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September 13, 2007
The Glenn and Helen Show: Jack Goldsmith on Law, Terror and Politics
The sixth anniversary of September 11 is just past, and it's a good time to look at where we are, and what to do in coming years. We spoke to Harvard Law Professor Jack Goldsmith, whose new book, The Terror Presidency: Law and Judgment Inside the Bush Administration, tells the story of his experience working at the Defense Department and as head of the Office of Legal Counsel at the Department of Justice, and also looks at how the decisionmaking process relating to terror is being "strangled by law." Goldsmith talks about his experiences, his book, and what the next President and Congress should do.
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UPDATE: There's a transcript available now -- click "read more" to read it.
The Glenn and Helen Show: Jack Goldsmith Interview on Law Terror and Politics
SEPTEMBER 13, 2006
The sixth anniversary of September 11 is just past, and it’s a good time to look at where we are, and what to do in coming years. Glenn Reynolds and Helen Smith spoke to Harvard Law Professor Jack Goldsmith, whose new book, The Terror Presidency: Law and Judgment Inside the Bush Administration, tells the story of his experience working at the Defense Department and as head of the Office of Legal Counsel at the Department of Justice, and also looks at how the decision making process relating to terror is being “strangled by law.” Goldsmith talks about his experiences, his book, and what the next President and Congress should do.
Transcribed for use only by PAJAMASMEDIA
By Pnina Eilberg
GLENN: Hi and welcome to another episode of the Glenn and Helen Show. We're just passed the anniversary of 9/11 and today's guest will be talking about its legacy for George W. Bush and for future presidents.
HELEN: Today we're talking to Jack Goldsmith, author of the Terror Presidency: Law and Judgment Inside the Bush Administration.
GLENN: Jack Goldsmith is a law professor at Harvard and the former head of the Office of Legal Counsel in the Justice Department. His new book says that the war on terror is being strangled by lawyers but that the Bush administration's approach made things worse. We'll talk about the response to 9/11, the detainee and torture disputes, the Bush administration's theory of executive power and what the next president needs to know.
HELEN: So stay tuned.
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HELEN: We've got Jack Goldsmith on the phone now. Hi, Jack.
JACK GOLDSMITH: Hi Helen, how are you?
GLENN: Hi Jack, glad to have you here.
JACK GOLDSMITH: Hi Glenn, thanks for having me.
HELEN: So Jack, you went from the University of Chicago to the Defense Department to the OLC at Justice, how did that happen?
JACK GOLDSMITH: Well, I was at the University of Chicago and I was a fairly well-known scholar of, I suppose, of terrorism and war powers and the like. And I had views consonant with the Defense Department and the General Counsel of the Department of Defense called me one day and asked me if I would like to work for them. Asked me if I would like to interview with him and then he asked me if I would like to work for him.
And then I was at the Department of Defense for about eight or nine months and I was on my way out the door when the chance for working in the Office of Legal Counsel in the Justice Department, sort of, fell into my lap. I didn't really put my hat in the ring, but through a series of circumstances that ended up being offered to me.
GLENN: Now, you've written a book based on your experience, of course, called The Terror Presidency. Can you, sort of, summarize the basic thrust of the book for the listeners who may not have read it?
JACK GOLDSMITH: Sure. The book draws on my experience in the Justice Department. And it really tries to recreate and convey to a public, that I think doesn't understand, the, sort of, profound pressures, contradictory pressures, that come to bear on the president and the counter-terrorism officials decisions related to the war on terror.
And there are basically two pressures that were -- that were -- I mean two fears that were always fighting with one another when I was in the government. On the one hand is -- and I really can't exaggerate this enough, this really profound worry and fear of another attack. When you -- when you have the job of reading these horrible threat reports every day and when you respons -- and when you -- it's easy to imagine horrible things happenings and when there's credible threats of horrible things happening, you're the person or institution responsible for keeping people safe.
And also, on top of that, this is an enemy that even though we know it's out to get us it's hard to find, it's hard to have the information to stop it. All those factors lead officials to -- to be under real pressure to do everything they can every hour of every day to stop the next attack; to be as aggressive and imaginative as possible.
