Takeover, page 54
—Charles P. Pierce, Esquire
“Takeover reads like a thriller because it is one: the story of Dick Cheney and his hapless boss pushing the presidency off its constitutional foundation.”
—John W. Dean, former Nixon White House counsel and author of Worse than Watergate
“Time was, conservatives relished their role as America’s designated worriers about concentrated and unchecked government power, especially in the uniquely potent office of the presidency. As Charlie Savage demonstrates, there are large new reasons for worrying. With meticulous reporting and lucid explanations of audacious theories invented to justify novel presidential powers, Savage identifies a growing, and dangerous, constitutional imbalance.”
—George F. Will
“Charlie Savage depicts a presidency on steroids, pumped up by Vice President Dick Cheney…. Savage has a real gift for amassing detail so as to reveal the thread that connects separate news stories. He is particularly good on the subject for which he won a Pulitzer Prize: presidential signing statements…. Savage deftly lays out the significance of this shift: Bush has used signing statements as a stealth line-item veto and along the way explicitly augmented his own powers.”
—Emily Bazelon, New York Times Book Review
“In the days of Vietnam, Americans could watch on their television screens what was happening in the jungles overseas, but only with the passage of time did they see that a second, secret war was being waged here at home—an assault upon the constitutional order. In the end, the attacks on the rule of law became as dangerous to the nation as the quagmire on the battlefield. Are we witnessing history repeating itself today? Not exactly. George W. Bush is no Richard Nixon. But there are enough parallels between then and now that unless we pay close attention, we could badly damage our historic system of governance.
“That warning emanates loud and clear from a spate of new books on the way the Bush-Cheney administration—largely out of the public eye—has seized upon the war on terror to drive an unprecedented expansion in the powers of the presidency. The best and most comprehensive of the new works is Charlie Savage’s Takeover.”
—David Gergen, Boston Globe
“A serious and scathing indictment of the ‘hidden agenda’ of the Bush administration.”
—Glenn C. Altschuler, Baltimore Sun
“Takeover shines much-needed light on how the notion of the rule of law has changed so dramatically in America, and why it has happened with so little comment.”
—Dahlia Lithwick, Slate
“Until Takeover, no one has pieced together in such readable prose the systematic effort at constitutional revolution pressed by the Bush-Cheney administration since September 11. With this definitive account, a prizewinning journalist paints a chilling vision of an Imperial Vice-Presidency and the officials who built it. You will not put this book down until Savage snaps the last piece of the puzzle into place.”
—Harold Hongju Koh, Dean, Yale Law School, and former Assistant Secretary of State for Human Rights
“The past couple of years have seen a deluge of books taking on the Bush administration and its dismal legacy. The subject is certainly inexhaustible, but it raises the possibility of ‘outrage fatigue’ setting in. It would be unfortunate if Charlie Savage’s Takeover were to get lost amid the glut of material. A masterful work of investigative journalism, Savage’s book deserves to be remembered as one of the key texts of the Bush years…. In Savage’s telling, the Bush administration has engineered nothing less than a wide-ranging power grab, asserting its primacy on issues ranging from the momentous (torture, wiretapping, executive privilege) to the trivial (the hiring of interns)…. In the current administration, exploiting 9/11 and a supine Republican Congress, the Bush-Cheney White House has pushed through a series of policies and precedents that, seen as a whole, can only be described as radical. Savage probes the litany of constitutionally questionable episodes: illegal wiretapping, military tribunals, withdrawal from treaties, the firing of U.S. attorneys, politically motivated hirings, and the broadening of executive privilege, among others…. Takeover’s unique contribution is to put all of these moves into a coherent ideological framework: the expansion of presidential power, as envisioned by the conservative movement…. In the example it sets, Takeover also functions as a reproach of a press corps whose complacency greased the tracks for the dismantling of a balanced constitutional order. Savage is that rarity in a Washington journalist, an assiduous digger who isn’t content with playing court stenographer. When Savage’s Pulitzer Prize was announced, his editor, Martin Baron, noted, ‘What Charlie does and the reason he won this richly deserved Pulitzer is because he covered what the White House does, not just what it says.’ If only more of his peers followed his fine example.”
—Elbert Ventura, San Francisco Chronicle
“Charlie Savage is one of America’s best reporters, and this is an incredibly important book. It’s absolutely must reading for anybody who cares about preserving our constitutional system of government and understanding how seriously that system has been threatened.”
—Mickey Edwards, former Republican congressman and former national chairman, American Conservative Union
“Savage pulls together so many anecdotes in such a well-organized manner that all readers—Republicans, Democrats, Independents, and nonparticipants—are quite likely to realize more starkly than ever before that Bush and Cheney have expanded presidential authority in several directions…. He sets out facts in a compelling manner, letting readers decide how to evaluate the information.”
