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Cheney’s Law Case Analysis Essay

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Updated: Sep 6th, 2021

Introduction

After the September 11, 2001 attacked in the United States, national securities have been the priority of the government of President George W. Bush. At the same time the media have focused their attention on the matters of government policies and actions towards this matter. On October 16, 2007, Frontline-PBS telecasted the documentary entitled Cheney’s Law.

Summary of Cheney’s Law

Cheney’s Law is a step by step account of the actions taken by Vice President Dick Cheney to enhance the executive power of the president, as the Commander in Chief in times of war. It was stated in the documentary that Cheney, through his exposure to the past three presidents (Nixon, Reagan, and Bush) of the United States, strongly believes that the president does not need to seek congressional authorization and can act on its own especially in matters of national security and threats.

David Addington, Cheney’s lawyer, an extremely intelligent, forceful lawyer and holds well grounded views on a lot of issues, is also believed to be upholding the same views as Cheney’s. He is also believed to have well-versed knowledge on the legality on the matter of national security. Sharing the same thoughts and having appropriate knowledge of the law, Cheney and Addington worked together and said to have become one of the most powerful duos since 1980’s.

On 1996, Cheney was the defense secretary of George H.W. Bush and insisted that the president does not need to seek authorization from the Congress to launch a war against Kuwait. But Former President Bush disregarded his views and went on a congressional vote on this matter. Since then, Cheney’s idea for the president to have unlimited power in times of war put on hold for more than eight years until he became the Vice President of the United States for the younger Bush Administration. Cheney and Bush shared the same views with regards to extending the powers of the executive branch.

The September 11, 2001 incident was said to be the moment where Cheney solidified and acted on the principle that the president has to have extraordinary powers to ensure national security. Together with Addington, they took the initial step by asking John Yoo of the Office of the Legal Council (OLC) to make a legislation authorizing the president to wage war globally, to exhaust all means in order to stop all terrorism acts, and to execute those who were responsible for the previous attacks. On September 14, 2001, the legislation was submitted to Congress for approval. Unfortunately, just as what Cheney and Addington feared, the Congress denied the legislation and stood firmly that the president should not have an extensive power to take military action globally and locally. But Cheney, Addington, et.al went on with their plans justifying that the country is in state of emergency. They then secretly asked the Justice Department, through the OLC for another legal memorandum. The memo was officially signed by John Yoo stating that the president has “broad constitutional power to use military force in the time of war as the commander in chief and can use any means against any enemy and in any territory”.

Having the complete authority to wage war and arrest suspicious terrorist, they asked Ambassador Pierre-Richard Prosper to make a proposal on how to handle the arrested suspected terrorists. While Prosper and the State Department were working on the plan, Cheney and Addington had already made a plan of their own. They wanted suspected terrorists and enemies of the United States be held as far as possible and would not have any access to any civilian courts. Just before the State Department handed over their proposal, Cheney and Addington acting on their own plan, secretly asked the OLC to sign another memorandum authorizing the creation of the special military tribunal, without any consultation from any branches of the White House, not even the secretary of defense. Consequently, the president approved the memorandum.

In the fall of 2002, Jack Goldsmith, a conservative law professor became one of the defense attorneys. He and other lawyers went to Guantanamo Bay Detention Camp where foreign and American citizens where held detained in solitary confinement with no access to lawyers. Meanwhile, Addington, Yoo, et.al approved new interrogation policies. Basing on the previous memorandum stating that all means can be executed, they redefined torture in such a way that it is inoffensive.

Yoo resigned in 2003 when he was not appointed by Attorney General John Ashcroft as the head of the OLC. In turn, Jack Goldsmith was appointed as the OLC secretary-general and which eventually started his education into the Bush-Cheney agenda. The issue at hand was that Iraqis were protected through the Geneva Convention against coercive measurements and interrogation. Cheney and Addington were against this but Goldsmith, after thorough research, vehemently disagreed. In the end, they could not do anything but comply with Goldsmith.

