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Vice: The Dispiriting Legacy of Dick Cheney | The Nation

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Vice: The Dispiriting Legacy of Dick Cheney

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Gellman says that Cheney "liked to hear a lot of competing views," not in order to prepare his rebuttals but because he was serious about governance and wanted to learn "what would work and what would not." But the general portrait of Cheney that emerges from Angler does not fully support such a charitable interpretation. Cheney repeatedly scoffed at the idea of national security officials being "second-guessed by congressional committees, inspectors general, and the FBI," as if statutorily required oversight, including military-style after-action reviews, could never improve executive branch performance. Cheney's circumvention of due process and constitutional checks may have reflected his visceral dislike of sharing power with people he could not control. But it also seems rooted in a deep intellectual lapse.

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Stephen Holmes
Stephen Holmes teaches at the New York University School of Law. His most recent book is The Matador's Cape: America's...

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The Berkeley law professor's carte blanche constitutionalism was a gift
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According to Gellman, "Cheney and Addington often said that fear of the law had neutered intelligence agencies since the 1970s." The prospect of personal liability for war crimes, written into law by liberals, unmanned the wielders of America's hard power, they argued. Rather than being assets in the "war on terror," legality and due process were therefore liabilities. The obligation to obey the law indirectly helped America's enemies by reducing "battlefield" options and promoting timorousness and an excess of caution. From this flawed analysis, it followed that the most favorable terrain on which the United States could conduct its struggle with jihadism was the domain of illegality. The power to fight terrorism effectively included, above all, the power to indemnify executive branch operatives from any criminal penalty for violating laws purporting to regulate interrogation, detention or domestic surveillance.

The notion that law and the procedures of the criminal justice system, as a general matter, reduce operational flexibility against terrorists stems from tunnel vision. Due process can make a positive contribution to counterterrorism, despite what American conservatives frequently allege, because it compels executive officials to give plausible reasons for their actions, thereby creating over the long run an incentive for executive officials to have plausible reasons for their actions, especially for their use of coercive force. Some prosecutors may be annoyed that public trials, evidentiary rules, independent judges, juries and the like make it harder for them to put away "obviously guilty" suspects. But an important purpose of the procedural architecture of due process is to compel law enforcement authorities to adapt to reality even when it flatly contradicts their pet hunches. If prosecutors could imprison suspects on the basis of undisclosed information or outright speculation, never vetted in a neutral forum or challenged by knowledgeable parties, their actions would not be flexible but arbitrary. Situational awareness and self-correction are products of institutional protocols, not of unrestrained executive discretion, which may--and in the case of the Bush administration, did--write a blank check to people with chronically inflexible minds.

Why would Cheney flatly deny that due process and other forms of government self-restraint, such as abstention from torture, can make a positive contribution to national security? One reason might be that he overestimates the probative value of hearsay and circumstantial evidence. A central function of due process is to prevent the criminal justice system from being manipulated by witness malice. Cheney rejects, or does not see, that evidentiary standards, notice, discovery rules and the right to confront adverse testimony help weed out false evidence and testimony introduced by people with illicit private agendas (think Ahmed Chalabi). Thus, he consistently argued that after 9/11, "the government had to shake off old habits of self-restraint" to be effective. Yet traditions of self-restraint have survived, in a dangerous and often unforgiving environment, because, on balance and over time, they make coercive measures more effective.

Why would a system designed to cauterize spirals of violence, by separating perpetrators from bystanders, be made obsolete by the emergence of international Salafi terrorism? After all, international Salafi terrorism is a movement that, whatever its spokesmen say about "cosmic war" and the clash of civilizations, is always fueled by a desire to retaliate for past crimes allegedly or actually committed by the West. But instead of favoring criminal justice, with its emphasis on individual culpability, Cheney embraced the "war model" of counterterrorism. He favored war-fighting over crime-fighting on the spurious grounds that the former is "more aggressive" than the latter. By "more aggressive" he apparently meant "less discriminating." War fighters are much less likely than crime fighters to be held legally liable for killing and maiming innocent bystanders. As a result, law cannot "neuter" soldiers the way it does police officers, hamstrung by the imperative to sort the guilty from the innocent.

Through 2006, Cheney continued to claim that superior US firepower would crush the Sunni insurgency, then purportedly in its "last throes." After force majeure had failed to quell the violence, Cheney finally acknowledged that, in the words of a US counterinsurgency specialist, "the war could not be won without driving a wedge between committed adversaries and ordinary POIs--short for Pissed Off Iraqis." But he never seemed to have absorbed the underlying lesson that escalated military aggression has diminishing returns. Civilian casualties especially can be counterproductive, because killing innocent bystanders in a revenge culture like Iraq's will reduce the eagerness of civilians to turn insurgents over to the authorities.

Cheney's insistence that "history" will vindicate his actions, despite his off-the-charts unpopularity, also seems hubristic, if not delusional. As Armey told Gellman, this boast seems to be an important source of solace for the former vice president. It cannot be refuted, of course, because no one can foresee with certainty the retrospective judgments of future generations. It is a Cheneyesque belief--one that can never be tested by reality. By explicitly placing more trust in the unobservable than the observable, Cheney seems to be confirming the suspicions of those who see his exaggerated self-confidence as a symptom of chronic disconnection from reality.

Lincoln said, optimistically, that you cannot fool all of the people all of the time. But a better epitaph for Cheney's vice presidency comes from Joseph Schumpeter: even if you cannot fool all of the people all of the time, you can fool enough people long enough to do irreversible damage. Whatever hypotheses we entertain or reject about Cheney's motives and mental states, the consequences of his serial duplicities continue to misshape our world and will not, by any means, be soon repaired.

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