'A Different Understanding With the President'

Yoo, a Berkeley professor-turned-deputy chief of the Office of Legal Counsel, became the theorist of an insurrection against legal limits on the commander in chief. Addington, backed by Flanigan, found levers of government policy and wrote the words that moved them.

"Addington, Flanigan and Gonzales were really a triumvirate," recalled Bradford A. Berenson, then an associate White House counsel. Yoo, he said, "was a supporting player."

Gonzales, a former Texas judge, had the seniority and the relationship with Bush. But Addington -- a man of imposing demeanor, intellect and experience -- dominated the group. Gonzales "was not a law-of-war expert and didn't have very developed views," Yoo recalled, echoing blunter observations by the Texan's White House colleagues.

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Cheney 'Has the Portfolio'

Flanigan, with advice from Yoo, drafted the authorization for use of military force that Congress approved on Sept. 18. Yoo said they used the broadest possible language because "this war was so different, you can't predict what might come up."

In fact, the triumvirate knew very well what would come next: the interception -- without a warrant -- of communications to and from the United States. Forbidden by federal law since 1978, the surveillance would soon be justified, in secret, as "incident to" the authority Congress had just granted. Yoo was already working on that memo, completing it on Sept. 25.

It was an extraordinary step, bypassing Congress and the courts, and its authors kept it secret from officials who were likely to object. Among the excluded was John B. Bellinger III, a man for whom Cheney's attorney had "open contempt," according to a senior government lawyer who saw them often. The eavesdropping program was directly within Bellinger's purview as ranking national security lawyer in the White House, reporting to Rice. Addington had no line responsibility. But he had Cheney's proxy, and more than once he accused Bellinger, to his face, of selling out presidential authority for good "public relations" or bureaucratic consensus.

Addington, who seldom speaks to reporters, declined to be interviewed.

"David is extremely principled and dedicated to doing what he feels is right, and can be a very tough customer when he perceives others as obstacles to achieving those goals," Berenson said. "But it's not personal in the sense that 'I don't like you.' It's all about the underlying principle."

Bryan Cunningham, Bellinger's former deputy, said: "Bellinger didn't know. That was a mistake." Cunningham said Rice's lawyer would have recommended vetting the surveillance program with the secret court that governs intelligence intercepts -- a step the Bush administration was forced to take five years later.

On Oct. 25, 2001, the chairmen and ranking minority members of the intelligence committees were summoned to the White House for their first briefing on the eavesdropping and were told that it was one of the government's most closely compartmented secrets. Under Presidents George H.W. Bush or Bill Clinton, officials said, a conversation of that gravity would involve the commander in chief. But when the four lawmakers arrived in the West Wing lobby, an aide led them through the door on the right, away from the Oval Office.

"We met in the vice president's office," recalled former senator Bob Graham (D-Fla.). Bush had told Graham already, when the senator assumed the intelligence panel chairmanship, that "the vice president should be your point of contact in the White House." Cheney, the president said, "has the portfolio for intelligence activities."

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'Oh, By the Way'

By late October, the vice president and his allies were losing patience with the Bush administration's review of a critical question facing U.S. forces in Afghanistan and elsewhere: What should be done with captured fighters from al-Qaeda and the Taliban? Federal trials? Courts-martial? Military commissions like the ones used for Nazis under President Franklin D. Roosevelt?

Cheney's staff did not reply to invitations to join the interagency working group led by Pierre Prosper, ambassador at large for war crimes. But Addington, the vice president's lawyer, knew what his client wanted, Berenson said. And Prosper's group was still debating details. "Once you start diving into it, and history has proven us right, these are complicated questions," one regular participant said.

The vice president saw it differently. "The interagency was just constipated," said one Cheney ally, who spoke on the condition of anonymity.

Flanigan recalled a conversation with Addington at the time in which the two discussed the salutary effect of showing bureaucrats that the president could act "without their blessing -- and without the interminable process that goes along with getting that blessing."

Throughout his long government career, Cheney had counseled against that kind of policy surprise, insisting that unvetted decisions lead presidents to costly mistakes.

