It isn't often I agree with Lynn Nofziger, but today is one of those days. Well, mostly. Nofziger muses,
I keep wondering. Was it constitutionally proper for Vice President Cheney to order Air Force jets to shoot down high-jacked passenger planes? Or was he exercising authority that belongs solely to the president.
Yes, the president apparently gave him permission to issue the order. But how did the Air Force generals know? The fact is, they didn't. they had to accept Cheney’s word.
In this instance and under those particular circumstances it was probably all right. But it seems to me that this sets a dangerous precedent.
In the future what is to prevent an overly ambitious vice president or one who is at odds with the president from picking up the phone and issuing orders which, if carried out could result in the death of the president.
Not possible, you say. Who would have thought the events of nine/eleven were possible? Not likely is better. But not likely events occur every day.
It seems to me that the person who should have issued the order was the commander in chief, President George W. Bush. If he could talk to Cheney he could talk directly to the military, leaving no doubt who was in charge.
I think that was the voice of inexperience at work. I don’t think it will happen again.
The last paragraph strikes me as too charitable, but otherwise, I pretty much agree.
Yes, the president apparently gave him permission to issue the order.
Bush cannot simply ‘give Cheney permission’ to issue military orders.
In order to delegate his Constitutional duties as Commander-in-Chief, Bush must send a written declaration to Congress that he is unable to discharge the powers and duties of his office (25th Amendment). Only then can Cheney become ‘Acting President’.
Without this procedure, the Vice President has no more authority to order the military to shoot down civilian airliners than the President’s dog walker. Cheney’s assumption of command on 9/11 was an illegal usurpation of Presidential authority – perhaps the most egregious this country has ever witnessed.
Well gee, this may sound a little weird coming from me, but…
1) I think the President has the authority to delegate authority to anyone he pleases.
2) It wouldn’t surprise me if there was a standing order to the effect that “any order of the VP is to be treated as an order of the President.” Especially since there isn’t a doubt in my mind that Cheney is in fact running the government operationally.
3) It would surprise me very much indeed if anyone admited that such an order existed.
4) As a matter of sheer common sense, I’d rather have Cheney giving orders than Bush any day — which isn’t to say that I would prefer either one of them giving orders to, say, a random USAF Colonel.
“Cheney’s assumption of command on 9/11 was an illegal usurpation of Presidential authority – perhaps the most egregious this country has ever witnessed.”
The lack of common sense contained in this statement is egregious, not Cheney’s actions.
I think the President has the authority to delegate authority to anyone he pleases.
When someone feels like quoting an actual portion of the Constitution (or any other primary legal source for that matter) that allows the President to delegate authority to anyone he pleases, or the Vice President to do any more than preside over the Senate during a tie vote, then feel free to make your imperial presidency arguments.
But ‘because the President says he can’ is not even remotely valid as a legal argument, and goes precisely to the larger point Nofzinger is making about uninformed people who assume the President has powers he does not have.
Simply put, it takes an Act of Congress to authorize Dick Cheney to order planes to be shot down, not a Presidential fiat delivered over a cel phone.
i>The lack of common sense contained in this statement is egregious, not Cheney’s actions.
The lack of justification (legal or otherwise) for this statement is even moreso.
Then again, Bush supporters never seem much concerned nowadays with that little notion called the ‘Rule of Law’. My how times change.
Night Owl —
Perhaps I’m being dense, but I really don’t see the constitutional issue here. The vast majority of military orders are not given viva voce, but through intermediates, and they are surely nonetheless valid. The president tells Cheney “do X”; Cheney tells the Sec. Def. “the president says do X”; the Sec. Def. tells Y, and so on down the chain of command. Surely, from a *legal* point of view, this is no different from the President giving the order X to his code clerk, who passes it to a courier, who passes it to the Sec. Def.’s code clerk, who decodes it and tells his subordinate “the president says do X”, etc., etc. If one is constitutionally appropriate, then the other is. Obviously there are vital *practical* differences, having to do with safeguards put in place to ensure authorization and authentification, and I don’t think we should downplay the impropriety of what happened. But that impropriety is in relation to command-and-control procedures of the military, not the Constitution. The commander-in-chief clause says nothing about by means of which intermediaries the orders of the C-in-C are to be passed on, and the 25th Amendment doesn’t come into play in any way. (If Cheney had given the order solely on his own responsibility, that would be a severe usurpation; but that’s not the case. The fact that the Air Force officers wouldn’t have had an independent way of confirming the order is deeply worrying, but not *constutionally* relevant.)
