Call it Nixon's revenge. The combination of Watergate and Vietnam created an environment in which executive power was deemed too dangerous to be trusted. Gerald Ford, for whom Rumsfeld also worked, inherited a crippled presidency. Jimmy Carter brandished his constitutional crutches as a matter of pride. But many conservatives seethed and waited a long time for a chance to reverse what they saw as a dangerous concession to the legislative branch.
It's clear now that 9/11 was seen by Cheney and Rumsfeld not simply as a catastrophe but as an opportunity. Just as Karl Rove exploited the war to divide and defeat the Democrats, so Cheney and Rummy saw a chance to reverse decades of post-Vietnam executive branch erosion.
The war against terror, they argued, was an opportunity to insist the President was answerable to no court and no legislature in war-making. If he found laws that inhibited his range of action, he could simply ignore them. As commander-in-chief he wasn't so much above the law as he was the law. The brightest legal stars in the conservative intelligentsia were drafted to write legal memos justifying an extraordinary expansion of presidential power. He could ignore any treaties; he could violate any US law; he could upend decades of military justice; he could tell the UN to stuff it. And he did.
If you wonder how the US military got away with violating American law and torturing detainees at secret sites, wonder no longer. In wartime, Bush's lawyer John Yoo argued, the President could authorise the torture of anyone. In a recent debate at Notre Dame University, Yoo even claimed no treaty or law could definitively prevent the President from authorising the torture of a terrorist's child if he thought it was necessary for national security. If the President could legally and constitutionally do that, wire-tapping American citizens is a no-brainer.
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