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Why Dick Cheney's Secrecy Scheme For Pre-9/11 Information Makes No Sense


Friday, May. 24, 2002

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.

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.

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.

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

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.

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.

John Dean, a FindLaw columnist, is a former Counsel to the President of the United States.

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