Midway through the Frontline documentary Cheney's Law, which aired last Tuesday on PBS, a reporter summarizes a judgment the vice president conveyed to listeners in hiding in the hours after the bombings of September 11. "We will probably," he said, "have to be a country ruled by men rather than laws, in this period." The period, he implied, would last a long time; so the conclusion had all the Cheney markings: cool, complete, defying contradiction. What is astounding is how quickly he arrived at it.
With the testimony of witness after witness, Cheney's Law establishes an alarming fact. For the past seven years, starting not on 9/11 but the moment this administration ascended to power, the vice president has worked tirelessly, almost selflessly, in silence and seclusion, to destroy the American system of constitutional checks and to replace it with an executive government whose levers are operated by a few. In the new system (except where its builders are caught at their work and delayed) there is to be no restraint, no oversight, no accountability.
The Cheney mutation, in every instance, has had two characteristic steps. In the first, authority is usurped in secret, and power is transferred from its ostensible holder to an agent controlled by the Office of the Vice President. Power having thus changed hands invisibly, a custom-built justification is filed away, to be produced only if the trespass is discovered and questions are asked.
Aggrandizement of the executive by a sequence of shifts and transfers of power, vouched for by a rationale that is held in reserve: this has been the method; a protocol without a precedent in the history of democracy. It is in the nature of the engine to push and push again. Its forward motion has occasionally been slowed, by a court decision or a piece of actual legislation, but the delays have never lasted long.
Americans were brought up to think about a person mistreated by authority (however lawful the authority): "You can't do that to him!--a man's got his rights." The goal, in morals and manners, of the Cheney mutation is to replace that libertarian presumption by a timid, resigned, and docile acceptance: "Too bad; he must have done something wrong if they're doing this to him." The reform of manners is not yet complete, but, every day, bad laws assist the process of coarsening and brutalization.
Conspiracy is a word that Americans on the clever side of thirty tend to reject. We acknowledge, because history tells us, that there were conspiracies in the distant past, among the assassins of Julius Caesar for example, or the privy councilors of Charles II, who owed their nickname, "the Cabal," to the surnames Clifford, Arlington, Buckingham, Ashley, and Lauderdale. And there was the Night of the Long Knives. But there has not been an important conspiracy close to our time; certainly not in America: that is the doctrine.
We need another word, then, to describe a series of actions concerted by men of power, executed with elaborate concealment for a determined end, in violation of all the ordinary procedures of government and in deliberate defiance of the law.
Such was the path of the change devised in 2001-02 for the prisoners captured in the field in Afghanistan. The vice president and his lawyer, David Addington, held that captives were to be transported without notice to a prison sealed off from the jurisdiction of American laws, or any other system of laws. There they would be sorted and processed into Special Tribunals.
All discussions of the meditated change excluded the responsible officials in the department of state. Pierre-Richard Prosper, interviewed in Cheney's Law, reports that he studied the question for Colin Powell and reached a conclusion at variance with Cheney and Addington. He should have seen their proposal, but he never did. Rather, the executive order was routed through the corridors of the White House with the stealth of a burglar on a well-cased street. By the time it passed under the president's pen, it had changed hands four times; and these were not the usual hands. John Bellinger, the lawyer for the national security staff, never set eyes on the new understanding. Colin Powell first heard of it on the television news.
Warrantless wiretaps were meant to pass quietly into law by a similar circuit of evasion; but Cheney and Addington were tripped up by one of those accidents that haunt the most cunning of stratagems. A sick man in a hospital bed, who happened to be the attorney general, remembered he had sworn an oath to uphold the laws; and when he took that oath, he had not made a private reservation that the laws he upheld might just as well be laws contrived in secret. Cheney and Addington did not predict the cussedness or the integrity of John Ashcroft. Still, in the assault on FISA, it took the threat of more than thirty resignations from the justice department to convince the president to back down and compromise.
