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CNN Live Event/Special
Broken Government: Power Play
Aired October 26, 2006 - 20:00 ET
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
JOHN KING, CNN ANCHOR (voice-over): Islamabad, Pakistan, an edgy place in the weeks after September 11.
Moazzam Begg, among the newcomers arriving from neighboring Afghanistan after the bombs started falling, he thought he had escaped, until a midnight knock at the door introduced him to the most expansive display of presidential power in American history.
MOAZZAM BEGG, FORMER DETAINEE: I opened the door to be faced with people, several of them, pointing guns and electric stun guns toward me. Nobody said anything. They didn't ask me any questions. They didn't identify themselves. They pushed me to the forecourt of -- of my house, and then into the front room, where I was made to kneel.
My hands were shackled behind my back. My legs were shackled. The last thing I saw, before they put my hood over my head, was them walking towards the room where my children were.
KING: A terrifying van ride would bring Begg his first glimpse of America's reach in the post-9/11 world.
BEGG: Somebody lifted the hood off of my head. And I heard an American voice speak to me. And I -- I saw him. And he produced a pair of handcuffs. And he said that these handcuffs were -- were from one of the widows of the September 11 victims, given to him in order for him to capture the perpetrators.
KING: No search warrant, no arrest warrant -- enemy combatant was his designation. And he would soon realize that there were others, that his captors wanted information, and that they were impatient.
BEGG: Dragged across the floor, thrown on to the ground. Our clothes were ripped off with knives, with several soldiers sitting on top of us. We were being kicked, punched, beaten, sworn at, spat at. Dogs were barking around us. We were photographed naked, and then dragged naked and shivering into interrogation rooms, where the first questioning began.
GEORGE W. BUSH, PRESIDENT OF THE UNITED STATES: Our grief has turned to anger, and anger to resolution. Whether we bring our enemies to justice, or bring justice to our enemies, justice will be done.
KING: The president, who took 9/11 personally, wanted justice on his terms.
MARY MATALIN, FORMER ASSISTANT TO PRESIDENT BUSH: I remember, almost from the moment of the night of 9/11, saying to us, in the bomb shelter, when he got back from Nebraska: "This is the mission of this government. This is the mission of this administration. We will bring these terrorists, in whatever form it takes, to justice," and was relentless in pursuing whatever it took to change the machinery and the strategic relationships of government to make that happen.
KING: New rules for a new enemy.
BUSH: I can hear you.
(CHEERING AND APPLAUSE)
KING: The president in office just eight months, facing an extraordinary challenge, and finding a critical ally in a man he had never met, and in an outpost of the bureaucracy not usually associated with war or diplomacy.
Law professor John Yoo had just landed a mid-level job at the Justice Department, and was suddenly turning his lectures about presidential power into muscular memos for the Oval Office inbox.
JOHN YOO, FORMER JUSTICE DEPARTMENT COUNSEL: Wartime always expands the powers of the president, because it's the agency of the government that's best able to reaction to foreign danger, and act quickly.
KING (on camera): Justice, on Mrs. Bush's terms, would mean challenge after challenge, test after test of the balance of powers laid out in the Constitution, adopted here in Philadelphia's Independence Hall 219 years ago, written by men, who, for all their brilliance, could not have imagined jet aircraft, let alone jet aircraft used as weapons.
Nor could men determined to find the lasting antidote to tyranny have imagined the Internet, spy satellites, other technological advances now so central in the war on terror. But they did warn, in this hall, time and time again of too much presidential power, creating a careful system of checks by the Congress and the courts, lines the Bush administration, in the name of protecting Americans from another attack, has repeatedly stretched, rewritten, and sometimes just ignored.
(voice-over): Within hours of the 9/11 attacks, a military response was inevitable. And, within days, the defense secretary began asking about the lines between tough and torture. It made some military lawyers nervous. To them, it was all spelled out in the Army Field Manual and the Geneva Conventions.
TORIE CLARKE, FORMER PENTAGON SPOKESWOMAN: Difficult issues are never black and white. There are grays and shades of gray. And they change, and they evolve. So, it was never a simple: This is one position; that's the other position -- position.
There are many different levels to each. And, so, it was much more of a Rubik's Cube, if you will, of trying to find your way forward.
KING: The White House wasn't interested in a debate. It bypassed the Pentagon, looking, instead, to the Justice Department's Office of Legal Counsel and John Yoo.