And this is, of course, also the imperative that the public wanted, the 9/11 commission said that the pre-9/11 we were too risk averse, too complacent. Congress said this. So that pressure is always present. But that pressure, to prevent another attack, was always bumping up against the second and countervailing pressure and that was this very extraordinary array of criminal laws, especially, but laws that had grown up since the '70s largely. And that touched on just about -- many, many aspects of presidential power. So, everywhere the president looked and went in trying to the aggressive things he thought were needed to prevent the next attack and to keep us safe, he found himself bumping up against laws and lawyers.
The book is really about trying to give a sympathetic account of those pressures and why the presidency -- why this is a real problem for the presidency. It tries to explain how some of the errors that were made by the Bush Administration, in my opinion, resulted from these pressures. And it tries to, you know; hopefully provide a roadmap for learning from our mistakes.
HELEN: So what, exactly, does the Office of Legal Counsel do?
JACK GOLDSMITH: It's an office -- it's a small office with twenty-two lawyers in the Justice Department and it does a lot of things. But as relevant to this book, it basically is the part of the government that when the government wants to do something, a counter-terrorism operation, an important counter-terrorism operation, it's the, sort of, agency in the government that decides and determines whether the action is lawful or not.
There's tens of thousands -- hundreds of thousands of lawyers in the executive branch, actually, who -- whose job is to do nothing more than to make sure the executive branch complies with the law. And that's what my office does, sort of, at the top of that pyramid. And it's subject to review. The OLC's decisions are subject to review by the Attorney General and the President and can be overruled by both of those men. But other than that -- except for those circumstances, the Office of Legal Counsel's decisions are binding on the executive branch and determine, basically, what's legal for the executive branch.
GLENN: And those have the effect both of being a way to make something stop, by virtue of it being held illegal by OLC, or of being -- almost like a get out of jail free card for people if you opine that something's legal because that would put the Justice Department in the position of prosecuting somebody for following the justice department's advice, is that right?
JACK GOLDSMITH: Right. Basically when the office of legal counsel looks at a proposed action and -- and examines its legality and determines that it is lawful and then an agency relies on that, it's almost inconceivable that the Justice Department, on whose behalf OLC was speaking, could turn around and prosecute those agencies for relying on the Department of Justice advice. So,
when -- you know when the president faced this -- these concerns about criminal law, and I want to emphasize that no one was trying to break the law. I mean, everyone was trying to comply with the law but people were nervous because the law was vague and it was going to be interpreted -- a lot of the times it was vague. And it was going to be interpreted in -- and it was worried, in a different milieu with different, sort of context of threat by different institutions.
And so, the Office of Legal Counsel gave a lot of comfort, I think, to the bureaucrats who were asked to do things for the country to keep us safe but who were worried about criminal law. Because basically the OLC opinion gave us safe harbor.
GLENN: Yeah, but once you got there you started to have problems with some of the legal work that had been produced in that office before your arrival, sort of in the heat of the post-9/11 and pre-Iraq era. What kind of problems were those?
JACK GOLDSMITH: Well, there were -- I mean, there were several opinions related to important counter-terrorism policies, most notably interrogation, that after reviewing and absorbing I concluded or had -- had some serious -- very serious flaws in them. And these -- there were a variety of flaws some of them, I thought, of statutory interpretation. Some of them, I thought, with an erroneous understanding of the president's commander-in-chief powers. The main problem in the interrogation opinion, in my view, was that they were much, much broader and more aggressive then was necessary to justify what was actually going on.
And I very much worried, I didn't -- I never concluded that the techniques that the office of legal counsel approved were unlawful but I very much worried that these very broad, over broad opinions might be used to do all sorts of things that went far beyond what the law would permit.
I also had, and I can't get into the details of this at all, but I had some pretty sharp disagreements about surveillance related matters that was actually my -- my toughest battle --
JACK GOLDSMITH: -- by the administration were about legal issues concerning surveillance.
GLENN: Do you feel that you're vindicated now that they're saying that the new FISA law made it possible to catch those German terrorists last week?
JACK GOLDSMITH: I don't know if I feel vindicated. I was certainly happy about the new FISA law because I thought the old FISA law was unduly restrictive of the president during war time. And I'm glad that the administration went to congress and put congress on the spot and made it, sort of, stand up and be counted on these issues. And I’m glad that congress went along and expanded the president's statutory authorities to
use -- take advantage of our technologies to help us find the terrorists before they find us.
