December 23, 2008
Cheney on Constitutional Powers of the President
Chris Wallace interviewed Vice President Dick Cheney on Fox News Sunday this week; links to the video and the transcript are here. Not much new here, but Wallace's gentle questioning allowed Cheney to set it all out in one place. Here are some highlights:
On the financial bailout and the President's bailout of the automakers:
I think, you know, we talk about the Congress being critical. They had ample opportunity to deal with this issue and they failed. The president had no choice but to step in.
On comparative exercise of Article II powers, in historical context:
I mean, the fact of the matter is that, especially given the kind of conflict we're faced with today, we find ourselves in a situation where I believe you need strong executive leadership.
What we did in this administration is to exert that kind of authority. We did it in a manner that I believe and the lawyers that we looked to for advice believed was fully consistent with the Constitution and with the laws of the land. And there's, I say, ample precedent for it.
If you think about what Abraham Lincoln did during the Civil War, what FDR did during World War II, they went far beyond anything we've done in the global war on terror.
But we have exercised, I think, the legitimate authority of the president under Article 2 of the Constitution as commander in chief in order to put in place policies and programs that have successfully defended the nation.
On Presidential powers relative to Congressional and Judicial authorities:
WALLACE: If you could conceptualize it for me, sir, what do you think are the powers of the president relative to Congress and relative to the courts during war?
CHENEY: Well, I think in wartime, when you consider his responsibilities as commander in chief, clearly that means command of the armed forces.
It also, when you get into use of forces in wartime, means collecting intelligence. And therefore, I think you're fully justified in setting up a terror surveillance program to be able to intercept the communications of people who are communicating with terrorists outside the United States.
I think you can have a robust interrogation program with respect to high-value detainees. Now, those are all steps we took that I believe the president was fully authorized in taking and provided invaluable intelligence which has been the key to our ability to defeat Al Qaida over these last seven years.
WALLACE: This is at the core of the controversies that I want to get to with you in a moment. If the president during war decides to do something to protect the country, is it legal?
CHENEY: General proposition, I'd say yes. You need to be more specific than that. I mean — but clearly, when you take the oath of office on January 20th of 2001, as we did, you take the oath to support and defend and protect the Constitution of the United States against all enemies, foreign and domestic.
There's no question about what your responsibilities are in that regard. And again, I think that there are bound to be debates and arguments from time to time, and wrestling back and forth, about what kind of authority is appropriate in any specific circumstance.
But I think that what we've done has been totally consistent with what the Constitution provides for.
The president of the United States now for 50 years is followed at all times, 24 hours a day, by a military aide carrying a football that contains the nuclear codes that he would use and be authorized to use in the event of a nuclear attack on the United States.
He could launch a kind of devastating attack the world's never seen. He doesn't have to check with anybody. He doesn't have to call the Congress. He doesn't have to check with the courts. He has that authority because of the nature of the world we live in.
. . .
CHENEY: Well, they have, for example, said — passed the War Powers Act. The War Powers Act is still in force out there today. That requires him to grant certain notifications to the Congress and give them the authority to supersede those by vote, if they want to, when it comes to committing troops.
No president has ever signed off on the proposition that the War Powers Act is constitutional. I would argue that it is, in fact, a violation of the Constitution, that it's an infringement on the president's authority as the commander in chief.
It's never been resolved, but I think it's a very good example of a way in which Congress has tried to limit presidents' authority and, frankly, can't.
On the Terrorist Surveillance Program:
WALLACE: Let's drill down into some of the specific measures that you pushed — first of all, the warrantless surveillance on a massive scale, without telling the appropriate court, without seeking legislation from Congress.
Why not, in the aftermath of 9/11 and the spirit of national unity, get approval, support, bring in the other branches of government?
CHENEY: Well, let me tell you a story about the terror surveillance program. We did brief the Congress. And we brought in...
WALLACE: Well, you briefed a few members.
CHENEY: We brought in the chairman and the ranking member, House and Senate, and briefed them a number of times up until — this was — be from late '01 up until '04 when there was additional controversy concerning the program.
At that point, we brought in what I describe as the big nine — not only the intel people but also the speaker, the majority and minority leaders of the House and Senate, and brought them into the situation room in the basement of the White House.
I presided over the meeting. We briefed them on the program, and what we'd achieved, and how it worked, and asked them, "Should we continue the program?" They were unanimous, Republican and Democrat alike. All agreed — absolutely essential to continue the program.
I then said, "Do we need to come to the Congress and get additional legislative authorization to continue what we're doing?" They said, "Absolutely not. Don't do it, because it will reveal to the enemy how it is we're reading their mail."
That happened. We did consult. We did keep them involved. We ultimately ended up having to go to the Congress after the New York Times decided they were going to make the judge to review all of — or make all of this available, obviously, when they reacted to a specific leak.
But it was a program that we briefed on repeatedly. We did these briefings in my office. I presided over them. We went to the key people in the House and Senate intel committees and ultimately the entirely leadership and sought their advice and counsel, and they agreed we should not come back to the Congress.
There's much more here, too. This is no Frost-Nixon interview, but it's well worth a look.
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