YOO: But, if there was ever an emergency that struck our country and demanded vigorous executive action and response, it was this new kind of attack.
KING: The Geneva Conventions govern treatment of wartime prisoners -- not this time. "Customary international law, whatever its source and content, does not bind the president," Yoo and his Office of Legal Counsel colleagues advised the White House.
Article 1, Section 8 of the Constitution gives Congress the power to make rules concerning captures on land and water -- again, not this time. "Any efforts by Congress to regulate the interrogation of battlefield combatants, the Justice Department told Mr. Bush, would violate the Constitution's sole vesting of the commander in chief authority in the president."
YOO: The general idea was, we want to give the president as much authority as possible to fight this war. It's a network of extremists. And the way to defeat them might call on us to use methods and tools that would be more secret than what has been in the past, or more aggressive than what was in the past.
KING: Methods and tools Moazzam Begg first encountered in Kandahar, then, more aggressively and frequently, he says, at the U.S. detention center at Bagram, Afghanistan.
BEGG: Tied with my hands behind my back, being then shackled to my legs. So, I was almost hog-tied, like an animal, being kicked and punched and beaten, threatened with further torture in a place in Egypt, if I didn't cooperate, and hearing the sound of a woman screaming next door to the interrogation room, which I was led to believe was my wife.
If there's anything worse than that, it's watching the abuse, humiliation, and murder of other people. I watched two people getting beaten to death in front of me, and was unable to do anything about it.
KING: Coming up: broad expansion of presidential powers here at home, too.
UNIDENTIFIED MALE: Satellite communications, Internet, you know, things like that, are also the same tools al Qaeda is using against us. That's how they succeed.
KING: And the small-town Connecticut library that said, enough.
KING (voice-over): Glastonbury, Connecticut, is one of those places that values its history and traditions. Flags were always easy to come by. There are more since 9/11.
The Welles-Turner Memorial Library is a Main Street landmark. Here, the first sign of how that day changed everything came in the crush for new shelf space.
Then came the call from the FBI, talk of a suspicious Internet session on a library computer, and a visit to executive director George Christian to deliver a letter.
GEORGE CHRISTIAN, EXECUTIVE DIRECTOR, LIBRARY CONNECTION, INC.: A national security letter. And I -- I had never heard those three words before, as I'm sure most people in the United States never had.
KING: A little research told Christian all he needed to know: Main street Glastonbury was smack in the middle of the post-9/11 collision between law enforcement and civil liberties.
CHRISTIAN: They wanted to know everything we knew about who might be using that I.P. address for a particular 45-minute period back in February.
KING: George Christian said no.
CHRISTIAN: Connecticut, like 47 other of the 50 states, has statutes that guarantee the inviolability of patron privacy. And we are instructed by the law not to disclose what our patrons are up to, to anyone, without, obviously, a -- a search warrant.
KING: Christian recalls two FBI agents insisting they didn't need a warrant, and warning him, those who receive national security letters are sworn to secrecy.
CHRISTIAN: It was interesting, though, that it was a -- a good- guy/bad-guy kind of thing, that -- that one of the FBI agents was a nice young man, dressed, like I, in blazer, tie, and the other was a much more robustly muscled individual, wearing a nit shirt that revealed exactly how -- how muscular he was. He stood in the background and didn't say anything.
KING (on camera): But you knew he was around.
KING (voice-over): Christian said he needed to talk to his lawyer.
CHRISTIAN: Really, coming at it from a civil liberties aspect, I think that it's natural, over time, for governments to intrude on civil liberties. And -- and the way to curb that is to stand up and say, no, I don't think so.
KING: No was not a word the FBI -- and the president, for that matter -- was prepared to accept in the post-9/11 anti-terror revolution, a new normal that brought a color code for terror threats and a new mission for the FBI.
BUSH: Now that we're at war, we ought to give the FBI the tools necessary to track down terrorists.
KING: What is new and controversial to many Americans is longstanding practice in some democracies.
In the late 1990s, for example, Moazzam Begg was still living in his hometown of Birmingham, England, and drawing the attention of Britain's MI5 spy agency. Islamic radicalism was on the rise. And a bookstore Begg owns in a Muslim neighborhood became a gathering place of many on both British and U.S. government watch lists.
The MI5 would be a model, as the president pushed the USA Patriot Act, passed by Congress just six weeks after 9/11 -- one of its goals, breaking a tense CIA-FBI rivalry that made competition more common than cooperation. It relaxed rules for sharing between law enforcement and intelligence agencies, allowed roving wiretaps of suspected terrorists, and created great executive authority to use national security letters to subpoena e-mail, library, and other records.