GLENN: And that, sort of, goes to the thrust of your argument, doesn't it? That the Bush administration should have done that sort of thing more instead of trying to go it alone or sort of interpret their way around existing laws?
JACK GOLDSMITH: That is the thrust of my criticism, yes. You know, they face this array of barriers and there were serious problems, and they were serious problems that needed to be circumvented. And a lot of it they could have done and did properly do through interpretation. But I think in a lot of other contexts they needed to go to congress to get the law changed and
then -- and yet other contexts, even though they technically didn't need to for legality's sake, it would have been prudent to. So yes, one of the -- one of my constructive criticisms, you might say, or criticisms is that the administration tried to do too much on the basis of executive power, didn't work with the other institutions of government, didn't spread the accountability.
One result was, I think, some unnecessarily bad Supreme Court decisions and I think, really, if you look at when the president put the congress on the spot and made the congress stand up and be counted with regard to the Military Commissions Act and with regard to FISA, each of the last two falls, it got what it wanted. In some senses more.
GLENN: And of course, he was in an even stronger position in 2002 or 2003.
JACK GOLDSMITH: Sure. Some people would disagree with that but I think, you know, certainly that the closest -- the further we get away from 9/11 the harder it is to convince the public and the congress about the nature of the threat and the need for reform.
On the other hand, it does take a little distance, maybe, from 9/11 to -- to make clear how the institutions aren't working well. But I think they certainly could have gone -- aren't working well under the old legal regime. But I certainly think they could have gone to congress earlier and the presidency would have been better off in a variety of ways.
HELEN: Now, you said at one point that the popular impression of the Bush administration is that they don't care about the law but that in reality lawyers were running the show a lot more of the time, why is that?
JACK GOLDSMITH: Yes, that's certainly true. I mean, it's just wrong to say that the executive branch of the White House is indifferent to the law. They wouldn't have gone to the Office of Legal Counsel so much for just department legal opinions. They wouldn't have gone to the hospital to ask
Attorney General Ashcroft permission to do something if they were indifferent to the law. They care a lot about the law --
JACK GOLDSMITH: -- and as I say in the book, they were strangled by law and the war on terror has been lawyered to death. The reason for that is because when you have so much law and especially criminal law governing the president's behavior that requires lawyers to interpret it because lawyers tell you where the lines are and really requests permission from lawyers in a lot of counter-terrorism contexts.
The danger there -- it's a good thing, you might think, I mean it sounds like a good thing to have the president governed by law or a rule of law --
JACK GOLDSMITH: -- even in war time. But the danger is that it thrusts responsibility away from the president towards the lawyers and whoever they are. So if you have a -- you know, and lawyers can make all sorts of mistakes at interpreting law and they have pathologies. Some of them may be too quick to say yes, some of them may be too quick to say no. But this is the
cause -- this was a big complaint right after 9/11, lawyer induced risk aversion.
And I talked in the book about the confirmation hearings of the CIA general counsel in 2002. And Senator Graham and other senators on the Senate Intelligence Committee were -- they were berating him for -- they were urging not to be risk aversion in his interpretation of the law. And they were complaining about risk adverse lawyers really holding us back in the fight of the war against terrorism. And this is the danger of too much law and too many lawyers.
GLENN: Actually, as somebody who's in the business of selling law degrees I hate to admit that there could ever be too many lawyers but, you know, it does seem to me, and I've read some of the articles about lawyers being intimately involved in approving individual targeting decisions or hellfire missiles shot from, you know, unmanned vehicles.
JACK GOLDSMITH: That's been going on for a long time.
GLENN: It's just bizarre to me. I mean, I just think that's over lawyering and over-lawyered but not necessarily well lawyered.
JACK GOLDSMITH: Well, there is a lot of lawyering and, you know, whether it's done well really depends on the lawyer and the circumstances. But it is a problem now. Let me just say there are reasons and there are virtues to having lawyers sign off on targets. But there are also -- you know, it forces a kind of discipline and it -- certainly military commanders -- some military commanders like the discipline that it imposes. And frankly, and this is one of the pathologies, it also likes the cover it gives them if something goes awry, and that's not necessarily a good thing.
But the solution here is hard because there are reasons for these laws. And -- and yet too much law can be self-defeating.
