Takeover, page 45
It was not immediately clear whether the administration would follow through on its plan. But tensions flared again after January 28, 2008, when the White House issued a new signing statement on a defense authorization bill. Among the four sections of the bill that Bush declared he had the constitutional power as commander in chief to bypass, one was a prohibition against using federal funds “to establish any military installation or base for the purpose of providing for the permanent stationing of United States Armed Forces in Iraq.”32
This was a return to form. After Democrats had taken over Congress, Bush had gone eleven months before issuing a signing statement, and then he initially adopted a less aggressive tone and challenged no high-profile provisions.* But there was nothing conciliatory about declaring—in the midst of the already controversial negotiations with Iraq—that he need not obey the ban on permanent bases in Iraq. Senator Robert Casey Jr., Democrat of Pennsylvania, said, “Every time a senior administration official is asked about permanent U.S. military bases in Iraq, they contend that it is not their intention to construct such facilities. Yet this signing statement issued by the president yesterday is the clearest signal yet that the administration wants to hold this option in reserve.” And David Barron, a Harvard law professor who worked in the Office of Legal Counsel during the 1990s, said, “What this shows is that they’re continuing to assert the same extremely aggressive conception of the president’s unilateral power to determine how and when U.S. force will be used abroad, and that’s a dramatic departure from the American constitutional tradition.”
6.
As the Bush-Cheney administration used its final year in power to lock down the new standard of presidential power that it had so carefully engineered since 2001, much of the public’s attention was shifting to the contest over who would inherit the presidency in 2009—and with it, Bush’s legacy of political and legal precedents establishing far greater executive powers than were previously understood to exist. In December 2007, ahead of the Iowa caucuses, the author of this book submitted a dozen questions about executive power to the six leading candidates of each party. The questions were specifically phrased to pin down the candidates in a detailed way about such matters as whether they believed the president, as commander in chief, had inherent power to wiretap without warrants regardless of federal statutes; whether the president could lawfully bypass statutes and treaties governing detention, interrogation, and troop deployments; whether the president has the power to attack another country, such as Iran, without congressional authorization in a case that does not involve an imminent threat; under what circumstances, if any, they would use signing statements to reserve a constitutional right to bypass new laws; whether they believed the scope of executive privilege extended to executive branch decision making that was never personally communicated to the president; whether they believed the Constitution allows a president to indefinitely imprison a U.S. citizen without charges as an enemy combatant; and other touchstones raised by the Bush-Cheney record.
Nobody had asked such questions of George W. Bush and Dick Cheney during the 2000 presidential election, and the two had volunteered nothing to voters about their views and intentions regarding the limits of executive power. But in their administration’s wake, all would-be presidents of both parties should be compelled to tell voters what limits, if any, they would respect on their own powers before ballots are cast to determine who should inherit the White House. These questions should be asked not just in the election to pick a successor to the Bush-Cheney administration, but in all future presidential campaigns. As Illinois senator Barack Obama, one of the leading Democrats in the 2008 contest, said in responding to the survey, “These are essential questions that all the candidates should answer. Any president takes an oath to ‘preserve, protect and defend the Constitution of the United States.’ The American people need to know where we stand on these issues before they entrust us with this responsibility—particularly at a time when our laws, our traditions, and our Constitution have been repeatedly challenged by this administration.”34
In their answers to the survey, all of the Democrats and two of the Republicans—Arizona senator John McCain and Texas congressman Ron Paul—disavowed much of the Bush-Cheney record on executive power, although they had some disagreements. By contrast, former Massachusetts governor Mitt Romney embraced the Bush-Cheney record, and several other leading Republicans refused to comment. The overall results prompted some to suggest that the next president might significantly roll back the Bush-Cheney administration’s changes to the shape of American-style democracy. This view found resonance with Jack Goldsmith’s conclusion in his memoir that Bush and Cheney, by overreaching, had ironically weakened the presidency. Seeking to outflank Addington on the presidential power front, Goldsmith argued that the Bush-Cheney administration had “borrowed against the power of future presidencies—presidencies that, at least until the next attack, and probably even following one, will be viewed by Congress and the courts, whose assistance they need, with a harmful suspicion and mistrust because of the unnecessary unilateralism of the Bush years.”35
But skeptics of this view were not convinced. Despite their rhetorical bluster, congressional Democrats had proven completely willing to give President Bush all the national security powers that he had asked for in the Protect America Act. A new president—and perhaps the return of one-party rule in Washington—would only bolster the same dynamics that had produced the broad authorizations to use military force against the perpetrators of 9/11 and Iraq, the Patriot Act, the Military Commissions Act, and the Protect America Act. Another terrorist attack would reinvigorate the political argument that a stronger commander in chief—whoever happens to have that office at any given moment—would result in a more secure country. With new faces and new political issues taking the stage as the years unfolded, the mistrust engendered by Bush-Cheney officials would fade away, but their legal and political precedents would remain. Thus, even if the next president were to choose to go to Congress more often for short-term political reasons, any change in the actual power wielded by the White House would likely be cosmetic and minor. As Yale’s Jack Balkin wrote in response to the survey results, future presidents of either party “may make symbolic gestures toward a greater balance between the President and Congress… but it is unlikely that the next President will actually cede most of the new powers that the Bush Administration grabbed for itself.”36
These changes do not mean that democracy, generically speaking, is slipping away—after all, presidents will still be elected every four years. But American-style constitutional democracy—the Founders’ vision of using checks and balances to prevent the concentration of government power—is being transformed. No matter whether the issue is national security or domestic policy, the bottom line is that the extraordinary power of the American government is being consolidated, and the limits are evaporating on what the small number of people atop the executive branch can do with that authority. As a result, in the future more and more of the important decisions affecting the United States seem likely to be made by fewer officials, in greater secrecy and with less input from elected representatives in Congress, and if Americans do not like those decisions—assuming they find out about them—their ability to get recourse in the courts has been eroded. The dramatic ratcheting forward of the half-century-old movement to centralize control of the government in a presidency freed from constraints seems destined to be the Bush-Cheney administration’s most successfully implemented policy—and its enduring achievement.
