How the judges are checking emperor Cheney
By Bruce Fein, 07/24/2007
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. The Founding Fathers were suspicious of the likes of Mr Cheney. They believed that since men were not angels, checks and balances through a separation of powers were indispensable to frustrating both tyranny and folly. Congress, the president and the Supreme Court were expected to police one another. The makers of the constitution believed that sunshine is the best disinfectant. Accordingly, Congress was crowned with authority to oversee the executive branch for lawlessness or maladministration by examining presidential communications. 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.
The author is a constitutional attorney at Bruce Fein & Associates and chairman of the American Freedom Agenda. He is author of the forthcoming book, Constitutional Peril: The Life and Death Struggle for the Constitution and Democracy
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