by Lou Dubose
Cheney is one of the few people alive who has prepared for the possibility of a nuclear attack on the United States. In fact, he regularly simulated the experience during the 1980s. The highly classified program went by the nondescript title of "the National Program Office," but it had a budget of hundreds of millions of dollars. About once a year, Cheney would make his way to Andrews Air Force Base in the middle of the night. There he joined forty to sixty federal officials and a member of Reagan's cabinet on one of three teams that would fly or drive to secret bunkers. Lead-lined trucks with sophisticated communications hardware followed. For three or four days they would pretend that nuclear catastrophe with the Soviets had occurred. What they wanted was speed of decisionmaking. Rather then follow federal law and the constitutional order of presidential succession, they planned for a different future. The former chiefs of staff, a very short list that included Cheney and Rumsfeld, would provide experience to the cabinet member-leader, who owing to circumstances would most likely be a figurehead at the start. They discussed what to do about Congress, according to James Mann, then a writer at the Center for Strategic and International Studies, who was the first to write extensively about the program. "One of the awkward questions we faced," Mann quoted one participant, "was whether to reconstitute Congress after a nuclear attack. It was decided that no, it would be easier to operate without them." They also failed to involve Congress in these post-doomsday plans, making no effort to keep the constitutional framework intact.
After the trauma of 9/11, the Bush administration ramped up the government exercises in which Cheney had been involved under Reagan. The specifics of the government's current doomsday plans are some of its most tightly held secrets. For the first time, high-level officials including the vice president participated in the exercises. Millions of dollars went into renovating secure living quarters and updating communication capabilities. For many members of the administration, and particularly for Cheney, the nightmare scenario is ever present, and it warps their thinking.
During the Ford administration, Cheney told an interviewer about how best to serve a president. It was essential "to see to it that the president has the information he needs to make an intelligent decision so that he doesn't have a blind center," Cheney said. The blind center was that crucial factor you couldn't see but absolutely needed to know.
Fear has become Dick Cheney's blind center, although maybe it always was. And now, all the adults who throughout his career helped keep his darker impulses in check—Gerald Ford, Ed Levi, Tip O'Neill, Jim Baker, George H. W. Bush—are gone. Cheney is in charge, with the highly effective David Addington, his super-id. cracking heads to force compliance.
Cheney could afford to be cavalier about McCain's amendment. In the end, it proved largely meaningless. The vice president retreated back into the shadows, the place where he has always operated most effectively. The Army Field Manual that would spell out the principle that U.S. forces do not torture would be delayed if not outright suppressed. By early July 2006, the Pentagon still had not produced the manual. In classic Cheney-Addington form, torture advocates wanted a classified appendix that would include more savage interrogation techniques. Even Army commanders opposed that idea, as did McCain and the other Senate leaders on the Armed Services Committee. Cheney was getting increasing flak from within the administration as public disclosure led to stronger resistance; but he and Addington were ready. For decades, they had closely studied the mechanisms for increasing executive power.
Bush signed the bill enacting McCain's amendment into law on December 28. Two days later, the White House press office "put out the trash." The Friday before one of the biggest holiday weekends of the year, it released seven bland-sounding press releases covering various statements, memoranda, and the Presidential Message for New Year's Day 2006. Buried deep in a statement that accompanied the signing of H.R. 2863, the "Department of Defense, Emergency Supplemental Appropriations to Address Hurricanes in the Gulf of Mexico, and Pandemic Influenza Act, 2006," was a comment on the McCain Amendment.
"The executive branch shall construe Title X in Division A of the Act, relating to detainees, in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch as Commander in Chief and consistent with the constitutional limitations on the judicial power, which will assist in achieving the shared objective of the Congress and the President, evidenced in Title X, of protecting the American people from further terrorist attacks."
Testifying before Congress months later, Bruce Fein, Cheney's legal eagle from Iran-Contra days, would describe that paragraph. "While to the layman, the language of the signing statement may seem both Delphic and innocuous, to the initiated the words referring to a unitary executive and commander in chief powers clearly signify that President Bush is asserting that he is constitutionally entitled to commit torture if he believes it would assist the gathering of foreign intelligence," Fein testified. "President Bush has nullified a provision of statute that he had signed into law and which he was then obliged to faithfully execute."
With his signing statement, Bush apparently once again winked at allowing torture, as he had with his February 7, 2002, memo. As before, the mixed message was aimed at the federal bureaucracy that would carry out his orders.
The first reporter to catch Bush's sleight of hand was Charlie Savage of The Boston Globe, who reported on the signing statement on January 4. Later in April, the Globe published another stunner by Savage: The torture memo was just one of what was at the time 750 written challenges by the Bush administration in which the president reserved the right to ignore the will of Congress. In subsequent stories by Savage and other reporters, the man behind many of these signing statements was identified as David Addington. Cheney had finally found an end-run around the congressional prerogatives he despised so much.
