NY Times editorial on Cheney

Mr. Cheney's Imperial Presidency

Published: December 23, 2005

George W. Bush has quipped several times during his political career that it would be so much easier to govern in a dictatorship. Apparently he never told his vice president that this was a joke.

Virtually from the time he chose himself to be Mr. Bush's running mate in 2000, Dick Cheney has spearheaded an extraordinary expansion of the powers of the presidency - from writing energy policy behind closed doors with oil executives to abrogating longstanding treaties and using the 9/11 attacks as a pretext to invade Iraq, scrap the Geneva Conventions and spy on American citizens.

It was a chance Mr. Cheney seems to have been dreaming about for decades. Most Americans looked at wrenching events like the Vietnam War, the Watergate scandal and the Iran-contra debacle and worried that the presidency had become too powerful, secretive and dismissive. Mr. Cheney looked at the same events and fretted that the presidency was not powerful enough, and too vulnerable to inspection and calls for accountability.

The president "needs to have his constitutional powers unimpaired, if you will, in terms of the conduct of national security policy," Mr. Cheney said this week as he tried to stifle the outcry over a domestic spying program that Mr. Bush authorized after the 9/11 attacks.

Before 9/11, Mr. Cheney was trying to undermine the institutional and legal structure of multilateral foreign policy: he championed the abrogation of the Antiballistic Missile Treaty with Moscow in order to build an antimissile shield that doesn't work but makes military contactors rich. Early in his tenure, Mr. Cheney, who quit as chief executive of Halliburton to run with Mr. Bush in 2000, gathered his energy industry cronies at secret meetings in Washington to rewrite energy policy to their specifications. Mr. Cheney offered the usual excuses about the need to get candid advice on important matters, and the courts, sadly, bought it. But the task force was not an exercise in diverse views. Mr. Cheney gathered people who agreed with him, and allowed them to write national policy for an industry in which he had recently amassed a fortune.

The effort to expand presidential power accelerated after 9/11, taking advantage of a national consensus that the president should have additional powers to use judiciously against terrorists.

Mr. Cheney started agitating for an attack on Iraq immediately, pushing the intelligence community to come up with evidence about a link between Iraq and Al Qaeda that never existed. His team was central to writing the legal briefs justifying the abuse and torture of prisoners, the idea that the president can designate people to be "unlawful enemy combatants" and detain them indefinitely, and a secret program allowing the National Security Agency to eavesdrop on American citizens without warrants. And when Senator John McCain introduced a measure to reinstate the rule of law at American military prisons, Mr. Cheney not only led the effort to stop the amendment, but also tried to revise it to actually legalize torture at C.I.A. prisons.

There are finally signs that the democratic system is trying to rein in the imperial presidency. Republicans in the Senate and House forced Mr. Bush to back the McCain amendment, and Mr. Cheney's plan to legalize torture by intelligence agents was rebuffed. Congress also agreed to extend the Patriot Act for five weeks rather than doing the administration's bidding and rushing to make it permanent.

On Wednesday, a federal appeals court refused to allow the administration to transfer Jose Padilla, an American citizen who has been held by the military for more than three years on suspicion of plotting terrorist attacks, from military to civilian custody. After winning the same court's approval in September to hold Mr. Padilla as an unlawful combatant, the administration abruptly reversed course in November and charged him with civil crimes unrelated to his arrest. That decision was an obvious attempt to avoid having the Supreme Court review the legality of the detention powers that Mr. Bush gave himself, and the appeals judges refused to go along.

Mr. Bush and Mr. Cheney have insisted that the secret eavesdropping program is legal, but The Washington Post reported yesterday that the court created to supervise this sort of activity is not so sure. It said the presiding judge was arranging a classified briefing for her fellow judges and that several judges on the court wanted to know why the administration believed eavesdropping on American citizens without warrants was legal when the law specifically requires such warrants.

Mr. Bush and Mr. Cheney are tenacious. They still control both houses of Congress and are determined to pack the judiciary with like-minded ideologues. Still, the recent developments are encouraging, especially since the court ruling on Mr. Padilla was written by a staunch conservative considered by President Bush for the Supreme Court.

cwsox

from Forbes - the troops are not taken in by Cheney

Update 1: Cheney Fields Tough Questions From Troops
12.18.2005, 03:18 PM
http://www.forbes.com/business/feeds/ap/2005/12/18/ap2400133.html

Facing tough questions from battle-weary troops, Vice President Dick Cheney on Sunday cited signs of progress in Iraq and signaled that force changes could come in 2006.

Cheney rode the wave of last week's parliamentary elections during a 10-hour surprise visit to Iraq that aimed to highlight progress at a time when Americans question the mission. Military commanders and top government officials offered glowing reports, but the rank-and-file troops Cheney met did not seem to share their enthusiasm.

"From our perspective, we don't see much as far as gains," said Marine Cpl. Bradley Warren, the first to question Cheney in a round-table discussion with about 30 military members. "We're looking at small-picture stuff, not many gains. I was wondering what it looks like from the big side of the mountain - how Iraq's looking."

