Wednesday, April 28, 2010

BOMB POWER: The Modern Presidency and the National Security State

In his 2010 book, writer and historian Garry Wills narrates the fascinating history, from the secret (and unauthorized) creation of the Manhattan Project and development of the first atom bomb to the present day, of the relentless consolidation of power into what is now referred to as the "unitary executive" of the American Presidency.

The following are excerpts.

P. 25

The Target Commission convened by General Groves made a list of Japanese cities for use of the Bomb, deliberately choosing ones not yet damaged by the firebomb raids (which would make it hard to see the extent of the Bomb’s own devastation) and ones with dense populations. (Secretary of War) Stimson wrote in his diary how he explained the choice of previously unbombed cities to President Truman: “[I said] I was a little fearful that before we could get ready, the Air Force might have Japan so thoroughly bombed out that the new weapon would not have a fair background to show its strength. He laughed and said he understood.”

P. 35

The military Joint Chiefs of Staff, of course, never turn down an addition to their tools, They told the President that it was “necessary to have within the arsenal of the United States a weapon of the greatest capability, in this case the super bomb.” (This refers to the hydrogen bomb, 1,000 times more powerful than that used on Hiroshima.) Reflecting the charge that would be leveled against Oppenheimer – that opposition to the Super was a (possibly treasonous) gift to the Soviets – they claimed that refusal to build the Bomb “might be interpreted as the first step in unilateral renunciation of the use of all atomic weapons.”

P. 42

Between 1953 and 1955, the U.S. strategic stockpile doubled, from 878 weapons to 1,756, whiles its total yield increased almost forty times, from seventy-three megatons (4,867 Hiroshimas) to 2,880 megatons (192,000 Hiroshimas).

P. 99

In the 1950s American foreign policy called on the American government to do things no American government had ever tried to do before. The new American approach to world affairs, nurtured in the sense of omnipresent crisis, set new political objectives, developed new military capabilities, devised new diplomatic techniques, invented new instruments of foreign operations and instituted a new hierarchy of values. Every one of these innovations encouraged the displacement of power, both practical and constitutional, from an increasingly acquiescent Congress into an increasingly imperial Presidency.

P. 99

Accountability is the essence of democracy. If people do not know what their government is doing, they cannot be truly self-governing. But the National Security State assumes that government’s secrets are too important to be shared, that only those in the know can see classified information, that only the President has all the facts, that we must simply trust that our rulers are acting in our interest.

P. 100-101

(According to the Constitution,) Congress is the supreme judge of national security, not the President. It alone can declare war. It alone can fund war. It alone can call militias into national service. It alone can decide what needs to be kept secret. Not the President.

P. 101

Article II (of the Constitution), begins:
(The President) shall from time to time give to Congress information of the state of the union, and recommend to their consideration such measures as he shall judge necessary and expedient.
P. 101

It is a sign of the inflation of the presidency in modern times that the “State of the Union” address is now treated as a presidential prerogative, not as a duty, as his power to set a legislative agenda (far from the “recommending” duty of the clause itself.)

P. 101

Executive actions that raise money apart from Congress, that hide the money raised from Congress, that fail to report all expended moneys to Congress, are all violations of the Constitution. The Manhattan Project was therefore a violation of the Constitution…

P. 105

The first opportunity to assert the full prerogative of the Commander in Chief in the Bomb Power era – and to show the force of the fresh-minted NSC 68 (which stated no part of the world could be ceded to Communist control) – came when North Korea crossed the thirty-eighth parallel to invade South Korea in June 1950. Secretary of State Dean Acheson advised President Truman to send American troops without asking congress to declare war. He did this to protect the authority of the President to respond to the challenges of the nuclear age with maximum flexibility.

P. 106

The full power of the United States – which now meant the power of the President – had to be committed to the world struggle outlined in NSC 68. Acheson said that Truman acted as he did because he revered his own “great office” which “he was determined to pass on unimpaired by the slightest loss of power or prestige.” Averell Harriman, then Truman’s Special Assistant to the President, recalled that Truman told him he could not ask for congressional approval, since that would weaken the hand of future presidents. This, said Harriman, “was characteristic of President Truman. He always kept in mind how his actions would affect future presidential authority.” The new status of the Commander in Chief (controlling use of the Bomb) had to be asserted in this first possible vindication of it.

