Takeover, page 11
After graduating from Yale, Yoo landed clerkships with two of the most aggressive “presidentialists” on the bench—appeals court judge Silberman and Supreme Court justice Clarence Thomas. Yoo spent most of the Clinton years as a professor at Boalt Hall, the law school of the University of California at Berkeley, although he took one year off to be counsel to then–Senate Judiciary Committee chairman Orrin Hatch of Utah. A regular speaker at Federalist Society events, Yoo also began to specialize in writing law journal articles and op-eds that took a provocatively strong stance on presidential power. He first made a name for himself in 1996 by writing a lengthy essay in the California Law Review arguing that the Founders intended to empower presidents to launch wars without congressional permission.17
Yoo argued that generations of legal scholars and historians had misread the history of the Constitution. Far more than everyone realized, Yoo wrote, the Founders embraced rather than rejected the British model of executive power, under which the king got to decide when the country went to war. When the Constitution gave Congress the power to “declare war,” he said, the Founders were merely referring to the ceremonial role of deciding whether to proclaim the existence of a conflict as a diplomatic nicety. But the Founders had left the power to commence war with the executive, he said. Most other scholars, however, believed that Yoo was wrong. Notes of the Constitutional Convention, they argued, clearly show that other than in the narrow case of repelling sudden attacks, the Founders wanted Congress, not the commander in chief, to decide whether the country should go to war.18 James Madison, the “Father of the Constitution” and fourth president, wrote in 1795, “Of all the enemies to public liberty war is, perhaps, the most to be dreaded”—since it invariably leads to higher taxes, public debt, propaganda, and expanded governmental control. Yet history had shown that monarchs tended to like a state of war, because it increased their own power, while its costs were borne by ordinary citizens. Thus, Madison wrote, giving America’s executive the power to decide on his own to wage war “would have struck, not only at the fabric of our Constitution, but at the foundation of all well organized and well checked governments. The separation of the power of declaring war from that of conducting it, is wisely contrived to exclude the danger of its being declared for the sake of its being conducted.”19
Before 9/11, Yoo’s sometimes idiosyncratic writings, which rejected Madison’s view, made him a welcome presence in law journals and at legal symposiums; because Yoo’s perspective ran contrary to what most other constitutional scholars believed, his arguments sparked vigorous and entertaining conversations. And his heavily footnoted articles, which stood out because they said something new and surprising, were published by law journals, which are edited by law students rather than professors. Yoo thus succeeded in doing what all ambitious young academics try to do: He carved out a unique niche for himself, raising his profile enough that Berkeley granted him tenure in the 1997–1998 academic year.
After 9/11, however, Yoo’s legal philosophy had far more serious consequences, prompting a closer examination of the quality of his scholarship. Although his tenure remained intact, Yoo became something of an outcast among mainstream legal scholars. Some of his colleagues denounced Yoo in highly personal terms. Their numbers did not include Cass Sunstein, a prominent law professor at the University of Chicago who repeatedly went out of his way to defend Yoo as a “very interesting and provocative scholar” who “doesn’t deserve the demonization to which he has been subject.”20 Yet in reviewing a 2005 book by Yoo, essentially a compendium of the pre-9/11 academic writings that had landed Yoo his Justice Department job, even Sunstein concluded that Yoo was a “good lawyer” only in the pejorative sense—an advocate willing to write a one-sided opinion that tries to “justify a particular set of predetermined conclusions.”
“Yoo’s reading would require us to ignore far too many statements by prominent figures in the founding generation,” Sunstein said. “There are not many issues on which James Madison, Thomas Jefferson, John Marshall, Alexander Hamilton, George Washington, James Wilson, John Adams, and Pierce Butler can be said to agree. Were all of them wrong?”21
Yoo’s opinions may have left most of his colleagues in the academic world shaking their heads, but those same views made him an attractive recruit to the ranks of the Bush-Cheney legal team. In April 2001, when John Manning accepted the administration’s invitation to be head of the Office of Legal Counsel, he contacted Yoo and asked him to join him at OLC. Yoo accepted. Later, when Manning withdrew his name before being confirmed, the administration asked Yoo to stay on.22 In July 2001, Yoo took a leave of absence from Berkeley and joined the Justice Department. Assuming the title of deputy assistant attorney general, Yoo was charged with overseeing any legal opinions about presidential power that might arise in the area of national security and international law.
Then came 9/11. At thirty-four years old, Yoo found himself the primary official entrusted with telling the president whether or not his proposed policies for fighting Al Qaeda were legal. And with Jay Bybee not yet confirmed and still in Nevada, Yoo had a free hand to lay down the first legal opinions that charted the course for all that followed. On September 25, 2001, he delivered a confidential memorandum asserting that no statute passed by Congress could limit the war powers of the commander in chief; as authority for this claim, Yoo cited his own academic writings six times in thirty-two footnotes. In the weeks that followed, Yoo developed close working relationships with White House officials such as Addington, relationships that were well established by the time the new OLC boss arrived. From the first memos written after 9/11 until the summer of 2003, when he left the Justice Department and returned to his tenured position at Berkeley, Yoo did what his previous scholarship strongly suggested he would do if asked where the limits of presidential power might lie. He said that Cheney was right: For the commander in chief, everything was permitted.
