washingtonpost.com
No Checks, No Balances -- No Supervision?

By Dan Froomkin
Special to washingtonpost.com
Monday, June 25, 2007 1:38 PM

Midway through a massive and momentous Washington Post series on Vice President Cheney, it's clearer than ever that one thing missing from Cheney's worldview is any appreciation for checks and balances -- not just among the three branches of government, but also within his own.

Please go read parts one and two of this important series by Barton Gellman and Jo Becker, then come back. Gellman's narrated photo gallery works as a pithy overview.

Sunday's installment depicts Cheney as the guiding force behind the most radical elements of the Bush presidency. Today's installment describes Cheney's responsibility for the administration's torture policies in particular. Tomorrow's will focus on his influence on economic policy, and Wednesday's will detail his impact on environmental policy.

Gellman and Becker write that "Cheney is not, by nearly every inside account, the shadow president of popular lore." Yet in most decisions Gellman and Becker describe, President Bush's role is essentially to sign whatever Cheney has put in front of him. The series offers ample evidence that within the Bush administration, dissenters from Cheney's views are bullied, marginalized or fired -- with apparently no effective pushback from Bush or any of his other top aides. It's a stunning portrait.

The series is invaluable in providing concrete examples of the enormous and influential role that Cheney has long been suspected of playing in this White House. But given all that's transpired in the last year or so, it seems inconceivable that Cheney still wields as much influence as he once did. What I'm most curious about right now is whether, or how, Cheney's grip is slipping.

Outside the White House, Cheney's credibility is now almost zero, due to his errors of judgment on Iraq and his nearly delusional assertions about the war, as well as the cloud over his own conduct raised by the conviction of his former chief of staff for perjury.

But is his credibility still intact inside the Bush bubble? Is he still the last one to talk to Bush before the president makes a decision? Is the Cheney machine -- a legion of loyalists in key positions throughout government, transmitting information to and orders from the vice president's office -- still functioning effectively?

The Highlights

There are so many highlights, it's nearly impossible to pick just a few. Again, I strongly urge you to go read it yourself.

In Sunday's installment, Gellman and Becker describe a telling encounter between Cheney and former vice president Dan Quayle: "Cheney had just taken the oath of office, and Quayle paid a visit to offer advice from one vice president to another.

"'I said, "Dick, you know, you're going to be doing a lot of this international traveling, you're going to be doing all this political fundraising . . . you'll be going to the funerals," ' Quayle said in an interview earlier this year. 'I mean, this is what vice presidents do. I said, "We've all done it."' '

"Cheney 'got that little smile,' Quayle said, and replied, 'I have a different understanding with the president.'"

As Gellman and Becker write: "Cheney preferred, and Bush approved, a mandate that gave him access to 'every table and every meeting,' making his voice heard in 'whatever area the vice president feels he wants to be active in,' [now chief of staff Joshua] Bolten said.

"Cheney has used that mandate with singular force of will."

Another key to Cheney's method: Unusual secrecy. "Man-size Mosler safes, used elsewhere in government for classified secrets, store the workaday business of the office of the vice president. Even talking points for reporters are sometimes stamped 'Treated As: Top Secret/SCI.' Experts in and out of government said Cheney's office appears to have invented that designation, 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.'"

Cheney and his aides are shown running roughshod over any staffers and Cabinet officials who disagree with them -- and turning the rest into willing tools. In one especially newsy revelation, Gellman and Becker write that a memo signed by then-White House counsel Alberto Gonzales was, like much else attributed to Gonzales on the issue, actually the work of David S. Addington, Cheney's formidable general counsel and legal adviser of many years. That particular memo was the one in which Gonzales referred to some provisions of the Geneva Conventions as "quaint."

In today's installment, Gellman and Becker trace to January 2002 the first time the issue of interrogations of terror suspects came up at the White House: "From that moment, well before previous accounts have suggested, Cheney turned his attention to the practical business of crushing a captive's will to resist. The vice president's office played a central role in shattering limits on coercion in U.S. custody, commissioning and defending legal opinions that the Bush administration has since portrayed as the initiatives, months later, of lower-ranking officials. . . .

"Cheney and his allies, according to more than two dozen current and former officials, pioneered a novel distinction between forbidden 'torture' and permitted use of 'cruel, inhuman or degrading' methods of questioning. . . .

"Geneva rules forbade not only torture but also, in equally categorical terms, the use of 'violence,' 'cruel treatment' or 'humiliating and degrading treatment' against a detainee 'at any time and in any place whatsoever.' The War Crimes Act of 1996 made any grave breach of those restrictions a U.S. felony. . . .

