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"FacebookPinterest\n\nIt has been twenty years since former attorney general Ed Meese and the Reagan White House were implicated in the Iran-Contra scandal\u2014a secret deal to sell weapons to Iran and give the money to Latin American revolutionaries. In the intervening years, many of the biggest names involved were either pardoned by the first President Bush, got rich in private industry, or returned to office with the second President Bush. But Ed Meese has done even better. In the span of only twenty years, many of the ideas that animated Meese and made him a polarizing figure during the 1980s\u2014including a penchant for unilateral action by the president, a disdain for the role of courts, and a hard line against social liberalism\u2014have entered the American mainstream. With Meese's pet legal cause, which he dubbed \"original intention\" during a speech in 1985, now a guiding philosophy of at least three Supreme Court justices; with a renewed debate over many of the same free-speech issues that Meese ignited two decades ago with his Meese Commission against pornography; and with the philosophy of ecutive privilege that guided Iran-Contra fully embraced by the second Bush White House, including warrantless presidential wiretaps and controversial \"signing statements\" to bypass the role of Congress, Meese sat down to defend the large thumbprints he has left on America and to explain why all of this was what the founders really wanted.\n\nLet's start with pornography. Twenty years ago, you made waves by cracking down on it. When people are using pornography for their own gratification, do you really think it's the government's business\n\n I think the answer is yes, in the sense that people in a democracy have the right to set standards that they want in their communities. There is definitely harm from the use of this sort of thing, so that on that basis, it is reasonable that communities could prohibit things that are beyond the protection of free speech.\n\nIt's a slippery slope, isn't it There are lots of offensive things that people are free to do. \n\n Well, but again, we had a pretty strict rule that unless it was actually illegal, government wouldn't be involved. There was an attempt to have the government come out against Playboy and many of the other magazines, which, while offensive to many people, were not strictly speaking within that test of what was illegal obscenity. And we were very firm that it was not the business of the government to interfere with material that might be offensive to most people. As long as it didn't fulfill the requirements of illegal obscenity, there was nothing that the government should do.\n\nA lot of your ideas about the role of government stem from a belief that the courts and the government have begun losing sight of the founders' original intent. In fact, you are often credited with coining that phrase, \"original intent.\" \n\n I don't think I coined it, but I did help bring it to public attention. In 1985, at the American Bar Association, I gave a speech in which I talked about judges substituting their own personal views for what the Constitution actually said, and said that we needed to return to the Constitution itself as the basis for these decisions. And that speech kind of started the thinking and the debate on this whole idea of what you might call originalism.\n\nCan you give me an example \n\n Well, Roe against Wade is a good one. There is absolutely nowhere in the Constitution that provides a basis for the right to abortion. As soon as they use words like \"emanations arising from penumbras in the Constitution\"\u2014this circumlocution\u2014you know they're making it up. And that's essentially what they did, in Griswold v. Connecticut first, and Roe against Wade. Another one would be what they did recently in this Kelo decision, where they said that the Fifth Amendment says that property can be taken for \"public use,\" and they substituted their idea that it would be for \"public purpose.\" In other words, \"public use\" means it needs to be used for a road or a schoolhouse or something that is used by the public. Instead they substitute \"public purpose,\" which meant that they can take someone's home, as they did in the Kelo case, and take that away from them and then give it over to some other person who will bring in more tax money. That's just absolutely contrary to the Fifth Amendment as it was always understood.\n\nYou say it means one thing, I say it means another thing. Isn't that what the courts are supposed to figure out \n\n The meaning of the language has been clear for 200 years. They've suddenly given it a whole new meaning that has nothing to do with its original meaning.\n\nIsn't it debatable whether there ever was an original meaning Two hundred years ago, you had a bunch of guys who spent the rest of their lives arguing about what they'd really meant. \n\n You didn't have that much arguing. For the first 150 years, by and large, everyone pretty much understood and accepted the original meaning.