Takeover, page 53
4. Federalist 51.
5. Thomas E. Mann and Norman J. Ornstein, The Broken Branch (Oxford University Press, 2006), 155.
6. Ibid., 215.
7. Meet the Press, NBC, February 8, 2004, http://www.msnbc.msn.com/id/4179618/.
8. “Commander in Chief Lands on USS Lincoln,” CNN, May 1, 2003, http://www.cnn.com/2003/ALLPOLITICS/05/01/bush.carrier.landing/.
9. Gary Wills, “At Ease, Mr. President,” New York Times, January 27, 2007.
10. Text of speech by Democratic senator Zell Miller of Georgia as prepared for delivery at the Republican National Convention, September 2, 2004.
11. “Legal Authorities Supporting the Activities of the National Security Agency Described by the President,” U.S. Department of Justice, January 19, 2006, http://www.usdoj.gov/opa/whitepaperonnsalegalauthorities.pdf.
12. Charlie Savage, “AG’s Memo Raises Questions on Patriot Act,” Boston Globe, January 25, 2006.
13. The Justice Department, pressed to explain itself, further argued that reauthorizing the Patriot Act was necessary because it had torn down the wall separating criminal and counterintelligence investigators from sharing information. However, a federal appeals court had already ruled in 2002 that the “wall” was never legally required in the first place, so no legislation was required to keep it down.
14. “President Discusses Global War on Terror at Kansas State University,” January 23, 2006, http://www.whitehouse.gov/news/releases/2006/01/20060123-4.html.
15. E-mail exchange between William Moschella and Brent Tolman, re: “Dan Collins Special,” November 9, 2005, http://www.realcities.com/multimedia/nationalchannel/archive/mcw/pdf/usattorneys/032307/_3.pdf.
16. Manuel Roig-Franzia and Spencer Hsu, “Many Evacuated, but Thousands Still Waiting,” Washington Post, September 4, 2005.
17. “President’s Remarks During Hurricane Rita Briefing in Texas,” September 25, 2005, http://www.whitehouse.gov/news/releases/2005/09/20050925.html.
18. John Yoo, “Trigger Power,” Los Angeles Times, October 2, 2005.
19. Section 333 of H.R. 5122, John Warner National Defense Authorization Act for Fiscal Year 2007.
20. Colin Powell to Senator John McCain, September 14, 2006.
21. Boumediene v. Bush, no. 05-5062, U.S. Court of Appeals for the District of Columbia Circuit, February 20, 2007.
22. Bruce Ackerman, “The White House Warden,” Los Angeles Times, September 28, 2006.
23. John Yoo, “Sending a Message,” Wall Street Journal, October 19, 2006.
24. (His italics.) Martin Lederman, “John Yoo on Court-Stripping,” Balkinization, October 19, 2006, http://balkin.blogspot.com/2006/10/john-yoo-on-court-stripping.html.
25. “Media Availability with Senator Harry Reid (D-NV), Senate Minority Leader, Following His Meeting at the White House with the President and Vice President,” November 10, 2006.
26. Walter Pincus, “CIA Cited for Not Disclosing Covert Action,” Washington Post, May 10, 2007.
27. Message to the House of Representatives, May 1, 2007, http://www.whitehouse.gov/news/releases/2007/05/20070502-1.html.
28. Author interview with Richard Viguerie, May 16, 2007.
29. Korematsu v. United States, 321 U.S. 760 (1944).
AFTERWORD
1. This and the following paragraphs are derived from Charlie Savage, “Bush Urges Congress to Pass Wiretap Bill,” Boston Globe, August 3, 2007. See also Charlie Savage, “New Law Expands Power to Wiretap,” Boston Globe, August 6, 2007.
2. President’s radio address, July 28, 2007, http://www.whitehouse.gov/news/releases/2007/07/20070728.html.
3. The act also requires the government to delete any American’s private information that it picks up, but it contains a huge exception: Agents are to maintain files of information about an American that they decide might have intelligence value or might be evidence of a crime.
4. Michael Isikoff and Mark Hosenball, “The Capitol Hill Terror Attack That Never Came,” Newsweek, September 27, 2007, http://www.newsweek.com/id/41308.
