For years, critics of the Bush Administration have noted that Vice-President Cheney wielded enormous power that was essentially beyond any oversihgt by Congress or the Judiciary. His infamous declaration that he was a “fourth branch of Government” was an attempt to place all actions within the protective shroud of “executive privelege”, a claim deried by constitutional scholars and lawyers. Now it seems that Cheney was literally running a shadow government behind the scenes – creating a secret assassination plot for Al Qaeda leaders and failing to disclose its existence to Congress as required by law:

The Central Intelligence Agency withheld information about a secret counterterrorism program from Congress for eight years on direct orders from former Vice President Dick Cheney, the agency’s director, Leon E. Panetta, has told the Senate and House intelligence committees, two people with direct knowledge of the matter said Saturday.

[…] Bill Harlow, a spokesman for George J. Tenet, who was the C.I.A. director when the unidentified program began, declined to comment on Saturday, noting that the program remained classified.

The law requires the president to make sure the intelligence committees “are kept fully and currently informed of the intelligence activities of the United States, including any significant anticipated intelligence activity.” But the language of the statute, the amended National Security Act of 1947, leaves some leeway for judgment, saying such briefings should be done “to the extent consistent with due regard for the protection from unauthorized disclosure of classified information relating to sensitive intelligence sources and methods or other exceptionally sensitive matters.”

In addition, for covert action programs, a particularly secret category in which the role of the United States is hidden, the law says that briefings can be limited to the so-called Gang of Eight, consisting of the Republican and Democratic leaders of both houses of Congress and of their intelligence committees.

This is just the latest in a long line of abuses of executive authority by Vice President Cheney – and this isn’t exactly new. Former Vice-President Al Gore himself labeled the executive power grab by Cheney a “constitutional crisis”, and made the explicit comparison to Richard Nixon’s abuses of power – one echoed by Cheney himself, who once answered the question “If the President, during war, decides to do something to protect the country, is it legal?” with a simple “Yes“. Nixon had said, in his famous interview with David Frost, “the president can decide that it’s in the best interests of the nation or something, and do something illegal.”

The big question is whether the Obama Administration is willing to investigate these abuses more deeply. It is unprecedented for an Administration to investigate a preceding one, and Obama himself has forcefully stated he would rather “move foreward” than “look backwards”. This is presumably because Obama fears that the partisan rancor such a move would generate would imperil his domestic agenda. However, the decision is not really Obama’s but rather that of his Attorney General Eric Holder, who faces the same dilemma as his predecessors in that office – he serves two masters, the President and the Law:

[Holder] doesn’t dwell on the fact that he’s the country’s first black attorney general. He is focused instead on the tension that the best of his predecessors have confronted: how does one faithfully serve both the law and the president?

Alone among cabinet officers, attorneys general are partisan appointees expected to rise above partisanship. All struggle to find a happy medium between loyalty and independence. Few succeed. At one extreme looms Alberto Gonzales, who allowed the Justice Department to be run like Tammany Hall. At the other is Janet Reno, whose righteousness and folksy eccentricities marginalized her within the Clinton administration. Lean too far one way and you corrupt the office, too far the other way and you render yourself impotent. Mindful of history, Holder is trying to get the balance right.

[…] These are not just the philosophical musings of a new attorney general. Holder, 58, may be on the verge of asserting his independence in a profound way. Four knowledgeable sources tell NEWSWEEK that he is now leaning toward appointing a prosecutor to investigate the Bush administration’s brutal interrogation practices, something the president has been reluctant to do. While no final decision has been made, an announcement could come in a matter of weeks, say these sources, who decline to be identified discussing a sensitive law-enforcement matter. Such a decision would roil the country, would likely plunge Washington into a new round of partisan warfare, and could even imperil Obama’s domestic priorities, including health care and energy reform. Holder knows all this, and he has been wrestling with the question for months. “I hope that whatever decision I make would not have a negative impact on the president’s agenda,” he says. “But that can’t be a part of my decision.”

The full weight of the decision is laid out in detail in this Newsweek profile of Holder. He is reviewing the evidence and will eventually have to decide whether to appoint a special prosecutor to investigate or not. I don’t envy him that decision. It would be much easier to simply let it go. It is notable that an investigation is not a trial; it may be that Cheney did nothing wrong. But only with an investigation can this be determined in full for the good of the United States, as Cheney’s actions stilke at the heart of the debate about government’s role and restrictions and the balance that Benjamin Franklin famously articulated between security and liberty.

The problem are the republicans. They are committed to Obama’s failure and want to obstruct his domestic agenda at any cost, out of ideological fervor. An investigation would give them the excuse they need to wage all-out war. In essence, they are holding America hostage, with universal health care, the economic recovery, and all the other enormous issues that are on our collective plate at risk. The question is, should that matter? It isn’t an easy answer and I do not envy Eric Holder the task of deciding.

However, if we do not investigate, then one thing is clear. The vice-presidency will retain the powers accrued to it by Cheney, in principle, just waiting for whoever next decides to use them. And in that case, what really separates us from the central american juntas or the Iranian regime? a very thin wall, indeed. Perhaps it’s time for a constitutional amendment to put the lone wolf in its place, and ensure that the 4th Branch of government is permanently shuttered.

Related – excellent summary of the illegal CIA assassination program by Philip Giraldi at The American Conservative. John Cole also comments briefly on it.