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Cheney's Law [home page]

Charlie Savage

savage

Savage is the author of Takeover: The Return of the Imperial Presidency and the Subversion of American Democracy (2007) and a Washington correspondent for The Boston Globe. In 2007, he won the Pulitzer Prize for National Reporting for his series of articles on President Bush's use of signing statements to challenge legislation he disagrees with -- in particular, bills his administration sees as limiting executive power. This is an edited transcript drawn from two interviews conducted on July 10 and Aug. 7, 2007.

The Addington-Cheney position is that there is a higher law than any statute that Congress has passed, and that law is the Constitution.

Tell me when this notion of the unitary executive, executive authority, executive privilege really rears its head in the modern times. ...

... Harry Truman, for the first time in Korea, took the country into a major overseas war on his own authority. That was the defining event of the beginning of what the historian Arthur Schlesinger Jr. called the "imperial presidency," a presidency that was seizing for itself powers that were beyond what the founders intended it to have. ...

What you see as the imperial presidency grows over history is that each president pushes the envelope a little bit, and then his presidency ends, and the next presidency starts where the last one left off and adds something new or pushes it a little further. So it just keeps ratcheting up slowly over time. ...

When does Dick Cheney become a true believer in executive power?

Dick Cheney gets his first real job in government at the age of 28, in 1969, when Donald Rumsfeld hires him in the Nixon administration to be his aide at an office called the Office of Economic Opportunity. This was an umbrella organization that had been set up as part of Johnson's War on Poverty, and it oversaw a lot of different programs that were involved in helping poor people improve their lot in life. It was deeply unpopular with conservatives. But Congress had passed laws that needed to be enforced, and it had set this agency up to enforce these laws, doing things like providing free legal services to the poor and so forth.

Nixon was unable to get Congress to roll back those laws. So as part of his broader seizure of powers for the White House, he tried to subvert the mission of these various agencies by withholding funds from them and by installing people who would rein them in, as it were. One of those efforts was at the Office of Economic Opportunity, run by Rumsfeld, with Cheney at his side learning about this presidential power grab as his sort of inaugural experience in the federal government. ...

What is the essence of the idea of the unitary executive?

... The unitary executive theory essentially holds that Congress cannot regulate the executive branch, because the executive power is wrapped up in a single person, the president, and the president has to be able to wield the executive power as he sees fit. What this means is that when Congress tries to pass rules and regulations for the executive branch that restrict what the president can do, that's unconstitutional, because that's Congress getting involved in the executive branch when Congress' powers are to be limited to other things. ...

What did Dick Cheney witness during Watergate and what do we know about his feelings at the time?

You cannot understand what has happened to executive power under the Bush-Cheney administration without understanding where Dick Cheney came from, what his formative experiences were. ... Watergate and the fallout from the end of the Vietnam War brought about a great crisis within the federal government. It awoke Congress from what had been a 25-year slumber about the power that was accreting in the executive branch and bleeding away from the other branches. Congress started to pass a series of new laws designed to reimpose checks and balances on the presidency, to re-establish some sense of constitutional equilibrium and to perform oversight investigations. ...

This is the moment in which the imperial presidency seems to fall. This is also the moment in which Dick Cheney has risen to the top of the executive branch and is getting his chance to help wield executive power from high in the presidential hierarchy. He is the chief of staff to Nixon's successor, Gerald Ford, and he's watching as the White House seems to be under siege, as its powers are being lassoed and tied back down to earth; as its ability to keep information secret is being undermined and national security information is flowing out the door and into the hands of Congress, and sometimes into the hands of the press through leaks. It's an outrage, from his perspective. He doesn't think that the Watergate scandal was an inevitable consequence of unfettered power. He sees it as just a policy dispute or maybe some personal failings on the part of Richard Nixon. ...

... When he ran for Congress, is it your sense that he's on fire about this, that this is a kind of life-defining ideology or political perspective? ... Or is it something else for him?

I think it's too strong to say that he ran for Congress with the specific intent of putting back the imperial presidency. I think he was just a guy who was interested in government and politics. ...

But it's once Reagan takes office and Cheney himself starts to rise within the ranks of the Republican hierarchy in the House that this pre-existing sense that developed during the Ford administration that presidential power had been damaged by the reforms imposed in the '70s starts to reassert itself. You see him defending the president's actions in sending troops to Lebanon and Grenada. You see him being one of the most outspoken defenders of the president's prerogative to handle foreign policy as he sees fit during the Iran-Contra scandal.

And there's other moments: In 1980, when Reagan was coming in, his first chief of staff, Jim Baker, had asked Cheney for advice about how to be a good chief of staff. ... Cheney met with Baker, and Baker took three pages of notes, which have since come out. Most of these notes are purely logistical -- how do you handle the president's calendar and so forth and so on.

There's one [piece of] policy advice on it, on the first page at the bottom. It's got lots of stars next to it and all kinds of underlining, and it says, "Increase the power of the presidency. Get rid of the War Powers Resolution," which made presidents have to start going to Congress again when they're going to dispatch troops into combat. "We've got to re-establish what we lost in the post-Watergate moment."

In the Iran-Contra scandal six years later or seven years later, Cheney was leading the dissidents within the House and the Senate who believed that the White House had all the power it needed to circumvent laws that said, "No assistance to the Contras in Nicaragua." Because the president is commander in chief, the president should have a totally unfettered hand when it comes to national security and foreign affairs, so Congress was wrong to pass that law in the first place.

That was a pretty wild idea at the time compared to [what] a lot of even Republicans felt.

That's right. The minority report that Cheney commissioned in the Iran-Contra scandal was viewed with derision by some of his fellow Republicans who joined the majority report, who said that Cheney and his faction had separated the wheat from the chaff and gone with the chaff. It was then dismissed when it was paid attention to at all. But of course flash forward 25 years, and Cheney is telling reporters, "Go back and read that report." ...