"The vice president's counsel proposed that President Bush issue a carefully ambiguous directive. Detainees would be treated 'humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of' the Geneva Conventions."

Cheney's office also gets linked to another notorious document, the " torture memo," which narrowed the definition of "torture" to mean only suffering "equivalent in intensity" to the pain of "organ failure . . . or even death."

And John C. Yoo, the Justice Department lawyer hitherto widely considered the administration's most passionate advocate for torture, actually was trying to hold Cheney's office back at one point: "Yoo said for the first time in an interview that he verbally warned lawyers for the president, Cheney and Defense Secretary Donald H. Rumsfeld that it would be dangerous as a matter of policy to permit military interrogators to use the harshest techniques, because the armed services, vastly larger than the CIA, could overuse the tools or exceed the limits. 'I always thought that only the CIA should do this, but people at the White House and at DOD felt differently,' Yoo said. The migration of those techniques from the CIA to the military, and from Guantanamo Bay to Abu Ghraib, aroused worldwide condemnation when abuse by U.S. troops was exposed."

And even Addington at one point apparently felt Cheney was going too far. Deputy White House counsel Timothy E. Flanigan told The Post that Addington personally felt detainees should be granted access to lawyers, but he beat back such a proposal "because that was the position of his client, the vice president."

Gellman and Becker also describe how Cheney managed to get little-noticed adjustments made in both the anti-torture amendment championed by Senator John McCain and the bill authorizing military commissions in the wake of a Supreme Court ruling that had outlawed them. "For all the apparent setbacks, close observers said, Cheney has preserved his top-priority tools in the 'war on terror.'"

Some Initial Reaction

Doug Feaver looks through readers comments at washingtonpost.com and concludes: "Many of those who commented are angry not only about what the articles report but also about the fact that they did not come sooner, a reiteration of the charge that the so-called MSM (mainstream media) have missed the boat in reporting on this administration.

"The calls for impeachment that have been coming from the far left reverberate throughout the conversation, as does the suggestion that President Bush is a Cheney puppet. Some call for congressional action. Support for Cheney comes from a small percentage of those who have weighed in."

Laura Rozen blogs: "Cheney will go to his grave like others before him thinking he was a great patriot who should not be bound by the laws of this country, or the laws of war. But even with all that secret extra-legal power he yielded and bestowed for all these years, he couldn't show success on any front when it mattered."

Steve Benen blogs: "As the Post's profile makes clear, Bush has spent the better part of the last six years simply going along with Cheney's demands. Dan Quayle characterized this as Cheney taking on the role of 'surrogate chief of staff.' The reality is more disconcerting -- Cheney has routinely been the 'surrogate President,' with Bush putting his signature on the VP's ideas because the VP told him it was the right thing to do. . . .

"Meet George W. Bush, the not-so-innocent bystander of his own presidency."

What's To Be Done?

Michael Duffy points out in Time: "Cheney remains quite powerful. That is at least partly because, unlike other powerful figures who became liabilities in previous administrations, there is no moving him along. You can't fire him. You can't reorganize him into another job. You can't compost him -- and find someone to squeeze in on top of him. And there is no evidence that Bush would if he could, though just about every Republican I know privately wonders about this. One former Bush adviser posed the question in a recent conversation: After Iraq, does the President weigh Cheney's advice in the same way?"

The Guantanamo Example

So, has Cheney lost his mojo? Here's a test case.

Helene Cooper and William Glaberson write in the New York Times: "The Bush administration acknowledged Friday that its top officials were once again actively debating recommendations about how and when to close the detention facilities at Guantanamo Bay, Cuba, but officials said they thought it could be weeks or months before a decision was made. . . .

"The revival of a bitter, long-running debate behind closed doors in the Bush administration comes only a few months after the Secretary of Defense Robert M. Gates and Secretary of State Condoleezza Rice told President Bush that they believed that Guantanamo's continued existence was undercutting American foreign policy efforts around the world, and would ultimately prove a stain on Mr. Bush's legacy. . . .

"Mr. Gates and Ms. Rice met strong resistance from Attorney General Alberto R. Gonzales, who argued that moving the prisoners to American prisons would open a floodgate of litigation. Vice President Dick Cheney has also been reported to be a staunch opponent of transferring prisoners to American soil.

"But Mr. Gonzales has been badly weakened by the political dispute over the dismissals of United States attorneys, and Mr. Cheney's influence has been on the wane, officials say."

Stay tuned.

Cheney Retrospective

A few scenes from some of my past columns:

Aug. 14, 2006: "By insinuating that the sizeable majority of American voters who oppose the war in Iraq are aiding and abetting the enemy, Vice President Cheney on Wednesday may have crossed the line that separates legitimate political discourse from hysteria."