P. 106 – 107

The new Commander in Chief power was based on the premise that response to a nuclear threat had to be so rapid that only the President, unchecked by Congress, could act quickly enough to be effective. That same rationale was now applied to the non-nuclear threat in Korea. To wait for Congress to declare war, it was feared, would enfeeble the President.

P. 107

Another administration document said: “The circumstances of the present crisis make any debate over prerogatives and power essentially sterile if not dangerous to the success of our foreign policy” (emphasis added). Any debate at all was illegitimate. This would become the official refrain in the era of Bomb Power.

P. 110

But the UN excuse (for sending American troops to Korea) was , in fact, inexcusable. The very UN Charter Truman invoked, he was also violating. To use the UN to circumvent Congress was to violate the UN Charter, which said that Congress had to approve any commitment of U.S. troops to the UN. Congress cannot give away its constitutional monopoly on the right to declare ware. If it cannot give it away to the President, it certainly cannot give it away to some non-U.S. entity – and it never did give it away.

P. 114

(When MacArthur’s forces were overwhelmed by the Chinese and in retreat) At a November 30 press conference (Truman) reminded people that no matter how bad things looked, he still had his “ace in the hole.” He would take “whatever steps are necessary to meet the military situation.” One reporter thought he was hinting at the power given by the ultimate weapon, and directly asked if his statement included use of the atomic bomb. Truman answered, “That includes every weapon we have.” Was such use under “active consideration”? Truman replied There has always been active consideration of its use.” Another question showed how incredulous the press was at this news. “Did we understand you clearly that the use of the bomb is under active consideration?” “Always has been. It is one of our weapons.”

P. 121

So it was not just South Korea that was under attack, but the whole world. Any restrictions on American freedom were to be seen as protecting larger freedoms…all these rights would be taken away by the Communists when they defeated us, so the only way to save them was to sacrifice some of them now to defeat the Communists.

P. 156

(Before the 1961 Bay of Pigs invasion) …President Kennedy had publicly stated “there will not be, under any conditions, an intervention in Cuba by the United States armed forces.”

P. 156

The CIA was determined to make up for its bungling of the operation. The President was displeased. Robert Kennedy took it as his personal mission to destroy Castro.

P. 157

Of course, Congress was not informed of any of this activity. The required finding was never written. Rather, Kennedy extracted from his Justice Department a legal opinion that the President can use “any means necessary to combat measures taken by the Communist bloc…without express statutory authorization” (emphasis added)

P. 159

The way this played out in the Cuban missile crisis is that Khrushchev and Castro, who knew about Mongoose (the Kennedys’ secret operation to oust Castro), truthfully called the missiles defensive. Kennedy, who could not let Americans in on the Mongoose secret, lied in his dramatic speech to the nation on October 22, 1962. He said the only reason for the presence of the missiles was not defensive but aggressive, “none other than to provide a nuclear strike capability against the Western Hemisphere.” He said the Soviets had lied when they promised that only defensive weapons would go to Cuba – the missiles were “clearly offensive weapons.”

P. 160

By framing the issue this way, Kennedy irresponsibly raised the temperature of the crisis. If the missiles were there only to attack America, they had to be removed by any means, at any cost, even that of nuclear war. There could be no negotiating. Kennedy delivered an ultimatum, backed up by a blockade of Cuba (an act of war in international law). When Adlai Stevenson suggested a trade – removal of our missiles from Turkey if Khrushchev removed the Cuban missiles – Kennedy dismissed the idea contemptuously.

In fact, Kennedy ended up making the Turkish trade-off, but insisted to the Russians that they keep this secret…

Each lie entailed further ones, as Kennedy moved from the Bay of Pigs to Mongoose to his television speech to his deal with Khrushchev. And throughout, the only ones deceived – deprived of knowledge, kept out of participation in what was being done in their name – were the American people. This was the supreme example of the use of secrecy as a Congress deceiver.

