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Palace Revolt-Conservatives Who Fought
Bush's Power-Grab Pay Heavy Price
MSNBC/Newsweek
By Daniel Klaidman, Stuart Taylor Jr. and Evan Thomas
Feb. 6, 2006 issue
They were loyal conservatives, and Bush appointees. They fought a quiet
battle to rein in the president's power in the war on terror. And they paid a
price for it. A NEWSWEEK investigation.
Feb. 6, 2006 issue - James Comey, a lanky, 6-foot-8 former prosecutor who
looks a little like Jimmy Stewart, resigned as deputy attorney general in the
summer of 2005. The press and public hardly noticed. Comey's farewell speech,
delivered in the Great Hall of the Justice Department, contained all the
predictable, if heartfelt, appreciations. But mixed in among the platitudes was
an unusual passage. Comey thanked "people who came to my office, or my home, or
called my cell phone late at night, to quietly tell me when I was about to make
a mistake; they were the people committed to getting it right—and to
doing the right thing—whatever the price. These people," said Comey,
"know who they are. Some of them did pay a price for their commitment to right,
but they wouldn't have it any other way."
One of those people—a former assistant attorney general named Jack
Goldsmith—was absent from the festivities and did not, for many months,
hear Comey's grateful praise. In the summer of 2004, Goldsmith, 43, had left
his post in George W. Bush's Washington to become a professor at Harvard Law
School. Stocky, rumpled, genial, though possessing an enormous intellect,
Goldsmith is known for his lack of pretense; he rarely talks about his time in
government. In liberal Cambridge, Mass., he was at first snubbed in the
community and mocked as an atrocity-abetting war criminal by his more knee-jerk
colleagues. ICY WELCOME FOR NEW LAW PROF, headlined The Harvard Crimson.
They had no idea. Goldsmith was actually the opposite of what his detractors
imagined. For nine months, from October 2003 to June 2004, he had been the
central figure in a secret but intense rebellion of a small coterie of Bush
administration lawyers. Their insurrection, described to NEWSWEEK by current
and former administration officials who did not wish to be identified
discussing confidential deliberations, is one of the most significant and
intriguing untold stories of the war on terror.
These Justice Department lawyers, backed by their intrepid boss Comey, had
stood up to the hard-liners, centered in the office of the vice president, who
wanted to give the president virtually unlimited powers in the war on terror.
Demanding that the White House stop using what they saw as farfetched
rationales for riding rough-shod over the law and the Constitution, Goldsmith
and the others fought to bring government spying and interrogation methods
within the law. They did so at their peril; ostracized, some were denied
promotions, while others left for more comfortable climes in private law firms
and academia. Some went so far as to line up private lawyers in 2004,
anticipating that the president's eavesdropping program would draw scrutiny
from Congress, if not prosecutors. These government attorneys did not always
succeed, but their efforts went a long way toward vindicating the principle of
a nation of laws and not men.
The rebels were not whistle-blowers in the traditional sense. They did not
want—indeed avoided—publicity. (Goldsmith confirmed public facts
about himself but otherwise declined to comment. Comey also declined to
comment.) They were not downtrodden career civil servants. Rather, they were
conservative political appointees who had been friends and close colleagues of
some of the true believers they were fighting against. They did not see the
struggle in terms of black and white but in shades of gray—as painfully
close calls with unavoidable pitfalls. They worried deeply about whether their
principles might put Americans at home and abroad at risk. Their story has been
obscured behind legalisms and the veil of secrecy over the White House. But it
is a quietly dramatic profile in courage. (For its part the White House denies
any internal strife. "The proposition of internal division in our fight against
terrorism isn't based in fact," says Lea Anne McBride, a spokeswoman for Vice
President Dick Cheney. "This administration is united in its commitment to
protect Americans, defeat terrorism and grow democracy.")
