Dick Cheney gets backed into a corner and, when given a choice, makes the logical and diplomatic response. Too bad it undermined the long held position of the Australian government and lent support to the opponent of Cheney's host and ally. That he so cavalierly damages Howard's policy speaks volumes about the value of loyalty to Cheney.

Two quotes:

When asked about potential damage to the alliance between Australian and the US if Australia was to pull out of Iraq, Vice President Dick Cheney said:

"I don't see any prospect of damage to the alliance. I think this alliance has been solid. We do from time to time, as all governments do in democracies, have differences of opinion on various and sundry issues, but I think the alliance is rock solid."

In response to accusations that Mr Cheney's answer contradicted the position held by senior Cabinent Ministers and the Prime Minster himself, Mr Howard replied that:

"Mr Cheney was doing the diplomatic thing by staying out of the Australian political debate. But he made it very clear during the time that he was in Australia that America both appreciates our presence in Iraq and wants us to maintain our current commitments."

Allow me to get the two obvious and snarky jokes out of the way. Firstly, Dick Cheney was being diplomatic? Oh no, the pod people have reached the White House! Secondly, marvel at John Howard tacitly acknowledging that when foreign nations comment on internal political issues of other nations, it is undiplomatic. Oh sure, the question was on a topic that Mr Cheney is involved in, his nation is involved in and is cogent to his job; but Mr Howard tells us that Mr Cheney had grace and style and kept his nose out.

I have my doubts keeping out of Australian domestic politics was foremost in Cheney's mind. I have my doubts the Australia-US alliance was foremost in Cheney's mind. He was probably wishing the reporter who asked the question was a lawyer on a duck hunting trip with him, because the question pushed Cheney into what is an uncomfortable corner for the Bush Administration.

The Australian contingent in Iraq is militarily insignificant; they are not really doing much there except guard duty and training. Logistically they're not really taking much pressure off the US either, with a contribution of about one percent of the US force; the US could probably find that many troops for a long-term deployment if it had to. What Australia bought to the table was political support; here was another of America's long-term allies joining in and making it a coalition. Australia isn't like Poland and Spain who have been neutral or even on the Other Side in the last fifty years. Australia isn't like even Italy who have been allies for years by being a founding member of NATO. Australia has been a faithful ally for years and even joined with the US in That Other War that sparks controversy when compared to Iraq. Australia gave what the Taiwanese get from the diplomatic recognition of countries like the Solomon Islands - moral support.

The British gave the same sort of support. They made a significant military contribution, and I'm sure that was appreciated by the US, but the moral support was just as significant as the military support. Orders of magnitude more so that the same moral support that Australia lent because the UK rightly or wrongly throws more weight around the international stage that Australia - I suppose that comes from having nuclear weapons and being for around close to a millennium as a - more or less - continuous political entity.

When the Tony Blair made his pullout announcement shortly before Cheney's trip, it must have made hearts in the White House sink just a little bit. Not really because the moral support will go; that the UK parliament had been debating the pullout so openly for so long had long since washed away the moral and political support the US garnered from British troops on the ground, never mind the same pullout being called for by a majority of US citizens. It is because it was always going to be difficult to maintain that the alliance between the US and the UK wasn't going to be damaged. Hence the statements from the White House that it was good news, boded well for the situation in Iraq that the UK was pulling troops out, statements that are ludicrous on the face of it and made more so every time multiple Iraqis are killed by car bombs.

So when Cheney was asked that question, he had a choice to make about who was more important to the US. Someone was going to be embarrassed if he said something. If he was being diplomatic he would have pretended not to hear the question - a tactic that wouldn't work in a press room as opposed to walking past a press pack on the way from or to a vehicle - or he could have dodged the question. Cheney has practically made a Vice Presidential career out of not dodging questions, hence the long path of controversial and shading-the-truth responses that litter the path from Number One Observatory Circle to Undisclosed Locations Alpha, Beta and Gamma. Dick Cheney is like a Colonel Jessep that doesn't deride our truth handling abilities and doesn't need to be tricked into saying what he really thinks. So what does he say? Does he stick to the White House line and say there would be no damage and thus not cause a diplomatic stink between the US and the UK, or does he agree with John Howard and say, yes it will damage the alliance. One would cause personal embarrass John Howard and - surely - fatally undermine the policy of staying in to make sure the big kid still likes us. The other would - and I don't think I am at all over-stating it - cause an international diplomatic incident. No brainer, isn't it.

Dick Cheney was being diplomatic; he was diplomatically not damaging the UK-US relationship and he left John Howard flapping in the wind. From a man who is otherwise so loathe to engage in real politic that he spurns the idea of negotiating with Iran, Syria and North Korea so much that his boss needs to wait till he is out of the country before announcing an agreement with North Korea, he sure does seem to be making some cold, hard political evaluations. And to think he came out here to shore up Australian support for the surge, or as I like to refer to it, the unconscionable prevention of 20,000 US troops returning home after already completing their tour of duty. John Howard must privately be pissed off.

