As
Vice President Dick Cheney goes public in exit interviews about his
vision of expansive executive powers, it's getting clearer how close
the American Republic came to suffering major deformity - if not
destruction - in the past eight years.
It is also apparent that the risks to the
Republic are not over, unless incoming President Barack Obama
repudiates many of the executive powers that Cheney and his boss,
George W. Bush, made central to their governing style.
In a revealing Dec. 21 interview
with Chris Wallace on Fox News Sunday, Cheney disclosed that he briefed
congressional Republican - and Democratic - leaders about the
administration's program of warrantless wiretapping inside the United
States and that the leaders, presumably including House Speaker Nancy
Pelosi, endorsed the spying.
This so-called "terrorist surveillance
program" fit with the Bush-Cheney view that the President wields
virtually unlimited powers during wartime, even a conflict as vaguely
defined as the "war on terror."
Though Cheney cited constitutional
precedents from the Civil War and World War II to justify his position,
what has made the "war on terror" such an insidious basis for asserting
the broadest presidential powers is that it is amorphous both in time
and space.
Unlike conventional wars that have
beginnings and ends - as well as battlefronts - this "war" is
theoretically everywhere and never-ending. That means that the
principles of a Republic - with constitutional limits on executive
power and "unalienable rights" for everyone - would not just be
suspended during a short-term emergency but essentially be eliminated
forever.
In the interview, Cheney argued that the bridge to this new paradigm of an all-powerful Executive was crossed with the de facto granting to the President of the authority to retaliate in the event of a nuclear attack.
"I think that what we've done has been
totally consistent with what the Constitution provides for," Cheney
told Wallace. "The President of the United States now for 50 years is
followed at all times, 24 hours a day, by a military aide carrying a
football that contains the nuclear codes that he would use and be
authorized to use in the event of a nuclear attack on the United States.
"He could launch the kind of devastating
attack the world has never seen. He doesn't have to check with anybody;
he doesn't have to call the Congress; he doesn't have to check with the
courts. He has that authority because of the nature of the world we
live in. It's unfortunate, but I think we're perfectly appropriate to
take the steps we have."
Justifying Everything
In Cheney's view, it is now the threat of
terrorism that justifies other executive powers - everything from
spying on Americans and ignoring habeas corpus to torturing detainees and launching military strikes around the world.
"I think in wartime, when you consider
[the President's] responsibilities as Commander-in-Chief, clearly that
means command of the Armed Forces. It also, when you get into use of
forces in wartime, means collecting intelligence.
"And therefore, I think you're fully
justified in setting up a 'terrorist surveillance program' to be able
to intercept the communications of people who are communicating with
terrorists outside the United States. I think you can have a robust
interrogation program with respect to high-value detainees.
"Now, those are all steps we took that I
believe the President was fully authorized in taking, and provided
invaluable intelligence, which has been the key to our ability to
defeat al-Qaeda over these last seven years."
Cheney also argued that the President's wartime powers trump laws passed by Congress.
"The Congress has -- clearly has the
ability to write statutes and has certain constitutional authorities
granted in the Constitution," Cheney said. "But I would argue that they
do not have the right by statute to alter presidential constitutional
power. In other words, you can't override his constitutional
authorities and responsibilities with a statute."
Cheney's chief regret appeared to be that
the U.S. Supreme Court narrowly rejected the administration's argument
that these presidential powers allowed Bush to ignore fundamental
individual rights incorporated in the Constitution, such as the writ of
habeas corpus, an ancient legal principle requiring a government to show cause for imprisoning a person.
"I think that, frankly, the basic decision
they [the Supreme Court justices] made was wrong," Cheney said. "But
it's their authority. The vote was 5-4."
In other words, Cheney was suggesting
that the replacement of one more justice from the court's moderate wing
by the likes of John Roberts or Samuel Alito - Bush's two appointees -
would have swung the Supreme Court into a historic reinterpretation of
the Constitution.
Essentially, such a Supreme Court would
have made the President all powerful and eliminated the founding U.S.
principle of "unalienable rights" for individuals, protected by a
government based on checks and balances.