P. 161

The (security) clearance patricians need not pay any attention to “outside” opinion, since it is by definition ill-informed. The insiders listen only to themselves. A broader spectrum of knowledge is excluded.

P. 162

(Quoting Arthur Schlesinger:) Intelligence communities, sealed of by walls of secrecy from the rest of the community, tend to form societies of their own. Prolonged immersion in the self-contained, self-justifying, ultimately hallucinatory world of clandestinity and deception erodes the reality principle.

(Senator) Moynihan points out that respectable academic polling showed a high degree of support for Castro in the aftermath of his revolution, and little support among Cubans for any attempt to overthrow him. This knowledge was readily available and entirely trustworthy. It was confirmed not only in academic studies but in State Department and British statements. It had only one disadvantage, Moynihan wryly notes – it was not classified, so it was not taken seriously. “In a culture of secrecy, that which is not secret is easily disregarded or dismissed.” The CIA was listening to its own contacts and hired spies, who were disposed to oppose Castro –the same thing would happen when George W. Bush’s cabinet was disposed to heed exiles like Ahmed Chalabi and others saying it would be easy to win in Iraq.

P. 163

The (CIA) had been successful (in the short run) in replacing the governments of Iran and Guatemala. Cuba would just be another notch in the CIA’s gun. CIA Director Allen Dulles told Kennedy about the Bay of Pigs: “I was certain our Guatemalan operation would succeed, and, Mr. President, the prospects for this plan are even better than they were for that one.”

P. 164

In one of the shrewdest assessments of the Eisenhower presidency, Murray Kempton said that one of Ike’s guiding rules was: “Do nothing unless you know exactly what you will do if it turns out to have been the wrong thing.”
When Kennedy asked Eisenhower to join him at Camp David after the invasion’s failure, Eisenhower went away from the meeting convinced that “he had no idea of the complexity of the job [of President].”

P. 174

(Quoting Erwin Griswold, regarding the Pentagon Papers case:) It quickly became apparent to any person who has considerable experience with classified material that there is massive overclassification, and the principal concern of the classifier is not with national security but rather with governmental embarrassment of one sort of another…This is the lesson of the Pentagon Papers experience.

P. 175

In 2004, photographs from the Abu Ghraib prison in Iraq were published, and they horrified Americans. It was suddenly possible to ask “unthinkable” questions about our country. Had we really become a sponsor of torture around the world? Denunciations of the Bush administration were commonplace. But this was not an isolated thing, an aberration. It fit in with a pattern we had glimpses of thirty years earlier in congressional investigations of the CIA. In 1975, we learned about an American campaign of assassinations planned, abetted, encouraged, and sometimes accomplished. The CIA had at least tried to murder leaders around the world – General Rene Schneider of Chile, Rafael Trujillo of the Dominican Republic, Patrice Lumumba of the Congo, Zhou Enlai of China, the Diem brothers of Vietnam, Fidel Castro of Cuba. This does not count the killing of lesser functionaries as part of the subversion of leftist regimes, or of support for right-wing dictators – especially by death squads trained in the United States Army School of the Americas.

P. 176

What made so many American officials feel they had the right to roam the world secretly killing “undesirables”? The right grew out of one of the requisites of Bomb Power. The American empire was not primarily built to acquire territory (like the empire of Alexander the Great), or financial tribute (like that of Athens), or resources and trade goods (like that of the British). It was more like the Venetian empire, which was meant to secure safe harbors and emporia for its trading fleet. America, after the acquisition of the Bomb, needed secure places for planes and ships carrying nuclear weapons, and secure regimes providing storage facilities and launching pads for our missiles.

…we overthrew or undermined the Mossadegh government in Iran, the Arbenz one in Guatemala, the Sukarno one in Indonesia, the Lumumba one in the Congo, the Diem one in Vietnam, Goulart’s in Brazil, Allende’s in Chile, the Bosch forces in the Dominican Republic, the Bishop reign in Grenada, the Noriega one in Panama. The lesson for other countries seemed to be: “Don’t bother with leaders America doesn’t like – they’ll just get knocked off.” By the careful count of Stephen Kinzer, a longtime New York Times reporter, the United States overthrew foreign governments 114 times over the last century or so – not counting many cases where we tried but failed to bring a regime down. He also does not count the cases where our role was simply supporting an indigenous coup.

