Darth Cheney

Q. How do you know when Dick Cheney is lying?

A. When his lips are moving.

When Dick Cheney emerged from his darkened lair to spread his execrable lies, one could almost see them spread like a foul slick on the seas of reality. This man is malevolent. His assertion was that "the Terrorist Surveillance Program rests on firm legal ground". Fortunately for all of us, there are good people like Glenn Greenwald and Anonymous Liberal with the legal training and the articulation (and the stomach) to parse Cheney (and in in Glenn's post, do it line-by-line) and debunk his vile bunkum.

Anonymous Liberal:

It’s hard to understate just how wrong Cheney is as a matter of law and how deeply delusional he should sound to anyone with even a cursory knowledge of the legal issues involved here. But then again, this is the Federalist Society, so naturally his speech was interrupted repeatedly by applause.

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Rather than be repetitive, let me just add that if Cheney truly is confident that the “Terrorist Surveillance Program” rests on “firm legal ground,” then he is utterly detached from reality and entirely insulated from the people actually running things in the West Wing. After all, there’s a reason the White House has been trying so hard, post Hamdan, to secure legislation legalizing the TSP. There’s a reason why, after Hamdan, they were suddenly interested in working with Arlen Specter where they hadn’t been before. It’s because they know that, absent legislation, the program is sure to be struck down. Indeed it already has been by one court (a decision Cheney is “confident” will be overturned).

Let’s do a quick review of the relevant law. Cheney claims that the AUMF “provides more than enough latitude for these activities” and “[t]herefore the warrant requirements of the FISA law do not apply to this wartime measure.” That is just such rubbish. No serious person bought this argument even before Hamdan, but post-Hamdan, it is entirely frivolous.

The Court observed in Hamdan that “there is nothing in the text or legislative history of the AUMF even hinting that Congress intended to expand or alter the authorization set forth in . . . the UCMJ.” All you have to do is substitute “FISA” for “UCMJ” and you know exactly what the Court would say about Cheney’s argument. You’ll never see a Supreme Court precedent more precisely on point.

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But these cases most certainly do not stand for the proposition that the president can act in direct violation of a duly enacted statute. Again, as the Court made clear in Hamdan:

Whether or not the President has independent power, absent congressional authorization, to convene military commissions, he may not disregard limitations that Congress has, in proper exercise of its own war powers, placed on his powers.

Again, just substitute the phrase “conduct warrantless surveillance” for “convene military tribunals” and it’s perfectly clear what the Court thinks about Cheney’s position. Let me repeat: everyone knows this. I know that Cheney (and Addington and Yoo) have a deep desire for the law to be something other than what it actually is, but I don’t see what is to be gained by simply asserting, and with unmistakable condescension, that up is down. This sort of arrogant disregard for the actual state of the law can’t really be helpful to Cheney’s case. It’s only going to anger those in the Senate whom the White House is hoping will pass some version of the “Terrorist Surveillance Bill” passed by the House prior to the election.

Glenn:

It is worth reminding ourselves -- as the Vice President just made quite clear again-- that the pathological individuals who occupy the White House do not recognize the power of the law or the power of the courts to limit what they can do. Therefore, the fact that Democrats now control the Congress will be of little concern to them, because the most the Democrats can do is enact little laws or issue cute, little Subpoenas --- but, as the Vice President just said, they think that nothing can "tie the hands of the President of the United States in the conduct of a war." And he means that.

I hope Democrats in Congress recognize that and are prepared to do something about it. This constitutional crisis will exist until it's confronted.