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More
Than Just His Location Remains Undisclosed:
Why
Dick Cheney's Secrecy Scheme For Pre-9/11 Information Makes No Sense
By
John W. Dean
May
24,
2002
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to Alternative Reader Index
Vice
President Dick Cheney is at it again: More secrecy. Now he wants to bury the
intelligence information given to President Bush on August 6, 2001 - over a
month before the terrorist attacks. Indeed, Cheney wants Congress, far more
generally, to keep its investigative nose out of issue of what intelligence the
Bush Administration did, or did not, have about terrorism prior to September 11.
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Nor
does Cheney want Congress creating a high-level commission to look into this
issue. In resisting any investigation, the Vice President advised Congress
threateningly, "Be very cautious not to seek political advantage by making
incendiary suggestions." Furthermore, Cheney has even gone so far as to
warn the Democrats that they could be aiding the enemy by going where the
Administration does not want them. The accusation takes aim not just at the
wisdom, but at the purported lack of patriotism of such an investigation.
According
to The Washington Post, White House political types have been putting the word
out to their network of conservative radio talk show hosts throughout the
country to rally the troops, set the dogs loose, and shout the Democrats down.
Secrecy, however, is a tough sell, so they're going to have to attack some of
their own as well.
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Even Some Republicans Are
Sharply Critical of the Secrecy Policy
Increasingly,
stalwart conservative supporters of Bush and Cheney have become critical of what
columnist Robert Novak calls their "passion for secrecy," noting that
they only have themselves to blame for the public and Congressional reaction.
After
all, Bush and Cheney could have revealed at the time, rather than keeping
secret, that the White House had pre-9/11 intelligence warnings from the CIA and
FBI about potential terrorist hijackings, and about the unexplained influx of
middle-Eastern men in pilot training. Had they done so, the reaction would have
been very different. No one expected the Administration to be psychic and the
information, thus far, does not seem to rise to the level of a warning of the
type of attacks that actually occurred, in which planes were used as missiles.
Secrecy
itself has risen to the level of a policy of the Bush administration - and
threatens to achieve the status of an end in itself. National security is only
one of the policy's rationalizations.
Conservative
columnist Phyllis Schlafly has been quite blunt about this secrecy business. In
March, she blasted the White House for the Vice President's refusal to turn over
the records of his energy task force. (I agree with her criticism, as I
discussed in a recent column .) She finds Cheney's "pursuit of
secrecy" comparable to "Clinton's refusal to disclose documents
revealing who attended the meetings of Hillary's task force on health
care."
Ms.
Schlafly declared correctly that: "The American people do not and should
not tolerate government by secrecy." And she told the Bush White House that
no one's "going to buy the sanctimonious argument that the Bush
Administration has some sort of duty to protect the power of the
presidency."
Meanwhile,
Bruce Fein, a former Justice Department official whose Republican credentials
and constitutional scholarship are exemplary, has recently reacted to the claims
of the Bush White House about the need for secrecy. The loss of secrecy, the
Administration has contended, is eroding presidential power. Yet according to
Fein, "What the president is claiming is legally and historically absurd
and politically stupid."
Fein
added, "I've been around this town a long time, almost 30 years, and I've
never encountered one individual who told me he's not going to the Oval Office
unless he's promised confidentiality. It's the biggest hoax in the world. Why
he's making up all this stuff is utterly and completely baffling."
Why
The Secrecy? Claims of Eroding Presidential Power Are Implausible.
President
Bush, Vice President Cheney, and all their aides claim that - contrary to any
impression they might be giving - they seek to hide nothing. They are keeping
secrets for either national security reasons, or to protect the functions of the
presidency.
This
is only about fundamental principles, they say. It concerns nothing less than
preserving and redeeming the power and authority of the presidency. In brief,
just as Ms. Schlafly said, they are resting their claim on the
"sanctimonious argument" that they are "protect[ing] the power of
the presidency."
For
example, in January of this year, Dick Cheney told NBC's Campbell Brown during
an interview: "For 35 years that I've been in town, there's been a
constant, steady erosion of the prerogatives and the powers of the President of
the United States. And I don't want to be a part of that."