After that debacle, Goldsmith read memorandums and legislations signed by Yoo giving the president unlimited and extensive powers. Of these legislations, the most controversial was the piece called the “Crown Jewel”. This program secretly authorizes the National Security Agency (NSA) to gather personal information from Americans through intercepting or capturing E-mails, messages, and international calls. Congress prohibited this act in the 1970’s without prior approval from the special court. Unquestionably, the memorandum has flaws and errors, to which Goldsmith shared with James Comey and Attorney General Ashcroft. Ashcroft had been reauthorizing the program every 45 days for the past two years and it was then due for him to sign it again. At that moment, Ashcroft held back until he got severely sick. Comey was appointed as the acting Attorney General. He was skeptical about authorizing the program based on legal matters and issues and eventually decided against it. The president sent his Chief of Staff and Atty. Gonzales to the hospital and asked Ashcroft to reauthorize the program, but Ashcroft refused. In the end, President Bush himself reauthorized the program.

In the fall of 2004, Bush and Cheney were re-elected. Top officials like Ashcroft, Comey, Goldsmith, et.al resigned from their posts. Bush then appointed Atty. Alberto Gonzales, he’s own lawyer, as the Attorney General of the Department of Justice. Bush-Cheney, through Gonzales, began to take control of OLC. They needed an ally and thus appointed Steven Bradbury to replace Goldsmith. To prove Bradbury’s loyalty, he authorized the harshest interrogation techniques to be conducted. For that, President Bush nominated Bradbury as the permanent head of OLC. In conjunction, Vice President Cheney was confronted by an issue raised by Congress regarding the infliction of torture to suspected terrorists both locally and in Iraq. The Congress was appalled and even conservative republicans questioned the use of torture. A Senator from Arizona, John McCain introduced the anti-torture resolution which eventually gained popular support. Vice President Cheney began to act and lobbied against McCain. President Bush then threatened to use his veto power on this resolution but with 90 to 9 votes, the Senate rebuked the White House. The president then publicly accepted Mccain’s resolution and signed the bill. But after signing the bill he also made, through Addington, a “signing statement” asserting that even though he signed the bill into law, it was unconstitutional and not applicable because it infringes his power as president and as commander in chief. In fact, the signing statement defeats the purpose of the law. This was strengthened by the OLC through a classified legal input which limited the McCain Amendment. In effect, the White house managed to do what they wanted to do.

As was found out, the White House issued hundreds of signing statements in order to extend the powers of the executive branch. The author of these singing statements was Addington. Signing statements contain more than one thousand implicit constitutional challenges to acts of Congress. Simply put, it was a showdown between constitutional powers of the Congress and the Executive branch.

During the midterm election in 2006, the Democrats won in both houses of Congress. Congress wanted to regain their power and began to investigate. They started with the “Crown Jewel” program and subpoenaed former Attorney General James Comey. Comey revealed the “hospital story” and the reasons why he threatened to resign. The Congress wanted to gather more information so they subpoenaed people and documents from the Vice President’s office including those from the OLC. But the Vice President’s office declined claiming that they have executive privileges protecting national secrets and policy deliberations. The White House in turn sent Attorney General Alberto Gonzales. However, Atty. General Gonzales was unable to defend and submitted his resignation after a month.

As much as Congress wanted to clear matters, it was very difficult for them to subpoena an executive branch bent on using its executive privileges. Judge Michael Mukasey was nominated to be Attorney General by President George W. Bush on September 17, 2007, and confirmed by the United States Senate on November 8. He entered duty on November 9. David Addington was promoted to Vice President Cheney’s Chief of Staff replacing Scooter Libby. As for Vice President Cheney, it is believed that he will continue to adhere to the same principles that the executive branch should have extensive, unlimited, and unilateral powers in times of war. To quote, victory does not go to the swift nor to the strong but to he who endure in the end. Thus, no doubt Vice President Cheney will endure in his battle but the question of winning is still unclaimed.

