Inside the Bunker
As the United States of America reeled, Vice President Dick Cheney took control.
At a quarter past ten o’clock on the morning of September 11, 2001, a choking cloud of debris and death, once the south tower of the World Trade Center, engulfed lower Manhattan. Flames and black smoke poured from the upper stories of the north tower. In northern Virginia, just across the Potomac River from downtown Washington, the Pentagon’s western wall crumbled into its own blaze. Three miles away, the aboveground portions of the White House complex stood empty, evacuated just minutes earlier by the Secret Service as hijacked American Airlines flight 77, bound for the military headquarters, had barreled toward the nation’s capital with its target yet unknown.
Three stories into the bedrock beneath the White House’s East Wing, behind body armor–clad guards holding shotguns and MP5 machine guns, loomed a sealed vault door-the entrance to the Presidential Emergency Operations Center.1 Originally built as an air-raid shelter for President Franklin D. Roosevelt during World War II, the cramped bunker had never before been used during a crisis. It had a few days’ food and supplies, bunk beds, and a conference room with televisions, secure phones, and video links to key federal agencies and military installations. Inside, Cheney sat at a conference room table with a handful of other top officials. As they looked from one television screen to another, a military aide approached the vice president. The bunker had received reports of a second plane headed toward the capital. United Airlines flight 93, a Boeing 757, had veered off course over Ohio, banked sharply back over Pennsylvania, and was now believed to be just eighty miles away. The military had put fighter jets on patrol a few minutes earlier. The officer wanted to know whether the interceptors should shoot down the airliner, sacrificing the forty-four people aboard to prevent a potentially larger disaster from taking place.
Cheney’s chief of staff, I. Lewis “Scooter” Libby, was sitting next to the vice president at the table, taking notes. Libby later described Cheney’s decisive answer to the aide: “In about the time it takes a batter to decide to swing,” Libby said, the vice president authorized the military to destroy United 93. Five days later, Cheney would describe the order as the toughest decision made that day, but one that was necessary. “Now, people say, you know, that’s a horrendous decision to make. Well, it is. You’ve got an airplane full of American citizens . . . and are you going to, in fact, shoot it down, obviously, and kill all those Americans on board? And you have to ask yourself, ‘If we had had combat air patrol up over New York and we’d had the opportunity to take out the two aircraft that hit the World Trade Center, would we have been justified in doing that?’ I think absolutely we would have.”2
Shortly after Cheney gave the order, the military aide returned and said the aircraft, now believed to be sixty miles out, had just been confirmed as a hijacking. The aide wanted to make sure that the military had the authority to attack the plane. As Joshua Bolten, later the White House chief of staff but then just one of several deputies, later recalled, “The vice president said yes again. And the aide then asked a third time. He said, ‘Just confirming, sir, authority to engage?’ And the vice president-his voice got a little annoyed then-said, ‘I said yes.’ “3 The aide left and the conference room went quiet as the enormity of the exchange fell upon all who had heard it. Then, from down the table, Bolten broke the silence. Boldly, he suggested that Cheney call President George W. Bush to “confirm” the shoot-down order Cheney had just given.4
At that moment, the commander in chief was aboard Air Force One as it rapidly ascended into the atmosphere above Sarasota, Florida. Bush had been reading to children that morning at a photo-op at Booker Elementary School. When the second plane hit the World Trade Center, it became clear that the country was under attack. After a brief delay, Bush and his entourage had headed for the airport.
The president and Cheney had spoken at 9:55 a.m., just before Bush’s plane took off. Cheney, standing at a secure phone just outside the vault doors of the White House bunker, had urged Bush not to return to Washington until the situation was stabilized. “Basically I called to let him know that we were a target and I strongly urged him not to return to Washington right away, that he delay his return until we could find out what the hell was going on,” Cheney later recalled.5
Bush had taken Cheney’s advice. The president had hung up and strapped himself in aboard Air Force One, which had gotten safely off the ground with its ultimate destination-Barksdale Air Force Base in Louisiana, as it would turn out-not yet chosen. Back in the tunnel, Cheney had hung up and entered the bunker, where he then learned that the military had just scrambled fighter jets around Washington.
Now Cheney took Bolten’s advice. He called Bush back at 10:18 a.m. Aboard Air Force One, Bush’s press secretary, Ari Fleischer, was with his boss and, like Libby, taking notes. Two minutes later, according to Fleischer’s notes, Bush hung up the phone and said he had just authorized the military to shoot down any remaining planes.6
Amid the initial turmoil, Cheney believed that the shoot-down order had been carried out. In a teleconference with Secretary of Defense Donald Rumsfeld at 10:39 a.m. Cheney said he believed that two planes had just been shot down. But, as it turned out, the question of whether to shoot down hijacked airliners was moot. Investigators would later determine that United 93, the last of the four hijacked planes, had already nose-dived into a Pennsylvania field at 10:03 a.m. amid a passenger uprising against the hijackers. 7 Confused officials had been looking at a computer-projected track of where United 93 would have been had the flight still been airborne, not at an actual radar image. Moreover, military commanders had never passed the shoot-down authorization on to the fighter pilots because, as they told the 9/11 Commission, “they were unsure how the pilots would, or should, proceed with this guidance” coming from the vice president. (As the 9/11 Commission report noted, “In most cases, the chain of command in authorizing the use of force runs from the President to the Secretary of Defense, and from the Secretary to the combatant commander.” 8) The shoot-down order, then, ended up a minor and inconsequential footnote on a morning full of hugely complex and important events. Yet the sequence leading to the shoot-down order would later become the subject of a pointed dispute between the White House and the 9/11 Commission. This conflict would sharply illustrate Cheney’s willingness to exercise extraordinary executive power, Bush’s penchant for deferring to Cheney, and their administration’s efforts to control the flow of information about their actions to Congress and the public.
More than two years after the attacks, on April 29, 2004, Cheney and Bush met with the 9/11 Commission in the Oval Office on the condition that they would not be placed under oath, that no recording or transcript would be made, and that Cheney would sit beside Bush the entire time so that they could answer questions together. During the meeting, Cheney insisted that the president had given him permission to authorize shooting down hijacked passenger jets some ten minutes or so before Cheney first gave the order at 10:15 a.m. Cheney claimed that he had called Bush back immediately after entering the bunker conference room, when he was first told there were fighters in the sky, and during this earlier call, Bush had given him authorization to issue a shoot-down order if it became necessary. The president backed Cheney’s account.9
In an extraordinary and largely overlooked passage of its findings, the bipartisan commission sharply scrutinized the president and vice president’s account. It reported that it found “no documentary evidence for this call”-and the commission had had plenty of evidence to look through. “Others nearby who were taking notes, such as the Vice President’s chief of staff, Scooter Libby, who sat next to him, and Mrs. Cheney, did not note a call between the president and Vice President immediately after the Vice President entered the conference room,” the commission report said.10 Nor had Fleischer, who was keeping detailed notes of events aboard Air Force One, recorded any earlier call. Bolten told the commission that he had spoken up to tell Cheney to call Bush to confirm the shoot-down order because “he had not heard any prior conversation on the subject with the president.” Tucked away in the footnotes of the commission report was further evidence casting doubt on whether there had been an earlier call. In order to reconstruct the events that occurred in the bunker that morning, the commission reported, it also obtained the White House secure switchboard log, Secret Service and White House Situation Room logs, the White House “President’s Daily Diary” record, and four separate White House Military Office logs that tracked significant events and communications in the bunker.11 None of these sources recorded the alleged earlier call that Cheney, much later, insisted he had placed. If Cheney and Bush were telling the truth, then their most trusted aides, Cheney’s wife, and eight White House and military log keepers all somehow missed the single-most potentially momentous call of that morning.12
The dispute over the existence of the phone call was no small detail. It embodied the central role that Cheney played in the second Bush presidency. The most powerful vice president in American history, Cheney literally called the shots for the administration on 9/11. He did not hesitate to take command, and Bush acquiesced to his vice president’s actions. As the war on terrorism unfolded, Cheney would continue to play a central role in guiding Bush’s policies. Cheney, after all, was one of the nation’s most experienced vice presidents when he and Bush were sworn in on January 20, 2001. He had been a midlevel Nixon-administration official, a White House chief of staff in the Ford administration, an influential congressman for ten years, and a secretary of defense under the first President Bush. By contrast, the second President Bush was a term-and-a-half state governor thrust to national prominence by elements of his father’s old political network. Bush’s father had been a member of Congress, an ambassador to the United Nations and to China, a chairman of the Republican National Committee, a director of the Central Intelligence Agency for ten months, and a vice president for eight years. His son shared the first President Bush’s name but had been none of those things. George W. Bush was one of the least experienced presidents ever to take the oath.
The upper ranks of the new administration quickly filled with two types of people. There were Bush People-mostly personal friends of the new president who shared his inexperience in Washington. These included Alberto Gonzales and Harriet Miers, Bush’s first and second White House counsels, each of whom was a corporate lawyer in Texas before becoming attached to the governor’s political network. And then there were Cheney People-allies from Cheney’s earlier stints in the federal government who were deeply versed in Washington-level issues, a familiarity that would allow their views to dominate internal meetings. These included Rumsfeld and other cabinet secretaries, key deputies throughout the administration, and David Addington, Cheney’s longtime aide who would become a chief architect of the administration’s legal strategy in the war on terrorism. 13
Given the stark contrast in experience between Cheney and Bush, it was immediately clear to observers of all political stripes that Cheney would possess far more power than had any prior vice president. William Kristol, the neoconservative editor of The Weekly Standard and former chief of staff to Vice President Dan Quayle, said in early 2001 that Cheney would play the role of “Bush’s number one adviser” and “super chief of staff,” giving him “unprecedented” influence. “The question to ask about Cheney,” Kristol said, was, “will he be happy to be a very trusted executor of Bush’s policies -a confidant and counselor who suggests personnel and perhaps works on legislative strategy, but who really doesn’t try to change Bush’s mind about anything? Or will he actually, substantively try to shape administration policy in a few areas, in a way that it wouldn’t otherwise be going?” 14
By the Bush-Cheney administration’s second term, Kristol’s question had been decisively answered. Cheney had used his influence to shape policy in hugely substantive ways. To be sure, some of the administration’s signature domestic issues-such as establishing national school-testing standards, pushing to reform the immigration system by turning illegal aliens into guest workers, banning gay marriage, and creating faith-based initiatives throughout the federal bureaucracy-were a natural fit for Bush, the born-again Christian who had run a state that shared a border with Mexico, and who had tried to reform the Texas public education system. But in other key areas, the administration’s policies emerged from Cheney’s own experiences and interests. Indeed, while most of the media’s attention was devoted to Cheney’s influence in pushing the administration to invade Iraq, the vice president was also immersed in another, far less visible effort. This second project was rooted in an agenda he had been developing for thirty years, stretching back far longer than his interest in toppling the regime of Saddam Hussein, and if successful would mark American politics for generations to come.
Cheney was determined to expand the power of the presidency. He wanted to reduce the authority of Congress and the courts and to expand the ability of the commander in chief and his top advisers to govern with maximum flexibility and minimum oversight. He hoped to enlarge the zone of secrecy around the executive branch, to reduce the power of Congress to restrict presidential action, to undermine limits imposed by international treaties, to nominate judges who favored a stronger presidency, and to impose greater White House control over the permanent workings of government. And Cheney’s vision of expanded executive power was not limited to his and Bush’s own tenure in office. Rather, Cheney wanted to permanently alter the constitutional balance of American government, establishing powers that future presidents would be able to wield as well.
