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“The Patriot Act, which the president signed into law on October 2001”

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I only noticed two things that might generously be considered typos (as opposed to outright falsehoods or lies of omission) in Dick Cheney’s entire infernal tome. There’s this reference to an October 10, 2002 speech from Jello Jay Rockefeller in support of the Iraq war:

One of the most eloquent statements of the necessity of removing Saddam came from Senator Jay Rockefeller, the vice chairman of the Senate Intelligence Committee. (393)

On October 10, 2002, of course, Jello Jay was not yet Ranking Member of SSCI. Rather, Bob Graham was Chair. On October 10, 2002, Graham was saying the following about the war:

With sadness, I predict we will live to regret this day, Oct. 10, 2002, the day we stood by and we allowed these terrorist organizations to continue growing in the shadows.

[snip]

This timid resolution, I fear, will only increase the chance of Americans being killed, and that is not a burden of probability that I am prepared to take. Therefore I will vote no.

Yeah, Cheney’s misattribution probably wasn’t a typo, but instead a cynical attempt to pretend that the Democrat who had reviewed the intelligence behind the war most closely had backed the war, rather than correctly predicted it would heighten the threat of terrorism.

But I don’t think the grammatical error in the following passage, describing the relationship between Cheney’s illegal wiretap program and the PATRIOT Act (which turns 10 today), is really a typo either.

One of the first efforts we undertook after 9/11 to strengthen the country’s defenses was securing passage of the Patriot Act, which the president signed into law on October 2001.

Thus begins the passage in which Cheney describes the genesis of his illegal wiretap program. Of course, the passage should either say, “which the president signed into law on October 26, 2001,” or “which the president signed into law in October 2001.”
A minor point, but one that might suggest Cheney once had the date in there and then took it out.

You see, including the actual date would have really disrupted Cheney’s narrative, which suggests Congress passed the PATRIOT Act and only then did he begin thinking about how to use NSA to fight terrorism, which (implicitly) is why he didn’t include the illegal program in PATRIOT. After a description of how PATRIOT broke down the wall between intelligence and law enforcement in the first paragraph, Cheney continues,

I also thought it important to be sure the National Security Agency, or NSA, which is responsible for collecting intelligence about the communications of America’s adversaries, was doing everything possible to track the conversations of terrorists, so I asked George Tenet whether the NSA had all the authorities it needed. Tenet said he would check with General Mike Hayden, who was then director, and a short time later both of them came to see me in my office in the White House. Hayden explained that he had already made adjustments in the way NSA was collecting intelligence. Those adjustments were possible within NSA’s existing authorities, but additional authorities were needed in order to improve the coverage and effectiveness of the program.

A few paragraphs later, he continued.

With [Bush’s] approval, I asked Dave Addington to work with General Hayden and the president’s counsel, Alberto Gonzales, to develop a legal process by which we could ensure the NSA got the authorizations Hayden needed.

It’s only five paragraphs after Cheney’s description of PATRIOT that he provides the date that–had he actually included the date of the PATRIOT Act–would have made clear that the illegal program started before the signing of the PATRIOT Act.

On October 4, 2001, the president, on the recommendation of the director of central intelligence and the secretary of defense, which the determination of the attorney general that it was lawful to do so, authorized the program for the first time.

Of course, Cheney leaves out some key details along the way, such as that Hayden briefed the House Intelligence Committee about what he was already doing on October 1, which elicited some questions from Nancy Pelosi, then the Ranking Member on HPSCI. Cheney doesn’t mention that Bush clamped down on briefing Congress on October 5. And he doesn’t mention that Pelosi raised questions about minimization, in writing, on October 11, but never got answers to those questions.

Cheney also doesn’t mention that David Kris, who was busy drafting the PATRIOT Act, got an OLC opinion on September 25 approving the one change to FISA he deemed necessary to make with the PATRIOT.

To reveal those details–the briefings to Congress, Pelosi’s questions, Kris’ ability to get FISA changed under PATRIOT–would have made it clear that the rest of the “legal approval” process Cheney describes could have–should have–instead been done with Congress as part of the PATRIOT Act. I may be nitpicking here, writing an absurdly long post about Cheney’s use of the wrong preposition. But Cheney’s choice to bypass Congress even as it was making changes to FISA remains the biggest piece of evidence that he knew he was engaging in an illegal program that Congress would not entirely approve.

