Takeover, page 4
Both men watched from a distance as Congress battled Nixon and sought to counter his claims of presidential power. Congress passed laws in 1973 ordering Nixon to stop bombing Laos and Cambodia and demanding that presidents consult Congress for any future wars. Then, as Watergate revelations grew, Nixon resigned in August 1974 to avoid being impeached.
4.
On August 9, 1974, Nixon left the White House grounds in defiant disgrace aboard a marine helicopter shortly before Gerald Ford was sworn in as the new president. At that moment, Cheney was off to Dulles International Airport, forty-five minutes south of Washington, where he would meet Rumsfeld’s flight from Brussels. Rumsfeld, then still the NATO ambassador, had been vacationing on the French Riviera with his wife when he got a call from Phil Buchen, soon to be Ford’s new White House counsel.41 Buchen told Rumsfeld that Ford wanted him to come back and head up the transition team that needed to quickly create a new administration from the ruins of the Nixon presidency. Rumsfeld’s temporary assignment soon became permanent, as Ford made him White House chief of staff. Rumsfeld again tapped Cheney to be his deputy. The following year, when Ford made Rumsfeld the secretary of defense, Cheney replaced his mentor as White House chief of staff—an extraordinarily powerful position for a thirty-four-year-old.
In one sense, his timing was terrible. Cheney had gotten his chance to help wield the powers of the presidency from high in the executive branch hierarchy just as those powers had come under fierce assault. Congress had begun aggressively reining in the presidency during the last years of the Nixon administration. Among its most important moves was enacting the War Powers Resolution of 1973; overriding Nixon’s veto, Congress required presidents to consult with Congress whenever deploying troops into likely combat, and required any deployments not explicitly authorized by Congress to end after sixty days. Years later, Cheney would describe the era as the “low point” of presidential power, and he singled out the War Powers Resolution as unconstitutional because it “made a change in the institutional arrangements that I don’t think is healthy. I don’t think you should restrict the president’s authority to deploy military forces because of the Vietnam experience.”42
Ford, a former House minority leader who had had nothing to do with Watergate, enjoyed a few weeks of harmony with Congress, but his surprise decision to grant Nixon a full and unconditional pardon a month after taking office ignited a new round of congressional action.43 The first fight the new administration faced involved a bill to strengthen the Freedom of Information Act. The bill allowed judges to review documents the executive branch wanted to keep secret. Congress’s goal was to prevent officials from stamping a document “classified” for political purposes. Ford was reluctant to veto the bill. In his first remarks after taking office, Ford had promised a new era of openness in government. Moreover, a midterm election was coming up, and vetoing such popular legislation would look terrible. “A veto presents problems,” Ford scrawled on a memo to an aide three days after becoming president. “How serious are the objections?”44
But the CIA, the Pentagon, the State Department, and other agencies that dealt in classified information were adamantly against the bill. Leading the charge was the young head of the Justice Department’s Office of Legal Counsel, which advises the president on constitutional matters. His name was Antonin Scalia. Scalia asserted that the bill unconstitutionally infringed on the president’s “exclusive” power to withhold information to protect national defense and foreign policy.45 Joined in argument by all but one of Ford’s top advisers (Buchen, the White House counsel and a friend of Ford’s from their college days46), Scalia and company convinced Ford to veto the bill because it could lead to leaks and “would violate constitutional principles.” 47 The Ford administration then launched an all-out lobbying campaign to urge Congress to sustain the veto and instead pass alternative legislation that Ford’s legal team would help craft. Congress, however, promptly overrode his veto.48
Ford officials soon had cause to worry that Congress would go even further in restricting the president’s powers. In the November 1974 midterm elections, Democrats won huge victories at the polls as voters punished Republicans for the Watergate scandal and Ford’s pardon of Nixon. The election meant that the opposition party would enjoy a greater than two-to-one majority in both houses of Congress—enough to easily override presidential vetoes.
One month after the midterms, the New York Times published a report by the investigative journalist Seymour Hersh alleging that the CIA had for two decades undertaken a massive and illegal program of domestic spying, including tapping phones, opening mail, breaking into homes and offices, and keeping files on ten thousand antiwar protesters and other dissidents. Hersh’s article touched off an uproar in the new Congress, prompting vows to investigate and reform the intelligence community. Transcripts of National Security Council meetings from this period portray a White House feeling under siege. Ford remarked that they were all “struggling… with the consequences of the Hersh article” and that he was “concerned that the CIA would be destroyed.”49 In a memo to the president, Cheney urged Ford to quickly create a White House commission to investigate the CIA as “the best prospect for heading off congressional efforts to further encroach on the executive branch.”50
Ford, who would later remember getting to know Cheney and “develop[ing] a great admiration for his ability to analyze problems, his good judgment,”51 took the young deputy’s advice and created the commission, putting his vice president, Nelson Rockefeller, in charge of it. But the new Congress moved in anyway, launching eight separate hearings and demanding full access to secret documents. Soon, the probes were consolidated into one for each chamber. A special House committee, headed by Democratic representative Otis Pike of New York, focused on whether the intelligence community needed to be redesigned. The White House’s fights with Pike were heated but paled by comparison with the battles with a separate Senate committee that was focusing on investigating past cases of severe abuses by the intelligence agencies.