When does David Addington, [the vice president's chief of staff since late 2005], enter Cheney's life?

... David Addington helped research the Iran-Contra report and soon becomes an aide to Dick Cheney. When Dick Cheney goes to the Pentagon to become secretary of defense under the first President Bush, David Addington goes with him and becomes his top aide.

What is it that Addington brings to the table for a guy like Dick Cheney?

Dick Cheney has a very expedient view of executive power. Dick Cheney believes that the world is too dangerous and too complex to let a president's hands be tied, especially since the rise of nuclear weapons, the Soviet threat, now the war on terrorism. Therefore the president needs to be able to do what he needs to be able to do as just a matter of what's best for the country. ...

What David Addington brings to the table is a well-developed legal theory about why these powers ... are embedded as unwritten provisions in the Constitution, are inherent in the idea of the president being the commander in chief. ...

So the combination of Dick Cheney's interest and his political power with David Addington's theories of unfettered constitutional power for the president is a very powerful package, and that's what's going to end up shaping the Bush-Cheney administration mode of operation once Dick Cheney becomes vice president.

How do you describe Addington?

I've never met David Addington. He turned down interview requests with me. I've talked to a lot of people who know him. They all agree that he's extremely smart; he's sarcastic; he's very hardworking. He's not interested in the trappings of power. He's interested in power as an end to itself, but not fancy cars that drive you to work and so forth.

He is argumentative. He is a fierce bureaucratic infighter, and he's willing to work harder and smarter than most of his enemies in the bureaucracy, and therefore he usually prevails. He also usually prevails because he's had Dick Cheney standing behind him, and so everyone knew that he was speaking for the most powerful bureaucratic actor within the White House these last seven years.

There's a moment in your book that I thought was really interesting. Cheney has written ... a very tough paper that's about to be delivered at the American Enterprise Institute [a week before he was nominated as secretary of defense]. What was he going to say? ...

... In spring of 1989 Cheney has been invited to a conference at the American Enterprise Institute ... about the separation of powers, about executive power, and he prepares a very interesting paper that's going to be the basis of the talk he's going to deliver. ...

Cheney says, "I've talked a lot lately about the legal theories surrounding stronger executive power. But let's put those aside for a minute and talk about the pragmatic consequences," he says, "of letting Congress interfere too much in foreign affairs, in national security matters. ... Congress is just not institutionally fit to be making these decisions. They're just interested in the next election, short-term effects. They want to take credit for good things that happen and avoid blame for bad things that happen. We can't trust Congress to act in the national interest when it comes to making these decisions." ...

But at this very moment, George H.W. Bush's nominee to be secretary of defense is going down in flames. ... [He] calls up Dick Cheney and says, "Would you like to be secretary of defense?" So Cheney calls up the American Enterprise Institute, says, "I'm not coming to your conference; I'm not delivering this paper." It just sits in the files of the American Enterprise Institute for the next few years. ...

[Who works for him at the Defense Department?]

A lot of the players that we're going to see taking major roles in the Bush-Cheney administration and its national security apparatus surface in major ways first in the Cheney Pentagon. ... Addington becomes his top aide, controlling the flow of paper and visitors to Cheney and helping him fight internal bureaucratic battles to impose greater control over the military from the secretary of defense's office. In the last year of the Cheney Pentagon, Addington becomes the general counsel, the top civilian lawyer, at the Pentagon.

In addition, a young lawyer named Jim Haynes, who had been a JAG, ... was finishing up his six-year stint as an Army captain in 1989. On his way out the door, he was assigned to work on the transition team to help the Cheney and Bush government take over the Pentagon from the Reagan administration. Haynes meets Addington; a mentor relationship develops between the two of them, and a few months later Addington has Haynes brought back into the Pentagon, now as the top civilian lawyer in the Army, the Army general counsel.

Over the next few years, Haynes is going to have a lot of fights with the uniformed military lawyers, the top JAGs in the Army, over who gets to control legal issues arising in the Gulf War and control the law of war within the Army in general. These fights will develop into an early effort by Cheney and Addington to change the rules so that there will be greater direct political control by the civilian political appointees over the permanent military lawyers, the uniformed bureaucracy, as it were. That effort will fail in the first Bush administration, but they will be revived again a decade later in the Bush-Cheney administration as sort of unfinished business that now has much broader consequences. ...

So they get out of government for the period of the Clinton administration. Is Cheney viewed during this time and in his time as secretary of defense as the leader of a movement that a lot of people are talking about?

It's not something that people talked about as cleanly and coherently as we talk about it now. It was not obvious what was happening then. We know now that Dick Cheney urged, strongly urged, the first President Bush to launch the Gulf War without going to Congress for permission. ...

The first President Bush thinks about it, rejects that advice. But that was a conversation that happened behind closed doors. Cheney mentions it in a few interviews later, including a FRONTLINE [interview] in 1996, but no one's really paying attention to Dick Cheney by then. ...

When Cheney is vice president-elect in charge of the transition, is it obvious that there's a kind of effort to populate various branches of the government with people who believe the theory of executive power? ...

A lot of people who have studied the transition from the Clinton administration to the Bush-Cheney administration have noted [that] people who had worked closely with Cheney in earlier stints in government service, who were loyal to him, who shared his perspective on the world, were being placed in key positions around the government. The most obvious would be Secretary of Defense Donald Rumsfeld, ... but also a lot of deputies in key positions around National Security Council and other parts of the government.