(on camera): I would assume you would concede that, in rare circumstances, the government has to trample on individual rights for a larger cause?
CHRISTIAN: I would say, in emergencies, yes. But I would rather have that defined carefully than just say, blanket, yes, there are circumstances, and let the government define what those circumstances are.
KING (voice-over): Broad new powers, but, in the view of the president and his team, they did not go far enough.
Mr. Bush approved more aggressive home-front tactics that were meant to stay secret: a massive domestic eavesdropping program, an unprecedented use of data mining, searching electronic bills and other records, and a secret financial database to track terror supporters. Administration critics, like former Clinton White House Chief of Staff John Podesta, call it a reckless power play.
JOHN PODESTA, FORMER CLINTON WHITE HOUSE CHIEF OF STAFF: Specifically, for example, in the -- in the warrantless wiretapping case, they ignore statutes. They ignore the Constitution. And they have gone well beyond what people view as being a strong president, to perhaps being a lawless one.
KING: The Foreign Intelligence Surveillance Act of 1978 was one of many post-Watergate reforms designed to check presidential power. It created a special secret court to approve surveillance within the United States. But the president didn't want to involve the courts or ask Congress for more robust surveillance powers.
Once again, John Yoo and the Justice Department's Office of Legal Counsel cleared the way.
SEN. TRENT LOTT (R), MISSISSIPPI: The American people expect it of us, and they will accept nothing less.
KING: Just three days after the 9/11 attacks, Congress passed a resolution authorizing the president to use all necessary and appropriate force against those responsible -- to John Yoo, legal justification for bypassing the courts, ignoring the 1978 FISA law, and launching the top-secret eavesdropping program.
YOO: I think what happened with the NSA program is not that there's this desire to grab power. I think it's a legitimate concern about revealing information that would be helpful to al Qaeda.
PODESTA: What's really characteristic of this administration is, they make law in secret. They -- they write memos to themselves, claiming this authority, never explain it to the American people, never explain it to the Congress.
KING: George Christian is neither a lawyer, nor a politician. His decision to fight back, he says, born of Yankee sensibility and history's lessons.
CHRISTIAN: They certainly do not want our country to suffer the deprivations of terrorist attacks. But, when you join the armed forces, you take an oath to defend the Constitution, not the country, not the president.
And that's -- that's what this country is all about. And I feel that I -- I was patriotic, in that sense, very much. I was defending the Constitution against its being violated, needlessly. Franklin made a famous quip about that, that those who would sacrifice liberty in order to gain security deserve neither, and -- and end up with neither.
KING: Up next:
UNIDENTIFIED MALE: Just kind of assess everything (INAUDIBLE) situation (INAUDIBLE) as far as casualties and whatnot.
KING: Not the presidency he imagined, but a defining moment gave birth to defiant rhetoric.
BUSH: Either you are with us, or you are with the terrorists.
(BEGIN VIDEOTAPE) KING: He began on a very different course, a governor with a famous name who conveyed more West Texas than Washington. Compassionate conservative was his label of choice, kinder, gentler, his promised world view.
(BEGIN VIDEO CLIP, OCTOBER 12, 2000)
BUSH: State, if we're an arrogant nation, they will -- they will resent us. If we're a humble nation, but strong, they will welcome us.
(END VIDEO CLIP)
SEN. ROBERT BYRD (D), WEST VIRGINIA: I looked with great hope upon our president when he first came to the Oval Office.
(END VIDEO CLIP)
KING: Democrat Robert Byrd is the longest serving senator in history, always carrying a copy of the Constitution as he has crossed paths, and sometimes swords, with 11 presidents. He fondly recalls a dinner invitation just after George W. Bush moved into the White House.
BYRD: I was very impressed -- and I told my wife on the way home so -- very impressed that he said grace at the meal. He was a humble man, I thought, a man who will think of the scriptures, and who will think of the Constitution, who will be a man who will listen.
KING: Not long after, a crisp September morning suddenly turned from gorgeous to gruesome.
ANDREW CARD, WHITE HOUSE CHIEF OF STAFF: And I walked up to his right ear, leaned over, and whispered in: "A second plane hit the second tower. America is under attack."
KING: A few whispered words in a Florida schoolroom transformed a presidency and a president.
On Air Force One, moments later, his first big taste of the power and consequences of being commander in chief -- a few commercial flights were still unaccounted for. The Pentagon needed orders.