This Senate committee, which generated the sharpest attacks on the presidency during the Ford years, was chaired by Idaho Democrat Frank Church. Church had been an intelligence officer for the army in Southeast Asia during World War II. He had joined the military shortly after graduating from high school in 1942. After his discharge in 1946, Church earned an undergraduate degree from Stanford and went on to law school. But his studies were interrupted again when he was diagnosed with cancer in his abdomen, underwent surgery, and was given just months to live. However, a second doctor subjected Church to an early form of radiation therapy, using X-rays to kill the remaining cancer cells. The treatment worked. Church later said that the early reminder of his mortality spurred him to be more aggressive in life. “I had previously tended to be more cautious—but having so close a brush with death at 23, I felt afterwards that life itself is such a chancy proposition that the only way to live is by taking great chances,” he recalled.52
The young lawyer channeled that energy into politics. The youngest son of a staunch Republican who loved to argue politics over dinner, Church had often taken a contrarian stance simply in order to “furnish an argument.” The dinnertime debates led Church to hone his political skills—he won a national American Legion oratory contest as a sixteen-year-old—and also converted him into a Democrat. He won a U.S. Senate seat in 1956 at age thirty-two, making him the fifth-youngest U.S. senator in history. He would serve for four terms, becoming one of the early opponents of the Vietnam War and a true believer in the dangers an imperial presidency poses to American democracy.
Church achieved his greatest fame heading one of the 1975 probes into abuses by the vast covert spy force that had grown up, almost without discussion, after World War II. In its final report, the Church Committee described the growth of illegal domestic intelligence activities as a product of excessive secrecy and unrestrained executive power. The report said that in order to preserve the Constitution, it was imperative to impose safeguards on what a president could do with spy agencies.
“For decades Congress and the courts as well as the press and the public have accepted the notion that the control of intelligence activities was the exclusive prerogative of the Chief Executive and his surrogates,” the Church Committee report said. “The exercise of this power was not questioned or even inquired into by outsiders. Indeed, at times the power was seen as flowing not from the law, but as inherent, in the Presidency. Whatever the theory, the fact was that intelligence activities were essentially exempted from the normal system of checks and balances. Such Executive power, not founded in law or checked by Congress or the courts, contained the seeds of abuse and its growth was to be expected.”53
Church’s findings would ultimately prompt Ford to write a sweeping executive order imposing new limits on the intelligence community. The 1976 order for the first time established explicit rules for intelligence operations, banning most physical surveillance of U.S. citizens and legal residents as well as the collection of information about them. It also prohibited the infiltration of most domestic groups and made clear that the CIA was not to conduct operations on U.S. soil, nor to assassinate foreign leaders. Ford’s order blunted efforts in Congress to lock down such rules in statute so that they could not be waived by future presidents at their own discretion, but the findings also prompted Congress to create intelligence oversight committees in each chamber and to require the president, by law, to tell the committees about all intelligence activities.54
As the Church Committee began pressing for access to secret documents in early 1975, Ford tapped Jack Marsh, one of his top advisers, to coordinate responses to the requests. A former congressman and Defense Department official, Marsh later said that being in the Ford White House during those years felt like being under relentless assault. “There was an avalanche of demands and requests,” Marsh said. “If you want to get really whipsawed sometime, be in the White House when you got that kind of an issue, and the Congress is against you two to one.”55
Meanwhile, the press was uncovering major new revelations. In 1973, at the height of the Watergate investigations, the director of the CIA had ordered the agency to compile a classified report on any past or present activities that might have been illegal. This report, which Ford-administration officials alternately called the “horror stories” and the “family jewels,” leaked to CBS in February 1975. It included numerous allegations of attempted assassinations of foreign leaders over the previous twenty years.
Cheney instructed the White House press secretary to “stonewall” press inquires about the assassination report.56 Rumsfeld urged a “damage-limiting operation for the president” as they sought to thwart congressional demands for secret documents while trying not to look like they were engaged in a Watergate-style cover-up.57
Years later, Scalia would recall attending daily morning meetings during this period in the White House Situation Room with Marsh, CIA director William Colby, and other top officials. At those meetings, “we decided which of the nation’s most highly guarded secrets that day would be turned over to Congress, with scant assurance in those days that they would not appear in the Washington Post the next morning. One of the consequences of these congressional investigations was an agreement by the CIA that all covert actions would be cleared through the Justice Department, so, believe it or not, for a brief period of time, all covert actions had to be approved by me. Needless to say, I did not feel that this was an area in which I possessed a whole lot of expertise. Nor did I feel that the Department of Justice had a security apparatus to protect against penetration by foreign operatives. We had enough security procedures to frustrate la cosa nostra, but not the KGB.”58
As late as mid-March 1975, Cheney wrote a note to himself saying that they had a “problem”: “At the present time, we have no clear guidelines, no coherent policy developed for responding to Congressional requests generated by their investigation of the intelligence community.”59
5.
