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Cheney, vice presidential power, and the war on terror.

Separation of powers and the related doctrine of checks and balances are prominent among the ways the U.S. Constitution seeks to prevent the concentration of state power and promote good governmental decision making. "If men were angels, no government would be necessary," James Madison famously observed. As they are not, Mr. Madison and his colleagues concluded that "auxiliary precautions," in addition to elections, were needed to impose suitable controls on government. "Ambition must be made to counteract ambition," Mr. Madison prescribed (Rossiter 1961, 322). The framers created a system of institutions with allocated, but interdependent, governmental power in an attempt to provide a deliberative and accountable government that would preserve individual liberty.

War invariably puts the greatest stress on that system. The events of September 11, 2001, were no exception. They helped relax traditional checks on the power of the executive branch, allowing the president to exercise greater power than under normal circumstances. They also were associated with a second, closely related, institutional development: an enormous and unprecedented rise in the power of the vice presidency, or at least of its occupant during the two George W. Bush terms, Dick Cheney. During those years, some even took to referring to the "imperial vice presidency" (Blumenthal 2007; Montgomery 2009) or to a Bush-Cheney "co-presidency" (Warshaw 2009). Even if some such claims regarding Cheney's power were inflated, the fact of the assertion was itself suggestive; the claims previously would have been unimaginable.

These two developments were reciprocally related: Vice President Cheney worked to stretch executive power, and the growth of executive power expanded his own domain and influence. Although the war on terror contributed to these two developments in important ways, it was not solely responsible for the growth of either the presidency or the vice presidency that occurred during the Bush years. On the contrary, both developments would have transpired, no doubt differently and in less robust ways, independent of the war on terror.

From the outset, the expansion of presidential powers was a fundamental objective of the Bush presidency, its prominent place on the agenda traceable to Cheney's influence. Well before the hijacked planes struck the twin towers of the World Trade Center and the Pentagon, Cheney was at the forefront of an effort to assert presidential powers and to elevate the presidency at the expense of Congress.

Although the war on terror expanded Cheney's influence, his unprecedented role had independent sources that were firmly in place well before September 11, 2001, and that were also critical. This confluence of factors--the war on terror and Cheney's other, unique sources of power--created a situation that raised novel and fundamental questions regarding the political accountability of a vice president. Cheney's power depended in large part on the absence of less formal, but conventional, restraints on vice presidential conduct that had operated in other recent administrations. The Cheney vice presidency avoided many of the constraints that presidential leadership and the political system normally imposed. It reflected a culture of political unaccountability that transcended the separation of powers debates regarding presidential power. Cheney helped engineer the erosion of these restraints with the actual or tacit support of President Bush. These factors, in addition to the Bush-Cheney views on presidential power, influenced the nature and content of policy making during the Bush administration.

This essay will explore the relationship of the war on terror to the unique Cheney vice presidency. The first section will outline the contours of the vice presidency when Cheney assumed it. The second section will explore the ways in which, and the reasons why, Cheney was able to stretch those boundaries during the seven and a half months before 9/11. The third section will explore Cheney's long-standing commitment to the growth of presidential power and outline steps taken before 9/11 to inflate presidential power. The fourth section will examine the impact of 9/11 on the distribution of governmental power with respect to certain prominent examples, suggesting that in those cases, it led to a concentration of greater systemic power in the presidency, with much of that power flowing to the vice president--a process that Cheney and his associates encouraged. The final section will show the ways in which Cheney's power was enhanced by factors that were unrelated to traditional separation of powers concerns.

The Modern Vice Presidency as of 2001

By the time Cheney became vice president, the office had undergone institutional changes that promised significance to any occupant of that office. Vice presidents beginning with Richard M. Nixon had gravitated to the executive branch, where they assumed a range of traditional roles. They headed commissions in the executive branch, represented the president as a foreign emissary, served as a spokesman for the administration, and functioned as a party campaigner and fund-raiser. These developments were important transitional steps in the institutional development of the office (Goldstein 1982). Nonetheless, they did not bring the office into the inner core of the administration, and vice presidents continued to feel excluded and frustrated.

During the presidency of Jimmy Carter, the vice presidency was transformed. Carter's vice president, Walter F. Mondale, was involved in the work of the executive branch on an ongoing basis as a senior advisor and troubleshooter who performed substantive, not make-work, assignments. Carter gave Mondale important new resources--a prominent office on the ground floor of the West Wing, a regular private lunch meeting with Carter each week, the right to attend any meeting Carter had, easy access to the Oval Office, inclusion in the distribution list for documents sent to the president, and integration of the vice presidential staff in the operations of the White House. It would have been awkward for any subsequent president to retract these privileges, and Mondale's successors all retained them. Mondale's tenure created new expectations for the office. Although, for a variety of reasons, neither George H. W. Bush nor Dan Quayle achieved Mondale's significance as vice president, each had access to the president and played important roles in their administrations. And Al Gore expanded on the roles of his predecessors. He not only was Bill Clinton's most significant across-the-board advisor, but also assumed major substantive responsibilities on an ongoing basis. He was responsible for the reinventing government initiative as well as for environmental and telecommunications policy, and he headed important bilateral commissions with his counterparts in Russia, South Africa, and Egypt (Goldstein 2008). Vice Presidents Mondale, Bush, Quayle, and Gore were distinct political figures who experienced different levels of influence as vice president. Yet they all benefited from enhanced opportunities to contribute that separated them from the experience of their pre-Mondale predecessors.

Cheney and Vice Presidential Power: Pre-9/11

The Cheney Vice Presidency

By January 2001, the new vice presidency had become institutionalized. In many respects, Cheney's decision to accept the vice presidential nomination recognized this historic development of the office. Cheney was not someone who was drawn to sinecures, having served as chief of staff to President Gerald Ford while still in his thirties, as Republican House minority whip, and as secretary of defense (not to mention as chief executive officer of Halliburton). He thought the second office to be a desirable job in itself, independent of its value as a political springboard. What better confirmation could there be of the significance of the vice presidency? (Goldstein 2008).

Yet the experience of Cheney's four immediate predecessors did not predict the Cheney vice presidency. In this instance, the past was not really prologue, or if so, it was in a very understated way. From the outset of the Bush administration, Cheney played a role that was unprecedented in its range and significance (Goldstein 2008; Warshaw 2009).

Cheney's influence became apparent during the early months of the Bush administration. Cheney had easy access to Bush, and he and his staff participated fully in White House discussions and operations. Bush assigned Cheney to supervise the development of administration policy in a number of critical areas and enlisted Cheney's help in working with the Senate and House of Representatives on a range of legislative matters. In late January 2001, Bush named Cheney to head a cabinet-level energy task force to develop policy recommendations to address a range of problems relating to the cost and supply of energy (Bush 2001a). In early May 2001, he named Cheney to head a task force on domestic preparedness against weapons of mass destruction in the hands of terrorists. Cheney was "to oversee the development of a coordinated national effort so that we may do the very best possible job of protecting our people from catastrophic harm" from the use of weapons of mass destruction by rogue states or nonstate terrorist entities (Bush 2001b, 499). Cheney also represented the administration in working with Congress on the details of the 2001 tax cut. Congressmen concluded that Cheney had the authority to make a deal, which increased their interest in working with him (Gellman 2008). Bush also named Cheney to head a five-person Budget Review Board to consider appeals of Office of Management and Budget decisions with which department heads were unhappy. (1) Other members viewed Cheney's role as critical. Sometimes he forced modifications. Cabinet members could appeal the board's decisions to Bush, but they rarely, if ever, did, in part a tribute to Cheney's perceived influence (Hayes 2007).

In March 2001, the former chiefs of staff to Vice Presidents Mondale, Bush, and Gore all agreed that the Cheney vice presidency already marked a new departure. Craig Fuller, chief of staff to George H. W. Bush during his second vice presidential term, observed that Cheney's service was "unprecedented". Ron Klain, a chief of staff to Vice President Al Gore (and later to Vice President Joe Biden), agreed that Cheney "clearly is functioning in a way broader" than his predecessors and was "setting the agenda" (Fuller, Klain, and Moe 2001).

Cheney's conduct on September 11, 2001, confirmed his unique stature. Bush was on the road that day, meeting with a second-grade class in Sarasota, Florida, when he learned of the terrorist attacks. "We're at war. Get me the Vice President and get me the Director of the FBI," Bush reportedly declared after leaving the classroom (Rove 2001, 16). Cheney was the authority figure in the Presidential Emergency Operations Center after the White House was evacuated and the pivotal operating figure in the government that day. He persuaded Bush not to return to the White House even after Bush had publicly announced that as his destination. When told that an unidentified plane was heading to Washington, D.C., Cheney ordered the military to shoot it down. Cheney's chief of staff, Lewis "Scooter" Libby, later said Cheney had responded to that historic request for authority "in about the time it takes a batter to decide to swing" (9/11 Commission Report 2004, 41).

Bush and Cheney later insisted that Cheney was simply relaying instructions that Bush had given him (Hayes 2007). That seems a dubious claim. The 9/11 Commission placed the initial request for authority and the Cheney directive at between 10:10 and 10:15 A.M. (9/11 Commission Report 2004), so Bush would have had to give Cheney such instructions before that time. Yet not one of a dozen set of records, official and unofficial, reflected a Bush-Cheney conversation during the time period between when the threat became known and the order was given (Gellman 2008; 9/11 Commission Report 2004; Shenon 2008). Lynne Cheney and Scooter Libby were with Cheney and taking notes, but neither mentioned such a call in which Bush authorized a shoot-down order before Cheney gave it (9/11 Commission Report 2004; Shenon 2008). Having not heard any prior discussion between Bush and Cheney, Deputy White House Chief of Staff Joshua Bolten, who was with Cheney, asked Cheney to confirm the initial order with Bush (9/11 Commission Report 2004, 41). (2) Instead of simply telling Bolten that Bush had already given the instruction, Cheney called Bush at 10:18 A.M. (9/11 Commission Report 2004). Cheney biographer Barton Gellman notes that Bush did not tell anyone that he had issued such an order until 10:20 A.M., when he hung up after a two-minute conversation with Cheney. Yet Cheney had given the shoot-down order 5-10 minutes earlier (Gellman 2008).

The staff of the 9/11 Commission did not believe the account that Bush and Cheney gave, and that view apparently was reflected in its draft report, which the White House reviewed. Cheney called commission chair Tom Kean to demand that the section be rewritten to accord with the Bush-Cheney account (Shenon 2008), but the tenor of the final version suggests some skepticism regarding the Bush-Cheney version (9/11 Commission Report 2004; Shenon 2008; Thomas 2006).