Cheney made no secret of his agenda of expanding-or “restoring”-presidential power. He repeatedly declared that one of his goals in office was to roll back what he termed “unwise” limits on the presidency that were imposed after the Vietnam War and the Watergate scandal. “I clearly do believe, and have spoken directly about the importance of a strong presidency,” Cheney remarked at an awards ceremony for the Gerald R. Ford Foundation in June 2006. “I think there have been times in the past, oftentimes in response to events such as Watergate or the war in Vietnam, where Congress has begun to encroach upon the powers and responsibilities of the President; that it was important to go back and try to restore that balance.” 15
Cheney was not the first person to try to consolidate governmental authority inside the White House. Others had helped lay the groundwork for expanding executive power during the preceding thirty years, especially during the Reagan and Bush-Quayle administrations. Many of these “presidentialists” joined the Bush-Cheney administration. But as vice president, Cheney became the most important of the believers.
To understand what happened to presidential power during the Bush-Cheney administration, it is necessary to start by examining Cheney’s own beginnings in public life, from his political apprenticeship in the Nixon administration, to his first taste of real power in the Ford administration amid the fallout from Vietnam and Watergate, to a decade he spent defending the Reagan administration from inside a hostile Congress, and to his tenure as a wartime secretary of defense under President George H. W. Bush. The 9/11 attacks would reenforce Cheney’s view on the need for centralizing strong powers in the presidency. The war on terrorism’s climate of perpetual emergency provided a vehicle for turning his vision of an unfettered commander in chief into a reality. But Cheney’s agenda was forged years before Al Qaeda attacked the United States. His agenda’s origins date to 1969, when a former congressman named Donald Rumsfeld hired Cheney, then a twenty-eight-year-old graduate student in political science, to be his aide inside the Nixon administration.
The Fall of the Imperial Presidency and the Rise of Dick Cheney: 1789–1976
Richard Bruce Cheney was born on January 30, 1941, in Lincoln, Nebraska. When he was thirteen years old, his father, a soil conservation agent with the U.S. Department of Agriculture, was transferred to Wyoming. The Cheney family moved to the last house on the east side of Casper, next to a vast empty prairie. Cheney grew up with an American Graffiti lifestyle, though he never showed as much interest as some of his friends in cruising between the town’s two A&Ws on Friday nights.1 He was a tough but popular teenager at Natrona County High School, where he was the class president and a football player. “Dick and I both made the varsity [football team] our sophomore years,” boyhood friend Joseph Meyer recalled. “And the way we did it [was] one-on-one drills. We hit each other so hard that you could hear the sound. We did that about four times, and the sophomore coach called over the head coach and said, ‘These guys are out of their mind!’ “2
Cheney also learned to fight with his fists, recalled Tom Fake, who grew up with Cheney in Casper and became an all-state quarterback on the football team. (Cheney became a linebacker.) During Cheney’s senior year, he and Fake crossed the railroad tracks to the poorer side of town and found an old boxer who taught them to spar. “We spent four months during our senior year fighting in each other’s garage. He probably whipped me more than I whipped him,” Fake said.3
Friends, teammates, and boxing partners, Cheney and Fake were also rivals. During their junior year, Fake dated Lynne Vincent, a popular girl who was the state baton-twirling champion. Vincent’s father was a government engineer, and her mother was a sheriff ‘s deputy.4 A Casper native, Lynne would never grow taller than five foot two, but she had large ambitions. By senior year, she was Cheney’s girlfriend-and his future wife. “I knew her when we were in the eighth grade, but she wouldn’t have anything to do with me until I was a junior in high school,” Cheney later recalled. “Actually, we double-dated with others first. And Lynne was dating my good friend Tom Fake, and shortly after that I asked her out. And when I first asked her out, she said, are you kidding? Which I took to mean she really wasn’t very interested.” It became an inside joke for the couple; Cheney’s wife has always insisted that what she meant was she was surprised that he was interested in her.5
Cheney and Vincent would have a lifelong political partnership, and the relationship began paying dividends for Cheney immediately after he began dating her. The teenage Vincent had a part-time job as a secretary in the office of Alpha Exploration, a Casper-based oil company, and she introduced her new boyfriend to the owner, Tom Stroock. A graduate of the Yale College class of 1948, Stroock took a shine to Cheney and Fake and recruited them to attend his alma mater on full-ride scholarships. “In those days, you could do things you can’t do now,” Stroock later recalled, “so I called Yale and told ’em to take this guy” along with Fake.6
Cheney and Fake, popular jocks from Wyoming, found a different world when they arrived in New Haven, Connecticut, in 1959. Like many scholarship students from the heartland who made it to the Ivy League, they found that they were unprepared for the Eastern social and academic world. The Casper boys, who had effortlessly dominated the teenage social scene and never had to study hard back home, were overwhelmed.7 They partied but failed to engage with the academic side of Yale. Cheney was forced to leave Yale after three semesters for academic reasons. He briefly returned to Wyoming, then went back to Yale for a second try at completing his sophomore year-but he again flunked out, and lost his scholarship.
Cheney withdrew from Yale for good in 1962. Three years later, a young George W. Bush would arrive on the Yale campus as a freshman. A New Haven native and the grandson of a U.S. senator from Connecticut, Bush shared Cheney’s mediocre study habits and his youthful enthusiasm for partying. But Bush was much more comfortable in the Ivy League environment. He would be elected president of a fraternity and was inducted into the elite Skull and Bones secret society, coasting to graduation, where the Wyoming scholarship student had faltered.
Cheney returned to Wyoming and got a union job laying electrical lines in the blue-collar town of Rock Springs. He was arrested twice in the next year for drunk driving, and he would later speak of realizing that he was “headed down a bad road.” In 1963, “when I should have been graduating from Yale, one of the world’s finer universities, with a first-rate education, all paid for by the university, I found myself in Rock Springs working, building power lines, having been in a couple of scrapes with the law.”8 While Cheney drifted, his girlfriend, Lynne Vincent, was earning a BA with highest honors from Colorado College and an MA from the University of Colorado. Then Lynne put her foot down. The Dick Cheney she had fallen in love with was the king of his high school with a wide-open future, not a dropout and manual laborer who was running afoul of the law. To keep her, Lynne made clear, Cheney needed to get his life back on track.
Cheney refocused and went back to school-first completing a semester at a community college in Casper and then switching to the University of Wyoming in Laramie, where he earned a BA and an MA in political science. In 1964, Lynne agreed to marry him, and to convert from her Presbyterianism to his Methodism.9 “Turned out I was a pretty good student when I worked at it,” Cheney said. “And a year later Lynne and I got married. I must say I’ve got to give her a good deal of the credit for being a positive influence in my life. Stuck by me all those years. We’d gone to high school together and dated throughout this whole period of time. And she made it clear she wasn’t interested in marrying a lineman for the county. That was really when I went back to school in Laramie. I buckled down and applied myself. Decided it was time to make something of myself.”10
Marriage and a return to college studies had other advantages as well. The Vietnam War was heating up, and the government was drafting increasingly large numbers of unmarried young men who weren’t in college to go fight in the jungles of Southeast Asia. Cheney earned four draft deferments. Then, in October 1965, the rules protecting married men changed-only parents would be eligible to avoid being drafted. Within weeks, Lynne was pregnant with the first of their two daughters, and Cheney applied for a new deferment. In all, the future secretary of defense and wartime vice president would receive five deferments during the Vietnam War, protecting him from service during his draft-eligible years.11
In 1966, the Cheneys moved to Madison and began work on PhDs-he in political science, she in English-at the University of Wisconsin. As more and more young American men were dying in Vietnam, an antiwar movement gained force on many college campuses. Protests fueled a growing antigovernment sentiment and counterculture lifestyle that would become the hallmark of the sixties. Cheney did not relate to the political winds blowing around him. While his classmates were marching on Washington, Cheney was crunching congressional voting pattern data, looking for trends that could be used to predict the outcomes of political fights. In an American Political Science Review paper, for example, Cheney showed that lawmakers tended to vote in line with their party leaders on tax issues, but they voted in line with their district’s demographic makeup on welfare issues.12
Watching the increasingly unruly antiwar protests on campus convinced Cheney that liberalism was getting out of control and soured him on his chosen career as a college professor. In 1968, Cheney put off writing his dissertation and went to Washington, DC, to work as an intern in the office of Rep. William Steiger, a moderate Republican from Wisconsin. Cheney never returned to his studies. (Lynne Cheney completed her PhD in 1970, writing a dissertation on nineteenth-century British literature.) In 1969, Steiger provided Cheney with an entrée to Donald Rumsfeld, a rising star in the new Nixon administration. Rumsfeld, thirty-six, was a former Princeton wrestler and navy pilot. A moderately conservative Republican, Rumsfeld had been elected to Congress from a wealthy district in the suburbs north of Chicago in 1962. Rumsfeld had been an early supporter of Richard Nixon’s 1968 presidential campaign, and in April 1969 Nixon had asked Rumsfeld to resign from Congress and join him in the executive branch.
Nixon gave Rumsfeld two roles: He was both a special assistant to the president-entitling him to a second-floor office in the West Wing of the White House-and the director of the Office of Economic Opportunity, an antipoverty agency headquartered a few blocks away. Later that year, Rumsfeld hired Cheney to be his executive assistant at the Office of Economic Opportunity. Cheney, then a twenty-eight-year-old former political-science student, was about to begin a very different kind of political education-experiencing the rush of exercising presidential power from inside the Nixon administration, at the very peak of what the historian Arthur Schlesinger called the era of the “imperial presidency.”13
The “imperial” power invested in the presidency during the first decades of the Cold War was an anomaly in American history, Schlesinger argued. It traced its existence back to the Truman administration and gained force with successive presidencies leading up to Nixon. Truman and his successors, especially Lyndon Johnson, had begun invoking national security to seize more and more power from Congress and the courts. The Constitution empowers Congress to regulate the executive branch, but these presidents and their men began arguing that the modern world was too dangerous and complex for a president’s hands to be tied. They advanced a philosophy that the president wields vast “inherent” and independent powers not spelled out in the Constitution that allow the president to defy the will of Congress. This centralization of power in the hands of the president intensified and peaked under Nixon, during the period of Cheney’s apprenticeship in government. But the imperial presidency seemed to collapse amid the ruins of the Vietnam War and the Watergate scandal, a process that left a deep impression on Cheney.
During this brief period, presidents wielded far more power than America’s Founders had intended when they created the office two centuries before. The first generation of Americans, having rebelled against a king whom they viewed as a tyrant who dominated the British parliament and abused his power over the colonies, well understood the threat that strong executive power poses to democracy. Indeed, their first attempt at forming a government after the American Revolution had no executive at all. Instead, under the Articles of Confederation, the Founders chose a weak national government consisting only of a Congress. But this system soon proved a failure because it allowed state governments to run rampant, preventing a cohesive national economy and identity from taking shape. Pressured by the need for collective action against such problems as attacks on American shipping by the Barbary pirates, the Founders convened in Philadelphia in 1787 to write a new constitution.14
The second time around, the Founders gave more power to the national government than it had wielded under the Articles of Confederation. But the changes created concerns that the new federal government would abuse its powers to destroy individual rights and freedoms. To prevent that from happening, the Founders limited the government’s role to a specific set of functions. They divided control of the government into three separate powers-the presidency, the Congress, and the courts-giving each institution the ability to check the others if they got out of control. In debating the new executive branch, the Founders argued over whether the day-to-day manager of the government should be just one president or an executive committee, according to notes of the Constitutional Convention debates kept by James Madison. His convention notes and the Federalist Papers-essays written by three Founders to explain the Constitution and to urge states to ratify it-also show that the Founders decided it made sense to have just a single president so that the executive branch could act decisively, especially in times of war. But they were also bent on ensuring that this new president would not get out of control and become a king.
