Sunday, November 26, 2006
Hail to the chief
ANN ARBOR, MICH. -- In July 1987, then-Representative Dick Cheney, the top Republican on the committee investigating the Iran-contra scandal, turned on his hearing room microphone and delivered, in his characteristically measured tone, a revolutionary claim.
President Reagan and his top aides, he asserted, were free to ignore a 1982 law at the center of the scandal. Known as the Boland Amendment, it banned US assistance to anti-Marxist militants in Nicaragua.
"I personally do not believe the Boland Amendment applied to the president, nor to his immediate staff," Cheney said.
Most of Cheney's colleagues did not share his vision of a presidency empowered to bypass US laws governing foreign policy. The committee issued a scathing, bipartisan report accusing White House officials of "disdain for the law."
Cheney refused to sign it. Instead, he commissioned his own report declaring that the real lawbreakers were his fellow lawmakers, because the Constitution "does not permit Congress to pass a law usurping Presidential power."
The Iran-contra scandal was not the first time the future vice president articulated a philosophy of unfettered executive power -- nor would it be the last. The Constitution empowers Congress to pass laws regulating the executive branch, but over the course of his career, Cheney came to believe that the modern world is too dangerous and complex for a president's hands to be tied. He embraced a belief that presidents have vast "inherent" powers, not spelled out in the Constitution, that allow them to defy Congress.
Cheney bypassed acts of Congress as defense secretary in the first Bush administration. And his office has been the driving force behind the current administration's hoarding of secrets, its efforts to impose greater political control over career officials, and its defiance of a law requiring the government to obtain warrants when wiretapping Americans. Cheney's staff has also been behind President Bush's record number of signing statements asserting his right to disregard laws.
A close look at key moments in Cheney's career -- from his political apprenticeship in the Nixon and Ford administrations to his decade in Congress and his tenure as secretary of defense under the first President Bush -- suggests that the newly empowered Democrats in Congress should not expect the White House to cooperate when they demand classified information or attempt to exert oversight in areas such as domestic surveillance or the treatment of terrorism suspects.
Peter Shane, an Ohio State University law professor, predicted that Cheney's long career of consistently pushing against restrictions on presidential power is likely to culminate in a series of uncompromising battles with Congress.
"Cheney has made this a matter of principle," Shane said. "For that reason, you are likely to hear the words 'executive privilege' over and over again during the next two years."
Cheney declined to comment for this article. But he has repeatedly said his agenda includes restoring the presidency to its fullest powers by rolling back "unwise" limits imposed by Congress after the Vietnam War and the Watergate scandal.
"In 34 years, I have repeatedly seen an erosion of the powers and the ability of the president of the United States to do his job," Cheney said on ABC in January 2002. "I feel an obligation...to pass on our offices in better shape than we found them to our successors."
Cheney's ideal of presidential power is the level of power the office briefly achieved in the late 1960s, the era of what historian Arthur Schlesinger Jr. called the "imperial presidency."
Early in the Cold War, presidents began invoking national security to seize greater power from Congress. This concentration of authority peaked under President Richard Nixon, who famously asserted that "when the president does it, that means it's not illegal." But Watergate reawakened Congress, which passed new laws to regulate presidential power.
Cheney was a close observer of that era. He landed his first job in the federal government in 1969, when Donald Rumsfeld hired him as an assistant at the Office of Economic Opportunity. The antipoverty agency, set up by Congress during the Johnson administration, was unpopular among conservatives, and Rumsfeld's and Cheney's job was to help Nixon impose greater political control over the office.
A chief target was the agency's legal aid program, headed by Terry Lenzner. Now a private investigator, Lenzner said in a recent interview that the White House pressured him to fire lawyers who filed class-action lawsuits on behalf of the poor. But Lenzner said he could not fire them because of the way Congress had written the agency's statute.
"I was being told, 'You have to put a stop to this, you have to control these lawyers,'" Lenzner recalled. "But I said that 'If I do what you want me to do, it will violate the law.'"
The orders to fire lawyers, Lenzner said, came from other White House aides, not Rumsfeld or Cheney personally. Still, in November 1970, Rumsfeld summoned Lenzner to his office, and, with Cheney at his side, fired Lenzner because he was unwilling to follow orders.
In August 1974, Nixon resigned rather than face impeachment by Congress. The new president, Gerald Ford, asked Rumsfeld to be his White House chief of staff, and Rumsfeld again made Cheney his deputy. A year later, Rumsfeld became secretary of defense, and Cheney replaced him as Ford's top aide.