Cheney's shoot-down order may have been understandable under the bizarre circumstances of that awful day, but neither the Constitution nor any statutory source authorized him to issue such a military command. For present purposes, however, Cheney's issuance of the order confirms the extraordinary power that he felt free to exercise even before the Bush administration began to devise its response to the war on terror. Cheney's standing to exercise such power was necessarily anchored in foundations that preceded the al-Qaeda attack.

Sources of Cheney's Power

Just as Cheney's stature as of September 11, 2001, was not dependent on the war on terror, it also was not explained simply by the institutionalization of the vice presidency that preceded the Bush administration. Cheney, of course, benefited from the Mondale resources and the increased expectations of vice presidential involvement that had developed during the tenures of Vice Presidents Mondale, Bush, Quayle, and Gore. Those factors guaranteed him a level of influence and invested him with operational assets such as his proximity and access to Bush and his closest White House advisors as well as his access to information and expertise. Yet other modern vice presidents had essentially those same assets yet lacked Cheney's pre-9/11 influence. As such, their existence could not account for the unprecedented level of power he achieved. Other factors explained Cheney's unique position.

Relationship with Bush. First, Cheney's influence stemmed from his relationship with President Bush. Other vice presidents had been politically and personally compatible with the presidents they served, but the Bush-Cheney relationship was unique in a critical way. Unlike their recent predecessors, Bush and Cheney had a close relationship that preexisted their inauguration. Cheney had served Bush's father as secretary of defense and had consulted with Bush during the presidential nomination campaign. He often attended high-level briefings with Bush up to and during the 2000 presidential nomination campaign; Bush came away from those meetings impressed with Cheney's contributions and with the respect he commanded from the other participants (Draper 2007). Cheney served as a public supporter whose presence lent gravitas and whose voice lent credibility to Bush's effort (Mann 2004).

Bush and Cheney had also had occasion to work closely together, an experience that led Bush to value Cheney's judgment and loyalty. Although Cheney had declined Bush's request to chair his presidential campaign, a position that Cheney thought inconsistent with his obligations as chief executive of Halliburton, Cheney later agreed to direct Bush's vice presidential search. Their relationship in that undertaking in some respects foreshadowed their White House interaction. Cheney ran the search process, controlled information about prospective candidates, and reported to Bush from time to time. Bush was drawn to Cheney by the latter's lack of presidential, or even apparent vice presidential, ambition, a disposition that Bush thought would foster Cheney's loyalty to the president's agenda (Draper 2007).

Unlike his predecessors, Cheney, at the beginning of his term, did not have to first establish credibility with the president and his inner circle. There was no need for him to proceed with diffidence to win the confidence of Bush or his closest advisors. On the contrary, Cheney began his vice presidency with an established relationship with Bush, and, accordingly, he was able to assert himself in the early days of the administration, when lasting patterns of conduct are often formed. As will be seen later, this advantage had other implications that contributed to Cheney's power.

Bush's Leadership Style. Second, Bush's leadership style created the possibility of a powerful vice presidency in at least three ways. Bush delegated considerable operational authority to others. Consistent with business models of leadership with which Bush was familiar, he envisioned the president as a chairman of the board who depended on a chief operating officer. Moreover, Bush was temperamentally disposed to focus on the big picture rather than immersing himself in the detail of issues. As Newsweek columnist Howard Fineman observed during the first months of the Bush administration, Bush showed "no desire to learn all the details" (Fineman 2001). Bush's aversion to detail meant that he needed someone he trusted who could and would master and distill the fine points of policy for him. Finally, Bush focused largely on the political or outside dimensions of the job. He enjoyed the public part of politics. He made frequent public appearances that took him away from the White House. This orientation created an opportunity for someone to remain behind to work the internal levers of power at the White House. Bush's leadership style created a need, or space, for a powerful subordinate(s). As will be suggested later, Cheney became the operating person for much of the government and the person who distilled information for Bush and framed options for his decision.

Cheney's Resources. Third, Cheney brought extraordinary resources to the vice presidency. Cheney had a diversity of high-level experience that few, if any, public officials could match. He had served as White House chief of staff, as Republican minority whip in the House of Representatives, and as secretary of defense. This broad-based resume gave him occasion to witness and understand how critical aspects of the government functioned. Cheney knew how policy got made in the White House, on Capitol Hill, and throughout the executive branch's departments, and he knew how new initiatives got stopped. He was a master of working the system to achieve any of those outcomes (Gellman 2008).

Cheney's history of past service also gave him enormous credibility. Cheney had a record of success in a series of demanding positions. Others were prepared to defer to Cheney because of his vast experience and their perceptions of his ability.

Finally, Cheney had a range of contacts in Washington, in the business community, and overseas that enhanced his influence. He had served in the Ford White House with Alan Greenspan, head of the Federal Reserve Board, and in Congress with Republican leaders such as Senate majority leader Trent Lott, Speaker of the House Denny Hastert, House minority leader Dick Armey, and chairman of the House Committee on Ways and Means Bill Thomas, all of whom he counted as friends (Gellman 2008). His service at the Pentagon and at Halliburton allowed him to establish relations with international figures. Cheney did not simply have a comprehensive rolodex, but a network of relationships with powerful figures.

Cheney's resources were formidable, but more importantly, they meshed well with the needs of the Bush administration, thereby fortifying Cheney's position. Bush came to the presidency with less experience in national government or international matters than virtually any other president in the twentieth century. As James Mann put it, "Because Bush's prior experience was so limited he was obliged to rely to an extraordinary extent on his advisors for ideas and for information" (2004, xviii). Bush recognized this gap in his resume. He had told Cheney, "I don't know what's going to come on my desk, but I'm going to need somebody who's seen things before, who can give me advice to make good decisions" (Draper 2007, 89). To be sure, Bush was close, perhaps closer, with some of the Texans who accompanied him to Washington--Karen Hughes, Alberto Gonzales, and Karl Rove. And others, such as Colin Powell and Donald Rumsfeld, also had high-level experience and credibility. But Cheney had advantages over both sets of people. Unlike Cheney, the Texans were Washington neophytes; they lacked his knowledge of the workings of the national government and the issues it faced and his relationships. And Cheney was far closer to Bush than were Powell or Rumsfeld, both personally and physically, and the vice presidential resources accentuated his margin.

Cheney also brought a skill set that Bush badly needed. Whereas Bush was not disposed to immerse himself in the detail of policy, Cheney was a policy wonk who was perfectly content to digest huge amounts of briefing papers and distill them for Bush. Cheney, for instance, had a full intelligence briefing early each morning that served as a dry run for the later presidential briefing. Thus prepared, Cheney would join Bush at the president's session, at which Cheney would ask questions to make sure Bush was briefed in areas that Cheney thought important (Hayes 2007). Whereas Bush was essentially an outside man who was best suited for the public, political, and symbolic aspects of the job, Cheney was an insider, happy to spend his time in policy meetings, shaping and implementing decisions about governing (Mann 2004).

Cheney's Role in the 2000-2001 Transition. Fourth, Cheney's role in the 2000-2001 presidential transition constituted a unique source of power. The contest regarding Florida's electoral votes extended the presidential campaign for another month, thereby distracting Bush's attention from the transition and truncating the period in which Bush focused on establishing a government. Bush charged Cheney with directing the transition. Whereas vice presidents such as Mondale and Gore had been at the table during prior transitions when personnel decisions were made, Cheney assumed overall responsibility for the transition, an unprecedented assignment for a vice president-elect (Johnson 2001).

Cheney set up a transition operation in Washington and placed loyalists such as David Gribbin, David Addington, and his daughter, Liz Cheney, in key positions. Cheney played the leading role in formulating the short lists for high-level positions and was one of three people with Bush when he made personnel decisions, the others being Andrew Card and Clay Johnson (Mann 2004). Cheney helped place close associates, such as Donald Rumsfeld, in such positions as secretary of defense and derailed the prospects of others. Some whom Bush appointed to cabinet-level positions, such as Paul O'Neill at Treasury and Spencer Abraham at the Department of Energy, had long-standing relationships with Cheney. Cheney also placed many former associates in important positions in the departments and the White House. For instance, Paul Wolfowitz, his former deputy at the Pentagon, got the second job under Rumsfeld. Cheney supported Mitch Daniels to be director of the Office of Management and Budget and placed Sean O'Keefe, an alumnus of the Cheney Pentagon, as Daniels's deputy. Stephen Hadley and Zalmay Khalilzad, both also from the Cheney Pentagon, became deputy national security advisor and oversaw Iraq and Afghanistan policy at the National Security Council, respectively. This list is suggestive but by no means exhaustive.

Cheney's central role in the transition gave him three critical assets that greatly enhanced his ability to influence policy. He was able to place allies throughout the government, thereby ensuring that the executive branch would be filled with people whose views were similar to his and who were favorably disposed to him. Moreover, many Bush appointees realized that they owed their positions in large part to Cheney, and, accordingly, they were sympathetic to him and predisposed to respond favorably to his requests. Finally, the transition assignment sent a powerful signal to others, inside and outside the Bush government, of Cheney's significance. The unprecedented assignment confirmed that Bush trusted Cheney and suggested a pattern of operation for the administration.

Staffing Arrangements. Fifth, Cheney's staffing arrangements conferred additional advantages. Cheney had a large staff whose personnel was concentrated in critical areas. Whereas prior vice presidents had hired fewer than a handful of national security advisors, Cheney appointed a separate team that enhanced his independent capability regarding foreign policy (Mann 2004; Schmitt 2001). Cheney's staff was also fully integrated into White House operations (Burke 2004; Schmitt 2001). Two of Cheney's top aides, his chief of staff and national security advisor, "Scooter" Libby, and political advisor, Mary Matalin, were also members of Bush's senior staff and attended the daily meeting of the White House senior staff. Libby, along with Rice's deputy, Hadley, were the only nonprincipals who attended National Security Council and principals meetings, and Libby was also included at deputies meetings. Cheney's domestic staffers worked alongside Bush's personnel. Thus, Cheney was kept abreast of, and was able to influence, decisions made at multiple levels.

Moreover, Cheney's associates had far more experience in Washington and with national politics than did many of Bush's top aides. For instance, David Addington, Cheney's counsel, worked closely with Alberto Gonzales and was invariably involved when the White House considered important legal issues (Goldsmith 2007). Addington's Washington experience, superior knowledge on substantive issues, and forceful personality enabled him to influence legal policy in the White House (Berenson 2007; Goldsmith 2007). Finally, the influence of Libby, Addington, and other Cheney aides was enhanced by Cheney's clout and the perception that they spoke for him.