5. Jack Goldsmith, The Terror Presidency. (New York: W.W. Norton & Co., 2007), 132.
6. Ibid., 181.
7. Ibid., 126.
8. Ibid., 41.
9. Ibid., 124.
10. Ibid., 181.
11. Ibid., 71.
12. Ibid.
13. Ibid., 176.
14. Ibid., 181.
15. Jan Crawford Greenburg and Ariane de Vogue, “Bush Administration Blocked Waterboarding Critic,” ABCNews.com, November 2, 2007, http://abcnews.go.com/print?id=3814076.
16. Scott Shane, David Johnston, and James Risen, “Secret U.S. Endorsement of Severe Interrogations,” New York Times, October 4, 2007.
17. Mark Mazetti and Scott Shane, “Bush Lawyers Discussed Fate of C.I.A. Tapes,” New York Times, December 19, 2007.
18. Barry Siegel, “State-Secret Overreach,” Los Angeles Times, September 16, 2007. See also “Secrecy Report Card 2007,” openthegovernment.org.
19. Carrie Newton Lyons, “The State Secrets Privilege: Expanding Its Scope Through Misuse,” Lewis & Clark Law Review, vol. 11, no. 1, spring 2007.
20. Pete Yost, “Gov’t Argues for Withholding Records,” Associated Press, August 22, 2007.
21. Spencer S. Hsu, “FEMA Official Apologizes for Staged Briefing with Fake Reporters,” Washington Post, October 27, 2007.
22. Morris D. Davis, “AWOL Military Justice,” Los Angeles Times, December 10, 2007.
23. Steven Aftergood, “New FOIA Law Does Not Restore ‘Presumption of Opennesss,’ ” Secrecy News, January 1, 2008, http://www.fas.org/blog/secrecy/2008/01/new_foia_law_does_not_restore.html.
24. Letter from Alberto Gonzales to President Bush, August 26, 2007, http://www.usdoj.gov/archive/ag/speeches/2007/ag_resign_letter.pdf.
25. See, e.g., Glen Greenwald, “Michael Mukasey’s Role in the Jose Padilla Case,” Salon.com, September 16, 2007, http://www.salon.com/opinion/greenwald/2007/09/16/mukasey/index.html.
26. See, e.g., Charlie Savage, “AG Nominee Assured Senate Panel of His Independence,” Boston Globe, October 18, 2007.
27. Charlie Savage, “Control Sought on Military Lawyers,” Boston Globe, December 15, 2007.
28. Charlie Savage, “Military Cites Risk of Abuse by CIA,” Boston Globe, August 25, 2007.
29. John Yoo and Glenn Sulmasy, “Challenges to Civilian Control of the Military: A Rational Choice Approach to the War on Terror,” UCLA Law Review, vol. 54, 2007, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1030761.
30. Charlie Savage, “Military Lawyers Stay Unbridled,” Boston Globe, December 19, 2007.
31. Charlie Savage, “Bush Plan for Iraq Would Be a First,” Boston Globe, January 25, 2008.
32. Charlie Savage, “Bush Asserts Authority to Bypass Defense Act,” Boston Globe, January 30, 2007.
33. Josh Gerstein, “ ‘Jerusalem, Israel’ Passport Lawsuit Thrown Out Again,” New York Sun, September 20, 2007.
34. See, e.g., Charlie Savage, “Candidates on Executive Power: A Full Spectrum,” Boston Globe, December 22, 2007. The full text of the answers are online only; Obama’s are at http://www.boston.com/news/politics/2008/specials/CandidateQA/ObamaQA.
35. Goldsmith, Terror Presidency, 140.
36. Jack Balkin, “Are the Parties Dividing over Executive Power?” Balkinization, December 28, 2007, http://balkin.blogspot.com/2007/12/are-parties-dividing-over-executive.html.
