1.

Washington

CHENEY DEFENDS EAVESDROPPING WITHOUT WARRANTS
By Richard W. Stevenson and Adam Liptak

New York Times
December 21, 2005
Page A22

http://www.nytimes.com/2005/12/21/politics/21cheney.html

MUSCAT -- In his first discussion of the underpinnings of the Bush administration's decision to eavesdrop without warrants on communications from the United States to other countries, Vice President Dick Cheney on Tuesday cast the action as part of a broader effort to reassert powers of the presidency that he said had been dangerously eroded in the years after Vietnam and Watergate.

Talking with reporters on Air Force Two as he flew from Pakistan to Oman, Mr. Cheney spoke in far broader terms about the effort to expand the powers of the executive than President Bush did on Monday during an hourlong news conference.

"I believe in a strong, robust executive authority, and I think that the world we live in demands it," said Mr. Cheney, who was in many ways the intellectual instigator of the rapid expansion of presidential authority as soon as Mr. Bush took office.

Mr. Cheney directly linked the effort to bolster the president's wartime authority to the nation's safety since the Sept. 11, 2001, attacks.

"You know," he said, "it's not an accident that we haven't been hit in four years."

On Tuesday, he made no effort to play down his central role in exercising those powers, citing his early battle to keep private the names of people he consulted while drawing up recommendations for Mr. Bush on energy policy. That effort was ultimately upheld in the courts.

Mr. Cheney appears to have been the first senior administration official to brief a few Congressional leaders on the program and the underlying technology that have permitted the National Security Agency to find and immediately tap into "hot numbers" -- telephone calls and e-mail messages that are suspected of containing communications between terror suspects in the United States and abroad.

Ordinarily, any tap that involves one party inside the United States has required obtaining a warrant from a secret court that oversees the enforcement of the Foreign Intelligence Surveillance Act -- itself an effort to address abuses that occurred during the Watergate scandal.

Mr. Cheney was unapologetic about circumventing the legal protections, echoing President Bush's declarations that it was an appropriate use of executive authority and going further than Mr. Bush by insisting that it had prevented subsequent attacks.

"The fact of the matter is this is a good, solid program," he said on CNN during his stopover in Pakistan. "It has saved thousands of lives. We are doing exactly the right thing, we are doing it in accordance with the Constitution of the United States and it ought to be supported. This is not about violating civil liberties, because we're not."

The Washington Post stated Tuesday night that Judge James Robertson of the secret Foreign Intelligence Surveillance Court had resigned, reportedly in protest of the administration's surveillance program.

Judge Robertson would not comment on his resignation, the Post said, reporting that he notified Chief Justice John G. Roberts of his decision late Monday night in a letter that did not give a reason for leaving the court. The article said two associates of Judge Robertson said he had privately expressed concern about the legality of the surveillance program and about whether it tainted the work of the court.

Having served in Congress and as chief of staff to President Gerald R. Ford -- a period when he first became concerned about infringements on presidential power -- Mr. Cheney said he believed the pendulum had swung back too far after the Nixon resignation.

After expressing respect for the powers of Congress, Mr. Cheney told reporters, "But I do believe that especially in the day and age we live in, the nature of the threats we face, the president of the United States needs to have his constitutional powers unimpaired, if you will, in terms of the conduct of national security policy."

He described the War Powers Resolution, passed in 1973 in a post-Vietnam effort by Congress to prevent the president from committing troops without sharp Congressional oversight, as "an infringement on the authority of the presidency" and suggested it could be unconstitutional.

"Watergate and a lot of the things around Watergate and Vietnam both during the 70's served, I think, to erode the authority I think the president needs to be effective, especially in the national security area," Mr. Cheney said.

His philosophy on the wiretap issues and detention and interrogation policy took legal form in a series of memorandums and briefs, many of them written by John C. Yoo, then a deputy assistant attorney general in the Office of Legal Counsel at the Justice Department.

Professor Yoo, a legal scholar from Boalt Hall, the law school at the University of California, Berkeley, has told friends he was taken aback when he became the best-known proponent of pushing the envelope of presidential powers.

