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.”
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.
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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.
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.”
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.