\n\nBut the founders spent a couple of years trying to choose vague words that would make everybody happy. \n\n No, no, they spent three months on the language.\n\nWell, they began in 1787. \n\n That's what I mean, three months in 1787.\n\nAnd then it wasn't until 1789 that everybody had agreed to it. \n\n That was just the ratification, the process of the ratification.\n\nExactly. \n\n Well, but the meaning was well understood. There was no big change in the meaning.\n\nSo you would say that the arguments between Adams and Jefferson over the next thirty-five years don't reflect any debate about the original meaning \n\n Well, you had some debates on how it applied to specific policy issues, but I don't think you had basic debates on the meaning of the Constitution as such\u2014what the different provisions meant.\n\nWhat about Marbury v. Madison and the question of whether or not the court should decide issues of constitutionality \n\n Yeah, there was an issue of whether they could decide the constitutionality of laws. But if you look in The Federalist Papers, you find that it was pretty much understood that they could.\n\nAnd yet there were a lot of founding fathers who didn't think they could. They felt that the court didn't have that right under the Constitution. \n\n That's right. There were some who felt this was beyond the court's power.\n\nDoesn't that prove there was a debate over the original meaning, and sometimes you have to look a little harder for it \n\n Not if it's not there.\n\nOkay, let's talk about ecutive power. Do you think it poses a legal problem when the president conducts wiretaps on foreign nationals without a FISA review \n\n Well, there is no wiretapping of foreign nationals without FISA warrants. There have been interceptions of international communications, but that's totally different. It's a very limited category: Number one, they have to be international calls, and number two, they have to be to people who are connected with terrorists.\n\nBut doesn't it require a court to determine whether someone is connected with terrorists \n\n No, it doesn't in this case. Courts are not required.\n\nHow do you know someone is a terrorist unless they have been found guilty by a court \n\n Because they are members of Al Qaeda.\n\nYou're saying that the president can intercept a phone call between any American citizen and anyone overseas. \n\n Providing that it is connected with terrorism.\n\nBut it seems circular: You start intercepting calls because the person is a terrorist, and yet the reason you're intercepting the calls is to find out whether or not they're a terrorist. \n\n No, no, no. There are key words being used in the communication itself. So you have a combination of, number one, a terrorist on the international end, and key words that lead them to believe it is a terrorist conversation.\n\nHow do we know they're using key words before we start intercepting their calls \n\n There's a lot more technical stuff to this, much of which is classified. But it is limited to people known or suspected to be terrorists, and the communications themselves are indicative of that.\n\nLet's move to the Geneva Conventions. A lot of people are concerned that terrorism suspects don't have any kind of habeas corpus. \n\n In order to be covered by the Geneva Convention, you have to fulfill certain requirements. Number one, you have to be in uniform. Number two, you have to be part of a military unit subject to military discipline. Number three, you have to be engaged in combat with other military units and not primarily striking at civilians. So there are a number of criteria in the Geneva Convention that are not met by everyone on the battlefield. Then there's another category of people going back to the Revolutionary War\u2014people who were in those days called spies. If they were not in uniform, they were subject to being summarily ecuted.\n\nYou mean they were ecuted without even a military tribunal \n\n I think there were some. Also, a \"tribunal\" could be a military commander ordering the hanging. I think that's what happened to some of them.\n\nYou're advocating summary ecution. \n\n Well, yeah, that happens in the military. Illegal combatants are not entitled to the protections of the Geneva Conventions.\n\nSo we call them \"illegal combatants,\" without using any legal basis to determine whether they're illegal or not. \n\n Well, we do. We have military tribunals.\n\nBut not always, apparently. \n\n My understanding is that illegal combatants are subject to military tribunals. But in any event, they have been captured on the field of battle, and anyone captured on the field of battle is either one of these two categories. And both categories can be detained until the end of hostilities.\n\nWhen we talk about being detained until the war is over, we're talking about a war that could go on for half a century. \n\n Absolutely.