P. 177

The U.S. government tried repeatedly, by sabotage and economic pressure, by secret aggression and outright invasion, to do in the Castro regime in Cuba. It used money from the sale of missiles to the Ayatollah Khomeini in an effort to unseat the Ortega government in Nicaragua.

P. 179

Operation Ajax (to oust the Mossadegh government and restore the Shah of Iran for the Anglo-Iranian Oil Company) became the CIA’s shining example of how America could create just the kind of regime it wanted in a foreign country. President Eisenhower felt he had a secret weapon he could use at will.
But a fuse was lit that would smolder for years and lead to the anti-American revolution of the Ayatollah Khomeini, the capture of American hostages, the downfall of Jimmy Carter’s presidency, the bargaining of Oliver North for later hostages, the disgracing of President Reagan, and the conviction of six high American officials for breaking the law in a trade-off of arms for hostages with Iran.

P. 182

John F. Kennedy, who followed Eisenhower in office, was not as successful at overthrowing governments. His administration did abet the killing of the Diem brothers, but he failed over and over to topple Cuba and kill Castro. Lyndon Johnson’s CIA lent support to the coups that brought down Joao Goulart in Brazil (1964) and Sukarno in Indonesia (1967). Richard Nixon’s primary subversion, if we do not count Vietnam and Cambodia, occurred in Chile. The CIA poured two million dollars into an attempt to block the election of a leftist, Salvador Allende, as President of Chile. When Allende was elected, Richard Nixon and Henry Kissinger refused to accept the results of a free election in a nation not theirs. Kissinger put it clearly: “I don’t see why we have to let a country go Marxist just because its people are irresponsible.”

P. 183

Jimmy Carter, a believer in human rights, did not destroy any foreign regimes, a fact that made the right wing consider him a wimp. As his successor, Ronald Reagan, said after invading Grenada, “Our days of weakness are over.” Ronald Reagan failed to bring down the junta in Nicaragua with covert support of the Contras, but in general the age of covert subversion and coups was giving way to overt invasion as a way of overthrowing governments – Ronald Reagan in Grenada, George H. W. Bush in Kuwait and Panama, Bill Clinton in Haiti, George W. Bush in Afghanistan and Iraq. Secrecy was not necessary to these operations.

Stephen Kinzer argues that in the 114 cases where we denied a country the right to choose its own government, long-term results were usually damaging to the United States. These overthrows normally involved violations of international law, as well as intrusion into sovereign bodies, and they created ill will from other nations and distrust or cynicism in our own. Crime, that is, did not pay. And secrecy did not let us escape its cost.

P. 187

The conventional account of the later decades of the twentieth century claims that the “imperial presidency” reached a climax in the Vietnam War and Watergate and suffered a rebuke from Congress and the public. Then, at the beginning of the twenty-first century, prompted by worldwide terrorist threats, the executive branch clawed its way back into supremacy. There is some truth in this construction. But the earlier blows to the presidency were glancing ones, and the arc of executive power continued to rise throughout the supposed time of decline, when presidential wars kept occurring despite the War Powers Resolution that was supposed to check them. The reining in of the presidency was meant to happen after the War Powers Resolution (1973), the Ethics in Government Act (1978), the Independent Counsel Act (1978), the Foreign Intelligence Surveillance Act (1978), and the Presidential Records Act (1978). Of these, the one most resented by Dick Cheney was the War Powers Resolution (WPR).

The WPR was caused by Congress’s long-delayed regret over its being stampeded into authorizing Vietnam actions by the Gulf of Tonkin Resolution of 1964.

P. 188

The WPR institutionalized a joint authority (to go to war) that is denied in the Constitution.

