Editore"s Note
Tilting at Windmills

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December 21, 2008

WHEN THE PRESIDENT DOES IT.... It's been a common refrain over the last eight years, but it's even more common now in light of the new Frost/Nixon movie: "When the president does it, that means that it is not illegal."

In context, Frost had asked about the notion that a president can "do something illegal," if he/she decides the crime is "in the best interests of the nation." Frost was particularly interested in the notion of the Huston Plan, which endorsed illegal surveillance and black bag jobs against Americans. After uttering the now famous phrase, Nixon added, "If the president, for example, approves something because of the national security, or in this case because of a threat to internal peace and order of significant magnitude, then the president's decision in that instance is one that enables those who carry it out, to carry it out without violating a law."

Fox News' Chris Wallace asked Dick Cheney something similar for an interview aired this morning: "If the president during war decides to do something to protect the country, is it legal?" Cheney's answer wasn't exactly Nixonian, but it was close.

"General proposition, I'd say yes. You need to be more specific than that. I mean -- but clearly, when you take the oath of office on January 20th of 2001, as we did, you take the oath to support and defend and protect the Constitution of the United States against all enemies, foreign and domestic.

"There's no question about what your responsibilities are in that regard. And again, I think that there are bound to be debates and arguments from time to time, and wrestling back and forth, about what kind of authority is appropriate in any specific circumstance. But I think that what we've done has been totally consistent with what the Constitution provides for."

By saying he'd need Wallace to "be more specific," Cheney seemed to suggest that he may see limits on the "Presidential prerogatives > rule of law" formulation.

On the other hand, the rest of his answer seemed to indicate that those limits are not immediately apparent to Cheney. Indeed, given the question, and Cheney's response in the context of his constitutional oath, he seems to think that a president protecting the country can do anything -- literally -- so long as the chief executive is responding to a national threat, or at least what the president perceives as a national threat.

Matt Yglesias had a good item noting that while protecting the country is a good idea, Cheney's principles are inconsistent with a democracy, since every president always believes there are threats, which in turn could lead presidents to routinely supersede the law. (Indeed, in Cheney's case, it's even more extreme, since the mere possibility of terrorism is enough to empower the White House to ignore legal limits.)

Underlying all of this is an odd conservative lack of faith in democracy. Cheney's implicit theory is that the democracies prevailed in the Cold War -- surely a time of greater external threat -- despite our liberal political systems. In fact, the openness of liberal democracy was a major strength. Robust political competition, a free press, transparency in government, etc. helped ensure that policy errors would actually be corrected and that corrupt practices would be curbed. Cheney-style autocracy works fine as long as nobody is ever incompetent or corrupt, but that's never. And it certainly doesn't describe the Bush-Cheney administration.

Steve Benen 4:00 PM Permalink | Trackbacks | Comments (35)

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Comments

When Chaney says: "..I think that what we've done has been totally consistent with what the Constitution provides for", he's not saying "demands". What the Constitution demands is "to support and defend and protect" it. What Cheney & Co have done is extract as much license and deviance as the Constitution "provides" for; in other words: as much as can be squeezed, twisted and connived out of the slightest, remotest ambiguity that might conceivably be identified in some abstruse parsing of some archaic linguistic form hitherto unexploited in the tattered old document.

Don't let the smooth-sounding, acquiescent, syrupy words deceive you. His is none other than a poisoned chalice. Beware! the thief who steals your reason in the night.

Posted by: Goldilocks on December 21, 2008 at 4:37 PM | PERMALINK

in light of the new Frost/Nixon movie

I've seen the promos. Frank Langella (who looks about as much like Nixon as Scarlett Johanson does) practically foams at the mouth as he howls in high dudgeon: "WHEN THE PRESIDENT DOES IT, THAT MEANS THAT IT IS NOT ILLEGAL!"

But in the actual Frost interview, Nixon makes the statement in a calm and matter-of-fact way. Slightly testy: yes. Snarling in outrage: no.

But I guess that wouldn't have been very dramatic. I am not defending Nixon. But it is necessary sometimes to defend actual history from the Hollywood revisionists.

As far as your Cheney obsession is concerned: three consecutive posts about his appearance on Faux News?

Dick Cheney: War Criminal who'll never see a day behind bars. In less than thirty days, he and his kind will be irrelevant.

Posted by: Screamin' Demon on December 21, 2008 at 4:44 PM | PERMALINK

Well, now we know we can quote Cheney when the Repubs start screaming about something President Obama does.

Posted by: Glen on December 21, 2008 at 4:44 PM | PERMALINK

Thank you President Bush and Vice President Cheney for keeping us safe for 7 ½ years.

