopted and I was, say, in the
minority, I would just filibuster everything: The approval of the
journal in the morning, every bill to rename post offices, the motion to
adjourn at night. Filibuster everything and force them to vote on
everything. And that would be so annoying and take up so much time that
eventually, the majority would come around and negotiate with me to stop
tying up the Senate - even if, in theory, a majority could shut me up.

GROSS: Although right now it's the Democrats who are the targets of
filibusters, there are leading Democrats who are against changing the
filibuster rules, including the Senate leader, Harry Reid. So what are
their arguments against ending the filibuster, even though right now,
they're the targets of it?

Prof. KOGER: Right. A lot of my research has been on this question. I
mean, what is it - if senators can change the rules, why haven't they
done so in the past? And, I mean, to summarize, the three main benefits
I think they get out of it is that there is - you know, when legislation
does pass, it does tend to be moderate and bipartisan. And in
particular, what that means is that you don't have one faction of the
majority party that is able to, you know, convince or coerce or threaten
the rest of the majority party into passing legislation that privately,
many of them oppose.

A second thing is that, as I mentioned earlier, that the ability of the
minority party to filibuster does help guarantee some degree of
deliberation in the Senate - and I just mean, you know, the ability to
give speeches and offer amendments.

And for senators, I think there's some institutional pride in that. I
mean, they watch the legislation going through the House, and it's just
ram-rodded through. And they can take some pride in the fact that in the
Senate, you actually get to debate and think about some of these things
before you vote on them.

And the third thing is that as individuals, senators gain a lot from the
system because they can have a lot of influence on the things that they
care about that few other people care about. They can block a nomination
of somebody that they really despise. They can force the Senate to vote
on some amendment that's mostly important to them. And so as
entrepreneurs, they're much more successful and influential because
there's a system that gives a lot of power to every member of the
legislature.

GROSS: Greg Koger, thank you so much for talking with us.

Prof. KOGER: Thank you for having me on.

GROSS: Greg Koger is the author of the forthcoming book "Going to the
Mattresses: The History of Filibustering in Congress." He's an assistant
professor of political science at the University of Miami. I'm Terry
Gross, and this is FRESH AIR.
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Changing A Nation: The Power Of The A-Bomb

TERRY GROSS, host:

This is FRESH AIR. I’m Terry Gross. The atomic bomb altered American
history down to its deepest constitutional roots, writes my guest,
historian Garry Wills. He says the bomb redefined the presidency,
expanded executive power, and redefined the government as a national
security state with an apparatus of secrecy and executive control.

Garry Wills' new book is called "Bomb Power: The Modern Presidency and
the National Security State." The book follows the expansion of
executive power through the George W. Bush presidency and examines the
early days of the Obama administration. Wills is also the author of
"Lincoln at Gettysburg." He's a professor of history emeritus at
Northwestern University and is a frequent contributor to The New York
Review of Books.

Garry Wills, welcome back to FRESH AIR. How did you start thinking about
ways in which the atomic bomb redefined and expanded the powers of the
president?

Professor GARRY WILLS (History, Northwestern University): A friend of
mine grew up at Los Alamos. She was a girl my age, cut off from her
friends, from comic books, from all those things. So I was aware of what
a strange operation that was, where people were brought in secretly,
took pseudonyms, were cut off from everything, and an amazing secrecy
prevailed over 80 locales. You know, Los Alamos was not the only place -
Hanford.

GROSS: You should explain what Los Alamos is, for people who don’t know
the name.

Prof. WILLS: Los Alamos is where they finally put the bomb together. But
Hanford and Oakridge where other place where uranium was processed and
other processes went on. They had, as I say, 80 various locales working
on this huge project with thousands of people involved, and all of the
world's leading physicists, except for the ones within the German
domain. And they were all brought in secretly. Nobody knew where they
were, how they got there. It was amazing that they kept the secret from
the ones that they worried about, namely the Germans and the Japanese.
They didn’t keep it from the Russians because they were our allies, and
they had people sympathetic with them at Los Alamos and other places. So
there were leaks out, but not to the people that they were really
worried about.

GROSS: So you knew a girl who grew up in Los Alamos and was - lived in
that kind of secrecy?

Prof. WILLS: That's right. And she didn’t know what her father was
doing. He was a famous physicist. And she asked her mother later if she
knew, and she didn’t know. They were so good at keeping the secret. When
they had finished the day, they locked up all their papers, they erased
all the billboards, they never referred to the bomb. They called it a
gadget. They didn’t call themselves physicists. It was an extraordinary
discipline.

