THE BLOG

The Vices of Cheney: The Burden is Upon the House Judiciary Committee

05/25/2011 12:10 pm ET
  • William E. Jackson Jr. Columnist, foreign policy expert, former U.S. Senate staffer and State Department/ACDA official

"We have now sunk to a depth at which the restatement of the obvious is the first duty of intelligent men." ~~George Orwell

Chairman John Conyers and the House Judiciary Committee* are holding hearings today on the commutation of the jail sentence of former chief of staff to the vice president, Scooter Libby. Yet President Bush was within his constitutional powers when he let Scooter off -- even if his motive was to take care of the number one live witness out of government who could testify to impeachable offenses committed by both the president and the vice president. (As Sen. Pat Leahy nailed it: "His silence has been bought and paid for.")

In mid-July of 2007, one has to wonder if the House Democratic leadership and the once-bold Conyers are not on another diversionary mission to embarrass the White House and score points -- rather than getting down to what should be the most pressing duty at hand, the convening of an impeachment inquiry into probable "high crimes and misdemeanors" by Dick Cheney that would likely lead to the drafting of formal Articles of Impeachment. [In an earlier column, I explain why I think it imperative to move first against the Vice President: "The Vices of Cheney: Where Impeachment Must Begin," The Huffington Post, June 25, 2007.]

At this point, in the language of House debate, I would like to associate myself with the moral imperative so eloquently articulated by the gentle lady from Texas, Stacy Parker Aab, in "On Impeachment," The Huffington Post, July 3:

"If we say no to impeachment, to this public accounting, to this naming of what is true about this administration, we are playing by their code. We are privileging power before principle. We cloak it in pragmatism...But let me ask you this: do you truly believe that Cheney [and Bush] are too innocent ... to be paid attention to? If not them, who? If not now, when? ... One can be against impeachment because they wish to avoid trauma. But to them I say the trauma has already been sustained. Wishing, hoping, and sublimating it away is not going to help us heal. That stuff is going to rot in the ground. ... More cancer metastasized throughout the body politic."

II

I call attention again to the blockbuster series that ran in The Washington Post, June 24-27: "Angler: The Cheney Vice Presidency," by Bart Gellman and Jo Becker. The abuses of power documented therein, alone, should result in placing an impeachment inquiry firmly on the agenda of the House. They make clear that missing from Cheney's worldview is any appreciation for Madisonian checks and balances, not just among the three branches of government, but also within his own.

This excerpt sums up the modus operandi of a rogue vice presidency in an at-times acephalous executive branch:

"Stealth is among Cheney's most effective tools. Man-size Mosler safes, used elsewhere in government for classified secrets, store the workaday business of the office of the vice president. ... Experts in and out of government said Cheney's office appears to have invented [the designation'Treated As: Top Secret/SCI'], which alludes to 'sensitive compartmented information,' the most closely guarded category of government secrets. By adding the words 'treated as,' they said, Cheney seeks to protect unclassified work as though its disclosure would cause 'exceptionally grave damage to national security.'

"Across the board, the vice president's office goes to unusual lengths to avoid transparency. Cheney declines to disclose the names or even the size of his staff, generally releases no public calendar and ordered the Secret Service to destroy his visitor logs. His general counsel has asserted that 'the vice presidency is a unique office that is neither a part of the executive branch nor a part of the legislative branch,' and is therefore exempt from rules governing either. Cheney is refusing to observe an executive order on the handling of national security secrets, and he proposed to abolish a federal office that insisted on auditing his compliance.

"In the usual business of interagency consultation, proposals and information flow into the vice president's office from around the government, but high-ranking White House officials said in interviews that almost nothing flows out. Close aides to Cheney describe a similar one-way valve inside the office, with information flowing up to the vice president but little or no reaction flowing down."

Maureen Dowd's reaction in her New York Times column: "I've always thought Cheney was way out there -- the most Voldemort-like official I've run across. But even in my harshest musings about the vice president, I never imagined that he would declare himself not only above the law, not only above the president, but actually his own dark planet -- a separate entity from the White House.
... It's quite a leap to go from hiding in a secure, undisclosed location in the capital to hiding in a secure, undisclosed location in the Constitution."

III

A bill of particulars against the vice president has been sketched by constitutional law expert and former Justice Department official in the Reagan years, Bruce Fein, in Slate of June 27: "Impeach Cheney: The Vice President has Run Utterly Amok and Must Be Stopped." He urges the House Judiciary Committee to commence an impeachment inquiry: "As Alexander Hamilton advised in the Federalist Papers, an impeachable offense is a political crime against the nation. Cheney's multiple crimes against the Constitution clearly qualify." Moreover, Fein posits that President Bush has outsourced a major share of his presidency to Vice President Cheney.

Here is his review of the record of Cheney's abuses and excesses:

- The vice president "asserted presidential power to create military commissions, which combine the functions of judge, jury, and prosecutor in the trial of war crimes."