In this undated photo, White House chief of staff Dick Cheney speaks with President Gerald Ford in the Oval Office. Ford—and Cheney with him—came to power in the wake of Watergate and the Vietnam War as Congress moved to rein in the “imperial presidency.” (GERALD R. FORD PRESIDENTIAL LIBRARY)
Secretary of Defense Cheney and General Colin Powell watch President George H. W. Bush speak at Arlington National Cemetery on November 16, 1990, during the run-up to the Gulf War. Cheney urged Bush to launch the war without getting congressional approval, but Bush rejected Cheney’s advice. (DEPARTMENT OF DEFENSE, DEFENSE VISUAL INFORMATION CENTER)
During the terrorist attacks of September 11, 2001, Vice President Cheney and senior staff retreat to the White House bunker. Cheney authorized the military to shoot down any remaining hijacked planes, claiming that he had prior authorization from President George W. Bush to give such an order. The 9/11 Commission, however, found no documentary evidence for the alleged phone call with Bush. (WHITE HOUSE PHOTO BY DAVID BOHRER)
President Bush shakes Vice President Cheney’s hand as they are sworn in for a second term on January 20, 2005. During preparations for the second inauguration, Cheney said he believed that the proper power of the presidency was finally being restored. (WHITE HOUSE PHOTO BY PAUL MORSE)
David Addington, a close aide to Cheney since the days of the Iran-Contra investigation, was the dominant leader of the Bush administration’s legal team. (WHITE HOUSE PHOTO BY DAVID BOHRER)
John Yoo, a deputy in the Justice Department’s Office of Legal Counsel, wrote secret advisory opinions concluding that neither statutes nor treaties can bind the hands of the commander in chief. (UNIVERSITY OF CALIFORNIA, BERKELEY, SCHOOL OF LAW, PHOTO BY JIM BLOCK)
Jack Goldsmith, who became the head of the Office of Legal Counsel in the fall of 2003, tried to roll back some of the most aggressive assertions of presidential power, including secret memos claiming that the commander in chief can set aside antitorture laws. (HARVARD LAW SCHOOL)
The “enemy combatant” policy, under which the president claimed the power to imprison people indefinitely and without a trial or legal rights, began as a way to detain and interrogate foreigners held at Guantánamo without obeying the Geneva Conventions. (DEPARTMENT OF DEFENSE, DEFENSE VISUAL INFORMATION CENTER)
Within months, the enemy combatant policy spread to U.S. citizens arrested and imprisoned on U.S. soil, as in the case of Jose Padilla. (STILL FRAME FROM DEPARTMENT OF DEFENSE VIDEO, ENTERED INTO COURT RECORD, UNITED STATES V. JOSE PADILLA)
President Bush congratulates his former counsel and longtime friend Attorney General Alberto Gonzales after he was sworn in as the nation’s top law enforcement official on February 14, 2005. During Gonzales’s confirmation, he let slip the previously secret conclusion by the administration’s legal team that the commander in chief need not obey the Convention Against Torture overseas. (WHITE HOUSE PHOTO)
President Bush announces on May 8, 2006, the nomination of General Michael Hayden (right) to be the new CIA director as the director of National Intelligence, John Negroponte, looks on. According to Bush, Hayden—who headed the military’s National Security Agency on 9/11—proposed the program in which the president authorized the NSA to wiretap on U.S. soil without warrants, bypassing a 1978 surveillance law. (WHITE HOUSE PHOTO BY PAUL MORSE)
Using such stresses as sleep disruption and physical exhaustion—techniques adapted from torture-resistance training—American interrogators pressure this hooded and shackled prisoner to provide information about the insurgency. Coercive interrogation techniques were routinely employed after the Bush legal team declared that presidential power trumps the Geneva Conventions and other rules against treating detainees harshly. These previously unpublished photographs were taken in Iraq in the summer of 2003 and provided by a source with firsthand knowledge of the event. (AUTHOR’S FILES)
On December 15, 2005, President Bush invites Republican senators John McCain and John Warner (left) to the White House in order to declare that he is wholeheartedly accepting a new no-loopholes torture ban—even though he had earlier threatened to veto it. Fifteen days later, Bush would issue a signing statement claiming the right to bypass the law. (WHITE HOUSE PHOTO BY PAUL MORSE)
President Bush shakes hands with Arlen Specter, the chairman of the Senate Judiciary Committee, after signing the USA Patriot Improvement and Reauthorization bill on March 9, 2006. Hours later, Bush would issue a signing statement declaring that he could ignore oversight provisions in the bill, prompting Specter to ask, “What’s the point of having a statute if the president can cherry-pick what he likes and what he doesn’t like?” (WHITE HOUSE PHOTO BY KIMBERLEE HEWITT)
President Bush congratulates the future chief justice of the Supreme Court, John Roberts, after announcing Roberts’s nomination on July 19, 2005. As a young lawyer in the Reagan administration, Roberts came of age marinating in disputes over executive power from the White House’s vantage point. (WHITE HOUSE PHOTO BY ERIC DRAPER)
President Bush listens to future Supreme Court justice Samuel Alito acknowledge his nomination on October 31, 2005. Another former Reagan administration lawyer, Alito gave a speech to the Federalist Society in 2000 affirming his allegiance to the Unitary Executive Theory. (WHITE HOUSE PHOTO BY PAUL MORSE)
Contents
Front Cover Image
Welcome
Dedication
1. Inside the Bunker
2. The Fall of the Imperial Presidency and the Rise of Dick Cheney: 1789–1976
3. “A Cabal of Zealots”: 1977–2000
4. The Agenda
5. “Behind Closed Doors”: Secrecy I
6. The Unleashing: Laws and Treaties I
7. “A Hollow Shell”: Secrecy II
8. Pushback and Purge: Laws and Treaties II
9. The Torture Ban
10. Power of the Pen: Signing Statements
11. “To Say What the Law Is”: The Supreme Court
12. Centralize and Control: The Executive Branch
13. The Politics of Presidential Power
Afterword
Acknowledgments
Notes
Photo Insert
About the Author
Praise for Charlie Savage’s Takeover
Copyright
About the Author
Pulitzer Prize–winning journalist Charlie Savage is a Washington correspondent for the Boston Globe. He covers national legal affairs with a focus on issues related to counterterrorism and executive power.
