Today, I hope patriots of every ideological persuasion will read Jane Mayer’s disturbing investigation of the Bush administration’s views of presidential power under the Constitution. I knew Vice President Cheney and his subordinates supported a sweeping view of presidential power, but not to this extent:
The Iran-Contra scandal substantially weakened Reagan’s popularity and, eventually, seven people were convicted of seventeen felonies. Cheney, who was then a Republican congressman from Wyoming, worried that the scandal would further undercut Presidential authority. In late 1986, he became the ranking Republican on a House select committee that was investigating the scandal, and he commissioned a report on Reagan’s support of the Contras. [Current Cheney chief of staff David S.] Addington, who had become an expert in intelligence law, contributed legal research. The scholarly-sounding but politically outlandish Minority Report, released in 1987, argued that Congress—not the President—had overstepped its authority, by encroaching on the President’s foreign-policy powers. The President, the report said, had been driven by “a legitimate frustration with abuses of power and irresolution by the legislative branch.” The Minority Report sanctioned the President’s actions to a surprising degree, considering the number of criminal charges that resulted from the scandal. The report also defended the legality of ignoring congressional intelligence oversight, arguing that “the President has the Constitutional and statutory authority to withhold notifying Congress of covert actions under rare conditions.” And it condemned “legislative hostage taking,” noting that “Congress must realize . . . that the power of the purse does not make it supreme” in matters of war.
In short, Dick Cheney believes Congress overstepped its Constitutional authority in the Iran-Contra affair. Congress! (For more quotes from the minority report, see this PBS compendium.) Let’s review the executive summary of Independent Counsel Lawrence Welsh’s report:
Independent Counsel concluded that:
— the sales of arms to Iran contravened United States Government policy and may have violated
the Arms Export Control Act (1)
(1) Independent Counsel is aware that the Reagan Administration Justice Department took the
position, after the November 1986 revelations, that the 1985 shipments of United States weapons
to Iran did not violate the law. This post hoc position does not correspond with the
contemporaneous advice given the President. As detailed within this report, Secretary of
Defense Caspar W. Weinberger (a lawyer with an extensive record in private practice and the
former general counsel of the Bechtel Corporation) advised President Reagan in 1985 that the
shipments were illegal. Moreover, Weinberger’s opinion was shared by attorneys within the
Department of Defense and the White House counsel’s office once they became aware of the
1985 shipments. Finally, when Attorney General Meese conducted his initial inquiry into the
Iran arms sales, he expressed concern that the shipments may have been illegal.
— the provision and coordination of support to the contras violated the Boland Amendment ban
on aid to military activities in Nicaragua;
— the policies behind both the Iran and contra operations were fully reviewed and developed at
the highest levels of the Reagan Administration;
— although there was little evidence of National Security Council level knowledge of most of the
actual contra-support operations, there was no evidence that any NSC member dissented from the
underlying policy — keeping the contras alive despite congressional limitations on contra support;
— the Iran operations were carried out with the knowledge of, among others, President Ronald
Reagan, Vice President George Bush, Secretary of State George P. Shultz, Secretary of Defense
Caspar W. Weinberger, Director of Central Intelligence William J. Casey, and national security
advisers Robert C. McFarlane and John M. Poindexter; of these officials, only Weinberger and
Shultz dissented from the policy decision, and Weinberger eventually acquiesced by ordering the
Department of Defense to provide the necessary arms; and
— large volumes of highly relevant, contemporaneously created documents were systematically
and willfully withheld from investigators by several Reagan Administration officials.
— following the revelation of these operations in October and November 1986, Reagan
Administration officials deliberately deceived the Congress and the public about the level and
extent of official knowledge of and support for these operations.
In addition, Independent Counsel concluded that the off-the-books nature of the Iran and contra
operations gave line-level personnel the opportunity to commit money crimes.