- Cheney "claimed authority to detain American citizens as enemy combatants indefinitely at Guantanamo Bay on the President's say-so alone, a frightening power indistinguishable from King Louis XVI's execrated lettres de cachet that occasioned the storming of the Bastille."

- The vice president "initiated kidnappings, secret detentions, and torture in Eastern European prisons of suspected international terrorists...The legal precedent set by Cheney would justify a decision by Russian President Vladimir Putin to kidnap American tourists in Paris and to dispatch them to dungeons in Belarus if they were suspected of Chechen sympathies."

- The vice president "has maintained that the entire world is a battlefield. Accordingly, he contends that military power may be unleashed to kill or capture any American citizen on American soil if suspected of association or affiliation with al Qaeda."

- Cheney "has championed a presidential power to torture in contravention of federal statutes and treaties."

- Cheney "has advocated and authored signing statements that declare the president's intent to disregard provisions of bills he has signed into law that he proclaims are unconstitutional, for example, a requirement to obtain a judicial warrant before opening mail or a prohibition on employing military force to fight narco-terrorists in Colombia. The signing statements are tantamount to absolute line-item vetoes."

- The vice president "engineered the National Security Agency's warrantless domestic surveillance program targeting American citizens on American soil in contravention of the Foreign Intelligence Surveillance Act of 1978. He concocted the alarming theory that the president may flout any law that inhibits the collection of foreign intelligence, including prohibitions on breaking and entering homes, torture, or assassinations."

- The vice president "has orchestrated the invocation of executive privilege to conceal from Congress secret spying programs to gather foreign intelligence, and their legal justifications."

- Cheney "urges application of the Espionage Act to prosecute journalists who expose national security abuses, for example, secret prisons in Eastern Europe or the NSA's warrantless surveillance program."

- He "retaliated against Ambassador Joseph Wilson and his wife, Valerie Plame, through Chief of Staff Scooter Libby, for questioning the Administration's evidence of weapons of mass destruction as justification for invading Iraq." (Does Special Prosecutor Patrick Fitzgerald think that the vice president, and not just Scooter, was involved in obstructing justice?)

- Fein puts forward a provocative argument questioning what could be termed a sanctioned coup d'etat: "The Constitution does not expressly forbid the president from abandoning his chief powers to the vice president. But President Bush's tacit delegation to Cheney and Cheney's eager acceptance tortures the Constitution's provision for an acting president. The presidency and vice presidency are discrete constitutional offices." Section 3 of the 25th Amendment provides a method for the President to yield his office to the vice president, when 'he is unable to discharge the powers and duties of his office.' There is no other constitutional provision for transferring presidential powers to the Vice President."

But "without making a written transmittal to Congress, President Bush has ceded vast domains of his powers to Vice President Cheney by mutual understanding that circumvents the 25th Amendment. This constitutional provision assures that the public and Congress know who is exercising the powers of the presidency and who should be held responsible for successes or failures. The Bush-Cheney dispensation blurs political accountability by continually hiding the real decision-maker under presidential skirts."

Bruce Fein's conclusion: "Cheney is impeachable for his overweening power and his sneering contempt of the Constitution and the rule of law."

So what is the problem, Chairman Conyers? You, too, are sworn to uphold the Constitution. The ball is in your court. When you and your committee take a long August break, ponder the "scarecrow" impeachment provision in the Constitution, and invoke it to begin a formal investigation of grave subversions of our constitutional system of government. Otherwise, what's it all about?

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*Members of the House Judiciary Committee:

John Conyers, Chairman, Michigan
Howard L. Berman, California
Rick Boucher, Virginia
Jerrold Nadler, New York
Robert C. Scott, Virginia
Mel Watt, North Carolina
Zoe Lofgren, California
Sheila Jackson-Lee, Texas
Maxine Waters, California
Bill Delahunt, Massachusetts
Robert Wexler, Florida
Linda T. Sánchez, California
Steve Cohen, Tennessee
Hank Johnson, Georgia
Luis Gutierrez, Illinois
Brad Sherman, California
Anthony D. Weiner, New York
Adam B. Schiff, California
Artur Davis, Alabama
Debbie Wasserman Schultz, Florida
Keith Ellison, Minnesota
Tammy Baldwin, Wisconsin
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Lamar S. Smith, Ranking Member, Texas
Jim Sensenbrenner, Wisconsin
Howard Coble, North Carolina
Elton Gallegly, California
Bob Goodlatte, Virginia
Steve Chabot, Ohio
Dan Lungren, California
Chris Cannon, Utah
Ric Keller, Florida
Darrell Issa, California
Mike Pence, Indiana
Randy Forbes, Virginia
Steve King, Iowa
Tom Feeney, Florida
Trent Franks, Arizona
Louie Gohmert, Texas
Jim Jordan, Ohio