Dick Cheney and the Constitution

The following three items give a good look the role Vice President Dick Cheney has played in the extreme secrecy and the Bush administration's push for unilateral Executive power, aka, the "unitary executive" theory.

Newsmaker: Vice President Dick Cheney interviewed by Jim Lehrer, PBS Newshour 02/07/06. (Video clip also available at that link.)

Vice President Cheney and The Fight Over "Inherent" Presidential Powers: His Attempt to Swing the Pendulum Back Began Long Before 9/11 by John Dean, Findlaw.com 02/10/06

"Congressional Oversight: Vice President Richard B. Cheney's Executive Branch Triumph" by Bruce Montgomery Political Science Quarterly (print edition) Winter 2005-06

If you want to see what the face of an American dictatorship would look like, watch the video version of Dark Lord Cheney's interview with Jim Lehrer of the PBS Newshour. Cheney dodges virtually every question by citing the need for secrecy and declaring that the people are under constant and deadly threat against which only the unilateral Executive can protect them.

The blogger Billmon (who has been inactive for over the last month or so) has used the unflattering name Chamber of People's Deputies to compare today's Congress to the toothless body of that name in the former Soviet Union and other Soviet bloc countries. (The parliament of the former East Germany was the Volkskammer, or People's Chamber.)

Dick Cheney clearly regards the role of Congress as being a compliant Chamber of People's Deputies, there to approve the Executive's demands and defend them loyally. It's really amazing that the man "a heartbeat away from the Presidency" would be talking about the Constitutional institutions the way Cheney does in that interview, of which John Dean says, "Incidentally, this was Cheney's first interview with other than a conservative news person."  (I'm not sure if Dean is including campaign appearances in that.)

This segment from the early part of the interview shows Cheney's monarchical attitude (or worse!) toward the Congress, including the obvious assumption that highly classified briefings to select members of Congress is all that the Executive needed to bother doing with Congress in relation to the illegal warrantless domestic spying they are doing.

JIM LEHRER: Is the president willing to work with Congress to settle some of the legal disputes about the NSA surveillance program?

VICE PRESIDENT DICK CHENEY: We believe, Jim, that we have all the legal authority we need. He indicated the other day he's willing to listen to ideas from the Congress, and certainly they have the right and the responsibility to suggest whatever they want to suggest. We'd have to make a decision as an administration whether or not we think it would help and would enhance our capabilities. But as I say, we believe firmly that based on the Constitution, based on the authorization for the use of force Congress passed in the immediate aftermath of 9/11, that we have all the legal authority we need with respect to the NSA program.

JIM LEHRER: There were two Republican senators at the Senate Judiciary Committee hearing yesterday who made the strong point, Senator DeWine of Ohio, and Sen. Lindsey Graham of South Carolina, said it would be in the interests of the country, interests of the president and interests of everybody involved for Congress and the president to sort this out and get it behind it, get it off the table. You don't agree with that?

VICE PRESIDENT DICK CHENEY: Well, I don't think it would necessarily be in the interest of the country especially if we get into a situation where the legislative process leads to the disclosure of sensitive operational matters with respect to this program. If we end up destroying the effectiveness of the program by broadcasting far and wide operational details that would allow our enemies to in effect negate it or neutralize its effectiveness, that's not in anybody's interest. That clearly is not in the national interest, and the concern in the past when we have had discussions with those members of Congress that had been briefed into the program about the possible amendment, if you will, or additional legislation on this issue, there was a consensus that in fact proceeding to do that would disclose the program in ways that would potentially be damaging to it.

So there was a consensus between those of us in the administration who were involved as well as the leaders on Capitol Hill that were briefed on the program that legislation would not be helpful. (my emphasis)

Montgomery's article is a case study of the disputes over the identity of the participants in Cheney's Energy Task Force. Although private lawsuits over the issue were not resolved as of the writing of his article, the balance-of-powers issue was litigated by the Governmental Accounting Office (GAO), which is an arm of Congress. The GAO lost in the Republican-dominated federal court system. And the Republican-dominated Congress eventually discouraged the GAO from pursuing the case further on appeal.

Montgomery describes the dispute over GAO's request for Energy Task Force documents as "notable for being wholly unnecessary, perhaps even reckless." But Dick Cheney wanted to use the case as a way to expand the power of the Executive against the Congress. And he succeeded.  Montgomery writes in his conclusion:

With an administration that arrived in Washington with an executive-centered agenda and a determination to roll back legislative oversight, the Vice President's victory over the GAO represented the Bush-Cheney administration's most important triumph in reasserting the prerogatives of the presidency. The GAO's defeat came on the heels of the White House's executive order rewriting the rules governing public access to presidential materials and the directive by Attorney General John Ashcroft advising federal agencies to err on the side of caution when complying with the FOIA [Freedom of Information Act]. These actions, which served to further the administration's aims to conceal its activities with greater secrecy, were initiated before the September 11, 2001 terrorist attacks.

