MELISSA BLOCK, host:
This is All Things Considered. From NPR News, I'm Melissa Block. President-elect Obama has criticized the Bush administration's expansion of presidential power, and pressure is building on Mr. Obama to undo many of President Bush's decisions. That's the topic of our final Memo to the President-elect. NPR legal affairs correspondent Nina Totenberg reports on the structure of government power set up by the outgoing president, and how it will affect the new president.
NINA TOTENBERG: Separation of powers - it's a phrase bandied about without thinking, like M&Ms at a party. In the context of the American form of government, it means this: The founders of this nation learned to be afraid of concentrated government power, and so they constructed the government as a three-part system, with none of the three branches having the upper hand, and each with the power to check the other.
President Bush, for almost his entire time in office, maintained that he had powers as chief executive that could trump the other branches of government, that he could - to cite just one example - without telling Congress or the courts, disregard longstanding laws because he interpreted them to be unconstitutional. Thus, he secretly declared that he was not bound by the federal law requiring him to get approval from a specially created court in order to conduct electronic surveillance of American citizens.
On another front, he asserted the power to detain indefinitely both American citizens and foreigners without charge and without court review. The Supreme Court would eventually shoot down these claims of unlimited executive power, but some 250 prisoners remain at Guantanamo, some of them believed to be extremely dangerous, and some of them already declared by the courts to have been detained without justification.
So how is the new president to deal with those assertions of unlimited executive power, assertions which Mr. Obama has long denounced? He has said he plans to shut down Gitmo. But what to do with the prisoners there? It's widely believed that the new administration may have more success in getting other countries to accept detainees who are not believed to be dangerous, or who were low-level fighters picked up in Afghanistan.
But what about people who are thought to be really dangerous? Some can be tried in regular U.S. courts for their crimes. But as to others, the evidence against them is often the product of harsh interrogation techniques, like waterboarding, or from intelligence sources that cannot be cited in open court. So, then what do we do?
Ms. JAMIE GORELICK (Former U.S. Deputy Attorney General): When we started down this path, I asked, what are you going to do with these people in the end?
TOTENBERG: Former Deputy Attorney General and 9/11 Commission member Jamie Gorelick.
Ms. GORELICK: The decision was made by this administration to emphasize prevention at the price of what you do with them at the end. And now we're at that conundrum.
TOTENBERG: The consensus seems to be to wait and see how many of these cases cannot be resolved. Still, the problem is unlikely to go away since in the future, we are likely to capture terrorists who pose a similar dilemma. Gorelick and many others think that, in the end, Congress will have to create some sort of special terrorism court with the power to detain people we cannot try.
That's not something we have ever done in this country but increasingly, talk is focusing on how it could be done: what the standard for detention would be, for how long, and to require some sort of independent and periodic judicial review so that people are not just locked up and forgotten forever - in short, a system set up by one branch of government, the Congress, allowing the executive power to detain, with a check by the judiciary.
Civil libertarians still hate this idea, seeing it as anathema to our system of proving charges with evidence. But it's something President Obama will undoubtedly have to, at least, consider.
Everyone we talked to for this broadcast, conservatives and liberals alike, said it's important that there be more transparency about the decisions being made by the president. The Bush administration only informed eight members of Congress about key intelligence matters - when Congress was informed at all. Senator Arlen Specter, the ranking Republican on the Senate Judiciary Committee, says that's a clear violation of the law.
Senator ARLEN SPECTER (Republican, Pennsylvania): The intelligence committees, plural, should be informed, and that means telling them all.
TOTENBERG: Congress was also repeatedly rebuffed in its efforts to see the legal opinions rendered by the Office of Legal Counsel, opinions that in the Bush years, authorized unprecedented actions, including waterboarding and other harsh interrogation techniques previously considered torture. Once in office, the new administration is likely to review all of these opinions and to withdraw some - among them, an opinion that allows the president to disregard a duly enacted law without telling Congress.
Walter Dellinger, who headed the Clinton Office of Legal Counsel, reflects a widespread view that the legal counsel's opinions do need to be public wherever possible.
Mr. WALTER DELLINGER (Former Administrator, Office of the Legal Counsel): You can't have government by consent of the governed unless the citizenry knows what government's doing. It's really the heart of democracy that you can as a citizen express your opposition to it.
TOTENBERG: The Obama administration will also have to deal with the repercussions of various Bush administration scandals, everything from so-called torture tactics used by the CIA to the mass firing of U.S. attorneys. Expect the new administration to take a fresh look at past interrogation tactics. But few expect there to be criminal prosecutions, since officials and operatives alike relied on Bush administration legal opinions that such tactics were legal.
Also outstanding are congressional subpoenas for information about the U.S. attorney firings. And it is the new president, not the former president, who can either continue to refuse those congressional requests for information or agree to them. Leading Republican and Democratic members of Congress expect the new administration to turn over much of that information.
There seems to be universal agreement, too, that tough congressional oversight helps an administration. Prior to the Bush administration, for instance, Justice Departments run by presidents of both parties gave quite detailed briefings to the House and Senate judiciary committees about how the Foreign Intelligence Surveillance Act was being carried out. That's the law that set up a special court to review requests to conduct electronic surveillance of Americans for intelligence purposes. Former Deputy Attorney General Gorelick…
Ms. GORELICK: There was a dialogue. I know this because I used to do it. I would sit with the chair and ranking member and go through the report and say, here are the issues. When you do that, A, it does sometimes prompt oversight and questions; but, B, it gives you a sense of joining hands between the two branches around a tough issue at the intersection of liberty and security.
TOTENBERG: While Barack Obama has often spoken out strongly about the value of tough oversight and presidential restraint, the view from the Oval Office is very different from the view from Capitol Hill. Brad Berenson, who served as associate White House counsel in the Bush administration, warns the new president that less is often better than more.
Mr. BRAD BERENSON (Former Associate Counsel, Bush Administration): If I had two minutes to put a bug in his ear about what to do, it would all be directed toward having the strength and the wisdom to realize that he shouldn't necessarily use all the power he's going to have. That was one of Bush's big mistakes. But self-restraint is so hard.
TOTENBERG: Nina Totenberg, NPR News, Washington.