Jan. 29: "It's becoming increasingly unclear whether anyone outside the White House believes a word he says. Inside the West Wing, Cheney's influence remains considerable. . . . But as his astonishing interview with CNN's Wolf Blitzer laid bare last week, Cheney is increasingly out of touch with reality. He seems to think that by asserting things that are simply untrue, he can make others believe they are so."

Feb. 7: "Another memorable scene of the inner workings of the Bush White House unfolded yesterday in the federal courthouse where former vice presidential chief of staff Scooter Libby is on trial. This one is particularly significant because it gives credence to the widespread view that Vice President Cheney oversees his own intensely secretive, highly defensive and sometimes ruthless operation within the White House -- and that he does so with President Bush's approval, but often outside the view of Bush's top aides."

April 6: "Faced with overwhelming evidence to the contrary, even President Bush has backed off his earlier inflammatory assertions about links between al-Qaeda and Saddam Hussein. But Vice President Cheney yesterday, in an interview with right-wing talk radio host Rush Limbaugh, continued to stick to his delusional guns."

May 29: "Special counsel Patrick J. Fitzgerald has made it clearer than ever that he was hot on the trail of a coordinated campaign to out CIA agent Valerie Plame until that line of investigation was cut off by the repeated lies from Vice President Cheney's former chief of staff, I. Lewis 'Scooter' Libby."

The Fourth Branch?

Peter Baker writes in Saturday's Washington Post: "The White House defended Vice President Cheney yesterday in a dispute over his office's refusal to comply with an executive order regulating the handling of classified information as Democrats and other critics assailed him for disregarding rules that others follow.

"White House spokeswoman Dana Perino said Cheney is not obligated to submit to oversight by an office that safeguards classified information, as other members and parts of the executive branch are. Cheney's office has contended that it does not have to comply because the vice president serves as president of the Senate, which means that his office is not an 'entity within the executive branch.'

"'This is a little bit of a nonissue,' Perino said at a briefing dominated by the issue. Cheney is not subject to the executive order, she said, 'because the president gets to decide whether or not he should be treated separately, and he's decided that he should.'

"Democratic critics said Cheney is distorting the plain meaning of the executive order. 'Vice President Cheney is expanding the administration's policy on torture to include tortured logic,' said Senate Majority Whip Richard J. Durbin (D-Ill.). 'In the end, neither Mr. Cheney or his staff is above the law or the Constitution.'"

Josh Meyer writes in the Los Angeles Times: "Although it doesn't specifically say so, Bush's order was not meant to apply to the vice president's office or the president's office, a White House spokesman said."

White House spokesman Tony Fratto "conceded that the lengthy directive, technically an amendment to an existing executive order, did not specifically exempt the president's or vice president's offices. Instead, it refers to 'agencies' as being subject to the requirements, which Fratto said did not include the two executive offices. 'It does take a little bit of inference,' Fratto said.

Fratto apparently couldn't explain why Cheney's office followed the rules until 2003 -- or why the National Security Council, among other White House offices, complies to this day.

David Jackson writes in USA Today: "If Vice President Cheney believes his office is not an 'entity within the executive branch,' then a House Democratic leader says taxpayers shouldn't have to finance his executive expenses."

See my columns on Thursday and Friday for more.

Editorial Watch

USA Today: "Though Cheney's office selectively leaked classified material to buttress the administration's case for invading Iraq, the controversy over security procedures isn't really whether Cheney is being irresponsible with classified documents. He has broad power to classify and declassify. But exempting himself from reasonable restrictions and safeguards on a 'trust me' basis simply says that he considers himself to be above the law and his actions to be beyond review.

"Administration defenders should stop to think: Would they really want a Democratic president and vice president to take such an elastic view of the law if the White House changes hands next year?

"Whichever party is in power, it's hard to imagine a surer way for leaders to get the country in trouble than to mix arrogance with secrecy."

The New York Times: "President Bush has turned the executive branch into a two-way mirror. They get to see everything Americans do: our telephone calls, e-mail, and all manner of personal information. And we get to see nothing about what they do. . . .

"Governments have to keep secrets. But this administration has grossly abused that trust, routinely using claims of national security to hide policies that are immoral and almost certainly illegal, to avoid embarrassment, and to pursue Mr. Bush's dreams of an imperial presidency."

The Philadelphia Inquirer: "It's all of a piece with a troubling view of the presidency that affords it expansive powers with few checks. The focus here is on Cheney. But while the vice president may look like a loose cannon, he could not operate as he does -- certainly, not ignoring an executive order -- without his boss' implicit approval."