Most
recently, according to the New York Times, Cheney repeated his comment about the
last three decades of "continual encroachment by Congress in the executive
branch, a weakening of the presidency." Specifically, he mentioned matters
like the Congress investigating abuses by the CIA, and the Iran-contra scandal,
as encroachments.
Cheney
didn't like those investigations either at the time, back in 1987. He was in
Congress then, and as the Times reports, he disagreed with the majority of the
committee's Iran-contra investigation that accused the Reagan administration of
"secrecy, deception and disdain for the law." Cheney also thought that
Reagan should never have let Congress exert control over his Central American
policy in the first place - by using an Executive Order to make it illegal for
Congress to ban sales of weapons to Nicaraguan rebels.
President
Bush recently said, "I have an obligation to make sure that the presidency
remains robust and that the legislative branch doesn't end up running the
executive branch." Surely he is jesting.
Ari
Fleischer sings the same tune. The president's press secretary claims that
presidential powers have been diminished "in multiple ways" as part of
a "long-standing, gradual process." For instance, the president has
little say in how the nation's budget is devised, and constraints exist with
regard to the ways in which he may use the military.
In
addition, Congress has placed additional restrictions on the president in
military matters with the War Powers Resolution of 1973.
Fleischer
also observed that the spate of congressional investigations into presidential
activities - particularly during the Clinton era - that involved "the
sharing, the yielding of information by the executive branch to the
Congress," have tended to weaken the office.
Remarkably, Ari Fleischer
may actually believe what he is saying. In fact, however, these claims of
presidential power eroding are high-grade, industrial-strength, poppycock. This
White House is apparently unaware of Napoleon's maxim that "The tools
belong to the man who can use them."
Misreading
Nixon's Shadow, and Misinterpreting His Legacy
President
Bush and Vice President Cheney are, without being explicit, saying that the
presidency was weakened by Watergate, which commenced 30 years ago this June
17th. But they are misreading the Nixon legacy.
No
one has watched the impact of Watergate on government more closely than yours
truly. I wrote a book, Lost Honor , examining the impact of Watergate ten years
after the events. And I do not believe Watergate can possibly justify the
secrecy arguments that are being made now. If anything, it justifies openness.
More
Watergate lessons can be garnered from the work of Bob Woodward, who launched
his career at The Washington Post and as a best-selling author based on his
Watergate reporting. Woodward's recent book, Shadow: Five Presidents and The
Legacy Of Watergate, written 27 years after Watergate, gives an excellent
account of what Nixon's real legacy may be.
Woodward's
"Epilogue" to Shadow is edifying. Unfortunately, he points out many
presidents have ignored the obvious lessons of Watergate. Recent events suggests
that George W. Bush is readying his own place on Woodward's list.
Woodward
writes, "Nixon's successors, I thought, would recognize the price of
scandal and learn the two fundamental lessons of Watergate. First, if there is
questionable activity, release the facts, whatever they are, as early and
completely as possible. Second, do not allow outside inquiries, whether
conducted by prosecutors, congressmen or reporters, to harden into a permanent
state of suspicion and warfare."
Woordward
reports that, rather than learn from Nixon's mistakes, however, in varying
degrees all the presidents since Nixon have repeated them. Men of widely varying
temperaments and politics - Gerald Ford, Jimmy Carter, Ronald Reagan, George H.
W. Bush, and Bill Clinton - have uniformly failed to understand the need to make
information available, rather than hiding it. Now Bush and Cheney are making the
same mistakes.
Woodward believes he knows
why, and I think he's correct. "They have become victims of the myth of the
big-time president," he explains. "As successors to George Washington
and Franklin Roosevelt, they expect to rule. But after Vietnam and Watergate,
the modern presidency has been limited and diminished."
Does
that mean Woodward, too, believes in the "eroding power" argument the
White House has recently retailed? I do not believe so. Rather, the loss of
power Woodward describes is not a loss of power to Congress, as suggested by
Bush and Cheney, but a loss of power to openness itself. Thus, it is a
praiseworthy loss of a kind of power that was unhealthily insular and absolute -
similar to the loss of power that occurs when a monarchy or dictatorship gives
way to democracy.
