Reading and Discussion: Cheney's Iran-Contra views

by Kagro X

Cross-posted at Daily Kos, but I thought this might get a very different discussion here. Maybe not, but here it is, anyway.

As we move ever closer to the inevitable Constitutional showdown between Congress and the Bush "administration," it becomes increasingly important that we understand to what lengths this gang will go to claim the "right" to do as they please.

When Condoleezza Rice declared on Sunday that the president would defy legislative constraints on the war in Iraq, she was reiterating a belief held throughout this "administration" that the president is unconstrained and unconstrainable by both the courts and Congress in his conduct.

I pointed to John Yoo's explanation of this bizarre interpretation of the Constitution yesterday. Today, it's time to examine some of Darth Dick Cheney's views on the matter.

The relevance of Cheney's long-held views on executive power have been ably illustrated in profiles such as Frontline's "The Dark Side", and The New Yorker's profile of his longtime aide, David Addington. But with each passing day, Americans grow more and more frustrated with the manner in which the "administration" exercises the powers it imagines itself to have. And with each new outrage, it becomes more and more important that we all have some common understanding of the kind of thinking we're up against. Even so, each new outrage makes it more and more difficult (at least for me, personally) to weave together a coherent narrative on that thinking, not least because it touches on so many subjects -- the war, NSA spying, the abusive practices of the Department of Justice in approving discriminatory redistricting plans, etc.

It's with that in mind I think we need to take a look at some of the source materials often identified as critical to understanding the "thought process" of this "administration," and consider together what they mean for the efforts now underway to curtail these imagined powers, and how we'd weave our own narrative out of the record.

I offer today's reading for its relevance to the warnings issued by Rice and others, that the president will defy legislation aimed at forcing troop withdrawals and/or other limitations on the war. It comes from an excerpt from Cheney's minority views from the Iran-Contra committee's report, as presented in Frontline's supplemental material, Cheney In His Own Words:

"Judgments about the Iran-Contra Affair ultimately must rest upon one's views about the proper roles of Congress and the President in foreign policy. ... [T]hroughout the Nation's history, Congress has accepted substantial exercises of Presidential power -- in the conduct of diplomacy, the use of force and covert action -- which had no basis in statute and only a general basis in the Constitution itself. ... [M]uch of what President Reagan did in his actions toward Nicaragua and Iran were constitutionally protected exercises of inherent Presidential powers. ... [T]he power of the purse ... is not and was never intended to be a license for Congress to usurp Presidential powers and functions.

Consider, now, that the initial Democratic response has been to put forward a few variants of non-binding resolutions disapproving of the escalation of operations in Iraq, and that the follow up appears to be consideration of the repeal of the 2002 AUMF.

What do we think Cheney's views mean with regard to these proposed actions, and how far do we think the "administration" has to push this view before Congress realizes there are no limits to it? And what, if anything, do we think it means for what many believe to be the next step, the use of the "power of the purse" to force an end to the war?

Comments

[Sammy]

A discussion this morning at Firedoglake included a exploration of how members of the armed forces could find justification to refuse an order to expand the war. There's a constitutional crisis for you: Let Congress reassert its constitutional powers and responsibilities while the military does its duty by just saying "No, Sir."

[Mimikatz]

Well, the "power of the purse" refers to the need for there to be a Congressional authorization to spend funds and a Congressional appropriation of those funds before money can be spent by the Pres, and money bills have to originate in the house, where the Dems are strongest. So various kinds of funds could be cut off to gain leverage with the Pres, not just funds for the war. How about funds for his pomp and circumstance? Cheney's office? This recalls the Gingrich Congress refusing to pass a budget to Clinton's liking, resulting in Clinton shutting down parts of the gov't. They can also refuse to raise the debt ceiling when the time comes toward the end of this year or next.

I think the Dems need to go slowly, as they are, building a case for Bush's intransigence. The supplemental bill is the best vehicle, because it gets to the heart of the problem. At some point, though, someone has to come right out and say that Bush is conducting an illegal war with powers that he as assumed but doesn't really have. If it is a question of widening the war, the Dems have public opinion. How long can an Admin rule without the consent of the people?

By the end of the year, if not earlier, it will be time for general strikes, don't buy days and selective boycotts. Selective actions in states like NH where vulnerable Senators are.