To that end, the Constitution gave Congress the power to pass laws setting all the “rules and regulations” it deemed “necessary and proper” for the execution of presidential powers. The executive branch, in turn, was charged with obeying these rules. If the president did not like the laws, he could veto them, but Congress could override a veto with a supermajority vote. And the Founders specifically took away from the executive the power to take the country to war-a chief provenance of the British king-leaving presidents the power to repel sudden attacks only without first getting the assent of Congress. The Founders vested in Congress the power to declare war, to authorize military conflicts that fell short of war, to create armies and devise rules for running them, to “make rules concerning captures on land or water,” and to regulate how the president could call up the armed forces in emergencies such as an insurrection or invasion. Finally, the Founders were mindful that until the English Revolution of 1688, less than a century earlier, one of the chief ways in which the British king had acted as a tyrant was through his “prerogative power”-the asserted power to dispense with a law if the king, and he alone, decided that setting a statute aside would be good for the public. The Founders made sure that the American president would not have this prerogative power, writing in the Constitution that the president must “take care that the laws be faithfully executed.”
The Founders’ idea for preserving democracy, then, was simple. Congress would enact the general rules, and the president of the United States was bound to obey them. This system of checks and balances was designed to prevent the consolidation of too much power into any one person’s, or one branch’s, hands. Knowing that it was inevitable that from time to time foolish, corrupt, or shortsighted individuals would win positions of responsibility in the government, the Founders came up with a system that would limit anyone’s ability to become a tyrant or to otherwise wreck the country.15 And over the next century and a half, the system worked as the Founders had designed it to work.16
There were adjustments, of course, as Congresses and presidents filled in some of the blanks in the Constitution. For example, nothing in the Constitution gives the president the right to withhold any information about the government from congressional oversight committees. But over time, Congress allowed presidents to withhold information if disclosing it would be against the public interest. In practice, this meant carving out a series of limited exceptions to a general rule of disclosure, such as protecting details of an ongoing investigation or the identity of confidential informants.
Similarly, while the Constitution left decisions about going to war to Congress, presidents gradually claimed a right to deploy small numbers of troops on their own authority for quick strikes against foreign foes. Presidents took small-scale military action to pacify Indian tribes, capture pirates, or rescue Americans in third world trouble spots. In such cases, Congress acquiesced to the fact that some combat had occurred without its authorization because the deployments and hostilities were localized, brief, and over by the time Congress could act. And throughout the nineteenth century and the first half of the twentieth, presidents continued to seek Congress’s authorization for major wars.17
The one major early jolt to this system came during the Civil War, the greatest threat to national survival that the United States has ever experienced. Southern rebels launched the war against the federal government while Congress was out of session, firing upon Fort Sumter on April 12, 1861. President Abraham Lincoln did not wait for Congress to return before taking steps to stop the country from breaking apart. Without a declaration of war, Lincoln enlarged the Union’s army and navy, blockaded Southern ports, spent money not appropriated by Congress, and arrested Northerners suspected of being Southern agents without giving them legal rights-all steps that exceeded his authority under federal law and the Constitution. Lincoln did not claim that most of what he had done was lawful based on his own independent and inherent powers as president. Rather, Lincoln acknowledged that several of his dramatic steps were outside the constitutional framework of government.
As soon as Congress reconvened, Lincoln explicitly asked for its authorization of his emergency actions, arguing that the actions had been necessary in order to keep the nation from falling apart. “These measures, whether strictly legal or not, were ventured upon under what appeared to be a popular demand and a public necessity, trusting then, as now, that Congress would readily ratify them,” he wrote to Congress on July 4, 1861.18 Forgiving the trespass in light of the extraordinary circumstances, Congress passed a statute retroactively making legal the actions Lincoln had taken.
In 1866, the Supreme Court made clear that Lincoln’s actions were to be viewed as a singular exception in American history, not as a new general rule about presidential power. A year after the Civil War ended, the Court struck down a military tribunal Lincoln had used to prosecute Northern civilians, ruling that the Constitution limits presidential power even in times of national emergency. “The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances,” the Court ruled. “No doctrine, involving more pernicious consequences, was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government. Such a doctrine leads directly to anarchy or despotism . . .”19
As the country stabilized, another seventy years passed with the system functioning basically as the Founders envisioned. Presidents generally hewed to the role the Constitution laid out for them, although some were more assertive than others. Perhaps the most assertive was Theodore Roosevelt, who was president from 1901 to 1909. Roosevelt declared that the president had a broad “residuum of powers” to do anything he was not specifically forbidden to do. Without seeking prior congressional approval, Roosevelt launched the project to build a canal in Panama, sent the U.S. fleet around the world, and dispatched U.S. troops to intervene in the Dominican Republic and Cuba. Roosevelt’s views, a version of what would become known as the theory of inherent power, contained the seeds of the imperial presidency that would arise during the first decades of the Cold War. But his handpicked successor, future Supreme Court chief justice William Howard Taft, revived the traditional view that the presidency has only those powers specifically granted to it by the Constitution or federal laws. Taft thus restored the constitutional balance, preserving the Founders’ vision for two more generations.20
Presidential power began to grow again under the stewardship of Theodore Roosevelt’s distant relative, President Franklin D. Roosevelt, who was elected in 1932 during the Great Depression. The first push came when Congress agreed to pass Roosevelt’s New Deal legislation. These laws greatly expanded the federal government bureaucracy and gave sweeping new powers over domestic issues to agencies controlled directly or indirectly by the president. The Supreme Court initially struck down these laws as unconstitutional. But in 1937, Roosevelt attacked the judicial branch, threatening to “pack” the Supreme Court by expanding its size and then appointing extra members who would vote the way he wanted. Congress rejected his plan but the Court bowed to the political pressure and began upholding the New Deal legislation, enabling the rise of the modern administrative state inside the executive branch.
Then, in the early days of World War II, before the United States had entered the war against Nazi Germany, Roosevelt sent supplies to Great Britain in violation of the Neutrality Act, under which Congress had sought to keep America out of World War II by prohibiting assistance to either side. Roosevelt did not simply claim that he had an “inherent” right to violate the Neutrality Act under his powers as commander in chief; instead, he used a stretched interpretation of federal statutes to justify his transgression, consulting with Congress at every step. Most important, Roosevelt did not claim that he could take the country to war against Germany and Japan on his own. When the time came, he asked Congress to authorize the war.
Congress typically reclaimed the authority that had been ceded to presidents during wartime. But World War II gave way to the early Cold War against the Soviet Union and the new threat of sudden nuclear annihilation. Rather than demobilizing, the U.S. armed forces stayed at large numbers. And President Harry S Truman used this climate of standing armies and perpetual emergency to expand his powers as commander in chief.
The Founders had intended only to ensure civilian control of the military by naming the president as the commander in chief of the armed forces-a title that Alexander Hamilton, who was among the strongest supporters of a powerful presidency, described in the Federalist Papers as amounting to “nothing more” than being the “first general” in the military hierarchy.21 And the Founders explicitly sought to keep the commander in chief from having the power to decide when the country would go to war, leaving such a decision to Congress alone. As James Madison, the namesake for the city in which young Dick Cheney studied government, wrote in 1793: “Those who are to conduct a warcannot in the nature of things, be proper or safe judges, whether a war ought to be commenced, continued, or concluded. They are barred from the latter functions by a great principle in free government, analogous to that which separates the sword from the purse, or the power of executing from the power of enacting laws.”22
But Truman, for the first time in American history, asserted that the title commander in chief brought with it the unwritten power to take the country into a major overseas war on his word alone. In 1950, Truman sent U.S. troops to fight North Korea without asking Congress for authorization, asserting that he had inherent powers to do so as the commander in chief. Truman did ask the foreign governments sitting on the United Nations Security Council to pass a resolution authorizing military action to turn back the North Korean invasion. But the permission of foreign states was irrelevant to the domestic legal issue of who got to decide whether the United States would go to war.23 No president had ever before launched anything on the scale of the Korean War without prior permission from Congress, as the Constitution requires. Some thirty-seven thousand Americans would die in Truman’s “police action,” an unpopular and costly war that resulted in a stalemate. But members of Congress, eager to appear tough against Communism and to support a war effort, did nothing to block Truman.
Two years later, Truman went further. Again citing his inherent powers as commander in chief, Truman took over the nation’s steel industry in order to avert a strike that he said could endanger the war effort. A steel-mill owner sued the government to regain control of his factory, putting Truman’s legal theory before the Supreme Court. The Court struck down Truman’s order as an unconstitutional usurpation of Congress’s power to write the laws, noting that “the Founders of this Nation entrusted the lawmaking power to the Congress alone in both good and bad times.”24 But the steel seizure case turned out to be only a pause in the movement toward an increasingly authoritarian presidency.
Truman’s successors picked up his claim to vast inherent powers, each citing special circumstances to use those powers. For example, seeking to protect government personnel files from Senator Joe McCarthy’s anti-Communist witch hunts in 1954, President Dwight Eisenhower invented the phrase “executive privilege.” Previous presidents had occasionally withheld information from Congress for a narrow and defined set of categories, but Eisenhower essentially proclaimed that the executive branch could withhold any internal documents-thereby creating a potentially boundless new category of government information a president could deny to Congress.25
Eisenhower also authorized the CIA to operate in foreign countries without congressional approval, expanding a new national security apparatus that gave the president the ability to undertake secret paramilitary actions at his own discretion. Such covert CIA interventions authorized by Eisenhower and his immediate successors facilitated coups in an attempt to assassinate foreign leaders and topple governments-often democratically elected but suspected of harboring Communist sympathies -in countries such as Iran, Guatemala, the Dominican Republic, Cuba, Brazil, Guyana, and Chile.26 These operations, undertaken at a president’s say-so alone and far exceeding the legal charter Congress gave the CIA when it created the agency after World War II, resulted in a mix of short-term successes and failures. But even where the aggressive operations achieved their goals, they often did long-term damage to the nation’s reputation, creating new and lasting enemies for the American people in countries such as Iran.
Similarly, amid the urgency of the 1962 Cuban missile crisis, President John F. Kennedy launched a military blockade of Cuba and threatened imminent war with the Soviet Union without consulting congressional leaders. Further expanding presidential war-making powers in the absence of congressional approval, Kennedy’s successor, Lyndon B. Johnson, greatly escalated U.S. troop levels in Vietnam and “Americanized” the combat against the Communist North without congressional authorization. In the Tonkin Gulf resolution of 1964, Congress approved defensive action only for the purpose of stopping attacks on U.S. troops stationed in Vietnam. Later, some in Congress proposed repealing the Tonkin Gulf resolution, but Johnson argued that such a move would be irrelevant. He said he had the inherent power, as commander in chief, to keep the country at war in Vietnam in order to defend America against a threat to its national security.
When Nixon became president in 1969, he inherited a presidency whose powers to act beyond the will of Congress were greatly inflated when compared with those the office held throughout most of American history, powers that had little basis in the Founders’ constitutional system. This imbalance-the “imperial presidency”-was the result of the actions of a few recent presidents and of the inaction of Congress amid the confusion and fears of the early Cold War years. Nixon, with a young Cheney watching and learning inside his administration, then pushed the power of the presidency to its breaking point.