CARD: It was a short, but very heavy discussion, but the decision was made that, if hostile acts were likely to be taken place by a commercial jetliner, a fighter pilot would be given permission to shoot the plane down.
BUSH: America has stood down enemies before, and we will do so this time.
KING: The transformation was immediate. Talk of humility on the world stage gave way to a doctrine of preemption, us vs. them, whatever it takes.
BUSH: Freedom and fear, justice and cruelty have always been at war, and we know that God is not neutral between them.
BRUCE BUCHANAN, PRESIDENTIAL HISTORIAN: There's a religious factor. Bush, by many accounts, truly believes that he is divinely inspired, and feels that he's doing the right thing. There's that side of it, the -- the sense-of-destiny side. There is also a kind of a personal-defiance side.
KING: Not the same man University of Texas historian Bruce Buchanan studied during his days in Austin.
BUCHANAN: Would never have expected it, watching him as governor right down the street. He was not someone with any particular interest in foreign policy.
KING: In his new mission, results mattered more than rules.
Moazzam Begg was one of dozens rounded up when the White House gave Pakistan a list of suspected al Qaeda operatives, and an ultimatum.
(BEGIN VIDEO CLIP, OCTOBER 7, 2001)
BUSH: If any government sponsors the outlaws and killers of innocents, they have become outlaws and murderers themselves, and they will take that lonely path at their own peril.
(END VIDEO CLIP)
BEGG: This could not have happened, in this way, in Europe or elsewhere. You could not kidnap somebody in this way, and expect to get away with it.
KING: A president obsessed with preventing another attack, and convinced people like Begg were the key.
YOO: The first question was really, what do we do with these guys? It wasn't like they came to us and said: We want to do something. Give us a justification for it.
They honestly didn't know what the right thing to do was.
KING (on camera): But, at some point, somebody thinks, the tougher we can be, the more we will learn.
KING: What happens if somebody says, "I'm torturing these people"?
YOO: What people really want to know is how much flexibility does the president have even to make those kinds of choices?
KING (voice-over): The decision to bypass Congress and authorize the domestic surveillance program was born of the same calculation.
YOO: Go back to the winter of 2001, 2002, where we thought there were going to be very devastating attacks that were about to be launched. And, so, yes, I do think that, if you're in that situation, the ticking-time-bomb situation, where you believe there's about to be an imminent -- imminent attack, I think the president can take measures he's -- that he believes are necessary to prevent those attacks.
KING: Mr. Bush is hardly the first president to test the reach of executive power. President Lincoln, at the height of the Civil War, suspended one of democracy's most fundamental rights: habeas corpus, the right to go to court to challenge imprisonment. During World War II, President Roosevelt ordered the detention of 100,000 Japanese and Americans of Japanese descent.
But no president has pushed the limits on the scale of this one, overseas at home, from secret CIA prisons and domestic eavesdropping, to what some consider the boldest test of all, launching war in Iraq, absent any direct attack or provocation.
BUCHANAN: That assertion stands as the most stark departure from ordinary assumptions about how presidents will use the war power. It raises questions about the -- the proper scope of presidential power in more intense ways, I think, than most of the other things associated with detainees, and wiretapping, and things of that sort.
KING: Mr. Bush argues, the results justify the extraordinary steps.
Captured senior al Qaeda operative Abu Zubaydah, for example, initially told interrogators little.
BUSH: And, so, the CIA used an alternative set of procedures.
KING: Mr. Bush credits those alternative procedures for information that led to the capture of 9/11 planners Ramzi Binalshibh and Khalid Shaikh Mohammed.
BUSH: Once in our custody, KSM was questioned by the CIA using these procedures. And he soon provided information that helped us stop another planned attack on the United States.
KING: Moazzam Begg remembers both physical and psychological extremes.
BEGG: Sometimes, in the middle of the night, sometimes, continuously being interrogated for hours on end, lasting up to 24 hours, and sometimes for five minutes. We didn't have access to natural light. I didn't -- hadn't seen the sun for almost a year. I don't think any man, president or not of the United States, should have that much power.
BUSH: There will be a legal debate about whether or not I have the authority to do this. I'm absolutely convinced I do.
KING: But, to Senator Byrd, the lesson of that long-ago dinner: His first impressions can be wrong. BYRD: No president is above the law or above the Constitution. And I have to say that this White House, I think, has disregarded the Constitution in many ways. And I think the people are going to make a judgment. And so will history.