\n\nDoesn't detaining someone that long compete with some of the values in the Constitution \n\n No, it doesn't.\n\nWe value a speedy trial, as a culture. That's why we put it in the Constitution. \n\n We value a speedy trial for criminals. But a person who's been apprehended and captured on the field of battle, that status itself identifies them as either a prisoner of war or an illegal combatant.\n\nUnless they live there. \n\n Well, how many people do you have standing around the field of battle\n\nIt depends the battle. Certainly it's possible. \n\n And of course, that's why the president has applied the military tribunals. So that people have the ability, if they claim their innocence, to demonstrate it. But the reason why you detain the people is that you don't want them going back and taking up arms against our soldiers.\n\nShouldn't we extend them the right to a public trial for that purpose \n\n Why would we Why would you do that to somebody who's not entitled to it under any law Why would be extend the laws to people who are trying to kill Americans\n\nIt seems to me that it goes back to original intent. \n\n No, it doesn't.\n\nJefferson wrote, \"All men are created equal,\" not \"all Americans.\" He said that men are \"endowed by their Creator\" with these rights, not endowed by \"the Constitution.\" \n\n But that doesn't have to do with enemy soldiers.\n\nWell, when I read the Declaration of Independence, I don't think he's talking about exclusively American rights. He's talking about rights that he believes are natural, God-given rights, which had been denied under George III. \n\n They are.\n\nAnd he's saying that anybody who tries to keep those rights from a human being is committing a crime against God. \n\n Absolutely, and they believed that.\n\nSo if we don't respect those human rights\u2026\n\n We do give criminals those rights. We just don't give them to enemy soldiers who are engaged in battle against the United States.\n\nIsn't that just a semantic difference These are human beings, and we're talking about human rights. \n\n The human rights that you're protecting are the rights of innocent civilians to be free from having enemies try to kill them. The Bill of Rights doesn't apply to criminals and enemies.\n\nSure it does. The Fourth Amendment applies to criminals. The Fifth Amendment applies to criminals. \n\n They apply to criminals in this country. People who are in this country, but not to people who are killing Americans.\n\nA great number of criminals in this country are killing Americans. They still have a right to a speedy public trial. \n\n All right. But under our laws, they are not available to those who are either prisoners of war or who are enemy combatants. They are not available to persons who are outside this country, who are killing Americans.\n\nI also wanted to ask you about the Second Amendment. It says, \"A well-regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.\" It was written at a time when there was no permanent standing army and a well-regulated militia really was necessary for national security. I wonder if an originalist reading makes the whole Second Amendment obsolete. \n\n No. Because in those days the \"militia\" was every able-bodied man. So what it meant was that every able-bodied person was entitled to own and bear arms.\n\nAnd what do you suppose \"well-regulated\" meant \n\n That was what they depended on for the defense of their communities. You have two clauses, but the gravamen is the right of people to bear arms.\n\nI just wonder where the regulation of the militia fits in. \n\n Well, we have regulation now. We certainly have regulation as a part of the Second Amendment. We regulate under what conditions people can bear arms.\n\nI live up in the Appalachian Mountains, and it would be hard to describe my neighbors as a well-regulated militia. \n\n Well, we do have regulations. It's illegal in some cities to have loaded weapons. There are laws that you can't carry concealed weapons. So I would say there's obviously sufficient regulation under the Constitution.\n\nSo you're saying that the United States currently has a well-regulated militia. \n\n Well, we do.\n\nAnother outcry lately has been over the uses of interrogation techniques that involve sleep deprivation and uncomfortable positions. Do you think that the Bush administration has pushed the boundaries on that \n\n I don't know. A lot of this has been classified. There have been a lot of accusations, but I haven't seen much evidence, so I really don't know enough to render a judgment. But my own belief is that the administration is committed not to engage in anything that we would call torture. They're committed to humane treatment.\n\nIt seems like some of these techniques, like waterboarding, are a long way from humane. \n\n Well, again, I have a great deal of confidence that the administration would not engage in torture.\n\nWould you call that torture \n\n I don't know. I don't know about waterboarding.