Takeover, page 8
Cheney’s alternate report did not make a big splash. Senator Warren Rudman of New Hampshire, the senior Republican senator on the joint Iran-Contra committee and one of the signatories to the majority report, called the rival effort “pathetic.” Cheney and the other White House allies who signed his report had, Rudman said, “separated the wheat from the chaff and sowed the chaff.”39
After the Iran-Contra hearings ended, Cheney moved quickly to ensure that fallout from the scandal did not lead to new restrictions on presidential power. When other lawmakers pushed a bill forcing presidents to notify Congress of all covert operations within forty-eight hours, the Senate passed it, but Cheney led a fight to block it in the House.
“On the scale of risks, there is more reason to be concerned about depriving the president of his ability to act than about Congress’s alleged inability to respond,” he wrote in a May 1988 Wall Street Journal column.
But something was different this time. In addition to making his usual pragmatic arguments in favor of giving the president flexibility to decide when to disclose sensitive operations to Congress, in his May 1988 column Cheney also mounted a sophisticated legal argument. He wrote that as a matter of constitutional law, Congress could decide only whether or not to fund the CIA. Once Congress provided the agency with a budget, he said, only the commander in chief could decide how to run it. If presidents had to tell Congress about all covert operations within forty-eight hours, creating the risk that a lawmaker might leak the operation’s existence, then presidents might not be able to run some operations that lasted longer. Thus, the forty-eight-hour rule was unconstitutional, he said.
“At the heart of the dispute over this bill is a deeper one over the scope of the president’s inherent constitutional power,” Cheney wrote. “I believe the president has the authority, without statute, to [order covert operations]…. Congress may not use the money power to invade an inherently presidential power.”40
The public record contains almost nothing like this coming from Cheney prior to his service on the Iran-Contra committee. In retrospect, it seems likely that the embryo of the Bush-Cheney administration’s legal strategy began incubating at the moment Cheney’s career-long drive for a policy of expansive presidential power encountered Addington’s theories. The logic of the minority views Iran-Contra report pointed toward the prospect of a total victory for “presidentialists” without the need for any more frustrating debates with Congress. Indeed, if Addington was right, then the unfettered presidential powers Cheney dreamed of already existed, regardless of what Congress said. The powers were just slumbering in wait for the day that a bold president would pick them up and wield them.
The minority views Iran-Contra report would be virtually ignored for almost two decades. Then, in December 2005, the New York Times revealed that the Bush-Cheney administration had authorized the National Security Agency to monitor Americans’ international phone calls and e-mails without warrants, violating the Foreign Intelligence Surveillance Act of 1978. As Congress erupted, Cheney told reporters that he believed the president had all the authority he needed to bypass the law based on his inherent powers as commander in chief. And he directed the reporters, if they wanted a road map to the central operating principles of the Bush-Cheney presidency, to go back and read his Iran-Contra report.41
7.
In the November 1988 presidential election, Vice President George H. W. Bush defeated Massachusetts governor Michael Dukakis for the right to succeed Reagan. Bush and his vice president, the former Indiana senator Dan Quayle, arrived in the Oval Office hobbled by a Democratic-controlled Congress whose members were still upset about the Iran-Contra scandal, and who harbored lingering suspicions that Bush himself may have known more about the illegal operation than he let on. Bush also lacked Reagan’s charismatic ability to advance his policy agenda in the face of a hostile Congress by communicating directly with the American people. Instead, the former vice president had to find other ways to advance his policies unilaterally.42
On July 27, 1989, the newly appointed general counsels of every executive branch agency received a memo from William P. Barr, the new head of the Office of Legal Counsel.* Entitled “Common Legislative Encroachments on Executive Branch Authority,” the memo laid out the top ten ways in which Congress tried to meddle with powers that should be the president’s alone. Among them were “4. Micromanagement of the Executive Branch,” “5. Attempts to Gain Access to Sensitive Executive Branch Information,” and “9. Attempts to Restrict the President’s Foreign Affairs Powers.”