Charlie Savage
Washington, DC
February 2008
Acknowledgments
I begin by thanking my lovely wife and brilliant fellow journalist, Luiza Ch. Savage, who is the Washington correspondent for the Canadian newsweekly magazine Maclean’s. Luiza provided intellectual and emotional support at every step toward the completion of this manuscript. It was she who first encouraged me to expand my work on presidential power into a book. From that moment to the production of initially clumsy chapter drafts and throughout the seemingly endless revisions process, Luiza was my first, repeated, and most important reader. Her countless edits measurably improved every page—and excised many more pages of material that did not make the grade. I am truly blessed to have Luiza as my partner in life.
At the Boston Globe, Peter Canellos is my bureau chief, editor, and friend, and his stalwart fellowship extended in many ways to this book. Peter was enormously supportive of the project, offering to let me keep using my office as a place to write even though I was on leave. A law school graduate as well as an ingenious editor, Peter volunteered his time to wade through early drafts of many chapters and provided critical advice. In this way he carried over our deeply collaborative efforts in the newspaper world, and I am grateful for his help and friendship.
This project would not have been possible without the support of the Boston Globe as an institution, including the backing of top editors Martin Baron, Helen Donovan, and Mary Jane Wilkinson. In addition to granting a leave of absence and offering logistical assistance, the Globe provided legal permission to draw on ideas and material I developed while on its payroll. I also want to express sincere appreciation for my many talented colleagues who have helped me grow as a journalist as I worked alongside them, both at the Globe and at the Miami Herald.
I was fortunate to be represented by the peerless Amanda Urban of ICM Talent. It is widely acknowledged that there is no better agent than Binky in this industry, a reputation which I can now personally attest to and celebrate. Her guidance in finding an appropriate publisher for this project was invaluable, and I thank her for her professional expertise and her wise counsel.
This book was edited by Geoff Shandler at Little, Brown. I thank Geoff for taking a gamble on a first-time author, and for his keen insights and sound suggestions. Geoff ’s superb assistant, Junie Dahn, was a steady anchor throughout the project. Attorney Chris Nolan provided excellent advice. Nearly every paragraph in this book was sharpened and polished by the vigilant attentions of copyeditor Pamela Marshall. Publicist Heather Fain was a great friend and hardworking ally during the hardcover book tour. And abiding thanks also are due to Peggy Freudenthal and Katherine Molina.
During the writing and revisions of the manuscript, I had the advantage of the advice and suggestions of several experts steeped in some of the complex topics covered by this book. I thank them all, including Harold Koh of Yale Law School, Steven Aftergood of the Federation of American Scientists’ Project on Government Secrecy, Peter Shane of Ohio State University’s Moritz College of Law, Edward Rodriguez of the Judge Advocates Association, and Louis Fisher of the Library of Congress. In addition, this book benefited from the time I spent at the Gerald R. Ford Presidential Library in Ann Arbor, Michigan, and at the National Archives annex in College Park, Maryland. I am grateful to the research librarians at those facilities for their expert assistance, including Stacy Davis and Nancy Mirshah.
This book was also shaped by many interviews with former government officials who have firsthand knowledge of the events and topics it covers. Most allowed me to use their names, and they are cited in the text and endnotes. Several others helped me with my understanding of this material but asked not to be named. In every case, the interviews were productive, helpful, and fascinating, and I thank all who gave me their time and perspectives.
Finally, I would like to thank my parents, Robert and Sarah Savage, who fostered in me an interest in writing and politics from an early age. Both are teachers in professional life, and I continue to learn from them to this day.
Notes
1. INSIDE THE BUNKER
1. For one of several available descriptions of the Presidential Emergency Operations Center, see Richard Clarke, Against All Enemies (New York: Free Press, 2004), 18.
2. “The Vice President Appears on Meet the Press with Tim Russert,” September 16, 2001, http://www.whitehouse.gov/vicepresident/news-speeches/speeches/vp20010916.html.
3. “Cheney Recalls Taking Charge from Bunker,” CNN, September 11, 2002, http://archives.cnn.com/2002/ALLPOLITICS/09/11/ar911.king.cheney/index.html.