5.
There were other important figures on the Bush-Cheney legal team in the early days after 9/11. One was Timothy Flanigan, the deputy White House counsel and Gonzales’s No. 2. Having headed the Justice Department’s Office of Legal Counsel himself during the last two years of the Bush-Quayle administration, Flanigan had deep experience as an advocate for strong presidential powers. Another key personality was William James Haynes II, the Pentagon’s general counsel. Jim Haynes’s career also dated back to the Bush-Quayle administration, when he had been the army general counsel and a protégé of David Addington’s in Cheney’s Pentagon.
But by far the most important member of the legal team when it came to orchestrating its presidential-power agenda was Addington himself. As counsel to the vice president, Addington, like Cheney, officially had no power—a point his colleagues say he liked to raise before launching into an aggressive and well-prepared argument that almost unfailingly carried the day. After the war on terrorism commenced, his informal clout grew. The former CIA and Pentagon lawyer had once helped Cheney defend the Reagan administration during the Iran-Contra scandal; now he took a central role in shaping policies that both relied upon and expanded the president’s power to act in defiance of Congress and treaties. And while most of the other key players on the legal team that was in place on 9/11 eventually moved on, Addington stayed—and became even more powerful. In 2005, after Cheney’s first chief of staff, I. Lewis “Scooter” Libby, was indicted for perjury and resigned, Cheney handed Addington Libby’s powers and responsibilities as well.
Addington’s power in internal disputes stemmed from his intellect, his personality, his bureaucratic skills, and—above all—the fact that he spoke for Cheney. The White House routed every memo related to national security through Cheney’s office, where Addington could review it, and he attended all the important legal and national-security meetings, where his aggressive view of executive power dominated the debate. A relentlessly hard worker who put in long hours, Addington routinely helped draft memos—both monitoring and advising those who did the drafting of advisory opinions at the Justice Department’s Office of Legal Counsel. According to the Washington Post, on at least one occasion when a matter arose concerning presidential power and detainees, Addington ghostwrote a key memo that went to Bush’s desk in Gonzales’s name.23
The younger conservative lawyers on the administration legal team admired Addington for his intelligence, his power, and his purity; showing no interest in the trappings of power even as he worked to accumulate it, Addington eschewed his access to an official government car service and instead rode to work on the Washington subway. For many of the attorneys who had come of age after the Reagan Revolution and had no personal memories of Watergate, Addington, and his concerns about presidential prerogatives, became a larger-than-life guidepost. “Addington is a colorful figure,” said one former White House attorney who asked not to be named. “David carries the Constitution around in his jacket pocket. And he’s a very good lawyer, and frankly a role model and mentor for many of the lawyers in the counsel’s office.”24
But former secretary of state Colin Powell’s chief of staff, Lawrence Wilkerson, said that Addington came across quite differently to those who questioned his view of presidential power. Wilkerson described Addington as a force who both used Cheney’s influence and influenced Cheney in turn. Addington, he said, was the leader of the small group of ideological lawyers “who had these incredible theories and would stand behind their principals [elected officials such as Cheney and Bush], whispering in their ears about these theories, telling them they have these powers, that the Constitution backs these powers, that these powers are ‘inherent’ and blessed by God and if they are not exercised, the nation will fall. He’d never crack a smile. His intensity and emotions and passion for these theories are extraordinary.”25
Even Addington’s allies acknowledged his fierce manner. Several years after leaving the White House, Flanigan said of his former colleague: “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.”26
5
“Behind Closed Doors”: Secrecy I
1.
At just before noon on Monday, January 29, 2001, at the start of the second week of the new administration, a handful of reporters on White House pool duty were hustled into the Cabinet Room. President Bush and Vice President Cheney were sitting at a dark wood conference table, surrounded by other key members of the government. Bush told the reporters they were witnessing an important event: the inaugural meeting of a task force that would draw up a new national energy policy, the first major public policy initiative of his presidency. Out of the administration’s concern for “the people who work for a living… who struggle every day to get ahead,” Bush said, the task force was going to come up with a plan for the country to meet the rising demand for energy and to avoid the shortfalls that were causing electricity blackouts in California. Bush announced he had decided that the task force should be led by Cheney.
“Can’t think of a better man to run it than the vice president,” the president said.
Bush thanked the reporters for coming. One of them asked whether he would answer a few questions. Bush declined. “Next time,” the president offered. “Give you a chance to think of some good ones. I’ve got some suggestions. I’ve got some suggestions. First answer—you can think of the question—first answer is ‘Ravens.’ ”1 A day earlier in Tampa, the Baltimore Ravens, led by MVP linebacker Ray Lewis and a stifling defense, had crushed the New York Giants 34–7 in Super Bowl XXXV. The reporters laughed as they were led from the Cabinet Room. The door closed behind them. Bush left by another exit, and Cheney’s energy task force, concealed from the public eye, went to work.