There will be a number of retrospectives in “honor” of PATRIOT Act’s birthday today. ACLU’s got a nifty infographic (the image above is just one part of it).

But ACLU’s other “tribute” to the PATRIOT–a lawsuit to force the government to reveal its secret interpretation of PATRIOT Act–and Cheney’s typographical tell that he recognizes he deliberately chose not to get Congressional approval for the illegal wiretap program are even more important.

As horrible as the PATRIOT Act is, after all, both the Bush Administration and the Obama Administration have exceeded the plain meaning of the act. For ten years, then, it has not been enough that Congress has eagerly dealt away our civil liberties. But the Executive Branch will take even what Congress won’t give.

Ten Years Ago, Anthrax Attacks–and Judy Miller–Had Huge Effect on Passage of Patriot Act

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Ten years ago today, George W. Bush signed the Patriot Act into law. (US National Archives photo)

Ten years ago today, George W. Bush signed the Patriot Act into law in what many consider to be the single biggest blow to civil liberties our country has seen.  I will leave it to others to detail the damage done to our rights, but a quick list of that damage can be seen here on the History Commons website.  Instead, what I want to focus on is the prominent role played by the anthrax attacks in the passage of the Patriot Act.

Although most would say that the Patriot Act was a direct result of the 9/11 attacks, timeline analysis shows that key events in the anthrax attacks took place during the critical days leading up to passage of the act.  The timeline I have assembled here draws on data in timelines prepared by Marcy Wheeler, History Commons (anthrax), History Commons (Patriot Act) and Ed Lake, along with my own contributions.

September 4, 2001 Exactly one week before the 9/11 attacks, Judy Miller disclosed Project Bacus, in which the Defense Threat Reduction Agency demonstrated that they could construct a functional small bioweapons facility at the Dugway Proving Grounds in Utah for under $1 million.  The facility is capable of both growing and weaponizing biowarfare agents.

September 18, 2001 Letters containing anthrax mailed to the New York Post and Tom Brokaw were postmarked one week after the 9/11 attacks.  It is presumed that the letter that lead to the death of Robert Stevens of American Media in Boca Raton, Florida was also mailed around this time but the letter itself was never recovered.

September 30, 2001 Robert Stevens begins to feel ill. Read more →

At About the Time He Subpoenaed Judy Miller, Patrick Fitzgerald Interviewed Cheney a SECOND Time

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When I recover a bit more from having finished Dick Cheney’s infernal tome, I will have more to say about it.

But I wanted to point to this piece of news in it that no one has yet noted:

I participated in two lengthy sessions with the special counsel. The first was in my West Wing office in May 2004. The second was in Jackson Hole Wyoming, in August 2004. The second session was conducted under oath so that my testimony could be submitted to the grand jury.(408)

That is, Patrick Fitzgerald interviewed Cheney not just the one time we knew about–on May 8, 2004. But he also interviewed Cheney sometime during August 2004 (at least according to Cheney), apparently in anticipation of submitting that testimony to the grand jury.

The timing of this is pretty telling.

On August 12, 2004, Fitzgerald subpoenaed Judy Miller to testify. And on August 27, 2004, he wrote an affidavit justifying his subpoena, focusing closely on Scooter Libby’s claims that he had been ordered by Dick Cheney to leak material to Miller. And we know from Cheney’s first interview that he hung Libby out to dry, denying any knowledge of such things.

The Vice President does not recall any member of his staff, including Scooter Libby, meeting with New York Times reporter Judith Miller during the week of 7/7/03, just after publication of Joe Wilson’s editorial in the New York Times.

[snip]

The Vice President advised that no one ever told him of a desire to share key judgments of the NIE with a news reporter prior to the NIEs declassification on 7/18/03.

[snip]

The Vice President cannot specifically recall having a conversation with Scooter Libby during which Libby advised the Vice President that he wanted to share with the key judgments of the NIE with Judith Miller. Although if it did occur, he would have advised Libby only to use something if it was declassified. He believed Libby would have told him about any attempts to put something out to the media prior to its declassification and the Vice President cannot recall such a discussion.

When asked if he ever had a conversation with Scooter Libby wherein Libby informed the Vice President that certain material within the NIE needed to be declassified before it could be shared externally, Vice President Cheney advised he does not recall.