4. Final Report of the National Commission on Terrorist Attacks Upon the United States, July 22, 2004, 40–42.
5. Ibid., 464 (footnote, 211).
6. Ibid., 41.
7. Ibid., 30, 43.
8. Ibid., 43.
9. According to the commission report, National Security Adviser Condoleezza Rice and Cheney’s military aide, alone among those present in the bunker, told the commission investigators that they had a vague recollection of some kind of earlier call between Cheney and Bush, but no one else remembered such a call and there was no written record of it in call logs or notes. Ibid., 40–41.
10. Ibid., 41.
11. Ibid., 464–465 (footnotes, 216–221).
12. In the weeks and months following the attacks, Cheney and Bush gave numerous interviews about their performances on the morning of 9/11, and the 9/11 Commission obtained the full unreleased transcripts of each interview. A careful reading of the commission report’s footnotes shows that no one mentioned any earlier phone call for more than three months. The dubious story first surfaced on December 17, 2001, when Bush sat down with reporters Bob Woodward and Dan Balz for an article the Washington Post published the following month. Ibid., 464 (footnote, 213).
13. See, e.g., Nicholas Lemann, “The Quiet Man: Dick Cheney’s Rise to Unprecedented Power,” The New Yorker, May 7, 2001.
14. John Kascht, “The Dick Cheney You Don’t Know,” Talk, May 2001, 88.
15. “Vice President’s Remarks at the Gerald R. Ford Journalism Prize Luncheon, Followed by Q&A,” June 19, 2006, http://www.whitehouse.gov/news/releases/2006/06/20060619-10.html.
2. THE FALL OF THE IMPERIAL PRESIDENCY AND THE RISE OF DICK CHENEY: 1789–1976
1. “Interview of the Vice President and Mrs. Cheney by KCWY News-13,” May 27, 2006, http://www.whitehouse.gov/news/releases/2006/05/20060527-3.html.
2. John Kascht, “The Dick Cheney You Don’t Know,” Talk, May 2001, 88.
3. Ibid., 91.
4. Lee Davidson, “Lynne Cheney’s Ancestors,” Deseret News, January 22, 2006.
5. “Interview of the Vice President and Mrs. Cheney by KCWY News-13.”
6. Nicholas Lemann, “The Quiet Man: Dick Cheney’s Rise to Unprecedented Power,” The New Yorker, May 7, 2001.
7. Kascht, “The Dick Cheney You Don’t Know,” 92.
8. Lemann, “The Quiet Man.”
9. Davidson, “Lynne Cheney’s Ancestors.”
10. Lemann, “The Quiet Man.”
11. Katharine Q. Seelye, “Cheney’s Five Draft Deferments During the Vietnam Era Emerge as a Campaign Issue,” New York Times, May 1, 2004.
12. Aage R. Clausen and Richard B. Cheney, “A Comparative Analysis of Senate House Voting on Economic and Welfare Policy: 1953–1964,” The American Political Science Review 64, no. 1 (March 1970): 138–152.
13. Arthur Schlesinger, The Imperial Presidency (New York: Houghton Mifflin, 1973).
14. Michael B. Oren, Power, Faith, and Fantasy (New York: Norton, 2007), 29–32.
15. See, e.g., Federalist 51 and Federalist 75.
16. This and the paragraphs that follow are largely derived from Schlesinger’s Imperial Presidency; see also Louis Fisher, Presidential War Power (Lawrence: University of Kansas Press, 2004).
17. Schlesinger, Imperial Presidency, 50.
18. Abraham Lincoln, “Special Session Message,” July 4, 1861, http://www.whitehousehistory.org/04/subs/activities_03/c02_04.html.
19. Ex Parte Milligan, 71 U.S. 2, 120–121 (1866).
20. Louis Fisher has argued that while Taft’s view of presidential power differed rhetorically from Roosevelt’s, on a practical level there was less difference between the two than historians conventionally say.
21. Alexander Hamilton, Federalist 69.
22. James Madison, “Helvidius No. 1,” Philadelphia Gazette, August 31, 1793, reproduced in The Mind of the Founder, rev. ed., ed. Marvin Meyers (Indianapolis: Bobbs-Merrill Co., 1981), 206–207.
23. Some supporters of strong presidential war powers have argued that when the Senate consents to the ratification of treaties that give multinational groups the power to authorize the use of military force, such as with the U.N. charter and the North Atlantic Treaty Organization, Congress is delegating—to the foreign governments that sit on the U.N. Security Council or NATO—its constitutional power to decide when to take the United States from peace to war. But as Louis Fisher has pointed out, this argument is nonsense for multiple reasons. Among them, the Constitution gives the House of Representatives the power to block a war by refusing to authorize it, and the House does not get to vote on whether to ratify a treaty. The argument that such treaties eliminate the need for the president to obtain “advance congressional authorization would mean that the President and the Senate, through the treaty process, can obliterate the constitutional power of the House of Representatives to decide whether to take the nation to war. That position, no matter how asserted, is untenable.” Fisher, Presidential War Power, 185.
