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Cheney and the Paradox of Executive Power

The manic nature of the Bush/Cheney pushback against its multiplying number of critics is revealed in one aspect of Vice President Cheney"s speech at AEI Monday. Cheney said,

Some of the most irresponsible comments have come from politicians who actually voted in favor of authorizing the use of force against Saddam Hussein. These are elected officials who had access to the intelligence materials. They are known to have a high opinion of their own analytical capabilities. (Laughter.) And they were free to reach their own judgments based upon the evidence. 

Without getting into the details of exactly who had what information when, what makes that sentence so jarring is that the fundamental philosophy of Bush and Cheney -- and to a lesser degree their predecessors in the White House -- is that members of Congress, in their view, should absolutely not be "free to reach their own judgments" on matters of foreign policy and national security. Rather, advocates of executive branch power argue, the president is due substantial deference on all these questions. After all, to quote the cliche of all executive-branch defenders, "we can't have 535 Secretaries of State." The need to act with a uniform national voice, especially in a crisis, together with the fact that members of Congress will have neither complete intelligence information nor the giant organization needed to properly cull, evaluate, and reach a decision about it, is a strong argument in favor of deference to the executive.

And deference to the executive means that, unless their own judgments strongly counsel a different direction, members of Congress generally will vote to give the president the authorization or flexibility to act, even if they would not have made the same decision themselves. And most legislators operate from that principle. For example, there is no doubt that most of the Democrats, and probably many of the Republicans, who voted to authorize force would not themselves have launched the same war in the same way had they been president, but that was not the standard they used.
This White House takes a particularly far-out view of executive power, explained well by David Cole in his recent New York Review of Books article about the theories of John Yoo, now a Berkeley law professor but better known as the White House lawyer who authored the key "torture memo." Yoo believes, for example, that the Constitutional provision giving Congress the power to "declare war" means only that Congress can "declare" -- as in, observe -- that a war seems to have begun. (Cole's important article is reprinted here.)
While Yoo's theories, along with the related "unitary executive" doctrine associated with Cheney's new chief of staff David Addington, are extreme and novel defenses of the "Imperial Presidency," the basic idea that the president deserves substantial deference on foreign policy is not unusual, and not even that controversial. Members of Congress know that, even in the unlikely event that they had access to 90% of the intelligence information available to the president, they don't have the independent capacity to analyze, prioritize and interpret it, and even if they did, how could the country act in a crisis if 535 legislators came to different conclusions? (The Vice President, who demanded and received raw intelligence data, apparently had no such hesitation about his own small staff's ability to analyze and interpret such information more accurately than the entire professional system, but that's neither here nor there.)
The implication of strong executive-branch powers in foreign affairs is that, if the president is entitled to substantial deference, he also bears equivalent responsibility for the choices he or she makes. If Cheney actually believes that the politicians who voted to allow Bush to use force bear equal responsibility because "they were free to reach their own judgments," then he is implicitly accepting a foreign policy regime in which individual members of Congress are co-equal decision-makers with the President. It is obvious from everything Yoo and Addington and others have written and said that they do not believe this. It's an attack line, and the fact that it contradicts Cheney's most basic philosophy is irrelevant to them.
Those who favor strong executive power over foreign policy should recognize that that position is controversial mostly because of presidents who have abused that power. Tonkin Gulf and the secret bombing of Cambodia led to the War Powers Resolution, which even Clinton did not accept as constitutional. At the end of the day -- although it might take years -- the Iraq invasion is likely to cause a similar backlash. Cheney's implicit acceptance of the idea that members of Congress should bear equal responsibility in decision-making will feed that backlash.

Posted by Mark Schmitt on November 22, 2005 | Permalink

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Comments

Well, not to put too fine a point on it but it's nice they're talking about all the democrats who voted for the Resolution back in 2002. It's not as if they weren't bum-rushed to the decision with only weeks to go before the mid-terms election. No better time for reflection and reasoned debate than the few weeks before an election.

Posted by: liberalMinded | Nov 22, 2005 11:24:49 PM

Thanks, Decembrist, for a wise and well-reasoned response to the administration's claim: "They had the same intelligence we did and they voted to go to war."

Of course, any member of Congress who voted against giving Bush authority to declare war would have been labeled unpatriotic and weak on terrorism. I suspect that sealed the decision for many of them.

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Posted by: Def | Nov 27, 2005 1:33:10 AM

Obvously, the modern presidency is dead and Bush's gratuitous invocation of unchecked executive discretion has sealed the deal. It must be a generational thing but I find it increasingly strange that well-to-do boomers continue to revere Cheney's alleged technocratic gravitas. If they truly had the courage of their convictions the Bush/Cheney machine wouldn't be trying to frantically insultate itself by invoking ambiguous notions of "history," as if the impact of their decisions won't be felt by those of us that hope to hang around for the next 50 years or so.

Posted by: fnook | Nov 28, 2005 12:08:43 AM

The issue is being side stepped. They all had adequate information to make a decision at that time. If Bush lied and "tricked" the country into a war then they should offer proof and stop with the revisionist history. It is interesting that they don't even trust their own peers who found no concealed information.

Posted by: scott | Nov 28, 2005 12:17:46 PM

For all the reasons you listed in the first couple of paragraphs, I do believe that the Executive should be given deference and flexibilty in questions regarding National Security. However, this only underscores the importance of a White House that honors this awesome responsibilty with integrity, honesty and competence - virtues the Bush regime seems genetically incapable of having.

Posted by: Rob | Nov 28, 2005 2:48:57 PM

Scott
Various sources have already pointed out that Congressmen who voted for the war DID NOT have access to the same intelligence that the President and his people had. Eg. Congress only got assessments containing very alarming and dangerous information from the source codenamed Curveball concerning Saddam's supposed reconstituted nuclear capabilities. Not one senator or representatve however, was given the accommpanying info that the White House saw from German Intelligence and CIA officials doubting the veracity of Curveball's claims and that, indeed, they thought he was mentally unstable.
Also, Congress DID NOT have access to the Presidential Daily Briefings or CIA reports now leaked to the public that asserted that Saddam did not have any ties to Al Quada and that, in fact, he consideered Bin Laden and Co. as mortal enemies.
The war's critics are not rewriting history. We are simply waking up to a reality that you refuse to see.

Posted by: Rob | Nov 28, 2005 2:59:19 PM

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