His Attempt to Swing the Pendulum Back
Began Long Before 9/11
Vice President Dick Cheney has stirred up an old fight in
Washington. He sent a rookie, however, to make his case publicly. It
did not work.
Attorney General Alberto Gonzales appeared before
the Senate Judiciary Committee to offer what may have been the weakest
legal argument for presidential power to conduct warrantless electronic
surveillance since Nixon’s Justice Department invoked the views of King
George III.
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King George III’s take on the matter did not carry any weight
either. Indeed, the D.C. Circuit Court of Appeals could barely believe
the Nixon Justice Department was serious. The panel reminded the
government’s lawyers that warrantless searches were among the very
reasons the colonies fought for their independence.
As for the reaction to the Gonzales testimony, a New York Times editorial described it as “a daylong display of cynical hair-splitting, obfuscation, disinformation and stonewalling.” The Times also noted committee chairman Arlen Specter’s analysis of the Attorney General’s legal position: It “just defies logic.”
The Illogic Of the Bush Administration’s Position on Congress’ Law and Views
Chairman
Specter is correct. Gonzales’ position is that the President can make
his own rules, notwithstanding the existence of a federal statute – the
Foreign Intelligence Surveillance Act (FISA) – that is directly on
point, expressly prohibiting warrantless electronic surveillance. For
the Attorney General to defend such a view defies “the equilibrium of
our constitutional system” to use Chairman Specter’s words – treating
Congress’ clear word on the matter, as if had never been spoken at all.
Warrantless wiretapping, moreover, is not just a
separation-of-powers violation; it is also a federal crime. I suspect
we will hear more from Chairman Specter on this issue, for he has great
respect for the rule of law.
Equally illogical is Vice
President Dick Cheney’s position — and if anyone does not believe that
Cheney is not behind this ruckus, they do not know Cheney or his
history. Let me start by describing his give-no-quarter stance.
After
the Attorney General’s testimony concluded, and given the doubts
expressed about it by both Republicans and Democrats on the Senate
Judiciary Committee, PBS newsman Jim Lehrer asked Cheney if President
Bush would cooperate with Congress to “settle some of the legal
disputes about the NSA surveillance program?” Cheney responded
with a polite, hell no. (Incidentally, this was Cheney’s first
interview with other than a conservative news person.) “We believe,
Jim, that we have all the legal authority we need,” Cheney said. “[The
President] 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.”
The President will listen to ideas and suggestions from the
Congress, but he will not follow a law it has written (and a prior
President has signed into law) on the subject? This is not exactly a
logical stance.
Congresswoman Wilson’s Call For Details: Initially Resisted, Finally Addressed
Nor
is the on-again/off-again stance the administration has taken regarding
whether it will even share with Congress the details of the NSA
surveillance program.
The off-again stance was simply absurd.
With every indication suggesting that the President directed the NSA to
violate federal law, the Administration seemed to maintain that
Congress somehow lacked even the authority to investigate the most
basic facts relating to the illegality: Who, what, when, where and how.
At first, the Administration refused even to brief the House
intelligence subcommittee that oversees the NSA. Laudably, the
Committee’s Chair, Heather Wilson, R-N.M., subsequently broke with the
Administration and called for a full review of the NSA’s program.
Initially, the White House once again resisted. But finally, it
instructed the NSA to brief the House subcommittee.
It wasn’t
logic that made the Administration capitulate, of course. It was a
tactical, political decision: an effort to not let too much steam build
among Congressional Republicans on this issue. What I have called
illogical, former Georgia Congressman Bob Barr appropriately described
as a kabuki dance with Congress in his recent column for this site.
Cheney Wants To Swing the Pendulum Back on the Executive Power Issue
Actually,
all this is something of a periodic Washington ritual. And no one
enjoys beating this drum to keep the executive power issue alive more
than Dick Cheney. It may, in fact, be the reason he selected himself to
be George Bush’s Vice President.
“In the aftermath of Vietnam and Watergate,” Cheney recently told the Wall Street Journal,
“there was a concerted effort to place limits and restrictions on
presidential authority.” There were “a series of decisions,” he
explained, “that were aimed at the time at trying to avoid a repeat of
things like Vietnam or … Watergate.”