Dear Mr. President,

Thank you Sir for your courage, and your leadership that has kept the American homeland safe for every second after 9/11.

You have taken a huge challenge and make good on your promise.

Thank you for liberating Iraq from a coward and then for having the courage to build that country up again.

History may rethink your decisions and will finally understand your huge leadership to introduce democracy to a land of religious theocracies.

You may have changed the face of the future more than any other president in our recent history, in the same regard as Regan after the victory of the cold war.

The best to you Sir,

REID D. REASOR, Lt Col (Ret) USAF B.S. M.T.

Posted by: Reid D. Reasor on December 21, 2008 at 4:49 PM | PERMALINK

when you take the oath of office on January 20th of 2001, as we did, you take the oath to support and defend and protect the Constitution of the United States against all enemies, foreign and domestic.

Logical problem: it is impossible to defend the Constitution by subverting the Constitution. Violating the 4th Amendment and the Geneva Convention (under the Constitution, treaties are the law of the land) are clear violations of the constitution. Ergo, the Bush/Cheney regime did not defend the Constitution.

Impeachment is too good for these bastards; they need jail.

-Z

Posted by: Zorro on December 21, 2008 at 5:04 PM | PERMALINK

"General proposition, I'd say yes. -- Cheney.

But, specifically -- as it applies to me and my puppet-pet Bush -- no.

PS. Benen, it's good to see that some robot likes you well enough to have covered your butt against accusations of sedition not just once, but *twice* today.

Posted by: exlibra on December 21, 2008 at 5:07 PM | PERMALINK

Thank you Sir for your courage, and your leadership that has kept the American homeland safe for every second after 9/11.

Yeah, thanks. It would have been nice if you could have kept the American homeland safe on Sept. 11, 2001, also, but hey, who could have predicted, am I right?

History may rethink your decisions and will finally understand your huge leadership to introduce democracy to a land of religious theocracies.

Seconded! Thank you so much for deposing notorious religious theocrat Saddam Hussein and replacing him with the secular government we now have in Iraq!

Posted by: jeebus on December 21, 2008 at 5:07 PM | PERMALINK

Thanks for the support of Bush's unprovoked war of aggression against the Iraqi people. Sure, Iraq's military was far weaker in 2003 than it had been in 1991, and sure softening up the people with a gift of four hundred bombs planted in the capitol city via the courage of pilots whose bravery was evident in the way they swiftly ran away as bombs ripped the flesh of the innocents below made the WTC bombing look like a frolic through the park, and sure the ineptitude of the reconstruction ensured massive suffering for the victims of Bush's liberation, but what the fuck - why have a military if you aren't going to use it to slaughter human beings? Where's the fun in that?

You certainly have changed the face of the future more than any other president in our recent history - you've demonstrated that with a sociopath at the helm the United States can be every bit the rogue nation that Iraq was in 1991 - only with the power to devastate far more lives.

Thank you Mr. President for giving us death and debt, just like that sick old man Reagan did when we let him get away with arming terrorists.

Posted by: heavy on December 21, 2008 at 5:14 PM | PERMALINK

Bush sympathizers should be jailed right beside the bastard in Gitmo.

(Looking at you, Reid Reasor)

Posted by: MissMudd on December 21, 2008 at 5:14 PM | PERMALINK

I wouldn't call them irrelevant yet, and look for more of this, not less, from the Republicans in the future. It was indeed Nixon who revived the idea of the literally Imperial Presidency (remember his Ruritanian White House guards?), but he got a lot of help and support from the Federalist Society, one of whose icons is, of course, James Madison.

Where I live there's a local psycho talk-show host who's convinced that the country first got off the track at the time of Marbury vs. Madison, the Supreme Court decision that established the principle of Checks and Balances. Follow his reasoning to its logical end and we should have crowned a new King George, not elected a president. The old monarchical spirit doesn't die, especially in those who think they might be the power behind, or on, the throne. So who gets the privilege of guarding Constitutional rights today? I think it's us.

Posted by: ericfree on December 21, 2008 at 5:23 PM | PERMALINK

A good legal defense requires building blocks. I am sure that this is just part of the framework for the defending against legal troubles that may lay ahead, should the new administration appoint an independent prosecutor to look into the possibility of criminal activity, rather than appoint a commission who will arrive at a vague, circular logic, conclusion.

Posted by: jcricket on December 21, 2008 at 5:43 PM | PERMALINK

Do you know what the real difference is between President Bush and Osama Bin Laden?

Osama Bin Laden didn't wreck our country.

Posted by: The Joke's On Us! on December 21, 2008 at 5:53 PM | PERMALINK

We've all seen the scene in the movies- the situation can only be saved if the hero does something illegal.

