The Unseen Path to Cruelty

Rice "very angrily said there would be no more secret opinions on international and national security law," the official said, adding that she threatened to take the matter to the president if Gonzales kept them out of the loop again. Powell remarked admiringly, as they emerged, that Rice dressed down the president's lawyer "in full Nurse Ratched mode," a reference to the head nurse of the mental hospital in the 1975 film "One Flew Over the Cuckoo's Nest."

Neither of them took their objections to Cheney, the official said, a much more dangerous course.

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'His Client, the Vice President'

In the summer and fall of 2002, some of the Bush administration's leading lawyers began to warn that Cheney and his Pentagon allies had set the government on a path for defeat in court. As the judicial branch took up challenges to the president's assertion of wartime power, Justice Department lawyers increasingly found themselves defending what they believed to be losing positions -- directed by the vice president and his staff.

One of the uneasy lawyers was Solicitor General Theodore B. Olson, a conservative stalwart whose wife, Barbara, had died on Sept. 11, 2001, when the hijacked American Airlines Flight 77 crashed into the Pentagon. Olson shared Cheney's robust view of executive authority, but his job was to win cases. Two that particularly worried him involved U.S. citizens -- Jose Padilla and Yaser Esam Hamdi -- who had been declared enemy combatants and denied access to lawyers.

Federal courts, Olson argued, would not go along with that. But the CIA and military interrogators opposed any outside contact, fearing relief from the isolation and dependence that they relied upon to break the will of suspected terrorists.

Flanigan said that Addington's personal views leaned more toward Olson than against him, but that Addington beat back the proposal to grant detainees access to lawyers, "because that was the position of his client, the vice president."

Decision time came in a heated meeting in Gonzales's corner office on the West Wing's second floor, according to four officials with direct knowledge, none of whom agreed to be quoted by name about confidential legal deliberations. Olson was backed by associate White House counsel Bradford A. Berenson, a former law clerk to Supreme Court Justice Anthony M. Kennedy.

Berenson told colleagues that the court's swing voter would never accept absolute presidential discretion to declare a U.S. citizen an enemy and lock him up without giving him an opportunity to be represented and heard. Another former Kennedy clerk, White House lawyer Brett Kavanaugh, had made the same argument earlier.

Addington accused Berenson of surrendering executive power on a fool's prophecy about an inscrutable court. Berenson accused Addington of "know-nothingness."

Gonzales listened quietly as the Justice Department and his own staff lined up against Addington. Then he decided in favor of Cheney's lawyer.