GLENN: Yeah. You know, there's another side of it too, which is just a cultural thing, I think. I've noticed something about the Bush administration's legal arguments. And it doesn't just relate to the war, it goes to all sorts of things. I mean, I wrote an article this summer about the -- Dick Cheney's office claiming, earlier this summer, that he's a legislator not a member of the executive branch. And thus not under certain statutory duties that members of the executive branch are under. And, you know, you get these, sort of, clever but, sort of, over the top arguments that you might make to lighten the tension when you're in the middle of a late night brainstorming session. And then everybody has a good laugh. And maybe you, sort of, bat the ball back and forth a few times. And then you return, sort of, to the more sober task at hand, only they actually make that their main argument. I mean, what's going on with that?
JACK GOLDSMITH: Well, this is very strange because I think it -- I talk about this in the book a lot. They -- it goes back to the view, I don't fully understand the source of the view, but the view articulated by the president and the vice president at the beginning of the administration that it was important to them to expand executive power.
And what this meant was, is that a lot of executive power arguments got used publicly in a lot of different contexts that were really unnecessary to the task at hand and in some senses weren't pragmatic and weren't narrowly focused at the task at hand. And not only do they end up on a variety of contexts, I talk in the book about, you know, the interrogation opinions and their -- the unnecessary plans of the signing statement sometimes. And even the defense of the U.S. Attorney's firings.
A lot of the things they did publicly were based on very broad conceptions of executive power because that was -- it was important for them to articulate those views, and they believed them firmly, when they were unnecessary to the task at hand and they ended up shooting themselves in the foot. It ended up having bad consequences for them. So it was really, kind of, it wasn't very pragmatic, the use of executive power arguments, I would say.
GLENN: Yeah, I guess that's what I'm getting to. Maybe there are too many Yale Law School alumni -- no, that couldn't be. But it really does seem like that. And, you know, I think that one of the contrasts you, sort of, make with Franklin Roosevelt was, it's not as if he took a negative or minimalist view of executive power but on the other hand he was always more concerned with dealing with the task at hand then he was about a larger agenda.
JACK GOLDSMITH: That's right. He viewed -- and he was very sensitive to the negative consequences of asserting executive power. There's, you know, Roosevelt and Lincoln would have -- would be a close contest to see who asserted broader executive power during war time. Lincoln probably wins. But Roosevelt asserted extraordinarily broad powers but he always did so in a way that was, in fact, and seemed publicly, to be grudging and necessary to achieve an important end that he articulated. And he was always -- took the public face of trying to assert the powers as narrowly as possible.
I talk about a signing statement, a famous signing statement that he, in fact, wrote about the Lend-Lease deal and he didn't publish it because he feared that it might harm his relations with congress. This is a signing statement where he thought that one aspect of the land lease deal violated his constitutional powers. And he wanted to be on record, you know, for posterity as opposing this but he didn't publish it for a while because he worried that it may upset congress. And he also worried that it would send the wrong statement to the people who worried about him asserting powers that were too broad. He was always very sensitive to the political consequences of asserting executive power in a way that I do not believe the Bush administration has been.
HELEN: Do you think part of that is a time change. For example, you mentioned that Roosevelt brought people along and he put in key cabinet officials from other parties. But given all the Democratic hatred for Bush, could he really have reached out to Democrats successfully and what about the media?
JACK GOLDSMITH: Yeah, no, I agree. So, you know, and in the book -- yeah, in the book I talk about how Roosevelt established credibility --
JACK GOLDSMITH: -- and with the public about what he was doing by reaching out and putting people from the other party in his cabinet.
JACK GOLDSMITH: Henry Stimson, who was his, really, opponent before the war he made the secretary of war is the best example.
I do think -- the politics were pretty divisive then. The isolationists were as fierce partisans as the partisans today. And they hated Roosevelt probably as fiercely as anyone hates President Bush today. And it may well be harder. I do think that the establishment press it was more -- much more on board for World War II and the run-up to World War II than the establishment press is with regard to the War on Terrorism.
And there's no doubt, and I talk about this at length in the book actually, that President Bush faces, you know, challenges in explaining this war and making it credible to the public that Roosevelt really didn't face. It was obvious to everyone what the stakes were in World War II, whereas a lot of people in the country don't really think we're in a war know or don't think -- or think that the threat is exaggerated.
