Vice (29 page)

Bush signed the bill enacting McCain's amendment into law on December 28. Two days later, the White House press office "put out the trash." The Friday before one of the biggest holiday weekends of the year, it released seven bland-sounding press releases covering various statements, memoranda, and the Presidential Message for New Year's Day 2006. Buried deep in a statement that accompanied the signing of H.R. 2863, the "Department of Defense, Emergency Supplemental Appropriations to Address Hurricanes in the Gulf of Mexico, and Pandemic Influenza Act, 2006," was a comment on the McCain Amendment.

"The executive branch shall construe Title X in Division A of the Act, relating to detainees, in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch 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, evidenced in Title X, of protecting the American people from further terrorist attacks."

Testifying before Congress months later, Bruce Fein, Cheney's legal eagle from Iran-Contra days, would describe that paragraph. "While to the layman, the language of the signing statement may seem both Delphic and innocuous, to the initiated the words referring to a unitary executive and commander in chief powers clearly signify that President Bush is asserting that he is constitutionally entitled to commit torture if he believes it would assist the gathering of foreign intelligence," Fein testified. "President Bush has nullified a provision of statute that he had signed into law and which he was then obliged to faithfully execute."

With his signing statement, Bush apparently once again winked at allowing torture, as he had with his February 7, 2002, memo. As before, the mixed message was aimed at the federal bureaucracy that would carry out his orders.

The first reporter to catch Bush's sleight of hand was
Charlie Savage
of
The Boston Globe,
who reported on the signing statement on January 4. Later in April, the
Globe
published another stunner by Savage: The
torture memo
was just one of what was at the time 750 written challenges by the Bush administration in which the president reserved the right to ignore the will of Congress. In subsequent stories by Savage and other reporters, the man behind many of these
signing statements
was identified as David Addington. Cheney had finally found an end-run around the congressional prerogatives he despised so much.

Since the early 1800s, presidents have occasionally included a statement when they signed a large bill asserting a specific provision was unconstitutional. But it wasn't until the Reagan administration that an American president started issuing signing statements as a deliberate strategy to expand executive power. In 1986, a twenty-six-year-old Justice Department lawyer named Samuel Alito, Jr., wrote a strategy memo explaining how to make fuller use of the statements. (The memo surfaced in late 2005, when Bush nominated Alito for the Supreme Court, but during the hearings, his critics, Senate Democrats, decided to focus on the nominee's opposition to affirmative action rather than issues of executive privilege.) Subsequent presidents used this newfound form of power, but none to the extent of Bush and Cheney. Before 2000, all the presidents combined had issued fewer than six hundred such challenges. In one and a half terms, President George W. Bush would produce more than eight hundred. At the same time, in a first in modern American history, the president went almost six years without issuing a veto and sending a bill back to Congress, the way the Founders envisioned the system of checks and balances working. (Bush broke that streak with a veto on July 19 of a bill that relaxed restrictions on federal financing of stem cell research.)

Bruce Fein, a lifelong Republican, has called on Congress to censure Bush for disregarding the Constitution. "The key to our system is that it ultimately collapses unless there is self-restraint by all branches," he says. "At least at present, a sense of balance and restraint is gone."

Among the hundreds of laws that involve congressional oversight of the executive, Bush has decided to ignore ones involving war, whistle-blowers, civil rights, and even whether his administration is required to provide environmental maps to Congress. In 2003, Congress passed a law prohibiting the administration from obstructing corruption investigations of the
Iraq Coalition Provisional Authority
without notifying the legislative branch. Bush declared that any Pentagon investigation took precedence over a civilian one and that he would follow the law on his own terms: "The executive branch shall construe these sections in a manner consistent with the constitutional authority of the President to classify and control access to information bearing on the national security." When Congress limited the number of U.S. troops stationed in
Colombia
and forbade them from fighting in that country's war unless in self-defense, Bush interpreted the law as "advisory," asserting that only the president has control over U.S. forces. When Congress passed a law saying Bush couldn't fire whistleblowers from the Department of Energy and the Nuclear Regulatory Agency if they testified before legislators, Bush maintained that only he and his appointees had the right to decide who gives information to Congress. In March 2006, after intense debate, Congress renewed the USA
Patriot Act
, giving the administration unprecedented powers to violate the privacy of Americans. As a compromise, Congress decreed that the Justice Department had to report regularly how the FBI was using the act. Bush declared that he could order Justice to withhold information from Congress if he decided that it might impair national security or the functioning of the executive branch.