In 1977, three years after Nixon resigned to avoid being impeached for abuses of power, the former president remained defiant about his view of White House authority. In a famous interview with the British journalist David Frost, Nixon declared that presidents have the inherent power to authorize government officials to break laws if the president decides that doing so would be in the national interest. Citing Lincoln’s example during the first few months of the Civil War as precedent, Nixon said that presidents have the power to take any action in order to protect national security, regardless of what the laws say. “When the President does it, that means it’s not illegal,” Nixon declared.27
This view represented the culmination of Nixon’s grasp for nearly unlimited presidential power, a strategy that unfolded on many fronts. First, Nixon tried to impose greater political control over the permanent government bureaucracy. Under Johnson, Congress had passed a series of anti-poverty and civil rights laws, setting up agencies in the executive branch to enforce the statutes. Nixon disagreed with these laws, but Congress was unwilling to repeal them. So Nixon tried to block career civil servants from carrying out the tasks Congress assigned to them; young Cheney would be drawn into this effort. Nixon also sought to eliminate some of the agencies whose work he opposed by significantly escalating the practice of “impoundment”-refusing to spend money Congress had appropriated for programs that the president opposed. He greatly expanded the White House staff, centralizing political control of the government under officials who were not confirmed by Congress and not subject to testifying before them.28
Nixon also invoked executive privilege far more aggressively than his predecessors had done. Similarly, he tried to control what newspapers could print, seeking to prevent the publication of the leaked Pentagon Papers-a classified history of the Vietnam War showing that the government had knowingly lied to the public during the conflict’s early years-but the Supreme Court refused to go along, upholding the right of the news media to report any information that came into their possession.
Nixon also took expansive action on the basis of inherent presidential powers, asserting that he had exclusive authority-meaning no act of Congress could affect it-across the entire realm of foreign policy and national security. Expanding the Vietnam War to encompass all of Indochina, he secretly ordered the military to begin bombing the neutral countries of Laos and Cambodia. Nixon also refused to acknowledge a role for Congress in deciding when to withdraw from the war, saying such issues were for him alone to decide. Congress repealed the Tonkin Gulf resolution in 1971, for example, but Nixon kept the war in Vietnam going until 1973.
Expanding on the practices of his immediate predecessors, Nixon authorized warrantless domestic wiretapping, burglaries, mail openings, and other illegal “black bag job” intelligence collection on U.S. soil in order to eavesdrop on his political enemies, including war protesters and civil rights leaders. Several of these illegal operations were carried out by a shadowy organization originally set up inside the White House; they were dubbed the “plumbers” because their first mission was to plug leaks about national security matters. Several members of the plumbers later tried to sabotage the 1972 Democratic presidential campaign, in part by burglarizing the Democrats’ headquarters at the Watergate building in Washington. But they were arrested and charged in relation to the break-in, setting in motion a massive but ultimately unsuccessful cover-up operation inside the White House.
The Watergate scandal, which shocked the country as it unfolded through the media and congressional investigations, combined with disgust over the ill-advised war in Vietnam, temporarily collapsed an imperial presidency that had been building for two decades. But just as Nixon’s story was ending, Cheney’s was beginning.
In 1969, when Cheney went to work for the Nixon administration as Rumsfeld’s assistant at the Office of Economic Opportunity, he had been thrust into the middle of Nixon’s effort to expand presidential control over federal agencies. Cheney’s new workplace, the Office of Economic Opportunity, had been established by Congress as part of Johnson’s War on Poverty. As a measure of its importance under the previous administration, Johnson had asked Sargent Shriver, the Kennedy in-law and former head of the Peace Corps, to be the office’s first director. But the agency was deeply unpopular among conservatives. Nixon had made the Office of Economic Opportunity’s alleged faults a campaign issue during the 1968 election. In 1969, Rumsfeld’s job, with Cheney beside him, was to help Nixon bring the agency to heel.
Nixon continually pressed Rumsfeld to impose greater political control over the agency and to curb its antipoverty programs he didn’t like, such as the Office of Legal Services, which Congress created to provide free lawyers for the poor.29 “Rumsfeld took the OEO job because Nixon saw him as a skillful dismantler,” said Paul O’Neill, who oversaw the agency for the White House Office of Budget under both the Johnson and Nixon administrations, and later served as treasury secretary under the Bush-Cheney administration.30
Congress had given the agency a broad mandate “to further the cause of justice among persons living in poverty.”31 Some of the more aggressive Legal Services lawyers began developing high-profile class-action lawsuits on behalf of the poor. Although the class-action lawsuits were a small percentage of the total number of suits brought by the Legal Services program, they were having a major political impact. In 1967, for example, California governor Ronald Reagan tried to cut $210 million from the state’s medical care budget, but Legal Services funded a lawsuit that reversed the cuts.32 These lawsuits-against local, state, and federal agencies, police departments, major landlords, industrial farmers, and corporations-irritated Republicans and their donors. They saw the class-action lawsuits as trouble, and the poverty lawyers as taxpayer-funded radicals. Nixon expected Rumsfeld to take care of the problem.
Legal Services was then headed by a former federal prosecutor and civil rights trial attorney named Terry Lenzner. Just twenty-nine years old, Lenzner had been the captain of the Harvard football team, gone on to Harvard Law School, and then joined the Justice Department. After catching Rumsfeld’s eye, Lenzner had preceded Cheney as Rumsfeld’s assistant for his first several months at the agency. In July 1969, Rumsfeld put Lenzner in charge of the Legal Services program, which by that point had more than 2,000 lawyers and 850 offices around the country. Lenzner was Rumsfeld’s first major appointment, and it came with a strong personal endorsement: “I have worked closely and personally with [Lenzner] on a daily basis since assuming this position, and I have confidence in his judgment, his ability, and his commitment,” Rumsfeld said.33
As Legal Services’ courtroom successes continued, top White House aides-including White House chief of staff H. R. “Bob” Haldeman and Nixon’s top domestic adviser, John Ehrlichman-began pressuring Lenzner to fire the lawyers who were filing aggressive litigation. But Lenzner, who described himself as idealistic about the mission of the office, said he didn’t want to fire anybody for political reasons. Moreover, he said, he could not fire the lawyers because of the way Congress had set up the agency. “I was being told, ‘You have to put a stop to this, you have to control these lawyers,’ ” Lenzner recalled. “But I said that if I do what you want me to do, it will violate the law.”34
The orders to fire lawyers, Lenzner emphasized, came from other Nixon White House officials, not Rumsfeld or Cheney personally.35 Still, as Lenzner failed to rein in the Office of Legal Services, Rumsfeld turned his back on his former protégé. Increasingly, the only time they spoke was when Rumsfeld wanted to relay complaints from Republican congressmen and other local officials who were unhappy about certain lawsuits.
When Rumsfeld announced plans to reorganize Legal Services under a system of regional administrations, Lenzner directed his aides to analyze the fine print of the plan. They concluded that the apparently innocuous change was actually “an ingenious Nixon administration way to politicize the program and take the fangs out of Legal Services,” Lenzner said, because the change would give regional power brokers the ability to quash lawsuits filed against powerful interests in their home state. Lenzner said that one of his assistants, without asking his permission, sent a copy of their memo to the office of Senator Walter Mondale, the liberal Minnesota Democrat who later served as Jimmy Carter’s vice president. Mondale raised a stink about Rumsfeld’s reorganization, scuttling the plan. Rumsfeld was, to say the least, not happy. “Don blew up,” Lenzner recalled. “I was not a ‘team player.’ “36
During this period, Nixon repeatedly reminded Rumsfeld about a need to purge disloyal officials in order to gain greater political control over the permanent government, a message that surely was passed on to Cheney. As Rumsfeld was brought more into the inner councils, he began spending a greater percentage of his time at the White House. The change left Cheney with greater responsibilities for running the Office of Economic Opportunity in Rumsfeld’s absence, and for enforcing Nixon’s agenda. Cheney quickly developed a reputation as both efficient and rather cunningly persuasive, despite his low-key manner. One former coworker, Ted Taylor, later recalled Cheney as “a very strong manager. And you didn’t realize till afterward that he’d already gotten you to do something. You almost had to think, God, did I say yes to that?”37
Cheney appeared deeply skeptical about Legal Services. On numerous occasions, Lenzner said, “I would get calls from Cheney. Don was not around as much and Cheney was issuing orders, calling to say, ‘You got to do this’ and ‘You can’t do that.’ The message was that ‘I’m watching you and I’m not too happy with what’s going on because of all the calls from the White House.’ It was clear nobody was happy.”38
In November 1970, shortly after the midterm elections, Lenzner was summoned to the director’s office. Rumsfeld, with Cheney at his side, fired Lenzner on the grounds that he was “unable or unwilling to comply” with orders, according to Lenzner. Lenzner called a press conference and accused the Nixon administration of secretly hamstringing Legal Services on behalf of “powerful interests.”39
With Lenzner out of the way, the agency’s independence was sharply reduced. The firing drew front-page coverage in the next day’s newspapers. It was an early milestone in the Nixon administration’s efforts to undermine Legal Services in defiance of the federal law that created it. And for Cheney, whose own, lesser role went almost unnoticed in the press at the time, the experience represented his first hands-on lesson in how the presidency should operate: wresting control of an agency away from Congress in order to bend it to the White House’s agenda.40
Rumsfeld’s and Cheney’s own days in the Office of Economic Opportunity were numbered. In December 1971, Nixon put Rumsfeld in charge of the Cost of Living Council, an agency that set price controls in an effort to control inflation, and Rumsfeld again brought Cheney along as his deputy. But their relationship was briefly severed in February 1973, when Nixon made Rumsfeld his ambassador to NATO, seeking to give his trusted young aide foreign policy experience that would help his later career. After Rumsfeld departed for NATO headquarters in Brussels, Cheney briefly left the government to work as a partner in an investing firm.
Both men watched from a distance as Congress battled Nixon and sought to counter his claims of presidential power. Congress passed laws in 1973 ordering Nixon to stop bombing Laos and Cambodia and demanding that presidents consult Congress for any future wars. Then, as Watergate revelations grew, Nixon resigned in August 1974 to avoid being impeached.
On August 9, 1974, Nixon left the White House grounds in defiant disgrace aboard a marine helicopter shortly before Gerald Ford was sworn in as the new president. At that moment, Cheney was off to Dulles International Airport, forty-five minutes south of Washington, where he would meet Rumsfeld’s flight from Brussels. Rumsfeld, then still the NATO ambassador, had been vacationing on the French Riviera with his wife when he got a call from Phil Buchen, soon to be Ford’s new White House counsel.41 Buchen told Rumsfeld that Ford wanted him to come back and head up the transition team that needed to quickly create a new administration from the ruins of the Nixon presidency. Rumsfeld’s temporary assignment soon became permanent, as Ford made him White House chief of staff. Rumsfeld again tapped Cheney to be his deputy. The following year, when Ford made Rumsfeld the secretary of defense, Cheney replaced his mentor as White House chief of staff-an extraordinarily powerful position for a thirty-four-year-old.