A month later, the commander in chief endured a new humiliation. In the spring of 1975, North Vietnam invaded the South, violating the cease-fire that the Nixon administration had negotiated in 1973. By April, it was clear that the Communists would soon take Saigon. Ford and his advisers, especially Secretary of State Henry Kissinger, wanted to conduct a massive airlift that would rescue 175,000 Vietnamese whose lives were in danger because they had worked with the Americans. Because of the laws Congress had passed at the end of the Vietnam War, Ford was forced to ask Congress for permission to conduct the airlift. But Congress opposed a new round of military action in Vietnam. In an April 14, 1975, meeting in the Oval Office, the Senate Foreign Relations Committee told Ford that it was a terrible idea because the number of American troops that would be necessary to secure the area while the airlift unfolded could reignite the war.
Congress gave Ford permission to use the military only to evacuate any Americans who were still in Saigon. His hands tied, the president could only watch helplessly as the television news depicted chaotic crowds of desperate South Vietnamese trying to get aboard the last helicopter flights out of the American embassy on April 30, 1975. It was a heart-wrenching scene. But limiting the evacuation also probably prevented a new round of war in Vietnam.
Two weeks later, the Ford administration began to push back against Congress. On May 12, 1975, a U.S. cargo-container ship called the SS Mayagüez was seized by the Cambodian navy in the Gulf of Siam. Kissinger urged military action to get the ship and its crew back, arguing that it was necessary to make a strong show of force to alert Communist regimes in the region that the United States would respond to attacks on its interests despite the fiasco of the Vietnam War. Ford took his advice, ordering the U.S. Marines to sink Cambodian warships and to storm an island where the crew was believed to be held—and he did so without consulting Congress ahead of time. Just two weeks after the Saigon airlift, Ford had revived the notion that he could order the military into combat without consulting Congress.
After Ford gave the orders to proceed with the assault, he called congressional leaders from both parties to come to the Cabinet Room in the White House and briefed them about what he had already done.60 The congressional leaders agreed that the attack was the right decision as a matter of policy, but they sharply disagreed with how Ford had gone about it. A 1971 law prohibited the use of ground combat troops in Cambodia, and the 1973 War Powers Resolution required advance consultation with Congress “in every possible instance.” Speaker of the House Carl Albert informed Ford, “There are charges on the Floor that you have violated the law.” And Senate Majority Whip Robert Byrd, Democrat of West Virginia, asked, “Why were the [congressional] leaders not consulted before the decision to strike the mainland? I’m for getting the ship back, but I think you should have given them a chance to urge caution.”
“That’s a good question and I’ll answer,” Ford replied. “It is my constitutional responsibility to command the forces and to protect Americans…. We have a separation of powers. The president is the commander in chief so long as he is within the law. I exercised my power under the law and I complied with the law. I would never forgive myself if the Marines had been attacked….”61
The Mayagüez and its crew were recovered, and Ford’s decision was celebrated as a “daring show of nerve and steel,” a “classic show of gunboat diplomacy,” and a “four star political and diplomatic victory,” as Newsweek told its readers, adding for good measure, “It was swift and tough—and it worked.”62
But later, this heroic portrait was revealed to be false. The U.S. death toll from the assault was far higher than initially reported. Instead of one dead and thirteen missing, more than forty marines had died—fifteen in the initial assault on the island, twenty-three in a related helicopter crash, and three who had been accidentally left behind and were captured and executed by the Cambodians. The intelligence surrounding the operation had been terrible. The United States expected to find just two dozen Cambodian soldiers on the island; instead, there were ten times that many. Worse, the captured crew wasn’t on the island—and never had been; they had been taken to the mainland at the beginning of the crisis. Worst of all, it turned out that the Cambodians had publicly announced that they were releasing the crew and the vessel before the attack began, but the message hadn’t reached Ford before he rushed to attack. The crew was floating out to sea on a fishing boat when the marines launched their assault on the island, dying for nothing.63
But these facts did not come out for several weeks—and some facts took years. In the meantime, the operation was presented to the public as a stunning, morale-boosting victory just two weeks after the humiliating Saigon evacuation. An unnamed Ford administration official admitted to a Newsweek reporter that the White House release of information about the operation had been “the sheerest sort of jingoism,” but his argument was that the operation had worked—“and nobody challenges success.”64
Indeed, it proved difficult for members of Congress to quarrel with an apparently successful operation, and their grumbles about the principles involved quickly died down.
The Mayagüez incident revealed just how difficult it would be for Congress to rein in a president once troops were committed. And Ford would not be the last president to chip away at the War Powers Resolution.
Another area in which lawmakers were newly vigilant had to do with treaties. The Constitution divided power over contracts with foreign nations, allowing presidents to negotiate such agreements but requiring presidents to submit them to the Senate for ratification. Over time, however, presidents began sidestepping this procedure by making more aggressive use of “executive agreements” with foreign governments—turning what were supposed to be limited understandings into major treaties under another name, which they never sent to Congress.
