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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.