By Dan Eggen and Peter Baker
Washington Post Staff Writers
Wednesday, September 5, 2007
Vice President Cheney's top lawyer pushed relentlessly to expand the powers of the executive branch and repeatedly derailed efforts to obtain congressional approval for aggressive anti-terrorism policies for fear that even a Republican majority might say no, according to a new book written by a former senior Justice Department official.
David S. Addington, who is now Cheney's chief of staff, viewed both U.S. lawmakers and overseas allies with "hostility" and repeatedly opposed efforts by other administration lawyers to soften counterterrorism policies or seek outside support, according to Jack L. Goldsmith, who frequently clashed with Addington while serving as head of the Justice Department's Office of Legal Counsel in 2003 and 2004.
"We're going to push and push and push until some larger force makes us stop," Addington said at one point, according to Goldsmith.
Addington, who declined comment yesterday through Cheney's office, is a central player in Goldsmith's new book, "The Terror Presidency." It provides an unusual glimpse of fierce internal dissent over the legal opinions behind some of the Bush administration's most controversial tactics in detaining and interrogating terrorism suspects.
"As I absorbed the opinions, I concluded that some were deeply flawed: sloppily reasoned, overbroad, and incautious in asserting extraordinary constitutional authorities on behalf of the President," Goldsmith writes, referring to Justice Department memoranda issued in the two years following the Sept. 11, 2001, attacks. "I was astonished, and immensely worried, to discover that some of our most important counterterrorism policies rested on severely damaged legal foundations."
The internal tensions peaked in March 2004 during the now-famous visit by then-White House counsel Alberto R. Gonzales to the hospital room of then-Attorney General John D. Ashcroft, whom Gonzales unsuccessfully pressed to approve a warrantless surveillance program that Goldsmith and other Justice lawyers had deemed illegal.
Goldsmith, who was in the room, recounted in an interview yesterday that as Gonzales and then-White House Chief of Staff Andrew H. Card Jr. turned and left, "Mrs. Ashcroft sticks out her tongue" to express her "strong disapproval."
Goldsmith also said in his book that -- like many other Justice Department hires -- he was quizzed about his political loyalties during his initial job interview. One of Gonzales's deputies, David Leitch, opened the conversation by asking him about an $800 campaign contribution Goldsmith had given to a law school dean who was a Democrat. "Why have you never given money to a Republican?" Leitch asked, according to the book. "Are you a Republican?"
Now a professor at Harvard Law School, Goldsmith, 44, described himself in the book as "a conservative and a Republican" who became troubled by what he saw as imprudent overreaching by the White House with support from badly-reasoned OLC memos, including at least two written or drafted by friend and fellow conservative John C. Yoo. The book was described in an article posted online yesterday by the New York Times. The Washington Post also obtained a copy.
Goldsmith portrayed the senior officials with whom he regularly met as unremittingly fearful of another terrorist attack and determined "to act aggressively and preemptively." At the same time, he wrote, they feared that they could one day be prosecuted for engaging in tactics that pushed legal boundaries. The solution was for lawyers "to find some way to make what [Bush] did legal," Goldsmith wrote.
Goldsmith for a time was in a unique position to do so, because OLC opinions carry unusual authority inside the government and are typically regarded as written in stone. Only a handful of OLC decisions have been altered by officials in successive administrations. But during Goldsmith's brief tenure, however, he wound up overturning numerous OLC decisions reached earlier in the Bush administration -- an unprecedented act.
Goldsmith's actions clearly surprised the White House. He was picked for the job, he wrote, because he had strongly supported trying detainees before military-run commissions instead of civilian courts, had opposed U.S. involvement in the International Criminal Court, and had spoken out against the rising influence of international legal norms on U.S. actions.
Goldsmith said in the book that he did not question the motives or integrity of Addington or others, and he portrayed them as sincerely concerned about the nation's security. But he depicted Addington, who served as "Cheney's eyes, ears, and voice" on counterterrorism matters and with whom he was present at roughly 100 meetings on the topic, as having little patience for views contrary to his own.
"After 9/11, they and other top officials in the administration dealt with FISA the way they dealt with other laws they didn't like: they blew through them in secret based on flimsy legal opinions that they guarded closely so no one could question the legal basis for the operations," Goldsmith wrote, referring to the Foreign Intelligence Surveillance Act, which governs spying by U.S. agencies within the United States.
Goldsmith described Addington as "the chief legal architect of the Terrorist Surveillance Program," which bypassed the secret court that administers FISA and allowed the National Security Agency to spy on communications between the United States and overseas without warrants. In a February 2004 meeting, Addington said sarcastically: "We're one bomb away from getting rid of that obnoxious [FISA] court."
Addington is widely known as a prominent and influential advocate for presidential prerogatives and is also as viewed as one of the administration's fiercest political infighters. Bradford Berenson, a former White House lawyer, told the New Yorker magazine last year: "David is like the Marines. No better friend -- no worse enemy."
Addington reacted angrily to many of Goldsmith's legal opinions, telling him in reference to one concerning detainees in Iraq: "The president has already decided that terrorists do not receive Geneva Convention protections. You cannot question his decision," according to the book.
"He and, I presumed, his boss viewed power as the absence of constraint," Goldsmith wrote. "They believed cooperation and compromise signaled weakness and emboldened the enemies of America and the executive branch."
Gonzales, by contrast, is depicted in the book as a passive figure at the White House who mostly would "sit quietly in his wing chair, occasionally asking questions but mostly listening as the querulous Addington did battle with whomever was seeking to 'go soft.' "
After Goldsmith decided to resign in 2004, however, he recalled sitting down with Gonzales for what he described as a cordial conversation. Gonzales raised the issue of the memos on interrogation policy that Goldsmith overturned. "I guess those opinions really were as bad as you said," Gonzales told him, according to Goldsmith. Gonzales, now the attorney general, announced his resignation last week.
Goldsmith learned to be a tough interagency player during his tumultuous nine-month stint at the OLC. When he decided to suspend a classified March 2003 legal opinion justifying harsh interrogations conducted by U.S. military personnel, he "didn't inform the White House about my decision" because "I knew that running the matter by Gonzales and especially Addington would make it much harder to fix the opinions."
And when he later decided to suspend an August 2002 legal opinion by Yoo that sharply limited the kind of interrogations that could be considered torture, Goldsmith handed in his resignation at the same time because he believed the timing "would make it hard for the White House to reverse my decision without making it seem like I had resigned in protest."
In all, Goldsmith writes, he drafted three resignation letters while on the job.
Goldsmith accused Bush in his book of being "almost entirely inattentive" to factors that would have brought him greater success, including the need for consultation, deliberation, "the appearance of deference," and publicly expressed support for constitutional and international values.
Bush got less in the end from Congress when he finally asked for legislative sanction than he would have gotten from more compliant lawmakers immediately after the 2001 terrorist attacks, according to Goldsmith. "It was said hundreds of times in the White House that the President and the Vice President wanted to leave the presidency stronger than they found it. In fact, they seemed to have achieved the opposite," he wrote.
Staff writer Barton Gellman and staff researcher Julie Tate contributed to this report.