Cheney's destruction of executive power

The Washington Post is publishing an excellent four-part series examining Dick Cheney's role in the current administration, from terrorism to the economy to the environment. The first two installments are already out, with the next two coming tomorrow and Wednesday.

The series' name, "Angler", seems pretty odd until you realize it's Cheney's Secret Service codename. Though relying heavily on anonymous sources, the breadth, depth and carefulness of the reporting is impressive: More than 200 interviews with administration insiders with direct experience working with or against Cheney, who gave the reporters access to notes, calendars and other records to bolster their words. This isn't a careless, anonymously sourced hatchet job, and the story names so many names that if its claims are not accurate they would be easily demolished. This appears to be "best-practice" use of anonymous sources.

In Sunday's piece, Barton Gellman and Jo Becker detail how Cheney operates: behind the scenes, in secret, depending on his extraordinarily close relationship with President Bush to bypass other agencies and the normal review mechanisms and essentially upend the traditional model of the vice-president's role.

There's nothing particularly wrong with that; A VP who is the president's chief adviser or doppleganger could be very useful, and at a minimum is a way to squeeze extra value out of what has long been a mostly ceremonial post. Sure, one can always paint Cheney as some sort of Rasputin (or, in the current parlance, Lord Voldemort), but there's little evidence to back that up: it's not like he is blackmailing or hypnotizing Bush. It's what Cheney has done with that influence -- not the influence itself -- that deserves criticism.

(If anyone should be blamed for that influence, it's Bush -- who continues to listen to Cheney even though the veep has unhesitatingly led him down losing path after losing path in the last six years.)

The influence goes beyond Bush, though. In the early days of the Bush administration, at the height of his influence, Cheney filled the administration with allies, loyalists and former aides. That gave him huge influence at lower levels of government, allowing him to strongly influence other departments and Congress. It also reinforced his advice to the president, because the president would hear the same advice echoed by Cheney allies elsewhere in the executive branch.

Then there's his legendary penchant for secrecy:

Man-size Mosler safes, used elsewhere in government for classified secrets, store the workaday business of the office of the vice president. Even talking points for reporters are sometimes stamped "Treated As: Top Secret/SCI." Experts in and out of government said Cheney's office appears to have invented that designation, which alludes to "sensitive compartmented information," the most closely guarded category of government secrets. By adding the words "treated as," they said, Cheney seeks to protect unclassified work as though its disclosure would cause "exceptionally grave damage to national security."

Across the board, the vice president's office goes to unusual lengths to avoid transparency. Cheney declines to disclose the names or even the size of his staff, generally releases no public calendar and ordered the Secret Service to destroy his visitor logs.

As well, there's his recent assertion that his office isn't part of the executive branch when it comes to having to obey Executive Orders. As the story says, information flows into the VP's office -- but nothing comes out. It's a Roach Motel for information.

After 9/11 his priority became fighting terrorism without any restrictions whatsoever, be they constitutional, legal or moral. He directed the legal team that sought so many spurious rationales for ignoring plain readings of law or any meaningful limits on executive power in wartime -- regardless of whether that war were actually declared or not, or even meaningfully defined.

That disregard helped him bull through opposition in the short term, but over time has dealt him the usual punishment for overreaching:

The way he did it -- adhering steadfastly to principle, freezing out dissent and discounting the risks of blow-back -- turned tactical victory into strategic defeat. By late last year, the Supreme Court had dealt three consecutive rebuffs to his claim of nearly unchecked authority for the commander in chief, setting precedents that will bind Bush's successors.

One of the main themes of the series is that Cheney, while harshly rebuked, has in practice been far less leashed than most people think, thanks largely to his willingness to build and exploit legal loopholes and questionable claims to get around adverse rulings. But the fact remains that he has weakened the White House for future occupants, especially ones with more respect for legal precedent, logic and intent.

Cheney and his legal team knew their assertions would never withstand scrutiny, which is why they went to such lengths to avoid scrutiny -- even if it meant bypassing Congress, the courts, and administration officials with direct responsibility for the matter at hand.

Cheney's office couldn't be bothered to join administration discussions about what to do with captured Taliban and Al-Qaeda fighters, preferring instead to simply ignore all the discussion about legalities and nuances and do what he wanted by going directly to the president. One of the most interesting sections of the first article explains how this practice went directly against a lifetime of Cheney's own advice.

When James A. Baker III was tapped to be White House chief of staff in 1980, he interviewed most of his living predecessors. Advice from Cheney filled four pages of a yellow legal pad. Only once, to signify Cheney's greatest emphasis, did Baker write in all capital letters:

BE AN HONEST BROKER

DON'T USE THE PROCESS TO IMPOSE YOUR POLICY VIEWS ON PRES.

Cheney told Baker, according to the notes, that an "orderly paper flow is way you protect the Pres.," ensuring that any proposal has been tested against other views. Cheney added: "It's not in anyone's interest to get an 'oh by the way decision' -- & all have to understand that. Can hurt the Pres. Bring it up at a Cab. mtg. Make sure everyone understands this."

In 1999, not long before he became Bush's running mate, Cheney warned again about "'oh, by the way' decisions" at a conference of White House historians. According to a transcript, he added: "The process of moving paper in and out of the Oval Office, who gets involved in the meetings, who does the president listen to, who gets a chance to talk to him before he makes a decision, is absolutely critical. It has to be managed in such a way that it has integrity."

Two years later, at his Nov. 13 lunch with Bush, Cheney brought the president the ultimate "oh, by the way" choice -- a far-reaching military order that most of Bush's top advisers had not seen.

