The Most Important, Unanswered Question About Cheney

Marty Lederman

Bart Gellman and Jo Becker of the Post are in the midst of publishing a terrific, very extensive set of stories on the role of the Vice President. Today's installment is about the Vice President's dominant role in determining virtually all of the Administration's responses after 9/11, especially with respect to detention, interrogation, the Geneva Conventions, and Executive power. Truth be told, there is not very much that is newly revealed in the two stories so far (with one important exception noted at the bottom of this post): They confirm the narrative that the writers on this blog, along with Jane Mayer and Sy Hersh of the New Yorker, and others, have surmised and written about for the past several years. But Gellman and Becker tell the story with flair, brio and evocative detail, and they've induced many Administration officials to confirm what we outsiders have gleaned from the tea leaves scattered throughout the documents and oblique statements that have been made public.

The dominance of Cheney within the Administration is, along with Iraq (which of course cannot itself be understood apart from the influence of the Vice President), the story of the Bush Administration. When the history books are written, the Vice President and his counsel, David Addington, will be at the forefront.

The gist of this story is that Cheney and Addington are zealously committed to certain beliefs about Executive power, about the role and understanding of statutory, treaty-based, and customary international law, and about how to prosecute the current military conflicts. They are very adept at playing and controlling the system within the Executive branch. They are unbelievably thorough and unrelenting. And they are responsible for virtually all of what you can read in the 600 or so posts over on the left-hand column of this blog.

Moreover, as we have recounted in the NSA/FISA matter and elsewhere, and as Gellman and Becker elaborate at great length, virtually any time Cheney and Addington adopt an extreme position, they are met with strong resistance from many conservatives within the Bush Administration -- including many important players at DOJ (Ashcroft, Comey, Goldmsith, Philbin, Olson, Clement, etc.), and elsewhere (Rice, Gates, Powell, Bellinger, Waxman, Kavanaugh, Berenson, etc.) Not to mention huge swaths of the intelligence agencies, the State Department, the uniformed military (especially the JAGs), et al. If you have any friends who have served in this Administration, you know that there are countless very conservative supporters of this President within the government who have constantly been at loggerheads with Cheney and Addington, and who simply cannot believe the positions adopted by (and, frequently, the terrible misjudgments of) the Vice President's office. And they are even more incredulous that those positions have, rountinely, become state policy, no matter the amount or intensity of dissent from other components of the Administration.

And yet, as Gellman and Becker relate, the Vice President does consistently prevails in the internal debates. He wins virtually every battle -- or at least bollixes things up sufficiently to prevent others from prevailing. (A good example was last week's short-lived story, when certain high-level officials leaked word of a meeting the next day at which the fate of Guantanamo was to be decided, and a consensus to close it had all but been reached -- a leak obviously designed to make the closure virtually inevitable. By that very evening, Cheney had successfully caused the meeting to be cancelled, and had stopped the "Close GTMO" forces in their tracks -- forces that included high-level players such as the Secretaries of State and Defense.)

This is the great mystery of the Bush Administration, and the question that no one, including Gellman and Becker, has answered: It's not very newsworthy that the Vice President has strongly held views, and that he fights hard for them. (So did Vice President Gore.) Nor is it even terribly notable that he is constantly opposed by others in the Administration. What is remarkable is that time and again, Cheney wins. And in so doing, he makes mincemeat of Powell, Ashcroft, Gates, Rice, etc. They are constantly beaten back -- indeed, in many cases, they're not even briefed into the process or the substance of the decision making.

Why do strong figures such as Rice, Gates, et al., continue to allow the Vice President to run roughshod over them and make them look like fools?

Gellman and Becker provide part of the answer -- namely, that Cheney and Addington are more astute and clever and ruthless than everyone else: "The vice president's unseen victories attest to traits that are often ascribed to him but are hard to demonstrate from the public record: thoroughgoing secrecy, persistence of focus, tactical flexibility in service of fixed aims and close knowledge of the power map of government. On critical decisions for more than six years, Cheney has often controlled the pivot points -- tipping the outcome when he could, engineering a stalemate when he could not and reopening debates that rivals thought were resolved."

