The Constitution in Peril

To tell the story of how this happened, it's useful to start, as Savage does, by following Cheney's career. Cheney was chief of staff in the Gerald Ford White House, fighting a rear-guard action to protect presidential power from a vindictive and meddlesome Congress in the aftermath of Vietnam, Watergate and public scandals about the CIA's secret operations. Later, serving in Congress himself, Cheney remained a passionate defender of the executive, arguing that the legislative branch had no right to rein in the secret presidential activities that led to the Iran-contra scandal. As secretary of Defense under President George H.W. Bush in 1991, Cheney insisted that approval from Congress wasn't needed for a war against Saddam Hussein. The elder Bush overruled him. But when Cheney became vice president 10 years later, the veteran Washington infighter was paired with the younger Bush, George W., who was, as Savage puts it, "one of the least experienced presidents ever to take the oath." Cheney and his staff, particularly his longtime aide David Addington, soon came to dominate almost every debate over constitutional issues that touched on national security and executive authority. Goldsmith remembers how they addressed all laws they didn't like: "They blew through them in secret based on flimsy legal opinions that they guarded closely so no one could question the legal basis for the operations."

From the beginning Bush's staff, guided by Cheney's, "hoped to enlarge the zone of secrecy around the executive branch, to reduce the power of Congress to restrict presidential action, to undermine limits imposed by international treaties, to nominate judges who favored a stronger president and to impose greater White House control over the permanent workings of the government," writes Savage. Then 9/11 happened and suddenly "the war on terrorism's climate of perpetual emergency provided a vehicle for turning [Cheney's] vision of an unfettered commander in chief into a reality."

Goldsmith, a conservative academic and generally a supporter of a strong executive, argues in his book "The Terror Presidency: Law and Judgment Inside the Bush Administration" that much of what was done in the early days after 9/11 is perfectly understandable. Threats seemed to be everywhere. A second wave of attacks appeared imminent and all but inevitable. "The President had to do what he had to do to protect the country," writes Goldsmith. "And the lawyers had to find some way to make what he did legal." But unlike previous war presidents—Lincoln, FDR—who bent the Constitution in order to save it, and took responsibility for doing so, the Bush administration stonewalled, as if public ignorance were the best way, in many cases, to give the president the powers he needed.

It was the administration's ignorance of the enemy that it now confronted that led it, in part, to resort to extreme tactics. Al Qaeda had emerged as a major threat in the late 1990s. Ever since the end of the cold war, the Central Intelligence Agency, the Federal Bureau of Investigation, the National Security Agency and more than a dozen other intelligence organizations that answer to the president had been struggling to adapt their sources and methods to the new menace. As Amy B. Zegart argues in "Spying Blind: The CIA, the FBI, and the Origins of 9/11," they just weren't up to the job. "With FBI agents keeping case files in shoe boxes rather than putting them into computers, with CIA operatives clinging to old systems designed for recruiting Soviet officials at cocktail parties rather than Jihadists in caves … the U.S. Intelligence Community did not have a fighting chance against Al Qaeda," Zegart writes. The intelligence community was well aware of the threat. It had given Bush a daily brief in August 2001 with the heading "Bin Ladin Determined To Strike in US." But the paper was full of old news, and the various agencies failed to act on the new information that they actually had in hand about some of the 9/11 terrorists living in the United States. Zegart, blaming institutional inertia more than individuals, counts more than 20 specific instances where the CIA or the FBI missed chances to stop the 9/11 attacks.

Problems that ran so deep were not going to be changed in time to meet the clear and present danger that now faced the country. As the United States launched a war in Afghanistan (and planned for one in Iraq), the administration needed a lot more information about Al Qaeda than was available. "Really, they did not have anything very useful," says Karen Greenberg, head of New York University's Center on Law and Security. "It was worse than you can imagine." One answer to the problem: the use of extreme and painful methods to make captured members of Al Qaeda and other suspects tell everything they knew—and sometimes more than they knew. "The most advanced nation in the world was relying on 14th-century torture techniques," says Greenberg. (The same problem arose in 2003, when U.S. forces in Iraq discovered they knew next to nothing about the insurgents attacking them. The resulting abuses at Abu Ghraib were partly born of desperation.) Suspected Qaeda prisoners were taken to secret sites, or to Guantánamo, or grabbed by "rendition" teams who took them to countries where interrogators had long experience with torture, or simply held incommunicado in American military prisons. Still another measure: dispensing with warrants when tapping into phone conversations between the United States and suspected terrorists or their contacts in the rest of the world.

To a layman's eyes, all these measures would seem to violate the Bill of Rights (and in some cases the Geneva Conventions). The pervasive secrecy threatened the First Amendment's guarantee of free speech. The wiretaps flew in the face of Fourth Amendment guarantees that no warrants for searches (or, by extension, surveillance) would be issued without probable cause and specific details. The detentions, especially of American citizens designated "enemy combatants," defied the Sixth Amendment rights to a speedy trial, to be confronted with witnesses and to have legal counsel. And the interrogation techniques certainly were cruel and unusual punishments of a kind you'd think is prohibited by the Eighth Amendment. Indeed, these issues continue to be fought ferociously in the courts and debated in Congress. But the president's positions have been hard to roll back.