To a large degree, Cheney’s first answers–assuming they remained substantively the same in the second interview–necessitated Judy Miller’s testimony, since Libby had clear notes about being ordered to leak material to Miller that had been effectively hidden by his lies about Russert. Libby’s notes made it appear like he might have leaked Plame’s identity to Miller (which turned out to be the case). And Cheney’s refusal to claim he had authorized that leak put Libby at real risk of an IIPA indictment.

This interview raises a few more questions. First, in his first interview, Cheney did not release the journalists he had spoken with from their pledge of confidentiality. Bob Novak testified on September 14, 2004; though Fitzgerald’s affidavit makes it clear much of that discussion was about his conversation with Richard Armitage, Novak spoke with someone at OVP on July 7, 2003, so it has always been possible he was hiding a Cheney conversation.

In addition, Judy Miller explained away the “Aspens connected at the roots” comment by relating a chance encounter with Libby in Jackson Hole in August 2003 (not 2004). Though when I asked her if she had seen Cheney on that same trip, she did not answer. Is it possible the reference to Jackson Hole was a coded reference to Cheney?

Finally–and critically importantly–when CREW FOIAed this interview, they asked for “all transcripts, reports, notes and other documents relating to any interviews outside the presence of the grand jury of Vice President Richard B. Cheney that are part of Special Counsel Patrick Fitzgerald’s investigation into the leak of the identity of Valerie Plame Wilson.” In other words, this second interview would have been squarely within the terms of their request. This interview should have been released under their FOIA, but was not.

This previously unreported Cheney interview would appear to go right to the heart of why Patrick Fitzgerald subpoenaed Judy Miller to find out whether Scooter Libby leaked Valerie Plame’s identity to her. And for some reason, it appears the Bush and Obama DOJ didn’t want us to read it.

Dick Cheney: Awlaki Killing Violated American Principles of Justice Just Like Torture Program Did

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I can think of no stronger indictment of the process by which the Obama Administration killed Anwar al-Awlaki than for Dick Cheney to, first, confirm that the process by which Awlaki was targeted does not constitute due process, and then state that Presidents should have that authority anyway.

Cheney then says Obama should apologize for suggesting, in his Cairo speech, that the Bush Administration’s counterterrorism policies had violated America’s principles.

I’ve come here to Cairo to seek a new beginning between the United States and Muslims around the world, one based on mutual interest and mutual respect, and one based upon the truth that America and Islam are not exclusive and need not be in competition.  Instead, they overlap, and share common principles — principles of justice and progress; tolerance and the dignity of all human beings.

[snip]

And finally, just as America can never tolerate violence by extremists, we must never alter or forget our principles.  Nine-eleven was an enormous trauma to our country.  The fear and anger that it provoked was understandable, but in some cases, it led us to act contrary to our traditions and our ideals.  We are taking concrete actions to change course.  I have unequivocally prohibited the use of torture by the United States, and I have ordered the prison at Guantanamo Bay closed by early next year.

Cheney’s right: this assassination exhibited the same disdain for our Constitution that Cheney’s torture program did. And Obama does owe an apology: not to Cheney, but to the America people.

Cheney Tells the Seventh Circuit It Would Erode Military Discipline To Let Courts Second Guess Cheney’s Torture Decisions

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Remember that letter a bunch of former Directors of Central Intelligence wrote begging Obama to kill an investigation into George W Bush-approved CIA torture?

Poppy, the father of the President who authorized that torture, had the good grace not to sign onto the letter.

These things tend to look like stunts when someone with that kind of personal conflict signs on.

Which is why this amicus brief from all former Secretaries of Defense, submitted in the Vance v. Rumsfeld suit suing Donald Rumsfeld for torture inflicted on two contractors in Iraq, is so farcical. (h/t Lawfare) Right there between “Frank C. Carlucci III, Secretary of Defense from 1987 to 1989” and “William S. Cohen, Secretary of Defense from 1997 to 2001” comes “Richard B. Cheney, Vice President of the United States from 2001 to 2009, and Secretary of Defense from 1989 to 1993.”

Otherwise known as the architect of the torture program for which Dick’s first important boss, Rummy, is now being sued.

