July 25, 2007

Sane Conservatives: They Still Exist

Bruce Fein, a real conservative, has been on fire recently. Witness today, in the opinion pages of the FT:

To borrow from Shakespeare’s Julius Caesar, upon what meat doth this our vice-president, Dick Cheney, feed that he has grown so great? Mr Cheney’s imperial vice-presidency has trampled the conservative constitutional philosophy of the Founding Fathers. He has used the law to evade checks and balances. For example, he declared himself part of the legislative branch – as president of the US Senate – to exempt his office from President George W. Bush’s order governing classified information. But days later he draped himself in the mantle of the presidency to defend the confidentiality of vice-presidential communications and claim immunity from suit for any constitutional violations.

The constitution entrusts the vice-president with a single puny chore: to preside over the Senate, without a vote except to break ties. Occupants of the vice-presidency have bewailed its insignificance. Their typical tasks have been handing out blankets after earthquakes and attending state funerals. Presidents have been characteristically jealous of their constitutional turf.

Mr Bush is a monumental exception. He entered politics not because of philosophical conviction or even a raw desire for power, but for a lack of anything better to do. His policies fluctuate like a human weather vane. Mr Bush eagerly agreed to Mr Cheney’s tacit demand that the lion’s share of the presidency be outsourced to the vice-president’s office. Unlike Mr Bush, Mr Cheney craves unchecked power....

...Chastened by his time as chief of staff in a weakened White House under President Gerald Ford after Watergate, Mr Cheney has endeavoured to aggrandise the executive at the expense of Congress and the judiciary. He has urged the people to trust the Cheney-Bush duumvirate to act wisely and benevolently.

But what about the Iraqi quagmire; Abu Ghraib; the National Security Agency’s unrestricted spying on Americans in contravention of the Foreign Intelligence Surveillance Act; the detention of citizens and non-citizens as enemy combatants on the president’s say-so alone; claiming the US as a battlefield where lethal military force can be employed to kill or maim al-Qaeda suspects; playing judge, jury and prosecutor and using secret evidence in the trials of war crimes; creating a secretive government shielded from legal or political accountability by the invocation of executive privilege or state secrets; and secretly kidnapping and imprisoning terrorist suspects abroad? To justify these misadventures and excesses, the vice-president has vastly inflated the dangers of international terrorism.

But the Cheney doctrine of an unchecked presidency is now unravelling. The Supreme Court has rebuked the executive branch over military commissions and its unfettered authority to detain citizens as enemy combatants. A federal appeals court has held that resident aliens may not be detained indefinitely as enemy combatants without accusation or trial. On Capitol Hill, Congress is demanding White House documents and witnesses pertinent to the firing of US attorneys and the legal rationale for the NSA’s spying on Americans. A popular and congressional crescendo is growing against keeping US troops in Iraq. Some Republicans are scheming to remove Mr Cheney from office prior to the November 2008 elections. And the vice-president’s approval rating is minuscule and plunging.

Congress is too timid and constitutionally illiterate to be awakened to the need to impeach Mr Cheney for his acts against the nation. Like old soldiers, he will simply fade away after the expiry of his term, but probably in disrepute. Whether any of the Cheney doctrine will survive is uncertain. The events of September 11 2001 are still distorting the judgments of many Americans and office-holders. [emphasis added]

NB: Subscription only, but I've excerpted generously.

Posted by Gregory at July 25, 2007 08:26 PM
Comments

There is a distinction here that Fein doesn't make, but that is necessary to understand how government has evolved in the last six-odd years.

It isn't a unchecked executive that the Bush administration has promoted; it's an unchecked White House. The executive branch as a whole is not only encumbered but virtually engulfed by Congressional mandates, restrictions on spending and, of course, thousands upon thousands of earmarks. Your typical government agency has more strings attached to its budget than a 10-year-old has to his allowance -- and that includes all the uniformed services, not just the civilian agencies of the government.

To some extent, that's been the deal. Congress has gotten everything it has asked for in terms of favors to disperse to voters and campaign contributors, and in exchange has agreed not to ask too many questions about the things the Vice President and his nominal chief have cared about. It's no accident Bush has vetoed fewer bills than any other modern President, or that until this year he had never vetoed a spending bill.

That's not the whole story, of course. The growth of Congressional earmarks began before Bush became President, though it didn't really explode until after 2001. And lots of Congressional oversight hasn't been done not because the administration was consciously trying to buy off Congress but because Congressmen and Senators preoccupied with fundraising and the rest of the permanent campaign just weren't interested in doing it.

Fein is right -- and this really hasn't been pointed out often enough -- that Bush is the first President in over two centuries of our history to be under the thumb of his Vice President. For most of his term he also outsourced the non-ceremonial part of his role as Commander-in-Chief to his Secretary of Defense. Any time Bush has attempted to get through Congress a difficult piece of legislation on a controversial subject, he has fallen flat on his face. These are not the hallmarks of a strong President, but of an historically weak one.

