Friday 10 February 2006

Vice President Dick Cheney has stirred up an old fight in Washington. He sent a rookie, however, to make his case publicly. It did not work.

Attorney General Alberto Gonzales appeared before the Senate Judiciary Committee to offer what may have been the weakest legal argument for presidential power to conduct warrantless electronic surveillance since Nixon's Justice Department invoked the views of King George III.

King George III's take on the matter did not carry any weight either. Indeed, the D.C. Circuit Court of Appeals could barely believe the Nixon Justice Department was serious. The panel reminded the government's lawyers that warrantless searches were among the very reasons the colonies fought for their independence.

As for the reaction to the Gonzales testimony, a New York Times editorial described it as "a daylong display of cynical hair-splitting, obfuscation, disinformation and stonewalling." The Times also noted committee chairman Arlen Specter's analysis of the Attorney General's legal position: It "just defies logic."

The Illogic Of the Bush Administration's Position on Congress' Law and Views

Chairman Specter is correct. Gonzales' position is that the President can make his own rules, notwithstanding the existence of a federal statute - the Foreign Intelligence Surveillance Act (FISA) - that is directly on point, expressly prohibiting warrantless electronic surveillance. For the Attorney General to defend such a view defies "the equilibrium of our constitutional system" to use Chairman Specter's words - treating Congress' clear word on the matter, as if had never been spoken at all.

Warrantless wiretapping, moreover, is not just a separation-of-powers violation; it is also a federal crime. I suspect we will hear more from Chairman Specter on this issue, for he has great respect for the rule of law.

Equally illogical is Vice President Dick Cheney's position - and if anyone does not believe that Cheney is not behind this ruckus, they do not know Cheney or his history. Let me start by describing his give-no-quarter stance.

After the Attorney General's testimony concluded, and given the doubts expressed about it by both Republicans and Democrats on the Senate Judiciary Committee, PBS newsman Jim Lehrer asked Cheney if President Bush would cooperate with Congress to "settle some of the legal disputes about the NSA surveillance program?" Cheney responded with a polite, hell no. (Incidentally, this was Cheney's first interview with other than a conservative news person.) "We believe, Jim, that we have all the legal authority we need," Cheney said. "[The President] indicated the other day he's willing to listen to ideas from the Congress, and certainly they have the right and the responsibility to suggest whatever they want to suggest."

The President will listen to ideas and suggestions from the Congress, but he will not follow a law it has written (and a prior President has signed into law) on the subject? This is not exactly a logical stance.

Nor is the on-again/off-again stance the administration has taken regarding whether it will even share with Congress the details of the NSA surveillance program.

The off-again stance was simply absurd. With every indication suggesting that the President directed the NSA to violate federal law, the Administration seemed to maintain that Congress somehow lacked even the authority to investigate the most basic facts relating to the illegality: Who, what, when, where and how.

At first, the Administration refused even to brief the House intelligence subcommittee that oversees the NSA. Laudably, the Committee's Chair, Heather Wilson, R-N.M., subsequently broke with the Administration and called for a full review of the NSA's program. Initially, the White House once again resisted. But finally, it instructed the NSA to brief the House subcommittee.

It wasn't logic that made the Administration capitulate, of course. It was a tactical, political decision: an effort to not let too much steam build among Congressional Republicans on this issue. What I have called illogical, former Georgia Congressman Bob Barr appropriately described as a kabuki dance with Congress in his recent column for this site.

Actually, all this is something of a periodic Washington ritual. And no one enjoys beating this drum to keep the executive power issue alive more than Dick Cheney. It may, in fact, be the reason he selected himself to be George Bush's Vice President.

"In the aftermath of Vietnam and Watergate," Cheney recently told the Wall Street Journal, "there was a concerted effort to place limits and restrictions on presidential authority." There were "a series of decisions," he explained, "that were aimed at the time at trying to avoid a repeat of things like Vietnam or ... Watergate."

"I thought they were misguided then," he continued, and "given the world that we live in [today] that the president needs to have unimpaired executive authority." Cheney said the only restraint on the president should be "the Constitution." He did not say, however, as he has on other occasions, that it is the president who says what the Constitution means, as far as his own duties and responsibilities.

But that point of view is implicit in Cheney's comment that "the pendulum from time to time throughout history has swung from side to side-Congress was pre-eminent, or the executive was pre-eminent-and as I say, I believe in this day and age, it's important that we have a strong presidency."

This View Long Predated 9/11: Startling Statements in Iran-Contra Minority Views

Do not, however, mistake Cheney's reference to "this day and age" as having anything to do with terrorism. Long before 9/11, Cheney was pushing this cause.