P. 189

“War Power” is not a term that occurs in the Constitution, much less “war powers,” as something to be divided between the President and Congress. Admittedly, it is said that “the executive power shall be vested in the president.” But what he is executing, in a war, is the severely circumscribed role of Commander in Chief. Recall the terms: “The President shall be Commander in Chief of the Army and Navy of the United States; and of the Militia of the several states, when called into actual service of the United States.” This does not say he has the power to initiate, authorize, or determine war. He does not even have the power to call the militias to national service, or to organize the army and navy and militias. Those are all reserved to Congress.

P. 192

The legal scholar Peter Irons has written: “[The WPR] was badly drafted, replete with loopholes, and has been simply ignored by every president – seven in number from Richard Nixon to George W. Bush – since its enactment.”

P. 194

Reagan sent troops to Grenada, George H. W. Bush sent them to Panama, Clinton sent them to Haiti, without consulting Congress. Presidents have routinely ignored the WPR. This makes one wonder why the right wing resents it so much. Why not just accept its dismissal as a victory? But when President Reagan won election in 1980, Dick Cheney told Reagan’s first Chief of Staff, James Baker, that his first priority should be the expunging of the WPR. Baker’s notes of the conversation begin: “Pres. Seriously weakened in recent yrs. Restor power & auth. To Exec Branch – Need strong ldr’ship. Get rid of War Powers Act – restore independent rights [of the President].” When Cheney became Vice President in 2001, he and his legal adviser, David Addington, asked the Justice Department’s Office of Legal Counsel to rule that the President, and he alone, has all authority over war – exactly the opposite of the constitutional grant of all such authority to Congress. That is what Cheney had been saying for years, but now he wanted formal confirmation of the view.

John Yoo, the lawyer Cheney was relying on in the Office of Legal Counsel to uphold his constitutional oddities, had to deal with Congress’s constitutional rights to declare war. He did this with a flimsy philological fantasy. He said that in the eighteenth century, “declare” did not mean “initiate” or “authorize.” Relying on only one source, Samuel Johnson’s eighteenth-century dictionary, Yoo said that the verb “declare” has only five meanings, none of which is “make.” They are all variants on the sense of “publish,” so that is all that Congress can do with regard to war – publish the fact that it is occurring once the President has initiated it. In Yoo’s words, “declaring war recognized a state of affairs.”

P. 196

The extremism of the reaction to the WPR cannot be overstated. In a fury that the Congress had dared to say the President had joint power over war (which he does not, under the Constitution), the administration of George W. Bush asserted that the President had sole power over its initiation and conduct. The monopoly on nuclear war that was given at the dawn of Bomb Power was now extended to aspects of war.

P. 208

(Quoting Henry Kissinger:) “It is an act of insanity and national humiliation to have a law prohibiting the president from ordering assassination.”

P. 210 - 211

Ronald Reagan came to Washington determined to make the presidency powerful again. He would interpret the Constitution independently of the courts, deny congressional oversight of federal agencies, and remove many of the regulatory standards enacted under Carter, especially those having to do with energy use…He began systematically dismantling his predecessor’s energy program. He removed he removed subsidies to wind and solar production, so the technology pioneered by American tax money was sold to foreign firms. He relaxed pollution and mileage standards. Reagan stocked the agencies with people who did not like what they did. They were there to gut what they were supposed to be promoting. That was true of James Watt at the Department of the Interior. It was true of Anne Gorsuch Burford at the Environmental Protection Agency. It was true of Rita Lavelle in the disposal of hazardous waste products.

…When it was objected that Reagan was perverting the purpose of agencies set up by Congress to maintain certain standards, Ed Meese turned to conservative young lawyers in the Department of Justice to craft a new theory of the Constitution, one they called the unitary executive.

P. 212

They made the single executive an argument for less accountability to the other two branches, not more. Since only the President can run the agencies, they must answer to him, as parts of the unitary executive, and not to outside forces – like congressional oversight committees.