So there were Bush people like [then-White House lawyers] Harriet Miers and Alberto Gonzales who were coming in from Texas, who didn't have a lot of experience in federal government issues, didn't have a lot of Washington understanding. They might have positions of authority on paper, but inside a meeting room, when an issue arose and they were dealing with people who had been immersed in these issues for 20 years and understood them infinitely better, it was obvious that the views of the experienced people, the Cheney people, were more likely than not to prevail. ...

[What is the Office of Legal Counsel?]

The Office of Legal Counsel [OLC] is the most important legal office in the federal government. Even though no one outside of Washington has heard of it, it wields absolutely enormous powers. It is the office which tells the executive branch, from the president to the military to the CIA to anyone else, what the law is. ... The judgment of these lawyers and their ability to issue binding legal interpretation becomes the law. ... A memo from the Office of Legal Counsel that gives legal cover to an action means that you are acting in good faith that what you were doing was proper.

Because it has this power, the Office of Legal Counsel is the only agency that can really at the end of the day tell the president no, and they have an enormous responsibility, a solemn duty, to tell the president no if the best reading of the law says that a proposed policy is illegal. ...

[Who heads the OLC at the beginning of the administration?]

... There was a fight between the White House legal team, dominated by Addington, and the Justice Department legal team, dominated by John Ashcroft, over who would get to control the Office of Legal Counsel. Each of them had their preferred candidates, and the candidates were unacceptable to each other. Months and months passed without someone coming in permanently to head it. ...

The Senate would not confirm Jay Bybee, a UNLV professor who became the second compromise candidate, until October, and he was still teaching law, and he did not come out and join the administration until after Thanksgiving of 2001. That meant that for several months after the terrorist attacks of 9/11, this sort of leaderless office, run by people who had not had to undergo Senate confirmation vetting, were able to put in place the entire legal framework for what would be the most important policies in the war on terrorism.

The principal author of most of these memos was John Yoo, a Berkeley law professor who's now back at Berkeley. He has tenure. John Yoo was young. He was very conservative, and he had made his name in academia by writing law journal articles and speaking at events in which he would take a very provocatively revisionist stance about the scope of executive power. His essential argument was that everyone had misunderstood what the founders did for the last 200 years; that the founders were not trying to make a decisive break with the British king, but, in fact, in many, many ways thought that the president should have the same powers that the British king had when it came to matters of national security. ... Most people, overwhelmingly, who are specialists in the law reject this reading of what the founders did. But it was an interesting point of view in the '90s, and it got published because it was interesting to think about. ...

However, when [Yoo] became the Office of Legal Counsel deputy in charge of the national security and foreign affairs portfolio and had no boss after 9/11, it allowed him to put these theories into pragmatic effect by writing secret advisory opinions that stated these theories as true, citing his own work from the '90s as authority for why they were true.

These established then a framework in which the president had legal cover for launching a surveillance program which contradicted the statute requiring a judge's approval whenever the government wanted to intercept phone calls and e-mails of American citizens, convening military commissions on his own authority without going to Congress, sidestepping the Geneva Conventions, a Senate-ratified constraint on how a commander in chief can treat prisoners and so forth. ...

There's an early meeting where Gonzales sits around with all the other counsel and articulates the two main goals for his team. Take me to that meeting. Who's there, what happens, and what does he say?

... It was the day after inauguration. It was the very first meeting of the White House Counsel's office, the new White House legal team. ... They gather in Alberto Gonzales' office on the second floor of the West Wing to meet each other and get started.

Alberto Gonzales comes in; he greets them; there's pleasantries. Then he gives them marching orders that he says that he's conveying from the president to them, to the legal team: Don't just do your jobs; do your jobs with a mandate.

And there's a twofold mandate. The first is, move fast on getting judicial confirmations in the pipeline. We're going to get conservative judicial-restraint-oriented judges confirmed, and we're going to fill a lot of vacancies on the federal bench that have been held open the last couple of years because of partisan politics within the Congress. ...

The second mandate, though, was something of a surprise. It was: The presidency has been weakened by this president's predecessors; it's time to protect and restore presidential power. You are to seek out every opportunity to expand presidential power as they arise in the next few years. ... Alberto Gonzales used in that meeting the phrase, "You are to ensure that this president passes on this office to his successor in better shape than he found it." ...

But as months passed and time progressed, Cheney took increasingly public ownership of this idea, that this was his idea that had come from his experiences in the Ford administration and so forth. ...

[What was the first sign of this idea?]

The energy task force records fight, first with Congress and also with Judicial Watch, ... was the first sign that this administration was going to be very aggressive about protecting its powers and, in this case, its power to keep information secret from outsiders. ...

And the driving intellectual force behind that is?

Vice President Cheney is an extremely secretive public official. He's talked a lot about the need for preserving candid advice and for not having people prying into affairs that are properly for the president and his men alone. He even said that he himself doesn't write things down, doesn't use e-mail, because he doesn't want to even raise the possibility of a situation in which his actions could someday be exposed, which would then constrain what he wants to do now, the fear of that down the road. ...

[What happens after 9/11?]

Certainly if you talk to the members of the legal team from that era, ... they describe a sense of extraordinary urgency and a desire to take the most aggressive action possible. There's a sense that the president's greatest responsibility is protecting the country from foreign attack, that they were not going to be part of having the president let the country down again, so that any tool that could potentially stop another 9/11 had to be brought to bear. ...

But how that played out eventually was that small groups of people at the very top, working in secret, were making a lot of the decisions to move fast and to move aggressively, and anyone who at any step along the way raised a question, ... they were excluded from meetings from then on. …

Things were happening very fast, and unexpected issues were coming before them that had to be solved, and whenever one of these issues would come before them, there would be a number of different policy options that could be taken for resolving it. Almost without exception, every time a problem arises, they select the answer that relies upon the greatest, most aggressive assertion of unfettered presidential power to solve that problem, and then they take actions based on that theory. ...

