In reading through the second installment of the Barton Gellman and Jo Becker Cheney expose in the WaPo, this quote from Alberto Mora, former chief counsel for the US Navy kept coming to mind: “To preserve flexibility, they were willing to throw away our values.”
I remembered it from an insightful piece that Sidney Blumenthal did for Salon a while back, quoting this brilliant work of Jane Mayer in The New Yorker on the infighting that had taken place within the Department of Defense between the Rumsfeld and Cheney-installed torture proponents and the long-time military stalwarts who knew that the consequences of American forces engaging in the very behaviors that we had fought against since our nation’s inception was the sin that the world would not forgive. And that it would further endanger our men and women in uniform across the globe, along with their counterparts in the State Department and in intelligence agencies as well.
That these experienced, dedicated military legal professionals — heading up all branches of the service as well as the nation’s JAG officers and several intelligence and foreign service legal experts, were all shouted down and overruled by the likes of Dick Cheney, Scooter Libby, David Addington, Donald Rumsfeld, Stephen Cambone, and John Yoo, among others, is a testament to just how much power Dick Cheney wields with the President of the United States. And it also speaks volumes about the substantial lack of wisdom of George W. Bush.
Over the next 12 months, Congress and the Supreme Court imposed many of the restrictions that Cheney had squelched.”The irony with the Cheney crowd pushing the envelope on presidential power is that the president has now ended up with lesser powers than he would have had if they had made less extravagant, monarchical claims,” said Bruce Fein, an associate deputy attorney general under President Ronald Reagan. Flanigan, a founding member of that crowd, said he still believes that Addington and Yoo were right in their “application of generally accepted constitutional principles.” But he acknowledged that many battles ended badly. “The Supreme Court,” Flanigan said, “decided to change the rules.” Even so, Cheney’s losses were not always as they appeared.
On Oct. 5, 2005, the Senate voted 90 to 9 in favor of McCain’s Detainee Treatment Act, which included the Geneva language [Read the bill]. It was, by any measure, a rebuke to Cheney. Bush signed the bill into law. “Well, I don’t win all the arguments,” Cheney told the Wall Street Journal.
Yet Cheney and Addington found a roundabout path to the exceptions they sought for the CIA, as allies in Congress made little-noticed adjustments to the bill.
The final measure confined only the Defense Department to the list of interrogation techniques specified in a new Army field manual. No techniques were specified for CIA officers, who were forbidden only in general terms to employ “cruel” or “inhuman” methods. Crucially, the new law said those words would be interpreted in light of U.S. constitutional law. That made a big difference to Cheney.
The Supreme Court has defined cruelty as an act that “shocks the conscience” under the circumstances. Addington suggested, according to another government lawyer, that harsh methods would be far less shocking under circumstances involving a mass-casualty terrorist threat. Cheney may have alluded to that advice in an interview with ABC’s “Nightline” on Dec. 18, 2005, saying that “what shocks the conscience” is to some extent “in the eye of the beholder.”
Eager to put detainee scandals behind them, Bush’s advisers spent days composing a statement in which the president would declare support for the veto-proof bill on detainee treatment. Hours before Bush signed it into law on Dec. 30, 2005, Cheney’s lawyer intercepted the accompanying statement “and just literally takes his red pen all the way through it,” according to an official with firsthand knowledge.
Addington substituted a single sentence. Bush, he wrote, would interpret the law “in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief.”
Cheney’s office had used that technique often. Like his boss, Addington disdained what he called “interagency treaties,” one official said. He had no qualms about discarding language “agreed between Cabinet secretaries,” the official said.
Top officials from the CIA, Justice, State and Defense departments unanimously opposed the substitution, according to two officials. The ranking national security lawyer at the White House, John B. Bellinger III, warned that Congress would view Addington’s statement as a “stick in the eye” after weeks of consensus-building by national security adviser Stephen J. Hadley.
None of that mattered. With Cheney’s weight behind it, White House counsel Harriet E. Miers sent Addington’s version to Bush for his signature. “The only person in Washington who cares less about his public image than David Addington is Dick Cheney,” said a former White House ally. “What both of them miss is that ….. in times of war, a prerequisite for success is people having confidence in their leadership. This is the great failure of the administration — a complete and total indifference to public opinion.”
Here’s a good question for everyone this morning: who exactly are these “allies in Congress” — because I think that the American public is entitled to know who, exactly, sold out the nation’s morality and commitment to the rule of law for the Dick Cheney stamp of approval. Orrin Hatch? Pat Roberts? Pete Hoekstra? Joe Lieberman? How many more? I want names, and I want them yesterday.
