1 Boring Old Man

A Different Understanding With the President

^{… On the morning of Sept. 11, Addington was evacuated from the Eisenhower Executive Office Building next to the White House and began to make his way toward his Virginia home on foot. As he neared the Arlington Memorial Bridge, someone in the White House reached him with a message: Turn around. The vice president needs you. Down in the bunker, according to a colleague with firsthand knowledge, Cheney and Addington began contemplating the founding question of the legal revolution to come: What extraordinary powers will the president need for his response?}

^{Before the day ended, Cheney’s lawyer joined forces with Timothy E. Flanigan, the deputy White House counsel, linked by secure video from the Situation Room. Flanigan patched in John C. Yoo at the Justice Department’s fourth-floor command center. White House counsel Alberto R. Gonzales joined later. Thus formed the core legal team that Cheney oversaw, directly and indirectly, after the terrorist attacks.}

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^{"Addington, Flanigan and Gonzales were really a triumvirate," recalled Bradford A. Berenson, then an associate White House counsel. Yoo, he said, "was a supporting player." Gonzales, a former Texas judge, had the seniority and the relationship with Bush. But Addington — a man of imposing demeanor, intellect and experience — dominated the group. Gonzales "was not a law-of-war expert and didn’t have very developed views," Yoo recalled, echoing blunter observations by the Texan’s White House colleagues.}

^{Flanigan, with advice from Yoo, drafted the authorization for use of military force that Congress approved on Sept. 18. [Read the authorization document] Yoo said they used the broadest possible language because "this war was so different, you can’t predict what might come up." In fact, the triumvirate knew very well what would come next: the interception — without a warrant — of communications to and from the United States. Forbidden by federal law since 1978, the surveillance would soon be justified, in secret, as "incident to" the authority Congress had just granted. Yoo was already working on that memo, completing it on Sept. 25.}

^{It was an extraordinary step, bypassing Congress and the courts, and its authors kept it secret from officials who were likely to object. Among the excluded was John B. Bellinger III, a man for whom Cheney’s attorney had "open contempt," according to a senior government lawyer who saw them often. The eavesdropping program was directly within Bellinger’s purview as ranking national security lawyer in the White House, reporting to Rice. Addington had no line responsibility. But he had Cheney’s proxy, and more than once he accused Bellinger, to his face, of selling out presidential authority for good "public relations" or bureaucratic consensus.}

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^{On Oct. 25, 2001, the chairmen and ranking minority members of the intelligence committees were summoned to the White House for their first briefing on the eavesdropping and were told that it was one of the government’s most closely compartmented secrets. Under Presidents George H.W. Bush or Bill Clinton, officials said, a conversation of that gravity would involve the commander in chief. But when the four lawmakers arrived in the West Wing lobby, an aide led them through the door on the right, away from the Oval Office.}

^{"We met in the vice president’s office," recalled former senator Bob Graham (D-Fla.). Bush had told Graham already, when the senator assumed the intelligence panel chairmanship, that "the vice president should be your point of contact in the White House." Cheney, the president said, "has the portfolio for intelligence activities."}

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^{Two years later, at his Nov. 13 lunch with Bush, Cheney brought the president the ultimate "oh, by the way" choice — a far-reaching military order that most of Bush’s top advisers had not seen.}

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^{To pave the way for the military commissions, Yoo wrote an opinion on Nov. 6, 2001, declaring that Bush did not need approval from Congress or federal courts. Yoo said in an interview that he saw no need to inform the State Department, which hosts the archives of the Geneva Conventions and the government’s leading experts on the law of war. "The issue we dealt with was: Can the president do it constitutionally?" Yoo said. "State — they wouldn’t have views on that."}

^{Attorney General John D. Ashcroft was astonished to learn that the draft gave the Justice Department no role in choosing which alleged terrorists would be tried in military commissions. Over Veterans Day weekend, on Nov. 10, he took his objections to the White House. The attorney general found Cheney, not Bush, at the broad conference table in the Roosevelt Room. According to participants, Ashcroft said that he was the president’s senior law enforcement officer, supervised the FBI and oversaw terrorism prosecutions nationwide. The Justice Department, he said, had to have a voice in the tribunal process. He was enraged to discover that Yoo, his subordinate, had recommended otherwise — as part of a strategy to deny jurisdiction to U.S. courts. Raising his voice, participants said, Ashcroft talked over Addington and brushed aside interjections from Cheney. "The thing I remember about it is how rude, there’s no other word for it, the attorney general was to the vice president," said one of those in the room. Asked recently about the confrontation, Ashcroft replied curtly: "I’m just not prepared to comment on that." According to Yoo and three other officials, Ashcroft did not persuade Cheney and got no audience with Bush.}

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^{Three days after the Ashcroft meeting, Cheney brought the order for military commissions to Bush. No one told Bellinger, Rice or Powell, who continued to think that Prosper’s working group was at the helm. After leaving Bush’s private dining room, the vice president took no chances on a last-minute objection. He sent the order on a swift path to execution that left no sign of his role. After Addington and Flanigan, the text passed to Berenson, the associate White House counsel. Cheney’s link to the document broke there: Berenson was not told of its provenance.}

^{Berenson rushed the order to deputy staff secretary Stuart W. Bowen Jr., bearing instructions to prepare it for signature immediately — without advance distribution to the president’s top advisers. Bowen objected, he told colleagues later, saying he had handled thousands of presidential documents without ever bypassing strict procedures of coordination and review. He relented, one White House official said, only after "rapid, urgent persuasion" that Bush was standing by to sign and that the order was too sensitive to delay.}

^{On Nov. 14, 2001, the day after Bush signed the commissions order, Cheney took the next big step. He told the U.S. Chamber of Commerce that terrorists do not "deserve to be treated as prisoners of war." [Read Cheney’s full remarks] The president had not yet made that decision. Ten weeks passed, and the Bush administration fought one of its fiercest internal brawls, before Bush ratified the policy that Cheney had declared: The Geneva Conventions would not apply to al-Qaeda or Taliban fighters captured on the battlefield.} 

So many questions. Why was Cheney even thinking about such things on September 11th? Why, for that matter, was the Vice President involved in such things? Clearly, they were already in his mind [for him to be in full implementation mode so quickly]. He ramrodded these programs through without input from the Secretary of State, Colin Powell, or the National Security Advisor, Condaleeza Rice. Where did his ideas come from?

• to secretly monitor domestic communications without getting warrants
• to detain Prisoners of War indefinitely with no access to the courts
• to deprive future Prisoners of War of the treatment guaranteed by the Geneva Conventions
• to lay the groundwork to allow torture of Prisoners of War

We would, of course, not fault him for getting to work on what to do in response to 9/11. But why did he come up with those particular things? Why didn’t he want the Cabinet to debate them? Why was he using political pressure to get them passed? Was this kind of stuff already part of his Project for the New American Century? It’s just odd stuff, that’s all. It doesn’t seem like the first order of business.