So they established a series of precedents that converted their theories into historical facts, and those precedents will now be an immutable part of American history that future presidents, [in] circumstances that we cannot imagine now and crises that will arise in the future, will be able to cite. ...

[What happened with the authorization to use military force in Afghanistan?]

Three days after the 9/11 attacks, ... Congress overwhelmingly authorizes the use of military force against the perpetrators of the 9/11 attacks. ... [The White House legal team] had been trying to get Congress to pass a very open-ended authorization to use military force against any potential threat against the United States, not just those that were connected to 9/11, and to use military force to deter terrorist attacks at home, on U.S. soil, as well as abroad. Congress had balked at that. ...

Congress was savvy enough at that moment to worry in some way about the broadness of the White House legal intentions?

I think [former House minority leader] Dick Gephardt [D-Mo.] and [former Senate majority leader] Tom Daschle [D-S.D.] have spoken about the private lobbying they were receiving from White House lawyers to change the language of the authorization, to make it a complete blank check, and their rejection of that offer.

But the White House legal team thinks that it's none of Congress' business really anyway how the president chooses to respond to 9/11 and prevent another one from happening. It then goes to work drawing up, at the Office of Legal Counsel, its internal framework for how it's going to see the limits of what it can and cannot do in the days to come. It's a memo that gets completed about 10 days later, signed by John Yoo. ...

It says Congress cannot regulate any of this. These decisions about how to respond to these attacks, how to prevent further attacks, these decisions are for the president alone to decide. And that document which has since become public, ... is the foundational advisory opinion from which all the other policy controversies in the months and years to come stemmed. ...

[One of the controversies that flows from this memo is the use of military commissions to try enemy combatants. How did military commissions come about?]

One of the problems the legal team had to encounter and is working on as the country prepared to go to war in Afghanistan was, what do we do if we capture Osama bin Laden alive, or some of his other top Al Qaeda leaders? ...

They were studying all the options. The war crimes ambassador, a guy at the State Department named Pierre Prosper, had convened an interagency task force of specialists from across the government who dealt with these kinds of legal, military, diplomatic issues, and they were going through very carefully what the laws said inside the United States, what international law did, what the pros and cons were of each of the different options that were on the table. ...

And then suddenly, abruptly, the process is wrested away from them. Tim Flanigan and David Addington and a lawyer named Brad Berenson, who had worked in the White House Counsel's office, had been the representative to this interagency task force, get together in the White House and essentially decide by fiat that the answer is military commissions. They draw up an order, and then Dick Cheney secretly takes it to the president and says, "You ought to sign this." No one else even knows about it yet. [Then-Secretary of State] Colin Powell doesn't know about it. The interagency task force doesn't know about it. [Then-National Security Adviser] Condoleezza Rice doesn't know about it. But Bush agrees to sign it, and he does, and then everyone else learns about it from the media that day.

The attraction of military commissions is that it relies upon the greatest assertion possible of presidential power. Under a normal trial, Congress decides what the offense is; the executive branch prosecutes the offense; the judicial system decides whether or not a person's guilty. Under a military commission, all of these powers are collapsed into the military, which leads up ultimately to the commander in chief. He alone gets to decide.

They also created it in such a way that they did not go to Congress and just asserted that the president could do this, create this alternative justice system on his own, by decree. ...

Does it become an early example of the way business is about to be conducted through 9/11?

It's an example of small groups ultimately controlled by the vice president's agenda, even inside the executive branch, moving to maneuver through the bureaucratic alleyways and achieve the ends they want against actors who disagree with them. ...

[What happens with military commissions?]

A federal judge in the fall of 2004 says these military commissions ... are illegal; you've got to go to Congress; these violate the Geneva Conventions. He shuts them down again. That starts a long appeals process. The administration wins in 2005 with help from future Supreme Court Justice John Roberts. ... Then in 2006 the Supreme Court strikes them down again, and the whole thing has to start over from scratch, with Congress this time involved. ...

Was it a defeat for executive power?

A defeat for the idea that the president could do these by decree without consulting Congress, but maybe not a long-term defeat, because, first of all, Congress, the Republican-led Congress in 2006, responds to this Supreme Court decision by immediately enacting legislation resurrecting military commissions.

But secondly, the Supreme Court did not decisively, overwhelmingly, strike these down. There were five votes on the Supreme Court to say that the president on his own did not have the power to circumvent the Geneva Conventions and set these up. ... A shift of one more vote by a Supreme Court justice who believes in the stronger conception of executive power, and the administration would have been right all along. ...

[What happened with the Military Commissions Act?]

The Military Commissions Act was the apotheosis of what I call the politics of presidential power. ... Most of the conversation that appeared in the media about it was, what are these military commissions going to look like; to what extent can you use evidence that was obtained through coercive interrogations; to what extent can you keep evidence secret from defendants? That's what the conversation was in Congress, and that's what the conversation was on the pages of newspapers about what was in that bill.

But a whole lot of other things were in that bill. In this bill, Congress essentially locked down and consolidated many of the powers that the Bush administration had seized for itself in the preceding six years. It gave statutory recognition to the president's power to hold a U.S. citizen without trial as an enemy combatant on the executive branch's finding that that citizen had provided material assistance to terrorists. It took away the right of detainees to challenge their detention in federal court, essentially rolling back a landmark decision involving Guantanamo from 2004 which extended some judicial review to the interrogation prison in Cuba. ...

Another thing the Military Commissions Act did was that it allowed the president ... to decide for himself, conclusively, as a matter of law, whether any interrogation technique that he wanted to authorize violated the Geneva Conventions. And it precluded courts from considering the Geneva Conventions in lawsuits. So in addition to stripping from courts the jurisdiction to hear detainee claims, it also knocked down the finding that the Geneva Conventions did indeed bind the hands of the commander in chief. ...