As you might expect from a brief submitted by David Rivkin, the argument in the brief itself isn’t any more credible. It does two things. First, it argues that if Vance were allowed to sue under Bivens for being tortured by his own government, then it would break down military discipline that requires–and affords Vance as recourse, they claim–members of the military to report detainee abuse up the chain of command. We saw how well that worked for Joe Darby and a bunch of Gitmo whistleblowers. And of course these former Secretaries of Defense are arguing that military discipline will guarantee that the entire chain of command would be able to hold its civilian leadership accountable for illegal orders to torture civilians. Never mind that those former Secretaries pretty much admit there is little means under the UMCJ to actually punish civilian leaders (the whole brief ignores that some of the torturers were also civilians), as distinct from the members of the military whose punishment the brief lays out in some detail–for breaking the law.

With respect to civilian officials and employees, the process of investigation would have vindicated Plaintiffs’ rights by, at a minimum, providing “a forum where the allegedly unconstitutional conduct would come to light,” Bagola v. Kindt, 131 F.3d 632, 643 (7th Cir. 1997) (citing Bush v. Lucas, 462 U.S. 367 (1983); Schweiker v. Chilicky, 487 U.S. 412 (1988)), and review of Plaintiffs’ constitutional claims, with the possibility of review by the U.S. Supreme Court, 10 U.S.C. § 867A(a).

Military discipline that must be preserved would guarantee that the Lynndie Englands were held accountable. And that, for these former Secretaries of Defense, is enough, I guess.

Of course, all this only works because of the brief’s other strategy: to simultaneously suggest that this was not torture (that is, something clearly prohibited by law), calling it consistently “mistreatment.” Even while ignoring that Ashcroft v. al-Kidd requires the showing of obviously prohibited behavior, like torture.

The panel majority’s narrow framing of its holding—that it extends only to conduct of the nature alleged by Plaintiffs, Slip op. 58-59—is yet another attempt to craft “[a] test for liability that depends on the extent to which particular suits would call into question military discipline and decisionmaking.” Stanley, 483 U.S. at 682. But this “would itself require judicial inquiry into, and hence intrusion upon, military matters,” and “the mere process of arriving at correct conclusions would disrupt the military regime.” Id. at 683-84. Moreover, this limitation is arbitrary; in no case has Bivens’ availability turned on the gravity of the alleged deprivation.

A final consequence is the likelihood that, fearing personal liability, those officials charged with ensuring the Nation’s security “would be deterred from full use of their legal authority.” Ashcroft v. al-Kidd, 131 S.Ct. 2074, 2087 (2011) (Kennedy, J., concurring).

It’s not that Rummy (and Cheney, though Cheney and his colleagues don’t say this) should have and in fact did know that torture was illegal, this brief pretends (as al-Kidd mistakenly, IMO, pretends that Ashcroft had no way of knowing what material witness detention allowed). Rather, you simply can’t question military matters, at all, never ever, even in cases of gross violations of law, because that’s a slippery slope that will erode military discipline.

The military discipline that ensures that Secretaries of Defense–and Vice Presidents–will never held accountable for their crimes.

Cheney’s War Plan for Afghanistan? Deny Safe Haven To–But Not Destroy–Al Qaeda

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[youtube]ywIqvCojtsQ[/youtube]

According to Dick Cheney, our objective in Afghanistan was, from the very beginning, not about defeating al Qaeda, but rather, defeating the Taliban, while denying al Qaeda a safe haven in Afghanistan.

At least that’s what he says in a passage explaining why he was talking about Iraq in the days after 9/11. He says,

Although we had discussed Iraq earlier in the day [on September 14], I also took time now to say that Afghanistan, where the 9/11 terrorists had trained and plotted, should be first. I believed it was important to deal with the threat Iraq posed, but not until we had an effective plan for taking down the Taliban and denying al Qaeda safe haven in Afghanistan. (334)

Note what he describes the goal as being: “taking down the Taliban,” not “taking out al Qaeda.” The al Qaeda-related goal Cheney describes for Afghanistan is simply denying them a safe haven.

And thus–in the context of this discussion about why the Bush Administration focused on Iraq so quickly after 9/11, at least–he excuses himself for letting Osama bin Laden escape at Tora Bora, for letting OBL find a haven in Pakistan that would keep him safe for a decade, and for drawing troops away for use in Iraq before actually beating al Qaeda. It was all in the plan, according to Cheney.