Cheney replied that remarkable progress has been made in the last year and a half.

"I think when we look back from 10 years hence, we'll see that the year '05 was in fact a watershed year here in Iraq," the vice president said. "We're getting the job done. It's hard to tell that from watching the news. But I guess we don't pay that much attention to the news."

Another Marine, Cpl. R.P. Zapella, asked, "Sir, what are the benefits of doing all this work to get Iraq on its feet?"

Cheney said the result could be a democratically elected Iraq that is unified, capable of defending itself and no longer a base for terrorists or a threat to its neighbors. "We believe all that's possible," he said.

Although he said that any decision about troop levels will be made by military commanders, Cheney told the troops, "I think you will see changes in our deployment patterns probably within this next year."

About 160,000 troops are in Iraq. The administration has said that troop levels are expected to return to a baseline of 138,000 after the elections, but critics of the war have called for a significant drawdown.

More than 2,100 troops have died in Iraq since the U.S. invaded in March 2003.

The round-table with the vice president came after hundreds of troops had gathered in an aircraft hangar to hear from a mystery guest. When Cheney emerged at the podium, he drew laughs when he deadpanned, "I'm not Jessica Simpson."

Shouts of "hooah!" from the audience interrupted Cheney a few times, but mostly the service members listened intently. When he delivered the applause line, "We're in this fight to win. These colors don't run," the only sound was a lone whistle.

The skepticism that Cheney faced reflects opinions back home, where most Americans say they do not approve of President Bush's handling of the war. It was unique coming from a military audience, which typically receives administration officials more enthusiastically.

Cheney became the highest-ranking administration official to visit the country since Bush's trip on Thanksgiving Day 2003. It was his first visit to Iraq since March 1991, when he was defense secretary for President George H.W. Bush.

The tour came on the same day that President Bush was giving a prime-time Oval Office address on Iraq. Cheney's aides said the timing was a coincidence, yet the two events combined in a public-relations blitz aimed at capitalizing on the elections to rebuild support for the unpopular war.

The daylong tour of Iraq was so shrouded in secrecy that even Iraqi Prime Minister Ibrahim al-Jaafari and President Jalal Talabani were kept in the dark. The prime minister said he was surprised when he showed up for what he thought was a meeting with the U.S. ambassador and saw Cheney.

Talabani, his finger still stained purple as proof that he had voted three days earlier, was clearly delighted. He thanked Cheney profusely for coming and called him "one of the heroes of liberating Iraq."

Cheney had an hourlong briefing on the election from Ambassador Zalmay Khalilzad, top U.S. commander Gen. George Casey and Gen. John Abizaid, commander of U.S. forces in Iraq. He emerged saying he was encouraged by preliminary results showing high turnout about Sunni Muslims, who make up the backbone of the insurgency.

His next visit was to Taji Air Base, where he saw tanks that Iraqis had rebuilt and watched while they practiced a vehicle sweep at a security checkpoint.

U.S. forces guarded Cheney with weapons at the ready while Iraqi soldiers, who had no weapons, held their arms out as if they were carrying imaginary guns.

"The Syrian border is back under Iraq control now," U.S. Lt. Gen. Marty Dempsey told the vice president, pointing to a map of Iraqi troop locations. "When people say, 'When will Iraq take control of its own security?' the answer truly is it already has."

Cheney lunched on lamb kebobs, hummus and rice with raisins along with U.S. and Iraqi soldiers who helped secure polling sites. Then he headed to his third and final stop in Iraq at al-Asad.

Cheney flew over Baghdad in a pack of eight fast-moving Blackhawk helicopters, following the airport road that has been the site of so many insurgent attacks and passing the courthouse where Saddam Hussein is being tried.

The unannounced stops in Iraq came at the beginning of a five-day tour aimed at strengthening support for the war on terror. Stops include Oman, Afghanistan, Pakistan, Egypt and Saudi Arabia.

Cheney's staff kept the Iraq portion secret from reporters, waiting to reveal the plans when Air Force Two was preparing to refuel in the United Kingdom. Once on the ground, the entourage transferred from his conspicuous white and blue 757 to an unmarked C-17 cargo plane that would fly overnight to Baghdad International Airport.

losing our freedoms

The argument advanced that Congress has no power to limit the president's action is downright scary/

Behind Power, One Principle as Bush Pushes Prerogatives

By SCOTT SHANE
Published: December 17, 2005

WASHINGTON, Dec. 16 - A single, fiercely debated legal principle lies behind nearly every major initiative in the Bush administration's war on terror, scholars say: the sweeping assertion of the powers of the presidency.
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Related
Bush Lets U.S. Spy on Callers Without Courts (December 16, 2005)

From the government's detention of Americans as "enemy combatants" to the just-disclosed eavesdropping in the United States without court warrants, the administration has relied on an unusually expansive interpretation of the president's authority. That stance has given the administration leeway for decisive action, but it has come under severe criticism from some scholars and the courts.

