I mentioned on Friday that congressional Dems are getting ready to start flexing their oversight muscles in 2007, and a fair amount of their attention will be directed at a certain Vice President’s office.
Rep. John Dingell (D-Mich.), the incoming chairman of the House Energy and Commerce Committee, for example, noted over the weekend that among the investigations he wants his committee to undertake is a close review of Dick Cheney’s secretive energy task force, which was, as Dingell put it, “carefully cooked to provide only participation by oil companies and energy companies.”
Similarly, Sen. Patrick Leahy (D-Vt.), the incoming chairman of the Senate Judiciary Committee, has questions about some of the VP’s favorite ideas: warrantless searches, torture, and suspension of habeas corpus. “I expect real answers, or we’ll have testimony under oath until we get them,” Leahy said.
But as the Boston Globe’s Charlie Savage reported yesterday, Congress should probably be prepared for an uncomfortable confrontation. Cheney simply believes the White House is above the law.
A close look at key moments in Cheney’s career — from his political apprenticeship in the Nixon and Ford administrations to his decade in Congress and his tenure as secretary of defense under the first President Bush — suggests that the newly empowered Democrats in Congress should not expect the White House to cooperate when they demand classified information or attempt to exert oversight in areas such as domestic surveillance or the treatment of terrorism suspects.
Peter Shane, an Ohio State University law professor, predicted that Cheney’s long career of consistently pushing against restrictions on presidential power is likely to culminate in a series of uncompromising battles with Congress.
“Cheney has made this a matter of principle,” Shane said. “For that reason, you are likely to hear the words ‘executive privilege’ over and over again during the next two years.”
As tristero noted, “The real issue is not going to be serving subpoenas. Oh, they’ll serve them all right. Nor will the issue be whether or not the White House will obey them. They won’t. No, the real issue is what will happen when the White House refuses to respond to nearly any subpoenas.”
Phrases like “constitutional crises” should not be thrown around casually, and for that matter, there are no imminent confrontations in Washington. Indeed, Congress won’t even convene for more than a month.
But the writing is nevertheless on the wall, and we shouldn’t be surprised when the White House tells Congress sometime next year, “No, we don’t care for this subpoena and have decided to ignore it.”
It’s part and parcel of how Cheney sees the world. Savage’s article, which is a must-read by the way, details how the VP has spent his entire professional career arguing that the executive branch’s powers not only need to be expanded, but should not, and cannot, be checked by the legislative branch. After 9/11, the approach to government became even more obvious.
After the attacks of Sept. 11, 2001, military lawyers objected to the administration’s assertion that a president has the power to detain and interrogate terrorism suspects outside the restrictions of the Geneva Conventions. In response, the administration renewed Cheney’s attempt to put military lawyers under the control of civilian appointees.
Citing a need for secrecy, the administration also erected new roadblocks to Freedom of Information Act requests, restricted access to historic presidential records, and threatened to prosecute journalists who published classified information using the 1917 anti-spying law — the same idea Cheney toyed with in 1975.
In signing statements and legal memos, the administration, with Cheney and Addington as its driving force, has repeatedly used the war on terrorism to advance the idea that the president has vast “inherent” authority to bypass laws enacted by Congress. Even when Congress voted, a week after the 9/11 attacks, to authorize the use of military force against Al Qaeda, the administration quickly seized the moment to lay down its marker.
“[Congress cannot] place any limits on the president’s determinations as to any terrorist threat, the amount of military force to be used in response, or the method, timing, and nature of the response,” the Justice Department asserted in a September 2001 memo solicited by the White House. “These decisions, under our Constitution, are for the president alone to make.”
The following year, the administration drew up secret legal opinions informing military and CIA interrogators that the president has the power to authorize them to violate laws banning torture.
“In order to respect the president’s inherent constitutional authority to manage a military campaign against Al Qaeda and its allies, [the anti-torture law] must be construed as not applying to interrogations undertaken pursuant to his commander-in-chief authority,” said an August 2002 memo, which was leaked to the media only after the abuse of Iraqi prisoners at Abu Ghraib came to light.
Then, in December 2005, The New York Times revealed that the administration was wiretapping Americans’ international phone calls and e-mails without warrants, violating the 1978 surveillance law.
Three days later, Cheney sat down with reporters and laid out his belief “in a strong, robust executive authority.” Bypassing the warrant law, he asserted, was “consistent with the constitutional authority of the president.”
Any chance the VP’s office is going to choose cooperation when the House Energy and Commerce Committee asks questions about Cheney’s energy task force? No, I don’t think so either.
What will Congress do in response? Stay tuned.