But the larger explanation, of course, is that Cheney wins internal battles because the President constantly sides with Cheney over all his other trusted advisers. (Bush is not quite alone in this respect. As Gellman and Becker point out, Cheney has also had minority support in important places -- namely, White House Counsels Gonzales and Miers, along with Rumsfeld, Cambone and Haynes over at DoD.) Why is that? Why does Bush trust Cheney more than everyone else in his cabinet? And at what point do all of those other officials stop putting up with it?

This week's contretemps is a good example. The Addington theory that the Vice President is not covered by the Executive Order regulating the way in which every "entity within the executive branch" must handle classified national security information is patently frivolous. (Contrary to most reports, whether the VP's Office is covered is not a matter of constitutional law, but instead simply a question of interpreting the EO. And that EO was quite obviously written to cover the entire Executive branch, including both the President's staff (such as the National Security Council, which has routinely complied), and the Vice President's office, which also complied regularly until Cheney unilaterally decided to ignore the Order in 2003. The fact that Cheney also has ceremonial Senate functions -- in which he rarely if ever "comes into the possession of classified information," is really beside the point -- it's a self-evident red herring.)

The Archives asked DOJ to say so -- to resolve the dispute, something that should have taken OLC all of 15 minutes or so because the question is so easy. And yet if reports are correct, DOJ has not even begun the process -- has not even obtained the legal brief from Addington making the argument on the other side.

Why? Why isn't this a great opportunity for DOJ to bring Addington into line and, not so coincidentally, staunch a festering embarrassment for the Administration?

Much more to the point, Fred Fielding was brought in to the White House Counsel's office precisely to lend some gravitas and experience. This legal dispute is an acute sore for his client, and it is not helpful to have it linger. Why doesn't Fielding simply nip it in the bud -- announce immediately that the grown-ups are now in charge and that yes, the Executive Order was always intended to cover the Vice President's Office? (After all, if the President does wish to exempt the VP's Office, he could do so with a stroke of the pen -- as far as I know, there's no statute that requires the VP to comply with the procedures in the E.O. And yet the President, for obvious reasons, has never so much as hinted at granting any such exemption.)

Why do DOJ and the Counsel's office continue to act so cowed, just as Gates and Rice silently slink off to the sidelines when Cheney tells them "no" on Guantanamo?

The answer appears to be that the President has made it known that in such disputes, he will almost invariably side with Cheney, notwithstanding that Cheney's judgments have been so extreme, so idiosyncratic, and have so often proved disastrous. Therefore resistance from others in the Administration is futile, no matter how much they chafe under Addington's direction.

And so the $64,000 Question is: Why has this President, unlike every other, so uncritically deferred to the Vice President, even where the rest of his Administration is begging him not to do so? I've heard Sandy, an Austin native, say many times that he would have expected the Bush who was Governor of Texas to be much more conciliatory, more of a consensus builder. Why has there been no sign of that President?

The answer to that question is not yet revealed. (I suspect it has something to do with the fact that the uncompromising nature of the Cheney and Addington worldview appeals to the Manichean side of Bush that emerged in full force post-9/11.)

* * * *

The important new piece of information in today's story is, not surprisingly, that the theory of the unbound Commander in Chief is alive and well:

According to participants in the debate, the vice president stands by the view that Bush need not honor any of the new judicial and legislative restrictions. His lawyer, they said, has recently restated Cheney's argument that when courts and Congress "purport to" limit the commander in chief's warmaking authority, he has the constitutional prerogative to disregard them.

If Cheney advocates a return to waterboarding, they said, they have not heard him say so. But his office has fought fiercely against an executive order or CIA directive that would make the technique illegal.

Just in case you were wondering.
Posted 6:33 AM by Marty Lederman [link]