GROSS: Now you make the case in your book "Bomb Power" that Los Alamos,
the whole Manhattan Project basically became a model for covert
activities in the United States.

Prof. WILLS: That's right. What they had was an autocratic director,
General Groves, and he had almost infinite power over these famous
people that he had gathered. He spied on them. He ordered them to do
this, to do that. He had his own little air force. He had his own
intelligence service abroad. He considered assassinations of Native
Americans and foreign nationals. It was an extraordinary - it was all
secretly funded. The Congress had no idea where all this money was
going.

Harry Truman, who was investigating money corruption during World War
II, didn’t know what was going on. In fact, he became vice president and
didn’t know what was going on there. He had to be told only when he
became president that there was such a thing as the project to develop
an atom bomb.

This extraordinary secrecy was unconstitutional, as a lot of war
measures are. But in earlier wars - for instance the Civil War, when
Abraham Lincoln suspended habeas corpus, or World War II, when Franklin
Roosevelt detained Japanese-Americans - it was recognized that that was
a suspension of the Constitution, and it was rectified later. In both
cases, the Supreme Court said it had been unconstitutional. But all of
the measures that they took at Los Alamos were never declared
unconstitutional. In fact, they were adopted. As Groves had been the
autocratic director there, the president became the sole, unchecked
authority over the use of the atomic bomb for military purposes.

Congress had no say in the matter. The setting up of the CIA, the NSC,
the NSA, all of these things were meant to keep the great secret that we
had - the atomic bomb - to keep it from the Russians, to develop it, to
develop the hydrogen bomb, to set up deployment areas around the world.
Originally, there was the Strategic Air Command to keep planes in the
air around the clock, every day, 24 hours a day, carrying bombs in case
we had to drop them on somebody. Then, of course, we developed atomic
submarines and satellites. And all of this immense national security
apparatus grew out of the Manhattan Project and took it as its model.

GROSS: So you’re saying that every layer of, like, nuclear policy and
nuclear war policy added more layers of secrecy that initially, the
secrecy around the Manhattan Project was so that the Germans and
Japanese wouldn’t find out we were making the bomb. Then there was
secrecy so that the Russians and the Chinese wouldn’t find out how to
make a bomb. Then there was secrecy so nobody would know where the bombs
were being hidden. Is that what you’re saying, that every development
required more secrecy?

Prof. WILLS: That's right. And then there was the policing of the
Americans themselves: the loyalty programs, the classification of
secrets, the security clearance process. So what was a secrecy at
Hanford and Oakridge and Los Alamos became a secrecy for whole United
States. That was the kind of discipline that worked for the atomic bomb,
and because it worked, they thought, well, this is the way we have to
keep doing it. And so none of those things were declared
unconstitutional. As I say, the Congress had no oversight. It didn’t
authorize the funds.

In fact, Leslie Groves was outside the military chain of command. He
dropped the bombs without authorization from his military superiors. The
people who had appointed him were a special little group that the
president had set up. And when he thought, well, I might be sick, have a
heart attack, be attacked, be killed, he appointed his successor
secretly. Again, it was not part of any constitutional procedure at all.
It was an extraordinary departure. And because it worked, it became not
only a model but an ideal so that from then on, to have clearance to get
to secrets became the source of power in our government.

GROSS: My guest is Pulitzer Prize-winning historian Garry Wills. His new
book is called "Bomb Power: The Modern Presidency and the National
Security State."

More after a break. This is FRESH AIR.

(Soundbite of music)

GROSS: If you’re just joining us, my guest is Garry Wills, and his new
book is called "Bomb Power: The Modern Presidency and the National
Security State." And in this book, he makes the argument that it was the
development of nuclear weapons that led to a lot of secrecy in even
peacetime in the United States, and that the development of nuclear
weapons invested the president with a lot more power, and that those
powers have been growing ever since.

So you think that the whole idea of commander-in-chief has been greatly
expanded since the president became the person who had the authority to
launch a nuclear attack...

Prof. WILLS: Yes.

GROSS: ...and the code to do it with. And you also think that President
Bush kind of expanded that idea of commander-in-chief. In what way?

Prof. WILLS: Well, he inherited a process that began under President
Reagan. In President Reagan's attorney general office, there was the
Office of Legal Counsel, which came up with the idea of the unitary
executive. And that became a famous cause of the Federalist Society and
of various people who have become Supreme Court justices.

GROSS: And the Federalist Society is a conservative - a group of
conservative lawyers.

