When Cheney infamously contended after 9/11 that the United States would have to “spend time in the shadows,” he was not only talking about intelligence work. Cheney accomplished his own agenda as a surrogate chief executive in the bureaucratic shadows. He operated through what former White House attorney Brad Berenson termed a “triumvirate” of lawyers, most notably his legal counsel David Addington, along with White House counsel Alberto Gonzales and Gonzales’s deputy, Tim Flanigan. They extended their influence into the Justice Department’s Office of Legal Counsel through Cheney-aligned attorneys John Yoo and Jay Bybee.
In the months after 9/11, these Cheneyite lawyers, wielding their boss’ influence, created in the shadows an architecture of repression. Addington wrote a draft directive permitting the National Security Agency, in defiance of the Constitution and the Foreign Intelligence Surveillance Act of 1978, to establish a warrantless digital dragnet of phone and Internet metadata generated by the communications of practically every American. Flanigan, aided by Yoo, wrote the 2001 Authorization for Use of Military Force that made the world into a battlefield at the direction of the president. They further permitted, encouraged, and protected the CIA in launching a regimen of torture-as-geopolitical-revenge, masquerading as intelligence gathering, as well as a network of secret prisons to detain the agency’s alleged-terrorist captives indefinitely. They declared that battlefield captives could be held as “unlawful enemy combatants,” deserving none of the protections of the Geneva Convention, and corralled them, without charge, into the military base at Guantánamo Bay until an end of hostilities that might never arrive. With the exception of CIA torture and much of the wholesale domestic acquisition of Americans’ metadata, these authorities and practices, in one form or another, persist to this day.
Cheney did all of this because his deepest conviction was that the presidency was an elected monarchy. Misconstruing an argument of Alexander Hamilton’s from Federalist No. 70, Cheney pursued what became known as the unitary executive theory. It was predicated on the idea of an unencumbered presidency empowered to control every aspect of the executive branch, regardless of any affected office or agency’s intended independence from political decisions. Cheney had understood the post-Watergate reforms from Nixon’s criminal presidency as a congressional usurpation, and he intended to roll them all back. Excluding Congress from wresting any transparency from his secret Energy Task Force was, to Cheney, part of the point. After 9/11, Yoo contended that during wartime—a circumstance conceivably permanent in a War on Terror—presidential authority is all but plenary. He likes his argument a lot less now that Trump uses it to murder fishermen in the Caribbean, but, like his Bush administration colleagues, takes no responsibility for authoring the authoritarian usurpations of power that he now bemoans.