Go back and read the Mora piece that Jane Mayer did back in February of 2006. And couple that reading with this equally exceptional piece that Mayer did on David Addington from July of 2006. There was a particular segment in that piece that explained so much of the Cheney and his loyal minions mentality — because it is not fully available online at The New Yorker site, I want to share it with you here:
Addington has proved deft at outmaneuvering his critics. Documents embarrassing to Addington’s opponents have been leaked to the press, if not necessarily by him. A top-secret N.S.C. memo describing Powell’s request to reconsider the suspension of the Geneva Conventions appeared in the Washington Times the day after it was circulated to the Secretary of Defense, the Attorney General, and the Vice-President; the article cited unnamed sources who accused Powell of “bowing to pressure from the political left.” The Administration lawyer said, “The way Addington works, he controls the flow of information very tightly.” Addington chastised a Justice Department official who showed a legal opinion on the treatment of detainees to the State Department. He repeatedly directed Gonzales, the White House counsel, to keep Bellinger, the N.S.C. lawyer, out of meetings about national-security issues. “Lip-lock” is the word Addington’s old Pentagon colleague Sean O’Keefe, now the chancellor of Louisiana State University, used to describe his discretion. “He’s like Cheney,” O’Keefe said. “You can’t get anything out of him with a crowbar.” The Administration lawyer said, “He’s a bully, pure and simple.” Several talented top lawyers who challenged Addington on important legal matters concerning the war on terror, including Patrick Philbin, James Comey, and Jack Goldsmith, left the Administration under stressful circumstances. Other reform-minded government lawyers who clashed with Addington, including Bellinger and Matthew Waxman, both of whom were at the N.S.C. during Bush’s first term, have moved to the State Department.
Waxman, a young lawyer who headed the Pentagon’s office of detainee affairs, departed soon after he had a major confrontation with Addington over the issue of clarifying military rules for the treatment of prisoners. Waxman believed that international standards for the humane treatment of detainees should be followed, and argued for reforms in the Army Field Manual. He hoped to reinstate the basic standards that are specified in the Geneva Conventions. This meant the prohibition of torture, overt acts of violence, and “outrages on personal dignity, in particular humiliating and degrading treatment.” Although the Vice-President’s office is not part of the military chain of command, last September Addington summoned Waxman to his office and berated him. Waxman declined to comment on the incident, but a former colleague in the Pentagon, in whom Waxman confided, said that Addington accused Waxman of wanting to fight the war on terror his own way, rather than the President’s way. The Army Field Manual still hasn’t been revised, and, according to those involved, Addington and his protégé Haynes remain the major obstacles.
Last fall, Richard Shiffrin, the Pentagon lawyer who was left out of the Administration’s initial discussions of the military commissions, learned from the Times about the Administration’s decision to sanction warrantless domestic electronic surveillance by the National Security Agency. This was remarkable, because Shiffrin was the Pentagon lawyer in charge of supervising the N.S.A.’s legal advisers. “It was exceptional that I didn’t know about it – extraordinary,” Shiffrin said. “In the prior Administration, on anything involving N.S.A. legal issues I’d have been made aware. And I should have been in this one.”
Shortly after September 11th, Addington and Cheney, without alerting Shiffrin, held meetings with top N.S.A. lawyers in the Vice-President’s office and told them that the President, as Commander-in-Chief, had the authority to override the FISA statutes and not seek warrants from the special court. According to the Times, Addington and Cheney pushed the N.S.A. to engage in practices that the agency thought were illegal, such as the warrantless wiretapping of American suspects making domestic calls. General Michael Hayden, the former head of the N.S.A., who was recently confirmed as director of the C.I.A., has denied being pressured. Shiffrin, however, doubted that the N.S.A. lawyers were expert enough in Article II of the Constitution, which defines the President’s powers, to argue back. He described the Administration’s legal arguments on wiretapping as “close calls.”
Others are more critical. Fourteen prominent constitutional scholars, representing a range of political views, recently wrote an open letter to Congress, claiming that the N.S.A. surveillance program “appears on its face to violate existing law.” The scholars noted that Bush had made no effort to amend the FISA law to suit national-security needs – he simply ignored it. The Republican legal activist Bruce Fein said, “What makes this so sinister is that the members of this Administration have unchecked power. They don’t care if the wiretapping is legal or not.” But the former high-ranking Administration lawyer suggested that the situation is more serious than an intentional infraction of the law. “It’s not that they think they’re skirting the law,” he said. “They think that this is the law.”
Fein suggested that the only way Congress will be able to reassert its power is by cutting off funds to the executive branch for programs that it thinks are illegal. But this approach has been tried, and here, too, Addington has had the last word. John Murtha, the ranking Democrat on the House Appropriations Subcommittee on Defense, put a provision in the Pentagon’s appropriations bills for 2005 and 2006 forbidding the use of federal funds for any intelligence-gathering that violates the Fourth Amendment, which protects the privacy of American citizens. The White House, however, took exception to Congress’s effort to cut off funds. When President Bush signed the appropriations bills into law, he appended “signing statements” asserting that the Commander-in-Chief had the right to collect intelligence in any way he deemed necessary. The signing statement for the 2005 budget, for instance, noted that the executive branch would “construe” the spending limit only “in a manner consistent with the President’s constitutional authority as Commander-in-Chief, including for the conduct of intelligence operations.”