Since the early 1800s, presidents have occasionally included a statement when they signed a large bill asserting a specific provision was unconstitutional. But it wasn't until the Reagan administration that an American president started issuing signing statements as a deliberate strategy to expand executive power. In 1986, a twenty-six-year-old Justice Department lawyer named Samuel Alito, Jr., wrote a strategy memo explaining how to make fuller use of the statements. (The memo surfaced in late 2005, when Bush nominated Alito for the Supreme Court, but during the hearings, his critics, Senate Democrats, decided to focus on the nominee's opposition to affirmative action rather than issues of executive privilege.) Subsequent presidents used this newfound form of power, but none to the extent of Bush and Cheney. Before 2000, all the presidents combined had issued fewer than six hundred such challenges. In one and a half terms, President George W. Bush would produce more than eight hundred. At the same time, in a first in modern American history, the president went almost six years without issuing a veto and sending a bill back to Congress, the way the Founders envisioned the system of checks and balances working. (Bush broke that streak with a veto on July 19 of a bill that relaxed restrictions on federal financing of stem cell research.)
Bruce Fein, a lifelong Republican, has called on Congress to censure Bush for disregarding the Constitution. "The key to our system is that it ultimately collapses unless there is self-restraint by all branches," he says. "At least at present, a sense of balance and restraint is gone."
Among the hundreds of laws that involve congressional oversight of the executive, Bush has decided to ignore ones involving war, whistle-blowers, civil rights, and even whether his administration is required to provide environmental maps to Congress. In 2003, Congress passed a law prohibiting the administration from obstructing corruption investigations of the Iraq Coalition Provisional Authority without notifying the legislative branch. Bush declared that any Pentagon investigation took precedence over a civilian one and that he would follow the law on his own terms: "The executive branch shall construe these sections in a manner consistent with the constitutional authority of the President
to classify and control access to information bearing on the national security." When Congress limited the number of U.S. troops stationed in Colombia and forbade them from fighting in that country's war unless in self-defense, Bush interpreted the law as "advisory," asserting that only the president has control over U.S. forces. When Congress passed a law saying Bush couldn't fire whistleblowers from the Department of Energy and the Nuclear Regulatory Agency if they testified before legislators, Bush maintained that only he and his appointees had the right to decide who gives information to Congress. In March 2006, after intense debate, Congress renewed the USA Patriot Act, giving the administration unprecedented powers to violate the privacy of Americans. As a compromise, Congress decreed that the Justice Department had to report regularly how the FBI was using the act. Bush declared that he could order Justice to withhold information from Congress if he decided that it might impair national security or the functioning of the executive branch.
Eighty-two of the signing statements mention "the unitary executive." In an interview, Fein is dismissive of this concept favored by David Addington and John Yoo that holds that there is no check on the executive powers of the president particularly when it involves his commander in chief responsibilities. "All it is, is sloganeering," Fein believes, a catchall to cloak an executive power grab.
Some have argued that the signing statements are empty symbolism, mere executive posturing by Cheney and Addington. The administration has yet to be challenged in court for following one of the statements rather than the law as written by Congress. And in an administration obsessed by secrecy, it will be hard to discover if and when the statements have been invoked. Still, as history has demonstrated, those who underestimate Cheney do so at their own peril.
The vice president's expansive view of executive power and his sweeping mandate under his new doctrine of doing anything he believes necessary to protect the nation, preferably in secret, spilled out onto the front pages of The New York Times in December 2005. The Times revealed that the administration had been conducting secret wiretapping of Americans without a judicial warrant since at least 9/11. Cheney has insisted that the classified program targets only al-Qaeda suspects, but subsequent news reports have revealed that the government is intercepting and monitoring the calls and e-mails of possibly millions of Americans in a sweeping fishing expedition. The truth is classified, and while eight congressional leaders have been briefed on the program, it's unclear how extensive the information is that they have been given.
As part of the Watergate reforms, Congress had set up a special tribunal, the Foreign Intelligence Surveillance Court, to review warrants for wiretapping, even providing for making the warrants retroactive in order to give the government maximum flexibility. Congress had shown its willingness to meet post-9/11 security concerns by increasing the time the administration could wait before seeking the warrant from forty-eight to seventy-two hours. It still wasn't enough. Cheney had never demonstrated any enthusiasm for Congress's role in this arena, not when Attorney General Ed Levi had proposed a version of the Foreign Intelligence Surveillance Act (FISA) during the Ford administration nor when it was enacted under President Carter. Rather than use the media revelations to begin a serious debate—as befits a democracy—on what's required to protect the nation, the Bush administration, with Cheney at the forefront, has threatened to prosecute the press, and particularly The New York Times.