But having said all that, I do think his challenges are greater. I do also think that there are steps to establish credibility that the president could have taken, and has taken in later years and one of them is bipartisanship. There was talk, you remember, after the election of making Joe Lieberman the Secretary of Defense.
JACK GOLDSMITH: And I'm not sure if that would have done the trick. I’m not sure if that were the right person. But I do think that putting a member of the opposite party, or certainly someone who is -- who is, sort of, apolitical into important intelligence and defense positions would do a lot to help the president, sort of, credibly explain to the country what the -- the threats we face.
And in some sense, the current DNI, Mr. McConnell, does this. And I think that's one reason they were successful with the FISA reforms.
GLENN: Well that actually, sort of, brings us to another point which is, you know, we are now six years past 9/11 and the initial ramping up phase is over. And we're in, sort of, a period that in a way is, kind of, apolitical and that if congress makes reforms now we're not sure whether it will affect a republican or a democratic administration next time around. But regardless, what lessons are there for the next president and the next congress that you would see.
JACK GOLDSMITH: Yeah, I think the lessons, I think, are mostly for the president because the president really is the first mover in our governmental system. If the president doesn't take the initiative in foreign relations and national security it's hard for anything to get done.
And so, I think there's several things that future presidents can learn from the experiences of the Bush presidency. One is, that there is this enormous problem with, sort of, conveying to public the nature of the threat. I mean, really we can't see this enemy in the same way that we could see the enemy in World War II. And, you know, I quote General Marshall saying that the democracy cannot fight a seven years war. It's natural for a democracy's vigilance to fade as the war goes on. And it's especially natural when you really can't see the enemy. And the truth is, and I think this is really unfortunate, but the truth is, is that our vigilance against the enemy has really dropped since 9/11. But it hasn't for the presidency inside the administration. They're just as -- they're just as worried about the attack as they were on September 12th.
And so somehow, sort of, managing that gap and expectations is hugely important. And it's a hugely important agenda item for any president. There's no silver bullet. I think that some of the things we've already talked about, about enhancing the credibility of intelligence officials by putting non-partisan or -- or other party people into intelligence positions to, sort of, undercut the political attacks from the opposite party. You know, education and leadership are those elusive qualities that are so important to bringing the country along when they're not sure about what the president's doing. Roosevelt was a master of that. I think that it's really important to go to congress and force congress to stand up and take responsibility for the hard calls on the war on terrorism, not only because it makes it less of a partisan issue, by forcing congress to put up or shut up. We see what happened in the FISA reforms, that a lot of democrats joined the president, even in very partisan times.
So those are things that can be done to narrow the publicity gap. I also -- excuse me, the credibility -- the gap between what the president views as a threat and the public's view. It might also be possible to be less secretive about, you know, and reveal more information about the nature of the threat but I'm not really confident to -- I'm not really sure about that. There's a big debate about that.
A different set of problems that the terror presidency faces -- the presidency in the age of terrorism, is this overabundance of law and restrictive law. And here again there are some things that we can learn from this presidency. We can -- I really do think that going it alone in the face of restrictive laws in a novel war is not a good strategy.
JACK GOLDSMITH: And once again, going to congress and working with the other institutions of government, forcing them to cut their responsibilities, and almost always getting what he wants is the right way to go. It would be a good idea, but not very realistic to decriminalize a lot of the -- not de-legalize but decriminalize a lot of laws surrounding the presidency. I think that the criminalization of it is really what chills people. I'm not confident that will happen.
The model I like is actually the model of the FISA law which has just passed, which is -- just as a model not necessarily the details, but basically I think that we should give the president discretion to do what he thinks is necessary to defeat the terrorists and then have a, kind of, ex-post review to the extent possible of -- or an audit
of -- to make sure the president's not abusing the powers or using them in ways he should be.
But, I think we need to give the president more flexibility on the front end to meet the threat because it is a threat that requires quick action and lots of surveillance. And the final thing is, I think the president -- this is easier said then done, because law and lawyers play such a big role, I think it's hugely important who the lawyers are. And you want lawyers who are courageous enough to say no, but you also want lawyers who are courageous enough to say yes. It's sometimes hard to say yes because saying yes would be controversial and -- so those are the basic prescriptions that I would -- that I would urge on the next president.
GLENN: Let me follow up, because I teach a seminar in national security law and some of my students, in fact, end up working in the field. What advice would you give to junior lawyers coming into that field now?