And the implications of that?

The implications of that is that future presidents can pick up on what the Bush-Cheney administration has done and what the Bush OLC has done, and do the same thing in future crises that we cannot yet imagine. The president's hand-picked legal team will get the final word on what the president can do and what he can't do without fear of repudiation in the courts.

So that package of legislation ... was a hugely important move, achievement, for this project to expand executive power, because just a couple of weeks later is the midterm election of 2006. Overwhelmingly across the country Republicans are turned out of office. ...

But this opposition-led Congress is going to have to have two-thirds plus one of each chamber to wipe off any of these laws from the books, because the president can veto them, and the possibility of more adverse Supreme Court decisions was dramatically undermined. ...

[How did the interrogation policy develop?]

... In early 2002 we start capturing Al Qaeda agents or suspected Al Qaeda terrorists that we want to question. The CIA is inaugurating then a two-part policy. Sometimes we're sending them to third-party governments to be interrogated; sometimes we're keeping them in our own secret prisons abroad and interrogating them ourselves -- either way fully outside the light of day, not letting the Red Cross see them, not letting anyone know that we have them even. ...

At each step of the way, once again, the Office of Legal Counsel and the Justice Department [are] being consulted: Is this legal? There seems to be various treaties and laws that might get in the way of this. The Convention Against Torture says that you cannot transfer a prisoner to some other government where they're likely to be tortured, so how can we send these guys to Egypt or Jordan or Syria? There's an anti-torture law on the books. ... There's the Geneva Conventions that seems to govern humane treatment of detainees and talks about wartime prisoners having a right to an individual hearing to make sure that they're who we think they are. What about all these restrictions?

Each step of the way, the Office of Legal Counsel says, "The commander in chief's power trumps these laws, trumps these statutes, trumps these treaties; therefore, do what you want to do."

The Office of Legal Counsel is really John Yoo still?

It's John Yoo. By December of '01, a former UNLV professor named Jay Bybee, who was the final compromise candidate, finally shows up and takes nominal control of the office. But he's not a specialist in national security law himself, and John Yoo at this point has set into work a whole framework of memos from which these other things will follow. ...

[How does warrantless wiretapping fit into this?]

According to Bush, the idea was Gen. Michael Hayden's, who was then the head of the National Security Agency. ... As the head of the National Security Agency, which is a military spy agency, Hayden oversaw a high-tech, highly funded electronic surveillance agency. ... It's an enormously powerful apparatus, but it was not being used on U.S. soil, because in 1978 Congress passed and President Carter signed ... a law that said that the government cannot under any circumstances monitor Americans' conversations, a conversation where one end of it is on U.S. soil -- even for national security purposes -- without a warrant from a secret national security court made up of life-tenured federal judges who would make sure that there was probably cause to believe that this person was an agent of a foreign power, a spy or a terrorist before their privacy was invaded.

This is the FISA [Foreign Intelligence Surveillance Act] court?

This is the FISA court. ... So under a conventional understanding of presidential power, Congress, having regulated how he goes about surveilling and protection of national security on U.S. soil, has set the rules, and he has to obey those rules.

Under these new theories, he doesn't have to obey these rules, because his commander-in-chief power trumps Congress' attempt to regulate how the executive branch goes about doing something. ...

I've talked to John Yoo, and he has himself talked about this, once it came to light: The theory is, this is battlefield intelligence. This is an enemy that's trying to attack us, and they've attacked us on U.S. soil; therefore U.S. soil is the battlefield. Therefore battlefield rules apply even on U.S. soil now. And one of the battlefield rules is that the president, as commander in chief, needs to be able to collect battlefield intelligence to prevent attacks as he sees fit, beyond Congress' ability to regulate. ...

[What happens in 2003?]

In 2003 a lot of the original Bush-Cheney legal team leaves. Jay Bybee is confirmed as a judge and goes off. John Yoo wants to be promoted as the assistant attorney general for the Office of Legal Counsel, and the White House wants him to be in that job, but [then-Attorney General] John Ashcroft blocks him. ...

So Yoo, denied this promotion, leaves as well. He goes back to his tenured law professorship at Berkeley. Tim Flanigan, who was the controlling deputy White House counsel for the first couple of years, he's got 14 children; he needs more money; he goes off and becomes the general counsel at Tyco. A number of other key-position players from the first generation of the Bush-Cheney legal team are moving on in 2003. Addington stays, most importantly.

When these people are replaced, what happened was that, inadvertently, the Bush administration allowed several people who are conservative Republicans, but more mainstream thinkers about executive power, into their ranks, into key positions of responsibility.

How does that happen? Aren't there ways of vetting?

Well, some of it is guesswork, right? You can never know what someone is going to do. In the case of Jack Goldsmith, who's the most important of these new faces, he probably looked a lot like John Yoo to them, because he's a University of Chicago law professor; he's a conservative; he had co-written papers with John Yoo, saying that international human rights treaties don't apply to the United States unless Congress separately passes a law embedding those restrictions in U.S. law, undermining the power of treatises.

After the military commission's order had come down in November of '01 ... one of the few brand-name law professors to say, "Hey, this is a great idea," was Jack Goldsmith. Then Jack Goldsmith had taken a leave from Chicago and gone to work for Jim Haynes in the Pentagon general counsel's office.

Just looking at him, he looks like he's probably going to be a team player. But it was a miscalculation, it turns out, because even though Jack Goldsmith is very concerned about international treaties and their ability to restrict state sovereignty, he turns out to be much more mainstream when it comes to the ability of Congress to pass a law that has to be obeyed even by the president, domestic law.