Tellingly, his sole discussion of anything relating to Tora Bora (actually, a strategy discussion that happened a month before the December 2001 battle there) doesn’t call it Tora Bora, doesn’t mention that OBL was holed up there (even though Cheney all-but acknowledged we knew he was at the time), and didn’t admit Bush Administration blunders let OBL get away.

[General Tommy] Franks also reported on the campaign under way to destroy the massive cave complexes in which the Taliban lived and hid. He had about 150 caves on a target list, he said, and estimated the count would go to 1,000. (345)

Cheney separates the discussion of bombing caves in Afghanistan from that describing General Franks making plans for Iraq by 24 pages, obscuring the fact that Franks was focused on developing an Iraq plan at the time he refused to send in American troops to trap OBL in Tora Bora.

Admittedly, Cheney does remember to include taking out al Qaeda among the objectives a few pages after his initial description of US goals in Afghanistan.

Our objective was to take out al Qaeda, take down the Taliban, and prevent Afghanistan from being used as a base for further operations. (340)

But it feels so contrived, particularly coming just before this passage insisting that the government remained focused on OBL.

We were also very focused on getting Osama bin Laden. None of us believed that capturing or killing him would end the terrorist threat, but he was the leader of the organization that had launched the 9/11 attacks, and having him in custody–or dead–would be a powerful symbol of our determination. Tracking him down was certainly one of our top priorities. I was gratified that after years of diligent and dedicated work, our nation’s intelligence community and our special operations forces were able on May 1, 2011, to find and kill bin Laden. (341)

If you’re so petty you can’t even mention President Obama’s name in the list of those who managed to finally get OBL, clearly you have either some insecurity that Obama succeeded where you failed, or that first formulation–basically, a whack-a-mole forever war that “denies safe haven” for terrorists in one after another country, Afghanistan, Iraq, Pakistan, Yemen, Somalia, but never ends the war–was always the plan.

Dick Cheney Made No Mention of Millenium Plot in His Book

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I’m still slogging through Dick Cheney’s awful book–I will write some more comprehensive things when I finish.

But I found this passage particularly curious given recent claims by Ali Soufan and Richard Clarke that we might have been able to prevent 9/11:

They had struck us before, blowing a crater five stories deep in the World Trade Center in New York in 1993. Al Qaeda had attacked our embassies in Kenya and Tanzania in 1998, killing hundreds, including twelve Americans. Osama bin Laden, al Qaeda’s leader, had personally chosen the operatives who bombed the U.S.S. Cole in a Yemeni harbor in 2000. Seventeen crew members had died. During the nineties, the United States had treated terrorist attacks primarily as law enforcement matters, indicting terrorists when we could, trying them, and sending some of them to prison. But that approach hadn’t stopped the attacks. Al Qaeda had just delivered the most devastating blow to our homeland in its history.

We needed a new way forward, one based on the recognition that we were at war.

In this abbreviated passage, Cheney makes his case that we had to combat al Qaeda with a wartime approach, something different that had been used up to that point.

There’s a lot else he misses in the lead up to 9/11. He makes no mention of Richard Clarke and his efforts to do something about al Qaeda. That’s not surprising given Cheney’s churlish approach to mentions of others in this book.

Cheney also lays no blame for the Cole bombing–not on the Navy and not on Clinton. This, in spite of the fact that he attacked similar military errors contributing to the 1983 Marine barracks attack in Beirut and the Blackhawk attack in Somalia, and in spite of his almost gleeful joy at blaming Carter and Clinton for the failed Desert One rescue and Somalia, respectively.

But the failure to mention that law enforcement had discovered and prevented a plot is really telling. Because, of course, alert law enforcement had “stopped the attacks” on one occasion, but it’s that occasion he completely ignores in his recitation of past al Qaeda attacks.

So there it is–the bulk of the justification for Cheney’s One Percent Doctrine, omitting all mention that sound counter-terrorism policy might have prevented the USS Cole or at least the casualties, that our counter-terrorism efforts had successfully interdicted a plot, and that Richard Clarke (and George Tenet) had been issuing shrill warnings in the days leading up to 9/11.

Sure, he needs to omit those details to make his logic work. He needs to present war as the only option.

