The vice president has run utterly amok and must be stopped.
Under Dick Cheney, the office of the vice president has been transformed from a tiny acorn into an unprecedented giant oak. In grasping and exercising presidential powers, Cheney has dulled political accountability and concocted theories for evading the law and Constitution that would have embarrassed King George III. The most recent invention we know of is the vice president's insistence that an executive order governing the handling of classified information in the executive branch does not reach his office because he also serves as president of the Senate. In other words, the vice president is a unique legislative-executive creature standing above and beyond the Constitution. The House judiciary committee should commence an impeachment inquiry. As Alexander Hamilton advised in the Federalist Papers, an impeachable offense is a political crime against the nation. Cheney's multiple crimes against the Constitution clearly qualify.
Take the vice president's preposterous theory that his office is outside the executive branch because it also exercises a legislative function. The same can be said of the president, who also exercises a legislative function in signing or vetoing bills passed by Congress. Under Cheney's bizarre reasoning, President Bush is not part of his own administration: The executive branch becomes acephalous. Today Cheney Chief of Staff David Addington refused to renounce that reasoning, instead laughably trying to diminish the importance of the legal question at issue.
The nation's first vice president, John Adams, bemoaned: "My country has in its wisdom contrived for me the most insignificant office that ever the invention of man contrived or his imagination conceived; and as I can do neither good nor evil, I must be borne away by others and meet common fate." Vice President John Nance Garner, serving under President Franklin D. Roosevelt, lamented: "The vice presidency isn't worth a pitcher of warm piss." In modern times, vice presidents have generally been confined to attending state funerals or to distributing blankets after earthquakes.
Then President George W. Bush outsourced the lion's share of his presidency to Vice President Cheney, and Mr. Cheney has made the most of it. Since 9/11, he has proclaimed that all checks and balances and individual liberties are subservient to the president's commander in chief powers in confronting international terrorism. Let's review the record of his abuses and excesses:
The vice president asserted presidential power to create military commissions, which combine the functions of judge, jury, and prosecutor in the trial of war crimes. The Supreme Court rebuked Cheney in Hamdan v. Rumsfeld. Mr. Cheney claimed authority to detain American citizens as enemy combatants indefinitely at Guantanamo Bay on the president's say-so alone, a frightening power indistinguishable from King Louis XVI's execrated lettres de cachet that occasioned the storming of the Bastille. The Supreme Court repudiated Cheney in Hamdi v. Rumsfeld.
The vice president initiated kidnappings, secret detentions, and torture in Eastern European prisons of suspected international terrorists. This lawlessness has been answered in Germany and Italy with criminal charges against CIA operatives or agents. The legal precedent set by Cheney would justify a decision by Russian President Vladimir Putin to kidnap American tourists in Paris and to dispatch them to dungeons in Belarus if they were suspected of Chechen sympathies.
The vice president has maintained that the entire world is a battlefield. Accordingly, he contends that military power may be unleashed to kill or capture any American citizen on American soil if suspected of association or affiliation with al-Qaida. Thus, Mr. Cheney could have ordered the military to kill Jose Padilla with rockets, artillery, or otherwise when he landed at O'Hare Airport in Chicago, because of Padilla's then-suspected ties to international terrorism.
Mr. Cheney has championed a presidential power to torture in contravention of federal statutes and treaties.
He has advocated and authored signing statements that declare the president's intent to disregard provisions of bills he has signed into law that he proclaims are unconstitutional, for example, a requirement to obtain a judicial warrant before opening mail or a prohibition on employing military force to fight narco-terrorists in Colombia. The signing statements are tantamount to absolute line-item vetoes that the Supreme Court invalidated in the 1998 case Clinton v. New York.
The vice president engineered the National Security Agency's warrantless domestic surveillance program targeting American citizens on American soil in contravention of the Foreign Intelligence Surveillance Act of 1978. He concocted the alarming theory that the president may flout any law that inhibits the collection of foreign intelligence, including prohibitions on breaking and entering homes, torture, or assassinations. As a reflection of his power in this arena, today the Senate Judiciary Committee subpoenaed Cheney's office, as well as the White House, for documents that relate to the warrantless eavesdropping.
The vice president has orchestrated the invocation of executive privilege to conceal from Congress secret spying programs to gather foreign intelligence, and their legal justifications. He has summoned the privilege to refuse to disclose his consulting of business executives in conjunction with his Energy Task Force, and to frustrate the testimonies of Karl Rove and Harriet Miers regarding the firings of U.S. attorneys.
Cheney scorns freedom of speech and of the press. He urges application of the Espionage Act to prosecute journalists who expose national security abuses, for example, secret prisons in Eastern Europe or the NSA's warrantless surveillance program. He retaliated against Ambassador Joseph Wilson and his wife, Valerie Plame, through Chief of Staff Scooter Libby, for questioning the administration's evidence of weapons of mass destruction as justification for invading Iraq. Mr. Cheney is defending himself from a pending suit brought by Wilson and Plame on the grounds that he is entitled to the absolute immunity of the president established in 1982 by Nixon v. Fitzgerald. (Although this defense contradicts Cheney's claim that he is not part of the executive branch.)
The Constitution does not expressly forbid the president from abandoning his chief powers to the vice president. But President Bush's tacit delegation to Cheney and Cheney's eager acceptance tortures the Constitution's provision for an acting president. The presidency and vice presidency are discrete constitutional offices. The 12th Amendment provides for their separate elections. The sole constitutionally enumerated function of the vice president is to serve as president of the Senate without a vote except to break ties.
In contrast, Article II enumerates the powers and responsibilities of the president, including the obligation to take care that the laws be faithfully executed. A special presidential oath is prescribed. Section 3 of the 25th Amendment provides a method for the president to yield his office to the vice president, when "he is unable to discharge the powers and duties of his office." There is no other constitutional provision for transferring presidential powers to the vice president.
Yet without making a written transmittal to Congress, President Bush has ceded vast domains of his powers to Vice President Cheney by mutual understanding that circumvents the 25th Amendment. This constitutional provision assures that the public and Congress know who is exercising the powers of the presidency and who should be held responsible for successes or failures. The Bush-Cheney dispensation blurs political accountability by continually hiding the real decision-maker under presidential skirts. The Washington Post has thoroughly documented the vice president's dominance in a four-part series running this week. It is quite a read.
In the end, President Bush regularly is unable to explain or defend the policies of his own administration, and that is because the heavy intellectual labor has been performed in the office of the vice president. Cheney is impeachable for his overweening power and his sneering contempt of the Constitution and the rule of law.
Bruce Fein is a constitutional lawyer with Bruce Fein & Associates Inc. and author of Constitutional Peril: The Life and Death Struggle for Our Constitution and Democracy.
Photograph of Dick Cheney by Chip Somodevilla/Getty Images.