[KenBee]

Maybe I'm too pessimistic, but I've always thought that they think they have all they need to attack Iran at any time and to any degree.
Ledeen and Jerome Corsi and now certainly people directly from Cheney's off the books operations are salting the mine and have been for a long time.
I also think Iraq and Afghanistan was just step one toward the big prize, Iran. Iran is now completely surrounded by the US military.
I predict that if they do ask Congress, it's for show, the good cop/bad cop applied to diplomacy.Hopefully.
But 'legally', between John Yoo and Abu Gonzales and the AUMF, they are absolutely going to shoot first and ask questions later.
That Congress is stalled and influenced by foreign lobbies and defense contractors adds to that certainty.
Congress will not and probably can't act strongly or quickly enough.
The article describing the threat of resignations from the armed forces is optimistic, but that won't go broad enough to stop anything. There would have to be widespread mutiny even to the point of a military takeover, and that won't happen.
Even a conviction of Libby won't go fast enough, tho great that would be, especially if it rolls on to Cheney. The only outside intervention would be a Meteor or the Holy Blood Clot. Without shooter, bush couldn't get it done. It's all Cheney IMO.
Cheney to Musharraf: 'You mess with us when we go into Iran, and you're gonna be just a blister, got it?'
I'm sorry to be such a bummer, altho I'm secretly hopeful, I'm very pessimistic.

[freepatriot]

does anybody believe these fools have a plan or something ???

george bush demands the power to destroy America, and has NO CLUE what he is really doing in the mideast

are we supporting the sunnis or the shias ???

does anybody know ???

does george realize that the people who attacked us on 9-11-01 were Saudi Sunnis ???

if so, why are we supporting the Sunni extremists in Lebennon and Syria ???

george bush may be lost and confused, but Americans shouldn't oppose george's efforts to fuck everything up

who gives a shit about icebergs, full steam ahead

it worked for the capitan of the Titanic, didn't it

oh, never mind

/emily latella

[greenhouse]

Kagro,

I don't think it's a question of "before congress realizes there are no limits to it". I think they already know they gave too much rope to a president who wants to be a cowboy. Most constitutional scholars believe the Congress has the power of the purse to hamstring executive actions. The question is do they have the political will which is doubtful, at least in the Senate where they probably won't get the 60 votes they need. In any event, limiting funds would do nothing in the event that BushCo expand the war to Iran, at least not in the short run anyway. Cheney's views in regards to the possibility of Congress putting limitations on the AUMF or passing another amendment similar to the Boland Amendment of 1982 would mean nothing because the impact of such an amendment would be immediate and could forestall any military moves planned by BushCo against Iran. Time it would seem is not on our side though with a democratic congress that lacks cohesion and will.

[profmarcus]

there is no stopping bushco from continuing its exercise of what it believes to be unfettered executive power short of a full-blown constitutional crisis... we have over 6 years of incontrovertible evidence that nothing, no matter how outrageous, is beyond this gang... during that time we have become inured to their slow but ceaseless moves to consolidate executive power, and the worst thing of all, is that we don't even know the HALF of it... the recent revelation by seymour hersh that the shadow government we have always suspected, is, under dick cheney's direction, engaging in all sorts of covert chicanery in the middle east, and there's a ton more, you can be sure... the slower we move and the more deliberate we try to be in order to "make the case" in an indisputable manner, the less the chances we will be able to head off a real disaster... the time for action was when the new congressional session began... every day that has passed since then is another day for the bush administration to advance its totalitarian agenda...

http://takeitpersonally.blogspot.com/

[jwp]

In general, I agree with Mimikatz.

Congress will follow public opinion.

In my view, one big hurdle will prevent the mass media from reflexively following the talking points handed out, and hyping the big Iran threat. A propaganda blitz could produce a moment of doubt in public opinion, and that might be enough to freeze Congress for too long.

So, there is a role for blogs and rabble-rousing generally.

[anonymous rex]

We all have to take action. I have written my senators and representatives that we must begin impeachment proceedings against Cheney to stop a war with Iran. Have you? Forget about Bush, he will be a lost child without Cheney. Put the pressure on now.

[oldtree]

We observe this activity, and we ask our government to act to stop the defecation on our constitution
they do not answer
We go to individual branches of the triparte;
we ask congress to stop it. we elect people that say they will. they do not.
we ask our court to stop it. they appear not to be interested in our request. they don't appear to think we know what is good for us.
we ask or executive...... but alas, it is them from which we are seeking protection.

they did a test in Israel today for potential nuclear strike. they have shelters.
we used to do those tests here in this country, we do not have public shelters for even 1%
since it doesn't matter in either case, the one recommended part of the practice drill applies to what our government will do in response to meeting our questions, and what we might do in a nuclear emergency.
bend over, put your head between your legs, and kiss your ass good bye. if you have a friend, all the better.

note that at least our generals went to the extraordinary step of putting Bush out of commission today by informing congress that they are not prepared for conflict.

when will this madness end?