Eighty-two of the signing statements mention "the unitary executive." In an interview, Fein is dismissive of this concept favored by David Addington and John Yoo that holds that there is no check on the executive powers of the president particularly when it involves his commander in chief responsibilities. "All it is, is sloganeering," Fein believes, a catchall to cloak an executive power grab.

Some have argued that the signing statements are empty symbolism, mere executive posturing by Cheney and Addington. The administration has yet to be challenged in court for following one of the statements rather than the law as written by Congress. And in an administration obsessed by secrecy, it will be hard to discover if and when the statements have been invoked. Still, as history has demonstrated, those who underestimate Cheney do so at their own peril.

The vice president's expansive view of executive power and his sweeping mandate under his new doctrine of doing anything he believes necessary to protect the nation, preferably in secret, spilled out onto the front pages of
The New York Times
in December 2005. The
Times
revealed that the administration had been conducting secret wiretapping of Americans without a judicial warrant since at least 9/11. Cheney has insisted that the classified program targets only al-Qaeda suspects, but subsequent news reports have revealed that the government is intercepting and monitoring the calls and e-mails of possibly millions of Americans in a sweeping fishing expedition. The truth is classified, and while eight congressional leaders have been briefed on the program, it's unclear how extensive the information is that they have been given.

As part of the Watergate reforms, Congress had set up a special tribunal, the
Foreign Intelligence Surveillance Court
, to review warrants for wiretapping, even providing for making the warrants retroactive in order to give the government maximum flexibility. Congress had shown its willingness to meet
post-9/11 security concerns
by increasing the time the administration could wait before seeking the warrant from forty-eight to seventy-two hours. It still wasn't enough. Cheney had never demonstrated any enthusiasm for Congress's role in this arena, not when Attorney General Ed Levi had proposed a version of the Foreign Intelligence Surveillance Act (FISA) during the Ford administration nor when it was enacted under President Carter. Rather than use the media revelations to begin a serious debate—as befits a democracy—on what's required to protect the nation, the Bush administration, with Cheney at the forefront, has threatened to prosecute the press, and particularly
The New York Times.

Sitting in his office at the Library of Congress, Louis Fisher can marshal endless arguments using the Constitution, the deliberations of the Founding Fathers, and U.S. Supreme Court precedents to poke holes in Cheney and Addington's legal case in favor of broad executive privilege. As one of the nation's foremost experts on separation of powers, he has been countering their arguments since his days as a House researcher for the majority side on the Iran-Contra Committee. Yet he recognizes that there is another level at work here that defies reason. "It's emotional after a while, not intellectual," he says as he tries to sum up their argument. What does it boil down to? "In an insecure society, [they] feel more secure when power is in one place."

By the summer of 2006, the carte blanche bestowed on the administration after 9/11 had largely worn off, and Cheney's push for near unlimited power was meeting with resistance—most notably from the Supreme Court. Even a reluctant Republican Congress had started to bleat, however ineffectually. The American Bar Association (ABA) appointed a blue-ribbon panel to review Bush's signing statements. Among its members were Mickey Edwards and Bruce Fein. In a report released in late July, the panel condemned signing statements that disregard the intent of Congress as "contrary to the rule of law and our constitutional system of separation of powers." Fein drafted legislation for Senate Judiciary Committee chairman
Arlen Specter
that would give Congress the standing to sue the administration over the signing statements. But the most surprising challenge to Cheney's imperial presidency has come from within the administration. Despite Addington's attempts to bully lawyers at Justice into submission, a few have opposed the executive power grab. Administration lawyers fought Addington on the torture memo and on warrantless wiretapping. They lost more battles than they won, but at the very least, they left a trail of dissent. (For example,
Jack Goldsmith
, who replaced Bybee at the OLC in 2003, withdrew the August 2002 torture memo. He would only last a year in his position, leaving the Justice Department for a teaching post at Harvard Law School.) Amid the infighting, Yoo departed the administration and returned to Boalt Hall at Berkeley.