The chief opponent of the rebels, though by no means the only one, was an
equally obscure, but immensely powerful, lawyer-bureaucrat. Intense, workaholic
(even by insane White House standards), David Addington, formerly counsel, now
chief of staff to the vice president, is a righteous, ascetic public servant.
According to those who know him, he does not care about fame, riches or the
trappings of power. He takes the Metro to work, rather than use his White House
parking pass, and refuses to even have his picture taken by the press. His
habitual lunch is a bowl of gazpacho, eaten in the White House Mess. He is
hardly anonymous inside the government, however. Presidential appointees quail
before his volcanic temper, backed by assiduous preparation and acid
sarcasm.
Addington, 49, has worked as an adviser to Dick Cheney off and on since
Cheney was a member and Addington a staffer on the House Intelligence Committee
in the mid-'80s. When Cheney became secretary of Defense in the Bush 41
administration, Addington served at the Pentagon as general counsel. When
Cheney became vice president to Bush 43, he brought Addington into the White
House as his lawyer. Counsel to the vice president is, in most administrations,
worth less than the proverbial bucket of warm spit, but under Prime Minister
Cheney, it became a vital power center, especially after 9/11.
Like his boss, Addington has long believed that the executive branch was
pitifully weakened by the backlash from Vietnam and the Watergate scandal.
Fearful of investigative reporters and congressional subpoenas, soldiers and
spies had become timid—"risk averse" in bureaucratic jargon. To Addington
and Cheney, the 9/11 attacks—and the threat of more and worse to
come—were perfect justification for unleashing the CIA and other
long-blunted weapons in the national-security arsenal. Secretary of Defense
Donald Rumsfeld, who disdains lawyers, was ready to go. So, too, was CIA
Director George Tenet—but only if his spooks had legal cover, so they
wouldn't be left holding the bag if things went wrong.
Addington and a small band of like-minded lawyers set about providing that
cover—a legal argument that the power of the president in time of war was
virtually untrammeled. One of Addington's first jobs had been to draft a
presidential order establishing military commissions to try unlawful
combatants—terrorists caught on the global battlefield. The normal
"interagency process"—getting agreement from lawyers at Defense, State,
the intelligence agencies and so forth—proved glacial, as usual. So
Addington, working with fellow conservative Deputy White House Counsel Timothy
Flanigan, came up with a solution: cut virtually everyone else out. Addington
is a purist, not a cynic; he does not believe he is in any way ignoring or
twisting the law. It is also important to note that Addington was not sailing
off on some personal crusade; he had the full backing of the president and vice
president, who shared his views. But, steeped in bureaucratic experience and
clear in his purpose, Addington was a ferocious infighter for his cause.
(Addington declined to comment. But McBride, the vice president's spokeswoman,
said, "David Addington has a long, distinguished record of public service. He's
committed to the president's agenda.")
Inexperienced in national-security law, White House Counsel Alberto Gonzales
was steered by more-expert lawyers like Addington and Flanigan. Others, like
John Bellinger, the National Security Council's top lawyer, were simply not
told what was going on. Addington and the hard-liners had particular disregard
for Bellinger, who was considered a softie—mocked by Addington because he
had lunch once a month or so with a pillar of the liberal-leaning legal
establishment, the late Lloyd Cutler. When Addington and Flanigan produced a
document—signed by Bush—that gave the president near-total
authority over the prosecution of suspected terrorists, Bellinger burst into
Gonzales's office, clearly upset, according to a source familiar with the
episode. But it was too late.
Addington was just getting started. Minimizing dissent by going behind the
backs of bureaucratic rivals was how he played the game. A potentially
formidable obstacle, however, was the Justice Department's Office of Legal
Counsel. The OLC is the most important government office you've never heard of.
Among its bosses—before they went on the Supreme Court—were William
Rehnquist and Antonin Scalia. Within the executive branch, including the
Pentagon and CIA, the OLC acts as a kind of mini Supreme Court. Its carefully
worded opinions are regarded as binding precedent—final say on what the
president and all his agencies can and cannot legally do.
