Tuesday, September 20, 2011

Cheney and Presidential Weakness

Dick Cheney wasn't an incompetent vice president because he was a stupid man. He, and the president who listened to him far too much for far too long, were incompetent -- on Iraq, on detention, on other things -- because Cheney believed in a flawed theory of presidential power.

That's the takeaway from one of the best things I've read in some time, Jack Goldsmith's article in the NYT Magazine this past weekend, well-titled as "How Dick Cheney Reined in Presidential Power." Goldsmith begins by recapping the famous hospital confrontation involving John Ashcroft, James Comey, himself (of Justice's OLC), and Andy Card and Alberto Gonzalez. He goes on to quite properly set it in the context of a strategy of presidential power based on secrecy and White House dictatorial control:
Unilateralism in secret is sometimes necessary at the height of a crisis, and Cheneyism was effective in the short run. But it is disastrous over the medium and long term. The president cannot accomplish much over time without the assistance of his bureaucracy and the other institutions of government. And he cannot garner that assistance through mere commands. He must instead convince these institutions that his policies are good and lawful ones that they should support.
That's exactly the Neustadtian point that you'll hear me making over and over (full argument here): that circumventing the system is possible in the short run, but then yields entirely predictable disaster. Goldsmith continues:
Cheney...complains about pesky government lawyers, a weak-kneed Congress, activist justices and a treasonous press that exposed, rejected or changed nearly all of the Bush counter­terrorism policies. What he does not say is that his insistence on circumventing these institutions was often responsible for their blowback. The surveillance confrontation resulted when Justice Department lawyers discovered that prior legal opinions were filled with factual and legal errors caused by an absence of deliberation about the complicated program. And damaging leaks about the surveillance program resulted from the perception of illegitimacy inside the government caused by Cheney’s corner-cutting unilateralism.
You may wonder why I'm so obsessed with Watergate, but this is points to one of the main, critical, themes. I mean, Watergate is a great story with great characters and all, but it also reveals much about what presidential power really is and how it works and doesn't work. For example, what Goldsmith is talking about here is what I think of as the Hunt/Liddy problem: why were the president's men during Watergate such inept losers? Was it bad luck (that is, from Nixon's point of view)? Poor management skills? I believe it was instead something systematic. When the president wants to do something, and the system resists, and he chooses to plunge ahead anyway by doing it essentially behind the back of the system...well, then you get Hunt and Liddy, and Ollie North, and "poor legal opinions...filled with factual and legal errors caused by an absence of deliberation about the complicated programs." And: Colin Powell's speech to the UN. And: not just the illegality of torture and Gitmo, but the rank incompetence that we've seen over and over.

Dick Cheney is a good example of all of this exactly because his prior reputation would never have led people to guess that he'd make such a habit of botching things. And yet, botch things he did, over and over. Not because he didn't understand policy, but because he -- and by extension, George W. Bush -- refused to accept the limitations on the presidency imposed by the Constitutional system of institutions. And as Cheney shows and as Goldsmith says, the consequences are predictable: poor policy execution, followed by a loss of presidential power.

Just to be clear: the alternative to Cheneyism isn't passivity. Presidents should fight hard for things, and they should be held accountable when they don't -- although part of what it means to need to bargain to get things done is that some presidential preferences will no doubt fall when the president learns from institutional resistance. What they shouldn't do, however, is to react to that resistance with Constitutionally suspect end runs, whether it's to avoid Congress or to avoid legitimate portions of the executive branch. Whatever one thinks of the ethics of it all, the bottom line remains that it just doesn't work.


  1. 1) You speak of "institutional resistance" as part of a "Constitutional system of institutions" that Presidents bypass at their peril. But how is it "Constitutional" for the decisions of unelected appointees and career bureaucrats to trump those of the duly elected President?

    I understand that, in practice, a President cannot just snap his fingers and have the entire executive branch bend to his will. But you seem to be arguing that this is a good thing, that it's a part of Constitutional checks and balances, and I see no evidence of that. The framers clearly intended for the executive and judicial branches and both houses of Congress to check each other. But I doubt they intended for "institutional resistance" within a branch. That just obscures accountability, and (in practice!) weakens the executive's ability to check the other branches.