With the strong support of Vice President Dick Cheney, legal theorists in the White House and Justice Department have argued that previous presidents unjustifiably gave up some of the legitimate power of their office. The attacks of Sept. 11, 2001, made it especially critical that the full power of the executive be restored and exercised, they said.

The administration's legal experts, including David S. Addington, the vice president's former counsel and now his chief of staff, and John C. Yoo, deputy assistant attorney general in the Office of Legal Counsel of the Justice Department from 2001 to 2003, have pointed to several sources of presidential authority.

The bedrock source is Article 2 of the Constitution, which describes the "executive power" of the president, including his authority as commander in chief of the armed forces. Several landmark court decisions have elaborated the extent of the powers.

Another key recent document cited by the administration is the joint resolution passed by Congress on Sept. 14, 2001, authorizing the president to "use all necessary and appropriate force" against those responsible for Sept. 11 in order to prevent further attacks.

Mr. Yoo, who is believed to have helped write a legal justification for the National Security Agency's secret domestic eavesdropping, first laid out the basis for the war on terror in a Sept. 25, 2001, memorandum that said no statute passed by Congress "can 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."

That became the underlying justification for numerous actions apart from the eavesdropping program, disclosed by The New York Times on Thursday night. Those include the order to try accused terrorists before military tribunals; the detention of so-called enemy combatants at Guantánamo Bay, Cuba, and in secret overseas jails operated by the Central Intelligence Agency; the holding of two Americans, Jose Padilla and Yaser Esam Hamdi, as enemy combatants; and the use of severe interrogation techniques, including some banned by international agreements, on Al Qaeda figures.

Mr. Yoo, now a law professor at the University of California, Berkeley, declined to comment for this article. But Bradford A. Berenson, who served as associate counsel to President Bush from 2001 to 2003, explained the logic behind the assertion of executive power.

"After 9/11 the president felt it was incumbent on him to use every ounce of authority available to him to protect the American people," Mr. Berenson said.

He said he was not familiar with the N.S.A. program, in which the intelligence agency, without warrants, has monitored international telephone calls and international e-mail messages of people inside the United States. He said that he could not comment on whether the program was justified, but that he believed intelligence gathering on an enemy was clearly part of the president's constitutional war powers.

"Any program like this would have been very carefully analyzed by administration lawyers," Mr. Berenson said. "It's easy, now that four years have passed without another attack, to forget the sense of urgency that pervaded the country when the ruins of the World Trade Center were still smoking."

But some legal experts outside the administration, including some who served previously in the intelligence agencies, said the administration had pushed the presidential-powers argument beyond what was legally justified or prudent. They say the N.S.A. domestic eavesdropping illustrates the flaws in Mr. Bush's assertion of his powers.

"Obviously we have to do things differently because of the terrorist threat," said Elizabeth Rindskopf Parker, former general counsel of both N.S.A. and the Central Intelligence Agency, who served under both Republican and Democratic administrations. "But to do it without the participation of the Congress and the courts is unwise in the extreme."

Even if the administration believes the president has the authority to direct warrantless eavesdropping, she said, ordering it without seeking Congressional approval was politically wrongheaded. "We're just relearning the lessons of Vietnam and Watergate," said Ms. Parker, now dean of the University of the Pacific McGeorge School of Law.
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Bush Lets U.S. Spy on Callers Without Courts (December 16, 2005)

Jeffrey H. Smith, who served as C.I.A. general counsel in 1995 and 1996, said he was dismayed by the N.S.A. program, which he said was the latest instance of legal overreach by the administration.

"Clearly the president felt after 9/11 that he needed more powers than his predecessors had exercised," Mr. Smith said. "He chose to assert as much power as he thought he needed. Now the question is whether that was wise and consistent with our values."

William C. Banks, a widely respected authority on national security law at Syracuse University, said the N.S.A. revelation came as a shock, even given the administration's past assertions of presidential powers.

"I was frankly astonished by the story," he said. "My head is spinning."

Professor Banks said the president's power as commander in chief "is really limited to situations involving military force - anything needed to repel an attack. I don't think the commander in chief power allows" the warrantless eavesdropping, he said.

Mr. Berenson, the former White House associate counsel, said that in rare cases, the presidents' advisers may decide that an existing law violates the Constitution "by invading the president's executive powers as commander in chief."

The Foreign Intelligence Surveillance Act of 1978 typically requires warrants for the kind of eavesdropping carried out under the special N.S.A. program. Whether administration lawyers argued that that statute unconstitutionally infringed the president's powers is not known.

But Mr. Smith, formerly of the C.I.A., noted that when President Carter signed the act into law in 1978, he seemed to rule out any domestic eavesdropping without court approval.

"The bill requires, for the first time, a prior judicial warrant for all electronic surveillance for foreign intelligence or counterintelligence purposes in the United States" if an American's communications might be intercepted, President Carter said when he signed the act.

By asserting excessive powers, Mr. Smith said, President Bush may provoke a reaction from Congress and the courts that ultimately thwarts executive power.

"The president may wind up eroding the very powers he was seeking to exert," Mr. Smith said.