In one sense, his timing was terrible. Cheney had gotten his chance to help wield the powers of the presidency from high in the executive branch hierarchy just as those powers had come under fierce assault. Congress had begun aggressively reining in the presidency during the last years of the Nixon administration. Among its most important moves was enacting the War Powers Resolution of 1973; overriding Nixon’s veto, Congress required presidents to consult with Congress whenever deploying troops into likely combat, and required any deployments not explicitly authorized by Congress to end after sixty days. Years later, Cheney would describe the era as the “low point” of presidential power, and he singled out the War Powers Resolution as unconstitutional because it “made a change in the institutional arrangements that I don’t think is healthy. I don’t think you should restrict the president’s authority to deploy military forces because of the Vietnam experience.” 42
Ford, a former House minority leader who had had nothing to do with Watergate, enjoyed a few weeks of harmony with Congress, but his surprise decision to grant Nixon a full and unconditional pardon a month after taking office ignited a new round of congressional action. 43 The first fight the new administration faced involved a bill to strengthen the Freedom of Information Act. The bill allowed judges to review documents the executive branch wanted to keep secret. Congress’s goal was to prevent officials from stamping a document “classified” for political purposes. Ford was reluctant to veto the bill. In his first remarks after taking office, Ford had promised a new era of openness in government. Moreover, a midterm election was coming up, and vetoing such popular legislation would look terrible. “A veto presents problems,” Ford scrawled on a memo to an aide three days after becoming president. “How serious are the objections?” 44
But the CIA, the Pentagon, the State Department, and other agencies that dealt in classified information were adamantly against the bill. Leading the charge was the young head of the Justice Department’s Office of Legal Counsel, which advises the president on constitutional matters. His name was Antonin Scalia. Scalia asserted that the bill unconstitutionally infringed on the president’s “exclusive” power to withhold information to protect national defense and foreign policy.45 Joined in argument by all but one of Ford’s top advisers (Buchen, the White House counsel and a friend of Ford’s from their college days46), Scalia and company convinced Ford to veto the bill because it could lead to leaks and “would violate constitutional principles.” 47 The Ford administration then launched an all-out lobbying campaign to urge Congress to sustain the veto and instead pass alternative legislation that Ford’s legal team would help craft. Congress, however, promptly overrode his veto.48
Ford officials soon had cause to worry that Congress would go even further in restricting the president’s powers. In the November 1974 midterm elections, Democrats won huge victories at the polls as voters punished Republicans for the Watergate scandal and Ford’s pardon of Nixon. The election meant that the opposition party would enjoy a greater than two-to-one majority in both houses of Congress-enough to easily override presidential vetoes.
One month after the midterms, the New York Times published a report by the investigative journalist Seymour Hersh alleging that the CIA had for two decades undertaken a massive and illegal program of domestic spying, including tapping phones, opening mail, breaking into homes and offices, and keeping files on ten thousand antiwar protesters and other dissidents. Hersh’s article touched off an uproar in the new Congress, prompting vows to investigate and reform the intelligence community. Transcripts of National Security Council meetings from this period portray a White House feeling under siege. Ford remarked that they were all “struggling . . . with the consequences of the Hersh article” and that he was “concerned that the CIA would be destroyed.” 49 In a memo to the president, Cheney urged Ford to quickly create a White House commission to investigate the CIA as “the best prospect for heading off congressional efforts to further encroach on the executive branch.”50
Ford, who would later remember getting to know Cheney and “develop[ing] a great admiration for his ability to analyze problems, his good judgment,”51 took the young deputy’s advice and created the commission, putting his vice president, Nelson Rockefeller, in charge of it. But the new Congress moved in anyway, launching eight separate hearings and demanding full access to secret documents. Soon, the probes were consolidated into one for each chamber. A special House committee, headed by Democratic representative Otis Pike of New York, focused on whether the intelligence community needed to be redesigned. The White House’s fights with Pike were heated but paled by comparison with the battles with a separate Senate committee that was focusing on investigating past cases of severe abuses by the intelligence agencies.
This Senate committee, which generated the sharpest attacks on the presidency during the Ford years, was chaired by Idaho Democrat Frank Church. Church had been an intelligence officer for the army in Southeast Asia during World War II. He had joined the military shortly after graduating from high school in 1942. After his discharge in 1946, Church earned an undergraduate degree from Stanford and went on to law school. But his studies were interrupted again when he was diagnosed with cancer in his abdomen, underwent surgery, and was given just months to live. However, a second doctor subjected Church to an early form of radiation therapy, using X-rays to kill the remaining cancer cells. The treatment worked. Church later said that the early reminder of his mortality spurred him to be more aggressive in life. “I had previously tended to be more cautious-but having so close a brush with death at 23, I felt afterwards that life itself is such a chancy proposition that the only way to live is by taking great chances,” he recalled.52
The young lawyer channeled that energy into politics. The youngest son of a staunch Republican who loved to argue politics over dinner, Church had often taken a contrarian stance simply in order to “furnish an argument.” The dinnertime debates led Church to hone his political skills-he won a national American Legion oratory contest as a sixteen-year-old-and also converted him into a Democrat. He won a U.S. Senate seat in 1956 at age thirty-two, making him the fifth-youngest U.S. senator in history. He would serve for four terms, becoming one of the early opponents of the Vietnam War and a true believer in the dangers an imperial presidency poses to American democracy.
Church achieved his greatest fame heading one of the 1975 probes into severe abuses by the vast covert spy force that had grown up, almost without discussion, after World War II. In its final report, the Church Committee described the growth of illegal domestic intelligence activities as a product of excessive secrecy and unrestrained executive power. The report said that in order to preserve the Constitution, it was imperative to impose safeguards on what a president could do with spy agencies.
“For decades Congress and the courts as well as the press and the public have accepted the notion that the control of intelligence activities was the exclusive prerogative of the Chief Executive and his surrogates,” the Church Committee report said. “The exercise of this power was not questioned or even inquired into by outsiders. Indeed, at times the power was seen as flowing not from the law, but as inherent, in the Presidency. Whatever the theory, the fact was that intelligence activities were essentially exempted from the normal system of checks and balances. Such Executive power, not founded in law or checked by Congress or the courts, contained the seeds of abuse and its growth was to be expected.”53
Church’s findings would ultimately prompt Ford to write a sweeping executive order imposing new limits on the intelligence community. The 1976 order for the first time established explicit rules for intelligence operations, banning most physical surveillance of U.S. citizens and legal residents as well as the collection of information about them. It also prohibited the infiltration of most domestic groups and made clear that the CIA was not to conduct operations on U.S. soil, nor to assassinate foreign leaders. Ford’s order blunted efforts in Congress to lock down such rules in statute so that they could not be waived by future presidents at their own discretion, but the findings also prompted Congress to create intelligence oversight committees in each chamber and to require the president, by law, to tell the committees about all intelligence activities.54
As the Church Committee began pressing for access to secret documents in early 1975, Ford tapped Jack Marsh, one of his top advisers, to coordinate responses to the requests. A former congressman and Defense Department official, Marsh later said that being in the Ford White House during those years felt like being under relentless assault. “There was an avalanche of demands and requests,” Marsh said. “If you want to get really whipsawed sometime, be in the White House when you got that kind of an issue, and the Congress is against you two to one.”55
Meanwhile, the press was uncovering major new revelations. In 1973, at the height of the Watergate investigations, the director of the CIA had ordered the agency to compile a classified report on any past or present activities that might have been illegal. This report, which Ford-administration officials alternately called the “horror stories” and the “family jewels,” leaked to CBS in February 1975. It included numerous allegations of attempted assassinations of foreign leaders over the previous twenty years.
Cheney instructed the White House press secretary to “stonewall” press inquires about the assassination report.56 Rumsfeld urged a “damage-limiting operation for the president” as they sought to thwart congressional demands for secret documents while trying not to look like they were engaged in a Watergate-style cover-up.57
Years later, Scalia would recall attending daily morning meetings during this period in the White House Situation Room with Marsh, CIA director William Colby, and other top officials. At those meetings, they “decided which of the nation’s most highly guarded secrets would be turned over that day to Congress, with scant assurance in those days that they would not appear in the Washington Post the next morning. One of the consequences of these congressional investigations was an agreement by the CIA that all covert actions would be cleared through the Justice Department, so, believe it or not, for a brief period of time, all covert actions had to be approved by me. Needless to say, I did not feel that this was an area in which I possessed a whole lot of expertise. Nor did I feel that the Department of Justice had a security apparatus adequate to protect against penetration by foreign operatives. We had enough security procedures to frustrate la Cosa Nostra, but not the KGB.”58
As late as mid-March 1975, Cheney wrote a note to himself saying that they had a “problem”: “At the present time, we have no clear guidelines, no coherent policy developed for responding to Congressional requests generated by their investigation of the intelligence community.”59
A month later, the commander in chief endured a new humiliation. In the spring of 1975, North Vietnam invaded the South, violating the cease-fire that the Nixon administration had negotiated in 1973. By April, it was clear that the Communists would soon take Saigon. Ford and his advisers, especially Secretary of State Henry Kissinger, wanted to conduct a massive airlift that would rescue 175,000 Vietnamese whose lives were in danger because they had worked with the Americans. Because of the laws Congress had passed at the end of the Vietnam War, Ford was forced to ask Congress for permission to conduct the airlift. But Congress opposed a new round of military action in Vietnam. In an April 14, 1975, meeting in the Oval Office, the Senate Foreign Relations Committee told Ford that it was a terrible idea because the number of American troops that would be necessary to secure the area while the airlift unfolded could reignite the war.
Congress gave Ford permission to use the military only to evacuate any Americans who were still in Saigon. His hands tied, the president could only watch helplessly as the television news depicted chaotic crowds of desperate South Vietnamese trying to get aboard the last helicopter flights out of the American embassy on April 30, 1975. It was a heart-wrenching scene. But limiting the evacuation also probably prevented a new round of war in Vietnam.
Two weeks later, the Ford administration began to push back against Congress. On May 12, 1975, a U.S. cargo-container ship called the SS Mayagüez was seized by the Cambodian navy in the Gulf of Siam. Kissinger urged military action to get the ship and its crew back, arguing that it was necessary to make a strong show of force to alert Communist regimes in the region that the United States would respond to attacks on its interests despite the fiasco of the Vietnam War. Ford took his advice, ordering the U.S. Marines to sink Cambodian warships and to storm an island where the crew was believed to be held-and he did so without consulting Congress ahead of time. Just two weeks after the Saigon airlift, Ford had revived the notion that he could order the military into combat without consulting Congress.
After Ford gave the orders to proceed with the assault, he called congressional leaders from both parties to come to the Cabinet Room in the White House and briefed them about what he had already done.60 The congressional leaders agreed that the attack was the right decision as a matter of policy, but they sharply disagreed with how Ford had gone about it. A 1971 law prohibited the use of ground combat troops in Cambodia, and the 1973 War Powers Resolution required advance consultation with Congress “in every possible instance.” Speaker of the House Carl Albert informed Ford, “There are charges on the Floor that you have violated the law.” And Senate Majority Whip Robert Byrd, Democrat of West Virginia, asked, “Why were the [congressional] leaders not consulted before the decision to strike the mainland? I’m for getting the ship back, but I think you should have given them a chance to urge caution.”