[creeper]

This is going to get just a hair personal. There are some people whose belief in their own infallibility is so great that they will defy anyone and anything that gets in their way.

I made a man angry. He sued me in [out-of]state court. The case was thrown out. He sued me again, this time in federal court and on RICO charges. Also dismissed. I'm currently waiting out an appeal deadline on the second one and I figure there's a good chance he'll keep on going.

The point is that there are people who will stop at nothing to impose their will. You can't attribute logic or reality or any other "normal" conditions to them because their megalomania overrides everything. All you can do is figure out the worst thing they can do and then expect them to do it.

[smiley]

creeper: All you can do is figure out the worst thing they can do and then expect them to do it.

or you can have them put in a place where they can't cause any further damage. Prison, or an insane asylum, or at the bottom of the Potomac wearing cement shoes. Which fate is appropriate for the particular individual is an appropriate question for the finder of facts.

Which, in this case, would be the Senate, with John Roberts sitting as judge.

[ab initio]

I am lot more pessimistic that the Dems in Congress would be willing to go to the mat to prevent this Administration from doing what it wants. I realize the Dems do not have a majority in the Senate. However, would they be willing to not pass any legislation and effectively shut down the government. The Repubs surely will. So what happens the Dems acquiesce as they normally do under the pressure of the corporate media despite the fact that the American people spoke loudly last Nov and all the polls show that a significant majority of Americans want out of Iraq and prevent any further adventures in the Middle East.

How far will the Dems in Congress go to confront all the questionable activities of this Administration?

[Nan]

Will send a link to this post to my reps' offices - Sanders, Leahy, and Welch.

[DonS]

I think it is incontrovertible that the Cheney view of executive authority knows no bounds, the more so as the administration needs more and more leeway to cover it failing performance.

It is also clear that the executive-legislative balance for pre-eminence is always in play. However, my cursory recollection is that this gang is pushing the limits much further than at anytime in modern history. In such case it become the duty of the Congress to push back, in clear terms and forthrightly to the country, not in nuanced terms. That the Dems are not doing so clearly enough is, among other things, testimony to a widespread corruption throughout the system.

As others have noted, Cheney's persona and delivery is condescending, scolding, and he does a pretty good job hypnotizing the masses into giving wide berth, if not deference to ideas he spouts. Yet policies he espouses and personal popularity ratings are way low, certainly in foreign affairs. As far as the unitary executive crap, the subtleties of this are lost on the masses; though I expect if it were presented as "Do you want a king?" the answer would be a resounding rejection.

My conclusion is in part that it is the media types and the Congressional audiences who are most impressed, to the point of ignoring common sense, and tending to validate the soundness of Cheney’s position. My feeling is that his positions are only one among many, and definitely dangerous to the body politic. Congress, particularly the opposition (Dems) disgraces it self and betrays the people by letting the argument continue to go unchallenged in the strongest and most public terms.

[Jodi]

It seems the euphoria of the Democrats gaining control of the house and senate, has subsided.

2008 should be in your minds.

Not Libby, or Rove, or Cheney, and fond dreams of impeachment.

The Democrats should be organizing themselves to present (at least) very good legislation, getting their own house (metaphor) in order or

they will find themselves again at the back of the bus.

[greenhouse]

Hey Tokyo Jodi, put a sock in it.

[emptypockets]

I once took a Constitutional Law course where, in the seminar portion, I would frequently raise questions along the lines of, "but what are the consequences if the [President, police, other executive branch officers] decide not to enforce the laws set by [Congress, state legislature, city council]?" The typical answer was something like "well they would be compelled to" which doesn't answer it at all.

Am I right in the sense that the scholarship behind how to give the President absolute power is considerably richer than the scholarship on how to make sure the President is reined in?

Between impeachment and capitulation there doesn't seem to be a lot of room, except for relying on the popular press (which doesn't seem like a good safeguard). My own impulse after reading this post was to suggest, as Mimikatz suggests above, not to de-fund the war but to de-fund the White House.