So the hero says "I'll take the consequences" and does something illegal and it's ok because the situation is saved. Or if the situation is not saved, the hero is a stand-up guy who actually sticks around to take the consequences.

Well, that ain't gonna happen with Bush and Cheney. They have no intention of taking the consequences for what they've done, never did have. In fact, you can hardly find anything they've done in the past eight years that didn't include detailed planning for evading prosecution and making a getaway.

They're criminals and if we don't close the barn door now we'll get cleaned out again 20 years from now.

Posted by: serial catowner on December 21, 2008 at 5:55 PM | PERMALINK

Defending the constitution against enemies internal or external, requires some real subjective judgments to be made. What constitutes a serious threat? How much damage to the constitution is justified to protect against how much of a threat to it? I'm afraid these are not easy questions with simple answers. And reasonable people may disagree on where the boundaries should be drawn. We need to establish some sort of proceedure for determining what a "reasonable person" would determine in any particular case.

Posted by: bigTom on December 21, 2008 at 5:58 PM | PERMALINK

The USC says "Congress shall have the power to declare war" - that absolutely means that POTUS can't just fire off nukes etc. Being CIC means in charge of managing the war that Congress allows first. Cheney is utterly pathological.

Posted by: Neil B on December 21, 2008 at 6:08 PM | PERMALINK

Bush is the Worst pResident Ever. Cheney is the Worst Vice pResident Ever. Together... the Worst Ever.

Think about just the major f-ups.
9/11
Iraq War
Katrina
Collapse of the American Economy

Corrupt, criminal, bastards. Both of them. Psychopathic behavior exhibited by both.

There legacies are well preserved in history. Those who defend these a-holes, please go... AWAY~~~!


Posted by: Jay in Oregon on December 21, 2008 at 6:22 PM | PERMALINK

The logic behind, "we haven't been attacked since 9-11," is "we're fighting them over there, so we don't have to fight them over here."

When you look at what the so-called TERRORISTS are doing is what they have said, "we will bring in foreign fighters from everywhere to get battlefield training."

So, the question is, why would they want to attack us here, when they could just attack us there?

Look at Guantanamo Bay & Abu Grahib detainees - they are from all over the region...Iran, Syria, Jordan, Yemen, Egypt, Saudi Arabia, Pakistan, Afghanistan..... Europe, Canada.......

Besides, in 2007, Congress allegedly passed a bill requested by Bush $400 million to provide financial assistance to terrorist groups Mujahadeen & Jundullah.

The talking points that, "eventually America will be hit," is true. If they are getting battlefield training there, we are working with village elders, such as Taliban, providing weapons & cash to keep the peace, then yes, more than likely they will be coming to America.

Posted by: annjell on December 21, 2008 at 7:13 PM | PERMALINK

I still want to know why Nixon didn't burn the tapes. He probably felt the same why Mr. Bush does - that history will remember him fondly. Keep hoping!

Posted by: OneCTvoter on December 21, 2008 at 8:08 PM | PERMALINK

Worst.President.ever
Worst.Vice-President.ever
But don't forget Joe Lieberman:
Worst.asshole.ever

Posted by: delver on December 21, 2008 at 8:46 PM | PERMALINK

Thank you, Mr. Bush for keeping us safe since 911- except for the over 4000 US soldiers who have died in order to make Iraq a far more dangerous place for both Iraqis and the rest of the world. (al Queda did not exist in Iraq prior to our invasion- Hussein wouldn't let them.)

Thank you, Mr. Bush for allowing US citizens to suffer in the wake of Katrina while you went fishing.

Thank you, Mr. Bush for allowing our country to fall into a deep recession so that your friends could make a bundle on their investments.

Thank you, Mr. Bush for trashing the Constitution for no reason at all- except for the clear and present danger my phone conversations provide. I'm dangerous!

Get a clue, Reid! Mr. Bush made us poorer, sicker and a bully in the eyes of the world.

Posted by: Personal Failure on December 21, 2008 at 8:57 PM | PERMALINK

I find it interesting in this context that the oath is not about protecting and defending the United States (as Cheney seems to think) but about protecting and defending THE CONSTITUTION of the United States, where he and Dim Son not only failed miserably, they consciously (at least on the Dark Lord's part) went astray.

Posted by: Sarah Barracuda on December 21, 2008 at 9:24 PM | PERMALINK

but clearly, when you take the oath of office on January 20th of 2001, as we did, you take the oath to support and defend and protect the Constitution of the United States against all enemies, foreign and domestic.

Little George and Big Dick - the two biggest domestic enemies the Constitution ever had.

