Cheney’s Law

Last night I watched the Frontline story entitled Cheney’s Law. If half of that is true, any real patriot would be pissed off at the monstrous power grab Dick Cheney, David Addington, and John Yoo have tried to execute on behalf of the executive. I paraphrase, but essentially what these chowderheads are arguing is that the President gets to be a king and there’s not a damn thing Congress can do about it so long as the President mutters the terms “commander-in-chief” or “war” every so often. It’s been dressed up under the moniker “unitary executive theory” but I don’t see any practical limitations that distinguish it from monarchy.

Torturing prisoners even when American law says you can’t? It’s fine if the President says go ahead (alternately, you can go all Humpty-Dumpty and re-name torture as “enhanced interrogation”.) Tap Americans telephone calls? Sure. Throw Americans into prisons without charges? You bet. The Frontline segment pointed out that there really didn’t seem to be anything in the unitary executive theory that would stand in the way of the President deploying troops on American soil at any time for any reason he or she sees fit.

I should mention at this point that I seem to have misjudged former Attorney General John Ashcroft. I strongly disagree with him on any number of policy matters, but at some fundamental level I believe we agree on how this democratic republic ought to be governed. This was demonstrated by the hospital room interlude. The saga essentially went like this. Cheney and the White House created the NSA wiretap program which had to be re-certified periodically by the Attorney General, Ashcroft at the time. Apparently John “Dr. Yes” Yoo at the DOJ’s Office of Legal Counsel had been rubber stamping anything Cheney and Addington had sent his way, including the NSA program. At some point, the head of Office of Legal Counsel position came open. Ashcroft did not appoint Yoo to the position because he felt that he was too much under the sway of the Vice President and the White House. Instead, he appointed Jack Goldsmith. Goldsmith reviewed the wiretap program and determined that it was unconstitutional. He passed his concerns along to Ashcroft’s second in command, James Comey, who agreed. Ashcroft had determined not to re-certify the program. Waiting until he was in a weakened state at the hospital, Alberto Gonzales and Andy Card went to the hospital to get Ashcroft’s signature. Comey and Goldsmith apparently caught wind of this and dashed off to the hospital. Ashcroft, who was in a grave state of health, nevertheless gathered his strength, articulated what was wrong with the NSA wiretap program, and stated that, in any case, Comey was the acting AG.

At this point, I figure there are three types of players in these sagas — guys like Cheney, Addington, and Yoo, people who know what they’re doing and have a profoundly anti-democratic view of the power of the executive branch; guys like Gonzales and Rove who are probably indifferent about the larger constitutional issues and simply have a short term desire to obtain power and political gain for their team; and guys like Ashcroft, Comey, and Goldsmith who have very conservative policy views but believe in the liberal democratic principles upon which our country was founded.

My understanding from my history classes is that, at the founding of this Republic, there were two major lines of thought from which we could have chosen: the first was along the lines of Thomas Hobbes Leviathan: basically, the state of nature is so nasty that you authorize one super-predator (the king) to keep the rest of the predators at bay. The King can do anything he wants, but at least you have only one thing to worry about. The other line was reflected by John Locke’s Treatises on Government in which the power of the government arises from the consent of the governed and is designed to protect individual rights of life, liberty and property. Clearly, our Founders went with Locke. They created a government of limited power with checks and balances so that one branch of government would counteract the other. Madison, et al. understood that government would be made up of men, not angels. It was therefore necessary that the government be designed such that the individual ambitions of powerful men would play against each other, limiting the damage done to society. So, it’s laughable to think that they would enact a Constitution that gave the executive such unbridled power as to have no effective check if ever the executive scares the citizenry about threats, foreign or domestic. But Cheney and his men are working hard to undermine the government created by Madison, Hamilton, and the rest.

Cheney, in particular, seems to have been scarred by the battles of his youth. He was a young chief of staff, in over his head during the Ford administration. Ford had to deal with the aftermath of Nixon’s criminal activities and the Congressional backlash. Apparently Cheney didn’t like being on the business end of Congressional authority. Solution: neuter the Congress and empower the executive.

And, unfortunately, there are a hardcore group of Republicans who will support him, not necessarily because they agree with him philosophically, but because Republicans are their team — much like I would cheer if the Colts were the beneficiary of a phantom pass interference call against the Patriots. Only this is our society we’re talking about, not some sort of game.

I had this post in mind when I was reviewing the local blogosphere today. In this light, one post by the Hoosier Pundit was especially annoying. It was a hooray-Republicans, boo-Democrats, jeering kind of post wherein he seemed to endorse legislation that said this:

Nothing in this Act or the amendments made by this Act shall be construed to prohibit the intelligence community from conducting surveillance needed to prevent Osama Bin Laden, Al Qaeda, or any other foreign terrorist organization from attacking the United States or any United States person.

Refusing to adopt this language, he seems to assert, reflects ambivalence on the part of Democrats for opposing al Qaeda or Osama bin Laden. The old “you’re either with us or with the terrorists” line of bullshit. Now, reading his posts, Scott seems like a pretty smart guy with his primary fault (as I see it) being too much of a team player. (And, if he wanders by here, he should feel free to speak for himself). If we could somehow look at government and legislation in isolation without knowing who would benefit, Republicans or Democrats, I suspect he and I would come to a lot of the same conclusions about what is good or bad.

There simply has to be some accountability and limits on power exerted by any segment of government. Citizens can’t become so afraid that they’re willing to abdicate their liberties and the liberties of future generations simply in return for promises of security. Where are we going to draw the line? Tapping our phones without anything like probable cause? How about seizing our property if the President alleges that having the property might help fight al Qaeda? Seizing our guns because it might help keep weapons out of the hands of terrorists? Closing down houses of worship because terrorists have been known to seek sanctuary in mosques? Is there nothing we are unwilling to sacrifice because of the spectre of those who wish us harm?

Congress needs to rein in an overreaching executive and should not be cowed by self-serving “you’re helping the terrorist” rhetoric from the President and his cronies. And citizens need to recognize the basic liberties that are at stake and value their freedom more than their safety. (Citizens also need to maintain a little perspective on the threat — at the moment, they’re a lot more likely to get killed in a car crash or by any number of more mundane threats than by a terrorist act.)