“I thought they were
misguided then,” he continued, and “given the world that we live in
[today] that the president needs to have unimpaired executive
authority.” Cheney said the only restraint on the president should be
“the Constitution.” He did not say, however, as he has on other
occasions, that it is the president who says what the Constitution
means, as far as his own duties and responsibilities.
But that
point of view is implicit in Cheney’s comment that “the pendulum from
time to time throughout history has swung from side to side–Congress
was pre-eminent, or the executive was pre-eminent–and as I say, I
believe in this day and age, it’s important that we have a strong
presidency.”
This View Long Predated 9/11: Startling Statements in Iran-Contra Minority Views
Do
not, however, mistake Cheney’s reference to “this day and age” as
having anything to do with terrorism. Long before 9/11, Cheney was
pushing this cause.
To understand Cheney’s position, he
suggests that others “go back and look at the minority views that were
filed with the Iran-Contra report, [and] you’ll see a strong statement
about the president’s prerogatives and responsibilities in the foreign
policy/national security area in particular.”
If one does as Cheney says, as I have, what will be found is rather startling, to say the least.
The
so-called Iran Contra report to which Cheney is referring emerged as
part of a five-hundred page final report of a Congressional
investigation which lasted eleven months. The investigation was
undertaken by a joint committee of both House and Senate, of which
then-Representative Dick Cheney was Vice-Chair.
At issue was
whether the Reagan Administration had ignored the Boland Amendment, a
1984 law that restricted the CIA’s use of appropriated funds to support
the Nicaragua Contra movement – and, relatedly, whether Congress had
been properly informed about the Administration’s actions.
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 called the 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-Ã -vis the president has changed little since 1987. His position,
however, is far from as solid as he claims.
Presidents Do Not Have Exclusive Authority in National Security
Since
the time the Constitution was adopted, there has been an unresolved (if
not irresolvable) debate over the allocation of foreign policy powers
between Congress and the president. There are highly respected
authorities on both sides of the question. No wonder, for as Harvard
professor and presidential powers scholar Edwin S. Corwin explained,
the Constitution itself “is an invitation to struggle for the privilege
of directing American foreign policy.”
Corwin added, however,
the “verdict of history ) is that the power to determine the
substantive content of American foreign policy is a divided
power, with the lion’s share falling usually, though by no means
always, to the President.” (Emphasis in original.) If there is a more
accurate assessment of these powers, I have never found it.
Article II of the Constitution,
which sets forth presidential powers, is so vague that not even the
Framers of the Constitution themselves agreed about its meaning. James
Madison made the point in Federalist No. 37, stating “that no
skill in the science of government has yet been able to discriminate
and define, with sufficient certainty, its three great provinces — the
legislative, executive, and judiciary; or even the privileges and
powers of the different legislative branches.”
Madison
believed the meaning of this great charter would “be liquidated and
ascertained by a series of particular discussions and adjudications.”
But it has not worked out that way. For example, the U.S. Supreme Court
has two rival holdings regarding the conduct of foreign affairs – each
suitable for citation by one side in the ongoing debate.
Cheney, and those who subscribe to his point of view, find solace in the Court’s 1936 decision in U.S. v. Curtiss-Wright Export Corporation.
Ironically, conservatives once loathed this ruling – which recognized
President Franklin Roosevelt’s preeminence in foreign policy.
Meanwhile,
those who believe presidential powers in foreign affairs may be
constrained by laws passed by Congress, find support in the Court’s
1952 decision in Youngstown Sheet and Tube Co. v. Sawyer.
There, the Court directly prohibited President Truman from seizing the
nation’s steel mills for military needs during the Korean War, on the
ground that Congress, by law, had prohibited using such means to settle
a strike.
Both of these precedents stand. But the Youngtown
ruling, particularly the concurrence by Justice Robert Jackson, has
long been considered the best statement of the law. Still, with both
decisions on the books, the “discussions and adjudications,” which have
been going on for two centuries now, have never been fully judicially
resolved.
I believe they have been politically resolved,
however. Moreover, Bush and Cheney’s presidency presents a clear-cut
case of a violation of that political resolution – for it has pushed
the exclusivity of the president in matters of national security
further than any predecessor, including the Nixon Administration, did.
For that reason, I will return to this subject in a following column.
John W. Dean, a FindLaw columnist, is a former counsel to the President.