Addington found an ally in an OLC lawyer whose name—John
Yoo—would later become synonymous with the notion that power is for the
president to use as he sees fit in a time of war. Shortly after 9/11, Yoo
wrote, in a formal OLC opinion, that Congress may not "place any 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."
The brainy, pleasant and supremely self-confident Yoo became Addington's
main man at Justice, a prolific author of legal opinions granting the president
maximum power during wartime. In the winter of 2002, the CIA began catching top
Qaeda terrorists—so-called High Value Targets—like Abu Zubaydah.
These hard-case jihadists proved resistant to normal methods of interrogation.
In the fevered atmosphere of the time, the Bush administration feared a "second
wave" attack from Qaeda sleeper cells still inside the United States. The CIA
wanted legal permission to use "coercive methods."
An August 2002 OLC memo, signed by the then head of the OLC—Jay
Bybee—but drafted by Yoo, gave the agency what it needed. The
controversial document, which became famous as the "torture memo" when it
leaked two years later, defined torture so narrowly that, short of maiming or
killing a prisoner, interrogators had a free hand. What's more, the memo
claimed license for the president to order methods that would be torture by
anyone's definition—and to do it wholesale, and not just in specific
cases. A very similar Yoo memo in March 2003 was even more expansive,
authorizing military interrogators questioning terror suspects to ignore many
criminal statutes—as well as the strict interrogation rules traditionally
used by the military. Secretary of Defense Rumsfeld put some limits on
interrogation techniques, and they were intended to be used only on true terror
suspects. Perhaps inevitably, however, "coercive interrogation methods" spread
from Guantanamo Bay, which housed terror suspects, into prisons like Abu
Ghraib, where detainees could be almost anyone. (Poor leadership in the chain
of command and on the ground was partly to blame, as well as loose or fuzzy
legal rules.) The result: those grotesque images of Iraqis being humiliated by
poorly trained and sadistic American prison guards, not to mention prisoners
who have been brutalized and in some cases killed by interrogators in
Afghanistan and elsewhere.
n the summer of 2003, Yoo, who stands by his body of work, left the Justice
Department and returned to teaching law. His departure came in the midst of a
critical power struggle. Addington and Gonzales had both wanted to make Yoo
head of the OLC when Bybee went off to take a federal judgeship in March 2003,
but Attorney General John Ashcroft balked. Ashcroft's reasons were apparently
bureaucratic. (He declined to speak for this story.) According to colleagues,
he resented Yoo's going behind his back to give the White House a private
pipeline into the OLC. Yoo denied circumventing Ashcroft. "OLC kept the
attorney general or his staff fully informed of all of its work in the war on
terrorism," he said.
Jack Goldsmith, a law professor who was working in the general counsel's
office at the Pentagon, was the eventual compromise choice to head the OLC.
Goldsmith seemed like a natural fit. He was brilliant, a graduate of Oxford and
Yale Law School, and he was conservative. Like Yoo, he was tagged a "New
Sovereigntist" for his scholarly argument that international laws including
prohibitions on human-rights abuses should not be treated as binding law by the
U.S. courts.
But somehow, in the vetting of Goldsmith, one of his important views was
overlooked. Goldsmith is no executive-power absolutist. What's more, his
friends say, he did not intend to be a patsy for Addington and the hard-liners
around Cheney. Goldsmith was not the first administration lawyer to push back
against Addington & Co. At the CIA, general counsel Scott Muller had caused
a stir by ruling that CIA agents could not join with the military in the
interrogation of Iraqi prisoners. But Goldsmith became a rallying point for
Justice Department lawyers who had legal qualms about the administration's
stance.
Goldsmith soon served notice of his independence. Shortly after taking over
the OLC in October 2003, he took the position that the so-called Fourth Geneva
Convention—which bars the use of physical or moral coercion on prisoners
held in a militarily occupied country—applied to all Iraqis, even if they
were suspected of belonging to Al Qaeda.
