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Richard Cheney and American Exceptionalism

by Professor Will Huhn on December 10, 2009

in Constitutional Law,Procedural Due Process,Separation of Powers,Wilson Huhn

     In a recent interview with Sean Hannity of Fox News, former Vice-President Richard Cheney referred to President Barack Obama as "this guy who doesn't fully understand or share that view of American exceptionalism that I think most of us believe in," and stated that it would give "aid and comfort to the enemy" to try accused terrorists in federal court.  As Al Smith used to say, "Let's look at the record."

     In charging the President with "giving aid and comfort to the enemy," Cheney was quoting the Constitution – specifically, Article III, Section 3, Clause 1, which states:

Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort.

     Cheney is quite literally claiming that President Obama is committing treason by bringing the al-Qaeda prisoners to trial in criminal court to answer for their crimes.  Furthermore, he asserts that Obama – "this guy," as Cheney sneeringly refers to the sitting President - doesn't understand what makes America exeptional.  I beg to differ.

     The Bush administration bungled badly in its attempt to bring suspected terrorists to justice.  They convened kangaroo courts – ad hoc military tribunals where prisoners did not even have the right to attend trial, let alone basic rights such as the right to effective assistance of counsel, the right to present evidence, the right to confront one's accusers, and the right to cross-examine witnesses.  In four major cases before the Supreme Court of the United States (Rasul v. Bush, Hamdi v. Rumsfeld, Hamdan v. Rumsfeld, and Boumediene v. Bush), the Bush administration sought to justify its jerryrigged system of military tribunals - and it lost every single case!  In these cases the Supreme Court ruled that the federal courts have jurisdiction over the decisions of the military tribunals at Guantanamo, that the procedures being followed by those tribunals violated Due Process, that the military tribunals as constituted did not comply with either the Geneva Convention or the Uniform Code of Military Justice, and that the procedures that the former President had instituted and that the military had followed were so inadequate as to necessitate habeas corpus proceedings to determine whether prisoners were even being lawfully detained.  I cannot recall any Presidential administration whose legal, military, and foreign policy decisions were so soundly rejected as unconstitutional by the Supreme Court.

     I agree with Mr. Cheney and with President Obama that the perpetrators of the attack of September 11 deserve to be executed.  Unfortunately, the administration of which Mr. Cheney was so prominent a part was unable to make any progress in this regard.  The only prisoner whom it managed to convict of a war crime – Salim Hamdan, allegedly Osama bin Ladin's chauffeur – was eventually found guilty of minor offenses, sentenced essentially to time served, and released with the apology of the military judge, who referred to Hamdan as only a "small player." 

     If proper military tribunals similar to those that President Truman instituted following World War II had been convened – or if American authorities had simply accorded prisoners the same rights set forth in the Uniform Code of Military Justice governing courts martial – the suspected terrorists would already have been convicted and sentenced.  If the Bush administration had displayed more confidence in the American legal system and its own Department of Justice, I am certain that by now prosecutors could have sought and obtained the death penalty against the masterminds of 9/11.  Like so much else, including the war in Afghanistan against al-Qaeda, the task of prosecuting these criminals was not undertaken with the necessary conviction and competency by the Bush/Cheney administration, and the current administration has to clean up their mess. 

     Which brings us to Mr. Cheney's charge that "this guy … doesn't fully understand or share that view of American exceptionalism that I think most of us believe in."  I would agree that the President does not share the same view of American exceptionalism as Mr. Cheney.  I disagree that "most of us" share Mr. Cheney's vision.  America is exceptional because of its commitment to the rights of individuals and to government under law – to human rights and to the rule of law.  Our leaders draw their power from one source – the Constitution of the United States.  The Constitution is the law that governs the government.  No elected or appointed official – no legislature or court – no military officer, not even the Commander-in-Chief of our military – has even a speck of lawful authority other than that prescribed by the Constitution. 

     The Constitution states that

"No person shall be deprived of life, liberty, or property without due process of law." 

     The Constitution states that

"The privilege of the writ of habeas corpus shall not be suspended unless when in cases of rebellion or invasion the public safety may require it."

     The Constitution states that

"No person shall be compelled in any criminal case to be a witness against himself."

     Mr. Cheney is not being prosecuted for his role in many questionable activities: the use of false intelligence to drive the American people into war against Iraq; the disclosure of the identity of an undercover C.I.A. agent; and the torture of prisoners.  Any one of these actions might form the basis for a criminal indictment.  The Obama administration has made a decision not to prosecute these offenses but rather to "look forward," a decision that I understand and accept – but that does not mean that I condone the actions of the former Vice-President or that we as a nation committed to the Rule of Law should ever become inured to unlawful acts by our highest elected officials.

     There have been Vice-Presidents who sullied the office.  Aaron Burr plotted against the United States and murdered one of our greatest national heroes.  John C. Calhoun advocated nullification and secession.  Spiro Agnew was a petty crook.  History will judge whether Mr. Cheney deserves to be ranked with those wicked men.  But the record unequivocally shows that he does not understand what makes America exceptional.

Professor Huhn has taught Constitutional Law at The University of Akron School of Law for over 25 years.  You may access his website on constitutional law for materials relating to his course as well as links to other sources of information on constitutional law.