“That’s a good question and I’ll answer,” Ford replied. “It is my constitutional responsibility to command the forces and to protect Americans. . . . We have a separation of powers. The president is the commander in chief so long as he is within the law. I exercised my power under the law and I complied with the law. I would never forgive myself if the Marines had been attacked. . . .” 61
The Mayagüez and its crew were recovered, and Ford’s decision was celebrated as a “daring show of nerve and steel,” a “classic show of gunboat diplomacy,” and a “four star political and diplomatic victory,” as Newsweek told its readers, adding for good measure, “It was swift and tough-and it worked.” 62
But later, this heroic portrait was revealed to be false. The U.S. death toll from the assault was far higher than initially reported. Instead of one dead and thirteen missing, more than forty marines had died-fifteen in the initial assault on the island, twenty-three in a related helicopter crash, and three who had been accidentally left behind and were captured and executed by the Cambodians. The intelligence surrounding the operation had been terrible. The United States expected to find just two dozen Cambodian soldiers on the island; instead, there were ten times that many. Worse, the captured crew wasn’t on the island-and never had been; they had been taken to the mainland at the beginning of the crisis. Worst of all, it turned out that the Cambodians had publicly announced that they were releasing the crew and the vessel before the attack began, but the message hadn’t reached Ford before he rushed to attack. The crew was floating out to sea on a fishing boat when the marines launched their assault on the island, dying for nothing.63
But these facts did not come out for several weeks-and some facts took years. In the meantime, the operation was presented to the public as a stunning, morale-boosting victory just two weeks after the humiliating Saigon evacuation. An unnamed Ford administration official admitted to a Newsweek reporter that the White House release of information about the operation had been “the sheerest sort of jingoism,” but his argument was that the operation had worked-“and nobody challenges success.” 64 Indeed, it proved difficult for members of Congress to quarrel with an apparently successful operation, and their grumbles about the principles involved quickly died down.
The Mayagüez incident revealed just how difficult it would be for Congress to rein in a president once troops were committed. And Ford would not be the last president to chip away at the War Powers Resolution.
Another area in which lawmakers were newly vigilant had to do with treaties. The Constitution divided power over contracts with foreign nations, allowing presidents to negotiate such agreements but requiring presidents to submit them to the Senate for ratification. Over time, however, presidents began sidestepping this procedure by making more aggressive use of “executive agreements” with foreign governments-turning what were supposed to be limited understandings into major treaties under another name, which they never sent to Congress.
Nixon, who had taken this practice to unprecedented levels, even sometimes kept the agreements a secret from Congress. In April 1975, when the North Vietnamese forces neared Saigon, the South Vietnamese government produced confidential letters Nixon had sent them in late 1972 and early 1973 during peace negotiations with the North. The letters appeared to commit the United States to coming to the South’s defense with “severe retaliatory action” if the North violated the peace agreement. “You have my assurance of continued assistance in the post-settlement period and that we will respond with full force should the settlement be violated by North Vietnam,” Nixon had written, urging South Vietnam to sign the accord.65
The revelation of Nixon’s promises caught both Congress and the Ford administration by surprise. In the White House, Cheney helped craft the White House reaction. There was no support in the United States for reopening the Vietnam War, and Congress had since passed laws against further military involvement in Indochina. For its part, the Ford White House had no desire to follow through on Nixon’s promises, and Cheney’s handwritten notes show that he struggled to understand whether Nixon’s letter constituted a commitment on behalf of the United States. He also debated whether Nixon’s other secret letters to South Vietnam should be released to the public-a point soon made moot when the South Vietnamese leaders made them all public before fleeing.66
Lawmakers quickly introduced legislation in both houses that would require the president to submit any executive agreements to Congress for approval, as he was supposed to do in the case of a treaty. On May 15, 1975, the Ford administration dispatched Scalia to the Senate to testify against the bills. He called the plan an unconstitutional attempt to usurp presidential power to carry out the nation’s foreign affairs.67 Although legislation to force presidents to submit their executive agreements to a vote in Congress would eventually falter, senators would succeed in getting Ford to show them classified letters he had exchanged with Saudi Arabia, even though the president felt “it would not be wise to establish the precedent of providing correspondence between the heads of state.” 68 As the fight played out, Ford called several congressional leaders into the White House and urged them to slow down the legislation. Ford’s deputy national security adviser, Brent Scowcroft, urged the lawmakers not to undercut the president’s ability to speak for the United States with other foreign leaders. But Senator John Sparkman of Alabama told Scowcroft that the American president didn’t have the power make a commitment on behalf of the country on his own. “Other presidents do speak with that kind of authority, and this is precisely the danger we want to avoid,” Sparkman said, alluding to dictatorships.69
Ten days after Scalia’s testimony, Cheney spotted a way to push back against the Church Committee’s investigations into what presidents had done with the intelligence community. On May 25, 1975, five months after Hersh’s article about illegal domestic spying by the CIA touched off the congressional probes, Hersh published a new investigative piece about a different top-secret intelligence operation. For the past fifteen years, American submarines had been infiltrating Soviet Union waters and eavesdropping on their undersea communications lines, Hersh reported.
Rumsfeld and Cheney were furious. There was nothing legally questionable about the submarine operation, and it was an important ongoing source of intelligence about the Soviet military. Rumsfeld, who was leaving for a trip to Europe, instructed Cheney to lead a meeting to decide what to do about the disclosure. Cheney’s handwritten notes show that he explored the ideas of launching an FBI investigation of Hersh and searching his home, and of asking a grand jury to indict both the reporter and the New York Times Company for having disclosed classified information. While it was not illegal for the media to publish secrets, Cheney proposed using a World War I–era law aimed at foreign spies to go after Hersh. Cheney argued that charging the reporter with a crime would discourage the media from aggressive investigation and also “create an environment” that could take the steam out of Congress’s probes. He wrote, “Can we take advantage of it to bolster our position on the Church Committee investigation? To point out the need for limits on the scope of the investigations?” 70
In a top secret cable sent back from Brussels, Rumsfeld indicated that he liked Cheney’s ideas but sounded a note of caution. While “there is a desire to have the FBI investigation begin soon,” Rumsfeld wrote, if it “would adversely affect the operation . . . do not initiate the investigation.” 71 Cheney quickly ran into roadblocks. The navy had in fact seen no Soviet response to the article. If the Soviets had overlooked Hersh’s story, the submarine eavesdropping operation could continue, and the navy did not want to jeopardize that stroke of luck by publicizing official displeasure with the article.
In addition, Cheney reported that Ford’s new attorney general, Edward Levi, thought the case for indicting the reporter using the espionage law was weak. Levi was a formidable force. He had been a special assistant to Attorney General (and future Supreme Court justice) Robert Jackson during World War II, and he had spent twelve years as dean of the University of Chicago Law School and seven more as the university’s president before becoming Ford’s attorney general in 1975.
Now, pressed by Cheney to approve an FBI investigation of Hersh, Levi refused. He pointed out that the anti-espionage law was aimed at spies who gave classified information to foreign governments, not at journalists who provided information to the American public. And, Levi noted, despite Cheney’s displeasure at the article, it actually contained very little new information. Tactically, any prosecution would have to focus on just a few tidbits that hadn’t been published elsewhere, and without real prospects for a successful prosecution, he could not properly authorize an FBI probe.72
Based on Levi’s continued opposition to an FBI investigation of Hersh and the military’s recommendation that the operation continue, Cheney cabled back to Rumsfeld that they would have to back off from their plans to punish the reporter.73 In the end, the Ford administration took no action-but thirty years later, when Cheney was vice president and the White House was facing a new round of leaks about intelligence operations to the media, the idea of using the espionage law to go after journalists would return.
As 1975 rolled on, Cheney and other top Ford officials stepped up their efforts to protect presidential powers from the fallout of the intelligence scandals. In July, a lawsuit seeking the public release of papers related to the CIA’s report on illegal activities raised the prospect of a precedent that would render the president’s own files subject to the Freedom of Information Act. Cheney strongly recommended to Ford that the White House release the CIA report in full on its own in order to make the lawsuit moot.74
Four months later, in November 1975, the Church Committee bore down on reports that there had been CIA involvement in a 1973 coup in Chile, during which its democratically elected but Marxist-leaning president, Salvador Allende, was murdered. Congress subpoenaed all documents related to Nixon’s meetings about Chile, but Ford invoked executive privilege to avoid turning them over.75 Ford allowed Kissinger to testify before Congress but told him, “I think you should be very firm. The country is not behind the committee.”76
Shortly afterward, Ford decided to shake up his cabinet. He made George H. W. Bush, the chairman of the Republican National Committee, the director of the CIA, sent Rumsfeld to the Pentagon as his new secretary of defense, and elevated Cheney to White House chief of staff. In his memoirs, Ford recalled feeling no hesitation at asking Cheney to take over from Rumsfeld, despite the new chief of staff ‘s youth: “If their personalities differed-Cheney was very low-key, Rumsfeld rather intense-their approaches to the job were remarkably alike. Both were pragmatic ‘problem solvers’; both worked eighteen-hour days and were absolutely loyal to me. I knew that I could ask Cheney to step into Rumsfeld’s shoes and that the White House would function just as efficiently.”77
Soon after the cabinet shake-up, Congress began drafting legislation to require the government to obtain a warrant when monitoring the phone calls of suspected spies or terrorists. One of the impeachment charges approved in 1974 by the House Judiciary Committee against Nixon had been “illegal wiretaps”-Nixon, it found, had “caused wiretaps to be placed on the telephones of 17 persons without having a court order authorizing the tap, as required by federal law.”78 And the Church Committee in 1975 had uncovered the use by several recent presidents of security agencies to conduct warrantless surveillance of Americans, including civil rights and antiwar leaders. Lawmakers wanted to make sure that future presidents did not abuse their power to wiretap communications that touched U.S. soil, so they made clear that warrants were required in all circumstances-even when a president asserted that domestic spying was necessary to protect national security.
Inside the Ford administration, a major fight broke out over how to respond to the warrant bill. Several of Cheney’s allies were part of a faction that opposed having Ford endorse any such bill. This faction included Rumsfeld, Bush, Scowcroft, and Kissinger.79 They argued that White House support for any warrant law “unnecessarily derogates” the president’s “inherent Constitutional authority to conduct warrantless electronic surveillance for foreign intelligence purposes.”
But two of the leaders of the Ford administration legal team, Levi and Buchen, sharply disagreed. Levi told Ford that “the step by the President in asking for special legislation and a warrant procedure will be reassuring and an appropriate step in presidential leadership.” 80 And Buchen rejected the idea that a president had inherent powers; he once chastised a subordinate for using the word “inherent,” saying, “If the President does not have the authority either under the Constitution or under statutes, he has no authority.”81 The fight dragged out for several months, but Levi and Buchen ultimately prevailed. Ford endorsed the warrant bill, granting Levi permission to negotiate with Congress over its details.82
These internal disputes made an impression on Cheney. In his new role as White House chief of staff, he soon moved to impose greater centralized control over the administration in its final year in office, inviting fewer people to key meetings in order to tighten control over information and stop leaks, and cutting down on access to the Oval Office by officials who disagreed with administration policies.83 Ford’s press secretary, Ron Nessen, later wrote in his memoir that under Cheney “sensitivity over news leaks rose almost to the paranoid level,” and “by , there was no question that Dick Cheney was firmly atop the White House chain of command. Cheney had taken on more and more power until he was running the White House staff and overseeing the campaign in an authoritative manner-his easygoing style had disappeared.”84
Cheney would later acknowledge that he had cut down on access to the president by officials with competing viewpoints, narrowing the range of policy advice Ford received during his final year in office. “It’s really a matter of trade-offs,” Cheney told an interviewer in 1979. “There is no question that to the extent that you involve a number of people in the consultative process before you make a decision, you raise the level of noise in the system. You enhance the possibility of premature disclosures and leaks. You also take more time, cut down in efficiency.”85
Twenty-four years later, Cheney would bring this management philosophy with him back to the White House as the top adviser to another president of the United States.
CHAPTER ONE – Inside The Bunker
1. For one of several available descriptions of the Presidential Emergency Operations Center, see Richard Clarke, Against All Enemies (New York: Free Press, 2004), 18.
2. “The Vice President Appears on Meet the Press with Tim Russert,” September 16, 2001, http://www.whitehouse.gov/vicepresident/news-speeches/speeches/vp20010916.html.