Posted by: TCinLA on December 21, 2008 at 9:43 PM | PERMALINK

You may have changed the face of the future more than any other president in our recent history, in the same regard as Regan (emph added) after the victory of the cold war.
Reid, your inability to correctly spell the name of our fortieth President explains both your adulation for G.W. Bush and the fact that you never made Colonel.
Your ascribing winning the Cold War to Ronald Reagan is an insult to the thousands of unnamed men and women who fought Communism for decades. My own father, a career Navy man fought them for thirty years. I only fought them for four years - including a year fighting them directly in the Mekong Delta. Whenever I hear some silly son of a bitch infer that Reagan won the Cold War I think of Korea, Vietnam, the Hungarian Revolution and a lot of other history to which your ilk is oblivious. Real people fought and died to end Communism. Real people - not Ronald Reagan.

Posted by: Dennis-SGMM on December 21, 2008 at 10:34 PM | PERMALINK

Glen: Well, now we know we can quote Cheney when the Repubs start screaming about something President Obama does.

Nah. Republicans never consider democrats to be legitimate presidents (no matter what the electoral circumstances), so they won't except their own reasoning read back to them.

That, or, you know, they're so hypocritical it can be seen from Saturn. Take your pick.

Posted by: DH Walker on December 21, 2008 at 10:38 PM | PERMALINK

Jeebus: Seconded! Thank you so much for deposing notorious religious theocrat Saddam Hussein and replacing him with the secular government we now have in Iraq!

Do you really think that someone like Reid understands sarcasm?

Or the facts you reference, for that matter?

Posted by: DH Walker on December 21, 2008 at 10:43 PM | PERMALINK

Do you really think that someone like Reid understands sarcasm? Or the facts you reference, for that matter?

Surely not. But the rest of us are entertained, which was likely jeebus' intent.

Posted by: shortstop on December 21, 2008 at 11:02 PM | PERMALINK

Thank you, George W. Bush

For building a fighting force of extra-ordinary magnitude.

For forging our tradition in the spirit of our ancestors.

For being a magnificent leader.

You have our gratitude.

I think we should all give George W. Bush a great big hand!

Posted by: 2Manchu on December 21, 2008 at 11:39 PM | PERMALINK

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Posted by: akhilesh on December 21, 2008 at 11:57 PM | PERMALINK

In the end, the human factor always rears its ugly head. You can try to have all sorts of checks and balances, but Bush showed how easily they can be circumvented, and sadly the sheeple just don't care.

Posted by: Luther on December 22, 2008 at 2:49 AM | PERMALINK

Re Cheney's oath: When the president violates the Bill of Rights, he IS a domestic enemy of the Constitution.

Posted by: Kevin Carson on December 22, 2008 at 2:55 AM | PERMALINK

"you take the oath to support and defend and protect the Constitution of the United States" -

The Constitution. Not the nation, not the people, but the *Constitution* is what they swear to protect.

Cheney swore it, he says it, but he doesn't believe it.

Posted by: Nancy Irving on December 22, 2008 at 5:20 AM | PERMALINK

Thank you, George W. Bush

For building a fighting force of extra-ordinary magnitude.

Are you out of your mind? The military- especially the Army + Marine Corps- have been absolutely devastated by Shrub's war of choice in Iraq. And, as has been noted elsewhere, much of the tech + expertise in today's military was created under Clinton. So, if anything, you should be giving Bubbaa big hand 'for building a fighting force of extra-ordinary magnitude,' and condemning Shrub for degrading the same.

Are you sure you're not a member of the Bush family?

-Z

Posted by: Zorro on December 22, 2008 at 10:12 AM | PERMALINK

Zorro's Kentucky Fried Movie reference FTW!

It's worth noting that the authoritarians' real success is in moving the Overton window. Recall that, as blisteringly stupid a move it was for Pelosi to take impeachment off the table, she didn't do it out of the blue, but in response to the collusion of the Republicans and the Villagers in presenting holding the President accountable as a Bad Thing -- a loathsome and dishonest scheme that goes all the way back to so-called "Bush Derangement Syndrome."

Posted by: Gregory on December 22, 2008 at 11:15 AM | PERMALINK

@2Manchu:

It's been too many years since I last saw that movie, but I doesn't Dr. Klahn condemn a man to living in Detroit? It might be a fitting place for Bush to see some of the damage he and his cronies have caused.

Posted by: Kris on December 22, 2008 at 3:41 PM | PERMALINK

Yes, he does, and that would be fitting for Bush.

Of course, my favorite part of Kentucky Fried Movie:

BIG JIM SLADE!

Posted by: 2Manchu on December 22, 2008 at 3:49 PM | PERMALINK




 

 

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