The Office of the Vice President has argued that it is exempt from complying with an executive order as it is not an "entity within the executive branch that comes into the possession of classified information". The letter from the National Archives to the Attorney General writes that the Office of the Vice President believes this is true because it has both legislative and executive functions.

Firstly, the executive order extends back to 1995 and was re-issued by the Bush Administration more recently. The Office of the Vice President did submit these statistics reports for a couple of years, but stopped in 2003.

Secondly, executive orders do not have the force of law, they have the force of procedure internal to the executive branch. So Henry Waxman's comment that Cheney is "saying he is above the law." is not necessarily true. Cheney is saying he is above the President's executive authority and executive orders, which probably does not make George Bush a happy camper.

Where it may intersect with legislative prerogatives is because it is classified material. Unfortunately I am not familiar enough with US law in this area to comment with any certainty.

I originally thought that Cheney was going to argue that the Office of the Vice President was not directly supported by legislation as other executive bodies are, such as the Department of Agriculture, the Department of Defense, etc etc. I was ready to explore if that was true, but the argument that the Vice President is both executive and legislative means that there is no separation of powers and no checks and balances.

By this mechanism, because the President can veto legislation then the President has legislative functions; because the legislative can over-ride a veto and legislative which executive bodies can exist, then they have executive functions; and because the executive nominates and the legislative approves judges then both are judicial as well. It becomes an absurd argument with little care for the US constitutional structure.

The Vice President is mentioned several times in the US Constitution:

I.III The Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided.

The Senate shall chuse their other Officers, and also a President pro tempore, in the Absence of the Vice President, or when he shall exercise the Office of President of the United States.

II.I The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years, and, together with the Vice President, chosen for the same Term, be elected, as follows:

In every Case, after the Choice of the President, the Person having the greatest Number of Votes of the Electors shall be the Vice President. But if there should remain two or more who have equal Votes, the Senate shall chuse from them by Ballot the Vice President.

II.IV The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

Note the old time spelling of choose. Cheney's office isn't arguing that it is not part of the executive, rather that it is a executive-legislative chimera of an office with the constitutional lines from Article I presumably making the Office of the Vice President exempt from executive orders unless they are described as an agency of the executive and legislative. Which is also absurd.

I think the easiest explanation for all this is the Office of the Vice President didn't want to comply with the executive order, and this description of why, after the fact, is just an attempt to explain it away.

There are more serious issues here though in terms of executive authority; the main one being, the President is the head of the Administration - and the authority vested in an executive order as a procedural outline and as force of procedure, stems from the President's authority in the executive. Cheney is saying figuratively that the Vice President is not under that administrative or procedural authority.

This is more worrying for George Bush as it is a direct challenge and repudiation of his authority.

Update: The President backed down.

White House deputy press secretary Dana Perino said it's clear that the president's executive order never intended for the vice president's office to be treated as an "agency."

Under Carl Schmitt's conservative political philosophy the political, or sovereignty, is decided by who can call the exception. The Vice President just called exception on the President - Cheney has declared he is sovereign over Bush.

It appears there is legislation behind the executive order which governs the archiving of classified material. So the little struggle over the executive order may become moot as the full force of constitutional law, as opposed to the force of executive procedure, is brought to bear on this issue.

Update II: I discussed the Schmittian outcome in more detail on Gary Sauer-Thompson's site: Sovereign By Exception.

The near-history biographical view that Gellman offers of Cheney is an interesting one. It discredits the economic vandalism of a Cheney having Halliburton's interests ahead of the nations, or the politicism that we would ascribe to the likes of Karl Rove, yet Cheney falls into a caricature of maximal power and unerringly remains there.

It appears that Cheney did act in what he thought was the national interest prior to and after September 11th and was remarkably selfless in his economic and political dealings within the executive. However his opinions and knowledge of what the executive could achieve was at odds with the nation and consequent public opinion.

There is also an element of amorality too, in the unitary executive, in the view of the executive in wartime, in the abuse of a weak and incurious President, and in the manipulation of lower positions in the executive policy making process. This amorality and the seeking of absolute power is probably what has damaged US power and perception most.

The Cold War thinking was the biggest restraint on the understanding of Cheney and the threat of terrorism. Cheney see complex systems as fragile and lacking resilience. However the truth is the opposite. Cheney was the fall of government as making the nation fragile when in reality the US is sufficiently well governed that DC is replaceable. So the maximal response Cheney sought with a shadow government was quickly rejected by the likes of Hastert and Byrd who were part of it. Ironically that resilience of Hastert and Byrd is why the US is strong in this area.

The over-reaction by Cheney and the fearfulness of anarchy without strong leadership of a centralized government warped the perceptions of the threat of terrorism. A group that flew aircraft into building with box-cutters became state-sponsored terrorism with nukes in suitcases, When the US needed a Madison, it got a Cheney.

