Former attorney general William P. Barr suggested to Gonzales's staff early on that those captured on the battlefield go before military tribunals instead of civil courts. But Ashcroft and Michael Chertoff, his deputy for the criminal division, both adamantly opposed the plan, along with military lawyers at the Pentagon. The result was that the process moved slowly.
Addington was the first to suggest that the issue be taken away from the Prosper group and that a presidential order be drafted authorizing the tribunals that he, Gonzales and Timothy E. Flanigan, then a principal deputy to Gonzales, supported. It was intended for circulation among a much smaller group of like-minded officials. Berenson, Flanigan and Addington helped write the draft, and on Nov. 6, 2001, Gonzales's office secured an opinion from the Justice Department's Office of Legal Counsel that the contemplated military tribunals would be legal.
That office, historically the government's principal internal domestic law adviser, was also staffed by advocates of expansive executive powers; it had told the White House in a classified memo five weeks earlier that the president's authority to wage preemptive war against suspected terrorists was virtually unlimited, partly because proving criminal responsibility for terrorist acts was so difficult.
After a final discussion with Cheney, Bush signed the order authorizing military tribunals on Nov. 13, 2001, while standing up, as he was on his way out of the White House to his Texas ranch for a meeting with Russian President Vladimir Putin. It provided for the military trial of anyone suspected of belonging to al Qaeda or conspiring to conduct or assist acts of terrorism; conviction would come from a two-thirds vote of the tribunal members, who would adjudicate fact and law and decide what evidence was admissible. Decisions could not be appealed.
Cut out in the final decision making were military lawyers, the State Department and Chertoff, as well as Rice, her deputy, Stephen J. Hadley, and Rice's legal adviser, John Bellinger. "I don't think Gonzales felt he was acting precipitously, but he realized people would be surprised," Flanigan said. It amounted to a decision that the president could act without "the entire staff's blessing. As it turned out, they [National Security Council officials] just weren't involved in the process."
Berenson, who left the White House for private practice in 2003, said "there were such strong shared assumptions at the time [that]we had a powerful sense of mission." He attributes the haste to worry about another terrorist attack.
But David Bowker, then a State Department lawyer excluded from the process and now in private practice, called the order premature and politically unwise. "The right thing to do would have been an open process inside the government," he said.
The tribunals were halted by U.S. District Judge James Robertson, who ruled on Nov. 24, 2004, that detainees' rights are guaranteed by the Geneva Conventions -- which the administration had argued were irrelevant.
Rebellion at State
Four weeks after Bush's executive order, a similarly limited deliberation provoked more determined rebellion at the State Department and among military lawyers and officers. The issue was whether al Qaeda and Taliban fighters captured on the battlefield in Afghanistan should be accorded the Geneva Conventions' human rights protections.
Gonzales, after reviewing a legal brief from the Justice Department's Office of Legal Counsel, advised Bush verbally on Jan. 18, 2002, that he had authority to exempt the detainees from such protections. Bush agreed, reversing a decades-old policy aimed in part at ensuring equal treatment for U.S. military detainees around the world. Rumsfeld issued an order the next day to commanders that detainees would receive such protections only "to the extent appropriate and consistent with military necessity."
Secretary of State Colin L. Powell -- whose legal adviser, William H. Taft IV, had vigorously tried to block the decision -- then met twice with Bush to convince him that the decision would be a public relations debacle and would undermine U.S. military prohibitions on detainee abuse. Gen. Richard B. Myers, chairman of the Joint Chiefs of Staff, backed Powell, as did the leaders of the U.S. Central Command who were pursuing the war.
The task of summarizing the competing points of view in a draft letter to the president was seized initially by Addington. A memo he wrote and signed with Gonzales's name -- and knowledge -- was circulated to various departments, several sources said. A version of this draft, dated Jan. 25, 2002, was subsequently leaked. It included the eye-catching assertion that a "new paradigm" of a war on terrorism "renders obsolete Geneva's strict limitations on questioning of enemy prisoners."
In early February 2002, Gonzales reviewed the issue once more with Bush, who reaffirmed his initial decision regarding his legal authority but chose not to invoke it immediately for Taliban members. Flanigan said that Gonzales still disagreed with Powell but "viewed his role as trying to help the president accommodate the views of State."
Thirty months later, a Defense Department panel chaired by James R. Schlesinger concluded that the president's resulting Feb. 7 executive order played a key role in the Central Command's creation of interrogation policies for the Abu Ghraib prison in Iraq.