To understand Cheney's position, he suggests that others "go back and look at the minority views that were filed with the Iran-Contra report, [and] you'll see a strong statement about the president's prerogatives and responsibilities in the foreign policy/national security area in particular."

If one does as Cheney says, as I have, what will be found is rather startling, to say the least.

The so-called Iran Contra report to which Cheney is referring emerged as part of a five-hundred page final report of a Congressional investigation which lasted eleven months. The investigation was undertaken by a joint committee of both House and Senate, of which then-Representative Dick Cheney was Vice-Chair.

At issue was whether the Reagan Administration had ignored the Boland Amendment, a 1984 law that restricted the CIA's use of appropriated funds to support the Nicaragua Contra movement - and, relatedly, whether Congress had been properly informed about the Administration's actions.

The majority report asserted that the entire affair "was characterized by pervasive dishonesty and inordinate secrecy." But Cheney authored a minority report - joined by several other Republicans, though not all.

Cheney's report took a very different view: He called the failures of the Reagan White House to comply with the laws "mistakes," insisting they "were just that - mistakes in judgment and nothing more."

These so-called mistakes were actually serious criminal offenses according to Independent Counsel Lawrence Walsh, who successfully prosecuted some eight Reagan officials for their mistakes. All eight, however, either had their verdicts reversed on technicalities, or were pardoned by President George H.W. Bush. The George W. administration hired many of these people, and has made the records of George H.W. Bush disappear.

Somewhat astoundingly, Cheney's minority report not only defended the White House's lawbreaking but also scolded Congress for passing the relevant laws in the first place. Congress, he argued, was "abusing its power" when it adopted laws restricting the president's spending of money to aide the Nicaraguan Contras. "Congress must recognize that effective foreign policy requires, and the Constitution mandates, the President to be the country's foreign policy leader," Cheney's report declared, ignoring the fact the Constitution gives Congress exclusive power over the purse.

Clearly, Cheney's mindset about the Congress vis-a-vis the president has changed little since 1987. His position, however, is far from as solid as he claims.

Since the time the Constitution was adopted, there has been an unresolved (if not irresolvable) debate over the allocation of foreign policy powers between Congress and the president. There are highly respected authorities on both sides of the question. No wonder, for as Harvard professor and presidential powers scholar Edwin S. Corwin explained, the Constitution itself "is an invitation to struggle for the privilege of directing American foreign policy."

Corwin added, however, the "verdict of history is that the power to determine the substantive content of American foreign policy is a divided power, with the lion's share falling usually, though by no means always, to the President." (Emphasis in original.) If there is a more accurate assessment of these powers, I have never found it.

Article II of the Constitution, which sets forth presidential powers, is so vague that not even the Framers of the Constitution themselves agreed about its meaning. James Madison made the point in Federalist No. 37, stating "that no skill in the science of government has yet been able to discriminate and define, with sufficient certainty, its three great provinces - the legislative, executive, and judiciary; or even the privileges and powers of the different legislative branches."

Madison believed the meaning of this great charter would "be liquidated and ascertained by a series of particular discussions and adjudications." But it has not worked out that way. For example, the U.S. Supreme Court has two rival holdings regarding the conduct of foreign affairs - each suitable for citation by one side in the ongoing debate.

Cheney, and those who subscribe to his point of view, find solace in the Court's 1936 decision in U.S. v. Curtiss-Wright Export Corporation. Ironically, conservatives once loathed this ruling - which recognized President Franklin Roosevelt's preeminence in foreign policy.

Meanwhile, those who believe presidential powers in foreign affairs may be constrained by laws passed by Congress, find support in the Court's 1952 decision in Youngstown Sheet and Tube Co. v. Sawyer. There, the Court directly prohibited President Truman from seizing the nation's steel mills for military needs during the Korean War, on the ground that Congress, by law, had prohibited using such means to settle a strike.

Both of these precedents stand. But the Youngtown ruling, particularly the concurrence by Justice Robert Jackson, has long been considered the best statement of the law. Still, with both decisions on the books, the "discussions and adjudications," which have been going on for two centuries now, have never been fully judicially resolved.

I believe they have been politically resolved, however. Moreover, Bush and Cheney's presidency presents a clear-cut case of a violation of that political resolution - for it has pushed the exclusivity of the president in matters of national security further than any predecessor, including the Nixon Administration, did. For that reason, I will return to this subject in a following column.

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John W. Dean, a FindLaw columnist, is a former counsel to the President.