Addington soon suffered pangs of buyer's remorse over Goldsmith. There was
no way to simply ignore the new head of the OLC. Over time, Addington's
heartburn grew much worse. In December, Goldsmith informed the Defense
Department that Yoo's March 2003 torture memo was "under review" and could no
longer be relied upon. It is almost unheard-of for an administration to
overturn its own OLC opinions. Addington was beside himself. Later, in frequent
face-to-face confrontations, he attacked Goldsmith for changing the rules in
the middle of the game and putting brave men at risk, according to three former
government officials, who declined to speak on the record given the sensitivity
of the subject.
Addington's problems with Goldsmith were just beginning. In the jittery
aftermath of 9/11, the Bush administration had pushed the top-secret National
Security Agency to do a better and more expansive job of electronically
eavesdropping on Al Qaeda's global communications. Under existing law—the
Foreign Intelligence Surveillance Act, or FISA, adopted in 1978 as a
post-Watergate reform—the NSA needed (in the opinion of most legal
experts) to get a warrant to eavesdrop on communications coming into or going
out of the United States. Reasoning that there was no time to obtain warrants
from a secret court set up under FISA (a sometimes cumbersome process), the
Bush administration justified going around the law by invoking a post-9/11
congressional resolution authorizing use of force against global terror. The
eavesdropping program was very closely held, with cryptic briefings for only a
few congressional leaders. Once again, Addington and his allies made sure that
possible dissenters were cut out of the loop.
There was one catch: the secret program had to be reapproved by the attorney
general every 45 days. It was Goldsmith's job to advise the A.G. on the
legality of the program. In March 2004, John Ashcroft was in the hospital with
a serious pancreatic condition. At Justice, Comey, Ashcroft's No. 2, was acting
as attorney general. The grandson of an Irish cop and a former U.S. attorney
from Manhattan, Comey, 45, is a straight arrow. (It was Comey who appointed his
friend—the equally straitlaced and dogged Patrick Fitzgerald—to be
the special prosecutor in the Valerie Plame leak-investigation case.) Goldsmith
raised with Comey serious questions about the secret eavesdropping program,
according to two sources familiar with the episode. He was joined by a former
OLC lawyer, Patrick Philbin, who had become national-security aide to the
deputy attorney general. Comey backed them up. The White House was told: no
reauthorization.
The angry reaction bubbled up all the way to the Oval Office. President
Bush, with his penchant for put-down nicknames, had begun referring to Comey as
"Cuomey" or "Cuomo," apparently after former New York governor Mario Cuomo, who
was notorious for his Hamlet-like indecision over whether to seek the
Democratic presidential nomination in the 1980s. A high-level
delegation—White House Counsel Gonzales and chief of staff Andy
Card—visited Ashcroft in the hospital to appeal Comey's refusal. In pain
and on medication, Ashcroft stood by his No. 2.
A compromise was finally worked out. The NSA was not compelled to go to the
secret FISA court to get warrants, but Justice imposed tougher legal standards
before permitting eavesdropping on communications into the United States. It
was a victory for the Justice lawyers, and it drove Addington to new levels of
vexation with Goldsmith.
Addington is a hard man to cross. Flanigan, his former White House
colleague, described his M.O.: "David could go from zero to 150 very quickly.
I'm not sure how much is temper and how much is for effect. At a meeting with
government bureaucrats he might start out very calm. Then he would start with
the sarcasm. He could say, 'We could do that, but that would give away all of
the president's power.' All of a sudden here comes David Addington out of his
chair. I'd think to myself we're not just dancing a minuet, there's a little
slam dancing going on here." But Addington "usually had the facts, the law and
the precedents on his side," says Flanigan. He had another huge advantage. He
never needed to invoke Cheney's name, but everyone knew that he spoke for the
vice president.