But it also makes you wonder whether he knows, too, that we could, and should, have prevented 9/11.

It’s the Bush Record on Jobs (and His Role in the Deficit) Cheney Should Be Embarrassed About

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Amanda Terkel has most of the story of Dick Cheney’s flip flop on the deficit: speaking to Rush Limbaugh today, Cheney expressed “embarrassment” about the debt limit fight.

“Now, these last few months have been pretty messy,” said Cheney. “I think like a lot of people I was embarrassed when they lowered our credit rating from AAA to AA. I literally felt embarrassed for my country.”

“But I also think that the fact that we’ve gotten to this point where we are faced with a crisis in terms of the debt problem, that that’s going to give those of us who want to address that issue and fix it the leverage that we haven’t had up until now, in terms of insisting on the kinds of policies that will be painful, but in the long run are necessary if we’re going to restore full faith and credit in the United States government.”

She goes on to note the atrocious Bush/Cheney record on deficits, and the quotes the passage from his autobiographical novel where he tries to explain away his “deficits don’t matter” comment.

In his new memoir “In My Time,” Cheney argued that that quote was misinterpreted.

“[O]f course I thought deficits mattered,” he wrote. “I just believed that it was important to see them in context, to note that while Ronald Reagan’s dramatic increases in the defense budget and his historic tax cuts did push the deficit from 2.7 percent of the gross domestic product in fiscal year 1980 to 6 percent in fiscal year 1983, his spending on defense helped put the Soviet Union out of business, and his tax cuts helped spur on the longest sustained waves of prosperity in our history.”

But that’s not all Cheney said about the tax cuts that created this deficit. On the following page, he made this even more absurd claim:

The Bush-era tax cuts helped grow the economy and create jobs, and I was glad to see them extended in December 2010 for two more years. If the Obama administration had reversed course and let tax rates rise across the board, the results would have been devastating.

Setting aside Cheney’s failure to consider the more logical choice–forcing Republicans to let taxes on rich people like himself go up–there’s the bigger problem with Cheney’s claim that the tax cuts “helped grow the economy and create jobs.”

They didn’t create any.

(Both graphs from this post.)

The first Bush-Cheney giveaway was passed on June 7, 2001. After which, jobs kept disappearing (though 9/11 made things worse). The second Bush-Cheney giveaway was passed on May 28, 2003. And while those cuts did precede a period where jobs actually were created in some months, Bush and Cheney never created enough jobs to stay very far ahead of population growth. They had the worst job creation record in history.

So Cheney’s complete story is this:

1) He did too care about deficits even when he was telling his Treasury Secretary he didn’t and even when he was launching two unpaid for wars.

2) Those tax cuts created jobs (only they didn’t).

3) Now that the things Cheney himself did to create a deficit crisis (such as one exists) have turned a surplus into a deficit, he’s “embarrassed.”

4) But he still supports doing things–like extending those tax cuts that didn’t create jobs–that create an even bigger hole in the deficit.

I agree Cheney should be embarrassed. But he’s got far more to be embarrassed about than the hostage taking by his own party.

Ten Years after 9/11, Inherent Authority Dies a Small Legal Death

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Al-Haramain has submitted its brief for the appellate review on a number of issues related to the government’s illegal wiretapping of the charity. The questions at issue are:

1. Does FISA waive federal sovereign immunity?
2. Does FISA preempt the state secrets privilege?
3. Was plaintiffs’ non-classified evidence sufficient to prove their warrantless electronic surveillance?
4. Did the district court properly award counsel’s full attorney’s fees?
5. Did the district court err in dismissing defendant Mueller in his individual capacity?

Most of the brief will be familiar to those who have followed this case. But this passage–because it comes at the appellate level–is new.

Finally, we note that defendants do not challenge the district court’s ruling that the President lacks inherent power to disregard FISA’s preemption of the state secrets privilege. See 564 F. Supp. 2d at 1121 [ER 108]; supra at 16. Thus, for purposes of this appeal, defendants have forfeited any claim of inherent power to disregard FISA. See, e.g., Independent Towers of Wash. v. Washington, 350 F.3d 925, 929 (9th Cir. 2003). More broadly, defendants have abandoned any defense of the TSP’s purported theoretical underpinning that the President may disregard an Act of Congress in the name of national security.