\n\nIt's putting a wet rag over someone's mouth and making them think that they're going to drown. \n\n Yeah, I don't know. As I said, I don't know enough about it to give a firm determination.\n\nThat doesn't necessarily sound like torture to you \n\n I don't know whether they're doing that.\n\nAnd if they are \n\n I don't know, because I don't know enough about it.\n\nI'm asking, if that is what they're doing, does that sound like torture \n\n Well, I'd have to find out how long they do it and whether it does create the impression of drowning. I've never heard of this using a washcloth in their mouth before.\n\nYou know, this is also the twentieth anniversary of the whole Iran-Contra nightmare. \n\n Not really. Well, I guess it is.\n\nAre there things about that you wish you could have done differently \n\n Well, not really, because there was nothing that the president or any of the rest of us knew until we discovered what had happened, and then it was revealed immediately to the public, and the president did exactly the right thing.\n\nBut you know, the independent counsel's report paints a very different picture. \n\n No, they said the president was not involved.\n\nThey said, for example, that you knew in January of '86 and didn't tell anybody until November of '86. \n\n That's absolutely false. I have not seen that, but that's absolutely false. Wait a minute. We knew of the fact of the Iranian thing\u2014true, we knew about that. It was something authorized by the president. But that's not something you tell the public. The people who needed to know about that knew. And the president determined, because of the absolute need for secrecy, that this could be carried on, and he followed all the legal requirements at the time. He didn't tell Congress. He delayed notification of Congress, which the law allowed, because of the need for secrecy and because you couldn't have any leaks at the time, so that there was nothing wrong in doing that. The Walsh Commission didn't find anything wrong with that.\n\nThey did. They said that between January and November of 1986, you and other administration officials were looking for ways to find legal justifications for the sale. \n\n No, we had legal justification. That had been clear right from the start. We had legal justification before the thing was done.\n\nThe independent counsel's report, the Walsh Report, makes accusations against you and other members of the administration. It says at one point that they received documents in 1992 which, if they'd had them in 1987, they might have prosecuted you. \n\n I haven't seen that.\n\nWere you looking for a legal justification, trying to find a way to make it okay \n\n Oh yeah, it was certainly legal. That was concurred on by me and the counsel for CIA.\n\nI just hope some of those weapons aren't still kicking around Iran. \n\n Well, they were antiaircraft weapons, antitank weapons.\n\nHate to run into those someday, if we ever send troops in. \n\n Well, they were only for ground combat.\n\nDo you still believe in what the administration was doing in Nicaragua By undermining the Sandinistas and supporting the Contras, do you believe you stopped a Latin American domino effect \n\n Oh yes, absolutely. No question. They would have undermined the government of El Salvador, and if El Salvador had fallen, they probably would have gone for other countries\u2014Honduras, Costa Rica, even Mexico.\n\nFinally, I wanted to touch on partisan rancor in Washington these days. Do you think it's getting worse \n\n Oh yeah. I think so. Very definitely.\n\nHow would the founding fathers feel about that \n\n Well, I think they'd be disappointed. Part of the problem today is that you have a very mean-spirited Democratic minority. President Bush has continually tried to refrain from direct personal attacks on leaders of the opposition party. He's offered the hand of friendship to them, he's tried to be cooperative, and unfortunately you seem to have leadership on the other side that has been unduly combative and mean-spirited. I can't think of a situation when the Republicans have ever called the president a liar.\n\nThe Republicans certainly called President Clinton a liar. \n\n They said that he lied. But to just say he is a liar, and some of the other vicious attacks on the president\u2014I don't think we've ever had as vicious attacks on a president as we've had currently.\n\nDo you think the Democratic resistance to President Bush is greater than the Republican resistance to President Clinton \n\n Oh, I think so. The Republicans, when they were with Clinton, were very constructive.\n\nThere weren't exactly warm feelings. \n\n Well, I don't know that there weren't warm feelings. The Republicans passed virtually all of his judges. They confirmed two of the most liberal candidates that were ever proposed for the Supreme Court. So I think that they were very cooperative with Clinton."^^<http://www.w3.org/2001/XMLSchema#string>
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