The Fort Worth Star-Telegram: "The intransigence is especially significant because in the aftermath of the 9-11 terror attacks, Cheney legal counselor David Addington devised procedures 'to insure that virtually all important documents relating to national-security matters were seen by the vice-president's office,' The New Yorker reported last year.

"If the vice president can't be monitored in even this minimal way, how can he be held accountable? . . .

"The Bush administration has -- erroneously, in many cases -- grabbed broad executive powers. But even a wimpy president ought to be able to expect the vice president to comply with an order covering executive entities. Unless we're ready to delete the Vice before Cheney's name."

The Sacramento Bee: "It has long seemed that Vice President Dick Cheney believes that laws don't apply to him, but now it's official. . . .

"Cheney's claim is not the most serious of the administration's efforts to put itself above the law. It is, however, one of the most blatant -- and most gallingly arrogant -- examples."

The Honolulu Star-Bulletin: "The issue is but one in which Cheney has pulled a cloak of secrecy over his office. He has blocked information about who visits his home and office, his political appointees, where he travels and how much his travel costs, among other matters. While some of these may be rightly kept secret, the vice president has come to believe he is free from checks or scrutiny. He needs to be dissuaded."

The Roanoke Times: "The power-hungry muscle that Cheney, by all appearances, is able to flex within the administration is mind-boggling. Worse, it is just one of many illustrations of a strong leaning toward secrecy that runs counter to basic principles of democratic governance. Cheney has demonstrated an eerie ability to get those around him to come along for the cloaked ride.

"Cheney's desire to circumvent the executive order's purpose -- to 'prescribe a uniform system for classifying, safeguarding and declassifying national security information' -- raises serious questions about his ability to protect national security secrets. Already, his track record is shaky."

And Maureen Dowd writes in her New York Times opinion column (subscription required): "It's hard to imagine how Dick Cheney could get more dastardly, unless J. K. Rowling has him knock off Harry Potter next month. . . .

"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.

"I guess a man who can wait 14 hours before he lets it dribble out that he shot his friend in the face has no limit on what he thinks he can keep secret. Still, 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."

Warrantless Wiretapping Watch

Gellman and Becker describe how Cheney and his loyalists kept their warrantless wiretapping plan secret from officials who were likely to object. Their decision not to try to find accommodation with their critics reverberates to this day.

Michael J. Sniffen writes for the Associated Press: "A federal judge who used to authorize wiretaps in terrorist and espionage cases criticized President Bush's decision to order warrantless surveillance after the Sept. 11 attacks.

"Royce Lamberth, a district court judge in Washington, said Saturday it was proper for executive branch agencies to conduct such surveillance. 'But what we have found in the history of our country is that you can't trust the executive,' he said at the American Library Association's convention.

"'We have to understand you can fight the war (on terrorism) and lose everything if you have no civil liberties left when you get through fighting the war,' said Lamberth, who was appointed by President Reagan. . . .

"'The executive has to fight and win the war at all costs. But judges understand the war has to be fought, but it can't be at all costs,' Lamberth said. 'We still have to preserve our civil liberties. Judges are the kinds of people you want to entrust that kind of judgment to more than the executive.'"

Detainee Watch

And in the latest detainee news, Carol D. Leonnig and Josh White write in The Washington Post: "A military officer and former member of a Pentagon unit that decided to indefinitely imprison some detainees from Afghanistan and Iraq has said in a sworn affidavit that the process of reviewing their cases was 'fundamentally flawed' and that the results were influenced by pressure from superiors rather than based on concrete evidence.

"Stephen Abraham, a lieutenant colonel in the Army Reserve and a lawyer, said the military placed too much weight on unsubstantiated statements by intelligence agencies in deciding that the detainees were enemy combatants, according to his affidavit. That conclusion meant that the detainees could be kept in a prison in Guantanamo as long as the U.S. military wished. . . .

"The tribunals at the heart of Abraham's concerns have long been controversial because their verdicts are pronounced by three military officers after brief hearings, and detainees are frequently denied an opportunity to call witnesses who can testify on their behalf. Detainees also are not entitled to have an attorney present, and they have no right to see classified materials relevant to their fate.

"The Defense Department started the process at Guantanamo in August 2004, after the Supreme Court said the United States could not hold prisoners indefinitely without a competent review."

William Glaberson writes in the New York Times: "Military officials have said they scoured intelligence records to ensure that the detainees were terrorists and other enemies of the United States. But Mr. Abraham portrayed a haphazard and arbitrary process, and he took issue with military assertions that there were careful reviews to gather any evidence that might clear detainees."

Cartoon Watch

Ann Telnaes on Cheney as Richard III.

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