Relevance to the Theme of the Study

The issue at hand here is mainly protecting America. After seeing the show, several questions came to mind. One, did Bush-Cheney administration really protected America in times of war with the use of unlimited powers of the president? Two, did Cheney uphold to protect America by using all means possible to extend the powers of the president? Three, does having extensive powers of the executive branch protected America? Four, were the actions of Bush, Cheney, et.al constitutionally bounded to protect America? Last, up to what extent this unlimited power would be?

America is a democratic country bound by its Constitution. When Bush-Cheney took actions through signing statements, secret meetings, hidden memos, etc. to extend or create unlimited powers of the executive branch, were they really protecting America constitutionally? Their efforts to increase presidential powers at the expense of or worse, at the complete disdain for law is open for democratic action and debate to properly balance political power in our nation as the constitution demands.

Yes, Vice President may be right to fight to change existing laws pertaining to executive privilege if he believes that a stronger executive benefits the people, especially in case of war. After six years, the country is still at war and Cheney is still bent on pursuing complete and unlimited powers of the president. But the question remains, are his actions constitutionally bounded? In answer, his motives may be correct but his actions are an utter display of disregard for a democratic constitution. Simply put, he is completely bending the law which is supposed to be for the people. By ignoring the law, he actually left America unprotected and abused the rights and freedom of American people in pursuit of his own agenda.

During the regime of Hitler, his extensive power resulted to a massive death of millions of people not only Jews but also the Germans and destruction of properties. If the president has extensive and unquestionable power, how would the people verify if indeed the actions taken have been necessary and would actually benefit the country?

Imagine if Bush and Cheney could actually bend the constitutional law at this point with the given constitutional power of the Congress, Senate and Justice how much more what they are capable of if by virtue of law the extensive power is bestowed on the Executive branch.

Questions on “protecting America”

Democracy is for the people and by the people. No one is above anyone when it comes to issues concerning the nation and the citizens. It offers life, equality, civil rights, human rights, privacy, liberty, freedom of expressions, access to public documents, separations of power, check and balance, and order to live a lawful life and in harmony. Given these rights, the question is did Bush, Cheney, Addington, et.al, denied American people of these rights? In my opinion, they did. They stripped Americans people without their knowledge of what should be democratically and constitutionally their civil rights and liberties. How? With the creation of the “crown jewel” program of the NSA with secret authorization of Bush-Cheney and OLC, American people were taken their rights away. Inhumane treatment of prisoners of war and so called enemies of America were a total violation against what was stipulated in International Laws as well as with American values and ways. Another is the total disregard for the political exercise of power of other branches of government such as Congress, Senate, Department of Justice, etc. and shifting this power to the executive branch. Indeed, all these are acts of violations against civil liberties and rights, total disrespect for the Constitution and its people, and dictatorial pursuit of power. When people’s rights are desecrated within the nation by upholders of the Constitution, then how is it protecting the very essence of national security? In fact, who are really the enemies of the people of America? Is it the people of Iraq to whom we are at war? Or is it the secret power of the executive branch of government? The answer to these questions is left for Americans to debate upon. But to my knowledge, yes, we are at war. But it is not a thousand of miles away from America in a land called Iraq. WE and our Constitution is at war with our enemy, the most powerful man in the whole world and its administration.

To end, although our country is in a state of political catastrophe and national fear, I would like to remind myself as an American with these words from Honorable Tom Lantos, of the House of Representatives and co-chairman of the House Human Rights Caucus.

As the sole remaining superpower, we have a special global obligation to the poor, to the tortured, to the prosecuted, to the persecuted, to the refugees and the voiceless. Anything less than full commitment to these human rights would be a betrayal of our own convictions and beliefs as a nation and of our responsibilities spelled out in our Constitution and the Bill of Rights.

References

  1. Web.
  2. Department of Justice. FISA 101: Why FISA Modernization Amendments Must Be Made Permanent.
  3. Kirk, M. (2007). . Web.
  4. Lantos, T. (1998, October). Free and Equal. The Universal Declaration of Human Rights at 50. Volume 3, Number 3, Page 20.
  5. Mayer, J. (2006). The Hidden Power. The New Yorker.
  6. . Web.
  7. APA Electronic Reference List.
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