• Nov. 1987 - excerpts from the minority report on Iran-contra
• Nov. 1987 - Newshour comments on Iran-contra
• 1989 essay - "Congressional Overreaching in Foreign Policy"
• Dec. 1990 - an exchange with Sen. Edward Kennedy
• Dec. 2005 - comments on Bush administration's domestic wiretapping

November 1987
Congressman Richard Cheney was the ranking Republican on the congressional committee investigating the Iran-contra affair, in which Reagan administration officials secretly diverted the proceeds of arms sales to Iran to fund the contras in Nicaragua, who were fighting to oust the left-wing government. Below are excerpts from the section of the committee's minority report on presidential power, which Cheney and his staff authored.

"Judgments about the Iran-Contra Affair ultimately must rest upon one's views about the proper roles of Congress and the President in foreign policy. ... [T]hroughout the Nation's history, Congress has accepted substantial exercises of Presidential power -- in the conduct of diplomacy, the use of force and covert action -- which had no basis in statute and only a general basis in the Constitution itself. ... [M]uch of what President Reagan did in his actions toward Nicaragua and Iran were constitutionally protected exercises of inherent Presidential powers. ... [T]he power of the purse ... is not and was never intended to be a license for Congress to usurp Presidential powers and functions.

...

"The boundless view of Congressional power began to take hold in the 1970's, in the wake of the Vietnam War. The 1972 Senate Foreign Relations Committee's report recommending the War Powers Act [which requires presidents to seek Congressional authorization if they deploy U.S. troops for longer than 60 days], and the 1974 report of the Select Committee on Intelligence Activities (chaired by Senator Frank Church and known as the Church Committee), both tried to support an all but unlimited Congressional power by invoking the "Necessary and Proper" clause. That clause says Congress may 'make all Laws which shall be necessary and proper for carrying into Execution the foregoing [legislative] Powers, and all Powers vested by this Constitution in the Government of the United States, or in any Department of Officer thereof.' The argument of these two prominent committees was that by granting Congress the power to make rules for the other departments, the Constitution meant to enshrine legislative supremacy except for those few activities explicitly reserved for the other branches.

"One must ignore 200 years of constitutional history to suggest that Congress has a vast reservoir of implied power whose only limits are the powers explicitly reserved to the other branches. ... The Necessary and Proper clause does not permit Congress to pass a law usurping Presidential power. A law negating Predidential powers cannot be treated as if it were 'necessary and proper for carrying' Presidential powers 'into Execution.' To suggest otherwise would smack of Orwellian Doublespeak.

...

"Justice Louis D. Brandeis ... wrote that the 'doctrine of separation of powers was adopted by the Convention of 1787, not to promote efficiency but to preclude the exercise of arbitrary power.' His statement has been accepted in some Congressional quarters as if it holds the force of conventional wisdom, but it misses half of the historical truth.

"The fallacy of Brandeis' statement becomes apparent when one considers the defects of the U.S. Government before the Constitution. The Constitutional Convention, among other things, was taking the executive from being under the legislature's thumb, not the legislature from being under the executive's. After suffering through the Articles of Confederation (and various state constitutions) that had overcompensated for monarchy, the 1787 delegates wanted to empower a government, not enfeeble it. Brandeis was partly right to point out that the Framers did not want power to be used arbitrarily, and that checks and balances were among the means used to guard against arbitrariness. But the principles underlying separation had to do with increasing the Government's power as much as with checking it.

...

"In its 1973 hearings on the War Powers Resolution, the House Foreign Affairs Subcommittee on National Security Policy and Scientific Developments published a list of 199 U.S. military hostilities which occurred abroad without a declaration of war. (The five declarations of war in the Nation's history were for the War of 1812, Mexican War, Spanish-American War, World War I, and World War II.) ... Of the 199 listed actions, only 81 could be said under any stretch of the imagination to have been initiated under prior legislative authority. ... That leaves an extremely conservative number of 118 other occasions without prior legislative authorization.

...

"During the country's first century, Presidents used literally hundreds of secret agents at their own discretion. ... The Presidents were simply using their inherent executive powers under Article II of the Constitution. For the Congresses that had accepted the overt presidential uses of military force summarized in the previous section, the use of Executive power for these kinds of covert activities raised no constitutional questions.

...