Jack Goldsmith undertakes a review of all these highly classified secret memos that have been written since 9/11, that discuss a president's commander-in-chief power, and he starts to say, "This is wrong, and this is wrong, and this is wrong," and starts to replace them. He notifies Haynes at the Pentagon that it can no longer rely on the interrogation memo that Yoo had drafted for them in December of 2003. And he'll later, after Abu Ghraib, replace the CIA's interrogation memo which allows the president to bypass torture laws. …

What does it mean when he calls Haynes and says he can no longer rely on the OLC opinion?

If you are relying on an Office of Legal Counsel opinion and the opinion says you can do something, you cannot be prosecuted for criminal violations that arise from doing that thing, because you relied, in good faith, on what the Office of Legal Counsel told you the law was. When the Office of Legal Counsel withdraws its support for a memo, that means that you are now exposed to prosecution for violating laws again. It's an extraordinary gesture to yank one of these things out from the national security apparatus in the midst of a war, something that would not be done lightly. ...

Does your reporting indicate how Addington reacted?

He's angry; he's furious. Then what Goldsmith did next made him even more outraged, which is to say that Goldsmith looked at the memo that provided legal cover for the warrantless surveillance program, ... and he said: "I don't think this is legal either. This violates the rule of law."

He went to Jim Comey, who's the new deputy attorney general -- another one of these new faces that came in and replaced a more hard-line figure -- and Jim Comey agreed, and they went to John Ashcroft. And according to Jim Comey, Ashcroft himself agreed that this violated the rule of law. ...

It's huge.

Absolutely huge. According to Comey, Ashcroft has agreed that he's not going to recertify this program. The White House knows this is happening, because they've been in constant communication with the White House about the review of process that's going on.

But hours after Ashcroft has agreed, "All right, we're going to do it; we're going to fight on this," he is suddenly hospitalized with acute pancreatitis and has to have his gallbladder removed and is going to be under sedation, and transfers his formal legal powers as attorney general to Jim Comey, his deputy, from then on. ... Comey refuses to sign the paper that says this program is legal and can be reauthorized.

Then that night, as he tells it, he gets a call from Ashcroft's chief of staff, who just spoke to Ashcroft's wife, who, even though she had given orders that no one was to disturb her husband while he convalesced from this very serious operation, had just received a call from the White House -- Comey believed from the president himself -- saying that he was sending Alberto Gonzales, his White House counsel, and Andy Card, his chief of staff, to the hospital room. They had something they wanted to talk to him about.

So Comey, who says that he thinks they were attempting to take advantage of the attorney general at a moment when his faculties were weak, races to the hospital to get there first. Jack Goldsmith comes over to join him, as does Patrick Philbin, another Office of Legal Counsel attorney who had become Comey's adviser. ...

Ashcroft seems to be out of it. Then Gonzales and Card come in, try to get Ashcroft to sign this document, and Ashcroft rouses himself, lifts his head off the pillow, as Comey tells it, and rebukes them in very clear terms that describe in great detail why it is that this thing is illegal and ought not to be recertified, and then falls back, and then points out, as an afterthought: "By the way, I don't know why you wanted me to sign this anyway. I'm not the attorney general right now. Those powers have been transferred to Jim Comey." Then they turn and leave. ...

And its implications are, to you, what?

The implications are that the White House was willing to take extraordinary measures to preserve this program and simultaneously to preserve its theory justifying this program, that this program was lawful, that the president can go around laws that impose checks and balances on his power. ...

These are conservatives who believe in fighting terrorism, who are part of the president's team, who nevertheless believe that things have gone too far. ... All those players who rebelled in the spring of 2004 have very short tenures from then on. Jack Goldsmith leaves that summer and goes to become a teacher at Harvard Law School. The solicitor general, Ted Olson, resigns shortly thereafter -- and he had also participated in those, as you'll recall. Comey himself stays on until '05, and then he leaves as well. And John Ashcroft, of course, himself resigns right after the presidential election. … These people who had tried to put the brakes on executive power disappear from the scene. ...

So that's [the spring of] 2004 when that happens.

That's followed by Abu Ghraib coming to light and with the leaking of the memos involving a president's claim to power to bypass torture laws, which Jack Goldsmith and Comey then publicly say that they're going to erase or withdraw. ...

To cap it all, in June the Supreme Court hands down a pair of decisions which call into question a chunk of the administration's whole legal strategy. In the Hamdi [v. Rumsfeld] case, the Court says that a U.S. citizen captured abroad as an enemy combatant has to be given some degree of due process by a neutral decision maker. ... It doesn't have to be a full trial, but they have to get something so that it's not purely arbitrary presidential discretion and then a U.S. citizen gets locked up forever.

In a parallel opinion, the Court rules that courts have jurisdiction to hear lawsuits arising on Guantanamo, rejecting the administration's plea that it stay out of the war on terrorism and leave Guantanamo to the commander in chief's unfettered discretion alone. These two decisions represent a judicial rebuke to some of the more aggressive contours of the presidential power project. Justice [Sandra Day] O'Connor famously writes, in a phrase that goes into the lead of every newspaper story the next morning, that "A state of war is not a blank check for the president when it comes to the rights of our citizens." ...

[What was the debate about torture in the fall of 2005?]

The torture debate that would define the fight over presidential power in the year 2005 begins right away, because … President Bush appoints White House Counsel Alberto Gonzales, his personal lawyer who had kept his foot off the brakes on executive power issues over the first term, to take over as the nation's top law enforcement officer, to become the new attorney general. And the context of Alberto Gonzales' confirmation hearing is going to be torture. ...