Perhaps the most startling part of the memo was its unqualified support for the Unitary Executive Theory, despite its 7–1 defeat at the hands of the Supreme Court just a year earlier. Barr also reiterated the belief that the Constitution required the executive branch to speak “with one voice”—the president’s—and told the general counsels to watch out for any legislation that would protect executive branch officials from being fired at will by the president. He also said the administration should try to narrow the impact of the ruling by arguing that the Court’s reasoning applied only to independent counsels. “Only by consistently and forcefully resisting such congressional incursions can executive branch prerogatives be preserved,” Barr wrote.43
“Never before had the Office of Legal Counsel… publicly articulated a policy of resisting Congress,” Georgia State law professor Neil Kinkopf, who worked in the Office of Legal Counsel during the Clinton years, later wrote. “The Barr memo did so with belligerence, staking out an expansive view of presidential power while asserting positions that contradicted recent Supreme Court precedent. Rather than fade away as ill-conceived and legally dubious, however, the memo’s ideas persisted and evolved within the Republican Party and conservative legal circles like the Federalist Society.”44
Bush adopted a relatively measured approach to a president’s power to act independently of the will of Congress. But one of his most fiery moments in defense of presidential power came in a speech on May 10, 1991, at the dedication ceremony for a new social sciences complex at Princeton University. “The most common challenge to presidential powers comes from a predictable source… the United States Congress,” Bush declared, accusing lawmakers of trying to “micromanage” executive branch decisions, especially in foreign policy.45 In the fifteen-minute speech, Bush denounced Congress for trying to accumulate power at the president’s expense by making excessive demands for information and by “writing too specific directions for carrying out a particular law.” He said that six of the twenty vetoes he had cast to that date were to defend the presidency against such meddling. And he criticized lawmakers for passing complex bills full of earmark provisions for unjustifiable expenditures like “a federal grant to study cow belches,” demanding that Congress give him a line-item veto.
But at Princeton, as he consistently did elsewhere, Bush tempered his remarks. “The great joy and challenge of the Office I occupy,” he said, “is that the President serves, not just as the unitary executive, but hopefully as a unifying executive.”
That moderation meant that the first President Bush eschewed some of the more extreme suggestions he received from his advisers. Among those pushing him was Cheney, whom Bush had tapped to be his secretary of defense in 1989.
8.
In March of 1989, Representative Cheney was preparing to deliver a talk at a conference sponsored by the American Enterprise Institute, a conservative think tank, about what he called “congressional aggrandizement” and “congressional overreaching in foreign policy.” In a forty-two-page essay submitted ahead of time to AEI, Cheney argued that “the legislative branch is ill-equipped to handle the foreign policy tasks it has taken upon itself over the past 15 years.”46 Cheney urged his readers to look up the minority views report of the Iran-Contra committee. But he said he wanted to get beyond the legal arguments over the possible meanings of the “parchment document” and explain why, for pragmatic and “real world” reasons, he endorsed an interpretation that gave stronger powers to the president and a lesser role for Congress.
As a leak-prone 535-member body, he said, Congress is simply not capable of acting with the speed, secrecy, and decisiveness of a single president. Moreover, since the majority of its members have to stand for reelection in the next two years, they are looking for “quick results—something to show the voters before the next election.” As such, he said, Congress cannot be trusted to make important decisions affecting national security and foreign policy. “When Congress steps beyond its capacities, it takes traits that can be helpful to collective deliberation and turns them into a harmful blend of vacillation, credit-claiming, blame avoidance and indecision,” Cheney wrote.
Any rule in which the body of elected representatives must reach a consensus about whether it is a good idea to launch a covert or military attack, Cheney said, would diminish the likelihood of the proposed attack’s going forward. Thus, “the real world effect often turns out, as Caspar Weinberger has said, not to be a transfer of power from the President to Congress, but a denial of power to the government as a whole.” (Weinberger had been secretary of defense under Reagan and was indicted for perjury as part of the Iran-Contra scandal.)