Woodward
says the difference is that the "inner workings" of the presidency
"and the behavior of presidents are [now] fully exposed." As I read
Woodward, he is simply telling presidents that they cannot operate in secret in
today's information age.
Woodward is correct.
Accordingly, I believe Bush and Cheney have confused the issues: a lost of
presidential secrecy does not mean a loss of presidential power vis-a-vis
Congressional power. To the contrary, the institutional powers of the presidency
all but overwhelm those of Congress. They are, in fact, stronger today than 30
years ago. Bush and Cheney are ignoring the basics: Congress is still weaker
than the President, and secrecy has only weakened the President vis-a-vis the
People, the press, and the process of finding the truth.
Why Presidential Power
Dominates Congressional Power Now
Ask
any constitutional scholar, political scientist, or presidential historian, and
they will tell you that the congressional powers and presidential powers are no
longer even comparable. During our early history, the Congress and the President
vied for dominance, with the Congress more often prevailing. But that is no
longer true.
Since
the presidency of Franklin Roosevelt, the executive branch has been the dominant
governing power. In truth, Congress has willingly delegated most of its
legislative powers to the executive branch. Our system might be better off if,
in fact, Congress reclaimed some of the powers it voluntarily gave away - by,
for example, allowing powerful administrative agencies to effectively make law
under the aegis of broad statutes that empowered them to do so.
But that is unlikely - as
the late and learned professor Philip Kurland, who devoted 43 years to teaching
law at the University of Chicago, showed in a 1986 essay addressing the
institutional differences between the Congress and the presidency. There,
Kurland nicely summarized why a president is Gulliver among the congressional
Lilliputians, remarking that:
...
there is an absence of discipline among the 535 members of Congress. It is a
huge body without a head. Most of its legislation does not originate within
Congress but is a response to demands or instructions from executive
authorities. Too much congressional time is spent as agents of constituents
seeking relief in the myriad of government agencies that Congress has created
but does not control. The rest of its time seems to be spent in trying to
oversee the execution of the laws by way of investigatory hearings which, in
theory, are held to help frame legislation but which, in fact, are more
devoted to exposure than to cure.
In
contrast, he explains, the executive branch has burgeoned, and continues to grow
stronger. Professor Kurland found the explanation of the differences in the
branches well stated by Justice Jackson in the landmark Steel Seizure Case,
Youngstown Sheet & Tube Co. v. Sawyer:
Executive
power has the advantage of concentration in a single head in whose choice the
whole Nation has a part, making him the focus of public hopes and expectations.
In drama, magnitude and finality his decisions so far overshadow any others that
almost alone he fills the public eye and ear. No other personality in public
life can begin to compete with him in access to the public mind through modern
methods of communications. By his prestige as head of state and his influence
upon public opinion he exerts a leverage upon those who are supposed to check
and balance his power which often cancels their effectiveness.
It seems that President Bush
and Vice President Cheney want to remove the last vestiges of congressional
power - the power to expose. But that will not solve their problem, because it
has been the so-called fourth estate, the news media, that has collaborated with
Congress in preventing the Executive Branch from operating in secrecy. The news
media, as Woodward makes clear, are never going to return to the pre-Watergate
days when a president's actions were not questioned. Nor should they, even in a
time of war.
Of course, there should not
be exposure for exposure's sake - as is the case with too many Congressional
investigations, past misguided Independent Counsel investigations, and
occasional sensational news coverage. But nor should there be secrecy for
secrecy's sake, as appears to be the case now with the Bush Administration.
To claim a need for secrecy
to restore presidential power is disingenuous at best, and a deliberate
falsehood at worst. Secrecy is the way of dictatorships, not democracies.
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John
Dean, a FindLaw columnist, is a former Counsel to the President of the United
States.
(In
accordance with Title 17 U.S.C. Section 107, this material is distributed
without profit to those who have expressed a prior interest in receiving the
included information for research and educational purposes.)
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