This forfeiture should come as no surprise. Top officials in the Obama administration had conspicuously repudiated the inherent power theory before taking office. See Donald Verrilli (now Solicitor General) et al., Brief for Amici Curiae Center for National Security Studies and the Constitution Project, American Civil Liberties Union v. National Security Agency, 493 F.3d 644 (6th Cir. 2007), 2006 WL 4055623, at *2 & *15 (inherent power theory is “particularly dangerous because it comes at the expense of both Congress’s and the judiciary’s powers to defend the individual liberties of Americans”); Neal Kumar Katyal (now Principal Deputy Solicitor General), Hamdan v. Rumsfeld: The Legal Academy Goes to Practice, 120 HARV. L. REV. 65, 117 (2006) (“overblown assertions” of inherent power “risk lawlessness in the name of national security”); Eric Holder (now Attorney General), Address to American Const. Society (June 13, 2008), http://www.youtube.com/watch?v=6CKycFGJOUs&feature=relmfu (videotape at 3:41–3:52) (“We must utilize and enhance our intelligence collection capabilities to identify and root out terrorists, but we must also comply with the law. We must also comply with FISA.”). [my emphasis]

The passage is not central to the argument except insofar as it notes the government has procedurally given up the theory that they used to initially rationalize the illegal wiretap program. It is, as I said, just a small legal death, limited to this one case, rather than a wholesale repudiation.

Nevertheless, I thought the timing–not just coinciding with the anniversary of 9/11 but also the release of Dick Cheney’s autobiographical novel–rather apt.

And the rhetorical value in citing three of DOJ’s top lawyers dismissing the theory–which the brief repeats by citing Holder’s even more damning call for “a reckoning” in that same ACS speech at the very start of the brief does have value.

“[S]teps taken in the aftermath of 9/11 were both excessive and unlawful. Our government . . . approved secret electronic surveillance of American citizens . . . . These steps were wrong when they were initiated and they are wrong today. We owe the American people a reckoning.” Eric Holder, June 13, 2008

Verilli’s and Katyal’s and Holder’s criticism of inherent power may have just been the rhetorical blatherings of political lawyers then in the political and legal opposition, blatherings not entirely consistent with steps they have taken since they’ve been in positions of authority.

But for the purposes of this legal brief, who better to kill the theory of inherent authority than the Attorney General?

Turns Out Cheney Was Never Really Vice President After All

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I regret to inform you–and I do mean regret–that I’m going to have set aside a good deal of the next week “looking backward” at Dick Cheney’s career. His book is out next week and already he’s dropping some bombs, as only Dick can drop bombs.

Such as, for some period during his tenure as VP, there was a signed resignation letter in his man-sized safe (presumably right next to the Wilson op-ed on which Cheney hand-wrote an accusation that Plame sent her husband on a junket), known only to W and “a Cheney staffer.”

“I did it because I was concerned that — for a couple of reasons,” Cheney tells Jamie Gangel. “One was my own health situation. The possibility that I might have a heart attack or a stroke that would be incapacitating. And, there is no mechanism for getting rid of a vice president who can’t function.”

Cheney kept the signed letter locked in a safe, he reveals in the memoir “In My Time,” which comes out Tuesday. President George W. Bush and a Cheney staffer knew about the letter.

I presume that NBC and ABC will be sufficiently incompetent that they won’t ask Cheney what the other reasons were. Or who the staffer was.

So barring actually learning that information (until I go shell out an inordinate amount for a book I plan to throw a lot), here are my guesses.

In addition to signing the letter in case his heart gave out and turned him into a vegetable, Cheney also kept it in case he suddenly got into very big legal trouble. Over leaking a CIA officer’s identity, maybe, over knowingly authorizing torture (including in a few cases I expect we’ll learn more about), or misusing the military. Or whatever else.

And if just one staffer ever knew of the letter, my bet is David Addington knew.

But here’s the thing. Once Cheney signed that resignation letter, was he still VP? Or does that mean all the things he did, bootstrapping his own constitutional power onto the President’s explicit power, were illegal? We know Republicans claimed that he could insta-declassify things like NIEs and CIA officers identities. But if he did that after having signed a letter of resignation that the President knew about, doesn’t that mean he wasn’t VP anymore? And those things were triply illegal?

Whoo boy. Send beer. I can tell already it’s gonna be a long week.