"In short, Presidents exercised a broad range of foreign policy powers for which they neither sought nor received Congressional sanction through statute. This history speaks volumes about the Constitution's allocation of powers between the branches. It leaves little, if any, doubt that the President was expected to have the primary role of conducting the foreign policy of the United States. Congressional actions to limit the President in this area therefore should be reviewed with a considerable degree of skepticism. If they interfere with core presidential foreign policy functions, they should be struck down. Moreover, the lesson of our constitutional history is that doubtful cases should be decided in favor of the President."

November 18, 1987
Discussing the Iran-contra report and proposed reforms on The NewsHour

"I think you have to preserve the prerogative of the President in extraordinary circumstances not to notify the Congress at all [of covert actions]. Or that is to exercise discretion to wait for days or weeks, or even months. I think that's within his constitutional prerogative. I am reluctant to see us impose any additional restraints or restrictions upon the President's ability to operate in this area. ... I don't think that you can pass a law that will guarantee no future president will make mistakes, and I think we have to guard against passing laws now that will restrict some future president in a future crisis that we can only guess at at present.

...

"I think we have to be careful not to create a government bureaucracy that's afraid to make mistakes or take risks. These were high risk decisions. They turned out to be bad decisions. I think they seemed a much closer call at the time, but I don't think we want to set up a situation in which a future president, faced with difficult circumstances, such as Ronald Reagan was faced with, thinks only of avoiding mistakes. You are going to make a certain number of mistakes, and we have to give him the flexibility or the power to do the job we expect him to do for us."

1989
Excerpts from an essay entitled "Congressional Overreaching in Foreign Policy," written by Cheney just before President George H.W. Bush appointed him secretary of defense

"Broadly speaking, the Congress was intended to be a collective, deliberative body. When working at its best, it would slow down decisions, improve their substantive content, subject them to compromise, and help build a consensus behind general rules before they were to be applied to the citizenry. The presidency, in contrast, was designed as a one-person office to ensure that it would be ready for action. Its major characteristics, in the language of Federalist No. 70, were to be 'decision, activity, secrecy and dispatch.'

"Each branch, in other words, was designed to have a specific set of characteristics that were meant to go together with specific kinds of jobs. Collective bodies are important for deliberation; one-person bodies are better for decision, energy, secrecy and dispatch. Deliberation and action are both important. Both will be brought to bear in all major policy areas. But the framers knew that the capacities to act and to deliberate are not equally important for all aspects of every job.

...

"At its best Congress is a deliberative body whose internal checks and balances favor delay as a method of stimulating compromise. At its worst it is a collection of 535 individual, separately elected politicians, each of whom seeks to claim credit and avoid blame. Whichever of these faces Congress may put on at any given moment, the legislative branch is ill equipped to handle many of the foreign policy tasks it has been taking upon itself lately.

"... The purpose of the U.S. Constitution is to protect and promote liberty. But protecting liberty has at least two facets. In domestic policy it has to do with ensuring that proposed changes in law receive a proper airing to guard against minority or majority factional tyranny. The emphasis, therefore, is on forcing compromise and coalition, with the constitutional preference -- albeit not always the practice -- weighted toward inaction until compromise has been achieved.

"The other aspect of liberty has to do with preservation and protection. According to the Declaration of Independence, governments are instituted not to create rights (which are "unalienable") but to secure them. Securing rights means, among other things, preserving the government's ability to respond internationally to countries that may want to harm us. In the face of danger, a tilt toward inaction would have just the opposite effect from a tilt toward inaction in domestic law. Instead of helping secure our liberty, it would help those foreign powers who want to endanger it. That is why the Constitution allowed a much greater scope for executive power in foreign than in domestic policy.

"Underlying all this was the framers' hardheaded view of the tough world of international politics. They saw a world, much like today's, in which at least some states would work actively against our interests. They saw a world in which we would have adversarial relationships as well as friendly ones, a world in which force might have to buttress reason, a world in which there would always be some nation eager to exploit an inability to respond. Their world was different from ours in some important ways. Technology has shrunk the globe, making the need for quick response and predictability of purpose that much more important. But the fundamentals of human nature -- from the motives of sovereign states to the proclivities of domestic politicians -- remain unchanged. We would do well, therefore, to reinvigorate the framers' understanding of the separation of powers as we head toward the twenty-first century."

December 1990
An exchange between Secretary of Defense Cheney and Sen. Edward M. Kennedy (D-MA) during the Senate Armed Services Committee hearing on the Persian Gulf crisis

"SEN. KENNEDY: Secretary Cheney, you're a former member of the House of Representatives, and you're fully aware of the -- what the Constitution says with regards to the warmaking power. I think all of us have been impressed by the efforts of the President and the Secretary of State to try and win international approval and support for the United States declaration. It's one that I support.