JACK GOLDSMITH: Well, it's a great field. It's a growth industry. And being an executive branch lawyer is exciting; it's different -- much different from what you learn in law school. The posture of an executive branch lawyer is different from the court's centered view of law that we have in law school.
The advice I have for them is
that -- is that the job is difficult because the consequences of what you do can produce errors no matter what you do, and errors that harm national security. So I think it's really important to deliberate. There are a lot of errors that can be avoided through deliberation. I think it's important to have people of different views looking at particular problems, in national security especially.
The reason is, is because national security law, more than most areas of law, takes place in a veil of secrecy. Where there's not a lot of judicial review, there's not a lot of public review.
JACK GOLDSMITH: And so the main thing that a national security lawyer has to worry about is, am I getting enough critical input into my decision because the usual critical input that we get from the public and from courts are not as present. And this is a lesson I learned when I was in the Office of Legal Counsel. And it took me a while to figure it out. But -- and I think it's really the most important lesson that a national security lawyer can learn.
HELEN: So I have to ask, when you left the government and went to Harvard Law School a lot of people who didn't know you'd resigned over legal differences accused you of being some sort of, like, torture happy wing nut, how did that make you feel and why did you feel that you couldn't defend yourself.
JACK GOLDSMITH: Well, it didn't make me feel great, especially after what I had just been through in the government. And it was -- I did defend myself a little bit. I denied the charges. But I -- I was, you know, I had just left the government and, you know, this stuff had not been talked about publicly nearly as much as it has been in the last three or four years.
JACK GOLDSMITH: And I wasn't sure what I would say or should say. And I, frankly, because I didn't understand, you know, much about the environment I was living in I didn't know how what I would say would be received. So I just thought that it was prudent to deny the charges and keep my mouth shut and hope that the truth, one day, would come out. And it did come out. I mean, it came out long before I wrote this book.
And so it wasn't pleasant but it wasn't the worst thing I've ever experienced.
GLENN: Well, that's good, I guess, right? Well, thank you so much for taking the time to join us.
JACK GOLDSMITH: I'm really grateful. It was a really good conversation. Thank you very much.
GLENN: Before we let you go, any final lessons or advice for anybody or what issues about this might ought to come up between now and the 2008 election?
JACK GOLDSMITH: Well, I -- you know, one of the things I worry about is that I won't be able to have any effect on this, all of these debates about terrorism and the nature of the enemy and what we should do, they're so -- there's so much political rancor surrounding them. And I think it's a problem that we face as a country and that we're not taking seriously as a country. And I wish that there was some way that we could have a more civil debate about these issues. But I don't really have a prescription for that.
HELEN: I just wanted to say that Glenn and I really enjoyed your book. And in fact, I was finishing it up the other day at the hairdresser and the hairdresser looked at the book and she was, like, fascinated by it and asked me a million questions. And I thought it was so interesting that, you know, the book, sort of, has a very wide audience.
JACK GOLDSMITH: Yeah, thank you. I tried to write it with the general audience in mind. I tried to make it accessible far beyond lawyers.
JACK GOLDSMITH: It wasn't a book meant for lawyers, it was a book written for a public audience.
HELEN: Well, I really enjoyed it.
GLENN: Well, I think we need more of that. Well, thank you so much.
JACK GOLDSMITH: Thank you all so much. I really appreciate it.
HELEN: Thank you.
GLENN: You know, back when I was in law school I thought I might want a job like that. But then when I went and practiced law in Washington for a while and saw a lot of government up close, I decided to pick a different career path. And, well, reading Jack's book and talking to him here, kind of, makes me glad I did.
HELEN: Yeah, it's a lot safer here in Tennessee.
GLENN: IN a whole lot of ways, actually. But I do hope that the next president and members of the next congress read his book and pay a lot of close attention to it because I think he raises a lot of important questions. Or, if they don't have time for that, I guess they could just listen to this podcast. But then if they're hearing this advice, they already have. Well, good for them! We hope the rest of you enjoyed this podcast. You can check for future episodes or listen to old ones in our show archives at GlennandHelenshow.com or you can always subscribe via iTunes, we like that. We'll be back whenever we feel like it but in the meantime, have fun on the internet.
HELEN: Talk to you next time.