Cheney Behind Warrantless Wiretapping Rationale, Reveals Study

A top journalist has written a fascinating study of Dick Cheney’s involvement in the conquest of Executive Branch power. Cheney Behind Warrantless Wiretapping Rationale, Reveals StudyBy Cliff Montgomery – Dec. 27th, 2008Patrick Radden Keefe is a long-time contributor to Slate and The New Yorker magazines, and also has penned the book CHATTER: Dispatches from the Secret World of Global Eavesdropping.In November, the online journal Index on Censorship published a series of reports on the Bush Administration’s destruction of American free expression and democratic oversight in government. Keefe wrote a fascinating study of Dick Cheney’s involvement in the conquest of Executive Branch power.”In December 1974, [The New York Times‘] Seymour Hersh revealed [the existence of] an extensive domestic spying program,” wrote Keefe.”President Richard Nixon had only recently resigned, and the new president, Gerald Ford, was faced with a scandal.”One of Ford’s aides, a young man…named Dick Cheney, proposed forming a presidential commission to investigate the allegations, in the interests of ‘heading off congressional efforts to further encroach on the executive branch’.”But at that time, “Congress was controlled by Democrats–Democrats who remained incensed over the executive abuses of the Watergate era,” wrote Keefe, “and before long separate Senate and House committees were investigating” these abuses of power.”Led by Senator Frank Church and Representative Otis Pike, these committees assumed an openly adversarial posture toward the executive branch,” stated Keefe, “and proceeded to dig tenaciously through the secret activities of America’s intelligence agencies.””One of the major achievements of this period of prolonged investigation was the passage, in 1978, of the Foreign Intelligence Surveillance Act,” normally referred to as FISA, “which established a prohibition on the warrantless surveillance of Americans.””President Ford signed the law over the fierce objection of the young Dick Cheney,” noted Keefe. The journalist added that Cheney “regarded [FISA] as an impermissible constraint on the inherent authority of the president.””Thirty-one years to the month after Seymour Hersh’s original scoop, the Times ran another front-page story”…revealing that “George W. Bush had secretly authorized the National Security Agency to conduct warrantless domestic surveillance, in apparent violation of the 1978 law.”Once again, “legislators from both political parties responded to the news of the Bush administration’s warrantless wiretapping program with vows to…hold the administration accountable.””But at this point the two narratives of illegality leading to expose´, investigation and reform diverge,” wrote Keefe, “because by 2005 the young Ford administration staffer Dick Cheney…was vice president, and he was not going to stand by and allow the legislative branch to investigate or admonish the executive once again.”One of the Bush Administration’s main arguments for its illegal power grab is an obvious sophistry, a bald-faced sweeping generalization on presidential power. It also is “an argument that Dick Cheney had been making for decades,” Keefe wisely noted.”Administration lawyers argued that the language of Article II” of the U.S. Constitution, “in which thepresident’s power as ‘commander-in-chief’ is established, must be read in the broadest possible manner,” stated Keefe.”As such, any statute passed by Congress that might constrain or infringe upon the expansive powers entailed in Article II” is a de facto “undue incursion by the legislative branch.””Under this reading,” Keefe skillfully noted, “the problem was not that the Bush administration had violated the Foreign Intelligence Surveillance Act,” but rather “that the law passed in 1978 was unconstitutional.””And rather than challenge the constitutionality of the law in the courts, or appeal to Congress for some legislative amendment,” the study declared, “the administration had chosen instead to simply set it aside. Legal scholars dubbed this, ‘The Article II on Steroids Theory’.”But Keefe also is smart enough to level an equal criticism at a gutless Congress, who let this dictatorial administration get away with so much in the first place.Whereas the 1970s congressional investigations “prompted soul-searching and debate” about what powers the U.S. government “should be able to exercise inside the country in the name of national security,” the weak-kneed efforts from Congress on this subject during Dubya’s tenure “served instead to underline the fact that there would be no real debate on the issues, no truly informed public evaluation” on the inherent dangers of an unrestricted state surveillance, wrote Keefe.Thus “the story of what happened between the December 2005 revelation of the warrantless surveillance program” and the 2008 passage “of the most sweeping piece of wiretapping legislation since the Foreign Intelligence Surveillance Act, is one not of checks and balances” between a strong-willed Congress and “a power-hungry president, but of congressional capitulation so pronounced that it borders on abdication.”Like what you’re reading so far? 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