February 6, 2006 Newsweek Magazine
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.
By Daniel Klaidman, Stuart Taylor Jr. and Evan Thomas
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.
In 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.