Takeover, page 50
35. Three months later, the GOP-led Congress finally passed a 1,724-page bill based on Cheney’s report. The Energy Policy Act of 2005 provided $14.5 billion in tax breaks, primarily benefiting the fossil fuel and nuclear power companies, and contained myriad obscure provisions helping industrialists. Conservationists called the bill bad policy because it did nothing to discourage consumption by raising fuel efficiency standards; small-government conservatives called the bill an enormous giveaway to an industry that was already making record profits on its own; and economists said the bill would do little in the short term to improve the then $63-a-barrel price of oil. Bookbinder quote is from Carol Leonnig and Jim VandeHei, “Cheney Wins Court Ruling on Energy Panel Records,” Washington Post, May 11, 2005.
8. PUSHBACK AND PURGE: LAWS AND TREATIES II
1. See Lt. Col. Jerald Phifer to commander, Joint Task Force 170, memorandum re: “Request for Approval of Counter-Resistance Strategies,” October 11, 2002, reproduced in Joshua L. Dratel and Karen J. Greenberg, eds., The Torture Papers: The Road to Abu Ghraib (New York: Cambridge University Press, 2005), 227.
2. LTC Diane Beaver to commander, Joint Task Force 170, memorandum re: “Legal Brief on Proposed Counter-Resistance Strategies,” October 11, 2002, reproduced in Dratel and Greenberg, Torture Papers, 229.
3. William J. Haynes II to the secretary of defense, action memorandum re: “Counter-Resistance Techniques,” November 27, 2002, reproduced in Dratel and Greenberg, Torture Papers, 237.
4. Author interview with Alberto Mora, February 7, 2007.
5. Ibid.
6. Mora also strongly disputed the arguments made by the Beaver legal brief, and he cautioned that even the “misperception that the U.S. government authorizes or condones detention or interrogation practices that do not comply with our domestic and international legal obligations… probably will cause significant harm to our national legal, political, military, and diplomatic interests.” Alberto Mora to the inspector general, Department of the Navy, memorandum re: “Statement for the Record: Office of General Counsel Involvement in Detainee Legal Issues,” July 7, 2004, http://www.newyorker.com/images/pdfs/moramemo.pdf.
7. Charlie Savage, “Abuse Led Navy to Consider Pulling Cuba Interrogators,” Boston Globe, March 16, 2005; Charlie Savage, “Split Seen on Interrogation Techniques,” Boston Globe, March 31, 2005; see also Jane Mayer, “The Memo,” The New Yorker, February 27, 2006.
8. Mora to the inspector general, “Statement for the Record.”
9. Rives’s views were echoed by the top JAGs in every other service as well. Each warned that Yoo’s interpretation of the law was wrong. Approving a policy of coercive interrogations, they said, would put U.S. troops at risk of prosecution or of being personally sued by any prisoners they abused. And, internal memos show, they cautioned that undermining the Geneva Conventions was a bad idea in general, because it could make other countries less willing to obey the treaty when handling captured American prisoners of war in future conflicts. MG Jack Rives to general counsel of the air force, memorandum, February 6, 2003; see also BG Kevin M. Sandkuhler to general counsel of the air force, memorandum, February 27, 2003; MG Thomas J. Romig to general counsel of the air force, memorandum, March 3, 2003, http://www.humanrightsfirst.org/us_law/etn/pdf/jag-memos-072505.pdf.
10. Senator Carl Levin, opening statement, Personnel Subcommittee Hearing on Military Commissions, Detainees, and Interrogation Procedures, July 14, 2005, http://www.senate.gov/~levin/newsroom/release.cfm?id=240601.
11. Hearing of the Senate Judiciary Committee on the Authority to Prosecute Terrorists Under the War Crime Provisions of Title 18, August 2, 2006.
12. Donald Rumsfeld to Commander, U.S. Southern Command, memorandum re: “Counter-Resistance Techniques in the War on Terrorism,” April 16, 2003, reproduced in The Torture Papers, 360.
13. Also, in January 2003, Brad Berenson, who had helped Flanigan and Addington draft the military commissions order, left to become a partner at a Washington law firm. By the spring, the administration also lost Viet Dinh, the Justice Department official who wrote substantial portions of the USA Patriot Act, and Michael Chertoff, the department’s criminal division chief who oversaw the post-9/11 sweeps that detained hundreds of Muslims on immigration charges. Dinh became a law professor and Chertoff became an appeals court judge, although he would later return as secretary of Homeland Security.