3. “Cheney Recalls Taking Charge from Bunker,” CNN, September 11, 2002, http://archives.cnn.com/2002/ALLPOLITICS/09/11/ar911.king.cheney/ index.html.
4. Final Report of the National Commission on Terrorist Attacks Upon the United States, July 22, 2004, 40–42.
5. Ibid., 464 (footnote, 211).
6. Ibid., 41.
7. Ibid., 30, 43.
8. Ibid., 43.
9. According to the commission report, National Security Adviser Condoleezza Rice and Cheney’s military aide, alone among those present in the bunker, told the commission investigators that they had a vague recollection of some kind of earlier call between Cheney and Bush, but no one else remembered such a call and there was no written record of it in call logs or notes. Ibid., 40–41.
10. Ibid., 41.
11. Ibid., 464–465 (footnotes, 216–221).
12. In the weeks and months following the attacks, Cheney and Bush gave numerous interviews about their performances on the morning of 9/11, and the 9/11 Commission obtained the full unreleased transcripts of each interview. A careful reading of the commission report’s footnotes shows that no one mentioned any earlier phone call for more than three months. The dubious story first surfaced on December 17, 2001, when Bush sat down with reporters Bob Woodward and Dan Balz for an article the Washington Post published the following month. Ibid., 464 (footnote, 213).
13. See, e.g., Nicholas Lemann, “The Quiet Man: Dick Cheney’s Rise to Unprecedented Power,” The New Yorker, May 7, 2001.
14. John Kascht, “The Dick Cheney You Don’t Know,” Talk, May 2001, 88.
15. “Vice President’s Remarks at the Gerald R. Ford Journalism Prize Luncheon, Followed by Q&A,” June 19, 2006, http://www.whitehouse.gov/news/releases/2006/06/20060619-10.html.
CHAPTER TWO – The Fall of the Imperial Presidency and The Rise of Dick Cheney: 1789–1976
1. “Interview of the Vice President and Mrs. Cheney by KCWY News-13,” May 27, 2006, http://www.whitehouse.gov/news/releases/2006/05/20060527-3.html.
2. John Kascht, “The Dick Cheney You Don’t Know,” Talk, May 2001, 88.
3. Ibid., 91.
4. Lee Davidson, “Lynne Cheney’s Ancestors,” Deseret News, January 22, 2006.
5. “Interview of the Vice President and Mrs. Cheney by KCWY News-13.”
6. Nicholas Lemann, “The Quiet Man: Dick Cheney’s Rise to Unprecedented Power,” The New Yorker, May 7, 2001.
7. Kascht, “The Dick Cheney You Don’t Know,” 92.
8. Lemann, “The Quiet Man.”
9. Davidson, “Lynne Cheney’s Ancestors.”
10. Lemann, “The Quiet Man.”
11. Katharine Q. Seelye, “Cheney’s Five Draft Deferments During the Vietnam Era Emerge as a Campaign Issue,” New York Times, May 1, 2004.
12. Aage R. Clausen and Richard B. Cheney, “A Comparative Analysis of Senate House Voting on Economic and Welfare Policy: 1953–1964,” The American Political Science Review 64, no. 1 (March 1970): 138–152.
13. Arthur Schlesinger, The Imperial Presidency (New York: Houghton Mifflin, 1973).
14. Michael B. Oren, Power, Faith, and Fantasy (New York: Norton, 2007), 29–32.
15. See, e.g., Federalist 51 and Federalist 75.
16. This and the paragraphs that follow are largely derived from Schlesinger’s Imperial Presidency; see also Louis Fisher, Presidential War Power (Lawrence: University of Kansas Press, 2004).
17. Schlesinger, Imperial Presidency, 50.
18. Abraham Lincoln, “Special Session Message,” July 4, 1861, http://www.whitehousehistory.org/04/subs/activities_03/c02_04.html.
19. Ex Parte Milligan, 71 U.S. 2, 120–121 (1866).
20. Louis Fisher has argued that while Taft’s view of presidential power differed rhetorically from Roosevelt’s, on a practical level there was less difference between the two than historians conventionally say.
21. Alexander Hamilton, Federalist 69.
22. James Madison, “Helvidius No. 1,” Philadelphia Gazette, August 31, 1793, reproduced in The Mind of the Founder, rev. ed., ed. Marvin Meyers (Indianapolis: Bobbs-Merrill Co., 1981), 206–207.
23. Some supporters of strong presidential war powers have argued that when the U.S. Senate ratifies treaties that give multinational groups the power to authorize the use of military force, such as with the United Nations charter and the North Atlantic Treaty Organization, Congress is delegating-to the foreign governments that sit on the United Nations Security Council or NATO-its constitutional power to decide when to take the United States from peace to war. But as Louis Fisher has pointed out, this argument is nonsense for multiple reasons. Among them, the Constitution gives the House of Representatives the power to block a war by refusing to authorize it, and the House does not get to vote on whether to ratify a treaty. The argument that such treaties eliminate the need for the president to obtain “advance congressional authorization would mean that the President and the Senate, through the treaty process, can obliterate the constitutional power of the House of Representatives to decide whether to take the nation to war. That position, no matter how asserted, is untenable.” Fisher, Presidential War Power, 185.
24. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952).
25. Schlesinger, Imperial Presidency, 153.
26. See, e.g., the Church Committee reports, http://www.aarclibrary.org/publib/church/reports/contents.htm.
27. The Nixon-Frost interview was republished in several places, including in the New York Times, May 20, 1977.
28. See, e.g., Richard Nathan, The Plot That Failed: Nixon and the Administrative Presidency (New York: Wiley & Sons, 1975).
29. On December 13, 1969, for example, Nixon’s chief of staff, H. R. Haldeman, recorded in his diary a conversation between Nixon and Rumsfeld in which the president said he wanted the Office of Economic Opportunity reorganized so that “everything clears through one place and there is some degree of control.” Nixon also urged Rumsfeld to consider layoffs and “moved hard on cutting the OEO programs he doesn’t like, i.e., Legal Services, Head Start, etc.” H. R. Haldeman, The Haldeman Diaries (New York: Putnam, 2004), 114–115.
30. Author interview with Paul O’Neill, January 9, 2007.
31. U.S. Code 42 (1970), § 2809.
32. See, e.g., Clark Holmes, “The Poverty Lawyers’ Work Is So Good, It Has to Be Stopped,” Washington Monthly, June 1970, 50; see also David Wilson to John Dean, memorandum re: “Office of Legal Services of OEO,” March 4, 1971, National Archives, Nixon Presidential Materials, John Dean Materials, Subject Files, box 53, folder: Office of Legal Services.
33. Holmes, “The Poverty Lawyers’ Work.”
34. Author interview with Terry Lenzner, October 3, 2006.
35. In October 1970, however, Rumsfeld did personally order Lenzner to shut down grants to programs in New Orleans, Dallas, and Los Angeles for allegedly violating Legal Services guidelines by, for example, providing legal assistance to a Black Panthers group. Taylor Branch, “The Ordeal of Legal Services: How Poor People Won in Court but Lost in OEO,” Washington Monthly, January 1971.
36. Lenzner interview.
37. Kascht, “The Dick Cheney You Don’t Know,” 93.
38. Lenzner interview. (One dispute from the late spring of 1970 serves to illustrate the mounting political interference in the Legal Services program-and Cheney’s growing role in carrying out Nixon’s agenda of imposing greater control over the antipoverty bureaucracy. It began when a Legal Services lawyer in Charlotte, North Carolina, filed a police misconduct suit against the city on behalf of poor black people. The local board for the Charlotte program fired the lawyer, violating the program’s rules against political interference. Lenzner promptly cut off federal funding for the Charlotte program to punish its board. A powerful Republican congressman from Charlotte, Rep. Charles Jonas, was infuriated by the loss of the grant for his district and met privately with Cheney to demand that it be reinstated. When Lenzner found out that Jonas was meeting with Cheney, the Legal Services director was angry that he had been cut out of the process. But Cheney told Lenzner to back off. A week after the Jonas meeting, on June 2, 1970, Cheney wrote: “Terry, you and I need to sit down and chat about Charlotte Legal Services at your convenience. Congressman Jonas called [Rumsfeld] again and we need to get squared away on what our position is so we can tell him the same story.” Over Lenzner’s strong objections, Charlotte got its grant back-without any new conditions on its board. After Lenzner figured out what had happened, he sent Rumsfeld a memo protesting the way Cheney had handled the Charlotte dispute. In the July 3, 1970, memo, Lenzner said the result “can only be a conclusion in the minds of those present that a decision, for political reasons, can be reversed simply by going to the 8th floor [where Cheney’s and Rumsfeld’s offices were] and requesting it.” In the future, Lenzner added, he hoped that Rumsfeld would order Cheney to go through Lenzner’s office first before acting on his own. These memo excerpts are quoted in Paul Clancy, “Charlotte Legal Services Flap Got OEO Aide Fired,” Charlotte Observer, January 17, 1971, photocopy of article located in National Archives, Nixon Presidential Materials, John Dean Materials, Subject Files, box 53, folder: Office of Legal Services.)
39. Branch, “The Ordeal of Legal Services.”
40. Later, Nixon tried a more frontal assault: refusing to spend money Congress had appropriated to fund the agency. In response, Congress in 1974 turned the program into the Legal Services Corporation, a federally funded private nonprofit that would be better shielded from political interference. Twenty-two years later, a newly Republican-controlled Congress and Democratic president Bill Clinton imposed new restrictions on the Legal Services Corporation. The 1996 changes, which echoed what the Nixon administration had wanted to do without congressional involvement, banned LSC-funded programs from filing “class actions, challenges to welfare reform . . . litigation on behalf of prisoners, representation in drug-related public housing evictions” and for certain noncitizens-even if they used private donations for such activities. http://www.lsc.gov/about/lsc.php.
41. Barry Werth, 31 Days (New York: Doubleday, 2006), 20.
42. Bob Woodward, “Cheney Upholds Power of the President,” Washington Post, January 20, 2005.
43. The anger in Congress was so great that Ford would take the unheard-of step of personally appearing before Congress to testify about his decision to grant the pardon, swearing that there had been no “deal” to give him the presidency in exchange for the promise of a pardon for Nixon. Ford for years would say that he wanted to spare the country the pain of a long trial for the former president. Then, on his deathbed, he would change his story, saying that his decision-which probably cost him the 1976 presidential election-had been based mostly on his personal feelings of friendship with Nixon. “I looked upon him as my personal friend. And I always treasured our relationship. And I had no hesitancy about granting the pardon, because I felt that we had this relationship and that I didn’t want to see my real friend have the stigma,” Ford confessed on condition that his words not be made public until after his death. See Bob Woodward, “Ford, Nixon Sustained Friendship for Decades,” Washington Post, December 27, 2006.
44. Roy L. Ash to the president, memorandum re: “Freedom of Information Act Amendments (H.R. 12571),” August 12, 1974, Ford Presidential Library, Presidential Handwriting File, box 28, folder: Legislation (1).
45. See, e.g., unsigned and undated Office of Legal Counsel memorandum re: “Constitutional and Policy Questions Raised by the Senate Bill Amending the Freedom of Information Act,” Ford Presidential Library, Philip Buchen Files, box 17, folder: Freedom of Information Legislation (3); and “Fact Sheet on Freedom of Information Act Amendments” and November 13 cover letter identifying them as being by Scalia, Ford Presidential Library, O’Donnell and Jenckes Files, box 5, folder: Freedom of Information 10–12/74.