A native of Fort Wayne, Indiana, Savage graduated summa cum laude from Harvard College in 1998. He began his career as a local government and politics reporter for the Miami Herald. Savage later earned a master’s degree from Yale Law School while on a Knight Foundation journalism fellowship. He joined the Boston Globe’s Washington bureau in the fall of 2003.
Savage’s work on the Bush-Cheney administration’s signing statements and other efforts to expand presidential power has been widely recognized. In addition to the 2007 Pulitzer Prize for National Reporting, he has received the American Bar Association’s Silver Gavel Award and the Gerald R. Ford Prize for Distinguished Reporting on the Presidency. Moreover, in 2007 the bipartisan Constitution Project bestowed its inaugural Award for Constitutional Commentary on Takeover.
Savage lives in Washington, DC, with his wife, the journalist Luiza Ch. Savage, and their son, Will. He can be reached at charlie.savage@gmail.com.
Praise for Charlie Savage’s
TAKEOVER
The Return of the Imperial Presidency and the Subversion of American Democracy
Selected by Esquire as one of the year’s “five best reads”
Selected by Slate as one of the year’s best books
“Savage has all the goods, with a real narrative flair and deep, factual detail that prompts alternate bouts of despair and rage at what has been done to American honor and the rule of law these past few years. Do yourself a favor: Read the book.”
—Andrew Sullivan, The Atlantic
“Astute and harrowing…. A book that is important reading for anyone interested in how the current administration has amped up presidential power while trying to undermine Congress’s powers of oversight and the independence of the judiciary…. This volume is distinguished by [the author’s] ability to pull together myriad story lines into a succinct, overarching narrative that is energized by [his] own legal legwork and interviews with key figures…. Mr. Savage not only situates moves made by the current administration in historical perspective with earlier assertions of unilateral presidential power, but also shrewdly assesses those moves in terms of mainstream constitutional scholarship…. At the end of this chilling volume Mr. Savage offers a concise and powerful conclusion: ‘The expansive presidential powers claimed and exercised by the Bush-Cheney White House are now an immutable part of American history—not controversies but facts. The importance of such precedents is difficult to overstate.’ ”
—Michiko Kakutani, New York Times
“Scrupulously researched.”
—Christopher Dickey, Newsweek
“In his illuminating and biting new book, Charlie Savage shows how Cheney has emerged as Bush’s Richelieu, the most powerful vice president in history.”
—James Bamford, Washington Post Book World
“A compelling tale that examines Bush’s and especially Cheney’s apparent obsession to expand the limits of presidential power to near-monarchical control…. Savage presents explanations that have been previously missing in political discourse. Takeover, written clearly and documented meticulously, will doubtless appeal to the Jon Stewart Daily Show crowd, providing yet another rallying cry to opponents of the Bush administration.”
—Dinesh Ramde, Associated Press
“A sobering and significant assessment of what the Bush-Cheney administration has done to the system of checks and balances so crucial to our constitutional democracy.”
—Laurence H. Tribe, Carl M. Loeb University Professor, Harvard Law School
“This sadly comprehensive masterpiece spares nobody in providing the context for what the Bush administration has been after…. Read it and realize that, in his careful, quiet way, Charlie Savage has described a revolution no less real than the one John Reed once watched in Moscow.”
