Palace Revolt
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.

http://www.msnbc.msn.com/id/11079547/site/newsweek/

By Daniel Klaidman, Stuart Taylor Jr. and Evan Thomas
2/6/2006

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."

End Part I