Lack of Presidential Ambitions. Cheney's lack of presidential ambitions has often been described as contributing to his influence within the administration. Whereas Cheney's recent predecessors had all anticipated a subsequent run for the presidency-indeed, part of the allure of the vice presidency to them was its value as a political springboard (3)--Cheney trumpeted his lack of future presidential ambitions. President Bush and others cited this unusual characteristic as freeing Cheney from divided loyalties and fortifying his commitment to the objectives of the Bush administration. During the 2004 vice presidential debate, Cheney said that "from the perspective of the nation" his relationship with Bush had "worked in part because I made it clear that I don't have any further political aspirations myself. And I think that's been an advantage. I think it allows the president to know that my only agenda is his agenda. I'm not worried about what some precinct committeemen in Iowa were thinking of me with respect to the next round of caucuses of 2008" (Cheney 2004). Bush and other White House personnel attached significance to this factor in explaining Cheney's influence (Hayes 2007, 307; Nelson 2009; Woodward 2004).

It seems likely, however, that Cheney's lack of ambition reinforced his power in another way that has received less emphasis. Because Cheney was not interested in seeking a presidential term of his own, he had less reason to spend time currying favor with those around the country who might help in a future campaign. He was free to devote his time to the administration's current projects rather than to his own future. Therefore, he was able to be in the White House or in Washington more frequently and devote his time and energy to shaping present policy, not future leadership (Woodward 2004).

Compounded Authority. Finally, Cheney's authority compounded itself. His relationship with Bush made others interested in dealing with him, which enhanced his ability to get things done. His ability to work with congressional leaders or figures such as Greenspan made him more valuable within the administration. Bush's operational style created vacuums that Cheney and his staff could fill.

Cheney and Executive Power: Pre-9/11

The Roots of Cheney's Commitment to Presidentialism

Cheney's conviction that executive power needed to be strengthened predated the war on terror by decades. Its roots traced to his service as an obscure aide in Richard M. Nixon's executive branch and as deputy chief of staff and then chief of staff to President Ford in the mid-1970s, a period during which Congress responded to the excesses of an imperial presidency. In early 2002, Cheney said, "But in 34 years, I have repeatedly seen an erosion of the powers and the ability of the president of the United States to do his job. We saw it in the War Powers Act. We saw it in the Budget Anti-Impoundment Act. We've seen it in cases like this before, where it's demanded that presidents cough up and compromise on important principles" (Cheney 2002a). Cheney had opposed these initiatives of an invigorated Congress and saw the presidency that emerged in the mid-1970s as a mere shadow of the robust institution that the Constitution, as he interpreted it, envisioned.

For decades before September 11, 2001, Cheney had advocated the restoration of executive power. He encouraged friends in the Reagan administration to make that a central theme it would pursue (Baker 2006). Later, as the senior Republican on the House of Representatives Select Committee to investigate the Iran-Contra controversy, he joined the Minority Report that rejected the widespread view that the Reagan executive branch had violated the law during the Iran-Contra affair. The Minority Report included a lengthy discussion of a constitutional theory that assigned broad powers to the presidency, it defended many of President Reagan's actions as "constitutionally protected exercises of inherent Presidential powers" and contended that many of the congressional statutes that allegedly were violated were unconstitutional usurpations of presidential power (Cheney et al. 1987, 457). The Minority Report argued that the Constitution gave the president broad powers in foreign affairs independent of Congress, a conclusion based on the intent of the framers and ongoing practice. Congressional action to limit the president in foreign policy "should be reviewed with a considerable degree of skepticism" and struck down if it interfered with core presidential functions. Moreover, "doubtful cases should be decided in favor of the President" (469). The Minority Report went on to state that "[t]he executive branch's functions are the ones most closely related to the need for secrecy, efficiency, dispatch and the acceptance by one person, the President, of political responsibility for the result. This basic framework must be preserved if the country is to have an effective foreign policy in the future" (478). Nearly two decades later, in 2005, Cheney directed reporters to that "obscure text," which he said was "very good in laying out a robust view of the President's prerogatives with respect to the conduct of especially foreign policy and national security matters" (Cheney 2005a).

Cheney's endorsement of the Minority Report was not simply an exercise in partisan politics, and it certainly did not advance Cheney's institutional interest as a leader of Congress. Rather, the Minority Report reflected Cheney's deeply held convictions regarding the separation of powers, a commitment on which he acted on other occasions during the Reagan years. In early 1989, while a member of the House Republican leadership and before he was nominated to be secretary of defense, Cheney argued that Congress had unconstitutionally encroached on the president's domain and effectively had made the federal government incapable of exercising some of its power, especially in foreign policy, where the framers had "allowed a much greater scope for executive power." If anything, modern conditions suggested allowing greater leeway to the president in security matters (Cheney 1990).

As secretary of defense during the administration of George H. W. Bush, Cheney acted based on his expansive views of presidential power. Cheney had long believed that the president could commit troops to war as commander in chief without congressional authorization, and he opposed President Bush's decision to seek congressional authorization for the Persian Gulf War; Cheney would not have been deterred if Congress had refused to authorize the use of force. "If we'd lost the vote in Congress, I would certainly have recommended to the President we go forward anyway" (Cheney 1996).

Presidential Power and the Bush Administration: Pre-9/11

Cheney's commitment to asserting executive power became evident early in the George W. Bush administration. At its outset, Cheney instructed his legal counsel, Addington, to work to restore presidential power (Goldsmith 2007; Hayes 2007; Milbank 2004). For Cheney, the expansion of presidential power was not simply a means but an ultimate objective informed by an ideological commitment. Cheney persuaded Bush to embrace enhancing presidential power as an administration priority. Gonzales, Bush's counsel, instructed his staff during its initial meeting of Bush's resolve to strengthen the presidency (Berenson, 2007; Gellman 2008; Savage 2007). This commitment animated the work of the Bush administration, and, accordingly, the argument that an alternative course would erode presidential power was a trump card that would usually prevail.

Cheney operated based on these views during the early months of the Bush administration before 9/11 transformed its focus. After Bush's announcement in late January 2001 that Cheney would lead an energy task force, Cheney constructed and conducted that body to escape the accountability requirements of the Federal Advisory Committee Act by limiting its membership to government officials (Hayes 2007; Suskind 2004). Cheney used this structure as a justification to resist the requests of two ranking Democrats on relevant committees of the House of Representatives, John Dingell and Henry Waxman, and then the General Accounting Office (GAO), for information regarding the composition and operation of the Cheney task force (Dingell and Waxman 2001a, 2001b). Addington argued, on Cheney's behalf, that the Federal Advisory Committee Act did not apply because all members and employees of Cheney's task force were officers or employees of the federal government. Cheney later made broader claims to exempt his office from GAO scrutiny. He told one interviewer that the GAO lacked jurisdiction over him because "I'm the constitutional officer provided for in the Constitution ... [a]nd the General Accounting Office has authority over statutory agencies, but not over constitutional officers," and "it's important here to protect the ability of the President and the Vice President to get unvarnished advice from any source we want" (Cheney 2002c). The stakes escalated as Cheney wrote to the House of Representatives on August 2, 2001, that the GAO had exceeded its "lawful authority" and that its actions "would unconstitutionally interfere with the functioning of the Executive Branch" (Cheney 2001a). The GAO denied that contention four days later, characterizing its requests as relating to factual and nonprivileged materials and stated that it had unsuccessfully attempted to speak with Cheney to try to resolve the dispute.

Some of Bush's closest aides favored accommodating the congressional requests so as not to irritate members whose support would be needed to advance administration priorities (Gellman 2008). They worried about the political costs of Cheney's position, which made the administration appear secretive and unduly oriented to corporate interests (McClellan 2008). Cheney, however, embraced the controversy as an opportunity to establish new constitutional principles regarding more expansive presidential power. When Cheney's energy aide urged the vice president to disclose records to demonstrate the validity of the task force's process, Cheney reportedly replied, "Don't ever suggest that to me again" (Hayes 2007, 324). After David Gergen, Cheney's former colleague in the Nixon and Ford White Houses, argued on CNN that Cheney should reveal the names of those with whom his task force had met, Cheney called Gergen to discuss his views of executive power. The conversation convinced Gergen that Cheney was "a very, very strong believer that the presidency has been cut down too far" (Gergen 2007). Cheney believed that presidents had routinely compromised with Congress, at the expense of the presidency and the vice presidency. Cheney and Bush felt an obligation "to pass on our offices in better shape than we found them to our successors. We are weaker today as an institution because of the unwise compromises that have been made over the last 30 to 35 years" (Cheney 2002a; see also Cheney 2002b; Libby 2002; Montgomery 2008).

Cheney described his action as having "restored some of the legitimate authority of the Executive Branch, the President and the Vice President, to be able to conduct their business" (Cheney 2003). When a reporter asked Cheney whether the principle was worth the political cost, he replied that his oath to defend the Constitution compelled him to resist "the unlawful or unconstitutional or unreasonable encroachment by the other branches of government." The constitutional doctrine of separation of powers protected the president or vice president from having to inform a congressman of their meetings, and Cheney would not set a precedent that would constrain his successors (Cheney 2002c).

Following an Oval Office session, Bush embraced Cheney's approach regarding the operation of Cheney's task force (Gellman 2008). The effort of the General Accounting Office to obtain the records of Cheney's energy task force jeopardized the ability of the president and vice president "to get good, sound opinions." Bush viewed the GAO "like the Vice President does," as "an encroachment on the executive branch's ability to conduct business" (Bush 2002a). Cheney's chief of staff, Libby, said that Cheney "firmly believes--believes to the point where, when he talks about it, his eyes get a little bluer--that for the presidency to operate properly, it needs to be able to have confidential communications" (Libby 2002).

Cheney's effort to avoid these disclosures reflected the deep commitment that he and Bush had to expanding executive power well before 9/11. The effort brought clear political costs and relatively small short-term gains, as much of the information was disclosed in litigation against other government agencies (Montgomery 2008).

The dispute regarding the energy task force provided the most visible, but not the exclusive, front in Cheney's battle to expand presidential power prior to September 11, 2001. Cheney also instructed Addington to review all legislation and to prepare signing statements addressing any perceived intrusions into presidential power. Addington largely drove the Bush administration's extensive and unprecedented use of signing statements, an effort that preceded 9/11 and went beyond areas related to national security (Pfiffner 2008; Savage 2007).

Cheney and Executive Power: The Influence of 9/11

Prior to September 11, 2001, Cheney had carved out a role that promised to establish him as history's most powerful vice president and as a proponent of an expansive view of presidential power. The events of 9/11 provided the impetus for an aggrandizement of the power of the vice presidency--or, more precisely, of one vice president--and of the presidency more generally.

