Vice: The Dispiriting Legacy of Dick Cheney
The most proficient bank robber is no doubt the one who once supervised the bank's security system. As President Ford's chief of staff in 1975-76, Cheney possessed an insider's knowledge of the White House protocols and procedures designed to prevent policy-making from being captured by a narrow faction or clique within the executive branch. Some sort of statutory interagency process, managed by the chief of staff, has existed for decades to ensure that the president can benefit from the conflicting counsel of his various cabinet officers and major advisers. A central component of this system is the circulation of drafts of major policy initiatives to make sure that all parties with a substantial stake in the outcome have a chance to make comments about potential drawbacks and lodge objections before a policy is made official. An orderly paper trail, managed by the chief of staff, increases the chances that the evidence and arguments driving policy will be tested against contrary views. This staffing system was systematically short-circuited in the Bush White House by former chief of staff Cheney and his inner circle. To strengthen their stranglehold on policy-making, they made sure that neither political rivals nor "career civil servants, unbeholden to the White House," in Gellman's words, were "read in" when policies were being made. As a consequence, dissenters had little or no opportunity to present an alternative case to the president.
To circumvent the interagency process in the Bush White House, Cheney first had to take charge of appointments. He began during the 2000 presidential campaign by securing control of the vice presidential selection process, collecting damaging information on potential candidates and getting himself named to the spot. Even before the Supreme Court declared Bush the winner of the election in December 2000, Cheney had begun to dominate the coming presidency. On the principle that "personnel is policy," as Gellman tells the story, Cheney managed to seed the entire executive branch with loyalists who could help him effect his will informally, regardless of official titles or chains of command: "Cheney worked through proxies, and proxies of proxies." He detailed these devotees to second- and third-tier positions, especially in agencies concerned with national security and energy policy. This covert network of surrogates allowed him to pursue a highly partisan agenda while avoiding the critical scrutiny and backlash that might have been triggered by any policy advocated aggressively by the high-profile vice president himself. Indeed, Cheney was able to double his effectiveness by feigning open-mindedness about a range of options during initial discussions and, when the moment of decision arrived, coming down in favor of policies that, in reality, his proxies had initiated under his whispered instructions.
Instead of abolishing the interagency process, Cheney gamed it, creating a parallel process that mimicked the one it undermined. Such was the homage Vice paid to virtue. His back-channel parody of multiagency consultation was "the key to Cheney's dominance of the 'war on terror,'" Gellman says. A pre-eminent player in this shadow process was John Yoo, the conservative and controversial University of California law professor who served in the Justice Department's Office of Legal Counsel (OLC) from 2001 to 2003. As Cheney's and Addington's most valuable proxy, Yoo was, in Gellman's phrase, "the fulcrum of the lever that Cheney pulled to move the world." It is true that Cheney and Addington "manipulated the legal advice they sought" from the like-minded and eager-to-please young lawyer. But Cheney needed Yoo for a procedural reason: "With the OLC's writ, any federal agency could do as the vice president asked." And Yoo copiously complied: "In a prolific run of opinions that fall and winter, Yoo claimed without limitation that the president could disregard laws and treaties prohibiting torture, war crimes, warrantless eavesdropping and confinement without a hearing. The breadth of the language was stunning."
Perhaps the "most jarring claim" contained in the memos was one that is again much in the news: "that the president may authorize any interrogation method, even if it indisputably constitutes torture." Treaties and statutes forbidding torture, including the practice of asphyxiating a subject of interrogation until his pulse and blood pressure drop to life-threatening levels, were declared nonbinding on the president during wartime. An August 1, 2002, memo only recently declassified and therefore not discussed by Gellman states that "the waterboard constitutes a threat of imminent death" but nevertheless "would not constitute torture within the meaning of the [anti-torture] statute." While questions about the true authorship of this memo are unresolved (it is signed by Jay Bybee, at the time an assistant attorney general at the head of OLC), its arguments and claims are consistent with the memos about interrogation written principally by Yoo beginning in November 2001. Prominent members of the administration later protested that Yoo's memos, crafted with Addington's guidance, never served as a basis for the harsh interrogation of detainees. But as Gellman comments, "That claim was breathtaking in its dishonesty."
Gellman goes on to say that "Addington insisted on strict secrecy, preventing the circulation of drafts to agencies that might challenge Yoo's analysis." The clandestine and therefore amateurish nature of this rule-making went so far that Yoo's memos were "sometimes kept secret from Yoo's own superiors" at Justice. Indeed, as Gellman explains, the "new legal framework was meant to be invisible, unreviewable--its very existence unknown by legislative or judicial actors who might push back." Growing executive branch reliance on secret, and therefore untested, readings not only of statutes but of the Constitution was not a dilemma, from Cheney's point of view, but an asset.
Such a wanton embrace of secrecy reveals the hypocrisy of another argument, commonly advanced by Cheney's supporters, for expansive executive power in time of crisis: Congress and the courts must defer to the executive in national security affairs because they lack the expertise needed to evaluate executive branch decisions. This argument sounds vaguely plausible at first. But according to Gellman's persuasively documented account, one important reason Cheney concealed sensitive information from Congress and the courts was to conceal it from executive branch experts who disagreed with his policies and the legal analyses or empirical claims on which they were based.
The "unitary executive" celebrated by Cheney's defenders is not an executive that reaches policy consensus by hammering out differences through spirited debate among knowledgeable parties but rather an executive that can be seized and dominated by a single uncompromising internal faction. In such a system, any dissenters throughout the sprawling executive branch's many agencies may be silenced by fiat. (Gellman quotes a "close ally of Cheney" who waggishly referred to the State Department as "basically an al Qaeda cell." Labeling the foreign service of one's own country as treasonous may not seem especially funny; but this sort of Cheneyland "joke" has a lineage within the right wing of the Republican Party going back to Senator Joseph McCarthy's speech on February 9, 1950, accusing the State Department of being "thoroughly infested with Communists.") Secrecy and dispatch served not national security but interagency guerrilla warfare. Cheney's view, as sketched by Gellman, seems to have been that obligatory consultations, rather than improving on balance the quality of decisions, merely increased the level of random noise within the system while impeding fast-track decision-making by those who knew best.