Again, Dick Cheney looked at these violations of the law and concluded that Congress overstepped its bounds. And this is not a view he’s abandoned. To the contrary, as Mayer points out, “Cheney proudly cited this document” in December, saying, “If you want reference to an obscure text, go look at the minority views that were filed in the Iran-Contra committee, the Iran-Contra report, in about 1987… Part of the argument was whether the President had the authority to do what was done in the Reagan years.”
And Cheney and Addington (known as “Cheney’s Cheney”) have apparently convinced President Bush of the wisdom of their views. Here’s how the adminstration’s legal decision-making process after 9/11 was described by Republican insiders:
Participants in meetings in the White House counsel’s office, in the days immediately after September 11th, have described [Alberto] Gonzales sitting in a wingback chair, asking questions, while Addington sat directly across from him and held forth. “Gonzales would call the meetings,” the former high-ranking lawyer recalled. “But Addington was always the force in the room.” Bruce Fein said that the Bush legal team was strikingly unsophisticated. “There is no one of legal stature, certainly no one like Bork, or Scalia, or Elliot Richardson, or Archibald Cox,” he said. “It’s frightening. No one knows the Constitution—certainly not Cheney.”
If you’re not scared yet, consider Fein’s views. As Mayer writes, he is “a Republican legal activist … who voted for Bush in both Presidential elections, and who served as associate deputy attorney general in the Reagan Justice Department.” Here are some excerpts from the article based on Fein’s statements:
Bruce Fein… said that Addington and other Presidential legal advisers had “Addington and other Presidential legal advisers had ‘staked out powers that are a universe beyond any other Administration. This President has made claims that are really quite alarming. He’s said that there are no restraints on his ability, as he sees it, to collect intelligence, to open mail, to commit torture, and to use electronic surveillance. If you used the President’s reasoning, you could shut down Congress for leaking too much. His war powers allow him to declare anyone an illegal combatant. All the world’s a battlefield—according to this view, he could kill someone in Lafayette Park if he wants! It’s got the sense of Louis XIV: ‘I am the State.’”
…The Republican legal activist Bruce Fein said, “What makes this so sinister is that the members of this Administration have unchecked power. They don’t care if the wiretapping is legal or not.” But the former high-ranking Administration lawyer suggested that the situation is more serious than an intentional infraction of the law. “It’s not that they think they’re skirting the law,” he said. “They think that this is the law.”
Fein suggested that the only way Congress will be able to reassert its power is by cutting off funds to the executive branch for programs that it thinks are illegal. But this approach has been tried, and here, too, Addington has had the last word. John Murtha, the ranking Democrat on the House Appropriations Subcommittee on Defense, put a provision in the Pentagon’s appropriations bills for 2005 and 2006 forbidding the use of federal funds for any intelligence-gathering that violates the Fourth Amendment, which protects the privacy of American citizens. The White House, however, took exception to Congress’s effort to cut off funds. When President Bush signed the appropriations bills into law, he appended “signing statements” asserting that the Commander-in-Chief had the right to collect intelligence in any way he deemed necessary…
Bruce Fein argues that Addington’s signing statements are “unconstitutional as a strategy,” because the Founding Fathers wanted Presidents to veto legislation openly if they thought the bills were unconstitutional. Bush has not vetoed a single bill since taking office. “It’s part of the balancing process,” Fein said. “It’s about accountability. If you veto something, everyone knows where you stand. But this President wants to do it sotto voce. He wants to give the image that he’s accommodating on torture, and then reserves the right to torture anyway.”
David Addington is a satisfactory lawyer, Fein said, but a less than satisfactory student of American history, which, for a public servant of his influence, matters more. “If you read the Federalist Papers, you can see how rich in history they are,” he said. “The Founders really understood the history of what people did with power, going back to Greek and Roman and Biblical times. Our political heritage is to be skeptical of executive power, because, in particular, there was skepticism of King George III. But Cheney and Addington are not students of history. If they were, they’d know that the Founding Fathers would be shocked by what they’ve done.”