In June 2004, the U.S.
Supreme Court ruled
in
Hamdi v. Rumsfeld
that U.S. citizen Yaser Esam Hamdi could not be detained indefinitely without access to the judicial system. Hamdi had started out at Guantánamo, but upon the discovery of his American citizenship, his captors transferred him to a Navy brig. The justices had restored that most sacred of American rights, habeas corpus. The same day, the court also ruled in
Rasul v. Bush
that the judicial system had the authority to decide whether individual non-U. S. citizens held at Guantánamo were illegally imprisoned. A year later, in
Hamdan v. Rumsfeld,
a divided Supreme Court invalidated administration plans to establish special military tribunals to prosecute those at Guantánamo. The authority to do so rested with Congress, the court ruled. And on August 16, District Judge
Anna Diggs Taylor
in Detroit became the first federal judge to rule that the administration's program of warrantless wiretapping was unconstitutional. "It was never the intent of the Framers to give the President such unfettered control, particularly where his actions blatantly disregard the parameters clearly enumerated in the Bill of Rights," Taylor wrote in her opinion, before pointing something out that in another age might seem obvious. "The three separate branches of government were developed as a check and balance for one another."

The pendulum seems to be swinging against the imperial presidency, but Cheney doesn't give up—that's not the Wyoming way. Despite the recent rulings, the administration is probably only one or two aging justices away from having its views upheld by the Supreme Court. While time might take care of that, the more pressing concern would be the congressional elections looming in November. In the first half of 2006, Cheney raced around the country attending fundraisers for Republican congressional candidates. By early August, three months before the most important midterm election of his career, Cheney had already attended eighty fundraisers for the cycle, netting Republicans more than $24 million.

At each event, he gives more or less the same speech. He begins by saying, "It's important that we keep proven leaders like [X] because these are times of incredible consequence for the nation." The speech dwells on national security and how "America is a stronger and better nation thanks to the leadership of our president."

It's a questionable statement, right down to whether the leadership is coming from the president or from Cheney himself. What is certain is that today the vice president is changing America's system of government in the service of his
doctrine of fear
. If al-Qaeda strikes again, this time with a weapon of mass destruction, the imperial presidency now in its infancy will harden and grow more robust.

"What will happen if it does happen?" asks Wilkerson rhetorically. "We have tyranny. We have military law established. I think we bomb whomever. We don't care what the intelligence says. It may be nuclear. And I think the president after that has got no maneuvering room with the American people, other than executive power to the max for whatever purpose it might be used."

Some time in 2007, Dick Cheney will leave his White House office for a short ride west on Constitution Avenue. Accompanied by his lawyer and a security detail, he will walk into a federal courthouse that bears the name of a judge who once settled a crisis that involved the presidency, the CIA, and American military adventurism gone bad.

E. Barrett Prettyman
was sent to Havana in 1962 to negotiate the release of a battalion of the CIAs Cuban insurgents captured by
Fidel Castro
at the
Bay of Pigs
. The United States and USSR were entangled in the Cold War. John F. Kennedy had just been elected president. Castro's communist government was consolidating its power in Cuba. And Kennedy decided to act, even as the military and the CIA disagreed about the wisdom of the plan. His proxy invasion of Cuba was the sort of muscular foreign policy Cheney would support in Central America twenty years later—even if by Cheney's standards Kennedy was a little light on the muscle.

