WHAT NIXON ADMITTED (AND CHENEY WON'T)

by Joe Conason

To understand the philosophy of government that Dick Cheney brought to Washington over the past seven years, it is most instructive to see "Frost/Nixon," with Frank Langella's remarkable reanimation of Tricky Dick for a generation that never knew him. In Nixon's famous conversation with David Frost, there came a moment when the old reprobate uttered the truth -- a truth that Cheney still prefers to obscure when he talks about illegal surveillance, torture and other violations of the Bill of Rights, as he did in his exit appearance this week on Fox News.

The crucial moment of candor arrives not when Nixon briefly pretends to feel deep remorse over his actions (a pose he later abandoned in his memoir). Instead it is when he offers his perspective on the powers of the president, and unintentionally reveals the full extent of his lawlessness.

Asked by Frost to explain how he could justify illegal wiretapping, black-bag jobs and other gross violations of law in collecting intelligence on the movement against the Vietnam War, he replies in a blandly sinister tone: "Well, when the president does it, that means it is not illegal."

"Fox News Sunday" host Chris Wallace put a similar question to Cheney concerning the dubious conduct of the Bush administration: "If the president, during war, decides to do something to protect the country, is it legal?" The vice president's response was long-winded and obfuscatory, but the same in essence as Nixon's. "In general proposition, I'd say yes," he began, and then went on to claim that because the president can launch a nuclear strike without consulting Congress, he can do pretty much anything that he claims is in defense of the nation during wartime.

To buttress his novel theory -- which of course contradicted the very essence of the constitutional balance of powers -- Nixon cited historical parallels that were echoed by Cheney last Sunday, more than 30 years later.

Defending actions that clearly violated the Constitution and the law, Nixon alluded to Lincoln's suspension of habeas corpus and compared the threat to the nation by internal dissension in the '60s to the Civil War a century earlier. "Lincoln said, and I think I can remember the quote almost exactly, he said, 'Actions which would otherwise be unconstitutional could become lawful if undertaken for the purpose of preserving the Constitution and the nation.' ... This nation was torn apart in an ideological way by the war in Vietnam, much as the Civil War tore apart the nation when Lincoln was president."

In his interview with Chris Wallace on Fox, Cheney specifically referred to Lincoln (and threw in Franklin Roosevelt for good measure). As always, he lapsed into euphemism, but the meaning is unmistakable. Living in the aftermath of 9/11, he said, "we find ourselves in a situation where I believe you need strong executive leadership. What we did in this administration is to exert that kind of authority. É If you think about what Abraham Lincoln did during the Civil War, what F.D.R. did during World War II, they went far beyond anything we've done in a global war on terror. But we have exercized, I think, the legitimate authority of the president under Article II of the Constitution as commander in chief in order to put in place policies and programs that have successfully defended the nation."

In retrospect, however, the late president appears much more forthright than the current vice president. Unlike Mr. Cheney, who continues to make extravagant claims for the power of the president that have been explicitly rejected by the Supreme Court, Nixon at least acknowledged the thinness of his case. During the actual Frost-Nixon interview, the British talk show host, evidently stunned by his guest's claim of monarchical authority, questioned whether there was "anything in the Constitution É that suggests the president is É that far above the law."

Replied Nixon, "No, there isn't. There's nothing specific that the Constitution contemplates in that respect."

The founding document that every federal official swears to uphold is replete with limitations on the executive power. George Washington warned against those who would seek to expand that power by usurpation, and we have seen that come to pass. Among the most urgent tasks of the new president -- as he and his vice president seem to realize -- will be repairing the damage done to law and justice by Nixon's unrepentant heirs.