Based on this principle, Cheney went on to argue that the president must have total and exclusive control of the nation’s diplomacy, decisions over launching covert operations and determining when it is safe to tell Congress about them, and decisions about launching military attacks against a foreign enemy. Once Congress learns about an action, Cheney said, they can still check the president: If lawmakers disagree with what the president has done, they can vote to cut off funds for any ongoing operation when they pass the next year’s budget. But if Congress “does not have the will to support or oppose the president definitively,” he added, then “the nation should not be paralyzed by Congress’ indecision.” Therefore, Cheney called for the repeal of the War Powers Resolution—the 1973 law that required the president to both consult with Congress before going to war and pull out of any combat after sixty days if Congress had not explicitly authorized the operation to continue. The law was both “unworkable and of dubious constitutionality,” Cheney said, adding, “I cannot accept such a limited view of the president’s inherent constitutional powers.”
Cheney never delivered his talk. As he was writing the paper, the Senate was in tumult over Bush’s first choice to be the new secretary of defense, former Texas senator John Tower. After Tower was accused of having questionable ties to defense contractors, his nomination failed. A week before the American Enterprise Institute conference, Cheney got a phone call from the White House. They needed a replacement defense secretary nominee who could get easily confirmed, and they wanted the House minority whip to take the job. Cheney bowed out of the conference, shelving his sharp-tongued comments, and easily won confirmation by the Senate. When he left Congress for the Pentagon, he took Addington with him as his top aide.
As defense secretary, Cheney would soon get a chance to oversee military action. In December 1989, Bush ordered U.S. troops to intervene in Panama, where they arrested strongman leader Manuel Noriega. Bush cited several justifications for the invasion, including the protection of American citizens in the Canal Zone, the restoration of democracy in Panama, and Noriega’s links to drug trafficking. Bush did not go to Congress for authorization, but U.S. troops involved in the combat began pulling out again by January 1990, well before the War Powers Resolution’s sixty-day clock was up.
After Saddam Hussein invaded Kuwait in August 1990, Bush sent five hundred thousand U.S. troops to Saudi Arabia—more than ten times as many as had been involved in Panama. The United Nations Security Council voted to approve the use of force to liberate Kuwait if diplomacy failed. But Congress had not voted to authorize the United States to participate in any war, as both the Constitution and the War Powers Resolution required. Nevertheless, Cheney urged Bush to launch the Gulf War without asking Congress for authorization. He told Bush that it was unnecessary and too risky to seek a vote in Congress, where both chambers were dominated by Democrats.
“I was not enthusiastic about going to Congress for an additional grant of authority,” Cheney recalled for a 1996 documentary on the Gulf War. “I was concerned that they might well vote ‘no’ and that would make life more difficult for us.”47
By urging Bush to ignore the War Powers Resolution on the eve of the first major overseas ground war since Congress enacted the law, Cheney was attempting to set a powerful precedent. Had Bush taken his advice and survived the political fallout, the Gulf War would have restored Truman’s 1950 claim that as president he had “inherent” power to send American troops to the Korean War on his own.
But the president rejected his defense secretary’s advice. Although Bush continued to insist that he had the authority to launch the war on his own, in January 1991 the president asked Congress for a vote in “support” of the use of force against Iraq. Bush won the authorization vote—barely. The margin in the Senate was 52–47. Had Congress voted no, Cheney later said, he would have urged Bush to ignore them and launch the Gulf War anyway. “From a constitutional standpoint, we had all the authority we needed,” he argued.48
As the Gulf War proceeded, Cheney fought with Congress on other fronts. The defense secretary thwarted Congress by refusing to issue contracts for the V-22 Osprey, a plane that was plagued with technical problems. Cheney opposed the V-22 program, but Congress decided to appropriate funds for it anyway. By refusing to issue contracts, Cheney revived the Nixon-era tactic of “impounding” funds, declining to spend money Congress had appropriated for programs that he didn’t like. In fact, Congress had passed a law in 1974 to ban impoundment, but Cheney—who believed the anti-impoundment law unconstitutionally infringed on executive power—was ignoring it.