Addington was particularly biting with Goldsmith. During a long struggle
over the legality of the August 2002 torture memo, Addington confronted
Goldsmith, according to two sources who had heard accounts of the conversation:
"Now that you've withdrawn legal opinions that the president of the United
States has been relying on, I need you to go through all of OLC's opinions
[relating to the war on terror] and let me know which ones you still stand by,"
Addington said.
Addington was taking a clever dig at Goldsmith—in effect, accusing him
of undermining the entire edifice of OLC opinions. But he was not making a
rhetorical point. Addington began keeping track of opinions in which he
believed Goldsmith was getting wobbly—carrying a list inside his suit
pocket.
Goldsmith was not unmoved by Addington's arguments, say his friends and
colleagues. He told colleagues he openly worried that he might be putting
soldiers and CIA officers in legal jeopardy. He did not want to weaken
America's defenses against another terrorist attack. But he also wanted to
uphold the law. Goldsmith, known for putting in long hours, went to new
extremes as he reviewed the OLC opinions. Colleagues received e-mails from him
at all hours of the night. His family—his wife, 3-year-old son and
newborn baby boy—saw him less and less often. Sometimes he would take his
older boy down to the Justice Department's Command Center on Saturdays, just to
be near him.
By June 2004, the crisis came to a head when the torture memo leaked to The
Washington Post. Goldsmith was worn out but still resolute. He told Ashcroft
that he was formally withdrawing the August 2002 torture memo. With some
prodding from Comey, Ashcroft again backed his DOJ lawyers—though he was
not happy to engage in another battle with the White House. Comey, with
Goldsmith and Philbin at his side, held a not-for-attribution background
briefing to announce that the Justice Department was disavowing the August 2002
torture memo. At the same time, White House officials held their own press
conference, in part to counter what they saw as Comey's grandstanding. A fierce
behind-the-scenes bureaucratic fight dragged on until December, when the OLC
issued a new memo that was hardly to the taste of human-rights activists but
contained a much more defensible (and broader) definition of torture and was
far less expansive about the power of the president to authorize coercive
interrogation methods. The author of the revised memo, senior Justice
Department lawyer Daniel Levin, fought pitched battles with the White House
over its timing and contents; yet again, Comey's intervention was crucial in
helping Levin and his allies carry the day.
By then, Goldsmith was gone from Justice. He and his wife (who is a poet)
and two children had moved to Cambridge, where Goldsmith had taken a job on the
Harvard Law faculty. Other dissenting lawyers had also moved on. Philbin, who
had been the in-house favorite to become deputy solicitor general, saw his
chances of securing any administration job derailed when Addington, who had
come to see him as a turncoat on national-security issues, moved to block him
from promotion, with Cheney's blessing; Philbin, who declined to comment, was
planning a move into the private sector. Levin, whose battles with the White
House took their toll on his political future as well, left for private
practice. (Levin declined to comment.) Comey was working for a defense
contractor.
But the national security/civil liberties pendulum was swinging. Bellinger,
who had become legal adviser to Secretary of State Condoleezza Rice, began
pushing, along with lawyers in the Pentagon, to roll back unduly harsh
interrogation and detention policies. After the electronic eavesdropping
program leaked in The New York Times in December 2005, Sen. Arlen Specter
announced that the Senate Judiciary Committee would hold hearings that will
start next week. The federal courts have increasingly begun resisting
absolutist assertions of executive authority in the war on terror. After
Cheney's chief of staff, Scooter Libby, pleaded not guilty to perjury charges
in the Plame leak case, Addington took Libby's place. He is still a force to be
reckoned with in the councils of power. And he still has the ear of the
president and vice president; last week Bush was out vigorously defending
warrantless eavesdropping. But, thanks to a few quietly determined lawyers, a
healthy debate has at last begun.
© 2006 Newsweek, Inc.
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