Prof. WILLS: Yes. And Edwin Meese's Justice Department had a number of
young people who wanted to support President Reagan's defense of
deregulation of the agencies. And up to that time, when Congress set up
an agency, it said that it had the right to oversee the performance of
that agency, as it oversees the executive power in general because,
after all, it has the right to impeach any member of the executive. And
it can't do that unless they can find out what that group is doing.

Well, these people said at the outset that no, once you set up the
agency, it’s totally under the control of the president, and his power
over it is unitary. That is, he has the right not only to administer
these things, but to decide whether anybody can interfere with them. Now
that's been expanded, to the dismay of some of the original people who
set up this idea. And it's now said that the president, under George
Bush, has the power not only to administer the agencies, but to
administer the whole defense apparatus, and not only to administer it,
but to initiate war on his own authority.

GROSS: Now, President George W. Bush did get a vote from Congress before
the Iraq war.

Prof. WILLS: That's right. But in other cases, he did not. All of -
every war that has been started has not been a declaration of war. He
got some kind of approval, but not a declaration of war. And that's
been, again, a repeated pattern since World War II. None of that
happened before World War II. What happened at the end of World War II
is that emergency measures, secrecy classification, all those things
that had come in during war were extended. So we went direct from World
War II into the Cold War, and then we went direct from Cold War into the
war on terror.

And so as Senator Moynihan said, we should've had declassification at
the end of all these emergencies. Instead, we’ve had an increase in the
number of classified documents, the number of clearance requirements,
the number of loyalty investigations. All of these things have mounted
and mounted and mounted over the last 60 years.

GROSS: We did have several years between the Cold War and 9-11.

Prof. WILLS: We didn’t have any suspension of the security apparatus.
Once that national security apparatus got into place, it's never been
cut back. The budget of the CIA, of the NSA, the NSC has grown, and its
activities - especially covert activities - have grown continuously.

GROSS: Now in talking about the powers of the president to go to war, in
1973, Congress passed the War Powers Resolution, and that was supposed
to make sure that Congress had a vote in whether or not to go to war.
Can you explain what the War Powers Resolution was in 1973?

Prof. WILLS: Yes. The Constitution says Congress alone has the power to
declare war. Well, the presidents had ignored that so long that Congress
wanted to edge back into the act. So it didn’t assert its true
constitutional power. Wait a minute. Only we can declare war. It said,
all right, if you want to go to war, Mr. President, you have to tell us
so and give us a time span in which to approve. And we will either
approve or disapprove, and then you will have to withdraw. But every
president since that passed has ignored that War Powers Act, which was
itself unconstitutional, because it ceded the power that was not in the
authority of the Congress to cede. They can't say, well, we'll have a
shared power of declaring war. The Constitution doesn’t say that you
have a shared power. It says you have all the power to declare war.

GROSS: So, in a way, the War Powers - you’re saying the War Powers
resolution, which looked like it was taking back power for Congress,
actually gave up power by deciding to share that power with the
president.

Prof. WILLS: That's right. That's right. And it didn’t even work. You
know, they thought, well, maybe if we tried to split the pie, he'll pay
attention to us. But they didn’t.

GROSS: Some of the secrets that you write about aren't so secret
anymore. After all, you’re writing about them. How secret could they be?
But did you come upon any secrets that you think developed out of the
early nuclear age that you were unaware of and that really surprised
you?

Prof. WILLS: Well, yes. One of the examples of - see, what happened
after the war, World War II, is that they needed to have deployment
areas. They needed to have friendly governments, who would allow us to
base our planes, originally, and there are submarines; our listening
posts for radiation, for other things of that sort. And so we had to set
up friendly governments, or operate with friendly governments and make
sure they stayed friendly which meant sometimes we interfered in their
electoral process.

But I had not really known until I started looking at this, about Diego
Garcia, an island in the Pacific – in the Indian Ocean. They wanted to
have a place strategically close to the Middle East, where they could
have an entire base for submarines and airplanes and supplies, et
cetera, with no interference by a local government. So, they took over
what had previously been a British protectorate and extruded the
natives, thousands of natives, just kicked them out as we had done, by
the way, in the islands in the Pacific, where we tested the atomic and
hydrogen bombs.

It’s entirely secret. Journalists are never allowed there. It’s a huge
staging area. It’s been used in the Tonkin Gulf and the Iraq war and
others. And the people – the natives who are kicked out have asked that
they come back and they were not allowed. The purchasing of the
materials for it was kept from Congress. The treaty that they set up
with Britain to take over the island - it’s still technically a British
protectorate, but they gave us total control over what goes on there -
was not public for a long, long, long, long time. And what goes on now
is still secret. Now we don’t know how many of those there are around
the world.