The 9/11 attacks introduced a new climate that favored broad assertions of presidential powers. Five days later, Cheney said on Meet the Press that "things have changed since last Tuesday. The world shifted in some respects" (Cheney 2001b). The attack on the homeland moved the discussion to an area in which, historically, presidential prerogatives had been viewed most expansively and introduced a context that tempered normal patterns of scrutiny of executive conduct. The nation rallied around Bush; his, and Cheney's, approval ratings reached their highest marks. (4)

The events of September 11, 2001 introduced three dynamics that enhanced Cheney's role. First, crisis draws decision making into the White House and tends to empower those who, by virtue of their personal relationship and physical proximity, are close to the president. Second, the events brought to the forefront a set of issues in which Cheney's expertise and credibility enhanced his role. Third, the events of 9/11 frightened America and its leaders. New feelings of vulnerability increased the calls for, and receptivity to, more intrusive security measures. Those who had or were perceived to have access to intelligence, such as Cheney, found that others were less willing to challenge their arguments.

Cheney summoned his counsel, Addington, to the White House bunker on September 11, 2001, and asked him what additional power the president would need to prosecute the war against terror. Addington, in consultation with Timothy Flanigan, associate White House counsel, and John Yoo of the Office of Legal Counsel, began to draw up sweeping grants of power. In the aftermath of 9/11, administration lawyers engaged in an effort "to lay out for the president every single tool in his toolbox" by collecting statutory powers and interpreting constitutional grants (Berenson 2007; Mayer 2008). During his September 16, 2001, Meet the Press interview, Cheney famously said that henceforth America would have to work "sort of the dark side.., in the shadows in the intelligence world." Since terrorists operated in that world, "it's going to be vital for us to use any means at our disposal, basically, to achieve our objective" (Cheney 2001b).

In a number of areas in the aftermath of the al-Qaeda attacks, Cheney's office spearheaded the development of policies based on expansive views of presidential power. Cheney, Addington, and others in his office made broad claims based on the president's commander in chief power, which they viewed as a trump card over legal restraints that statutes or treaties imposed. A few brief case studies put these claims in context and provide some indication of the manner in which Cheney's office operated.

Warrantless Surveillance

Consistent with the supervisory role that Bush had assigned Cheney regarding intelligence matters during the early days of the administration, Cheney met with Central Intelligence Agency (CIA) director George Tenet and Michael Hayden of the National Security Agency (NSA) in the aftermath of 9/11 to devise an expanded surveillance program. Working with Libby and Addington, they fashioned a program for surveillance of domestic, as well as international, targets without a showing of probable cause or a judicially authorized warrant. Advocates justified the program, which far exceeded the boundaries that the Foreign Intelligence Surveillance Act (which Cheney's office thought intruded on the president's constitutional power) and the search and seizure clause of the Constitution imposed, based on expansive readings of the president's constitutional commander in chief power. The program was Cheney's "brainchild," and he was instrumental in putting it into effect (Lichtblau 2008, 144; Savage 2007). Cheney presented the proposal to Bush along with a draft order on October 4, 2001, and the president signed it that day.

By design, the program was intended to avoid scrutiny by the other branches of government. Cheney admonished his colleagues to share little about the program with Congress (Hayes 2007). Gellman wrote that "[t]he new legal framework was meant to be invisible, unreviewable--its very existence unknown by legislative or judicial actors who might push back" (2008, 138). Beginning on October 25, 2001, Cheney, not Bush, typically conducted briefings of a small group of congressional leaders regarding the warrantless surveillance program. Yet these briefings provided limited oversight. Few congressional leaders were briefed, and they were sworn to secrecy and, accordingly, were unable to share the information provided them even with staff, thereby minimizing their ability to access the necessary expertise to analyze it fully (Mayer 2008; Montgomery 2008). At least one member of Congress, Senator Jay Rockefeller, expressed his discomfort with the program and procedure in a handwritten letter to Cheney (Rockefeller 2003; see also Lichtblau 2008), a complaint that Cheney dismissed as a "bit of a CYA letter" (Cheney 2009a).

The program was formulated and implemented without input from many stakeholders in the executive branch. Cheney and his associates withheld information about the program from ranking Justice Department lawyers such as Deputy Attorney General Larry Thompson, National Security Council attorney John Bellinger, and Fran Townsend, Bush's advisor on counterterrorism. Career lawyers at the Pentagon who specialized in legal issues relating to NSA's work were also denied information regarding the program. Addington, for instance, refused to allow the inspector general of the NSA to read the Justice Department's legal analysis supporting the Terrorist Surveillance Program (Gellman 2008; Goldsmith 2007; Lichtblau 2008; Mayer 2008).

Cheney later defended Bush's warrantless surveillance program as being "consistent with the President's constitutional authority as Commander-in-Chief' and "consistent" with the Authorization for Use of Military Force that Congress had passed in September 2001. Moreover, Cheney repeatedly invoked the fact that the program was recertified every 30 to 45 days (Cheney 2005b, 2005c) and that congressional leaders had been briefed on the program (Cheney 2005c). Cheney pointed to the attacks on September 11 and the "possibility that same organization might try to attack the United States with deadlier weapon threats" as providing additional justification for the surveillance program, which he claimed had "saved thousands of lives." "When we were hit on 9/11, [President Bush] was granted the authority by the Congress to use all means necessary to take on the terrorists. And that's what we've done" (Cheney 2005c).

The efforts of Cheney's office to protect the warrantless surveillance program perhaps best illustrated the single-minded nature of its commitment to an expansive view of presidential power. When Jack Goldsmith, a highly credentialed conservative academic, was named to head the Office of Legal Counsel in late 2003, he reviewed a number of John Yoo's opinions that had espoused expansive interpretations of executive power, including those regarding the warrantless surveillance program. A bitter debate developed in early 2004 regarding whether the Justice Department would continue to certify the warrantless surveillance program. Deputy Attorney General James Comey, after finally being allowed access to information regarding the program, persuaded John Ashcroft not to recertify the program unless it was changed. Before Ashcroft could act on that decision, he was stricken with acute pancreatitis, the complications from which were almost fatal. Comey became acting attorney general as Ashcroft was placed in intensive care in early March 2004. When Goldsmith told Addington and Gonzales on March 6 that the Department of Justice would not recertify the program, Addington replied that "[i]f you rule that way, the blood of the hundred thousand people who die in the next attack will be on your hands" (Goldsmith 2007, 71). Three days later, Gonzales and Goldsmith met but did not resolve their differences.

On March 9, 2004, Cheney met in Andrew Card's office with leaders of the CIA, NSA, and Federal Bureau of Investigation (FBI). Four hours later, that group reconvened to meet with Comey, Goldsmith, and Patrick Philbin from the Office of Legal Counsel. Comey advised that he would not recertify the warrantless surveillance program, which was otherwise due to expire (Comey 2007a; Savage 2007). Cheney, supported by the intelligence personnel, argued that the program was critical and that its termination would impair national security. Comey pointed out that Cheney's defense went to the merit, not the legality, of the program and contended that no good lawyer would advance the legal analysis that Bush and Cheney had relied on, a rebuke to those lawyers who had done so (Gellman 2008; Mayer 2008).

The following day, Cheney convened a meeting of eight congressional leaders, the leaders of the House and Senate, and the leaders of each body's intelligence committee, for a secret briefing regarding the warrantless surveillance program. Comey was specifically barred from the meeting. For some legislators at the meeting, it was the first disclosure regarding the program. Cheney advised them that government lawyers had consistently certified the program but now, in Ashcroft's untimely illness, Comey refused to do so. Gonzales later testified that the administration had raised the possibility of legislation, a claim that some legislators denied and one that seems dubious given Cheney's view that the president had constitutional authority and the likelihood that asking for legislation would undermine the secrecy of the program (Gellman 2008).

That night, Bush called Ashcroft (after his wife refused to accept a call from Card or Gonzales) and advised him that Card and Gonzales were en route to his hospital room. They appeared at Ashcroft's room in the intensive care unit to attempt to procure reauthorization from him. Ashcroft told his visitors he was not in condition to make decisions and had relinquished power to Comey. Nonetheless, he reviewed the legal problems with the program and said that the White House had denied him the ability to obtain appropriate legal advice regarding the program by refusing to allow him to discuss it with certain advisors (Comey 2007b; Gellman 2008; Lichtblau and Risen 2006; Mayer 2008; Mueller 2004; Savage 2007).

Bush signed a directive reauthorizing the program that Addington had prepared with a signature line for White House counsel Gonzales instead of Ashcroft. At least one of the congressional leaders was told that Gonzales had signed because Comey did not feel comfortable doing so in Ashcroft's absence. The following day, Bush met privately with Comey and then with FBI director Robert S. Mueller III. By then, White House officials had learned to expect massive resignations from the Justice Department. Bush protested that Comey had not raised his misgivings regarding the program until the last minute. Because those doubts had been communicated for months, Bush's claim, if credible, suggested that Cheney, Card, and Gonzales had not informed him of a fierce division in the administration regarding the legality of a major program. After meeting with Mueller, Bush agreed to modify the program to conform to guidelines that the Justice Department established (Comey 2007a, 2007b; Gellman 2008; Montgomery 2009).

Ultimately, the specter of massive resignations by political appointees in the Justice Department gave Bush little choice but to accommodate Comey's concerns. Cheney's premise, after all, was that the warrantless surveillance program was sacrosanct but could only operate if secret. The resignations would inevitably have exposed the program. Moreover, the crisis arose less than eight months before the 2004 presidential election. Bush simply could not risk the political repercussions of a Justice Department exodus, an event that would have made Richard Nixon's Saturday night massacre appear like a small wound.

The event, however, may have awakened Bush to the risk of allowing Cheney such autonomy. Cheney's political blinders and his commitment to the importance--and, in his view, legality--of the domestic surveillance program led him to bring the administration to the brink of an election-year debacle that would likely have made Bush a one-term president (Gellman 2008).

Military Commissions

Following 9/11, Gonzales established an interagency process, under the chairmanship of Ambassador Pierre Prosper, to consider how to handle those suspected of being foreign terrorists. Representatives of the State, Defense, and Justice departments, the military, and the National Security Council and White House counsel's office participated, but the vice president's office did not attend those meetings (Gellman 2008; Mayer 2008). Some in the White House apparently became impatient with the interagency process and quietly initiated a separate effort that Addington apparently drove and that excluded some of the interested agencies, such as the State Department and the National Security Council (Berenson 2007; Mayer 2008; Murphy and Purdum 2009; Savage 2007).

Addington played a leading role in drafting a proposed presidential order establishing a system of military commissions under the jurisdiction of the Department of Defense to handle detainees (Gellman 2008; Savage 2007). The order was predicated on the president's commander in chief power and the Authorization for Use of Military Force joint resolution and responded to the national emergency created by al-Qaeda's attacks (Bush 2001c). Addington's process was hardly transparent; Attorney General Ashcroft learned of the proposed order only because his subordinate, Yoo, had blessed the proposal, which excluded America's civil courts and the Justice Department from the program. Ashcroft had an unproductive meeting with Cheney to air his dissatisfaction with the arrangement (Gellman 2008; Mayer 2008; Savage 2007).