Incidentally, there are rumours that, during the darkest days of Watergate, Kissinger and James Schlesinger (then Secretary of Defense) sent out word to all the regional commanders that no order from Nixon involving military forces was to be obeyed unless it came through regular channels and was verifiably countersigned by the Sec.-Def. Some might argue that this was not entirely constitutionally proper; it was doubtless nonetheless very prudent.
“Perhaps I’m being dense, but I really don’t see the constitutional issue here. The vast majority of military orders are not given viva voce, but through intermediates, and they are surely nonetheless valid.”
Section 8, Clause 14 gives Congress the power: “To make Rules for the Government and Regulation of the land and naval Forces.” Exercised through the National Security Act of 1947, and the Goldwater-Nichols DOD Reorganization Act of 1986, it specifies the operational chain of command. It’s a significant consideration to ensure civilian control of the military, and to avoid informal and unaccountable taskings in the Defense Department.
“The president tells Cheney “do X”; Cheney tells the Sec. Def. “the president says do X”; the Sec. Def. tells Y, and so on down the chain of command.”
Except the Vice President isn’t in the chain of command, which (per Goldwater-Nichols) “runs from the President to the Secretary of Defense; and from the Secretary of Defense to the commander of the combatant command.”
This is a fairly clear violation of proper command and control procedure, and the interceptor pilots shouldn’t have accepted the order (or, for that matter, any order relayed by a Secret Service agent). However, anyone familiar with the military command structure should expect–that in an unanticipated situation–the authorization would reach the pilots too late. Considering VP Cheney’s military expertise, I suspect it was an intentional response to an extremis situation. (And, IMO, illegal but laudable.)
There is an age-old legal doctrine called “necessity”. It is applied in many areas of the law. The general idea is that if you must commit an otherwise illegal act out of the need to avoid immediate harm to yourself or others (ex. swerve into the wrong lane to avoid an oncoming collision, trespass to rescue a child from a burning building), then that need may serve as a partial or complete defense against the illegality of your act.
There, now you have a common sense idea that every child knows veiled in legal babble. Finally fit for liberal worship?
There is an age-old legal doctrine called “necessity”.
Yes, and how does that doctrine even remotely apply here?
Was the President so incapacitated by his wonderment at a story about goats that he couldn’t stand up and walk out of the classroom? Did the ‘extreme exigency’ of an allegedly faulty cel phone give Cheney the right to issue military orders to kill US civilians? Or was the real ’emergency’ that the President was simply incapable of command and froze under pressure?
Whatever your answer, your ‘age-old doctrine of necessity’ necessarily means that Bush’s ineptitude is justification to toss out two hundred plus years of basic Constitutional Law. But hey! Who cares about the silly Constitution? It’s just more of that same old, liberal legal babble.
Cecil,
Thanks greatly for the clairification. I wasn’t aware that the chain of command was set by statute; I assumed — in retrospect, I don’t really know why — that it was the product of executive orders and internal regulations. That does, in fact, raise a significant legal issue (I’m all for giving Congress it’s due via I.8.14, as you can probably guess from my other comments here). My post was somewhat ill-framed: I only meant that there’s no *explicit* constitutional bar to the president giving orders by a very circuitous route; obviously, if Congress has legislated on the subject, then that controls, and does elevate, by way of the express grant of authority and the take care clause, the impropriety to constitutional status. I stand corrected.