On the eve of the Gonzales hearing, the administration finishes the replacement Office of Legal Counsel memo on interrogation and instantly makes it public. The memo doesn't go nearly as far as what the old one that John Yoo had written does, as far as it does not offer defenses for people who are prosecuted for torture about how they can escape that. It does not make the claim that the president can use his commander-in-chief authority to bypass a law that says how detainees must be treated. It doesn't say that that claim was wrong; it just doesn't address it anymore. It's a much more modest-sounding memo, although it also has a critical footnote that says, "By the way, everything we've been doing up until now we still think is legal." So that footnote calls into question whether this really was a change or was just window dressing. ...

Gonzales goes before the Senate Judiciary Committee, and he says that "We don't torture. We obey the Geneva Conventions wherever they apply." He doesn't say how they're defining torture, whether they're still defining torture so narrowly that a whole bunch of things that look like torture to most people don't count as "torture." He doesn't say where he thinks the Geneva Conventions apply.

Crucially, in his written answers to some follow-up questions, he lets slip that the administration legal team had concluded that the Convention Against Torture, an anti-torture treaty that Ronald Reagan signed and the Senate ratified in 1994, does not bind the hands of the president when the president is operating overseas. ...

This revelation sets off the long fight over the torture ban of 2005, because Sen. John McCain, the Arizona Republican who had been tortured himself as a prisoner of war in Vietnam, is outraged by this idea and wants to pass a new law closing all loopholes. ... McCain introduces this legislation, and allies of the White House immediately start fighting it. ... Vice President Cheney himself is going to Congress, repeatedly saying: "Don't pass this; don't pass this. The president needs flexibility in the war on terrorism. One should not tie the president's hands." ...

Why is he doing this?

Because, well, he wants to continue the interrogation regime that the Bush administration put forward after 9/11. I'm sure he sincerely believes that it was an important tool for protecting the country, and he also doesn't want to see this theory rebuked that the president has unfettered power, not just for whatever we're doing today, but for whatever some future president wants to do tomorrow. ...

But he loses. ... The minute both the Senate and the House have an opportunity to vote on it, overwhelmingly bipartisan majorities, veto-proof majorities, pass the bill. ...

So the president invites Sen. McCain and another Republican senator, John Warner, the chairman of the Senate Armed Services Committee, to the White House, brings them into the Oval Office, invites the media to come in with their cameras, shakes McCain's hand, says: "This is a good idea. Thank you, Sen. McCain." He embraces it as if it had been his idea all along instead of something that he and his administration have been fighting against. ...

That's the way things looked until Dec. 30, 2005, which was the day that President Bush signed the bill containing the McCain torture ban. At this point, it's a Friday before New Year's Eve weekend. Congress is out of town; the president is out of town; most of the press corps is on vacation; no one's really paying attention to what's happening. Around 8:00 p.m. on the day he signs this bill, the White House quietly issues a document which gets filed into the Federal Register. It's called a signing statement. And in this document it says, "By the way, although I've signed this bill into law, this provision, the McCain torture ban that purports to constrain what I can do with detainees, the executive branch shall interpret that in line with my constitutional powers as the head of the unitary executive and commander in chief."

And what that means in plain English was, "My instructions to the executive branch is, this provision is unconstitutional because it infringes on my core, exclusive powers as president. So, regardless of the fact that I've signed it into law, it need not be obeyed as written." ...

How does McCain find out about it?

I called McCain's office when I was writing about this. ... As I remember, his staff didn't know what I was talking about. No one was thinking about signing statements until 2006. No one knew what they were outside of a few political science professors who had studied them, but had not received a lot of attention. ...

Were you surprised?

Well, it's an astonishing thing. ... A signing statement is a technical, legal document that a president enters into the Federal Register on the day he signs a bill into law. It consists of instructions to the executive branch about how they are to implement this law now that it's on the books. ...

When you have a president who adopts a very aggressive, outside-of-mainstream consensus of what his constitutional powers are ... beyond which Congress may not regulate, it becomes a device for ordering the government to adopt the president's view rather than the view that is on the statute book.

It's not like Bush was the first to do this. There's been examples of signing statements challenging laws going way back in our history. But it was rare, very rare. They started to be issued more frequently in the Reagan administration when the [Edwin] Meese Justice Department was looking for ways to expand presidential power. Their idea was not to nullify laws the president didn't like so much as they were concerned about how judges were looking at congressional history and things that were inserted into the debate when interpreting disputed statutes. ... They'd say, "Well, maybe the president's view should be part of that conversation, too." ...

Courts did not end up paying that much attention to signing statements even after Reagan started issuing them much more frequently. But one by one by one, each of the successive presidencies, including Bill Clinton, who's a Democrat, kept issuing these signing statements, kept challenging new laws. You had this escalation.

And the numbers now are huge?

According to a political science professor at the Miami University of Ohio named Chris Kelly, who's done the hard work of counting previous presidencies' challenges, about 600 laws were challenged by all presidents through the end of Bill Clinton ... using signing statements. By law, that means bill sections. President Bush is now over 1,100. He's challenged more laws than all previous presidents combined. This escalation has just gone off the charts.

And who is the signing-statement maven at the Bush administration?

Former members of the administration's legal team have told me that the primary architect and greatest advocate of this increased use of signing statements has been David Addington in the office of Vice President Cheney.

Early on in the administration, Cheney arranged it so that all legislation that was going to be headed toward the president's desk to be signed would be routed through the vice president's office, allowing David Addington to take part in the bill-vetting process. Normally signing statements would be crafted by the Office of Legal Counsel, the White House Counsel's office, the Office of Management and Budget. The vice president's office was added to that mix, and this became another vehicle for the expression of these very strong views of executive power, this very aggressive conception of what it is that is beyond Congress' ability to regulate when it comes to the executive branch.

He loves to read them?

