I expect most of my readers are familiar with the Washington Post’s exposé (part 1, part 2) on Dick Cheney’s machinations. The Post has done a great public service here, lifting the veil on an extremely secretive man who wields tremendous power. As Marty Lederman observes,
for all practical purposes the [Office of the Vice President] is the Bush Administration, and its views become the official views of the Administration, no matter what others in the Administration think.
What about Colin Powell and Condoleezza Rice, two of the public faces of the Bush Administration? Cheney didn’t win arguments against them so much as he bypassed them entirely. On critical issues, they weren’t even “in the loop”.
We’re talking about some of the most deplorable decisions the Administration has taken. For example, the "torture memo":
The Justice Department delivered a classified opinion on Aug. 1, 2002, stating that the U.S. law against torture “prohibits only the worst forms of cruel, inhuman or degrading treatment” and therefore permits many others. Distributed under the signature of Assistant Attorney General Jay S. Bybee, the opinion also narrowed the definition of “torture” to mean only suffering “equivalent in intensity” to the pain of “organ failure ….. or even death.”
Powell and Rice first learned of the memo’s existence two years later, from an article in the Washington Post. Hilzoy at Obsidian Wings is justifiably shocked:
Stop and think about that for a moment. A memo making an absolutely radical, 180 degree change in US detention and interrogation policy in ways that will predictably have an enormous impact on our standing in the world is signed, and neither the Secretary of State nor the National Security Advisor finds out about it until two years later? From a newspaper article?
Lederman says that an obvious question arises at this point: Why does the Bush Administration function that way?
After all, there are extremists and hard-liners in every Administration, and they are often at the table, and even influential. But the internal Executive branch process is designed to ensure that multiple perspectives are considered, and therefore the most extreme and most uncompromising positions rarely prevail. In this Administration, the [Office of the Vice President] almost invariably wins. Indeed, the VP wins after cutting everyone else out of the loop altogether. …
Cheney always wins because, for some reason, the President has decided that that is how it should be. Which only clarifies that the real question is why the President allows this to happen.
I think Lederman is right. Many people dismiss President Bush as a stupid figurehead: a puppet for Rumsfeld and Cheney in particular. But I think Bush is better understood as a “big picture” type, who determines broad policies then delegates the details to others. Barton Gellman, one of the authors of the Post articles, comments on another Cheney triumph: the decision to suspend habaeus corpus:
It’s perfectly plausible, and from all the circumstances seems likely, that Bush told Cheney (whoever brought it up) that yes, he’d like to make sure captured terrorists are kept out of criminal courts where they’d have access to lawyers and technicalities. And that yes, sending them to Guantanamo Bay sounds like a great answer. I doubt that Bush proposed a particular legal mechanism, but it’s not uncommon for a president to tell a subordinate to “find me an answer that achieves this result.”
It’s important to note that nothing is ever done on Cheney’s authority. Indeed, Cheney is scrupulously careful not to leave his fingerprints on these initiatives. It’s all done on President Bush’s authority.
Cheney maintains that Bush is above the law. The US Supreme Court has begun taking bites out of these controversial detainee policies, but Cheney pays no mind. Hilzoy explains:
The article also makes it clear that Cheney regards the President as completely above the law:
According to participants in the debate, the vice president stands by the view that Bush need not honor any of the new judicial and legislative restrictions. His lawyer, they said, has recently restated Cheney’s argument that when courts and Congress “purport to” limit the commander in chief’s warmaking authority, he has the constitutional prerogative to disregard them.
Or, in short: there are no legal limits at all on the President’s power. In wartime, he can do literally anything.
This is also clear from the article’s accounts of Cheney’s discussions of legal strategy. Time after time, various people say to Cheney and his staff: look, you need to realize that this line of argument will never be accepted by the courts. And every time, Cheney’s response is: we insist on everything; we concede nothing; screw them. There is, as far as I can tell, no acknowledgement of the fact that the Courts have an independent role in setting out the legal limits on the actions of the Executive, or that they are anything more than an annoying hoop that has to be jumped through. Similarly with the Congress.
For this reason, it’s not surprising that Cheney treats reversals of his policies in the Courts, or Congressional action overruling them, not as setting limits on what he should do, but as minor setbacks in a bureaucratic war, setbacks that he can overturn through deviousness and persistence.
In sum, America is no longer governed by the rule of law. Not while Cheney and Bush are holding the reigns. And what will future Presidents do with such unlimited authority — for example, if Americans should elect the autocratic Rudy Giuliani in 2008?
The ironies have been pointed out many times before, but they bear repeating.
The Bush Administration has set out to spread democracy to the undemocratic countries of the Middle East. At the same time, the Bush Administration shows a total failure to comprehend what “democracy” means at home. The very foundations of democracy, worked out centuries ago, have been casually brushed aside.
The terrorists’ goal is to destroy Western values, according to President Bush. But Al Qaeda hasn’t accomplished much since 9/11/2001. Bush and Cheney have seized the opportunity to take it from there.