Sitting in his office at the Library of Congress, Louis Fisher can marshal endless arguments using the Constitution, the deliberations of the Founding Fathers, and U.S. Supreme Court precedents to poke holes in Cheney and Addington's legal case in favor of broad executive privilege. As one of the nation's foremost experts on separation of powers, he has been countering their arguments since his days as a House researcher for the majority side on the Iran-Contra Committee. Yet he recognizes that there is another level at work here that defies reason. "It's emotional after a while, not intellectual," he says as he tries to sum up their argument. What does it boil down to? "In an insecure society, [they] feel more secure when power is in one place."
By the summer of 2006, the carte blanche bestowed on the administration after 9/11 had largely worn off, and Cheney's push for near unlimited power was meeting with resistance—most notably from the Supreme Court. Even a reluctant Republican Congress had started to bleat, however ineffectually. The American Bar Association (ABA) appointed a blue-ribbon panel to review Bush's signing statements. Among its members were Mickey Edwards and Bruce Fein. In a report released in late July, the panel condemned signing statements that disregard the intent of Congress as "contrary to the rule of law and our constitutional system of separation of powers." Fein drafted legislation for Senate Judiciary Committee chairman Arlen Specter that would give Congress the standing to sue the administration over the signing statements. But the most surprising challenge to Cheney's imperial presidency has come from within the administration. Despite Addington's attempts to bully lawyers at Justice into submission, a few have opposed the executive power grab. Administration lawyers fought Addington on the torture memo and on warrantless wiretapping. They lost more battles than they won, but at the very least, they left a trail of dissent. (For example, Jack Goldsmith, who replaced Bybee at the OLC in 2003, withdrew the August 2002 torture memo. He would only last a year in his position, leaving the Justice Department for a teaching post at Harvard Law School.) Amid the infighting, Yoo departed the administration and returned to Boalt Hall at Berkeley.
In June 2004, the U.S. Supreme Court ruled in Hamdi v. Rumsfeld that U.S. citizen Yaser Esam Hamdi could not be detained indefinitely without access to the judicial system. Hamdi had started out at Guantánamo, but upon the discovery of his American citizenship, his captors transferred him to a Navy brig. The justices had restored that most sacred of American rights, habeas corpus. The same day, the court also ruled in Rasul v. Bush that the judicial system had the authority to decide whether individual non-U. S. citizens held at Guantánamo were illegally imprisoned. A year later, in Hamdan v. Rumsfeld, a divided Supreme Court invalidated administration plans to establish special military tribunals to prosecute those at Guantánamo. The authority to do so rested with Congress, the court ruled. And on August 16, District Judge Anna Diggs Taylor in Detroit became the first federal judge to rule that the administration's program of warrantless wiretapping was unconstitutional. "It was never the intent of the Framers to give the President such unfettered control, particularly where his actions blatantly disregard the parameters clearly enumerated in the Bill of Rights," Taylor wrote in her opinion, before pointing something out that in another age might seem obvious. "The three separate branches of government were developed as a check and balance for one another."
The pendulum seems to be swinging against the imperial presidency, but Cheney doesn't give up—that's not the Wyoming way. Despite the recent rulings, the administration is probably only one or two aging justices away from having its views upheld by the Supreme Court. While time might take care of that, the more pressing concern would be the congressional elections looming in November. In the first half of 2006, Cheney raced around the country attending fundraisers for Republican congressional candidates. By early August, three months before the most important midterm election of his career, Cheney had already attended eighty fundraisers for the cycle, netting Republicans more than $24 million.
At each event, he gives more or less the same speech. He begins by saying, "It's important that we keep proven leaders like [X] because these are times of incredible consequence for the nation." The speech dwells on national security and how "America is a stronger and better nation thanks to the leadership of our president."
It's a questionable statement, right down to whether the leadership is coming from the president or from Cheney himself. What is certain is that today the vice president is changing America's system of government in the service of his doctrine of fear. If al-Qaeda strikes again, this time with a weapon of mass destructi
on, the imperial presidency now in its infancy will harden and grow more robust.
"What will happen if it does happen?" asks Wilkerson rhetorically. "We have tyranny. We have military law established. I think we bomb whomever. We don't care what the intelligence says. It may be nuclear. And I think the president after that has got no maneuvering room with the American people, other than executive power to the max for whatever purpose it might be used."
TWELVE
What Dick Knew—and
When He Knew It
Some time in 2007, Dick Cheney will leave his White House office for a short ride west on Constitution Avenue. Accompanied by his lawyer and a security detail, he will walk into a federal courthouse that bears the name of a judge who once settled a crisis that involved the presidency, the CIA, and American military adventurism gone bad.
E. Barrett Prettyman was sent to Havana in 1962 to negotiate the release of a battalion of the CIAs Cuban insurgents captured by Fidel Castro at the Bay of Pigs. The United States and USSR were entangled in the Cold War. John F. Kennedy had just been elected president. Castro's communist government was consolidating its power in Cuba. And Kennedy decided to act, even as the military and the CIA disagreed about the wisdom of the plan. His proxy invasion of Cuba was the sort of muscular foreign policy Cheney would support in Central America twenty years later—even if by Cheney's standards Kennedy was a little light on the muscle.