…To the horror of the first inventors, they found in time that they had been Frankensteins birthing a monster. (Steven) Calabresi protests that his first theory was extended and distorted when President Bush II and Vice President Cheney made it an authorization for the President, on his sole authority, to set up military tribunals, wage undeclared wars, deprive prisoners of habeas corpus, order extraordinary renditions, hold trials with undisclosed evidence, and unilaterally abrogate the Geneva Conventions subscribed to by Congress…

P. 214

(Concerning “signing statements”:) In a speech at Tulane Law School, (Attorney General Ed) Meese said that the President has the right and duty to interpret the Constitution on his own, declaring some laws unconstitutional even as he signs them into law.

P. 215

Meese used the main point of the Tulane speech…to justify President Reagan’s power to declare a law unconstitutional even as he was signing it into law, and to say that he would not enforce it insofar as it was wrong.

P. 216

Meese wanted the President to be co-drafter of legislation, with his view ranked with that of Congress.

The Meese Justice Department was busy exploring all the possible use of signing statements. Meese asked the acting head of the Office of Legal Counsel, Ralph Tarr, for a memo on the subject. After listing several possible uses of such statements, Tarr added: “It might also give [us] an additional tool – the threat of a potential signing statement – with which to negotiate concessions from Congress” (while the law is being drafted). Meese gave the same assignment to the department’s Litigation Strategy Working Group, where the future Supreme Court Justice Samuel Alito was at that time a lawyer. Alito wrote that the department had to be careful, since “Congress is likely to resent the fact that the president will get in the last on questions of interpretation.” He said the innovation had to be insinuated gradually:

As an introductory step, our interpretive statements should be of moderate size and scope. Only relatively important questions should be addressed. We should concentrate on points of true ambiguity rather that issuing interpretations that may seem to conflict with those of Congress. The first step will be to convince the courts that presidential signing statements are valuable interpretive tools.

P. 221

(Clinton’s) Assistant Attorney General Walter Dellinger explained:
When the President’s obligation to execute laws enacted by Congress is in tension with his responsibility to act in accordance to the Constitution, questions arise that really go to the very heart of the system, and the President can decline to comply with the law, in our view, only where there is a judgment that the Supreme Court has resolved the issue.
President Clinton did not always act in this manner. But all Presidents should.

P. 222

The attempt to push back with War Powers Resolution, CIA oversight, and the FISA court did little or nothing to check Presidents defying the WPR in Lebanon, Grenada, Panama, Libya, Haiti, Kosovo, Bosnia, and elsewhere. But these foreign adventures cannot compare with the full-court press of warmaking powers asserted by the administration of George W. Bush.

P. 224 – 225

In a stunning series of secret memoranda, the Justice Department claimed the legal right to all these (abuses listed above on page 212) and other actions. The point of origin for these claims was the little known but extremely powerful Office of Legal Counsel (OLC) in the Justice Department. This is where the executive branch gives itself legal permission to do what it wants to do. Since Ed Meese’s time as Attorney General, this has been an office stocked with young conservative lawyers, often members of the Federalist Society and/or former clerks to conservative judges and justices like Rehnquist, Scalia, Thomas, and Bork. Scalia himself had earlier been a lawyer in the OLC, as were John Roberts and Samuel Alito.

As fate would have it, the head of the OLC at the time of the 9/11 attacks was a relatively passive man, Jay Bybee, with a hyperactive and prodigiously productive assistant named John Yoo, who would write legal opinions sometimes signed by Bybee, sometimes by White House Counsel Alberto Gonzales, sometimes by Yoo himself. Yoo, whose hero was David Addington, had clerked for Justice Clarence Thomas. He became a member of the tight little White House circle known as the War Council. It had only four other members: Gonzales, Addington, Timothy Flannigan (in the White House Counsel’s office), and William J. “Jim” Haynes (Addington’s man in the Pentagon).

It was Yoo’s job to invent the legal rationales for actions universally seen as illegal before 9/11. Yoo came to the task with preformed certitudes about the limitless extent of presidential prerogative.

P. 228

(After leaving OLC) Yoo quickly produced a book defending all of President Bush’s initiatives – pre-emptive war, assassinations, warrantless surveillance, torture (defined as nontorture), military commissions, and abrogating the Geneva Conventions.