In his new role, Cheney was exposed to national security issues from the perspective of a White House that wanted to preserve secrets in the face of congressional demands for more openness. Soon after Rumsfeld and Cheney took on their new posts, Congress passed a bill to strengthen the Freedom of Information Act. The bill allowed judges to review classified documents to determine if they were being shielded for political purposes.
In October 1974, Ford vetoed the legislation, telling Congress that the bill "would violate constitutional principles." Congress, however, overrode his veto, and lawmakers soon threatened to impose further limits on presidential power.
In December 1974, The New York Times reported that the CIA had engaged in an illegal domestic spying program for two decades, tapping phones, opening mail, and breaking into homes of antiwar protesters. The article, by investigative reporter Seymour Hersh, prompted a congressional uproar.
In a memo to Ford, obtained at the Ford Presidential Library in Ann Arbor, Mich., Cheney urged the swift creation of a presidential commission to investigate the CIA. Cheney wrote that doing so was "the best prospect for heading off congressional efforts to further encroach on the executive branch."
Ford created the commission, but Congress moved in anyway. A Senate committee chaired by Idaho Democrat Frank Church began demanding access to secret documents. But Cheney soon saw a chance to convince the public that investigating intelligence operations was dangerous and unwise.
In May 1975, Hersh wrote an article discussing how US submarines eavesdropped on the Soviet Union's undersea cables. Fearing that the article had damaged national security, Cheney pushed the idea of indicting the reporter using the 1917 Espionage Act.
Making an example out of Hersh, Cheney wrote, would "create an environment" that might intimidate both the press and Congress. "Can we take advantage of it to bolster our position on the Church Committee investigation? To point out the need for limits on the scope of the investigations?" Cheney wrote. The idea, however, was scrapped to avoid attracting the Soviets' attention to Hersh's article.
The next spring, after revelations that the National Security Agency had monitored the phone calls of American civil rights and antiwar activists, Congress drafted legislation to require warrants for domestic surveillance. Cheney's allies, including Defense Secretary Rumsfeld and then-CIA director George H.W. Bush, opposed such a bill as a derogation of presidential power. But Ford decided not to fight it.
Congress passed the warrant requirement as the Foreign Intelligence Surveillance Act of 1978 -- the same law that the Bush-Cheney administration later bypassed with its warrantless wiretapping program.
After Ford lost the 1976 presidential election to Jimmy Carter, Cheney returned to Wyoming and in 1978 won a seat in Congress, where he specialized in intelligence matters. During the Iran-contra hearings, Cheney failed to convince a majority of his colleagues that the Reagan administration was justified in ignoring the Boland Amendment, but he moved quickly to block new congressional encroachments on what he saw as a president's exclusive turf.
When the Senate passed a bill forcing presidents to notify Congress of all covert operations within 48 hours, Cheney led a successful fight to defeat the bill in the House. He argued that Congress was prone to leaks and had no authority to force the commander-in-chief to share information about covert operations.
"The 48-hour bill would 'get back' at President Reagan by tying the hands of all future presidents," Cheney wrote in a May 1988 Wall Street Journal column. "That approach will achieve nothing useful."
The next year, Cheney became defense secretary under President George H.W. Bush. In his new position, Cheney again pushed for an expansive view of presidential power -- most dramatically in late 1990, when Cheney urged Bush to launch the Gulf War without asking Congress for authorization.
For all major overseas wars from 1789 to 1950, presidents obeyed the constitutional provision giving Congress alone the power to declare war. But in Korea and Vietnam, Presidents Truman, Johnson, and Nixon defied this constraint. They asserted that the commander-in-chief had "inherent" power to take the country to war on his own.
Seeking to restore its constitutional role, Congress passed the War Powers Resolution in 1973, requiring presidents to consult Congress when sending troops into battle.
After Saddam Hussein invaded Kuwait in August 1990, Bush sent 500,000 US troops to Saudi Arabia. As they prepared to attack the Iraqi forces, Cheney told Bush that it was unnecessary and too risky to seek a vote in Congress.
"I was not enthusiastic about going to Congress for an additional grant of authority," Cheney recalled in a 1996 PBS "
But Bush rejected Cheney's advice and asked Congress for a vote in support of the war. The resolution passed -- barely. Had Congress voted no, Cheney later said, he would have urged Bush to launch the Gulf War regardless.
"From a constitutional standpoint, we had all the authority we needed," Cheney said in the 1996 documentary. "If we'd lost the vote in Congress, I would certainly have recommended to the president that we go forward anyway."