But many of the documents he and his colleagues wrote described broad and unilateral executive power to combat terrorism, including detaining people without charge indefinitely, subjecting detainees to harsh interrogations and eavesdropping without first obtaining warrants, under some conditions.

For example, in a Sept. 21, 2001, memorandum, Bush administration lawyers said eavesdropping on telephone calls and e-mail messages without a court's permission could be proper notwithstanding the ban in the Fourth Amendment on unreasonable searches and seizures.

"The government may be justified," Mr. Yoo wrote in the memorandum, "in taking measures which in less troubled conditions could be seen as infringements of individual liberties."

Four days later, he wrote that Congress could not place "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."

"These decisions," wrote Mr. Yoo, who left the administration two years ago, "under our Constitution, are for the president alone to make."

Mr. Bush and Mr. Cheney in the past two days have drawn on that theory as they have pointed to two basic sources of legal power. The first is in Article II of the Constitution, which vests the "executive power" in the president and makes him commander in chief of the military. Mr. Cheney discussed that at length on Tuesday. The second is Congressional authorization to use military force in response to Sept. 11.

"When we were hit on 9/11," Mr. Cheney said, President Bush "was granted authority by the Congress to use all means necessary to take on the terrorists, and that's what we've done."

At another point he noted that "the 9/11 commission criticized everybody in government because we didn't connect the dots."

"Now we are connecting the dots, and they're still complaining," Mr. Cheney continued. "So it seems to me you can't have it both ways."

But it is not clear that either of those sources of legal authority fully supports all aspects of the administration's view of executive power. "Broad claims of authority and broad claims of illegality are equally suspect," said Douglas W. Kmiec, a law professor at Pepperdine University.

Geoffrey R. Stone, a law professor at the University of Chicago, said he found the issue straightforward, at least as regards surveillance by the National Security Agency. "Some legal questions are hard," Professor Stone said. "This one is not. The president's authorizing of N.S.A. to spy on Americans is blatantly unlawful."

Mr. Cheney, unsurprisingly, took the opposite view, noting that he had been expressing his views on the subject as far back as 1987, when, as a Republican congressman from Wyoming, he contributed to the minority views in the Congressional report on the Iran-contra affair.

"Part of the argument in Iran-contra was whether or not the president had the authority to do what was done in the Reagan years," he said. "And those of us in the minority wrote minority views that were actually authored by a guy working for me, one of my staff people, that I think are very good at laying out a robust view of the president's prerogatives with respect to the conduct of especially foreign policy and national security matters."

Asked if the proper balance had been restored under Mr. Bush, he said, "I do think it's swung back."

Mr. Cheney suggested that Democrats who pushed to trim the powers of the presidency in the wake of the disclosure of the eavesdropping program would pay a political price.

"Either we're serious about fighting the war on terror or we're not," he said.

--Richard W. Stevenson reported from Muscat, Oman, for this article, and Adam Liptak from New York. Neil A. Lewis contributed reporting from Washington.

2.

CHENEY DEFENDS PRESIDENTIAL POWERS
By Nedra Pickler

Associated Press
December 20, 2005

http://www.washingtonpost.com/wp-dyn/content/article/2005/12/20/AR2005122000450.html

[PHOTO CAPTION: U.S. Vice President Richard B. Cheney gives an interview after a tour of the 212th MASH unit, Tuesday, Dec. 20, 2005, in Muzaffarabad, Pakistan.Vice President Cheney is cutting short an overseas trip to head back to the United States to cast tie-breaking votes, if necessary, in the Senate.]

ABOARD AIR FORCE II -- Vice President Dick Cheney on Tuesday vigorously defended the Bush administration's use of secret domestic spying and efforts to expand presidential powers, saying "it's not an accident that we haven't been hit in four years."

Talking to reporters aboard his government plane as he flew from Islamabad, Pakistan to Muscat, Oman on an overseas mission, Cheney said a contraction in the power of the presidency since the Vietnam and Watergate era must be reversed.

"I believe in a strong, robust executive authority and I think that the world we live in demands it. And to some extent, that we have an obligation as the administration to pass on the offices we hold to our successors in as good of shape as we found them," he said.

