We did it in a manner that I believe and the lawyers that we looked to for advice believed was fully consistent with the Constitution and with the laws of the land. And there's, I say, ample precedent for it.
If you think about what Abraham Lincoln did during the Civil War, what FDR did during World War II, they went far beyond anything we've done in the global war on terror.
But we have exercised, I think, the legitimate authority of the president under Article 2 of the Constitution as commander in chief in order to put in place policies and programs that have successfully defended the nation.
The inaccuracy of those historical comparisons is awe-inspiring. Let's first look at the scope of the crises that Lincoln and FDR faced. The US Civil War (I think War of the Rebellion is more accurate, but that's another post) killed a half-million, that's about 125,000 a year. It was also an existential threat to the United States. WWII involved a global war against two powerful countries (and Italy), one of which had overrun virtually all of Europe--a situation that would've left us with a dictatorial, genocidal foe in command of the resources of a continent.
As for the so-called "War on Terror". 9/11 was a ghastly event but a terrorist strike that killed almost 3000 people isn't close to being on the scale of the two wars in question. Although al-Qaida can cause grievous damage and very much needs to be stopped, it simply doesn't have the destructive power of an armed state. Likewise, outside of Afghanistan, it is more a function of intelligence and police work than a war. Further, the US/Allied non-Afghan military death toll in Afghanistan is about 1,300. Bush doesn't have anything close to the level of justification that Lincoln and FDR could claim.
Cheney wasn't specific as to the exact actions of Lincoln and FDR that was using for a comparison. If he's referring to the mass imprisonment of Americans of Japanese descent and Japanese aliens in concentration camps, it's probably a bad call from a forensic standpoint. Outside of Michelle Malkin, I don't know of any public figure who defends that action now. In fact, the US officially apologized and paid reparations. Cheney uses the argument that such actions "go beyond" anything the Bush administration did. So his defense of torture, extraordinary rendition and Gitmo is that at least we didn't round up all the Arab-Americans in Dearborn and send them to concentration camps in Kansas?
Lincoln did suspend habeas corpus but the Constitution permits that in "cases of rebellion or invasion." The attempted secession of a large part of the country and the seizure of federal assets therein would seem to count as the former. A single terror strike hardly constitutes an invasion. The main objection to Lincoln's act is that such suspension is properly in the power of Congress, not the President. Further, the use of the comparison to justify this administration's actions fails in the face of Ex parte Milligan, which held that, as long as civilian courts were open, military tribunals couldn't be used. Further, nothing in the interview gets around the fact that the policy is 0-3 in the Supreme Court.
None of this should be surprising coming from members of an administration that has started engaging in revisionist history.
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