GROSS: Have you found about what it must be like for somebody who is
elected president to not only inherit - you know, what we think of as
the powers of the office, but to also inherit this secret world, this
hidden world of powers and of military bases and secrets and just all of
the stuff that you’ve been describing.

Prof. WILLS: Yes, I have. And a good example that it seems to me is the
reaction of President Obama when he took office. Before that he had
said, oh well, I won’t do these things. I won’t torture. I won’t have
renditions of people captured on foreign territory. I'll close
Guantanamo. I won’t do signing statements in which I declare what
Congress passed something that I won’t obey. And right away, he started
saying, well - I mean, his people started saying, well, we’ll have to
consider renditions. We’ll have to continue signing statements. We’ll
have to consider a slower closing down of Guantanamo, et cetera.

And I think that’s what he gets, he gets a military and intelligence
apparatus of immense extent - and they said to him, don’t destroy our
morale, don’t undercut what we’ve had so much trouble building up. You
need us, we need you. So, play along. And that’s what the president has
been doing.

GROSS: You are concerned that we’ve built a nation that is so entrenched
in this secrecy that came along with a development of nuclear weapons
and that just kept getting expanded as the nuclear arsenal got expanded.
Do you think there’s any turning back? You know, you’ve pointed out that
it used to be when we reverted from war time to peace time, that all
like the war time powers would be put aside and we’d return to peace
time. But there’s always something now – it's the Cold War, it's the war
on terror - and secrecy keeps expanding, it never seems to shrink. So,
do you think there’s any turning back?

Prof. WILLS: It would be very difficult. For one thing, consider all of
the classified material. To declassify that is immensely time consuming
and expensive. So, it’s not going to happen. It just keeps growing and
growing as Senator Moynihan said. And the costs of secrecy are great.
They cover up our crimes, our errors. Moynihan said, for instance, when
the Bay of Pigs occurred, President Kennedy was not listening to
academic experts on Cuba or foundations or open polls, which told him
that - which would have told him that Fidel Castro is immensely popular.
You were not going to insight a rebellion against him at that stage of
the game.

And Moynihan says, he would - he didn’t listen to any of those things
because none of them were classified. He listened to people who all had
this great secret knowledge that nobody else had. And that’s what made
him commit this error. And he said that happens all the time with
secrecy. We listen to the people with a stake, because they’re supposed
to be the priesthood of the secrets. And you cut off the sources of
knowledge that would criticize these inner-elite, that would make things
more open and correctible.

GROSS: Well, Garry Willis, I want to thank you so much for talking with
us.

Prof. WILLS: It’s my pleasure.

GROSS: Garry Wills is the author of the new book, "Bomb Power."

Coming up, our TV Critic David Bianculli previews the new season of
"Damages," the FX series starring Glenn Close. He says it’s just one of
the good shows returning to cable tonight.

This is FRESH AIR.
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The Return Of ‘Damages,’ And Other Good TV News

TERRY GROSS, host:

While broadcast TV has spent lots of energy and money reconfiguring its
late night roster. Cable TV is proceeding as usual, turning out shows in
primetime that are welcome alternatives to what the major networks have
to offer.

Our TV Critic David Bianculli notes the return of a few such shows
tonight.

DAVID BIANCULLI: So far, in the year 2010, there hasn’t been a better,
more compelling serialized drama on TV than the Jay versus Conan battle.
But that ended Friday - and ended, for the record, with a farewell show
from Conan O’Brien that was classy in its restraint, and in his
gratitude to NBC for giving him his career in the first place. But that
was Friday. Now it’s Monday. So now what? On commercial TV, we have one
sizzling offering - the fifth hour of "24" on Fox, with Jack Bauer,
getting involved in a New York assassination plot.

On PBS, on "American Experience," we have a really interesting biography
of Wyatt Earp - one that goes far beyond the usual portrayal of the
Western lawman in popular movies. But unless you turn to cable, that’s
about it. On cable, though, the joint is jumping. The best cable series
returning tonight, beginning its third season is "Damages," the
intelligently crafted legal series from the FX Network. It stars Glenn
Close as super-lawyer Patty Hewes, a woman who is as successful as she
is ruthless. Like Tony Soprano, she’s both the hero and villain of her
own series. And Close, in this role, is just great.