When James A. Baker III was tapped to be White House chief of staff in 1980, he interviewed most of his living predecessors. Advice from Cheney filled four pages of a yellow legal pad. Only once, to signify Cheney's greatest emphasis, did Baker write in all capital letters:

BE AN HONEST BROKER

DON'T USE THE PROCESS TO IMPOSE YOUR POLICY VIEWS ON PRES.

Cheney told Baker, according to the notes, that an "orderly paper flow is way you protect the Pres.," ensuring that any proposal has been tested against other views. Cheney added:

It's not in anyone's interest to get an 'oh by the way decision'-- & all have to understand that. Can hurt the Pres. Bring it up at a Cab. mtg. Make sure everyone understands this.

In 1999, not long before he became Bush's running mate, Cheney warned again about " 'oh, by the way' decisions" at a conference of White House historians. According to a transcript, he added: "The process of moving paper in and out of the Oval Office, who gets involved in the meetings, who does the president listen to, who gets a chance to talk to him before he makes a decision, is absolutely critical. It has to be managed in such a way that it has integrity."

Two years later, at his Nov. 13 lunch with Bush, Cheney brought the president the ultimate "oh, by the way" choice -- a far-reaching military order that most of Bush's top advisers had not seen.

According to Flanigan, Addington was not the first to think of military commissions but was the "best scholar of the FDR-era order" among their small group of trusted allies. "He gained a preeminent role by virtue of his sheer ability to turn out a draft of something in quick time."

That draft, said one of the few lawyers apprised of it, "was very closely held because it was coming right from the top."

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'In Support of the President'

To pave the way for the military commissions, Yoo wrote an opinion on Nov. 6, 2001, declaring that Bush did not need approval from Congress or federal courts. Yoo said in an interview that he saw no need to inform the State Department, which hosts the archives of the Geneva Conventions and the government's leading experts on the law of war. "The issue we dealt with was: Can the president do it constitutionally?" Yoo said. "State -- they wouldn't have views on that."

Attorney General John D. Ashcroft was astonished to learn that the draft gave the Justice Department no role in choosing which alleged terrorists would be tried in military commissions. Over Veterans Day weekend, on Nov. 10, he took his objections to the White House.

The attorney general found Cheney, not Bush, at the broad conference table in the Roosevelt Room. According to participants, Ashcroft said that he was the president's senior law enforcement officer, supervised the FBI and oversaw terrorism prosecutions nationwide. The Justice Department, he said, had to have a voice in the tribunal process. He was enraged to discover that Yoo, his subordinate, had recommended otherwise -- as part of a strategy to deny jurisdiction to U.S. courts.

Raising his voice, participants said, Ashcroft talked over Addington and brushed aside interjections from Cheney. "The thing I remember about it is how rude, there's no other word for it, the attorney general was to the vice president," said one of those in the room. Asked recently about the confrontation, Ashcroft replied curtly: "I'm just not prepared to comment on that."

According to Yoo and three other officials, Ashcroft did not persuade Cheney and got no audience with Bush. Bolten, in an October 2006 interview after becoming Bush's chief of staff, did not deny that account. He signaled an intention to operate differently in the second term.

"In my six months' experience it would not fall to the vice president to referee that kind of thing," Bolten added. "If it is a presidential decision, the president will make it. . . . I think the vice president appreciates that -- that his role is in support of the president, and not as a second-tier substitute."

Three days after the Ashcroft meeting, Cheney brought the order for military commissions to Bush. No one told Bellinger, Rice or Powell, who continued to think that Prosper's working group was at the helm.

After leaving Bush's dining room, Cheney took no chances on a last-minute objection. He sent the order on a swift path to execution that left no sign of his role. After Addington and Flanigan, the text passed to Berenson, the associate White House counsel. Cheney's link to the document broke there: Berenson was not told of its provenance.

Berenson rushed the order to deputy staff secretary Stuart W. Bowen Jr., bearing instructions to prepare it for signature immediately -- without advance distribution to the president's top advisers. Bowen objected, he told colleagues later, saying he had handled thousands of presidential documents without ever bypassing strict procedures of coordination and review. He relented, one White House official said, only after "rapid, urgent persuasion" that Bush was standing by to sign and that the order was too sensitive to delay.