Any President facing a post-9/11 world was going to need to do some things relative to terrorism that hadn't been done before. Not all of them were going to be pretty, and not all of them were going to be right, for policy in novel situations is not made with the benefit of hindsight. However, there is something we ought to remember from the last time very expansive claims were made on behalf of Presidential authority.

Richard Nixon's was actually not an administration that diverged radically from its predecessors in the matter of Presidential authority, right up until the time that Nixon became preoccupied with concealing the criminal conduct some of his subordinates had engaged in on his orders. After that point he started making claims for Presidential authority arguable in the abstract, but in their effects plainly intended to keep criminal acts concealed.

This is what we must assume with respect to the Bush administrations far-reaching claims of executive privilege with respect to the US Attorney purge; to the Libby pardon; to stonewalling as to the Vice President's role in detainee treatment; and to just about every word that comes out of the Attorney General's mouth. Actual criminality may not exist behind every claim the President and his men make, but we are at the point where we must assume it does until we know for certain it does not.

Posted by: Zathras at July 26, 2007 05:02 AM | Permalink to this comment Permalink

People do not desire the imeachement of the Vice President because he is an unchecked force or he has acted as President behind the scenes. After all, Cheney was expected to be a strong presence in the Bush administration back in 2000, and that was actauly a source of comfort to folks who believed that W was, well, somewhat feckless. They desire it because they want the course of the Iraq War reversed. And, for that reason, impeachment is probably not the right course to persue. Instead, the right thing to do is to get at the policy issue, which can be handled more quickly, than the lengthy process of impeachment.

I understand Fein's dismay and Z's belief that something criminal is going on. But if the course of the Iraq War is going to be changed, Congress does not need to be wasting its time with complex Constitutional battles if there is a quicker way for it to do what the public wants it to do. And that, really, means moving a lot of Republicans towards opposing the President.

Posted by: Appalled Moderate at July 26, 2007 02:35 PM | Permalink to this comment Permalink

Actually, I want the impeachment of Cheney for reasons separate from Iraq policy. The issue of untrammelled executive power is separate and, in many ways, larger than Iraq. The US has waged unjust and unwise wars before, and lost wars. We can survive such things while remaining recognizably the same country. We can't likewise survive the Unitary Executive as a governing principle.

Posted by: Jim Henley at July 26, 2007 05:36 PM | Permalink to this comment Permalink

Jim Henley:

The perfect can be the enemy of the good. You start any impeachment battle, you bring people to the defense of the Prez and the VEEP which causes the numbers not to be there for the impeachment. The best way to deal with the unitary executive is have the ACLU and others file lawsuits and establish precedents hostile to the concept. If Cheney is impeached, say, for his use of Addington legal mythology, all you have established is that such mythology is unpopular when used to further the escapades of an unpopular Vice Presidency, not that it is grossly unconstitutional.

Also, I think an impeachment of Cheney without the impeachment of Bush, who enabled this situation, is a pointless, useless exercise. Finding a way to getting out of Iraq is a really more important for the political bodies.

Posted by: Appalled Moderate at July 26, 2007 07:36 PM | Permalink to this comment Permalink

AM raises a good point, and of course it's even worse if the impeachment fails because not enough Republicans care about the Constitution. Then we have validation of the theories.

This is intensely frustrating. But Addington/Yoo was rejected quite soundly in Hamdan, and will be rejected again when it comes up. Perhaps en banc by the Fourth Circuit (!) in Al Marri.

The legislative branch needs to step up, and the Admin's position on the Miers and Bolten subpoenas strikes me as untenable, so this might be another avenue. I was struck yesterday, at the House Committee, that Cannon and Sensenbrenner both spoke up for legislative perogatives, and the latter even said he would support a direct lawsuit by the House to enforce the subpoenas. (While opposing contempt).

Just as I've said elsewhere that there's no end in Iraq until Sen. Warner is ready to vote for an end, there's no end for Gonzales until Sen. Cornyn tells the President that the jig is up. All the conservative pundits in the world mean nothing, if these personalities can't be moved to act.

Posted by: CharleyCarp at July 26, 2007 11:04 PM | Permalink to this comment Permalink

AM raises a good point, and of course it's even worse if the impeachment fails because not enough Republicans care about the Constitution. Then we have validation of the theories.

Ummmm...... But we already know.... that THEY DON'T. So what's different?

Impeachment is the only way left to try -- *try*, mind you -- to set some counter-precedents to the horrendous precedents that *will* have been set if the Cheney criminal syndicate sails unchallenged to its scheduled finish.

Posted by: sglover at July 27, 2007 03:53 AM | Permalink to this comment Permalink

Impeachment is the only way left to try -- *try*, mind you -- to set some counter-precedents to the horrendous precedents that *will* have been set if the Cheney criminal syndicate sails unchallenged to its scheduled finish.