In a courtroom on the second floor of the E. Barrett Prettyman Courthouse, Vice President Cheney will be confronted by the consequences of a failed military adventure in Iraq. More precisely, he will confront the consequences of his distortion of the intelligence used to sell that war to the American people. The
trial
will focus on the evidence for a cover-up by Cheney and his staff to deal with the allegation that he fabricated the central pretext for a war that by summer 2006 had killed more than twenty-five hundred American soldiers, injured some twenty-five thousand, and killed more than thirty thousand Iraqi civilians. If the vice president avoids the ride to the courthouse and testifies by closed-circuit television—as Ronald Reagan did in Iran-Contra—he will be answering questions under an oath administered by a no-nonsense federal judge. Cheney will be called to testify as a fact witness to a crime allegedly committed by a colleague and friend. The trial of Cheney's former chief of staff, Scooter Libby, will hinge not only on how the vice president answers the questions. In a very real sense, the largest
legacy of
the
Bush-Cheney administration
—the
Iraq War
—will be on trial in Judge
Reggie Walton
's courtroom.

The Scooter
Libby affair
began immediately after retired diplomat Joseph Wilson refuted President Bush's
claim that Iraq was purchasing uranium from Niger
. Bush had made the sixteen-word claim in his January
2003 State of the Union address
:
"The British government has learned that Saddam Hussein recently sought significant quantities of uranium from Africa.
" Wilson, who had traveled to Niger at the CIA's request, found that the claim was false and tried to inform the White House and the State Department. Getting no response, he published a July 2003 op-ed piece in
The New York Times,
under the headline "What I Didn't Find in Africa." On the following day, says Wilson, "the White House admitted that the sixteen words did not rise to the level of inclusion in the State of the Union." Having backed away from the false claim, the administration should have moved on. "That would have been the end of it," Wilson says. His fifteen-hundred-word op-ed piece would have been a "two- or three-day news story."

But to Cheney and Libby, Wilson's talking to reporters and then challenging the administration in
The New York Times
was an attack on the vice presidency. So Libby, White House senior adviser Karl Rove, and others began quietly
plotting to discredit Wilson
. It is for lying about his role in that scheme, and obstructing a federal investigation, that Dick Cheney's friend, adviser, and chief of staff, Scooter Libby, was indicted.

It wasn't that Wilson's article specifically attacked Cheney; but the facts he marshaled undermined the closed foreign policy operation run out of Cheney's office.
Wilson's account of his trip to Niger
put to rest the fabrication Cheney and Bush used to send 220,000 Americans to war in Iraq. It challenged the near absolute right to secrecy Cheney and other advocates of the "unitary presidency" claim for the executive branch—in particular in time of war. It confronted Cheney's ideas about the authority of the executive branch to "create" its own intelligence, to direct its own foreign policy, to wage war. It was an affront to everything Dick Cheney has fought for since he was a thirty-five-year-old chief of staff for President Gerald Ford. At that time, Cheney saw "the presidency at its nadir" as Congress reclaimed its power after Watergate. His entire career has been dedicated to the restoration of the executive branch. He wasn't going to let some retired ambassador get in his way.

Wilson wryly observed that at some point in the summer of 2003, Dick Cheney must have turned to his staff and whispered: "Will no one rid me of this troublesome priest?" If appropriating the martyr's mantle of Thomas à Becket was over the top, Wilson was closer to the truth than was the administration. Joe Wilson had to be silenced in a way that demonstrated the consequences of challenging the administration. Yet Wilson's op-ed piece was unassailable. Its truth had already been borne out early in the summer of 2003, by the fact that American troops found no nuclear weapons program (indeed, no weapons of mass destruction) in Iraq.