Following the terrorist attacks in New York and Washington, however, the Bush-Cheney White House moved with more alacrity than had perhaps any administration since World War II to orchestrate an even greater concentration of executive power in the White House and to expand the mantle of secrecy surrounding executive branch actions. The White House has accomplished these aims with the frequent acquiescence of lawmakers and judges - despite occasional protests - in fostering a broad assault on the free flow of government information. The Bush administration's instinct has been to disclose as little as possible and search for opportunities with which to reverse legislative oversight. The White House has pursued this secrecy agenda by even further restricting access to information under the FOIA by discouraging disclosure requests when there is any legal basis for doing so, by obstructing disclosure of information to Congress on a range of issues, by removing hundreds of thousands of documents once considered public from government websites, by clamping down on leaks to the press, by giving fewer press conferences, by classifying more government documents as secret, and by authorizing the newly created Department of Homeland Security to create advisory committees exempt from the Federal Advisory Committee Act. Together with the expanded mandates of the federal government's intelligence agencies, these developments signal an unraveling of much of the post-Watergate legislation that Congress passed to curb the enormous abuses of power by the executive branch under former President Nixon. It would appear that Congress has too often succumbed to executive demands on these matters without safeguarding its own obligations to oversee executive actions and to defend, if not promote, the right of the American people to know about the activities of their government. The full extent of this concentration of power in the executive branch, and its ramifications, however, remain to be seen. (my emphasis)

Dean discusses Cheney's role in the illegal wiretapping scandal. And, he says, "if anyone does not believe that Cheney is not behind this ruckus, they do not know Cheney or his history." He reminds us of the latter by going back to the 1987 minority report of the joint Congressional investigating committee looking at the abuses of Presidential power in the Reagan administration that came to be known as the "Iran-Contra scandal". The minority report was written by Wyoming Congressman Dick Cheney:

The majority report asserted that the entire affair "was characterized by pervasive dishonesty and inordinate secrecy." But Cheney authored a minority report - joined by several other Republicans, though not all.

Cheney's report took a very different view: He calledthe failures of the Reagan White House to comply with the laws "mistakes," insisting they "were just that -- mistakes in judgment and nothing more."

These so-called mistakes were actually serious criminal offenses according to Independent Counsel Lawrence Walsh, who successfully prosecuted some eight Reagan officials for their mistakes. All eight, however, either had their verdicts reversed on technicalities, or were pardoned by President George H.W. Bush. The George W. administration hired many of these people, and has made the records of George H.W. Bush disappear.

Somewhat astoundingly, Cheney's minority report not only defended the White House's lawbreaking but also scolded Congress for passing the relevant laws in the first place. Congress, he argued, was "abusing its power" when it adopted laws restricting the president's spending of money to aide the Nicaraguan Contras. "Congress must recognize that effective foreign policy requires, and the Constitution mandates, the President to be the country's foreign policy leader," Cheney's report declared, ignoring the fact the Constitution gives Congress exclusive power over the purse.

Clearly, Cheney's mindset about the Congress vis-à-vis the president has changed little since 1987. His position, however, is far from as solid as he claims. (my emphasis)

The amount of Executive power claimed by this administration is astonishing. And it's hard to see how the Cheney position - summarized by Dean as "it is the president who says what the Constitution means, as far as his own duties and responsibilities" - is compatable with the Constitutional balance of powers.

And it's hard to see how the unilateral (unitary) Executive theory defended by this administration is compatable with the rule of law. In the segment of his interview with Lehrer quoted above, he also claimed authority to violate FISA's wiretapping provisions on the exceptionally flimsy grounds that Congress implicitly authorized it with their use of force resolution in 2001 after the 9/11 attacks.

But he also claims straightforward Constitutional authority for it. "It" in this case violating the FISA law, not by challenging it in court but simply breaking it:

[W]e believe firmly that based on the Constitution, based on the authorization for the use of force Congress passed in the immediate aftermath of 9/11, that we have all the legal authority we need with respect to the NSA program.

If this argument is allowed to stand by Congress and the courts, it very literally exempts the President from having to obey the law. It's one thing to get a law repealed or challenge it on Consitutional grounds in the courts. Just going ahead and committing multiple felonies by violating it is a whole different thing.