KING: Ahead: The man at Mr. Bush's side has waited 30 years for the chance to rebuild the power of the presidency.
RICHARD B. CHENEY, VICE PRESIDENT OF THE UNITED STATES: We're doing what we think is right. And I'm very comfortable with that.
KING: I'm John King in New York. Our "Broken Government" special continues in just a moment.
First though, this hour's top stories. A big wildfire near Palm Springs, California has killed four firefighters and another is in critical condition. The wind shifted and blew a wall of flame into their fire engine. The arson-caused fire is also blocking the only road out of an R.V. park, trapping some 500 campers.
This month's U.S. military death toll in Iraq is now 96. The Pentagon announced today five U.S. troop deaths in Iraq's Anbar province. However, the military also says violence in Baghdad has dipped in the past few days.
President Bush has signed a bill to put up 700 miles of fencing along the U.S./Mexican border. The bill provides no money to actually pay for the fence, although there's a $1 billion down payment in a different homeland security measure.
On the campaign trail today the president slammed the New Jersey state supreme court decision to give same-sex couples the same rights and benefits as married heterosexuals. The president blamed what he called, "an activist court," even though a majority of the justices were appointed by a Republican governor.
Scientists say wild pigs called javelina may be to blame spreading e. coli bacteria in California's spinach fields, sparking the recent nation-wide outbreak.
And the spring of records continues on Wall Street. For the twelfth time in the last 17 sessions, the Dow Industrials closed at an all-time high, this time, 12,163.
I'm John King. Not back to our "Broken Government" series, "Power Play".
KING: Morfoot (ph), Texas, show of military might. It is the vice president's favorite setting. This, his constant refrain. CHENEY: Thinking about September 11th still moves all of us, because the attack was directed at all of us. We were meant to take it personally, and we still do take it personally.
KING: There is no doubt in Dick Cheney's imprint on the administration's war on terror. Support for robust presidential power is a Cheney trademark, a personal mission for 30 years, and central to virtually every policy recommendation, before and after 9/11.
CHENEY: We are now engaged in a constant effort, obviously, to protect the nation against further attack. That means we need good intelligence. It means there have to be national security secrets. It means we need to be able to go after and capture or kill those people who are trying to kill Americans. That's not pleasant business. It's a very serious business.
KING: His views can seem at odds with his upbringing. Wyoming is Dick Cheney's home, a rugged place where most are skeptical of government power, especially government in far away Washington.
UNIDENTIFIED MALE: You know, this is -- out here gun control is how steady you hold your rifle.
ALAN SIMPSON, (R) FORMER U.S. SENATOR: Cheney is a westerner. He's inoculated against B.S.
KING: Former Senator Alan Simpson is a Cheney friend, dating back to the 1960s, a student of both frontier and presidential history.
SIMPSON: Executive power has a lighter hand in peace and a heavier hand in war.
KING: By all accounts, including Mr. Cheney's, his zest for a strong presidency was born of his witness to a weak one, at Gerald Ford's side in the aftermath of Watergate.
SIMPSON: When he was 34 years old, he was the chief of staff of the president of the United States. So why wouldn't he be enamored for the rest of his days about the power of the presidency?
RICHARD M. NIXON, FORMER PRESIDENT OF THE UNITED STATES: Well, I'm not a crook. I've earned everything I've got.
KING: Cheney was on the losing side in those days after Nixon's resignation as Congress rushed to restrict executive power. He talked about it with CNN in an interview in 2002.
CHENEY: And there's been a constant steady erosion of the prerogatives and the power of the Oval Office, a continual encroachment by Congress, War Powers Act, anti-impoundment and a budget control act. So the office is weaker today than it was 30, 35 years ago.
KING: That first White House experience would guide his political career. In Congress in the 1980s, for example, the Iran- Contra committee accused the Reagan White House of deliberating ignoring a law forbidding U.S. aid to Nicaraguan rebels. But Cheney was the architect of a defiant 155-page minority report that said Congress had no right to tell a president how to direct foreign policy.
CHENEY: The last thing Congress needs to do is to legislate new restrictions on presidential power and authority.
SIMPSON: The power of the presidency, that's his lodestone.
KING: Being back in the White House meant a chance to set things right. His secret energy task force, citing executive privilege, refused to disclose participants in its meetings. Cheney fought complaints all the way to the Supreme Court.