He should have listened to his old self.

The story contains repeated examples of how Bush delegated extraordinary authority on terrorism and intelligence to Cheney -- so much so that when officials went to the White House to complain about Cheney's policy moves, they found themselves meeting with... Cheney.

His reach was long. Supposedly confidential memos from White House officials to the national security advisor -- at the time, Condoleeza Rice -- were secretly routed to Cheney, too; Cheney was reading Rice's mail. In another sign that Alberto Gonzales is an empty shirt, Cheney's staff would prepare memos for Gonzales -- then the White House counsel -- to sign, hiding Cheney's role and putting Gonzales' name to words he never wrote. thus Bush would sometimes hear identical advice from Gonzales and Cheney -- because Cheney had written Gonzales' memo.

Monday's article delves deeper into Cheney's destructive efforts to expand presidential power -- including Cheney's nonstop efforts to allow torture, to exclude the CIA from legal restrictions on torture and to set up the President as the sole authority for deciding what is torture and what isn't (even though abuses by the executive branch are what such laws and conventions are designed to protect against). All this while ignoring, undermining and punishing anyone who dared argue differently.

Once again, the story describes repeated examples of Cheney hiding from the light -- making breathtaking assertions of executive power, then hiding those assertions from anyone who might question or oppose them.

In secret memos, Cheney's chief lawyer, David Addington, pushed some of the most extreme interpretations of presidential power:

The vice president's lawyer advocated what was considered the memo's most radical claim: that the president may authorize any interrogation method, even if it crosses the line of torture. U.S. and treaty laws forbidding any person to "commit torture," that passage stated, "do not apply" to the commander in chief, because Congress "may no more regulate the President's ability to detain and interrogate enemy combatants than it may regulate his ability to direct troop movements on the battlefield."

According to that logic, the president could "accidentally" strangle a prisoner with his own hands in the course of an interrogation, and there is no authority on Earth that could outlaw it. That assertion is so bizarre, so contemptuous of any limit on presidential power, that it's easy to understand why the administration kept it secret. They changed the rules to their own satisfaction, then didn't tell any of the other players.

Cheney refused to step back from even his most outrageous claims, even as they were clearly headed for defeat in the courts. In this he had the continued help of the spineless Gonzales, who often sided with Cheney and Addington over the objections of the Justice Department and even his own staff.

Even when, as predicted, Cheney's views were repudiated in court, he refused to accept reality. For example:

When a U.S. District Court ruled several months later that Padilla had a right to counsel, Cheney's office insisted on sending [solicitor general Ted] Olson's deputy, Paul Clement, on what Justice Department lawyers called "a suicide mission": to tell Judge Michael B. Mukasey that he had erred so grossly that he should retract his decision. Mukasey derided the government's "pinched legalism" and added acidly that his order was "not a suggestion or request."

Even after Cheney's views had been soundly rejected by the Supreme Court -- a defeat that probably helped prompt Olson to resign -- Cheney exercised veto power over the choice of Olson's successor.

Later, Cheney overrode the Defense Department when it tried to formulate rules for the treatment of prisoners after Abu Ghraib.

In late August 2005, [Deputy Defense Secretary Gordon] England called a meeting of nearly three dozen Pentagon officials, including the vice chief and top uniformed lawyer for each military branch. Matthew Waxman, the deputy assistant secretary for detainee affairs, set the agenda.

Waxman said that the president's broadly stated order of Feb. 7, 2002 -- which called for humane treatment [of prisoners], "subject to military necessity" -- had left U.S. forces unsure about how to behave. The Defense Department, he said, should clarify its bedrock legal requirements with a directive incorporating the language of Geneva's Common Article 3. That was exactly the language -- prohibiting cruel, violent, humiliating and degrading treatment -- that Cheney had spent three years expunging from U.S. policy.

"Every vice chief came out strongly in favor, as did every JAG," or judge advocate general, recalled Mora, who was Navy general counsel at the time.

But Cheney objected. Guess who won?

In the following year, Congress and the courts imposed most of those restrictions, and Waxman's successor pushed through the directive Cheney had derailed. But Cheney still found loopholes. Restrictions on torture applied to the Pentagon, not the CIA; and while Bush publicly promised to close down secret CIA prisons, he didn't promise not to open new ones -- and so he did.

For all Cheney's bluster about the supremacy of national security concerns, he has shown a willingness to subordinate those to political concerns. The article describes the case of Australian David Hicks. In plea negotiations with Hicks, they offered to jail him for "only" 20 years in exchange for a guilty plea and an affidavit that he hadn't been tortured as his lawyers claimed.

But then Cheney visited Australia, where he was told that the Hicks case threatened the re-election of Prime Minister John Howard.

Shortly after Cheney returned from Australia, the Hicks case died with a whimper. The U.S. government abruptly shifted its stance in plea negotiations, dropping the sentence it offered from 20 years in prison to nine months if Hicks would say that he was guilty. ... The deal, negotiated without the knowledge of the chief prosecutor, Air Force Col. Morris Davis, was supervised by Susan J. Crawford, the senior authority over military commissions. Crawford received her three previous government jobs from then-Defense Secretary Cheney.

Thus Hicks -- up until that time portrayed as a dangerous terrorist who deserved to be locked up for a long time -- was returned to Australia with a short sentence in order to bolster Howard's re-election bid.

There's a lot more in the stories themselves. And one of the reporters, Barton Gellman, will be online in a couple of minutes answering questions about the series. Meanwhile, stay tuned for Parts III and IV.

Cheney, politics, midtopia