Cheney understands that the White House is a court, and courtiers can be manipulated to eliminate adversaries. As a young chief of staff for Gerald Ford, Cheney, as consort to Donald Rumsfeld, undermined the power Henry Kissinger held in the Ford administration and ended the career of Ford vice president Nelson Rockefeller. Joe Wilson was smaller game. Cheney moved with the same methodical efficiency he employed when he took out Nelson Rockefeller. "On or about June 12, 2003, Libby was advised by the Vice President that Wilson's wife worked for the
Central Intelligence Agency
in the Counterproliferation Division," reads one line from the five-page chronology that sets up Libby's indictment. The troublesome priest would be silenced by an attack on his wife.

The criminal case styled
United States of America v. I. Lewis Libby
, also known as "Scooter Libby"
is one chapter of a story much larger than the outing of CIA agent Valerie Plame Wilson. "It was Dick
Cheney's contempt for
the CIA," says
Mel Goodman
, who spent twenty-five years at the agency. "For him the CIA just gets in the way." Valerie Plame Wilson was another casualty of Dick Cheney's lifelong campaign to weaken the agency.

Cheney's contempt for the Central Intelligence Agency has its roots in the Ford administration. Cheney believed the agency, like Dr. Kissinger, was soft on the Soviet Union. So Cheney and Rumsfeld colluded with a clique of right-wing academics—which would grow into the neocon movement that did the big thinking on the war in Iraq—to prove how bad the agency was. They proposed that a group of foreign policy experts—"Team B "—would match wits and skills with the agency, "Team A." The "comparative intelligence analysis" would ensure that the agency wasn't missing the mark. CIA director William Colby wouldn't buy it. He insisted that no "ad hoc independent group of analysts could prepare a more thorough analysis of the Soviet strategic capabilities." Colby's commitment to truth in intelligence became a liability, and the president asked for his resignation. Ford replaced Colby with George H. W. Bush, a perennial team player who eagerly embraced Team B. Harvard historian
Richard Pipes
directed the group, which included Paul Wolfowitz, Scooter Libby, and other disciples of Cold War theorist Albert Wohlstetter. Cheney and Rumsfeld provided White House backing for the enterprise. (They even brought in
Edward Teller
for tech support.) "They wanted to toughen up the agency's estimates," Goodman says. "Cheney wanted to drive it so far to the right it would never say no to the generals."

The game was rigged. It was hard for CIA analysts to stand up to someone like Pipes, a Harvard professor and prominent policy intellectual. Team B looked at the same raw intelligence agency analysts used and arrived at conclusions consistent with their ideology:

• The Soviet Union's military capacity was far greater than what the CIA reported;
  
• Russian military spending was far beyond CIA estimates;
  
• Advances in Soviet submarine warfare technology made first-strike capacity against the United States far more likely;
  
• The Soviets were quietly accelerating the arms race, in a calculated attempt to surpass the United States.
  

Most of Team B's findings would ultimately prove to be hyperbole and way off the mark. But their "intelligence" was leaked to
The New York Times
and laid out in a December 26, 1976, front page story. The timing of the leak, less than a month before Jimmy Carter's inauguration, was aimed at the former governor of Georgia, who had little foreign policy experience. Cheney's flawed decisions in the Ford campaign contributed to Ford's loss to Carter. But with a cooked intelligence document leaked to a
Times
reporter, he won the foreign policy debate. Carter was locked into military spending defined by Dick Cheney, Donald Rumsfeld, and their intelligence B team.

And the CIA was housebroken.

But not sufficiently housebroken.

Almost thirty years later, as a vice president resolved to topple Saddam Hussein, Cheney was again frustrated by what he believed to be timid CIA analysts. He and Bush began considering regime change in Iraq before the
September 11 terrorist attacks
. But even after 9/11, the hard intelligence got in the way. The CIA had understated Hussein's WMD ten years earlier in the run-up to the first Gulf War. To make a war happen, Cheney would again have to neutralize the Central Intelligence Agency.