Cheney presented the order to Bush during a private lunch on November 13,2001, at which Bush approved it. At the time, Bush was hosting meetings with Russian president Vladimir Putin at the White House and the following days at his Crawford, Texas, ranch. Cheney directed that the order immediately be prepared in final form for Bush's signature. Addington finalized the order, and it was presented for Bush's signature that afternoon before he left for Crawford without notice to important stakeholders (Berenson 2007; Gellman 2008; Mayer 2006). Even Cheney's allies were stunned by the speed with which Cheney obtained presidential approval. National Security Advisor Condoleezza Rice first learned of the order after Bush signed it. Secretary of State Colin Powell learned of it when and how many other Americans did--when CNN announced it later that day. "What the hell just happened?" Powell asked Prosper, the head of the interagency process considering the issue, who was also in the dark (Gellman and Becker 2007).

In fact, the president's order presented significant constitutional issues. It empowered the president to determine that a noncitizen should be tried by military commission without affording judicial review by writ of habeas corpus or appeal. As James P. pfiffner nicely put it, "the person would be indicted by a subordinate of the president based on evidence provided by subordinates of the president; the defendant would be tried by subordinates of the president; the defendant would be sentenced by subordinates of the president; and the only appeal would be to the president" (2008, 104-5).

Cheney defended the program before the U.S. Chamber of Commerce on November 14, 2001. He pointed out that those subject to it were not American citizens and were persons "believed to have engaged in or be participating in terrorist attacks designed to kill Americans, or have provided sanctuary to those who are conducting terrorist operations against Americans." He argued that "somebody who comes into the United States of America illegally, who conducts a terrorist operation killing thousands of innocent Americans, men, women, and children" does not "deserve the same guarantees and safeguards that would be used for an American citizen going through the normal judicial process." The program that Bush had prescribed "guarantees that we'll have the kind of treatment of these individuals that we believe they deserve" (Cheney 2001c). Even assuming that Cheney was correct about the appropriate treatment for terrorists, the president's order, and Cheney's defense of it, assumed the infallibility of the judgment that the president and his subordinates made regarding the culpability of those charged. Suppose they were wrong?

Cheney and Addington later resisted all suggestions that the administration seek congressional approval for proposed actions. At a meeting to discuss the decision of the U.S. Supreme Court to hear Yaser Hamdi's appeal, Goldsmith suggested asking Congress to approve the detention program. "Why are you trying to give away the President's power?" Addington asked. Addington believed that seeking congressional approval would imply that approval was needed and, accordingly, would diminish presidential power (Goldsmith 2007, 124). He was prepared to risk an adverse Court decision rather than seek congressional sanction. Although the Supreme Court ruled Bush's order illegal in important respects in a series of decisions, the Bush administration subsequently obtained legislation from Congress reinstating much of what it sought (Fisher 2008; Pfiffner 2008; Savage 2007).

Holding Geneva Inapplicable

Cheney's office, along with Yoo, spearheaded an effort to persuade Bush to deny the protections of the Geneva Conventions to members of al-Qaeda or the Taliban. During Cheney's November 14, 2001, comments to the U.S. Chamber of Commerce, he had said that unlawful combatants "don't deserve to be treated as a prisoner of war" (Cheney 2001c). Whether Cheney meant that cryptic statement to signal his view that the Geneva Conventions' protections of prisoners of war did not cover this population, his office clearly pushed that view within the administration. Yoo drafted a memorandum denying that the Geneva Conventions bound the United States, a position that the State Department opposed. Bush apparently accepted Yoo's position on January 8, 2002, and, consistent with it, Rumsfeld instructed the Joint Chiefs 10 days later that the military need not treat al-Qaeda or Taliban prisoners in accordance with the Geneva protections. Because Bush had not convened a meeting of his principal advisors to discuss the issue, Powell thereafter obtained an audience with Bush on January 21, 2002, regarding the subject. Working with allies in the Departments of Defense and Justice as well as with Flanigan at the White House, Addington prepared for Gonzales's signature a memorandum of January 25, 2002, advising that the Geneva Conventions did not apply. Before the National Security Council meeting that Bush called for January 28, 2002, the Gonzales-Addington memorandum was leaked to the Washington Times, a conservative newspaper, which quoted administration sources as saying that Powell was caving to left-wing pressure (Gellman 2008; Mayer 2008). In early February 2002, Cheney obtained Bush's signature on an executive order that Addington had prepared denying protections of the Geneva Conventions to al-Qaida detainees (Didion 2006; Gellman 2008; Murphy and Purdum 2009; Pfiffner 2009).

Cheney and his office remained heavily involved in programs for enhanced interrogation. Cheney participated in the decisions to use waterboarding and other enhanced interrogation techniques. He pressed the Justice Department to issue a memorandum approving forms of torture (Shane and Johnston 2009). He briefed selected congressmen and was viewed on the Hill as "ground zero" on the issue (Kane and Warrick 2009). Cheney defended those decisions as a "no-brainer" (Cheney 2006) and justified them as based on "sound" legal opinions to use "reasonable" techniques to "acquire good intelligence." The actions were consistent with the constitutional obligation of Bush and Cheney "to protect and defend against all enemies, foreign and domestic"; it would have been "unethical or immoral" not to do "everything we could in order to protect the nation" against a repeat of 9/11 (Cheney 2008a). Cheney lobbied unsuccessfully against the McCain amendment banning torture during the second part of 2005. When Bush signed the 2005 Detainee Treatment Act, which limited interrogation practices, he issued a signing statement which repeatedly invoked the president's constitutional power to modify the provisions in the act (Bush 2005; Pfiffner 2008; Savage 2007). The signing statement seemed to reflect Addington's hand and Cheney's influence (Goldsmith 2007; Mayer 2008; Savage 2007).

Conclusion

If anything, the events of 9/11 reinforced Cheney's belief in a "strong, robust executive authority." In December 2005, he acknowledged that "especially in the day and age we live in, the nature of the threats we face.., the President of the United States needs to have his constitutional powers unimpaired, if you will, in terms of the conduct of national security policy" (Cheney 2005a).

Cheney's views a month before leaving office were equally expansive. In wartime, the president's powers relative to the other branches were "very significant." Cheney said that the commander in chief power entailed not simply command of the military but also "collecting intelligence," which means "you're fully justified in setting up a terror surveillance program to be able to intercept the communications of people who are communicating with terrorists outside the United States." Moreover, Cheney thought the president had constitutional power to "have a robust interrogation program with respect to high-value detainees." As a "general proposition," Cheney thought that presidential action during wartime to protect the country was legal (Cheney 2008b).

Cheney and the Escape from Accountability

After 9/11, Cheney pursued policies in the war on terror that were predicated on an expansive theory of presidential power. Programs that Cheney advocated stretched conventional notions of executive power and contracted means of holding the executive accountable for its conduct. Cheney and his office were integrally involved in creating and overseeing programs related to the war on terror; accordingly, the expansion of presidential power also increased the vice president's power.

Yet Cheney's enhanced vice presidential role was not simply, or even primarily, a product of the war on terror. On the contrary, Cheney used his enhanced vice presidential role to push that expansive conception of presidential power. Cheney's extraordinary influence traced in substantial part to factors previously identified--his relationship with Bush, the opportunity to fill vacuums created by Bush's leadership style, the resources that Cheney brought to the office and the value of those resources to the administration, Cheney's role in the transition, Cheney's staff, and his lack of presidential ambitions.

Cheney's exercise of unprecedented vice presidential power was accompanied by an unprecedented absence of vice presidential accountability. Conventional forms of vice presidential accountability, which had constrained Cheney's recent predecessors, eroded during the Bush years. This development left Cheney, and the Bush administration, less subject to informal administrative and political checks that in the past had contributed to restraining government conduct and promoting deliberative decision making. The absence of these traditional checks during much of Cheney's tenure enabled him to operate free from normal sources of accountability that had restrained prior officials of the executive branch.

In considering the demise of vice presidential accountability during the Bush-Cheney years, it is important to recognize three attributes that give the vice president a unique standing compared to other presidential advisors and administration insiders. First, a vice president is not simply an advisor, but the occupant of a constitutionally prescribed office who can claim a mandate traceable to the electorate. To be sure, most Americans weigh most heavily the choice between competing presidential, not vice presidential, candidates. Nonetheless, the vice president's place on the ticket, role in the campaign, and receipt of at least 270 electoral votes furnishes him or her with a legitimacy and status second only to the president.

In addition to his constitutional stature, the vice president's position is enhanced by being the first presidential successor who stands a proverbial heartbeat away from the presidency. Unlike others, the vice president may, at any minute, become president. That contingent significance commands deference.

Finally, and perhaps most importantly, the vice president cannot be dismissed during the four-year term that the Constitution prescribes. Bush could, and essentially did, dismiss Powell, O'Neill, Rumsfeld, Card, and many others. He could not remove Cheney.

Historically, these three attributes--the electoral connection, the successor possibility, and tenure--have been both a blessing and a curse for the vice presidency. To be sure, they enhanced the vice presidency and gave its officer a status that other administration officials could not claim. On the other hand, they also constituted part of the inherent vice presidential baggage that inhibited presidents from giving vice presidents meaningful responsibilities. Even as President Carter and his successors gave, and their vice presidents accepted, significant assignments, they did so in a manner that was sensitive to the need to maintain the office as one that was accountable to the president and subject to other forms of informal constraint.

Those conventional modes of accountability largely disappeared during much of the Cheney vice presidency. The following discussion outlines the erosion of various factors that previously had contributed to vice presidential accountability.

Absence of Presidential Supervision as a Result of Bush's Style of Leadership

Not only did Bush's leadership style afford Cheney the opportunity to play an important operational role, but also it helped make Cheney less accountable to presidential oversight than any vice president in history. Two aspects of Bush's leadership style fostered an unaccountable vice presidency: his habits and method of delegating power to the vice president, and his lack of intellectual engagement in problems of the presidency.

Bush was not the first modern president to delegate heavily to subordinates. Ronald Reagan focused on large concepts while leaving details and operations to others. But Reagan's delegation of power differed in critical respects from Bush's approach. Reagan relied on a series of strong chiefs of staff to operate the executive branch and imposed various checks on them. Unlike a vice president, Reagan's chiefs of staff served at the president's pleasure, and three of the four (James Baker, Howard Baker, and Kenneth Duberstein) were enormously sensitive political operators who were scrupulous in their habits of deference to him and served as honest brokers for policy. (The imperious behavior of the fourth, Donald Regan, ultimately cost him that role.)James Baker, Reagan's chief of staff during his first term, worked in tandem with long-term Reagan loyalists Ed Meese, Mike Deaver, and, for part of the time, William Clark. Bush, however, delegated authority to a stronger vice president who was not subject to effective internal checks until the latter part of Bush's second term, when Bolten replaced Card as chief of staff.