{ 7 comments }

larry d. December 10, 2009 at 7:43 am

"America is exceptional because of its commitment to the rights of individuals and to government under law – to human rights and to the rule of law. Our leaders draw their power from one source – the Constitution of the United States. The Constitution is the law that governs the government. "

Power, law, government, power, law, government, power, law, government. You have a nightmarish understanding of American exceptionalism and society in general, professor.

It is also a little ludicrous to call "kangaroo court" after previously arguing that the terrorists should be brought to New York because they won't be freed even if found innocent.

CAV December 10, 2009 at 10:54 am

Amen Professor Huhn!

Quidpro December 10, 2009 at 11:19 am

Interesting ad hominem against Cheney, Professor. But it does not respond to Cheney's charges against the current administration.

Even if all of your criticisms against the Bush administration had merit, which they do not, they do not justify the current administration's decision to try terrorists captured over seas in American civilian courts. Attacking Bush is no defense of Obama.

In fact, your reliance on the "proper military tribunals" convened by President Truman after WWII undermines your defense of Obama. Recall that the Nuremburg trials were held in German territory controlled by the victorious allies, not in the US. Bringing KSM and his cohorts to America for trial hardly evokes Trumanesque stature.

Finally, larry is correct that your view of American exceptionalism, like that of President Obama, is stunted and bizarre. Certainly American exceptionalism cannot be reduced soley to the foundations of our legal system. This view neglects our spirit that combines individualism with community involvment, the optimism that spread across a continent and that sees problems as temporary challenges to be solved. You need to reread your Tocqueville, Professor.

Dave December 10, 2009 at 11:50 am

The teaser portion of your blog ended with "Let's look at the record."

So you can imagine my surprise and disappointment at finding a bunch of conspiracy nonsense where I was expecting facts.

If you wanted to make a case about the term aid and comfort and leave it at that there would probably not be much to argue with. Some case could obviously be made that people who were subject to these unfair charges would look for an opportunity to direct these same charges at those that they feel wronged them. But like mom said 'two wrongs don't make a right.'

You also can't seem to come to grips with the idea that some of these rules couldn't possibly be intended to apply during times of war in a foreign country. The best example is the taking of life, liberty, or property without due process of law. I have offered this to you in the past as a definition of war.

So President Bush set up military commission, the SCOTUS found fault with the process. The Congress set up guidelines and President Bush set off in that direction. President Obama has found it necessary to trump all of that with this ill conceived idea.

I have a problem with both methods. My first complaint about these trials is why now? I would not be concerned about the resolution of these cases until the hostilities are over.

I would remind people that we held German prisoners after World War II and then decided their disposition. It didn't matter if you were captured early in the war or later, nobody cared until it was over.

In the end, I admire your defense of the constitution. I wish you would join in defending the constitution from the repeated twisting, stretching and manipulating of the commerce clause to trample the people's rights.

Macmon December 10, 2009 at 1:40 pm

Please define what the heck is American Exceptionalism. You think that for some reason American's and America is more exceptional than any other people or country. I can see George Washington and Thomas Jefferson are shaking their heads in dismay. America is not about being exceptional. It is about taking advantage of the rights and freedoms that we are gauranteed by the Constitution. If anything is exceptional about America it is the Constitution. The Constitution is an amazing document. Written so carefully to provide rights to the states, but loosely enough that the Federal government has enough power to govern effectively.

The power of lawful government is what makes America great, not the great wealth of some of its citizens, not the unlawful power of its corporations and specifically not the power grab by one of the worst administrations this country has ever had.

Professor Will Huhn December 10, 2009 at 3:37 pm

I am proud to be attacked from both left and right! And larry d. attacks from both sides at once!!
larry,
I don't think that there is anything contradictory about saying that a prisoner of war who is accused of murder may continue to be detained even if found innocent of war crimes. And larry, you know that I love America for many other reasons – you have made fun of some of them! – but what has made us exceptional, as a society, is that "ours is a government of laws, not of (wo)men."
CAV – Thanks!
Quidpro,
Agree with you about de Toqueville – I read him often, and you are right – he identifies much that is exceptional in the national character.
Dave,
My point is simple. The Bush administration screwed up in not trying the war criminals before a regular tribunal. Our statutes, treaties, and the Constitution all demanded that – and Dave, it wasn't just one false step, but back and forth to the Supreme Court four times. I know that you admire the Constitution just as much as I do, but I don't think that the same can be said for the previous administration.
Macmon,
I am proud of my country, as I hope all persons are. I don't think that Americans are better than the people of other nations, and if you follow this column you know how critical I am of various aspects of American law and society.
And yet … unlike other countries, America is not primarily identified with any particular race or ethnicity or religion or language or culture. We are a mish-mosh, and while a distinctive American culture has emerged – Hollywood, MacDonald's, Google – I do not base my belief of American exceptionalism in those entertaining but rather superficial aspects.
As you may infer from today's post, I am most of all proud that America was founded as a nation based upon the rule of law – dedicated to majority rule, but protective of minority rights. Until after World War II not a single other country treated its Constitution (if it had one) as law. Over the past half-century many countries have followed this example, and in some respects have surpassed the United States in their protection of democracy, limited government, and human rights. But my country led the way in this regard, and retains the capacity to recover when it strays from the path of equal justice under law.

larry d. December 11, 2009 at 7:10 pm

You've got it upside down, Professor. If I didn't know you better I'd guess you're part and parcel with an elite subclass that rules the country simply by manipulating the tricks of the machine.

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