14. The Bybee nomination was slowed in part because of Democratic concerns about his involvement in “Iraq-gate,” a now nearly forgotten scandal involving the Bush-Quayle administration’s support for Iraqi dictator Saddam Hussein prior to the Gulf War. In 1989, Bybee—then an associate White House counsel—called a federal prosecutor and asked about an ongoing corruption case involving Iraq. Congressional Democrats later called for a special independent prosecutor to investigate whether Bybee had improperly attempted to influence the case on behalf of Iraq. But the matter faded away after the Bush-Quayle administration lost the 1992 election.
15. “U.S. Secretary of State Colin Powell Addresses the U.N. Security Council,” February 5, 2003, http://www.whitehouse.gov/news/releases/2003/02/20030205-1.html.
16. Steve Tetreault, “No-Shows Smooth Judicial Nominee’s Path,” Las Vegas Review-Journal, February 6, 2003.
17. Daniel Klaidman and others, “Palace Revolt,” Newsweek, February 6, 2006. Yoo denied cutting Ashcroft out of the loop but also acknowledged that he and the attorney general had a testy relationship. “We were never buddies. I wasn’t an Ashcroft guy from before the Justice Department, and the Justice Department and the White House had a history of tension” over appointments. Author interview with John Yoo, March 8, 2007. In his memoir, Yoo sharply criticized Ashcroft for being “ever a defender of his bureaucratic turf,” for unwisely pushing to prosecute Zacarias Moussaoui in civilian court instead of before a military commission, for “going too far” in his political rhetoric, and for flinching instead of standing firm when the interrogation memos were leaked and criticized.
18. Jack Goldsmith and John Yoo, “Seattle and Sovereignty,” Wall Street Journal, December 6, 1999.
19. John Yoo and Jack Goldsmith, “Missile Defense Defense,” American Lawyer 23, no. 4 (2001).
20. William Glaberson, “Closer Look at New Plan for Trying Terrorists,” New York Times, November 15, 2001.
21. Patrick Philbin was hardly modest about executive power: He was the author of the November 6, 2001, memo saying that the president had the power to convene military commissions, and the coauthor, with Yoo, of the December 28, 2001, memo saying that U.S. courts had no jurisdiction to review Guantánamo. Like Yoo, Philbin had also interviewed to replace Bybee as head of the Office of Legal Counsel but didn’t get the job. Seeking a change, he asked Thompson to hire him as the top national security adviser for the deputy attorney general’s office—landing the position a few months before Thompson announced he was resigning.
22. The fourth Geneva Convention takes explicit note of combatants who hide among civilians and fight out of uniform, saying that spies and saboteurs who are captured by an occupying power forfeit the right to communicate with family members but that they otherwise must be treated with the full rights and privileges of a protected person under the conventions. Philbin and Goldsmith decided that it was too much of a stretch to ignore this provision in Iraq, where the United States was formally an occupying power. (In Afghanistan, the United States was not formally an occupying power, which made it easier to overlook this provision for that theater of war—though few independent legal scholars supported the administration’s view that it was free to ignore the treaties for Afghanistan.)
23. Klaidman and others, “Palace Revolt.”
24. The first to piece together this chain of events was Georgetown’s Martin Lederman. See “Silver Linings, or Strange but True,” Balkinization, September 21, 2005, http://balkin.blogspot.com/2005/09/silver-linings-or-strange-but-true.html.
25. Klaidman and others, “Palace Revolt.”
26. Thompson signed off on sending Maher Arar, the dual Canadian-Syrian citizen falsely suspected of ties to terrorists, to Syria for interrogation, despite a treaty that obliged the United States not to send prisoners to foreign governments known to use torture. See, e.g., Dana Priest, “Top Justice Aide Approved Sending Suspect to Syria,” Washington Post, November 19, 2003.
27. Unless otherwise noted, the remainder of this section is derived from Transcript, Hearing of the Senate Judiciary Committee, “Preserving Prosecutorial Independence: Is the Department of Justice Politicizing the Hiring and Firing of U.S. Attorneys?—Part IV,” May 15, 2007. See also Klaidman and others, “Palace Revolt.”
28. Michael Barnett, “Ashcroft in ‘Guarded Condition’ After Surgery at GW Hospital,” GW Hatchet Online, March 9, 2004. http://media.www.gwhatchet.com/media/storage/paper332/news/2004/03/08/MetroNews/Web-Extra.Ashcroft.In.guarded.Condition.After.Surgery.At.Gw.Hospital-630291.shtml.
