The command center of "the president's program," as Addington usually called it, was not in the White House. Its controlling documents, which gave strategic direction to the nation's largest spy agency, lived in a vault across an alley from the West Wing [7] -- in the Eisenhower Executive Office Building, on the east side of the second floor, where the vice president headquartered his staff.

The vault was in EEOB 268, Addington's office. Cheney's lawyer held the documents, physical and electronic, because he was the one who wrote them. New forms of domestic espionage were created and developed over time in presidential authorizations that Addington typed on a Tempest-shielded computer across from his desk [8].

It is unlikely that the history of U.S. intelligence includes another operation conceived and supervised by the office of the vice president. White House Chief of Staff Andrew H. Card Jr. had "no idea," he said, that the presidential orders were held in a vice presidential safe. An authoritative source said the staff secretariat, which kept a comprehensive inventory of presidential papers, classified and unclassified, possessed no record of these.

A lot of critics call Cheney and Addington contemptuous of the Constitution. I think that’s completely wrong–a cartoon that misses something important, because it fails to take them seriously. The vice president has an unyielding conviction, to which he has devoted substantial thought, about what the Constitution means. He occupies an extreme position in the usual separation-of-powers debate, sometimes beginning with widely accepted tenets but carrying them beyond the bounds of accepted scholarship. In his own frame of reference, the Constitution not only permits but compels him to help Bush break free of restraints on his prerogatives as commander in chief and leader of the unitary executive branch. But where Cheney does show contempt is for public opinion, the capacity of the citizenry at large to make rational decisions.

Go back and look at what he says about “opinion polls.” Invariably his message is that a politician who pays them heed is failing to do his job. As Cheney sees it, public opinion is fickle, ill-informed, self-contradictory, emotional–nothing like his own conversation with himself and trusted aides. He speaks disdainfully of critics as “elites,” but his own view of democracy is at the far elite extreme. Voters are entitled to choose a president every four years, he said at the National Press Club, but then they need to let him do his job. The transaction is like hiring a surgeon; pick a good one, and don’t try to tell him where to place the knife. This “trustee” model of democracy is associated with Edmund Burke, the Old Whig philosopher in 18th century England. It is not the model that took root here when the Founders designed a plan of government that derived its authority from the people. If you take Cheney’s view, aggressive efforts at secrecy, for our own good, to prevent us from making the wrong choices or interfering with government’s important work, are a rational response.

Our next president will face a difficult challenge. He must repair the wreckage the current administration has left, which means renouncing some of the powers the current President tried to amass as he turned a blind eye to the rule of law and separation of powers. No president will want to limit his own power. But if we are to be the nation our founders envisioned when they gathered in Philadelphia more than two centuries ago, we must work together — across party lines and at all levels of government — to protect and defend our Constitution and restore the rule of law.

1. A Well-Founded View of Presidential Power. To advance the first commitment, the next President should initiate a process to ensure that the new Administration withdraws and repudiates the reasoning of memoranda and opinions that overstate the President’s constitutional powers and that minimize those of Congress and the courts. We have not conducted a comprehensive review of OLC opinions, nor could we as many are classified or otherwise inaccessible. Thus, we cannot offer an exhaustive list of the opinions that should be withdrawn. We do believe, however, that the list should include the Torture Memos, the DOJ Whitepaper on the Terrorist Surveillance Program, and the September 25, 2001 opinion on war powers.

The next President should also affirmatively adopt a view of presidential power that recognizes the roles and authorities of all three co-equal branches and that takes account of settled judicial precedent. We believe that a model the next President should seriously consider adopting is “The Constitutional Separation of Powers between the President and Congress.”[18] Setting forth the principles that will govern the determination of questions of presidential power will provide a constraint against the sort of result-oriented advice-giving that proved so problematic in instances such as the Torture Memo.

2. Openness and Accountability. To advance the commitment to openness and accountability, we offer several recommendations. OLC should review its procedures for releasing opinions and publicly release guidelines that will govern publication decisions. The goal of the review should be to make sure that OLC’s memoranda and opinions are made available to the public to the maximum extent possible consistent with the legitimate confidentiality interests of the Executive Branch.

Congress, the Courts, and the public are unable to check against abuses of executive power if they do not know about them. In this regard, the experience of the past eight years is instructive. It was only years later and due to leaked information that we learned of highly consequential opinions advising that the Executive Branch was not bound to comply with statutory limits on its power, including opinions relating to the treatment of detainees, the President’s domestic surveillance program, and the use of secret prisons overseas for detention and interrogation [...]

The next President should also commit to review the Executive Branch’s practice in asserting privileges, including executive privilege. The presidential communications privilege is, according to the Supreme Court, a legitimate constitutional privilege rooted in the separation of powers. Nevertheless, this privilege is not absolut e and judicial precedent as well as long Executive Branch and congressional practice recognize that the President’s constitutional interest must be balanced against Congress’s legitimate interests in conducting investigations and oversight. The next President should commit that, when disputes over privilege arise, the executive will seek to resolve them through good faith negotiation and meaningful accommodation. This negotiation and accommodation process must include recognition by the Executive Branch of the legitimate claims to information that the Congress does have in its legislative, oversight and investigatory functions. In a recent and highly relevant case, Judge Bates authored a helpful discussion of Congress’ legitimate interests in information, which in our judgment is largely correct.

3. Structural Safeguards against Abuse of Power. To advance the third commitment to enhance structural safeguards, we suggest that the President instruct the Attorney General to pay particular attention to the procedures of OLC. Together with a number of our former colleagues, we have written a set of guidelines that OLC should foll ow in order to best effectuate its role... Public confidence in the impartial administration of justice must be restored. It is not sufficient that the President and Attorney General themselves be satisfied that they have addressed the problem. Their efforts must be considered credible on bipartisan and interbranch bases.