Moreover, Bush was less equipped than other presidents to supervise his vice president because of his lack of intellectual engagement in his work as president. Unlike Carter, George H. W. Bush, Clinton, and Barack Obama, Bush did not immerse himself in policy. Unlike Reagan, he had not developed and refined views on critical issues by writing and speaking on them for a long period of time.

Some Bush advisors recognized this limitation in his leadership. Scott McClellan wrote that Bush was "smart enough" but thought he led "based more on instinct than deep intellectual debate" (2008, 145). O'Neill thought that Bush's inexperience, especially compared to that of other presidents with whom he was most familiar, Ford and George H. W. Bush, accentuated the need for a functioning policy process. Whereas other presidents had insisted that departments provide them with "Brandeis Briefs" on major issues, Bush tended to receive input primarily from a small circle of political advisors (Suskind 2004) and resisted detailed briefings. Administration officials soon learned that their briefings, whether written or oral, must be succinct to hold the president's attention. Bush received relatively little information; that deficit, coupled with his penchant for intuitive decision making, made him ill equipped to assess and challenge proposals presented to him.

Bush structured his government so that many important disputes never came to his attention. He depended on Cheney for the operation of, and for information regarding, major governmental portfolios. Cheney guided Bush through his daily intelligence briefing. Cheney, not Bush, met with congressional leaders regarding critical legislation. Cheney, not Bush, often dealt with other principals of the executive branch regarding a host of important matters, including intelligence, national security policy, and budgetary matters. Ashcroft's strong disagreement with the proposed order establishing military commissions was voiced to Cheney, not to Bush. Appeal of Office of Management and Budget decisions went to Cheney and his group, not to Bush.

The near mass exodus from the Justice Department in March 2004 illustrated the extent to which Cheney often operated without presidential supervision. Bush apparently was unaware of the strong opposition in the Justice Department to the warrantless surveillance program until senior government officials were preparing their letters of resignation. It was largely fortuitous that the mass resignations were narrowly averted at the eleventh hour.

Because Bush delegated important areas of responsibility to Cheney and depended on the vice president for much of his information, Cheney was relatively free to act autonomously within the executive branch. Near the end of his term, Cheney said that the "most important thing that any Vice President needs to know is to understand what it is that the President he works for wants him to do. That really will determine everything in terms of the kind of meetings he attends, the policy issues he gets involved in, the kind of assistance or advice he is asked for by the President and others... But to the degree of influence you have, whether or not it's a consequential vice presidency, if you will, is going to depend almost solely upon the President and what he wants" (Cheney 2009b). To a great extent, Cheney exercised power that Bush gave him. He did so with limited accountability because Bush allowed it.

Absence of Policy-Making Process

Bush failed to establish or adhere to any regular policy-making process, and that absence removed an important vehicle for holding Cheney accountable for the quality of his counsel. The scholarly literature on presidential decision making emphasizes the importance of a policy process that exposes the president to competing perspectives regarding policy alternatives (Pfiffner 2009). Such a process is critical to ensure that competing views are presented and subjected to scrutiny. Cheney dominated decision making in key areas in the Bush administration (Pfiffner 2009), and he resisted the establishment of a policy-making process in the White House that would ensure that presidential decisions followed a full airing of competing views. Cheney's positions prevailed often because those likely to articulate competing views were excluded from meetings or not given fair opportunity to present their objections.

Some key administration figures recognized the problem posed by the absence of a policy-making process early in the administration. Beginning during the transition and repeatedly during the first years of the administration, O'Neill spoke to his old friend Cheney frequently regarding the problem. O'Neill expressed his concern that the White House establish a policy process in domestic and economic affairs that included honest brokers and rigorous examination of competing proposals. He encouraged Cheney to act to remedy the situation. On each occasion, Cheney listened, characteristically noncommittal and never disagreeing with O'Neill's points, yet no process was established. Ultimately, O'Neill concluded that the absence of such a process reflected Cheney's preference and design (Suskind 2004).

The absence or perversion of process became more acute following 9/11. Cheney or his office excluded key stakeholders from the deliberations that led to the domestic surveillance program and the military commission order. Cheney and his associates sought to insulate programs from review by excluding doubters and denying them access to information. After 9/11, Cheney's office sought to circumvent the Foreign Intelligence Surveillance Act "in secret based on flimsy legal opinions that they guarded closely so no one could question the legal basis for the operations" (Goldsmith 2007, 181). Similarly, Bush decided to hold the Geneva Conventions inapplicable to alleged al-Qaeda or Taliban detainees in early 2002 before he heard from the State Department (Mayer 2008; Pfiffner 2009).

Cheney not only played an important role in promulgating these and other programs, he and his office were also instrumental in protecting them from scrutiny. Rather than welcoming discussion regarding important programs, Cheney's office acted to chili reexamination of policies that it supported.

In adopting this approach, Cheney's office deviated by 180 degrees from the philosophy that Mondale espoused in suggesting that the vice president could serve as an important presidential advisor. In 1976, Mondale wrote to Carter that the "biggest single problem" of recent administrations had been the failure to expose the president "to independent analysis not conditioned by what it is thought he wants to hear or often what others want him to hear." Mondale promised to offer Carter "impartial advice" and to "help assure that you are not shielded from points of view that you should hear." Mondale pledged to "help maintain the free flow of ideas and information which is indispensable to a healthy and productive administration" (Mondale 1976). True to his pledge, Mondale worked to expose Carter to a wider range of advice. He often did not speak at larger meetings that Carter attended for fear that his expressions might deter others from expressing competing views (Goldstein 2008).

Cheney's approach was antithetical to the one that Mondale followed. Cheney's office did not simply avoid meaningful congressional oversight. It structured decision making within the executive branch regarding key components of the war against terror in such a manner to avoid debate. The aversion to process allowed Cheney's office to advance dubious proposals without subjecting them to the gauntlet of discussion. Cheney dominated the advising system, and his views carried the day, on important issues relating to the war on terror but the result was flawed decisions (Pfiffner 2009).

Cheney's Lack of Vice Presidential Self-Restraint

Bush's leadership style and indifference to process created vacuums that afforded Cheney the chance to exert historic influence. Cheney seized, and exploited, those opportunities. Cheney's lack of self-restraint represented a third way in which conventional modes of accountability eroded. Other vice presidents had acted with considerable restraint in performing their functions. Mondale, for instance, would not become involved with activities without first getting Carter's permission. When he did engage the bureaucracy, he was careful to pursue Carter's objectives, not his own agenda. By contrast, Cheney assumed an aggressive approach that manifested itself in a variety of settings.

As an advisor, Cheney spent enormous amounts of time alone with Bush. Because vice presidents are somewhat constrained from advising in larger meetings, in part to avoid leaks, vice presidents need private access to the president in order to perform their advising role. When a president is as uninformed and as indifferent to process as was Bush, the vice president's access might provide the opportunity to influence policy without his views being subject to any meaningful review. The great disparity in knowledge and information between Bush and Cheney gave Cheney an opportunity to dominate policy without his views being subject to scrutiny.

Cheney also was able to use his stature to extract favorable responses from the bureaucracy. Cheney frequently traveled to Langley or other intelligence agencies for briefings or to review data. Some agents claimed they felt pushed to provide analysis tailored to Cheney's policy preferences. When the inspector general of the CIA issued a report suggesting that the CIA's enhanced interrogation program was illegal, Cheney summoned him to his office (Mayer 2008).

Cheney also used his public platform as vice president to force administration policy. McClellan said Cheney was "unable to stay on message" to Bush's detriment (2008, 138). Cheney often made statements that went beyond available intelligence or beyond decisions Bush had made. For instance, in December 2001, he cited a report, subsequently discounted, that the mastermind of the 9/11 attacks had traveled to Iraq for meetings. He claimed that Iraq had "robust" programs to develop weapons of mass destruction (Cheney 2001d; see also Cheney 2001e), an assertion that McClellan said pushed "the envelope of credibility" (2008, 136).

In August 2002, Cheney became impatient as Bush seemed inclined to seek a United Nations resolution as a prelude to war and as Republican luminaries such as Henry Kissinger, James Baker, and Brent Scowcroft raised doubts regarding the advisability of unilateral American military action. Cheney told Bush that he wanted to speak out on Iraq without telling Bush what he would say (Woodward 2004). Cheney's speech, to the Veterans of Foreign Wars convention, claimed that "there is no doubt that Saddam Hussein now has weapons of mass destruction. There is no doubt he is amassing them to use against our friends, against our allies, and against us." Accordingly, Cheney told the VFW that it would be useless or even counterproductive for United Nations inspectors to return to Iraq. "[A] person would be right to question any suggestion that we should just get inspectors back into Iraq, and then our worries will be over," Cheney said. "Saddam has perfected the game of cheat and retreat, and is very skilled in the art of denial and deception. A return of inspectors would provide no assurance whatsoever of his compliance with U.N. resolutions. On the contrary, there is a great danger that it would provide false comfort that Saddam was somehow 'back in his box' " (Cheney 2002d).

The very option that Cheney derided was under active consideration. Cheney's remarks, Bob Woodward later wrote, "just short of a declaration of war, were widely interpreted as administration policy" (2004, 164). The New York Times described Cheney's speech as "the administration's most forceful and comprehensive rationale yet for attacking Iraq" and quoted administration officials as saying that Cheney's comments reflected Bush's thinking (Bumiller and Dad 2002). Powell was upset at Cheney's effort to hijack policy (Woodward 2004). In this instance, Cheney's ploy was not entirely successful. Bush later called for a United Nations resolution predicated on sending inspectors back to Iraq. Yet Cheney's willingness to stray publicly from administration policy illustrated one way in which he did not honor traditional notions of vice presidential restraint.

Cheney's staff did not act with the circumspection characteristic of most vice presidential staffs. In the aftermath of 9/11, Addington dominated sessions among administration lawyers and conducted himself in a manner that inhibited discussion. When John Bellinger arranged to meet with Gonzales to point out that a CIA report suggested that the United States was committing war crimes by treating detainees in an inhumane manner at Guantanamo, Addington showed up, controlled the conversation, and insisted that there would be no review of Bush's decision to classify all at Guantanamo as enemy combatants who were entitled to no process. When Goldsmith advised Gonzales and Addington that the Fourth Geneva Convention protected terrorists in Iraq, Addington became angry and "barked," "The President has already decided that terrorists do not receive Geneva Convention protections.... You cannot question his decision." Bush's decision related to al-Qaeda and Taliban terrorists under the Third Convention, a different question (Goldsmith 2007, 41-42).