Is it simpler if we make the problem smaller: when NYPD doesn't obey the law, the officers and the city are sued by the individual. Can military personnel (and their families) sue the US and the President for deploying them without Congressional authorization?

[Mimikatz]

The thing about the appropriatiosn power is that the Dems don't HAVE top pass something for it to work; it is the other way around--they have to pass something for it NOT to work. Appropriations bills have to begin in the House. They can't begin in the Senate. If the House doesn't pass a bill, the Pres has no money. Period. End of sentence. But they have to be willing to stand firm, not have 33 of them cave in to GOP and pundit blandishments about "giving the Pres a bill he can sign."

The question is will they? Depends on the circumstances. Depends on how bad it gets. Maybe after there is an attack on Iran, $5 a gallon gas and falling dollar because Chinese and Japanese are selling. Hopefully well before.

I am also getting very pessimistic. With nut cases like Cheney and Bush, it is all too easy for us to get into war by accident, let alone by design.

[mainsailset]

Likewise Mr. Cheney, the framers never intended for the executive to usurp the power of the purse from Congress.

As we all know, should Libby be found guilty, Cheney and his various lubricants will tear off their masks of any remnant of civility and protect their den of executive priviledge by any and all means necessary.

Congress itself is still immobilized by denial. They are up against an executive branch that goes beyond imagination in its grab (and in effect, ownership) for power. We/Congress have to stop trailing behind Bush putting out the hotspots as they flare up, denial is not a substitute for good govt.

[Veritas78]

The Constitution gave the war-declaration power to the Congress, not in a general, vague way, but quite specifically. We were mistaken not to require declarations of war in every conflict since WWII, and now are paying the price for that laxity.

I fear that we have not "hit bottom" yet on our abandonment of the rule of law.

[Jodi]

mainsailset,
Veritas78,

isn't that a bit far fetched.

Even paranoid if not just plain hysterical?

[katie Jensen]

Empty pockets...good point and forgive me if I am wrong here, but I got the distinct impression that this point was at least feared by the judge in the Watada case. I realize the case was dismissed but my impression was this was in part because Watada continued to stand by his perception that he was asked to fight in an illegal war and that the judge did not want to open that can of worms. I may have misunderstood the whole thing but that was my impression.

It seems to have some validity. Was the war legal given that Bush lied?? I think soldiers may have a leg to stand on (???) in regard to this point. I realize that the supreme court is bipartisan these days... however, illegal is illegal and some evidence exists that Bush may have known that the evidence he was using to garner support for war was faulty.

[Mimikatz]

Time will tell, Jodi, just who fell, and who's been left behind.

[greenhouse]

Word up Mimi,
You go your way, I'll go mine
(or rather, she'll go hers)

[mainsailset]

Of the many delightful gifts this admin has given to me is the realization that what I used to laugh at as being just tinfoil hat, overblown conspiracy theories are now, quite simply, mundane. And that was just today Jodi because there is no thing as overstating the lengths to which this admin has already demonstrated it is willing to go to hold the reins of power.

[emptypockets]

katie jensen, that's an interesting comment. I don't know much about the Watada case but just brushed up with a couple articles from the Nation including "Will the Watada Mistrial Spark an End to the War?" posted just yesterday online.

His case was somewhat different, if I understand it, than what I was thinking in that he was defending himself in a suit brought against him. (As I gather, the judge ruled that he didn't want to admit any arguments relating to the illegality of the Iraq War -- and when those arguments began to come in anyway, being at the heart of the case, he had to declare a mistrial.)

Are there any charges that could be brought by military personnel against the President? Can one imagine a thousand military and their families across the US ready to file suits if they were ordered to attack Iran? Or what would be the line crossed that should trigger such a suit -- and what would the suit itself claim? It's not quite a violation of individual civil rights, I think (or maybe so), but I'm not sure what it is.

Again, I feel like we have gone too long with no check-and-balance strategist equivalent to Addington getting the legal theories worked out for years in advance for just such a set of countermoves. Of course, I like to think we're better, faster, and most importantly have the Constitution on our side, so I believe we may still prevail.

[Rat]

emptypockets: "Can military personnel (and their families) sue the US and the President for deploying them without Congressional authorization?"

Almost certainly not. Even putting standing aside, the courts would likely refuse to hear the case under the political question doctrine.

http://en.wikipedia.org/wiki/Political_question

[emptypockets]

Rat, thanks -- very helpful, especially since this is well out of my league. I see the problem better now. But let's play anti-Addington and not take this on its face: can we think of any way around it?