CHENEY: This is about the ability of future presidents and vice presidents to do their job. And they've always had the capacity in the past to get honest, unvarnished advice.
KING: He is also the architect of another dramatic executive power play, an explosion in the use of signing statements to take issue with laws passed by Congress, especially those dealing with presidential power.
PODESTA: He's created for himself virtually a line item veto, that is, he can strike certain sections of the bill, and say, I'm going to ignore those and implement the ones I agree with and not implement the ones I disagree with.
KING: Twice, for example, Congress has passed laws forbidding the military from using intelligence not lawfully collected. On both occasions Mr. Bush issued a signing statement, saying only the commander in chief can make such decisions.
The tactic is not new. The president's father challenged 232 laws over four years. President Clinton issued 140 signing statements in eight years. But this administration has used the practice nearly 800 times in six years.
PODESTA: Pre-dates 9/11, it was a plan to exalt and aggrandize the executive branch, the so-called unitary executive theory.
You kind of have to scratch your head a little bit and say that the model you set for yourself is to restore the imperial presidency of Richard Nixon.
SIMPSON: Give it up, being a tough guy. I mean, I don't agree with all he does, but I know that he's not out to destroy the United States of America and the Constitution and all of the things we cherish. I do know that.
KING: The dark side. He is well aware of the label.
CHENEY: I suppose sometimes people look at my demeanor and say, well, he's the Darth Vader of the administration.
KING: His default, especially since 9/11, is assume the worst, whether the issue is intelligence about Iraq's weapons programs or what legal status to give suspected terrorists in U.S. custody, people like Moazzam Begg.
CHENEY: These are not prisoners of war. These are terrorists. These are people who, some of whom may in fact have been involved in planning or supporting the attack on the United States on September 11.
KING: Begg was transferred from Bagram to Guantanamo Bay after a year in U.S. custody. It was not just Begg's radical friends in Birmingham that concerned U.S. and British counterterrorism officials. His passport was a road map of militant Islam.
He delivered relief to Bosnian Muslims during their civil war and considered joining the fight, more trips to militant Muslim camps in Chechnya and Kashmir. And it more than raised eyebrows in intelligence circles when a man with a wife and kids left a comfortable middle class British neighborhood to move to Afghanistan in 2000.
(on camera): If you tried to explain something like that the reaction was?
BEGG: The reaction was, why would you go to such a place? You must be a terrorist.
KING (voice-over): So when British Prime Minister Tony Blair began pressuring Washington about the treatment of Begg and other British nationals in U.S. custody, the vice president was reluctant to give ground.
CHENEY: These are bad guys. They've been screened, pre- screened, if you will, in Afghanistan and those that end up in Guantanamo, we have reason to believe are in fact very dangerous.
KING: Assume the worst, a philosophy that came from the top, from the vice president, who sees his job as being the bad cop. His responsibility, see the glass as half empty, to assume the worst. Coming up:
LT. CMDR CHARLES SWIFT: He says, I don't want to be famous, I want to go home. I said, home is through the Supreme Court.
KING: The president's powers come under challenge in the courts by men Mr. Bush calls terrorists and by men who call Mr. Bush commander in chief.
KING: Lieutenant Commander Charlie Swift loves a challenge, hates sitting still. But sit he did, for nine months after being assigned to the Navy JAG unit assembled to serve as defense attorneys for terror detainees being held at Guantanamo Bay, Cuba.
In December 2003, finally a client, Salim Ahmed Hamdan, Osama bin Laden's driver. Swift remembers packing for his first trip to Gitmo and stopping by for a quick chat with the military prosecutor.
SWIFT: The chief prosecutor said, your access is there so long as you negotiate a plea bargain. If you're not negotiating a plea, then your access may be cut off.
KING (on camera): What did that tell you?
SWIFT: That told me I was definitely going to federal court.
KING: David versus Goliath. A mid-level officer not only suing his commander in chief, but accusing him of running roughshod over the Constitution, international law, and more than a century of military tradition.
SWIFT: The president of the United States decides who gets tried. And he's the one who ultimately approves or disapproves your sentence. And he's the one who sets the rules. That's how it all came together in one branch.
That power is incredibly abusive. That power cannot work. We stopped being American when we start doing that.
KING: What bothered him most was learning he might not get access to everything the government knew about his client. That prompted him to look even more closely at the new rules of evidence approved by the president.