"But the President still refuses to ask the one body that the Constitution requires him to ask, which is the United States Congress, about the declaration of war -- not reacting to provocation to American troops or to American citizens, but we're talking now about a defensive military action.

"Yesterday, the Secretary [of State James] Baker suggested more ominously that if President Bush does go to war, he expects that Congress will rally around the President after he has committed the troops to combat. And one would gather that the President effectively is thumbing his nose at Congress. He's really daring us to act if we disagree with him. He's telling us that the decision whether to go to war is his, and effectively his alone, to make. And he apparently is not going to let Congress interfere with him.

Now, barring an act of provocation, do you agree that the President must obtain the approval of Congress in advance before the United States attacks Iraq?

"SEC. CHENEY: Senator, I do not believe the President requires any additional authorization from the Congress before committing US forces to achieve our objectives in the Gulf.

"The President has made it very clear that he wants to consult extensively with the Congress on this subject. We spent almost two hours in meetings on Friday afternoon with Chairman [Sam] Nunn and Senator [John] Warner, and other members of the House and Senate, on this subject. We've spent -- I can't count the amount of time we've spent consulting on the issue.

"But there have been some 200 times, more than 200 times, in our history, when Presidents have committed US forces, and on only five of those occasions was there a prior declaration of war. And so I am not one who would argue, in this instance, that the President's hands are tied or that he is unable, given his constitutional responsibilities as Commander-in-Chief, to carry out his responsibilities.

"SEN. KENNEDY: Well, Mr. Secretary, we're not talking about Libya. We're not talking about Grenada, not talking about Panama. We're talking about 440,000 American troops who are over there. We're talking about a major kind of American military involvement if it becomes necessary to do so. And do I understand from your response that you are prepared to tell the American people now that barring provocation by Saddam Hussein, that you believe he, and he alone, can bring this country to war?

"SEC. CHENEY: Senator, I would argue, as has every President to my knowledge, certainly in modern times, that the President, as Commander-in-Chief, under Title II (sic), Section 2, of the US Constitution, has the authority to commit US forces, and that, in this particular instance, given the Iraqi invasion of Kuwait, the request for US assistance to defend Saudi Arabia, the request from the legitimate government of Kuwait to help defend Kuwait, given the authorization -- the vote -- not authorization, but certainly the vote, by the United Nations in support of that effort, that the President is within his authority at this point to carry out his responsibilities.

"He's made it clear that he would like very much to have the enthusiastic support of the Congress of the United States. The Congress, in its adjournment resolution, specifically provided that the leaders could call them back into special session to address this issue. But, I cannot, as Secretary of Defense, make a statement or a commitment that would limit the President's constitutional perogatives as Commander-in-Chief."

December 2005
Selections from Vice President Cheney's statements to various media defending the National Security Agency's domestic wiretapping program and other national security measures taken by the Bush administration.

"The actions we've taken are totally appropriate and consistent with the constitutional authority of the President.

"Watergate and a lot of the things around Watergate and Vietnam during the 1970s, served, I think, to erode the authority I think the president needs to be effective, especially in the national security area. ... Especially in the day and age we live in ... the president of the United States needs to have his constitutional powers unimpaired, if you will, in terms of the conduct of national security policy.

"The president and I believe very deeply that there is a hell of a threat. ... If there's a backlash pending, I think the backlash is going to be against those who are suggesting somehow we shouldn't take these steps in order to defend the country.

"You know ... it's not an accident that we haven't been hit in four years.

"After 9/11, the 9/11 Commission that criticized everybody in the government because 'You couldn't connect the dots.' Now we're connecting the dots and they're still complaining. So seems to me you can't have it both ways. The fact of the matter is this [the domestic wiretap program] is a good solid program. It has saved thousands of lives. We're doing exactly the right thing. We're doing it in accordance with the Constitution and the laws of the United States. And it ought to be supported. This is not about violating civil liberties because we're not. This is about defending the country against further terrorist attacks. That's exactly what we're sworn to do.

"If you want reference to an obscure text, go look at the minority views that were filed with the Iran-Contra Committee. Nobody has ever read them, but ... I think [they] are very good in laying out a robust view of the president's prerogatives with respect to the conduct of especially foreign policy and national security matters."