The way Cheney conducted the task force would result in litigation that reached the U.S. Supreme Court. That dispute—over whether the White House could keep the task force’s records secret from Congress and the public—became the first battleground on which the Bush-Cheney administration would fight to expand the power of the presidency.
Over the three months of its existence, the energy task force met with large numbers of oil, gas, coal, nuclear, and electric company lobbyists. Among the officials who offered advice about what should be in the energy plan was a not-yet-indicted leader of the Enron Corporation, a company that would later be revealed to have played a role in the 2000–2001 California blackouts by calculatedly manipulating the electricity market. These industrialists urged the White House to put together a package of billions of dollars in new tax breaks, reduced fees for drilling on public lands, relaxed environmental regulations, and other incentives for their companies. Many of these influential outside advisers had been major financial backers of the Bush-Cheney campaign.
A typical bit of the advice the task force received behind closed doors came on March 1, 2001, in the form of a confidential memo to Cheney from Haley Barbour. A jowly, white-haired former chairman of the Republican National Committee, Barbour enjoyed a level of access in the Bush-Cheney White House that prompted Fortune magazine to name his firm as the single-most influential lobbyist group in Washington in 2001.2 Barbour would later become governor of Mississippi, where his defining moment would be heading up the state response to the 2005 Hurricane Katrina disaster. But in 2001 Barbour was working for fossil fuel companies, and in the March 1 memo, he urged Cheney to block any attempt to limit carbon dioxide emissions at power plants in the name of stopping global warming.3
Barbour’s policy advice was candid because it was never intended to reach public ears. And his memo was typical of the recommendations the energy task force was secretly receiving—and secretly soliciting. There was no pretense of openness or democratic process. Indeed, a top political appointee on the task force put it this way in an e-mail sent to a natural gas executive on March 18, 2001: “If you were King, or Il Duce, what would you include in a national [energy] policy, especially with respect to national gas issues?”4
Although no one from the public was allowed into the meetings, word of the outsized influence enjoyed by industry lobbyists began to seep out in leaks to the media. A month after the “Il Duce” e-mail, two Democratic members of the House of Representatives, Henry Waxman and John Dingell, decided that Congress ought to look into how the energy task force was going about its business. Since 1975 Waxman had represented a district that includes Hollywood, and Dingell was the longest-serving member of the House, having represented the western suburbs of Detroit since 1955. Both were known for their vigorous approach to oversight investigations, and the energy task force was well within their jurisdiction: Waxman was the ranking member of the House Committee on Government Reform, and Dingell was the ranking member of the House Committee on Energy and Commerce.
On April 19, 2001, Waxman and Dingell wrote to the task force’s executive director, Andrew Lundquist, demanding access to the task force’s records. Lundquist, a political appointee in the Energy Department, was a native of Fairbanks, Alaska, and had been an aide to Republican Alaska senators Frank Murkowski and Ted Stevens—both of whom were strong supporters of the oil and gas industries and backed opening the Alaska National Wildlife Refuge to drilling.5 In their letter to Lundquist, Waxman and Dingell asked with whom the task force had met and what had been said at those meetings.6 They based their request on the 1972 Federal Advisory Committee Act, an open-government law. It said that when nongovernment officials help craft public policy, the government must pick a balanced representation of viewpoints and have open meetings so that interested members of the public and the press can attend.
Two weeks later, on May 4, 2001, the counsel to the vice president, David Addington, sent back a reply. The information the lawmakers had sought would not be provided to Congress, Addington wrote, because the open-government law did not apply to the task force. Addington directed the lawmakers to a six-page attachment, signed by Lundquist. Lundquist acknowledged that members of the task force and its staff had “met with many individuals who are not federal employees to gather information relevant to the group’s work.” But these meetings with industry officials, Lundquist said, did not count, because the energy lobbyists weren’t official members of the task force.
Firing a warning shot across the bow of Congress, Addington went further. He invoked “due regard for the constitutional separation of powers” and reserved the right to assert executive privilege over the information. Congress, Addington implied, was not entitled even to the brief answers from Lundquist, which the White House had provided only out of good manners—“as a matter of comity between the executive and legislative branches.”7
Four days later, Congress escalated the stakes. The General Accounting Office—the nonpartisan investigative arm of Congress—faxed Addington another letter, declaring that it intended to review the composition and workings of the task force. Dingell and Waxman had asked David Walker, the comptroller general, for help in their investigation. (After Democrats regained control of the Senate later that year, several Senate committee chairmen with jurisdiction over energy matters also asked the GAO to investigate on behalf of their committees.) Walker had been appointed to a fifteen-year term as the head of the GAO by President Clinton in 1998. But Walker was not a partisan Democrat. He had been a political appointee in both the Reagan and Bush-Quayle administrations, and he had been a delegate for George H. W. Bush to the 1980 Republican National Convention.8