46. Ken Cole to the president, memorandum re: “H.R. 12471, Amendments to Freedom of Information Act,” October 9, 1974, Ford Presidential Library, Presidential Handwriting File, box 8, folder: Federal Government-Freedom of Information.
47. Veto message to the House of Representatives, October 17, 1974, Ford Presidential Library, Philip Buchen Files, box 17, folder: Freedom of Information Legislation (3).
48. A White House liaison to Congress clipped and saved a newspaper article that deemed the result a sign of the new president’s “humiliating” lack of clout in Congress. The tilt toward Congress was dipping so far that Rumsfeld soon felt compelled to emphasize at a staff meeting “the need for all staffs to be certain that they held firmly to the administration positions when talking to Congress-not seek to ‘get along’ at the president’s expense.” Lyle Denniston, “Diminished Clout on Capitol Hill,” Washington Star-News, November 23, 1974, Ford Presidential Library, O’Donnell and Jenckes Files, box 5, folder: Freedom of Information 10–12/74. (This newspaper closed in 1981, and there are no electronic archives for it. It appears that the headline on the clipping is actually a subheadline and that the full headline is missing, but its final word is “growing.”) Mike Dunn to Bill Seidman, memorandum re: “Senior Staff Meeting, December 13th, at 8:00 a.m.,” December 13, 1974, Ford Presidential Library, L. William Seidman Files, box 90, folder: Senior Staff Meeting 12/13/74.
49. Memorandum of conversation, January 4, 1975, Ford Presidential Library, National Security Adviser Memoranda of Conversations, box 8, folder: January 4, 1975-Ford, Kissinger, Rockefeller, Marsh, Rumsfeld, Buchen.
50. Handwritten memorandum, “CIA-The Colby Report,” December 27, 1974, Ford Presidential Library, Richard Cheney Files, box 5, folder: Intelligence-Colby Report.
51. Kascht, “The Dick Cheney You Don’t Know,” 93.
52. Rod Gramer, “Frank Church: Cerebral, Superior, Brilliant to Some; Cold, Misguided, Inconsistent to Others,” Idaho Statesman, July 20, 1980, quoted in “Frank Church: Idaho’s Man,” Idaho Oral History Project, Boise State University, http://idahooratory.boisestate.edu/Churchbio2.htm.
53. Senate Select Committee to Study Governmental Operations with Respect to Intelligence Activities, Intelligence Activities and the Rights of Americans, April 26, 1976.
54. In 1976, as he was completing this report, Church ran for president. He won several Democratic primaries but eventually ceded the nomination to Jimmy Carter and contented himself with being the Senate Foreign Relations Committee chairman. His career came to an end in the 1980 election, when he topped a hit list of liberal senators whose reelection campaigns were targeted by out-of-state conservative funding. Accused of being soft on defense amid the conservative tide led by Ronald Reagan, Church lost his seat by less than a percentage point to Republican Steve Symms. Church worked for a few more years as a lawyer in Washington. His cancer returned, and he died in 1984 at the age of fifty-nine. Years later, after the 9/11 attacks, some conservatives would blame the Church Committee for making CIA officers too risk averse as they hunted for terrorists. “Frank Church: Idaho’s Man.”
55. Author interview with Jack Marsh, November 29, 2006.
56. Ron Nessen, It Sure Looks Different from the Inside (Playboy Publications, 1979), 58.
57. Memorandum of conversation, February 21, 1975, Ford Presidential Library, National Security Adviser Memoranda of Conversations, box 9, folder: February 21, 1975-Ford, Kissinger, Rumsfeld, Marsh.
58. Antonin Scalia, speech to the International Conference on the Administration of Justice and National Security in Democracies, Ottawa, Canada, June 12, 2007. This excerpt has been corrected from a slight mis-transcription in the printed book; see this blog post for details.
59. Untitled handwritten note, circa March 12, 1975, Ford Presidential Library, Richard Cheney Files, box 6, folder: Intelligence-Congressional Investigations.
60. Marsh interview.
61. Memorandum of conversation, May 14, 1975, Ford Presidential Library, National Security Adviser Memoranda of Conversations, box 11, folder: May 14, 1975-Ford, Kissinger, Bipartisan Congressional Leadership.
62. Peter Goldman, “Ford’s Rescue Operation,” Newsweek, May 26, 1975.
63. “The Mayagüez-What Went Right, What Went Wrong,” U.S. News & World Report, June 2, 1975, 29. For the timing of the radio broadcast and the release of the crew, see Henry Kissinger, Years of Renewal (New York: Simon & Schuster, 1999), 567–570.
64. Goldman, “Ford’s Rescue Operation.”
65. President Richard M. Nixon to President Nguyen Van Thieu of the Republic of Vietnam, January 3, 1973, Ford Presidential Library, Richard Cheney Files, box 13, folder: Vietnam-Correspondence from Richard Nixon to Nguyen Van Thieu 10/72–12/72.
66. President Richard M. Nixon to President Nguyen Van Thieu of the Republic of Vietnam, October 16, 1972, Ford Presidential Library, Richard Cheney Files, box 13, folder: Vietnam-Correspondence from Richard Nixon to Nguyen Van Thieu 10/72–12/72.
67. Antonin Scalia, Assistant Attorney General, Office of Legal Counsel, statement on executive Agreements (S. 1251 and S. 632), before the Senate Subcommittee on Separation of Powers, Committee on Judiciary, May 15, 1975, Ford Presidential Library, Edward Schmults Files, box 17, folder: Legislative Encroachment Testimony.
68. Philip Buchen to Jeanne Davis, memorandum re: “Senate Foreign Relations Committee Request for Presidential Correspondence on Saudi Arabia,” May 16, 1975, Ford Presidential Library, Philip Buchen Files, box 26, folder: National Security Chronological File (2).
69. National Security Council Memorandum for the Record re: “Executive Agreements,” May 17, 1975, Ford Presidential Library, Philip Buchen Files, box 12, folder: Executive Agreements (2).
70. Handwritten notes, May 29, 1975, Ford Presidential Library, Richard Cheney Files, box 6, folder: Intelligence-New York Times Articles by Seymour Hersh 5/75–6/75 (1).
71. Donald Rumsfeld to Richard Cheney, memorandum re: “WH 50988,” May 30, 1975, Ford Presidential Library, Richard Cheney Files, box 6, folder: Intelligence-New York Times Articles by Seymour Hersh 5/75–6/75 (2).
72. Richard Cheney to Donald Rumsfeld, memorandum re: “Status Report-New York Times Story of Sunday, May 25, 1975,” May 29, 1975, Ford Presidential Library, Richard Cheney Files, box 6, folder: Intelligence-New York Times Articles by Seymour Hersh 5/75–6/75 (1).
73. The available files do not reveal whether such private conversations with newspaper publishers took place. Richard Cheney to Donald Rumsfeld, draft memorandum, May 30, 1975, Ford Presidential Library, Richard Cheney Files, box 6, folder: Intelligence-New York Times Articles by Seymour Hersh 5/75–6/75 (1).
74. Philip Buchen to the president, memorandum re: “Release of the Colby Report,” July 7, 1975, Ford Presidential Library, Presidential Handwriting File, box 30, folder: National Security Intelligence (1).
75. Jack Marsh to the president, memorandum re: “Claim of Executive Privilege,” November 13, 1975, Ford Presidential Library, Presidential Handwriting File, box 31, folder: National Security Intelligence (8).
76. The following February, on Antonin Scalia’s advice, Ford asserted executive privilege to prevent FBI agents and Western Union officials from testifying about a program in which the telegram agency had been turning over cables to the government without warrants. Memorandum of conversation, November 21, 1975, Ford Presidential Library, National Security Adviser Memoranda of Conversations, box 16, folder: November 21, 1975-Ford, Kissinger; Antonin Scalia to Philip Buchen, memorandum re: “Claim of Executive Privilege with Respect to Materials Subpoenaed by the Committee on Government Operations, House of Representatives,” February 17, 1976, Ford Presidential Library, Presidential Handwriting File, box 31, folder: National Security Intelligence (13).
77. Gerald Ford, A Time to Heal (New York: Harper & Row, 1979), 324. In 2004, however, after Cheney became vice president, Ford would say that his old aide had changed since the days of their close working relationship. “He was an excellent chief of staff. First class,” Ford told Bob Woodward. “But I think Cheney has become much more pugnacious” as vice president. Ford said he agreed with Colin Powell’s claim that Cheney seemed to have developed a “fever” about the threat of terrorism and Iraq. Bob Woodward, “Ford Disagreed with Bush About Invading Iraq,” Washington Post, December 28, 2006.
78. Quoted in James Bamford, “Bush Is Not Above the Law,” New York Times, February 1, 2007.
79. Philip Buchen to the president, memorandum re: “Intelligence Legislation Proposed by the Justice Department,” February 13, 1976, Ford Presidential Library, Philip Buchen Files, box 26, folder: National Security Chronological File (6).
80. Philip Buchen to the president, memorandum re: “Intelligence Legislation Proposed by the Justice Department,” February 13, 1976, and appendix A (note from the attorney general), Ford Presidential Library, Philip Buchen Files, box 26, folder: National Security Chronological File (6).
81. Philip Buchen to Richard Ober, memorandum re: “Draft Preamble for NSCIDs,” March 17, 1976, Ford Presidential Library, Philip Buchen Files, box 26, folder: National Security Chronological File (6).
82. Philip Buchen to the president, memorandum re: “Legislation on Electronic Surveillance for Foreign Intelligence Purposes,” March 15, 1976, Ford Presidential Library, Philip Buchen Files, box 26, folder: National Security Chronological File (6).
83. Cheney also took a greater leadership role in handling intelligence matters inside the administration, and to advance a tougher stance on the Cold War that he had been developing even before becoming chief of staff. In June 1975, for example, when Vice President Nelson Rockefeller’s commission on CIA activities inside the United States came out with its report detailing many abuses by the agency, most ignored the report as a whitewash when compared with the more aggressive investigation the Church Committee was undertaking. But Cheney thought Rockefeller had gone too far, scrawling on the cover of his copy a question indicating that he thought the vice president had blundered in describing the CIA’s conduct as illegal. “Does criticism of CIA hurt V.P. with conservatives?” Cheney wrote to himself. Later, after taking the lead in Ford’s 1976 election campaign, Cheney helped convince Ford to drop Rockefeller as his vice presidential nominee and replace him with the more conservative Senator Bob Dole of Kansas. Cheney used his position to steer the Ford administration toward his own hard-line views about the Soviet Union. Undercutting Kissinger’s policy of détente, Cheney pressed for a sharper confrontation with Moscow. For example, Cheney urged Ford to meet with the dissident Alexander Solzhenitsyn in order to demonstrate that despite détente, the United States’ relationship with the Soviet Union was not “all sweetness and light.” See, e.g., Richard Cheney to Donald Rumsfeld, memorandum re: “Solzhenitsyn,” Ford Presidential Library, Richard Cheney Files, box 10, folder: Solzhenitsyn, Alexander; Jack Marsh to Richard Cheney, memorandum, September 23, 1976, Ford Presidential Library, John Marsh Files, box 76, folder: Cheney, Richard 8/76–9/76.
84. He added, “Although he kept a low public profile, Cheney had accumulated as much control as some of the better-known chiefs of staff. Some reporters privately started calling him the Grand Teuton-a complex pun referring to his mountainous home state of Wyoming and the Germanic style of his predecessor, H. R. Haldeman.” Nessen, It Sure Looks Different, 248–249.
85. Michael Medved, The Shadow Presidents: The Secret History of the Chief Executives and Their Top Aides (New York: Times Books, 1979), 339.