She acts with such range and such subtlety, it’s the best and most
nuanced performance by a female lead since Helen Mirren starred in
"Prime Suspect." And Close, in "Damages," is keeping some fast company,
and giving them chances to shine just as brightly. In season one, her
main antagonist was played by Ted Danson, in a role that forever
shattered his stereotype as the affable bartender Sam Malone on Cheers.
The second year, Close played opposite William Hurt, her old co-star
from "The Big Chill."

And this year on "Damages," the recurring players include Keith
Carradine, who's made a new playing great supporting roles in such shows
as "Deadwood," and "Dexter;" and also knew to the series are Lily Tomlin
and Martin Short, who, like Ted Danson, play it straight and play it
beautifully. The primary plot, this year, has Patty Hewes prosecuting
Louis Tobin, a man accused of a Bernie Madoff-style Ponzi scheme. Here’s
a scene in which Glenn Close, as Patty, is conducting a deposition. The
Tobin family lawyer played by Martin Short is there, and answering
Patty’s questions is Tobin’s wife, played by Lily Tomlin, played very
nicely and very icily.

(Soundbite of TV show, "Damages")

Ms. GLENN CLOSE (Actor): (as Patty Hewes) And that’s when he told us
about the fraud.

Ms. LILY TOMLIN (Actor): (as Marilyn Tobin) That it was a Ponzi scheme.

Ms. CLOSE: (as Patty Hewes) Yes. He said the business is all a lie. The
investments weren’t real. He said he couldn’t hide it anymore.

Ms. TOMLIN: (as Marilyn Tobin) Your son, Joe, contacted the district
attorney the next morning. Isn’t that right?

Ms. CLOSE: (as Patty Hewes) Yes.

Ms. TOMLIN: (as Marilyn Tobin) Did that make you angry?

Ms. CLOSE: (as Patty Hewes) What my son does is his own business.

Ms. TOMLIN: (as Marilyn Tobin) Joe worked for your husband. Do you think
he knew about the scheme?

Mr. MARTIN SHORT (Actor): (as Leonard Widmore) Objection. Calls for
speculation. Ms. Tobin can’t be expected to guess what’s in her son’s
head.

Ms. TOMLIN: (as Marilyn Tobin) You want to depose Joe, ask him.

Ms. CLOSE: (as Patty Hewes) Ms. Tobin, you said that you knew nothing
about your husband’s fraud.

Ms. TOMLIN: (as Marilyn Tobin) Yes.

Ms. CLOSE: (as Patty Hewes) You shared your life with him for over 40
years and yet you didn’t know that he was stealing.

Ms. TOMLIN: (as Marilyn Tobin) Actually I – I’m so sorry. Can you get me
an earl-grey, no sugar, dash of skim?

BIANCULLI: She may ask for skim, but "Damages" is the cream of a crop.
Another cable show I enjoy a lot - another one returning tonight - is
"Secret Diary of a Call Girl," beginning its third season on Showtime.
Billie Piper stars as Hannah, a young woman making her way through
British society by adopting an alter ego as a prostitute named Belle and
blogging about it. It’s based on a real woman in England, who not only
blogged about her secret life, but published a popular book about it,
and recently revealed her true identity.

As this new season begins, the TV version of Belle has just seen her
book published, and her life changes a bit as a result. It all may sound
tawdry or tacky, but it really isn’t. Piper’s vulnerable yet charming
performance sees to that. And "Secret Diary" actually has a lot more
class and ambition than, say, your average late-night offering on
Cinemax. Finally, also on Showtime tonight, there’s a new season of
Tracey Ullman’s "State of the Union," in which the amazing Ullman - half
comedienne, half chameleon - burns through about a dozen outlandish
caricatures or impressions in each show.

In this year’s opener, in the makeup room for a TV talk show, she
impersonates not only Rachel Maddow, but Ariana Huffington, Barney Frank
and several others - all at the same time - courtesy of clever editing
and special effects. The problem, though, is that the techniques and the
makeup are so distracting, the comedy itself is kind of diluted. I feel
like I should be laughing more, especially since Ullman’s talents are so
impressive. But as with "Damages," and "Secret Diary of a Call Girl,"
Ullman’s series is another welcome midseason return, and another
watchable alternative to what the broadcast networks aren’t offering
these days.

GROSS: David Bianculli writes for tvworthwatching.com, and teaches TV
and film at Rowan University. His new book is called, "Dangerously
Funny: The Uncensored Story of The Smothers Brothers Comedy Hour."

I’m Terry Gross.
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Transcripts are created on a rush deadline, and accuracy and availability may vary. This text may not be in its final form and may be updated or revised in the future. Please be aware that the authoritative record of Fresh Air interviews and reviews are the audio recordings of each segment.

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