More than two years later, after Matthew Waxman, a deputy assistant secretary of defense, convened a Pentagon meeting in which a number of military figures advocated a return to Geneva standards, he was summoned to a White House meeting with Libby and Addington. They berated him for raising the issue, called his action "an abomination," and told him the issue was forever closed (Gellman 2008, 351-52; Mayer 2008, 322). When Goldsmith advised Gonzales and Addington that the Justice Department could find no legal basis for an important counterterrorism program, Addington replied in "disgust" that Goldsmith would be responsible for the deaths of those "who die in the next attack" (Goldsmith 2007, 71; Savage 2007, 336). Others hesitated to differ with Addington; his aggressive style made disagreeing unpleasant, and Cheney's implicit backing lent weight to Addington's counsel (Goldsmith 2007). Moreover, Cheney's office, through Addington, opposed the promotion for an official with whom they had disagreed (Comey 2007a; Gellman 2008; Goldsmith 2007; Montgomery 2009).

Cheney's Lack of Presidential Ambition

Cheney's lack of ambition to succeed Bush as president was, as Bush and Cheney suggested, significant, but not primarily because it committed Cheney to follow Bush's agenda as they claimed. On the contrary, Cheney's lack of presidential aspirations made him and/or the administration less accountable in at least three respects.

From an administrative standpoint, Cheney's lack of political ambition made him freer to deviate from Bush's policies than if he sought to succeed Bush. The political ambition of most vice presidents provides them with added reason to advance the agenda of the chief executive. They hope their loyalty will be reciprocated when it comes time to make their own run for the White House, and that the administration's success will improve their own prospects. That motivation did not constrain Cheney. Cheney's lack of ambition for future political advance freed him to follow his, not Bush's, agenda on occasions and to push policy in directions he preferred. In essence, Bush and Cheney had it backward when they celebrated the virtues of Cheney's lack of ambition as committing him to Bush's agenda. On the contrary, it liberated him from having to follow Bush's lead. Not surprisingly, administration officials seemed to advance that argument less often during the second term than during the first.

Cheney's lack of presidential ambition also made him less politically accountable. Cheney had less reason than his predecessors to travel the country and meet with voters, especially during the second term. He did not need to spend time doing the things that aspiring presidents do, such as meeting with a range of citizens, holding press conferences and media interviews, or considering public opinion. Cheney had less reason than other vice presidents to avoid policies that were politically unpopular. "Maybe you could say that his political antennae aren't up as high as they would be if he were running for president himself," Andrew Card said in 2006 in something of an understatement (Purdum 2006).

Not surprisingly, Cheney's standing in public opinion polls cratered. A CBS News poll during the first months of 2006 found Cheney's favorability rating to be 18%, a score that columnist Richard Morin found to be lower than O. J. Simpson's standing after his trial for allegedly murdering his wife and another man, lower than Josef Stalin's standing with Russians, and lower than Vice President Spiro Agnew's ratings in his last days in office (Morin 2006). Other poll results, though not quite so dismal, confirmed Cheney's lack of popularity outside a small segment of the Republican base.

Finally, Cheney's own lack of political ambitions made the Bush administration less democratically accountable during the second term than other recent administrations. Prior vice presidents had sought to use the vice presidency as a springboard to a presidential race. That continuing reality helped mitigate the antidemocratic impact of the Twenty-second Amendment, which imposed term limits on the president. Even during the second term, the vice president's ambitions for a "third term" gave the administration reason to weigh popular opinion in fashioning policy.

That incentive was missing during Bush's second term. Cheney said in February 2007 that "I'm not running for office. I'm not worrying about what the folks in Iowa are going to say in the caucuses in January of next year. I'm there to do a job, and that's to call them as I [see them], to help the President to the best of my ability be the best President he can to address the issues of the day. We have tough issues. It's a tough job. And his job is tougher than my job. If you worried about the polls, you'd be absolutely traumatized and unable to get anything done" (Cheney 2007). Cheney argued that his "guiding principle" was to do what he "thought was necessary and essential for the country," not "to achieve the highest level of polls that we could during the course of this administration" (Cheney 2008b). A March 2008 exchange with Martha Raddatz of ABC News reflected Cheney's aversion to public opinion. When Raddatz observed that most Americans opposed the war in Iraq, Cheney replied, "So? .... [Y]ou don't care what the American people think?" Raddatz inquired. "No, I think you cannot be blown off course by the fluctuations in the public opinion polls," Cheney replied (Cheney 2008c).

There is, of course, something admirable about leaders who put their country's well-being above their political careers. Yet democracy does not allow leaders the luxury of responding with an indifferent "So?" when confronted with the fact that the public has rejected their central policy objectives. Democracy presupposes a continuing relationship between leaders and citizens. Policy is only sustainable if it commands public support; other governmental figures are likely to resist initiatives that lack popular approval. Moreover, the absence of public support may signal that leaders have failed to adequately defend policy or that the policy is inherently indefensible. Cheney's lack of political ambition, coupled with his indifference to public opinion, excused him from the conventional, yet vital, political activity of engaging in a continuing dialogue with the public.

Absence of Media Engagement as a Constraint

Cheney's lack of presidential ambition contributed to his disengagement from media interactions. Although interaction with the media furnishes one means of holding most political leaders accountable, Cheney spent relatively little time with the press. At times, he appeared on the Sunday talk shows or on the News Hour with Jim Lehrer to serve as a public advocate for the war on Iraq or other administration programs. But Cheney conducted few press conferences, generally on overseas trips, and his interviews occurred irregularly and were concentrated on Fox News and other conservative outlets.

Initially, Cheney's aversion to engaging the media might have reflected his desire not to overshadow Bush or a concern by Bush's public relations personnel that frequent Cheney interviews would diminish Bush (Hayes 2007). Cheney's appearance on Meet the Press on September 16, 2001, when he discussed his dominating role on September 11, 2001, had that effect, especially when Cheney's central role was juxtaposed with Bush's absence from the White House as he moved around the country for most of the day. Even if this consideration influenced early strategy, it is hard to believe it continued to be a factor as the country became more accustomed to Bush as president.

Cheney claimed that he reduced his media accessibility to protect his role as presidential advisor. Cheney called that practice "a deliberate decision on my part" that was designed to protect his credibility as an advisor (Cheney 2009c; see also Hayes 2007, 505). "But it's a very conscious decision [on] my part that the job I've had as Vice President can best be done if I'm not out publicly commenting on all of these issues," Cheney told Martha Raddatz. Cheney claimed that the media "always ask" about the content of his advice and whether Bush had followed it, questions he would not answer. "My value to him is the fact that we can talk privately, I can tell him what I think. Sometimes he agrees, sometimes he disagrees." Cheney's value was "greater because he knows and everybody else knows I'm not going to be in the front pages of the paper tomorrow talking about what I advised the President on a particular issue" (Cheney 2008d).

That explanation seems suspect, to say the least. The media does not often ask vice presidents to divulge the advice they give the president, and those who have reached the nation's second job are generally pretty nimble in avoiding or recasting questions they prefer not to answer. Most vice presidential interviews present occasions to explain presidential initiatives, not to promote the vice president at the expense of the chief executive. Cheney could have spoken to the press without discussing the advice he had given the president. Cheney's recent predecessors had managed to interact with the media without compromising their ability to "talk privately" with the presidents they served.

Rather, Cheney's course reflected an aversion to the press. This attitude was manifested on many occasions and in different ways. For a while, Cheney barred New York Times reporters from his plane. His office pushed, unsuccessfully, to impose stricter criminal sanctions for government officials who made unauthorized disclosures (Lichtblau 2008). In the aftermath of the incident in which Cheney accidentally shot a fellow hunter, Cheney avoided releasing the story for hours; when he did, it was given to a small, local newspaper rather than to a national outlet. Surely Cheney and his associates could not have thought that the first instance in which a vice president shot another person in more than 200 years was not news. Cheney's lack of presidential ambitions removed a reason to burnish his public image through media availability and freed him to follow his dispositions regarding media inaccessibility. In so doing, he escaped one of the types of activities that have helped make past vice presidents accountable.

Absence of Bureaucratic Restraint as a Form of Vice Presidential Accountability

Cheney was subject to fewer bureaucratic restraints than were other recent vice presidents. On occasion, other administration figures did push back against Cheney--Powell on Iran policy, Comey on warrantless surveillance--but Cheney appears to have faced less internal resistance than most of his predecessors for much of the life of the Bush administration. A number of the features already identified help explain this phenomenon. Bush's leadership style made many in the administration reluctant to appeal Cheney's decisions to him. Thus, Ashcroft did not take his unhappiness with the military commission order to Bush, nor did those who lost in the budget review process before Cheney's committee ask Bush to intervene (Gellman 2008). Similarly, Bush's aversion to process made it far more difficult for others to persuade Bush to follow their advice, not Cheney's. Cheney had unlimited access to Bush, others did not, and Bush was simply not interested in exposing himself to a range of sources of information and ideas.

In addition to these other factors, Cheney's control of the transition allowed him to create a government in which he was less accountable than prior vice presidents. His ability to place allies in important positions meant the government was loaded with his friends and those who shared his outlook, and there were fewer people who would push back against him. Often, when Bush solicited Cheney's views, Cheney was simply blessing recommendations that he or his allies had originated.

When the events of September 11 gave the war on terror paramount importance, Cheney, through Addington, was able to dominate legal policy regarding presidential power and the laws of war. The leading figures in Bush's administration were not lawyers, and Attorney General Ashcroft increasingly became an outsider as the first term wore on. Bush's first two counsels, Gonzales and Harriet Miers, were presidential cronies who were unversed in the legal areas which became most important.

Addington filled this vacuum. He had encountered constitutional and statutory issues relating to national security throughout his career as a government lawyer, as had another Cheney ally, Timothy Flanigan, whom Cheney had conveniently installed as Gonzales's deputy. They were reinforced by the relationship they developed with John Yoo at the Office of Legal Counsel and William Jim Haynes II, general counsel of the Department of Defense and an alumnus of the Cheney Pentagon (Gellman 2008; Savage 2007).

Addington was able to dominate legal policy because of his unfettered access to Gonzales and Miers and the work of their office. Addington received copies of all documents sent to Gonzales and Miers, and he was invariably present when they conferred regarding an important legal issue (Goldsmith 2007). He saw executive orders before they reached Bush, and often substantially revised documents after others had already seen them. When Gonzales became attorney general during Bush's second term, Cheney's office was again able to influence the work of the Office of Legal Counsel, a relationship that had been interrupted during Goldsmith's brief tenure (Mayer 2008; Savage 2007).

