bout de papier, Vol. 23, No. 3 (2008), pp. 20–21
TAKEOVER: THE RETURN OF THE
IMPERIAL PRESIDENCY AND THE
SUBVERSION OF AMERICAN
DEMOCRACY, by Charlie Savage, Little,
Brown & Company, 2007, 416 pp., $29.99.
In Takeover: The Return of the Imperial Presidency and the Subversion of American Democracy, Pulitzer-prize-winning author Charlie Savage has written an odyssey. His odyssey chronicles Vice-President Dick Cheney, starting with his beginnings as a 28-year-old executive assistant to Donald Rumsfeld, himself then a 36-year-old former member of Congress and President Richard Nixon’s Director of the Office of Economic Opportunity.
From there, Savage begins to tell of a spectacular voyage that would lead Cheney to become Chief of Staff to President Ford, member of Congress for Wyoming, Secretary of Defense under President George H.W. Bush, CEO of the Halliburton Corporation and finally Vice-President of the United States.
This journey serves as the catalyst for Savage’s central theme in Takeover, that is, the almost singular pursuit of the consolidation and expansion of the powers of the Executive Branch by Cheney and what was to become a close group of advisors, who sought to remedy what many conservatives saw as the evisceration of the powers of the Presidency in the years immediately following the Watergate scandal.
Savage carefully constructs a chronology that shows how Dick Cheney’s early experiences with government led him to believe that Congress had greatly overreached its powers and had passed unconstitutional laws that prevented the President of the United States from faithfully executing his duties to protect America, being commander-in-chief, and executing US law in an unencumbered fashion.
But Dick Cheney wasn’t the only one to arrive at this conclusion. Early in the Reagan era, the conservative Federalist Society was created and thrust onto the American political stage the Unitary Executive Theory — an idea that holds at its core that Congress has no authority over the powers granted to the Executive Branch under the Constitution. Advanced gingerly at first by Reagan Administration lawyers, wary of public opinion and congressional reaction in a post-Watergate America, the Unitary Executive Theory eventually became the compass that directs the presidential view on all aspects of executive authority, but especially in the areas of national security and foreign policy.
This theory would become the sine qua non of the legal strategy of the Reagan and Bush White House Offices of Legal Counsel, who themselves would use their ability to issue binding legal opinions on the federal government, to instruct bureaucrats on which aspects of what laws to pursue and which to ignore.
In essence, the Unitary Executive Theory held that the President could not enforce laws that it deemed were unconstitutional. Operationalizing this theory required White House staff and Department of Justice officials to employ three principal tools: the court challenge, the signing statement and the binding (and often secret) legal opinion of the Office of Legal Counsel.
Ultimately these tools were in service of three key objectives – use internal legal opinions to ensure that actions by federal government officials were not illegal, even if Congress said they were; use court challenges at every possible opportunity, to defend and fight for every inch of legal ground, often with the help of sympathetic judges; and finally, use signing statements, where the Administration would sign a bill from Congress, and then issue a statement on what parts of that bill it intended to enforce, in such a fashion that they would become the de facto legal equivalent of a line item veto. These three tools would construct a legal rationale that leveraged each victory for a strengthened federal Executive Branch
For the vast majority of Americans, and everyone else in the world, this inter-branch struggle would likely have been little more than a historical curiosity or fodder for highly partisan Beltway debates about which branch of government should do what.
In fact, as Savage dutifully points out, the expansion of executive power dated back to FDR and the New Deal. He notes conservatives were furious at how FDR first had used the New Deal to expand both the size and power of the executive, and then legitimized that new authority through Supreme Court rulings only after there were enough FDR appointees who were sympathetic to the federal plan.
What makes Savage’s story truly remarkable is that few were aware of the consequences for the checks and balances system, resulting from this relentless pursuit of executive authority.
And then came 9/11. An attack on American soil for the first time since the Civil War, and the beginning of a Global War on Terror.
Whether or not the reader believes that the wars in Iraq and Afghanistan and the passage and renewal of the Patriot Act were the right things to do, the Administration was faced with a number of legal conundrums regarding fundamental issues of human rights and national security in the days following the attacks.
What Savage makes clear is that while America may have been unprepared for the attacks of 9/11, the machine created by the advancement of the Unitary Executive Theory was well-oiled and very ready for the legal battles that would lie ahead.
And while those battles were themes familiar to all – the application of the Geneva Convention, the parsing of what was and wasn’t torture, and habeas corpus – winning those battles meant, as Savage sees it, radically redefining what laws did and did not apply to the Executive.
In these battles, there were two legal generals — David Addington and John Yoo, one a decades-long aide to Dick Cheney, and the other a 34-year-old Berkeley professor whose appointment to the Office of Legal Counsel in early 2001 would thrust an unyielding proponent of inherent presidential power into the legal power vacuum of national security and foreign policy in the days and years after 9/11.
Savage contends that Yoo and Addington, both virtually anonymous, served to enable one of the greatest consolidations of unchecked power in American history, leading ultimately to many landmark events — including legal protection for those who wiretapped without warrants, the establishment of Guantanamo as a detention centre free from any civil authority, the protection of those engaged in interrogation that the US military had for decades banned, and finally, the checkmate of Congress and the Judiciary in legitimizing the denial of habeas corpus to American citizens arrested and detained on American soil.
Savage’s book is a tour de force in its own right. Meticulously researched, it tells a perfect story, one that many would consider apocryphal if not for the overwhelming research backing it up. It is a story of the struggle of a team united by their desire to overturn what they saw as extreme congressional overreach after Watergate, an overreach that weakened the Presidency, and by extension weakened America in the world.
In the end, as with many great stories, it could be seen as a lament for better days. Except that the consequences of this story reach profoundly into the American psyche, where freedom and security cannot exist one without the other, but where both must be protected by government and from government. It is in this conundrum of global proportions that Savage’s lesson lies — such powers once established do not recede, no matter which party comes into power.
The question at the end of such an odyssey is not whether the traveller recognizes the world he left, but more whether the world recognizes the traveller when he returns home.
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Originally published in bout de papier, Vol. 23, No. 3 (2008), pp. 20–21. Read the rest of this issue →