In an interview, Berenson said it was his understanding that "someone had briefed" the president "and gone over it" already. He added: "I don't know who that was."

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'It'll Leak in 10 Minutes'

On Nov. 14, 2001, the day after Bush signed the commissions order, Cheney took the next big step. He told the U.S. Chamber of Commerce that terrorists do not "deserve to be treated as prisoners of war."

The president had not yet made that decision. Ten weeks passed, and the administration fought one of its fiercest internal brawls, before Bush ratified the policy that Cheney had declared: The Geneva Conventions would not apply to al-Qaeda or Taliban fighters captured on the battlefield.

Since 1949, Geneva had accorded protections to civilians and combatants in a war zone. Those protections varied with status, but the prevailing U.S. and international view was that anyone under military control -- even an alleged war criminal -- has some rights. Rumsfeld, elaborating on the position Cheney staked out, cast that interpretation aside. All captured fighters in Afghanistan, he said at a news briefing, are "unlawful combatants" who "do not have any rights" under Geneva.

At the White House, Bellinger sent Rice a blunt -- and, he thought, private -- legal warning: The Cheney-Rumsfeld position would place the president indisputably in breach of international law and would undermine cooperation from allied governments. Faxes had been pouring in at the State Department since the order for military commissions was signed, with even British authorities warning that they could not hand over suspects if the U.S. government withdrew from accepted legal norms.

One lawyer in his office said that Bellinger was chagrined to learn, indirectly, that Cheney had read the confidential memo and "was concerned" about his advice. Thus Bellinger discovered an unannounced standing order: Documents prepared for the national security adviser, another White House official said, were "routed outside the formal process" to Cheney, too. The reverse did not apply.

Powell asked for a meeting with Bush. The same day, Jan. 25, 2002, Cheney's office struck a preemptive blow. It appeared to come from Gonzales, a longtime Bush confidant whom the president nicknamed "Fredo." Hours after Powell made his request, Gonzales signed his name to a memo that anticipated and undermined the State Department's talking points. The true author has long been a subject of speculation, for reasons including its unorthodox format and a subtly mocking tone that is not a Gonzales hallmark.

A White House lawyer with direct knowledge said Cheney's lawyer, Addington, wrote the memo. Flanigan passed it to Gonzales, and Gonzales sent it as "my judgment" to Bush. If Bush consulted Cheney after that, the vice president became a sounding board for advice he originated himself.

Addington, under Gonzales's name, appealed to the president by quoting Bush's own declaration that "the war against terrorism is a new kind of war." Addington described the Geneva Conventions as "quaint," casting Powell as a defender of "obsolete" rules devised for another time. If Bush followed Powell's lead, Addington suggested, U.S. forces would be obliged to provide athletic gear and commissary privileges to captured terrorists.

According to David Bowker, a State Department lawyer, Powell did not in fact argue that al-Qaeda and Taliban forces deserved the privileges of prisoners of war. Powell said Geneva rules entitled each detainee to a status review, but he predicted that few, if any, would qualify as POWs, because they did not wear uniforms on the battlefield or obey a lawful chain of command. "We said, 'If you give legal process and you follow the rules, you're going to reach substantially the same result and the courts will defer to you,' " Bowker said.

Late that afternoon, as the "Gonzales memo" began to circulate around the government, Addington turned to Flanigan.

"It'll leak in 10 minutes," he predicted, according to a witness.

The next morning's Washington Times carried a front-page article in which administration sources accused Powell of "bowing to pressure from the political left" and advocating that terrorists be given "all sorts of amenities, including exercise rooms and canteens."

Though the report portrayed Powell as soft on enemies, two senior government lawyers said, Addington blamed the State Department for leaking it. The breach of secrecy, Addington said, proved that William H. Taft IV, Powell's legal adviser, could not be trusted. Taft joined Bellinger on a growing -- and explicit -- blacklist, excluded from consultation. "I was off the team," Taft said in an interview. The vice president's lawyer had marked him an enemy, but Taft did not know he was at war.

"Which, of course, is why you're ripe for the taking, isn't it?" he added, laughing briefly.

Staff researcher Julie Tate contributed to this report.