SWIFT: Chaining somebody down for 24 hours until they talk or 12 hours, putting them in extraordinarily uncomfortable positions for hours on end, or actually even going so far as possibly, you know, simulating drowning, or something like that, to obtain a confession. That's not coming in, in any regular court, anywhere in the civilized world.
KING: Charlie Swift's complaint about conditions at Guantanamo Bay is Moazzam Begg's experience, at least by his account.
BEGG: The same people who had ordered my maltreatment, my torture in Bagram turned up with a confession for me to sign. I refused initially and said I wouldn't do so without a lawyer. And they said that you won't see a lawyer unless you sign this.
KING: Begg would be in U.S. custody for two and a half years before he saw a lawyer. By then the pendulum was beginning to swing against the president and his expansive view of executive power. And Charlie Swift, Lieutenant Commander Charlie Swift, was happy to help push.
SWIFT: You don't want the president to have a blank check. We don't pledge allegiance to the president. Every military officer pledges allegiance to support and defend the Constitution of the United States.
KING: The high court had already twice rejected the president's rules, but Swift's case, Hamdan versus Rumsfeld, was the decisive blow. SWIFT: It means that we can't be scared out of who we are. And that's victory, folks.
KING: Writing for the majority, Justice John Paul Stevens said the president wrongly bypassed Congress and ignored international law in establishing military commissions. "The executive," Justice Stevens wrote, "is bound to comply with the Rule of Law".
The domestic eavesdropping program also is in legal jeopardy. A U.S. District Court judge ruled it unconstitutional, saying,
"It was never the intent of the framers to give the president such unfettered control, particularly when his actions blatantly disregard the parameters clearly enumerated in the Bill of Rights."
The administration is appealing that ruling.
YOO: Civil War, World War II, the courts generally until the war was over make decisions about the legality of this or desirability of that. In this war, it's incredible, the Supreme Court is intervening while the war is still going on.
PODESTA: You know, that's the different between President George and King George. You know, we did fight a revolution about this, to provide a set of checks and balances in our Constitution that has made this the strongest, greatest country on earth. And I think they want to turn the clock so far back that it's really quite mind-boggling.
KING: Charlie Swift was twice passed over for promotions during all this and says he will leave the military soon with no bitterness and no regrets.
(on camera): If you had five minutes on the way out to sit down with the President of the United States, what did you tell him?
SWIFT: That there's another way that we can do this. President Bush right after 9/11 said that terrorists could bring down our tallest building, but they could not destroy our values. Now, I think that the Supreme Court put us back on line to make sure that doesn't happen.
KING (voice-over): Just ahead, stronger efforts to rein in the president, and more and more questions about the price of his stubborn insistence that wartime decisions are his and his alone.
KING: Senator Lindsey Graham of South Carolina is also Colonel Lindsey Graham of the United States Air Force Reserves. He's a conservative, a Republican and another military lawyer who thinks the commander in chief needs to brush up on history.
SEN. LINDSEY GRAHAM, (R) SOUTH CAROLINA: This is a constitutional democracy. There are three branches, not one. KING: The sudden push back under the Capitol dome is as remarkable, if not more so, than the lectures on the limits of presidential power directed at the Bush White House by the Supreme Court. A Republican-controlled Congress that had largely given the president his way had largely kept silent even when actions offended his increasingly challenging administration that has from early on made clear its disdain for Congressional interference.
YOO: Most everyone agreed that the president should decide on the measures to wage war and that, you know, Congress's support is welcome but it's not necessary.
KING: Lawmakers' frustration at what they see as executive arrogance has been bubbling for most of the Bush presidency.
SEN. ARLEN SPECTER (R), PENNSYLVANIA: I want to turn now to executive power.
KING: At the Alito confirmation hearings, for example, Senate Judiciary Committee Chairman Arlen Specter raised complaints about the presidential signing statements, treatment of terror detainees, and the legal basis for the domestic eavesdropping program.
SAM ALITO, SUPREME COURT JUSTICE: No person in this country is above the law, and that includes the president and it includes the Supreme Court.
KING: It was the Hamdan ruling, which required the president to get congressional approval of a new detainee program, that brought the frustration to a boil.
SEN. JOHN MCCAIN (R), ARIZONA: The United States is not like the terrorists. We have no grief for them, but what we are is a nation that upholds values and standards of behavior in treatment of all people, no matter how evil or bad they are.
KING: But it was the initial my way or the highway approach again, even in the face of a Supreme Court rebuke, that turned the rumbling into a revolt.
GRAHAM: If you deal the other two branches out the way that's been proposed, it will come back to haunt us, because this won't be the only president we'll have.