According to the Boston Globe, Addington has been the “leading architect” of these signing statements, which have been added to more than seven hundred and fifty laws. He reportedly scrutinizes every bill before President Bush signs it, searching for any language that might impinge on Presidential power. These wars of words are yet another battlefront between Addington and Congress, and some constitutional scholars find them troubling. Few of the signing statements were noticed until one of them was slipped into Bush’s signing of the McCain amendment. The language was legal boilerplate, reserving the right to construe the legislation only as it was consistent with the Constitution. But, considering that Cheney’s office had waged, and lost, a public fight to defeat the McCain amendment democratically – the vote in the Senate was 90-9 – the signing statement seemed sneaky and subversive.
For Cheney, as for Libby and Addington and their ilk, the rule of law is a malleable construct that is to be gotten around when it suits them, with consequences that will be dealt with if and only if someone forces their hand. We saw that time and time again in the Traitorgate investigation and the subsequent trial of Libby — everything was done to protect the secrecy requirements and the backstage power of Vice President Cheney.
“To preserve flexibility, they were willing to throw away our values.” It is, and always has been, about Cheney being able to remake the American government in his own image of what it should be. Everything in his public career — everything — has been about pushing his view of the world on everyone else. He has developed the skills necessary to achieve this goal, and understands better than most folks in Congress that legislative maneuvering can be a very powerful skill, indeed — and with a pliant GOP-controlled Congress up until this past January, he worked that angle to his advantage time and time again.
On the Administrative end, Cheney has populated agency after agency with his loyalists, including especially the national security, defense and White House apparatus, but also the lesser acknowledged State Department, Homeland Security and Department of Justice positions that are crucial back-ups to his agenda and positions. And he has enforced his mandates through a bully and purge tactic, time and time again. From Part I:
…While lawyers fought over the 2000 Florida ballot recount, with the presidential election in the balance, Cheney was already populating a prospective Bush administration. Brian V. McCormack, then his 26-year-old personal aide, said Cheney worked three cellphones from the round kitchen table of his townhouse in McLean, “making up lists” of nominees beginning with the secretaries of state, defense and the Treasury.”His focus was that we need to prepare for the event that [the recount] comes out in our favor, because we will have a limited time frame,” McCormack recalled.
Close allies found positions as chief and deputy chief of the Office of Management and Budget, deputy national security adviser, undersecretary of state, and assistant or deputy assistant secretary in numerous Cabinet departments. Other loyalists — including McCormack, who progressed to assignments in Iraq’s occupation authority and then on Bush’s staff — turned up in less senior, but still significant, posts.
In the years that followed, crossing Cheney would cost some of the same officials their jobs. David Gribben, a friend from graduate school who became the vice president’s chief of legislative affairs, said Cheney believes in the “educational use of power.” Firing a disloyal or poorly performing official, he said, sometimes “sends a signal crisply.” Cheney believes he is “using his authority to serve the American people, and he’s obviously not afraid to be a rough opponent,” Gribben said….
In order to insure that you win the game, you make your own rules up as you go along and you rig the board in your favor. Cheney is a master of behind-the-scenes manipulation — he’s picked up lessons on how to maneuver through the ins and outs of legislative details at a time when far too few on the Hill or in the White House have the patience or the intellectual curiousity to bother with something as boring as all of the details of legislative craftsmanship. He slipped through the lax attitude that is pervasive in Washington — or at least was so long as the GOP controlled Congress and acted as a rubber stamp parliament for the Bush reign. But this must end — and should have a long time ago had Democratic leaders paid close enough attention to what was being done behind the scenes and behind their backs.
The slip-in provision by a top Specter staffer (and former Hatch acolyte) alone should have been a giant wake-up call to everyone in Congress to get up off their butts and do their damn jobs. Frankly, that sort of slack-assed work ethic is as shameful as it is damaging, and it has to stop. Here was someone who was clearly attuned to the Cheney agenda, wouldn’t you say? How many more worker bees have been carefully placed in the halls of power to do the same sort of work — and how many more such slip-ins will it take before the people we elect to protect the nation’s interests actually start doing so from the get go with any and all legislative pieces that slip through the giant cracks in oversight?
“To preserve flexibility, they were willing to throw away our values.” That really says it all, doesn’t it?
(Eric Draper/AP photo via this fantastic Charlie Savage article in the Boston Globe on the Cheney role in shaping Presidential signing statements and other unitary executive power grab theories from November, 2006.)
PS — You may remember Mr. Tim Flanigan as the person who was initially proposed as a replacement for Comey when he resigned. Gee, wonder who suggested Flanigan for that position? (Oh, and to supervise Fitzgerald’s investigation…fox, meet henhouse…)