…Yoo maintains that the Supreme Court is wasting the President’s valuable time when it rules on crimes committed by the executive branch…

P. 229

Yoo’s decisions in a whole string of memoranda were so flawed that his own former teacher and fellow Korean-American, Dean of the Yale Law School Harold Koh, told Congress, “In my professional opinion, the August 1, 2002, OLC memorandum is perhaps the most clearly erroneous legal opinion I have ever read.” Yet this and other “torture memos” were accepted by President Bush, Vice President Cheney, and Counsel David Addington, to give the CIA its marching orders for things like waterboarding, intimidation with dogs, freezing isolation in the nude, sleep deprivation, and slamming into walls.

P. 230

The tight little circle around Cheney and Addington wanted to keep the Office of Legal Counsel memos from any who might oppose them – including National Security Adviser Condoleezza Rice and Secretary of State Colin Powell.

P. 230

(OLC lawyer Jack) Goldsmith concluded that he had to do something unparalleled – reverse a legal opinion of his own office by canceling John Yoo’s torture memo. He braced himself for the biting personal unpleasantness encountered by all who crossed David Addington…He was not surprised when Addington shouted at him, “If you rule that way, the blood of the hundred thousand people who die in the next attack will be on your hands.”

P. 232 - 233

The canceling of Yoo’s memos was a rare setback for the Bush executive, but its ability to rebound would be proved in the case of Senator John McCain’s anti-torture legislation. McCain, who had been tortured himself and who said torture does not yield reliable information, joined with Senator John Warner of Virginia to add an anti-torture amendment to a military budget bill. It was a moderate measure that simply restricted questioning methods to those that had long stood in the Army Field Manual – they had been formed to follow treaty requirements of the Geneva Conventions. Vice President Cheney rushed to the Hill to have Bill Frist, the Republican Majority Leader, block a vote by withdrawing the budget bill. Over the next six months Cheney worked energetically to prevent passage of McCain’s measure, but McCain lined up more than two dozen retired generals (including Colin Powell) to say that observing the Geneva Conventions was necessary to ensure proper treatment of our own military personnel when they are taken prisoner…when the bill passed in the Senate by 90 votes to 9 (including 46 of the 55 Republicans), Bush knew any veto would easily be overridden.

Cheney had still not given up. He urged that the bill make an exemption for CIA agents, to allow them (if no one else) to torture. The house had been stalling, giving Cheney more time to influence people; but it finally voted, too – 308 to 107 in favor of McCain…

But then, as so often happened with Bush, the law was undone with a signing statement. Appended to McCain’s anti-torture law in the Federal Register were these words:
The executive branch shall construe [it]…in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief, and consistent with the constitutional limitations on the judicial power, which will assist in achieving the shared objective of the Congress and the President…of protecting the American people from further terrorist attacks.
Needless to say, this reading of the Constitution was that of John Yoo and David Addington (who wrote the signing statement), and it followed the canceled torture memo. What the executive’s new Legal Counsel (Goldsmith) said meant as little to President Bush as had an overwhelming vote in both houses of Congress.

P. 235

(David Addington) drafted a statement that the President, by his inherent power, had the right to surveil whomever he wanted, whenever he wanted.

P. 240 – 241

On January 25, 2002, White House Counsel Alberto Gonzales signed a memo written by David Addington that called the Geneva Conventions “quaint” and “obsolete.” Perhaps, in the nuclear era, the Constitution has become quaint and obsolete. Few people even consider, anymore, Madison’s lapidary pronouncement, “In republican government the legislative authority, necessarily, predominates.” (The Federalist 51). Instead, we are all, as citizens, asked to salute our Commander in Chief. Any President, wanting leverage to accomplish his goals, must find it hard to give up the aura of war chief, the mystery and majesty that have accrued to him with control of the Bomb, the awesome proximity to “the football,” to “the button.”

Nonetheless, some of us entertain a fondness for the quaint old Constitution. It may be too late to return to its ideals, but the effort should be made. As Cyrano said, “One fights not only in the hope of winning.”

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