KING: Graham had tried to head all this off two years ago as court challenges mounted, as detainees like Moazzam Begg began to get access to lawyers and accuse the United States of violating its most cherished legal principles.
BEGG: Nobody knows what crime they are supposed to have committed against the United States of America. Most of the people there argue their innocence and are not given an arena in which to prove or disprove otherwise.
KING: Senator Graham worried, correctly, it would turn out, the courts would find the rules put in place by the president unconstitutional. He went to the White House and offered to write legislation authorizing military trials.
GRAHAM: They told me in no uncertain terms, thank you for your input, but we have all the authority we need.
KING: It was the same White House answer when lawmakers suggested the domestic eavesdropping program violated existing law, or when they pointed out anti-torture statutes already on the books.
YOO: We wrote it on purpose to be as broad as possible. It says the president can use all necessary and appropriate force.
GRAHAM: This is not the last war we'll have. I can assure you, if the executive keeps pushing this theory that once you authorize the use of force, all the other statutes on the books where Congress has spoken in time of war are no longer valid, then you're going to have a hard time getting a force resolution through Congress.
They're not legal niceties. They make us different. So every time you cut a legal corner unnecessarily, it will come back to bite you.
KING: Come back to bite you, the price of the president's power play is increasingly in question. International outrage, and freedom for men the CIA insists to this day were part of plots against America.
KING: Moazzam Begg calls Birmingham home again, not Gitmo or Bagram, and he owes his freedom to a man he calls a criminal, George W. Bush.
BEGG: And if he continues to be in power, then I can only fear for the future of the world.
KING: Begg's release was a reluctant favor to Prime Minister Tony Blair, because of the outrage in Britain and around the world at the images from Guantanamo Bay and Iraq's Abu Ghraib prison, images Charlie Swift says helped the very enemy Mr. Bush has promised his aggressive tactics would defeat.
SWIFT: Not only is it un-American, it's the sort of thing that strengthens our enemies when they're on the streets to go, you know, recruiting, saying the United States hates everyone, all Muslims.
KING: Public opinion at home is more complicated. The Iraq war is increasingly unpopular, but the American people have, by and large, supported other bold assertions of wartime powers, and to Senator Simpson, it's a simple calculation.
SIMPSON: Don't think the American people aren't a little bit pleased, as they sit in Cody, Wyoming, or Cincinnati, or L.A., that no one has gone into the restaurant and blown somebody up in there. And the perception, when you hear about the Patriot Act and wiretapping, is that these are just a bunch of sweet, little people that happened to be locked up by accident, and that's bullshit, pure bullshit. KING: It is future presidents who are likely to pay for the constitutional tensions here at home.
BUCHANAN: When president are very assertive, there tends to be in the aftermath of that assertiveness for a year or two or 10 years or more a kind of a backlash, an effort to rein the president in.
KING: The questions about Moazzam Begg are more immediate, a paradox in Mr. Bush's world of whatever it takes.
BEGG: Did I kidnap, imprison, torture, beat to death anybody? Did I do those things, or did not the United States of American government do that?
KING: The president released Begg over the objections of his national security team. U.S. intelligence officials insist Begg exaggerates the harshness of his treatment, and to this day these intelligence officials stand by the accuracy of the statement Begg signed while in U.S. custody. Among other things, it said Begg trained at three al Qaeda camps in Afghanistan, knew at least a half dozen al Qaeda operatives, and planned to take up arms against the United States before fleeing through Tora Bora to Pakistan.
BEGG: It was coercive, and it was under duress that I signed it.
KING (on camera): Do you hate America or Americans?
BEGG: No, I don't hate Americans or America, and the reason why I don't hate them is because I never hated them to begin with.
KING (voice-over): Islam, he says, forbids killing innocent civilians. Begg has no qualms, however, with attacks on U.S. troops in Iraq and Afghanistan, because they are, in his view, occupying Muslim lands on Mr. Bush's orders.
BEGG: His abuse of power has been able, allowed him to get away with abduction, kidnap, false imprisonment. He's a man who has brought more destruction and more terror on the earth than any of the terrorists.
KING: And while insisting he is no threat, no terrorist, Begg also insists the president who jailed him, in the name of keeping America safe, will someday learn his lesson.
BEGG: Once you take this road and once you go down this road, you are actually making the world a much, much less safe place, because if that's what the Americans are going to do around the world, then they must accept repercussions.
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