I'm told he dives into them like a four-course meal. ... I'm told most lawyers in the executive branch view this bill-vetting process as a tedious but necessary part of the job. But David Addington regarded it with relish, because it was a way to advance his views of executive power, and it was a way to use the alleyways of bureaucratic combat to achieve what he wanted at once. So he would dive into these thousand-page bills, reading them line by line, looking for anything that conflicted with his own conception of presidential power, have those added to the signing statement as part of the new law. ...

[What do you see when you look at all of the signing statements?]

... I went back and read all these signing statements ... that had been put into the Federal Register since the beginning of the Bush administration. What it turned out to be was a road map, essentially, to the implication of the unfettered presidency that Dick Cheney's legal team was trying to create, because when you march down the hundreds of different laws that Bush had declared himself and the executive branch free to disobey, you saw that it's not just a torture ban here or a question of surveillance there, but in hundreds of matters, now over a thousand, large and small, anywhere where the Congress had tried to say the executive branch had to do something, couldn't do something else, had to go about doing something in a certain way -- ranging from military rules and regulations, whistleblower protections, protections from political interference in federally funded research, affirmative action hiring programs, across a wide swath of what the government does -- the implication was that Congress could not regulate the government.

It was none of Congress' business what the government did, how it went about it, what the limits of its conduct were. All these matters were solely for the president to decide. So Congress could make laws for the rest of us, but not for the government. The government existed to do what the president wanted it to do at any given moment.

And the precedent for the future?

Well, the other interesting thing was that, while this explosive growth was happening, Bush was also not vetoing any bills. ... When the American Bar Association in 2006 studied what was happening after the spotlight started to come on to this, what they concluded was that signing statements were morphing into a replacement for the veto, a much more powerful replacement for the veto.

Why is it more powerful? One, because under a regular veto, the president has to take an entire bill or get rid of an entire bill. ... But under a signing statement, the president can selectively take out chunks he doesn't like. ...

The other way in which signing statements are more powerful than a regular veto, according to the American Bar Association, is of course that Congress has an opportunity to override a veto. ... It's one of the core checks and balances on the president's veto power. But Congress has no opportunity to overrule a signing statement. ...

This is the power that the founders never intended the president to have. It's sort of accreted and grown slowly. It's picking up steam with the Reagan administration, and then, finally, in the Bush-Cheney administration, the throttles were just thrown open and everyone started paying attention. And the question is, can it be put back in the box again? ...

[Is the administration's penchant for secrecy connected to its desire to increase executive power?]

Supreme Court Justice [Louis] Brandeis famously said in the context of public corruption that sunlight is the best disinfectant. The secrecy ... [is] intimately connected with power because if you can keep outsiders from knowing how you are exercising power, what you're doing with the duties and responsibilities and authorities that your office gives you, then you cannot be held accountable. ...

This fortress of secrecy that the administration has been building around the executive branch from its first days in office, from the fight over Cheney's energy task force papers long before 9/11, created a whole new justification for broader secrecy. [It] is intimately connected with its efforts to increase the unilateral, unchecked authority of those who run the executive branch.

And that's how the battle for executive power is manifesting itself [on Capitol Hill]: the secrecy that surrounds the National Security Agency and the warrantless wiretapping at exactly the same time that they're wrestling with what actually happened in the firings of the United States attorneys and the apparent attempt to influence how they do their jobs?

... All of these controversies are united by the theme of, do the president and his men have to obey the rule of law? ... The Addington-Cheney position is that there is a higher law than any statute that Congress has passed, and that law is the Constitution. As they read the Constitution, it gives enormous inherent -- which means unwritten -- and exclusive powers to the president and his men to do things like protect national security or run the executive branch, which is to say the entire government, as they see fit so that it is unconstitutional for Congress to pass laws that impose checks and balances and controls on how people who have power exercise that power. ...

[Has Congress fought back?]

So far Congress has not been able to do much about it. ... To the extent that any of the administration's broadest claims of executive power have been rolled back, it seems to have been because the administration itself has made a few tactical retreats, such as putting its warrantless wiretapping program under the [FISA] court's oversight in January of 2007 -- not saying, "We were wrong," not saying that this was ever illegal and specifically reserving the right to bypass that kind of warrant law again in the future if this or any future president wants to, but just saying it's not necessary right now. ...

Are they better-part-of-valor decisions by somebody in the White House? ... They've won the vast majority of what they wanted to win. In fact, they may be beyond what they actually realistically might have expected at the beginning of the administration?

This is something where a little sense of history can provide some illumination. Over the last 50 years, as the Cold War created the original imperial presidency, which has sort of grown in fits and starts, there have been periods of waxing and periods of waning. What happens is you get executive branch officials who believe in maximal presidential power who make increasingly aggressive claims and take increasingly aggressive actions. Then inevitably that leads to some kind of abuse that comes to light and creates a backlash. ... Then a few years pass, and then this sort of starts up again. But it never rolls back to where it had been at the beginning. It ratchets forward, very quickly picking up from where it was left off before. ...

This administration is going to be gone, starting in 2009. But the historical record of what it's done across its myriad different examples in which it's taken actions based on its very aggressive, previously marginal theories about a president's ability to circumvent checks and balances, to act in defiance of laws and treaties and so forth -- by taking actions based on these theories, it's converted the theory into historical facts which future presidents, Democrats and Republicans alike, will be able to cite when they also want to take actions that seem to be prohibited by laws and treaties in order to impose their own agenda on the country and world, whatever that agenda may be.

What this administration has achieved, regardless of these short-term fights that we're going to see in this last year with the Congress, is very likely a highly successful, permanent, long-term expansion of the institutional powers of the presidency and a retilting of the balance of power toward the White House, in Washington, for the future. ...

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posted october 16, 2007

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