Cheney’s Law and The Breakdown of the Constitution

Frontline is back for another season of documentaries and starts out strong, once again doing the reporting which most of the mainstream media fails to do. This week’s episode (available for view on line) is on Cheney’s Law. The documentary shows how Dick Cheney had the goal of expanding the power of the Executive Branch ever since the days of seeing Congress investigate and limit the powers of Gerald Ford and later Ronald Reagan.

Cheney is shown urging previous presidents to ignore the Constitutional checks on the power of the president, but it wasn’t until George Bush that he had a president willing to ignore the rule of law. The attacks of 9/11 provided the perfect opportunity for Cheney to act upon his beliefs as he argued at the time that we must become a government of men and not law.

The New York Times has reviewed Cheney’s Law:

Much of what is reported in the film about Mr. Cheney’s efforts to encroach on Congressional and judicial autonomy since the attacks on the World Trade Center will already be familiar to readers of liberal blogs (particularly the lawyer Marty Lederman’s postings on Balkinization (balkin.blogspot.com) and the meticulously detailed articles on the vice president’s role written by Barton Gellman and Jo Becker (now a reporter for The New York Times) and published in The Washington Post over the summer. (Both Mr. Gellman and Mr. Lederman deliver trenchant anecdotes and analysis in the documentary.)

But that is almost entirely beside the point. “Cheney’s Law” is an exemplary exercise in synthesis that displays a reserved tone and still manages to feel like a riveting political thriller as it diagrams the ways in which the vice president’s vision was often so seamlessly assimilated.

Of particular interest is a lengthy interview with the conservative law professor Jack Goldsmith. He oversaw the Justice Department’s Office of Legal Counsel only to come to blows with the administration when he challenged that vision, refusing to support the National Security Agency wiretapping program that required reauthorization. “I went as far as I could,” Mr. Goldsmith, who has recently written a book called “The Terror Presidency,” economically recounts. “But at some point the legal arguments ran out.”

I’ve previously noted Goldsmith’s recent book and the full interview with Jack Goldsmith is available on line. During the interview, he discussed the view of virtually unlimited executive power which arose after 9/11:

[What was your sense of Yoo’s Sept. 25, 2001 memo on the president’s constitutional powers in the war on terror?]

… In some respects it was an unremarkable document, in the respects that it basically said that the president had very broad authority to use military force to protect the nation from attacks from terrorists. And it impressively marshaled precedents going back decades, and even into the 19th century, that articulated the executive’s view of its very broad powers. …

The truly remarkable thing about the opinion was in the last paragraph or two, where after articulating the idea that the president had all of these broad powers without the need for Congress’s support, it also said that Congress could not restrict the president’s powers. So it went beyond the idea that the president didn’t need Congress’s authorization, and said that there was nothing the Congress could do to stop the president from doing these things. That was the remarkable part of the opinion. …

Dick Cheney and George Bush are trying to reshape the nature of our government in an alarming manner. One question we face in choosing a successor in 2008 is whether they can be trusted to respect the Constitution or whether they will continue to exercise expanded powers.

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