James Comey, the acting attorney general, fought off Cheney and Addington by literally obstructing the path of their agents, Alberto Gonzales and Andrew Card, beside the bed of the attorney general. We would be living in a different country today if at that critical time, John Yoo, author of the redefinition of torture requested by the vice president, had become, as he aimed to become, the head of the Office of Legal Counsel. But in October 2003, the position went to Jack Goldsmith: a friend of Yoo's, like him an authoritarian conservative and young dogmatist of the Federalist Society, but one whose ideas were complicated by the possession of a conscience.
So assiduous were Yoo's exertions to curry favor with authority by putting the iron of authority into the structure of the laws that he came to be called by Ashcroft himself "Dr. Yes." Yoo was infinitely obliging. He would go any length to find any reason that Cheney and Addington asked him to find. No reach of sophistry was beyond his grasp. No horror of tyranny curbed his appetite for "making new law" to supplant the outmoded refinements of democracy.
Addington (a large man, a fast thinker, and a shouter in closed meetings) declined to be interviewed by Frontline. Yoo, by contrast, now a professor of law at U.C. Berkeley, was willing to defend his recommendations. One is curious to see the man who wrote the torture memos; and the encounter quickens as the camera reveals a momentary shadow on Yoo's eager and expressionless public face. It happens when he is mocking the objections to the treatment allowed against prisoners at Guantanamo--as if, says Yoo, we should "read them their Miranda rights," as if we should let them "talk to a lawyer." A flicker of sadism--or is it nothing but a sneer?--crosses his face and halfway into his voice.
When the tortures at Abu Ghraib were brought to light, John McCain said unforgettably: "We should never simply fight evil with evil." And again: "This isn't about who they are, this is about who we are." And yet, on this issue too, Cheney and Addington pushed and bit by bit their opponent gave way. McCain won an overwhelming vote in the Senate for his bill prohibiting the use of torture; but then the vice president in person walked him through a special exemption for the CIA, and then an agreement that Guantanamo was off the map of the law. Since his capitulation in this matter, so close to his own experience, John McCain has not been the same man.
The pressure behind the new laws has never stopped. It makes a new conquest with every presidential nominee. "If waterboarding is torture," said Michael Mukasey two days ago, "it's not in the Constitution." Of the treatment of prisoners generally, Mukasey added: "If it amounts to torture, it is unconstitutional." These queer, para-logical formulae, spoken in his own voice by the nominee for attorney general, bear the signature of David Addington. Everything depends on the meaning of "if" in the first sentence above, and on the meaning of "amounts" in the second. Mukasey was really saying that our understanding of right and wrong may legitimately be warped by the executive branch. So, a cruel practice which the world regards as torture, and which we taught the world to regard as torture, and which the makers of the eighth amendment would have recognized as torture: this, in our endless emergency, may not amount to torture after all.
In the old Soviet Union, which neoconservative privy councilors have closely studied and learned from, the goons and thugs ran everything. Everything: from the machine of the state bureaucracy to the reasons given by obedient judges to the smallest humiliation extorted from a hapless citizen by a police detective or a customs official. Good people were kept out of public life, and out of public service, because Lenin's Law and Stalin's Law had no conceivable place for them. In our society, there have been goons and thugs, of course, but something about American democracy, a something that includes the reading of Miranda rights, seemed to give assurance that they would always be a furtive minority. The manners of the society itself discouraged overt hard-heartedness and cruelty.
Wrote Emerson: "Yes, we are the cowed,--we, the trustless." Why has "protect" become a favorite verb among our leaders, and "safe" a favorite adjective? How many of the trustless are willing to work the new machine? How many, with Comey and Goldsmith, will refuse? The offer the vice president and president have extended to all Americans is, from one point of view, as generous as it is benign. They want to be our protectors. All they ask in return is unlimited power. Yet this offer reveals a judgment that is indelibly mixed with contempt for something besides the law.