When I worked at the library at Colorado College, I quickly discovered the job had few perks. The free book loans on demand were little better than subprime mortgages when you realized anyone could get them. The only “exclusive” benefit was the chance to keep manuscripts the library threw out. Usually, I had a limited selection of titles, like Proceedings From the Third Workshop on Genetics of Bark Beetles and Associated Micro-Organisms. But occasionally I stumbled across a gem. Rummaging through a bin of discarded books one day, I saw an unusual spine: “CHENEY The Evolution of Presidential War Powers 1988.”
In 1988, while Dick Cheney was Wyoming’s sole representative in the House of Representatives, his daughter’s senior thesis was quietly published in Colorado Springs. The 125-page treatise argued that, constitutionally and historically, presidents have virtually unchecked powers in war. Thirteen years before her father became vice president, she had symbolically authored the first legal memorandum of the Bush administration, laying out the same arguments that would eventually justify Guantanamo and extraordinary rendition, wiretapping of American citizens, and, broadly, the unitary theory of the executive that shaped the Bush presidency.
The Eisenhower Executive Office Building may be bereft of Dick Cheney, but his steadfast efforts to consolidate power around the president have left the scales of power tipped toward the executive. Then there is the force of Cheney’s grim, blunt personality, felt even as he attended the inauguration in a wheelchair: His name will stand for the ideas he promoted well into the future, and his daughter’s thesis offers an eerily prescient image of the presidency as Cheney believed it should be.
Though less known to the public than her sister, Mary, arguably the most prominent gay Republican, Elizabeth is the elder daughter of Dick and Lynne Cheney. After graduating from Colorado College, she took a job in the State Department before going to law school, and was eventually appointed as one of the chief diplomats for the Middle East in 2002.
Elizabeth Cheney begins her survey at the Constitutional Convention. Contrary to today’s middle-school mythology, she tells us, fear of enabling a tyrannical monarch was not foremost in the Founding Fathers’ minds. Rather, they did not want to repeat the failure of the Continental Congress’ attempts to manage the war for independence. Our constitutional architects, she argues, believed they could not “foresee every possible future use of American armed forces” and, as a result, wanted a commander in chief endowed with great latitude in wartime.
For Cheney, Thomas Jefferson established the path presidents would and should take when dealing with Congress. In engaging American warships against Barbary pirates, Jefferson “chose to inform Congress of his actions at his own convenience.” When he did, he fabricated an attack on an American ship to secure their support.
Cheney sides with the president whenever he clashes with Congress over war powers. Following an escalation in the Vietnam War ordered by Lyndon Johnson, she notes, Congress passed the Gulf of Tonkin resolution, based on questionable information, to provide cover for the president. Nevertheless, both he and Richard Nixon after him believed that the resolution provided no “legal basis for their action because they presumed all the authorization they needed was in the Commander and Chief [sic] clause.”
Time and again, Cheney contends that in times of war, presidents since Washington have justifiably redefined their authority to preserve the country, and she is scornful of any who challenge that authority. As Congress challenged presidential authority toward the end of Vietnam, she casts them as scapegoating the executive. “As public support dwindled so did congressional willingness to accept responsibility,” she writes, “Congress set about to blame the only two men who couldn’t escape responsibility.” For someone who has vested so much faith in executive wisdom, she is surprisingly unwilling to hold it accountable.
From beginning to end, it’s clear that Cheney looks upon the model of the powerful executive approvingly. Her most forceful conclusion is that the Founders “certainly did not intend, nor does history substantiate, the idea that Congress should legislate specific limits on the President’s power.” To ensure American security, it needs to recognize that the “nature of military and foreign policy demand the ‘unity of a singular Executive.’ ”
One cannot help but see echoes of this conclusion in the administration in which her father was so influential. The Bush White House repeatedly embraced the philosophy of acting first and asking for approval later, especially on issues that involved the power of the purse. They embraced a position that Cheney found repeatedly in history: “The president’s duty to protect national security sometimes come before his responsibility to keep Congress informed.”
This crusade against oversight was not new to Dick Cheney. In November of 1987, just six months before Elizabeth submitted her thesis, a report he commissioned following the Iran-Contra affair argued that “[c]ongressional actions to limit the president in this area therefore should be reviewed with a considerable degree of skepticism.”
For Cheney, apparently, the Constitution and rule of law are no more of a check on this unitary power than Congress. During the Civil War, Abraham Lincoln’s suspension of habeas corpus and imposition of military tribunals present no legal dilemma to her. “To assert that the Constitution is a shield of protection ‘for all classes of men, at all times and under all circumstances,’ ” she writes, “is to deny the nation the right of self-preservation. There have been and will be times in the experience of the country when constitutional provisions will of necessity be suspended to guarantee the survival of our democracy.” The Supreme Court’s chief justice was wrong in declaring his actions illegal in Ex Parte Merryman because his power “was actually an assertion of the power of the people.”* How he divined that will of the people, Cheney does not explain.
On the first page of her paper, above a neat signature in blue ink, she attests, “On my honor I have neither given nor received unauthorized aid on this thesis.” Her father may not have written her thesis, but before and after its publication, he held unwaveringly to its ideas. As a report on an exit interview the outgoing vice president gave with CBS notes:
While Cheney could not say whether any action by a president in wartime should be considered “legal,” he pointed to historic precedents for presidents taking extra-legal measures in order, he said, to protect the Constitution against all enemies, foreign and domestic.
That statement could well have been printed on the cover of his daughter’s thesis.
Correction, Jan. 30, 2009: This article originally referred to Ex Parte Merryman as a Supreme Court case. It was a circuit court order written by Roger Taney, the chief justice of the Supreme Court, who was sitting on the circuit court at the time. (Return to the corrected sentence.)