> giving Congress it’s due
Damn it, what is it about editing in comment boxes that makes me forget first-grade grammar?
Sorry.
Night Owl,
“Was the President so incapacitated by his wonderment at a story about goats that he couldn’t stand up and walk out of the classroom? Did the ‘extreme exigency’ of an allegedly faulty cel phone give Cheney the right to issue military orders to kill US civilians? Or was the real ’emergency’ that the President was simply incapable of command and froze under”
I’m not sure of your point, here. The President had a phone, while the VP was in a command center. By the time the President could “walk out” of the classroom to an appropriate comm facility, it might well be too late. And in fact, the orders passed through the normal chain of command were never passed on to the pilots (because the controllers, according to the 9/11 commission “were unsure how the pilots would, or should, proceed with this guidance.”)
Which is the bigger travesty: the normal chain of command which resulted in two interceptors with orders to “ID type and tail,” or the unconstitutional, outside the chain-of-command, ad hoc initiative, that got two other interceptors airborne and willing to shoot? (Correctly, as it happens.) And if they’d been there a bit earlier, should the interceptors have refused to shoot down AA FLT 11 because they didn’t have authorization? The legal issue is one thing, but surely common sense (and saving a few hundred/thousand lives) can justify passing a perfectly legal order through a slightly circuitous route?
Evelyn,
You are very welcome.
By the time the President could “walk out” of the classroom to an appropriate comm facility, it might well be too late.
The legal issue is one thing, but surely common sense (and saving a few hundred/thousand lives) can justify passing a perfectly legal order through a slightly circuitous route?
Common sense says that Presidential perogatives are not contigent on location, and that is why the President ALWAYS travels with a mobile command facility that can communicate with every US military unit at a moment’s notice, and includes communications technicians trained for amost every type of national emergency.
Commom sense says that Presidential perogatives are not contigent on technology, and that even without an ‘appropriate comm facility’, a simple telephone call to an ‘approporiate comm facility’ will suffice.
Common sense says that the President does not wait seven minutes to walk out of the classroom while the nation is under terrorist attack.
Common sense says that even if the President fails to recognize the importance of quick action, or is out of contact, or both, that the Military Chain of Command is designed to ensure an appropriate response.
Common sense say that even if Bush was truly incommunicado, Donald Rumsfeld should have taken his Constitutionally mandated responsibility to order the shootdown himself.
Common sense asks why so many people are willing to ignore the rules and procedures designed for precisely this type of emergency, in favor of an improvised command structure that subverts the Constitutional protections that have served us so well for more than two hundred years through emergencies far more dire than 9/11.
Common sense says that 9/11 should NOT change EVERYTHING.
“Common sense says that Presidential perogatives are not contigent on location, and that is why the President ALWAYS travels with a mobile command facility that can communicate with every US military unit at a moment’s notice, and includes communications technicians trained for amost every type of national emergency.”
Yes, but it’s in the plane (he doesn’t carry a command center in his briefcase). And it doesn’t communicate with US military units directly, but by linking back to the White House comm center.
“Common sense asks why so many people are willing to ignore the rules and procedures designed for precisely this type of emergency, in favor of an improvised command structure that subverts the Constitutional protections that have served us so well for more than two hundred years through emergencies far more dire than 9/11.”
In the first place, the “rules and procedures” were not designed for this type of emergency, and failed miserably to respond appropriately. In the second, the “command structure” you refer to is 18 years old, not 200. (The new structure has evolved gradually to replace the informal system utilized by FDR during WWII, which was far more irregular than merely passing orders through the VP.) And 9/11 is the single largest attack on American soil (in terms of loss of life) in US history.
Is there a technical C2 question in the President relaying orders through the VP instead of SecDef? Yes. But compared with ATC controllers losing track of the aircraft, garbled information through NORAD, late interceptor launches, and military controllers failing to pass the shoot authorization to them, it’s a minor issue with no practical consequences.