Op-Ed

Editorial

MR. CHENEY'S IMPERIAL PRESIDENCY

New York Times
December 23, 2005
Page A26

http://www.nytimes.com/2005/12/23/opinion/23fri1.html

George W. Bush has quipped several times during his political career that it would be so much easier to govern in a dictatorship. Apparently he never told his vice president that this was a joke.

Virtually from the time he chose himself to be Mr. Bush's running mate in 2000, Dick Cheney has spearheaded an extraordinary expansion of the powers of the presidency -- from writing energy policy behind closed doors with oil executives to abrogating longstanding treaties and using the 9/11 attacks as a pretext to invade Iraq, scrap the Geneva Conventions ,and spy on American citizens.

It was a chance Mr. Cheney seems to have been dreaming about for decades. Most Americans looked at wrenching events like the Vietnam War, the Watergate scandal, and the Iran-contra debacle and worried that the presidency had become too powerful, secretive, and dismissive. Mr. Cheney looked at the same events and fretted that the presidency was not powerful enough, and too vulnerable to inspection and calls for accountability.

The president "needs to have his constitutional powers unimpaired, if you will, in terms of the conduct of national security policy," Mr. Cheney said this week as he tried to stifle the outcry over a domestic spying program that Mr. Bush authorized after the 9/11 attacks.

Before 9/11, Mr. Cheney was trying to undermine the institutional and legal structure of multilateral foreign policy: he championed the abrogation of the Antiballistic Missile Treaty with Moscow in order to build an antimissile shield that doesn't work but makes military contactors rich. Early in his tenure, Mr. Cheney, who quit as chief executive of Halliburton to run with Mr. Bush in 2000, gathered his energy industry cronies at secret meetings in Washington to rewrite energy policy to their specifications. Mr. Cheney offered the usual excuses about the need to get candid advice on important matters, and the courts, sadly, bought it. But the task force was not an exercise in diverse views. Mr. Cheney gathered people who agreed with him, and allowed them to write national policy for an industry in which he had recently amassed a fortune.

The effort to expand presidential power accelerated after 9/11, taking advantage of a national consensus that the president should have additional powers to use judiciously against terrorists.

Mr. Cheney started agitating for an attack on Iraq immediately, pushing the intelligence community to come up with evidence about a link between Iraq and Al Qaeda that never existed. His team was central to writing the legal briefs justifying the abuse and torture of prisoners, the idea that the president can designate people to be "unlawful enemy combatants" and detain them indefinitely, and a secret program allowing the National Security Agency to eavesdrop on American citizens without warrants. And when Senator John McCain introduced a measure to reinstate the rule of law at American military prisons, Mr. Cheney not only led the effort to stop the amendment, but also tried to revise it to actually legalize torture at C.I.A. prisons.

There are finally signs that the democratic system is trying to rein in the imperial presidency. Republicans in the Senate and House forced Mr. Bush to back the McCain amendment, and Mr. Cheney's plan to legalize torture by intelligence agents was rebuffed. Congress also agreed to extend the Patriot Act for five weeks rather than doing the administration's bidding and rushing to make it permanent.

On Wednesday, a federal appeals court refused to allow the administration to transfer Jose Padilla, an American citizen who has been held by the military for more than three years on suspicion of plotting terrorist attacks, from military to civilian custody. After winning the same court's approval in September to hold Mr. Padilla as an unlawful combatant, the administration abruptly reversed course in November and charged him with civil crimes unrelated to his arrest. That decision was an obvious attempt to avoid having the Supreme Court review the legality of the detention powers that Mr. Bush gave himself, and the appeals judges refused to go along.

Mr. Bush and Mr. Cheney have insisted that the secret eavesdropping program is legal, but the *Washington Post* reported yesterday that the court created to supervise this sort of activity is not so sure. It said the presiding judge was arranging a classified briefing for her fellow judges and that several judges on the court wanted to know why the administration believed eavesdropping on American citizens without warrants was legal when the law specifically requires such warrants.

Mr. Bush and Mr. Cheney are tenacious. They still control both houses of Congress and are determined to pack the judiciary with like-minded ideologues. Still, the recent developments are encouraging, especially since the court ruling on Mr. Padilla was written by a staunch conservative considered by President Bush for the Supreme Court.