Addington's views had weight because of the common perception that he spoke for Cheney. Others recognized him as Cheney's "eyes, ears, and voice." Those hearing Addington's views in Gonzales's office or elsewhere could reasonably assume they were hearing a preview of what Cheney would later tell Bush (Goldsmith 2007). Cheney's clout with Bush gave those who preferred to be on the winning side on legal issues reason to concur in Addington's prescriptions. His power was largely derivative of Cheney's influence.

Absence of Constraint of Consensus Politics

Cheney's rejection of any form of consensus politics, in dealing with both Congress and other nations, removed another important form of accountability. Cheney's rejection of the politics of consensus reduced the extent to which he needed to consider opposing views and either persuade or accommodate them. Although President-Elect Bush made overtures that suggested he would seek bipartisan consensus, Cheney rejected all suggestions that Bush pursue consensus politics even before the inauguration. Appearing on Face the Nation in December 2000, Cheney declared "silly" the idea that the narrowness of Bush's Electoral College victory should cause them to "fundamentally change our beliefs" (Suskind 2004, 9). When Cheney met with a handful of moderate Republican senators from the Northeast shortly after the Supreme Court decided Bush v. Gore, he quickly rejected their suggestions that the new Bush administration modify its positions to seek bipartisan consensus (Draper 2007). Cheney was undeterred when his approach drove Senator Jim Jeffords from the Republican Party, thereby costing the Republicans control of the Senate during its first two years. Two years later, Cheney justified resurrecting the idea of reducing the tax on corporate dividends, an idea that Treasury Secretary O'Neill viewed as economically unsound, by asserting, "We won the midterms. This is our due" (Suskind 2004, 291). When he spoke to the cabinet following Bush's reelection, one of the narrowest in history, Cheney applauded Bush's initial decision not to "trim the sails" and suggested that the 2004 election provided a mandate "to complete the task" (McClellan 2008, 237), a somewhat optimistic interpretation in view of the narrow dimensions of the margin.

Cheney demonstrated similar dispositions in international relations. Cheney tended to have little patience with the notion that America should consult other nations in formulating foreign policy. He was the primary opponent of the notion that the United States should seek a United Nations resolution before attacking Iraq (Woodward 2004).

Noncompliance with Record-Keeping Requirements

Cheney's aversion to accountability became most conspicuous in his efforts to escape compliance with legal requirements. Cheney resisted complying with federal rules requiring that government offices report to the Information Security Oversight Office of the National Archives regarding the handling of classified materials. The office of the vice president had complied through 2002, at which point Cheney's office argued that it was not subject to an executive order establishing a uniform system of protecting classified information by claiming that the office of the vice president was not an entity within the executive branch (Baker 2007; Isikoff 2007; Shane 2007; Waxman 2007). When officials at the Information Security Oversight Office asked the attorney general to rule that the vice president was subject to the rules, Addington recommended eliminating the office by executive order (Isikoff 2007; Montgomery 2009).

Cheney's position evoked widespread condemnation and mockery. Representative Rahm Emanuel, then the third-ranking Democrat in the House, filed legislation to remove Cheney's funding of $4.8 million from the executive branch budget (Abramowitz 2007; Allen 2007). In response, Addington reserved, but backed off, his constitutional claim, interposing instead a new justification for exemption based on a reading of "agencies" in the executive order (Addington 2007). Less than two months later, Cheney's office reasserted the position that it was not part of the executive branch, this time in resisting a subpoena relating to documents regarding warrantless surveillance (Coffin 2007).

Cheney's position seemed inconsistent with positions he previously had taken. For instance, in Cheney's appeal to the Supreme Court in Cheney v. United States District Court for the District of Columbia, he essentially characterized himself as an actor in the executive branch. Cheney's legal filings identified himself as a "close" and "senior" presidential advisor acting within the executive branch "to fulfill core Executive Branch functions under Article II of the Constitution" (Olson et al. 2004, 8, 23-24 n. 2). Cheney suggested that he should enjoy the same immunity from a mandamus action as the president (Olson et al. 2004, 25-26). Cheney should benefit from the presumption of regularity that attaches to conduct of officials of the executive branch, particularly those of the rank of president and vice president (Olson et al. 2003, 17-18). In the dispute with the Information Security Oversight Office, however, he claimed, in part, that he was not part of the executive branch to escape reporting requirements regarding classified records. His ability to exalt form over substance flowed in part from his lack of political ambition, which minimized the consequences to him of adverse political reaction.

Some suggested that Cheney was creating his own branch of government (Duffy 2007a). More precisely, Cheney advanced the claim that he straddled the two political branches as a way to escape accountability. When it was expedient to do so, he claimed the privileges associated with each branch but denied membership in either to avoid disclosure duties imposed on both.

Conclusion

Cheney began to lose some influence during the second term. Gellman traces Cheney's decline to his mishandling of the reauthorization of the warrantless surveillance program in March 2004, when Bush saw, perhaps for the first time, the potential political consequences of allowing Cheney such latitude in view of the low priority the vice president gave political considerations (Gellman 2008). Yet Cheney retained formidable power even after that date. When Gonzales replaced Ashcroft as attorney general and Miers became the new White House counsel, Cheney's influence over legal policy was restored. His office blocked the appointment of Patrick Philbin to head the Office of Legal Counsel--he had worked with Goldsmith on revising Yoo's memoranda--and supported that of Stephen Bradbury, who wrote an opinion authorizing CIA interrogators to use numerous techniques. When Comey objected to Bradbury's memoranda, Gonzales told him he was under enormous pressure from Cheney to acquiesce (Mayer 2008). Cheney played a leading role in creating the short list of Supreme Court candidates and in interviewing John Roberts and Samuel Alito (Gellman 2008; Savage 2007).

Yet other events eroded Cheney's position. In March 2006, Bush replaced Card as chief of staff with Bolten, who asserted more control over White House decision making. In November 2006, Bush fired Cheney's ally, Rumsfeld, over Cheney's objections, replacing him with the more independent-minded and pragmatic Robert Gates. Cheney began to lose some internal arguments in a new national security context in which Rumsfeld no longer reinforced his predilections, in which Gates was more independent, and in which Rice had greater influence with Bush than had Powell. Rice persuaded Bush to take a less bellicose approach to Iran and North Korea, contrary to Cheney's urgings (Duffy 2007b).

Cheney's standing was also hurt by two unique events--the trial and conviction of Libby, Cheney's chief of staff, for perjury, with its embarrassing disclosures about Cheney's office, and the incident in which Cheney shot a fellow hunter. Both cast Cheney in a negative light and eroded his public standing. The Iraq War, which Cheney had championed, went poorly, as many of the events that Cheney had confidently predicted (e.g., the discovery of weapons of mass destruction, heroic welcome by the Iraqi people) did not materialize. Cheney's popularity reached record lows. Although Bush commuted Libby's sentence, he refused, despite Cheney's persistent efforts, to pardon him (Calabresi and Weisskopf 2009).

Notwithstanding these defeats, Cheney exercised a level of power as vice president that would have exceeded the imagination of virtually anyone who has held, or thought about, that office during its 220-year existence. Yet as striking as the power Cheney exercised was Cheney's ability to insulate himself from the sort of informal checks which had held past vice presidents, and other presidential subordinates, accountable. Had some of the checks remained in place, Cheney's authority would have been lessened and policy making in the Bush administration might have taken a different course. A different president would not have granted Cheney such autonomy or been so indifferent to process or failed to recognize the implications of placing the initial transition in the vice president's hands. A different vice president would have exercised more self-restraint or would not have been so oblivious to the impact of decisions on his or her political future or so indifferent to bipartisanship or multilateralism or would not have viewed process as something to manipulate rather than as a vehicle to promote deliberative decision making. The combination of Bush and Cheney produced a vice president who was less accountable than any other in modern times.

The Cheney vice presidency developed in the unique way it did because of the confluence of a variety of factors which maximized vice presidential power while minimizing vice presidential accountability.

The war on terror was certainly among those factors. It contributed to the exercise of sweeping presidential, and vice presidential, powers during the Bush-Cheney years. Yet before and independent of the events of September 11, 2001, the course was set to aggrandize the presidency and to create a largely unaccountable Cheney vice presidency.

It would be a mistake to regard the Cheney service as an indictment of the vice presidency. That institution, like any other political office, is subject to abuse and carries no guarantee of exemplary performance. Yet the trajectory of the office, especially beginning with the Mondale period, is promising and has represented one of the real success stories in American government. The continuing challenge is to construct in each administration a menu of activities which will allow the vice president to contribute as an advisor and troubleshooter in a way which makes his or her exercise of power accountable. The failure of Bush and Cheney to do so constitutes one of the failures of their tenure.

AUTHOR'S NOTE: I am grateful to Josh Goldstein and James Pfiffner for comments on earlier versions of this article and to Jessie Gasch and Margaret McDermott for research assistance. Conversations with Nigel Bowles helped me formulate some of my ideas.

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JOEL K. GOLDSTEIN

Saint Louis University School of Law

(1.) The members were the vice president, secretary of the treasury, director of the Office of Management and Budget, chief of staff, and director of the National Economic Council.

(2.) Libby's notes from 10:15 A.M. to 10:18 A.M. state, "Aircraft 60 miles out, confirmed as hijack-engage? VP? Yes. JB[Joshua Bolten]: Get President and confirm engage order" (9/11 Commission Report 2004, 465 n. 220).

(3.) Indeed, all four later ran for the presidency. Mondale, Bush, and Gore received their parties' presidential nomination, Bush was elected in 1988, and Gore won the popular vote in 2000. Quayle pursued presidential candidacies in 1996 and 2000 without success.

(4.) In the Washington Post/ABC News Poll, for instance, Bush's ratings peaked at 92% favorable to 6% unfavorable on October 8, 2001, up from 55%-41% on September 6-9, 2001. Cheney's peaked at 69%-20% in the Harris Poll of October 17-22, 2001, up from 50-37% in the August 15-22, 2001 poll. See poll data on Bush at http://www.pollingreport.com/BushJobl.htm and on Cheney http://www.pollingreport.com/C.htm.

Joel K. Goldstein is the Vincent C. Immel Professor of Law at Saint Louis University School of Law and the author of The Modern American Vice Presidency, as well as many other books and articles about the presidency, vice presidency, and constitutional law.
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Title Annotation:The Contemporary Presidency; Dick Cheney
Author:Goldstein, Joel K.
Publication:Presidential Studies Quarterly
Article Type:Report
Geographic Code:1USA
Date:Feb 25, 2010
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