We disagree on this. I think there are a number of items on the menu, and that ordering the one item we know we don't have the money to buy is worse than useless.

I'm beginning to wonder, also, whether the Administration isn't trying to draw an impeachment. As a way of rallying the Base, and maybe winning over some significant portion of independents. (Having decided that Plan A for doing so, comencement of hostilities with Iran, is really not a good idea).

Posted by: CharleyCarp at July 27, 2007 02:13 PM | Permalink to this comment Permalink

Correct me if I misread somehow, but the assumption in the debate in the Federalists, was that it was dangerous to allow the President the power to pardon, but that it would be risked with the trust that Congress would swiftly impeach any rascal black enough to pardon his own criminal staff.

Posted by: Jose Franklin at July 27, 2007 02:20 PM | Permalink to this comment Permalink

The problems with Cheney-Bush are much deeper.

Bruce Fein & John Nichols make excellent points about impeaching both of them on Bill Moyers 13 July program: http://www.pbs.org/moyers/journal/07132007/profile.html

Posted by: Michael G at July 27, 2007 06:29 PM | Permalink to this comment Permalink

"You start any impeachment battle, you bring people to the defense of the Prez and the VEEP which causes the numbers not to be there for the impeachment."

Like Bradlee said to Woodweird and Bernstein, "If you aim too high and miss, the rest feel safer" (paraphrased)

Congress needs a talking head to start the ball rolling. But they first need some intestinal fortitude.

Posted by: Semanticleo at July 28, 2007 02:52 PM | Permalink to this comment Permalink

If they're going to start the impeachment ball rolling, they should start with someone who even the Republicans are tired of. So Gonzales should go first.

Posted by: Cheryl at July 29, 2007 01:54 AM | Permalink to this comment Permalink
Like old soldiers, he will simply fade away after the expiry of his term, but probably in disrepute.
This isn't good enough for me. There needs to be real retribution and accountability against Cheney for the innumerable laws he has broken. I'm hoping that with a Democrat President in 2009 we will see a full exposure of the VP's criminality and a vigorous prosecution for his offenses. One shouldn't be allowed to violate the civil and human rights of individuals to the extent Cheney has, and get away with it. To give him a pass just because he's out of office will make a mockery of the constitution and laws this vile authoritarian swore to uphold when he became VP. And that will set a most dangerous precedent for the future. Posted by: Redhand at July 29, 2007 04:21 PM | Permalink to this comment Permalink

Shorter Concern Troll (Appalled Moderate): Why close the barn door while there are still Republicans inside? Hey! Over there! Iraq!

Posted by: racrecir at July 29, 2007 11:46 PM | Permalink to this comment Permalink

racreir: If you have the votes to convict Cheney and Bush in the Senate, please use them to stop the Iraq War first (as you will have the votes to override the Bush veto). Once that's done, go ahead and take the time to impeach the twits.

If you are functioning in the real world like the rest of us, you have to concentrate on what you really really want first. I'd think that would be get out of Iraq now. But perhaps, since you aren't in that position, you aren't as worried about who gets to be the last one to die for a mistake, and really are more concerned to see to it that Cheney gets every bit of retribution that is due him.

Posted by: Appalled Moderate at July 30, 2007 10:24 PM | Permalink to this comment Permalink

AM: your cause is noble and superficially pragmatic. We've got separate issues with separate parameters, so it does little good to conflate them. While Bush-Cheney run wild, there's little doubt that you are their best friend. Impeachment may not be the best option, but keeping it off the table is definitely a bad idea. There are other options, for example, getting a ruling on executive privilege. But Congress wouldn't want to do that; it might set a precedent. But is there any doubt that Republicans would hesitate to do what Republicans warn Democrats not to do? And would you want the Roberts Court making a decision when the person who appointed him is serving or when a Democrat is president. I'm sure the Roberts Court would make the same principled decision regardless, but just to be safe it would be better to let them decide now. Precedents are already being set, it is incumbent upon the Congress to take action now. Not contingent on soldiers coming home from Iraq, NOW. So go buy a pack of bubble gum and see if you can chew it while you're walking.

Posted by: racrecir at July 31, 2007 05:14 PM | Permalink to this comment Permalink

Every vice president in the past 30 years (with the exception of Quayle) has been described as having unprecedented power and influence in the role. As Fein points out, the position's constitutional powers are puny. Its power is limited to what the president cedes to it. If Cheney is running amok the buck stops with Bush.

Posted by: Gil Franco at August 2, 2007 12:43 AM | Permalink to this comment Permalink

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Gregory Djerejian, an international lawyer and business executive, comments intermittently on global politics, finance & diplomacy at this site. The views expressed herein are solely his own and do not represent those of any organization.


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