Under that new paradigm - of an endless
"war on terror" and an Executive who decides whether someone is or is
not an "enemy combatant" - the key pillars of the American Republic
would have been in ruins.
Instead of a Republic in which citizens
possessed fundamental liberties enshrined in the Constitution - as the
Founders envisioned - Americans would become, in effect, subjects to a
monarchical President, who would apportion - or deny - freedoms as he
would see fit.
Congressional Blessings
Beyond his legal arguments, Cheney noted
that after 9/11, this new paradigm of presidential power was favored by
most Americans and embraced by many members of Congress, at least in
private.
"Go back and look at how eager the country
was to have us work in the aftermath of 9/11 to make certain that that
never happened again," Cheney told Wallace.
The Vice President also disclosed that
many congressional leaders, including some who have publicly criticized
his expansive views on presidential power, privately went along with
the administration's actions, such as the warrantless surveillance
program.
Cheney: "Well, let me tell you a story
about the 'terror surveillance program.' We did brief the Congress and
we brought in -"
Wallace: "A few members."
Cheney: "We brought in the Chairman and
the Ranking Member, House and Senate [Intelligence Committees], and
briefed them a number of times up until -- this would be from late '01
up until '04, when there was additional controversy concerning the
program.
"At that point, we brought what I describe
as the 'Big 9' - not only the Intel [Committee] people, but also the
Speaker, the Majority and Minority Leaders of the House and Senate, and
brought them into the Situation Room in the basement of the White House.
"I presided over the meeting. We briefed
them on the program and what we'd achieved and how it worked, and asked
them, should we continue the program. They were unanimous, Republican
and Democrat alike, all agreed, absolutely essential to continue the
program.
"I then said, do we need to come to the
Congress and get additional legislative authorization to continue what
we're doing? They said, absolutely not, don't do it, because it will
reveal to the enemy how it is we're reading their mail.
"That happened. I mean, we did consult. We
did keep them involved. We ultimately ended up having to go to the
Congress after The New York Times decided they were going to make the
judge review all their -- make all of this available, obviously, when
they -- in reacting to a specific leak.
"But it was a program that we briefed on
repeatedly. We did these briefings in my office; I presided over them.
We went to the key people in the House and Senate Intel Committees, and
ultimately the entire leadership, and sought their advice and counsel
and they agreed we should not come back to the Congress."
Continued Dangers
Cheney's description of a high-level
bipartisan consensus on a program that ignored the clear legal
requirements of the Foreign Intelligence Surveillance Act suggests that
the threats to American liberties go deeper than simply the aggressive
actions by the Bush administration.
It means that - among others - House
Speaker Pelosi who served as both the senior Democrat on the House
Intelligence Committee and as House Minority Leader would have been
part of Cheney's program of White House briefings.
In 2008, Speaker Pelosi joined in
supporting a compromise bill fashioned by House Majority Leader Steny
Hoyer and Sen. Jay Rockefeller, D-West Virginia, chairman of the Senate
Intelligence Committee, that granted retroactive immunity to
telecommunications companies that collaborated with Bush's warrantless
surveillance.
Although that bill - and an earlier one
approved by the Democratic-controlled Congress in 2007 - effectively
legalized Bush's apparent lawbreaking, Pelosi argued that one of the
strengths of the 2008 bill was that it restated the principle that the
President must abide by the FISA law, a paradoxical argument for
legislation that ensured that the previous violation of law would go
unpunished. [See Consortiumnews.com's "Dems Legalize Bush's Crimes."]
When the bill reached the Senate in early
summer 2008, Sen. Barack Obama was one of the Democrats who voted for
it, prompting sharp criticism from many in the Democratic "base" that
Obama was flip-flopping on his earlier protests against Bush's illegal
spying program.
Now, with less a month before Bush's
presidency ends, Vice President Cheney has thrown down the gauntlet,
again, regarding whether Pelosi, Obama and other Democrats actually
will repudiate the Bush-Cheney concept of an imperial presidency.