Madison refused in the war of 1812 to under-cut the republican principles of government as he believed it would remove the great strength of America and would make it weaker. Cheney thought opposite and had no faith in the American republican principles - for him clandestine operations were the answer. Madison won the war of 1812, Cheney leaves with what is viewed as one of the worst executives in the history of the US. The lesson is probably under-estimate the wisdom and strength of the American people at our own peril. Madison was on the right side of that argument.

One of the consistencies of Cheney as Vice President was the demonstration of power. He was happy to lose a battle in order to win a war. Unfortunately his gains were exceptionally short term. Almost immediately after the Bush Administration was weakly advanced into power, Cheney fought with the Senate over legislation, isolating the moderate Republicans.

One of them was Jim Jeffords who threatened to caucus with the Democrats. Cheney refused to compromise, and Jeffords, in the face of an unwilting executive turned independent. Cheney did not care, but the Republicans lost control of the Senate.

The view of the demonstration of power was that it sent a warning and others would back off with the knowledge that the White House was willing to demonstrate its power both absolutely and arbitrarily. Which is fine when it is politically sustainable, a recipe for bad governance when it is not.

Iraq fell under this doctrine. The Administration knew that in terms of political tolerance of terrorism that Pakistan and Saudi Arabia topped the list. Iraq became a demonstration of power under Cheney who mixed realpolitick of power, containment and politics.

It became the farce that the old Cold War view was what they hung their hat upon; to paraphrase, show where you are strong as a deterrent to other players, and contain the rest; such as Iran, until they fail on their own accord. Instead it has done little more than dissipate American power.

In Angler we see bad policy upon bad policy made under an executive that was a mix of genuinely fearful, cowardly, lacked faith in American strength, and took advantage of an incurious and disengaged President. There are also the monsters that legally backed up the horrors that have accompanied it - like John Yoo - the amorality is obvious and the disengagement in the ideological sustainment of the unitary executive obvious.

You are left wondering how such monsters as Cheney, Addington and Yoo were able to operate within the framework of the executive. It comes down to a weak Congress, and a disengaged President. I doubt an 'Angler' or Cheney Vice Presidency could have survived in a Clinton, Bush I, Reagan, or any other presidency.

The Bush Administration was able to appoint two Supreme Court justices. Bush wanted diversity in the choices, such as a woman or a minority. Both his picks, Gonzalas and Miers, were shot down by both conservatives and public opinion.

Cheney, however, wanted justices that supported his view of the unitary executive in order to back up his actions in areas such as emergency, terror, torture, executive privilege, etc. Cheney led the panel that selected the final five candidates. Gellman writes:

Collectively, the group [of candidates] saw executive power in expansive terms and congressional authority more narrowly.

The media concerns and political showmanship over abortion was a furphy as it turned out - more suited to scandal than judicaturial scholarship. With Roberts and Alito the Supreme Court of the USA became more executive friendly.

The unitary executive is a cherry picked view of the Federalist Papers, namely Hamilton's No.70 where he argues that a vigorous executive is essential to good government. Hamilton writes:

That unity is conducive to energy will not be disputed. Decision, activity, secrecy, and despatch will generally characterize the proceedings of one man in a much more eminent degree than the proceedings of any greater number; and in proportion as the number is increased, these qualities will be diminished.

This unity may be destroyed in two ways: either by vesting the power in two or more magistrates of equal dignity and authority; or by vesting it ostensibly in one man, subject, in whole or in part, to the control and co-operation of others, in the capacity of counsellors to him.

Hamilton then goes on to argue against the Roman Consul system which was a two President style system. In reality though the Consuls were warrior kings and were off fighting the wars of Rome pretty much constantly, enough that new magistracies had to be made in Rome with imperium to deal with the domestic issues of the city.

Cheney's view on executive authority is very similar to Thomas Jeffersons which is known as the Doctrine of Higher Obligation. I have often wondered if they would not have got more popular traction by claiming they were operating under Jefferson's view of executive power than the 'unitary president'.

The presidential doctrine of executive power we know today is more Madison's and stems from his time as President when he pretty much over-rode Jefferson's machinations through practice and convention.

Hamilton's argument doesn't bear for Cheney, especially not when it is backed by the whacko and extreme writings of John Yoo as legal precedent, and leaves the citizen wondering if the last eight years wasn't just an excuse for maximal power.

The ultimate test is if the 'unitary executive' brought good government. It did not. This is already recognized as one of the worst Administrations in the history of the United States. For that reason alone the doctrine of the unitary executive is a failed one.

Ron Suskind's book on Paul O'Neil wrote that Cheney made the comment that "Deficits don't matter". Cheney meant politically that deficits don't matter, while they matter economically and to the economic health of a country, in the United States the politics are such that it doesn't matter. When it was written in Suskind's book it caused a furore as it became a template for the profilgate spending of the Bush Administration. Cheney, however, was perfectly correct. Paul Krugman writes:

... after one of the biggest moves toward budget balance in history [Clinton/Gingrich], a majority of Republicans, and a plurality of all voters, believed that deficits had increased. ... The truth is that the truth about budgets plays almost no role in real politics.

Sadly, Cheney is right. Politically; deficits don't matter.