The CIA is the only federal agency that makes regular house calls to the White House. It delivers the
President's Daily Briefing
, a closely guarded report made available to six or seven people at the top of the administration. The principals who get the PDB are assigned briefers. The briefers are sometimes sent back to the "raw traffic" at the agency to provide additional information, or a different interpretation of information. They often develop a close relationship with their principals, based on daily contact and the sharing of classified information. In the run-up to the Iraq War, Cheney's briefer got a workout as the vice president demanded intelligence to justify attacking Iraq. When the intelligence wasn't there, Cheney took an unprecedented step: He fired his briefer. "I've never heard of anyone firing a briefer in all the time I've been associated with the agency," says Mel Goodman, who maintains contacts with CIA staffers. "It is absolutely unprecedented." But Cheney has never been a slave to precedent. In fact, he is so liberated from precedent that he fired the second briefer the CIA sent over. "Cheney was hard as nails," Goodman says. "He knew the kind of intelligence he wanted on these issues. And he couldn't get that information from them." The firings sent a chilling signal to CIA employees.

There was more shattering of precedent. Cheney made repeated visits to the CIA headquarters at Langley, Virginia. Goodman, who is working on his second book on the agency, says that one visit to Langley is beyond what anyone at the agency considers reasonable for a vice president. Cheney made at least eight, perhaps as many as fifteen, according to Goodman and another source with contacts in the intelligence agency. "That's the only time I've ever heard of a principal going to headquarters that way," Goodman says. "When they go it's usually for some ceremonial function. To hand out an award or cut a ribbon. Then they get the hell out."

Cheney wasn't handing out awards. "He wanted them to make a connection between
Iraq and
al-Qaeda," says the second source interviewed. "He already got them to agree on nuclear weapons. But he wanted the al-Qaeda connection." Accompanying Cheney on some of the trips was Libby, who had muscled CIA employees thirty years earlier when he was a player on Team B. The repeated visits by Cheney and Libby placed enormous pressure on agency analysts. In a report commissioned by the agency,
Richard Kerr
, a retired CIA officer retained to study intelligence failures, wrote that "questions of weapons of mass destruction and Saddam's links to al-Qa'ida . . . in the months leading up to the war were numerous and intense." Kerr described "overwhelming consumer demand" on agency analysts, which resulted in flawed intelligence. A second source following the vice president's Langley visits was more direct. The pressure Cheney and Libby brought to bear on agency analysts "was brutal."

While he was beating up on CIA analysts, Cheney was also gathering his own intelligence—which would lead to the conflict between his office and Joe Wilson. In early 2002—more than a year before Bush was to make the accusation—Cheney obtained from the British a file of Italian origin that claimed Iraq had tried to purchase uranium from Niger. This "intelligence" provided the underpinnings for the sixteen words in the State of the Union speech.

When Cheney sent the Niger documents to the CIA, analysts in Langley recognized them as crude forgeries. But because of the pressure from the vice president, the CIA initially asked French intelligence to check into the claims that Iraq was buying five hundred metric tons of uranium "yellow cake" from Niger. French intelligence had debunked this rumor once before. In response to this second CIA request, the French sent five investigators to their former colony and again determined there was no merit to the claim. Alain Chouet, director of French intelligence, told the
Los Angeles Times
that he had no doubt about what his agents found. "We told the Americans, 'Bullshit, it doesn't make any sense.' "

In fact, debunking the
Niger yellow cake documents
required no travel whatsoever.
International Atomic Energy Agency (IAEA)
inspector
Jacques Baute
had spent months in Iraq and found nothing to suggest that Saddam Hussein had a nuclear weapons program. So Baute had his doubts about the Niger documents. To look into their authenticity, he used a sophisticated tool known outside the intelligence community as Google. In the dozen pages the Bush administration provided him, Baute found glaring errors. The president of Niger referred to "the constitution of 1965," though the country was governed under a constitution ratified in 1999. There was a letter signed by a foreign minister who hadn't been in office for eleven years. There were bogus letterheads, forged signatures, and other evident flaws. The CIA had the same material, because Cheney had sent it to the agency. They also had Google. Cheney's dishonesty in justifying the war in Iraq was becoming painfully evident.