    2) You say that Presidents shouldn't react to this "institutional resistance" with "Constitutionally suspect end runs"... but how does this differ from the "Constitutional hardball" that the GOP loves to play and that you seem to think is fair game?

    I suspect your response will be that "Constitutional end-runs" end up being counter-productive in that they alienate the institutions that they will eventually need cooperation from. But doesn't that apply equally to "Constitutional hardball" tactics like overuse of the filibuster and electoral college "reform"?

    More broadly, I'm doubtful that "Constitutional end-runs" don't work; or, if they don't work, it's not because of institutions getting irritated.

    For example, Cheney wanted an legal opinion stating that waterboarding is legal; and, he got one. Sure, the opinion may be full of errors, but that would be true of any opinion concluding that torture is legal! Cheney could have had the backing of the entire executive branch, from the President on down to the lowest-level paper-pusher, and a torture-justifying opinion would still be legally dubious.

  2. Hmm, you mean when Obama wanted to close Gitmo but couldn't? Or when he couldn't prosecute torture-memo writers for fear of a coup? Or when he got rolled on Citibank nationalization?

    I agree that managing the bureaucracy is a key Presidential task, but you have to have both. Threatening to fire (or firing) someone like a McArthur is necessary. Running a series of favorites (like FDR) is also needed.

    I do think the key question is how presidential authority is delegated.

  3. Have you looked at John Heilemann's piece in this week's New York Magazine about the US-Israel relationship (http://nymag.com/print/?/news/politics/israel-2011-9/)? The following paragraph is a propos:

    "It was Netanyahu’s coalition partners that provoked the great contretemps of 2010 with the U.S.: the cold-cocking of Joe Biden. Arguably the administration’s staunchest Zionist and a longtime friend of Netanyahu’s—a signed photo of Biden from his Senate days sits on Bibi’s desk—the vice-president arrived in Israel that March to promote the “proximity” peace talks that the sides had just agreed to undertake. There he was ambushed with a surprise announcement by the Interior Ministry, which is controlled by the fundamentalist Shas Party, of the building of new settlement blocs in contested East Jerusalem. Netanyahu was apparently as blindsided as Biden was."

    (Hey, parliamentary coalition government has its dangers ...)

  4. Not quite following this argument. Cheney is "incompetent", yet helped persuade a president to courses of action which a successor president has adopted almost in their entirety?


  5. Anon,

    I may be writing in too much shorthand...(among) the Cheney policies that I'm referring to here were inept and bungled included the invasion/occupation of Iraq and the detention/torture approach to fighting bin Laden. Those policies started phasing out as Cheney lost influence post-2005, and are basically entirely different under Obama.


    I'm not sure it's worth arguing about Framers' intent other than as a historical question. As it's turned out, there's no question that the Exec Branch is in practice responsive to both Congress and the president (and the courts, and etc.), and IMO that sorts well with what I call Madisonian democracy (regardless of whether JM intended it in all its particulars or not).

    As far as it not working...again, the point that I and Goldsmith are making is that presidents (or Cheney) can get away with things short-term, but that it has tremendous costs both directly and indirectly.


    Yes, sometimes firing or threatening to fire are good ideas -- but as Neustadt writes, firing MacArthur was basically a sign of failure for Truman, not a success. Anyway, I'm certainly not saying that Obama has handled the examples you cite well, but I would argue that they are difficult to handle, and need to be understood in that context.

  6. I may be writing in too much shorthand...(among) the Cheney policies that I'm referring to here were inept and bungled included the invasion/occupation of Iraq and the detention/torture approach to fighting bin Laden. Those policies started phasing out as Cheney lost influence post-2005, and are basically entirely different under Obama.



    Obama has quadrupled our troop counts in Afghanistan, which is basically an misguided extrapolation of the Bush policy there. And Obama has basically followed the Bush Iraq timetable to the jot and tittle.

    And Obama has gone much further than Bush and evil Darth Cheney, in ordering up an extra constitutional invasion of Libya, ignoring Congress.

    Heck, you lefties may have gone berserk over Bush waterboarding 3 terrorists, but Obama evidently thinks it's just a policy he'd rather step away from. You know, policy disagreements... like all administrations have.

    I see no fundamental differences in what Obama is doing and what Bush left behind. None. In fact, I find it just as or even more incompetent and interventionist.

    But that doesn't conform with your CDS, I suppose. ;-)


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