Cheney spoke from his plane's private cabin as he was making a trip aimed at boosting the United States' image abroad and its relationships with its war-on-terror partners. But after visiting Iraq, Afghanistan and Pakistan, he was cutting his travels short, skipping planned stops in Saudi Arabia and Egypt, to return to Washington to be on hand for session-ending Senate activity that could require his tie-breaking votes.

Cheney said he believes the American people support President Bush's terror-fighting strategy. "If there's a backlash pending," because of reports of National Security Agency surveillance of calls originating within the United States, he said, "I think the backlash is going to be against those who are suggesting somehow that we shouldn't take these steps to defend the country."

Cheney talked about terrorism and national security amid a burgeoning controversy at home over Bush's acknowledgment of a four-year-old administration program to eavesdrop -- without court-approved warrants -- on international calls and e-mails of Americans and others inside the United States with suspected ties to the terrorist network al-Qaida.

Some legal experts described the program as groundbreaking. And until the highly classified program was disclosed last week, those in Congress with concerns about the National Security Agency spying on Americans raised them only privately.

Since the program's existence was revealed, lawmakers from both parties have objected and begun discussing a congressional investigation. Cheney said the opposition is politically unwise.

"Either we're serious about fighting the war on terror or we're not," the vice president said. "The president and I believe very deeply that there is a hell of a threat."

The vice president also told reporters that in his view, presidential authority has been eroded since the 1970s through laws such as the War Powers Act and anti-impoundment laws.

"Watergate and a lot of the things around Watergate and Vietnam both during the '70s served, I think, to erode the authority I think the president needs to be effective, especially in the national security area," Cheney said. But he also said the administration has been able to restore some of "the legitimate authority of the presidency."

Cheney said the White House helped protect presidential power by fighting to keep secret the list of people who were a part of his 2001 energy task force. The task force's activities attracted complaints from environmentalists, who said they were shut out of discussions on developing a national energy policy while corporate interests were present. A protracted lawsuit ensued.

"I believe that the president is entitled and needs to have unfiltered advice in formulating policy," Cheney said. "He ought to be able to seek the opinion of anybody he wants to and that he should not have to reveal, for example, who he talked to that morning. That issue was litigated all the way up to the Supreme Court and we won."

Cheney said that "many people believe" the War Powers Act, enhancing the power of Congress to share in executive branch decision-making on war, is unconstitutional and said "it will be tested at some point. I am one of those who believe that was an infringement on the authority of the president."

Cheney noted he had served in the House for 10 years and said he has "enormous regard" for the legislative branch.

"But I do believe that especially in the day and age we live in, the nature of the threats of we face -- and this is true during the Cold War as well as I think is true now -- the president of the United States needs to have his constitutional powers unimpaired, if you will, in terms of the conduct of national security policy," the vice president said.

Cheney conceded that arguments over eavesdropping won't likely pass any time soon, saying, "It's an important subject."

"I would argue that the actions that we've taken there are totally appropriate and consistent with the constitutional authority of the president," he added.

"You know, it's not an accident that we haven't been hit in four years," Cheney said. "I think there's a temptation for people to sit around and say, 'Well, gee that was just a one-of affair, they didn't really mean it.'"

"The bottom line is we've been very active and very aggressively defending the nation and using the tools at our disposal to do that," he said.

3.

CHENEY ARGUES FOR NIXON-ERA POWERS
By Tim Harper

** Watergate eroded presidential clout; VP comments fuel firestorm in U.S. **

Toronto Star
December 21, 2005

Original source: Toronto Star

WASHINGTON -- U.S. Vice-President Dick Cheney has upped the ante in a burgeoning scandal over the use of unauthorized wiretaps in the United States, touting the Bush administration's success in restoring presidential powers that were stripped during the Richard Nixon era.

Cheney said the Watergate scandal and the Vietnam War wrongly eroded the executive power of the White House, something he and U.S. President George W. Bush have remedied during their war on terror.

The U.S. vice-president spoke on a day when some moderate Republicans joined Democratic calls for a congressional inquiry into whether Bush broke the law by authorizing wiretaps without court permission.

At least two Democrats suggested Bush could be impeached for his alleged crimes and the White House scrambled late in the day to try to counter the perception that Bush had deliberately misled the nation when he spoke about wiretaps in April 2004.