29. “Written Questions to Former Deputy Attorney General James B. Comey Submitted by Senator Patrick Leahy, May 22, 2007,” delivered to the Senate Judiciary Committee June 6, 2007.
30. See, e.g., Orin Kerr, “What Led DOJ to Oppose the NSA Surveillance Program?” The Volokh Conspiracy, May 16, 2007, http://volokh.com/posts/1179350507.shtml.
31. Transcript of Hamdi v. Rumsfeld oral argument, April 28, 2004, http://www.supremecourtus.gov/oral_arguments/argument_transcripts/03-6696.pdf.
32. Mora to the inspector general, “Statement for the Record.”
33. “Article 15-6 Investigation of the 800th Military Police Brigade,” aka “The Taguba Report,” March 9, 2004, http://news.findlaw.com/nytimes/docs/iraq/tagubarpt.html.
34. The available evidence suggests that the truth lies somewhere in between: Interrogators in Iraq were widely encouraged to use coercive techniques, including forced nudity, menacing dogs, sleep deprivation, and shackling into stress positions, to break the will of detainees. The abuses at Abu Ghraib included the routine use of such things. But the Abu Ghraib tortures also went further, as shown by the picture of naked men being piled into a pyramid. In their most extreme manifestations, the Abu Ghraib abuses reflected an official policy spiraling out of control and becoming something more extreme in the hands of a poorly trained, poorly supervised night-shift unit of reservists from rural West Virginia. Nevertheless, even when the official policy was being followed as planned—with no naked-prisoner pyramids but plenty of sleep deprivation, stress positions, isolation, and the rest—American interrogators were well into territory prohibited by laws and treaties, according to most scholars. And by lifting the taboo against coercive interrogations, the Bush-Cheney legal team put the country far down a slippery slope toward the ravine of Abu Ghraib. The goodwill of executive branch officials, critics concluded, was no substitute for the rule of law.
35. The author was one of the journalists who covered the background briefing under Justice Department–imposed ground rules that none of the participants could be identified by name or title in news coverage. However, Newsweek subsequently disclosed their identities in its article “Palace Revolt,” breaking the embargo.
36. Bryan Bender and Charlie Savage, “Memos Detail Debate on Prisoners,” Boston Globe, June 23, 2004.
37. John Yoo, War by Other Means (New York: Atlantic Monthly Press, 2006), 182.
38. Dana Priest, “Memo Lets CIA Take Detainees out of Iraq,” Washington Post, October 24, 2004.
39. Marcella Bombardieri, “Harvard Hire’s Detainee Memo Stirs Debate,” Boston Globe, December 9, 2004.
40. Hamdi v. Rumsfeld, 542 U.S. 507 (2004).
41. Charlie Savage, “High Court Ruling Affords Detainees Their Day in Court,” Boston Globe, June 29, 2004.
42. Description of commission chamber from author’s visit to Guantánamo, January 2005. For description of Brownback receiving the note, see Carol Rosenberg, “Judge Halts Trial of Bin Laden’s Chauffeur,” Miami Herald, November 9, 2004.
43. Daniel Levin to James Comey, memorandum re: “Interrogation Standards under 18 USC 2340–2340A,” December 30, 2004, http://www.usdoj.gov/olc/18usc23402340a2.htm.
44. Yoo, War by Other Means, 183.
45. Dan Eggan and Susan Schmidt, “Solicitor General Theodore Olson to Step Down,” Washington Post, June 25, 2004.
46. Author interview with David Keene, May 24, 2007.
47. Answer to “Written Questions to Former Deputy Attorney General James B. Comey Submitted by Patrick Leahy,” May 22, 2007.
48. A month later, Bush nominated Timothy Flanigan—the former deputy White House counsel and Addington ally who left in December 2002 to become an executive at Tyco—to replace Comey as deputy attorney general. But Flanigan’s political comeback was derailed by the growing corruption investigation surrounding the Republican lobbyist Jack Abramoff. In one of his first acts at Tyco, Flanigan had hired Abramoff for $2 million to ensure that Congress preserved a tax loophole that allowed Tyco to avoid paying some U.S. taxes by registering as a Bermuda company. Abramoff had also persuaded Flanigan to have Tyco donate several million dollars to another lobbying firm, most of which was diverted to unrelated Abramoff-controlled entities. See, e.g., Thomas Mann and Norman Ornstein, The Broken Branch (Oxford University Press, 2006), 187–188. In October 2005, Flanigan withdrew his name from consideration for the position. Dan Eggen and R. Jeffrey Smith, “Flanigan Withdraws as Nominee for Deputy Attorney General,” Washington Post, October 5, 2005.