Further in defiance of Congress, Cheney also pushed to impose greater political control over uniformed military. During the run-up to the Gulf War, the civilian general counsel of the army, William James Haynes II, clashed with the army’s top uniformed lawyer, a two-star general, over whose office should control legal issues that might arise from the war, such as the handling of any contaminated bodies of soldiers who might be killed by Iraqi biological weapons. Jim Haynes, a protégé of Addington, pressed for greater executive power over the army. In 1991, Cheney formally asked Congress to change the law to place all military attorneys under the control of civilian political appointees. Congress rejected Cheney’s proposal. But in March 1992, Cheney’s deputy issued an administrative order making the changes anyway.
Cheney’s fights with Congress over the V-22 Osprey contracts and the independence of the uniformed lawyers came to a head in the summer of 1992, when Addington appeared before the Senate Armed Services Committee for a confirmation hearing. Addington had been Cheney’s personal aide for the first three years of his tenure at the Pentagon, controlling what papers reached the secretary’s desk and fighting internal battles with military brass. Colonel Lawrence Wilkerson, who served as chief of staff to General Colin Powell, the chairman of the Joint Chiefs of Staff during Cheney’s tenure as defense secretary, said Addington had developed a reputation around the Defense Department as an intense bureaucratic infighter devoted to concentrating ever more authority in Cheney’s office. “Addington was a nut,” Wilkerson recalled. “That was how everybody summed it up. A brilliant nut, perhaps, but a nut nonetheless.”49 Now Cheney wanted Addington to become the Defense Department’s general counsel, a position that required Senate confirmation.
On July 1, 1992, Addington, for the first and only time in his career in government service, had to answer in public to an authority other than Cheney. He endured a rocky confirmation hearing as one senator after the next used his appearance to express their displeasure with Cheney’s policies. Throughout, he calmly defended himself by denying that he and Cheney had any intent to defy Congress.
“How many ways are there around evading the will of Congress? How many different legal theories do you have?” Senator Carl Levin, Democrat of Michigan, thundered at Cheney’s aide.50
“I do not have any, Senator,” replied Addington.
Eventually, Addington was confirmed, but only after promising that the Pentagon would restore the military lawyers’ independence and issue V-22 contracts as quickly as possible. His tenure as the top lawyer at the Defense Department was brief. That November, Bush lost the 1992 presidential election to Arkansas governor Bill Clinton and his running mate, Tennessee senator Al Gore. Once again, Cheney was out of a job.
9.
The tenure of President Clinton, like that of Carter before him, showed that presidential power is not a partisan issue. As the Clinton-Gore administration sought to advance its generally liberal policy agenda—especially after conservative Republicans retook Congress in 1995—the White House used the tools of unilateral presidential power it inherited from Republican administrations. As one scholar has written, Clinton’s legal team was “relatively cautious in its assertion of executive power, with a little more respect for congressional prerogatives, but it still mostly embraced the Reagan and Bush administrations’ views” of its rightful powers.51
Early in his presidency, Clinton refused to release documents showing who had attended meetings of First Lady Hillary Clinton’s task force on reforming the nation’s health-care system. The move presaged a later fight by Vice President Cheney to keep his similar energy task force records secret. But unlike Cheney, Clinton eventually reversed course and agreed to release the names.52 Clinton also reversed a Reagan-Bush clampdown on the Freedom of Information Act, ordering government agencies to comply with requests by the public for documents if possible. And he ordered a massive review of classified documents, resulting in the release to historians of numerous government files.
