The clash over the secret domestic spying program is one slice of a broader struggle over the power of the presidency that has animated the Bush administration. George W. Bush and Dick Cheney came to office convinced that the authority of the presidency had eroded and have spent the past five years trying to reclaim it.
From shielding energy policy deliberations to setting up military tribunals without court involvement, Bush, with Cheney's encouragement, has taken what scholars call a more expansive view of his role than any commander in chief in decades. With few exceptions, Congress and the courts have largely stayed out of the way, deferential to the argument that a president needs free rein, especially in wartime.
But the disclosure of Bush's eavesdropping program has revived the issue, and Congress appears to be growing restive about surrendering so much of its authority. Democrats and even key Republicans maintain Bush went too far -- and may have even violated the law -- by authorizing the National Security Agency to eavesdrop on U.S. citizens' overseas telephone calls in search of terrorist plots without obtaining warrants from a secret intelligence court.
The vice president entered the fray yesterday, rejecting the criticism and expounding on the philosophy that has driven so many of the administration's actions. "I believe in a strong, robust executive authority, and I think that the world we live in demands it -- and to some extent that we have an obligation as the administration to pass on the offices we hold to our successors in as good of shape as we found them," Cheney said. In wartime, he said, the president "needs to have his constitutional powers unimpaired."
Speaking with reporters traveling with him aboard Air Force Two to Oman, Cheney said the period after the Watergate scandal and Vietnam War proved to be "the nadir of the modern presidency in terms of authority and legitimacy" and harmed the chief executive's ability to lead in a complicated, dangerous era. "But I do think that to some extent now we've been able to restore the legitimate authority of the presidency."
For Cheney, the post-Watergate era was the formative experience shaping his understanding of executive power. As a young White House chief of staff for President Gerald R. Ford, he saw the Oval Office at its weakest point as Congress and the courts asserted themselves. But scholars such as Andrew Rudalevige, author of "The New Imperial Presidency," say the presidency had recovered long before Cheney returned to the White House in 2001. The War Powers Act, the legislative veto, the independent counsel statute and other legacies of the 1970s had all been discarded in one form or another.
‘Living in a time warp’
"He's living in a time warp," said Bruce Fein, a constitutional lawyer and Reagan administration official. "The great irony is Bush inherited the strongest presidency of anyone since Franklin Roosevelt, and Cheney acts as if he's still under the constraints of 1973 or 1974."
Sen. John E. Sununu (R-N.H.) said: "The vice president may be the only person I know of that believes the executive has somehow lost power over the last 30 years."
The tug over executive power traces back to the early years of the republic, and presidents have traditionally moved to expand their reach during times of war. John Adams, fearing a hostile France, presided over the imprisonment of Republican critics under the Alien and Sedition Acts. Abraham Lincoln suspended habeas corpus during the Civil War. Woodrow Wilson jailed Socialist Eugene V. Debs, who had run against him for president, for protesting the entry into World War I. Franklin D. Roosevelt sent Japanese Americans to internment camps during World War II. And Ronald Reagan circumvented a Cold War congressional ban on providing aid to contra rebels in Nicaragua.
The Bush administration rejects comparisons to such events and says its assertions of authority in response to the Sept. 11, 2001, terrorist attacks have been carefully tailored to meet the needs of a 21st-century war against a nebulous foe. At his news conference Monday, Bush bristled at the notion that he sought "unchecked power" and said he had consulted with Congress extensively.
Yet Bush supporters believe that other branches should take a subsidiary role to the president in safeguarding national security. "The Constitution's intent when we're under attack from outside is to place maximum power in the president," said William P. Barr, who was attorney general under President George H.W. Bush "and the other branches, and especially the courts, don't act as a check on the president's authority against the enemy."
Even before the NSA surveillance program, the Bush administration has asserted its war-making authority in detaining indefinitely U.S. citizens as enemy combatants, denying prisoners access to lawyers or courts, rejecting in some cases the applicability of the Geneva Conventions, expanding its interrogation techniques to include harsher treatment and establishing secret terrorist prisons in foreign countries.
"The problem is where do you stop rebalancing the power and go too far in the other direction?" asked David A. Keene, chairman of the American Conservative Union. "I think in some instances [Bush] has gone too far."
Taken alone, the expansion of executive wartime power may seem an obvious outflow of confronting the new threat of global terrorism. But when coupled with the huge expansion of the federal government in general under Bush -- the budget has grown by 33 percent and his administration has broadened the federal role in education and the scope of Medicare -- a growing number of conservatives are expressing concern about the size and reach of government on his watch.
Yielding to Bush
Many conservatives in Congress came to office in the 1980s and 1990s with visions of shrinking government and protecting individual freedoms. The Sept. 11 attacks, however, prompted Republicans to shift their priorities and emphasize fighting terrorism. With both houses of Congress in Republican hands, lawmakers generally have been willing to yield to Bush's views on the balance of power.
"Defending the country is preeminently an executive function," said Rep. Tom Cole (R-Okla.). "He is the commander in chief, and you have to move with speed and dispatch."
At the same time, some believe, Congress has abrogated its duty to provide a check on the White House. Rarely has the Republican Congress used its subpoena power to investigate Bush policies or programs or to force administration officials to explain them. Even when lawmakers are inclined to challenge the White House, they are restricted by secrecy rules in cases such as the NSA program, which was known to only a handful of key members briefed by the administration.
"When you have unified party government, the oversight tends to be very timid," said James A. Thurber, director of the Center for Congressional and Presidential Studies at American University. "It's not just the president pushing for more power. . . . The Congress has not done its job of careful evaluation of giving the president more power post-9/11."
Thurber and others think that may be changing. Led by Sen. John McCain (R-Ariz.), Congress just forced Bush to accept a ban on cruel, inhuman and degrading treatment of prisoners, and a handful of Republican senators have joined Democrats to block the renewal of the USA Patriot Act until more civil liberties protections are built into the law. "Congress needs to do some introspection about whether oversight is serious or basically political," Cole said
Sen. Lindsey O. Graham (S.C.) is one of several Republicans lobbying Bush to use the debate over NSA to work with Congress on striking the right balance of power on security issues. "The question is: Should the administration and Congress sit down and talk about where presidential authority begins and ends and congressional blessing begins and ends?" he said. "I think yes."