—Steve Weinberg, Oregonian
“A meticulously reported and lucidly recorded account of the executive quasi-coup that is likely to be the Bush administration’s domestic legacy.”
—Timothy Rutten, Los Angeles Times
“Every American concerned about the erosion of checks and balances in our constitutional system should read this book—and weep.”
—Norman J. Ornstein, Resident Scholar, American Enterprise Institute
“A muscular piece of prose…. A solid and deeply troubling piece of reporting. Any readers who doubt that presidencies have become imperial should test their skepticism against it.”
—Charles Truehart, Bloomberg News
“A sober warning of the Bush administration’s tragic overreaction to the undoubted perils of our troubled age.”
—Richard A. Epstein, James Parker Hall Distinguished Service Professor of Law, University of Chicago Law School, and Peter and Kirsten Bedford Senior Fellow, the Hoover Institution
“This incisive analysis of congressional and judicial efforts to check the administration’s power grabs adds up to a searing indictment.”
—Publishers Weekly
“Charlie Savage’s Takeover is an essential, fully documented account—and warning—of how the Bush-Cheney presidency has subverted the separation of powers and much of the rest of our rule of law, more than any other administration in our history—to the danger of our republic.”
—Nat Hentoff
* The leadership of the Office of Legal Counsel during the Bush-Quayle administration demonstrates the long-range connections of the activist conservative lawyers who have played key roles in the push to expand presidential power. Barr’s views on executive power were shaped by his experiences working as an analyst for the CIA during the Nixon and Ford administrations—including during the Church Committee’s investigation into intelligence abuses—while taking law school classes at night. Bush later promoted Barr to attorney general. Barr’s first replacement at the Office of Legal Counsel was J. Michael Luttig. Bush then nominated Luttig to be a federal appeals court judge, and Luttig would play a key role in litigation over the Bush-Cheney administration’s claims that it could hold U.S. citizens without trial as “enemy combatants.” After Luttig became a judge, he was replaced at the Office of Legal Counsel by Timothy Flanigan, who went on to become deputy White House counsel for the Bush-Cheney administration. Flanigan told the New York Times that the idea of using military commissions to try Al Qaeda detainees was first suggested by Barr in a phone call a few days after 9/11; Barr had explored using military tribunals to try terrorists a decade earlier after the Libyan-backed bombing of Pan Am flight 103 over Lockerbie, Scotland. On November 18, 2001, the Washington Post published an op-ed by Barr contending that Bush’s plan to try terrorists for 9/11-related crimes was “well grounded in constitutional law, historical precedent and common sense”; the piece did not disclose Barr’s role in creating the policy.
* Indeed, though they did not know it at the time, just a few months later the moderate Republican senator Jim Jeffords of Vermont would abruptly leave the GOP, shifting control of the chamber back to the Democrats.
* There was, in retrospect, at least one exception to this description of the papers as uninteresting. One document, later obtained by Judicial Watch, showed that Cheney’s energy task force was studying Iraqi oil fields, and the companies that had drilling rights on them, as early as March 2001, two years before the invasion of Iraq.
* Subsequent events would demonstrate that these concerns were not without merit. For example, one of the things the Patriot Act did was ease the standards by which FBI agents could seize telephone, Internet, banking, and credit-card records without having to get a warrant from a judge. The changes caused the FBI to dramatically increase its use of the warrantless seizure power, from eighty-five hundred times in 2000 to forty-five thousand times a year after the Patriot Act. And freed of judicial oversight, FBI agents would sometimes abuse their expanded powers. In March 2007, an audit by the Justice Department’s inspector general would find that the FBI had made numerous “improper and illegal” uses of its new tools. The “serious misuses” had included collecting information not permitted by the law, collecting information about people who were not proper subjects of an FBI investigation, a failure to report such errors, and undercounting its real use of the powers by as much as 20 percent in reports to Congress. “A Review of the Federal Bureau of Investigation’s Use of National Security Letters,” Department of Justice, Office of the Inspector General, March 2007, http://www.usdoj.gov/oig/special/s0703b/final.pdf.
* Supporters of the proposition that the president has unchecked powers of executive discretion in national security matters (such as the power to wiretap, indefinitely detain, torture, or wage war regardless of any acts of Congress) frequently cite a 1936 Supreme Court case, United States v. Curtiss-Wright, 299 U.S. 304. The opinion’s author, Justice George Sutherland, made reference in an aside to the supposed “plenary and exclusive power of the President as the sole organ of the federal government in the field of international relations—a power which does not require as a basis for its exercise an act of Congress.” Curtiss-Wright enthusiasts, however, often fail to acknowledge that Sutherland’s remark was dicta—meaning that it was not necessary to the ruling and so has no legal effect. Moreover, many scholars agree that Sutherland was misquoting his own source, a remark made in 1800 by then-representative John Marshall in a House debate. In context, most scholars say, it is clear that Marshall was saying only that that president is the official charged with carrying out the nation’s treaty obligations to other governments and the exclusive channel for diplomatic communications. Marshall was not saying that the other two branches of government share no power over foreign relations, an idea he never espoused when he became chief justice of the Supreme Court. See, e.g., Louis Fisher, “The ‘Sole Organ’ Doctrine,” Studies on Presidential Power in Foreign Relations, The Law Library of Congress, August 28, 2006.