As the Gulf War proceeded, Cheney fought with Congress on other fronts. After civilian Pentagon lawyers clashed with military attorneys over the handling of any bodies contaminated by biological weapons, Cheney asked Congress to change the law to place all military attorneys under the control of civilian political appointees. Congress rejected Cheney's proposal. But in March 1992, Cheney's deputy issued an administrative order defying the expressed will of Congress.
At the same time, Cheney was thwarting Congress by refusing to issue contracts for the V-22 Osprey, a plane that was plagued with technical problems. Cheney opposed the V-22 program, but Congress appropriated funds for it.
By refusing to issue contracts, Cheney revived a Nixon-era tactic of "impounding" funds -- refusing to spend money for programs that he didn't like. Congress had passed a law in 1974 to ban impoundment. Cheney, who later said he believes the anti-impoundment law unconstitutionally infringes on executive power, ignored it.
But Congress forced Cheney to back down in July 1992, when his top assistant, David Addington, was nominated to be the Pentagon's general counsel and came before a Senate confirmation hearing.
"How many ways are there around evading the will of Congress? How many different legal theories do you have?" Senator Carl Levin, Democrat of Michigan, thundered at Cheney's aide.
"I do not have any, senator," said Addington. He was confirmed only after promising that the Pentagon would restore the military lawyers' independence and issue V-22 contracts as quickly as possible.
Cheney left government after Bill Clinton was elected president in 1992, but he returned as a deeply influential vice president eight years later. His aide Addington became a dominant member of the administration's legal team, and together, Cheney and Addington made the assertion of sweeping executive powers a hallmark of George W. Bush's presidency.
One of Cheney's first acts as vice president was to convene an energy policy task force, inviting energy company lobbyists to suggest a package of tax breaks and other incentives for their companies.
When Congress and watchdog groups requested his task force's records, Cheney successfully fought a court battle to keep them secret, arguing that presidents needed greater power to solicit candid advice. The decision gutted the Federal Advisory Committee Act, a 1972 law in which Congress tried to require such policymaking to be subject to public scrutiny.
After the attacks of Sept. 11, 2001, military lawyers objected to the administration's assertion that a president has the power to detain and interrogate terrorism suspects outside the restrictions of the Geneva Conventions. In response, the administration renewed Cheney's attempt to put military lawyers under the control of civilian appointees.
Citing a need for secrecy, the administration also erected new roadblocks to Freedom of Information Act requests, restricted access to historic presidential records, and threatened to prosecute journalists who published classified information using the 1917 anti-spying law -- the same idea Cheney toyed with in 1975.
In signing statements and legal memos, the administration, with Cheney and Addington as its driving force, has repeatedly used the war on terrorism to advance the idea that the president has vast "inherent" authority to bypass laws enacted by Congress. Even when Congress voted, a week after the 9/11 attacks, to authorize the use of military force against Al Qaeda, the administration quickly seized the moment to lay down its marker.
"[Congress cannot] place any limits on the president's determinations as to any terrorist threat, the amount of military force to be used in response, or the method, timing, and nature of the response," the Justice Department asserted in a September 2001 memo solicited by the White House. "These decisions, under our Constitution, are for the president alone to make."
The following year, the administration drew up secret legal opinions informing military and CIA interrogators that the president has the power to authorize them to violate laws banning torture.
"In order to respect the president's inherent constitutional authority to manage a military campaign against Al Qaeda and its allies, [the anti-torture law] must be construed as not applying to interrogations undertaken pursuant to his commander-in-chief authority," said an August 2002 memo, which was leaked to the media only after the abuse of Iraqi prisoners at Abu Ghraib came to light.
Then, in December 2005, The New York Times revealed that the administration was wiretapping Americans' international phone calls and e-mails without warrants, violating the 1978 surveillance law.
Three days later, Cheney sat down with reporters and laid out his belief "in a strong, robust executive authority." Bypassing the warrant law, he asserted, was "consistent with the constitutional authority of the president."
Cheney also indicated that he hopes to establish further precedents for the expansion of presidential authority. Listing other statutory constraints on presidential power, he said they "will be tested at some point." When Cheney was asked whether he believed that the pendulum of executive power had swung back far enough in the direction he desired, or whether it needed to swing back further, he demurred.
"I do think that to some extent now, we've been able to restore the legitimate authority of the presidency," he replied.
Charlie Savage is a reporter in the Globe's Washington bureau. E-mail csavage@globe.com. 