49. James Comey, “Farewell Address,” August 15, 2005, http://www.usdoj.gov/dag/speech/2005/dagfarewell.htm.
50. Comey would later tell Congress that he was thinking specifically of Patrick Philbin when he said this.
51. Padilla v. Hanft, 423 F.3d 386 (4th Cir. 2005).
52. Order, December 21, 2005, Padilla v. Hanft, no. 05-6396 (4th Cir.).
53. “Vice President’s Remarks to the Traveling Press,” December 20, 2005, http://www.whitehouse.gov/news/releases/2005/12/20051220-9.html.
54. “Legal Authorities Supporting the Activities of the National Security Agency Described by the President,” U.S. Department of Justice, January 19, 2006, http://www.usdoj.gov/opa/whitepaperonnsalegalauthorities.pdf.
55. The administration also claimed that Congress had unknowingly given the president an additional grant of authority to bypass the warrant law when it voted to authorize the use of military force against the perpetrators of 9/11. Many commentators, comparing the January 2006 brief to the legal opinions drafted in the months after 9/11, believed that the Authorization for Use of Military Force argument, rather than being part of the original thinking behind the program, had been thrown in after the program was revealed. As the conservative commentator George F. Will wrote, the “assertion is implausible: None of the 518 legislators who voted for the AUMF has said that he or she then thought it contained the permissiveness the administration discerns in it. Did the administration, until the program became known two months ago? Or was the AUMF then seized upon as a justification?… Anyway, the argument that the AUMF contained a completely unexpressed congressional intent to empower the president to disregard the FISA regime is risible coming from this administration. It famously opposes those who discover unstated meanings in the Constitution’s text and do not strictly construe the language of statutes.” George F. Will, “No Checks, Many Imbalances,” Washington Post, February 16, 2006.
56. Karl Rove, address to Republican National Committee, January 20, 2006, http://www.freerepublic.com/focus/f-news/1562337/posts.
57. “President Discusses Global War on Terror at Kansas State University,” January 23, 2006, http://www.whitehouse.gov/news/releases/2006/01/20060123-4.html.
58. Administration officials also repeatedly pointed to a 2002 opinion by the Foreign Intelligence Surveillance Court of Review, which noted, in passing, that it took “for granted” that the president has “inherent authority to conduct warrantless searches to obtain intelligence information,” adding, “Assuming that is so, FISA could not encroach on the president’s constitutional powers.” (The case involved a challenge to a provision of the Patriot Act that had nothing to do with warrantless wiretaps.) The officials tended not to note that this opinion was written by Appeals Court judge Laurence Silberman, the former Nixon and Ford administration official who had tried, in 1988, to recognize the Unitary Executive Theory as a constitutionally correct “doctrine,” only to be summarily overturned by a 7–1 Supreme Court ruling. Silberman’s aside in the 2002 opinion was not just dicta but also legally questionable: Even if a president has an inherent power to do something, it does not follow that such a power is automatically exclusive and thus may not be regulated by Congress. But because of the unique way the Foreign Intelligence Surveillance Court is set up, the Supreme Court had no opportunity to review his 2002 opinion, allowing Silberman to say anything with impunity.
59. Charlie Savage, “Specialists Doubt Legality of Wiretaps,” Boston Globe, February 2, 2006.
60. Will, “No Checks, Many Imbalances.”
61. Author interview with David Keene, January 27, 2006.
62. Author interview with Grover Norquist, January 27, 2006.
63. Author interview with Larry Pratt, January 27, 2006.
64. Author interview with Paul Weyrich, January 27, 2006.
65. Author interview with Bruce Fein, January 27, 2006.
66. Author interview with Brent Scowcroft, November 28, 2006.
67. Author interview with David Rivkin, January 27, 2006.
68. Rick Klein and Charlie Savage, “GOP Senators Refuse Eavesdropping Inquiry,” Boston Globe, March 8, 2006.
69. On April 21, 2006, Jarrett wrote an angry memo to Deputy Attorney General Paul McNulty, Jim Comey’s replacement. The memo, which was later obtained and released to the public by the Senate Judiciary Committee, said that Jarrett’s investigators were being prevented from doing their jobs. “Since its creation some thirty-one years ago, OPR has conducted many highly sensitive investigations involving executive branch programs and has obtained access to information classified at the highest levels,” Jarrett wrote. “In all those years, OPR has never been prevented from initiating or pursuing an investigation.” Charlie Savage, “Bush Blocked Probe, AG Testifies,” Boston Globe, July 19, 2006.
