MUSCAT, Oman – Vice President Dick Cheney cast the administration's eavesdropping program yesterday as part of a broader effort to reassert presidential powers that he said had been dangerously eroded in the years after Vietnam and Watergate.

Cheney spoke in far greater detail about the decision to eavesdrop without warrants than President Bush did at his Monday news conference.

"I believe in a strong, robust executive authority and I think that the world we live in demands it," Cheney said while talking with a small group of reporters on Air Force Two as he flew from Pakistan to Oman.

In many ways, Cheney was the intellectual instigator of the rapid expansion of presidential authority as soon as Bush came to office.

Yesterday, he made no effort to play down that role, citing his early battle to keep private the names of people he consulted while drawing up recommendations for Bush on energy policy. That effort was upheld in the courts.

Cheney appears to have been the first senior administration official to brief a very small number of congressional leaders on the program and the underlying technology that has permitted the National Security Agency to find and immediately tap into "hot numbers" – telephone calls and e-mails that are suspected to contain communications between terror suspects in the United States and abroad.

Ordinarily, any tap that included one party inside the United States has required obtaining a warrant from a secret court that oversees the enforcement of the Foreign Intelligence Surveillance Act – itself an effort to address of the abuses during the Watergate scandal.

Cheney was unapologetic about circumventing the legal protections, echoing Bush's declarations that it was an appropriate use of executive authority, and going farther than Bush by insisting that it has prevented subsequent attacks.

"The fact of the matter is this is a good, solid program," he said on CNN during his stopover in Pakistan. "It has saved thousands of lives, we are doing exactly the right thing, we are doing it in accordance with the Constitution of the United States, and it ought to be supported. This is not about violating civil liberties, because we're not."

Later, aboard Air Force Two, he said, "I'm sure there is going to be a debate," adding, "it's an important subject." But having served in Congress and earlier as chief of staff to President Ford – a period when he first became concerned about infringements on presidential power – he said he believed the pendulum had swung back too far after the resignation of President Nixon.

After expressing respect for the powers of Congress, he told reporters: "But I do believe that especially in the day and age we live in, the nature of the threats we face, the president of the United States needs to have his constitutional powers unimpaired, if you will, in terms of the conduct of national security policy."

He described the War Powers Act, passed in 1973 by Congress to prevent the president from committing troops without sharp congressional oversight, as "an infringement on the authority of the presidency" and suggested it could be unconstitutional. Similarly, he said budget legislation passed in the 1970s restricted the president's ability to impound money.

"Watergate and a lot of the things around Watergate and Vietnam both during the '70s served, I think, to erode the authority I think the president needs to be effective, especially in the national security area," Cheney said.

Cheney's philosophy on wiretapping and detention and interrogation policy took legal form in a series of memorandums and briefs, many of them written by John Yoo, then a deputy assistant attorney general in the Justice Department's office of legal counsel.

Yoo, a legal scholar from Boalt Hall, the law school at the University of California Berkeley, has told friends that he was taken aback when he became the best-known proponent of pushing the envelope of presidential powers. But many of the documents he and his colleagues wrote described broad and unilateral executive power to combat terrorism, including detaining people without charge indefinitely, subjecting detainees to harsh interrogations and eavesdropping without first obtaining warrants, under some conditions.

For example, in a Sept. 21, 2001, memorandum, administration lawyers said that eavesdropping on telephone calls and e-mail messages without a court's permission could be proper notwithstanding the Fourth Amendment's ban on unreasonable searches and seizures.

"The government may be justified," Yoo wrote in the memorandum, "in taking measures which in less troubled conditions could be seen as infringements of individual liberties." Four days later, Yoo wrote that Congress cannot place "limits on the president's determinations as to any terrorist threat, the amount of military force to be used in response, or the method, timing, and nature of the response."

"These decisions," wrote Yoo, who left the administration two years ago, "under our Constitution, are for the president alone to make."

Both Bush and Cheney in the past two days have drawn on that theory as they pointed to two basic sources of legal power. The first is in Article II of the Constitution, which vests the "executive power" in the president and makes him commander in chief of the military. Cheney discussed that at length yesterday. The second is congressional authorization to use military force in response to the Sept. 11 attacks.

"When we were hit on 9/11," Cheney said, Bush "was granted authority by the Congress to use all means necessary to take on the terrorists, and that's what we've done." At another point he said that "the 9/11 commission criticized everybody in government because we didn't connect the dots. Now we are connecting the dots and they're still complaining, so it seems to me you can't have it both ways."

But it is not clear that either of those sources of legal authority fully supports all aspects of the administration's expansive view of executive power.

"Broad claims of authority and broad claims of illegality are equally suspect," said Douglas Kmiec, a law professor at Pepperdine University.

Geoffrey Stone, a law professor at the University of Chicago, said he found the issue straightforward, at least as regards surveillance by the National Security Agency.

"Some legal questions are hard," Stone said. "This one is not. The president's authorizing of NSA to spy on Americans is blatantly unlawful and unconstitutional."

Cheney took the opposite view, noting that he has been expressing his views on the subject as far back as 1987 when, as a member of the House, he contributed to the minority views in the congressional report on the Iran-Contra scandal.

"Part of the argument in Iran-Contra was whether or not the president had the authority to do what was done in the Reagan years," he said. "And those of us in the minority wrote minority views that were actually authored by a guy working for me, one of my staff people, that I think are very good at laying out a robust view of the president's prerogatives with respect to the conduct of especially foreign policy and national security matters."

Asked if the proper balance had been restored under Bush, he said, "I do think it's swung back."

Cheney suggested that Democrats who push to reduce the powers of the presidency in the wake of the disclosure of the eavesdropping program would pay a political price.

"Either we're serious about fighting the war on terror or we're not," he said. "Either we believe that there are individuals out there doing everything they can to try to launch more attacks, try to get ever deadlier weapons to use against us or we don't. The president and I believe very deeply that there is a hell of a threat."

It is unclear that Bush's order to the NSA will reach the courts; the names of those tapped are kept secret. Nor is it clear whether the courts would be ready to adopt the broad definition of presidential power expressed by Bush, Cheney and Yoo.

Commentary:
Since both Bush and Cheney think a president can rewrite laws without the consent of the governed, both should be impeached and removed from office. Congress is quite a pickle. They know Bush broke the law, and they know the remedy is impeachment. They also know Cheney is worse than Bush so he'd have to be impeached also. So what will they do? They'll pass new laws, which Bush will ignore and try to move on.