"Watergate and a lot of things around Watergate and Vietnam, both during the '70s served, I think, to erode the authority . . . the president needs to be effective, especially in the national security area," Cheney told reporters aboard the Air Force Two aircraft after a visit to Pakistan.

But the vice-president said he thought the Bush administration has been able to restore some of "the legitimate authority of the presidency."

He also said he believes that the U.S. War Powers Act, which gives the U.S. Congress the power to be fully engaged in a president's decision to go to war is unconstitutional.

"I am one of those who believe that was an infringement on the authority of the president," he said.

"I believe that the president is entitled and needs to have unfiltered advice in formulating policy. He ought to be able to seek the opinion of anybody he wants to and that he should not have to reveal, for example, who he talked to that morning.

"That issue was litigated all the way up to the Supreme Court and we won."

Cheney was, in fact, successful in hiding the participants in the task force he appointed to form energy policy in this country, fighting off legal challenges from environmentalists who said the secrecy shielded corporate interests from public scrutiny.

Cheney's extensive comments about the need for fewer constraints on presidential powers tossed fuel on a firestorm of controversy which has been building here since the New York Times first revealed the clandestine program on its website last Thursday.

"I think the vice-president ought to reread the constitution," said Senator Edward Kennedy, a Massachusetts Democrat.

"It reminds Americans of the abuse of power during the dark days of Richard Nixon and Spiro Agnew," said Howard Dean, the chair of the Democratic National Committee.

But Republicans also have concerns.

Two of them, Chuck Hagel of Nebraska and Olympia Snowe of Maine, yesterday aligned themselves with Democrats seeking a congressional inquiry into Bush's authorization of the wiretapping by the National Security Agency.

Senator Arlen Specter, a Pennsylvania Republican who chairs the Senate Judiciary Committee, has promised hearings in the new year.

Bush aggressively defended his decision to bypass the Foreign Intelligence Surveillance Act of 1978, which allows emergency wiretaps for 72 hours, then compels the government to go to a secret court to seek retroactive permission. Bush said that law does not allow the administration to be agile enough in fighting the terrorist threats in the post-2001 era.

The NSA has been monitoring international phone calls and emails of Americans they believe are linked to terrorists.

That would presumably include calls made to Canada, although officials are offering no details.

Bush said he had the constitutional authority to act without court orders and Cheney said it was no coincidence the U.S. has not been hit by terrorists since the White House sought more unfettered powers.

Bruce Fein, a former associate deputy attorney-general in the Ronald Reagan administration, said Bush was abusing his power.

"It's more power than King George III had at the time of the revolution in asserting the theory that anything the president thinks is helpful to fighting the war against terrorism, he can do," Fein told National Public Radio.

California Democratic Senator Barbara Boxer has sent a letter to legal scholars asking their opinion on whether Bush's actions amount to an unconstitutional move that warrants Congress considering impeachment proceedings.

Boxer said her interest was sparked after former Nixon White House counsel John Dean said the surveillance order was an impeachable offence.

"I take very seriously Mr. Dean's comments, as I view him to be an expert on presidential abuse of power. I am expecting a full airing of this matter by the Senate in the very near future," she said in a statement.

Dean spent four months in prison for his role in the Watergate cover-up. The wiretapping scandal forced Nixon to resign in disgrace in 1972.

Representative John Lewis, a Georgia Democrat, also told a radio interviewer in Atlanta impeachment proceedings should be considered. Other senior Democrats, however, pulled back on such suggestions, calling instead for congressional hearings.

Democrats also pointed to remarks on wiretapping by Bush in Buffalo last year.

"Any time you hear the United States government talking about wiretap, it requires . . . a court order," Bush said.

"Nothing has changed, by the way. When we're talking about chasing down terrorists, we're talking about getting a court order before we do so."

The White House said he was speaking in the context of the U.S. Patriot Act, not eavesdropping for foreign intelligence.

Bush also took a pummelling on the editorial pages of major U.S. papers.

The New York Times assailed him for a phoney choice, by suggesting he could save lives or follow the law.

"Mr. Bush says Congress gave him the power to spy on Americans," it said in an editorial. "Fine, then Congress can just take it back."