And as The New Yorker’s David Remnick writes, this adminstration is simultaneously engaged in a systematic assault on the press:
In recent months, the critique has grown more ominous. Cheney and other officials have attacked Dana Priest’s article in the Washington Post detailing the rendition of prisoners to secret jails in Europe and James Risen and Eric Lichtblau’s articles in the Times describing the government’s attempt to fight terrorism with warrantless domestic wiretaps. Aping the spirit, if not the élan, of his predecessor, Cheney called the articles disloyal, damaging to national security, and undeserving of the Pulitzer Prizes they won.
Late last month, the Times published a long report by Lichtblau and Risen on the C.I.A.’s and the Treasury Department’s monitoring of an international banking database in Brussels to track the movement of funds by Al Qaeda. The Wall Street Journal and the Los Angeles Times very quickly followed with their own articles on the government’s monitoring of Al Qaeda’s financial transactions, which has been an open secret ever since it was trumpeted by––well, by George W. Bush, in mid-September, 2001. Infuriated that the editors of the Times had not acceded to blandishments to kill the story, Bush and Cheney, in a coördinated offensive, described the Times report as a disgrace and, outrageously, as a boon to further terror attacks.
The ideological noise machine took it from there. A congressman, Peter King, and a senator, Jim Bunning, both Republicans, accused the Times of treason. King, whose contradictory nature once embraced the violent activities of the I.R.A., is now the chairman of the House Committee on Homeland Security. Curiously, it was King who, in September of 2004, co-chaired a hearing so that a Treasury official could tell the world how the department’s programs were driving terrorists out of the banking system; now he speaks of employing the 1917 Espionage Act to investigate and try journalists. Last week, the House approved a resolution condemning the newspapers that published the banking story for placing “the lives of Americans in danger.” The resolution passed 227–183, almost completely along party lines. On the airwaves and in the blogosphere, it got uglier. Melanie Morgan, a shouter on northern California’s biggest talk radio station, told the San Francisco Chronicle that if Bill Keller, the executive editor of the Times, “were to be tried and convicted of treason, yes, I would have no problem with him being sent to the gas chamber.”
The Bush Administration can’t really believe that these newspaper stories have undermined the battle against Al Qaeda; what’s more, it knows that over the decades papers like the Times have kept many stories and countless particulars secret when editors saw that it was in the interest of national security and military safety to do so. The Times banking story disclosed no leads, named no targets. To say that it risked lives is like saying that an article revealing that cops tap phones to monitor the activities of the Mafia is a gift to the Five Families of New York.
The Bush Administration knows very well what it is doing and in what climate. The press––particularly the mainstream outlets the White House finds most irritating––is in a collective state of anxious transition, hurt by scandals (Congressman King was quick to mention Jayson Blair, the Times serial fabulist), by the appearance of a blizzard of new technologies and ideologized alternatives like Fox News, and by a general sense of economic, even existential, worry. The era of hegemonic networks and newspapers, of supremely confident Bradlees and Rosenthals, is a memory.
In the wake of the Administration’s record of dishonesty and incompetence in Iraq and the consequent decline in the President’s domestic polling numbers, it is not hard to discern why the White House might find a convenient enemy in the editors of the Times: this is an election year. The assault on the Times is a no-lose situation for the White House. The banking story itself showed the Administration to be doing what it had declared it was doing from the start: concertedly monitoring the financial transactions of potential terrorists. At the same time, by smearing the Times for the delectation of the Republican “base,” the Administration could direct attention away from its failures, including, last week, the Supreme Court’s decision to block its plans to try Guantánamo detainees before military commissions.
In the era of the Pentagon Papers, a war-weary White House went to the courts to stifle the press. You begin to wonder if the Bush White House, in its urgent need to find scapegoats for the myriad disasters it has inflicted, is preparing to repeat a dismal and dismaying episode of the Nixon years.
Are we to have a government of laws or of men? That is the question we face as a country on this Fourth of July.