One strategy is to start with what we can do and then push along the slope as far as possible. Can a police officer sue a superior, say, for having been ordered to beat a suspect? Or maybe better: if police working undercover among a protestor crowd are ordered to instigate violence (as often happened), and the the ensuing riot gets out of control and the undercover cop is severely hurt or killed -- can the cop or the cop's family sue the police chief or the mayor over that?

Again, I'm way out of my league, but that seems like a case that a court would take, without balking at the political question. Now sliding it along, how is that different than a military family suing the president (or other superiors in the chain of command) if their family member is severely hurt or killed after being ordered into an illegal action?

I realize there are some perception issues here -- though those are somewhat perverse, as it's just that we "expect" troops to be killed in a war but think it's an exception if police are killed in the line of duty -- but I'm not sure there is really any asymmetry other than that of public perception. Is the difference that one is happening on US turf and the other is overseas? Or am I mistaken that the police officer's family would be able to get the case heard in court?

[Rat]

"Can a police officer sue a superior, say, for having been ordered to beat a suspect?"

Maybe, but the police officer would have to suffer some (legal) injury to sue for. Maybe the police officer refuses to beat the suspect and is fired for it. In that case, maybe the police officer would have some type of wrongful discharge claim.

"how is that different than a military family suing the president (or other superiors in the chain of command) if their family member is severely hurt or killed after being ordered into an illegal action?"

Even assuming the police officer had a claim, this hypo is very different. I think the political question doctrine controls. For a court to conclude the war was illegal, it'd have to step into a whole separation of powers mess. If Congress hasn't taken any action to stop the President from conducting the war, then the courts are in no position, as a functional matter, to say that the Congress "should" stop the war. (And Congress is just doing what we want. If it were otherwise, we'd elect different Congressmen.) So in an illegal war, Congress should cut off funding or take some other binding legislative action. But this issue, the courts would reason, is one the political branches have to fight out. It's not one an individual soldier can insert herself into to have the courts resolve on Congress' behalf. The courts just won't do it.

[emptypockets]

Rat, but isn't the most basic function of the courts to resolve the conflict when the legislative branch says one thing and the executive branch does another? By your reasoning, it seems that whenever any executive officer breaks the law then the court would sit it out because it doesn't want to get into political questions between the branches. Clearly that isn't the case.

If Congress passes a law against, say, transporting cocaine across state lines, and the President breaks that law then surely he will go to court. (I realize I am blurring civil and criminal arguments here; if that's what makes the difference please let me know.) I think the difference with the war is that Congress has not taken "some binding legislative action" against, say, invading Iran or staying in Iraq.

Other than cutting off funding, what legislative action could Congress take -- if any -- that would leave executive officers vulnerable to judicial action if they extend the war? And, since the President is kind of special, let's leave it as lawsuits against other administration or Pentagon officials if possible.

And would lawsuits always be criminal, or could a military serviceperson, his or her family, someone in the National Guard, or even a state or city that was deprived in some way through the war, bring action?

I guess my underlying question though is, how can the courts claim not to be willing to resolve separation of powers issues when interpreting the law (and the Constitution) is the top item in their job description?

thanks Rat.

[Rat]

emptypockets, my position is that these questions are resolved by resorting to basic principles. And reasonable people may recognize the difference between what is and what ought to be. I'm trying to say what the rules are. These rules, however, can be changed.

Courts resolve problems between specific parties. When we collect those written decisions, and distill them into principles, we get law.

Under basic legal principles, a soldier will never be able to appeal to the judiciary, get a judgment that a war is illegal, and stop the war. It will never happen. The courts recognize that we live in a democracy. We elect our leaders. The fact that our leaders are complete idiots, don't understand they're killing our own people for no reason, and are otherwise incompetent is of no consequence to judges. That doesn't mean judges are bad. It's just not their job. Judges decides legal quetions. Our problem is political. We need to vote out the wingnuts.

In its own way, the law recognizes that political reality. One of the downsides is that not every bra can challenge a war. Instead, courts would prefer that the elected representatives did that. It's democracy even when it's ugly.

[Plamovie!]

Plame movie!

It's good for some cash. I think they'll skip the Ames stuff. Then there's LEAP, but it's really like VIPs or MoveON.org and those are just for more dead.

DEA in the intelligence community. I guess that's good, maybe they can help with the new CIA at DOD?

[Plamovie!]

Richard Gere and Sharon Stone!!!!!!!