* In the months that followed, the GOP-led Congress would also largely abdicate its responsibility to hold oversight hearings on the executive branch’s planning for the war and especially the occupation that would follow it. One notable and rare exception was the Senate Foreign Relations Committee under the chairmanship of Senator Richard Lugar of Indiana, but the administration largely ignored his efforts.
* The Office of Legal Counsel would go for years without a confirmed replacement for Goldsmith. In June 2005, nearly a year after Goldsmith left, President Bush nominated the attorney Goldsmith had hired to be his principal deputy, Steven Bradbury, for the position. Bradbury was a former clerk to Supreme Court justice Clarence Thomas, but he had no special expertise in national security legal issues. By the summer of 2007, the Senate had not confirmed Bradbury, who remained the office’s acting head only and therefore had far less clout or independent standing than Goldsmith had wielded.
* In a different case in June 2007, a three-judge panel on the Fourth Circuit would rule 2–1 that Bush lacked the power to hold civilians inside the United States as enemy combatants. The panel did not quarrel with the outcome of the Padilla case but held that Ali al-Marri, a citizen of Qatar being held as an enemy combatant on U.S. soil, was different from Padilla and had to be charged with a crime, held as a material witness to a grand jury investigation, or released. Marri was a computer science graduate student in Illinois who had been arrested in December 2001 by civilian authorities who accused him of credit-card fraud. On the eve of his trial, in June 2003, Bush had declared Marri to be an enemy combatant and had him transferred to a military brig. The administration said Marri had been sent as a sleeper agent by Al Qaeda to explore ways of disrupting the nation’s financial system. Following the June 2007 ruling, the Bush administration asked the full appeals court to reverse the panel’s decision. The two judges in the majority were Clinton appointees, while the dissent was a Bush appointee.
* The ABA task force’s members included several conservative Republican figures, including Mickey Edwards, a former member of Congress from Oklahoma; Bruce Fein; and William S. Sessions, a retired federal judge who was the director of the FBI under both Reagan and President George H. W. Bush. Other members included Patricia Wald, the retired chief judge of the U.S. Court of Appeals for the District of Columbia; Harold Koh, dean of Yale Law School; Kathleen Sullivan, former dean of Stanford Law School; Charles Ogletree, a Harvard law professor; Stephen Saltzburg, a George Washington University Law School professor who was a Justice Department official under Reagan and the first President Bush, as well as a prosecutor in the Iran-Contra scandal; Mark Agrast, a former legislative counsel for Representative William D. Delahunt, Democrat of Massachusetts; and Thomas Susman, who worked in the Justice Department under both Presidents Johnson and Nixon, and who was later counsel to the Senate Judiciary Committee. The task force was chaired by Neal Sonnett, a former federal prosecutor turned Miami defense attorney whose clients included Republican lobbyist Jack Abramoff.
* On August 7, 2006, the ABA House of Delegates adopted the task force’s findings as the official position of the American Bar Association as a whole. The group declared that it “opposes, as contrary to the rule of law and our constitutional system of separation of powers, the misuse of presidential signing statements by claiming the authority or stating the intention to disregard or decline to enforce all or part of a law the president has signed, or to interpret such a law in a manner inconsistent with the clear intent of Congress.”
* Meanwhile, evidence was mounting that signing statements were having a real-world impact and, increasingly, were being cited by courts. In September 2002, for example, Congress had passed a law requiring the State Department to list “Israel” as the birth country on passports for U.S. citizens born in Jerusalem. Bush issued a signing statement instructing the State Department to view the statute as an unconstitutional intrusion into his own “authority to conduct the Nation’s foreign affairs and to supervise the unitary executive branch.” A month later, an American couple in Jerusalem gave birth and applied for a U.S. passport on behalf of their son. The State Department ignored the new law, and the couple sued, setting up a rare case study in which a court had jurisdiction to hear a challenge to a legal claim arising from a signing statement. On September 19, 2007, a federal judge dismissed the case. Quoting Bush’s signing statement, he ruled that the issue was a “non-justiciable political question”—so the White House won.33
Copyright
Copyright © 2007 by Charlie Savage
Afterword copyright © 2008 by Charlie Savage
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Second eBook Edition: May 2011
ISBN: 978-0-316-01961-3
Charlie Savage, Takeover
