White House Dismissed Legal Advice On Detainees

Jack L. Goldsmith, then head of the Justice Department's Office of Legal Counsel, wrote in his book "The Terror Presidency" of a White House meeting he attended in February of that year in which Paul D. Clement, of the solicitor general's office, warned that the administration might lose the case before the Supreme Court, despite its "solid legal arguments." Goldsmith said he suggested that the administration seek a congressional sign-off for the entire detention program, something that would make it harder for the court to strike down the program.

Goldsmith's view was supported by Clement, then-National Security Council lawyer Bellinger and Pentagon general counsel William J. Haynes II -- but not, Goldsmith said, by David S. Addington, then legal counsel to Vice President Cheney.

"Why are you trying to give away the president's power?" Addington asked, according to Goldsmith, who explains that Addington thought it might suggest that the president could not act on his own.

Others familiar with the debates say Addington was supported in his view by then-White House counsel Alberto R. Gonzales, who continued to defend the president's prerogatives when he became attorney general.

A spokesman from the vice president's office said Addington would not comment on the matter to preserve the confidentiality of administration deliberations.

That year, the Supreme Court handed the administration the first in a series of defeats on terrorism policy, ruling that the Guantanamo detainees can challenge their detentions in federal court, as a matter of law. The administration responded by establishing a system of Combatant Status Review Tribunals to review the status of detainees at Guantanamo.

The next year, Bush persuaded Congress to enact the Detainee Treatment Act, which stripped the courts of any right to hear habeas corpus challenges from Guantanamo detainees. The detainees were allowed to seek a limited review of the tribunal decisions in D.C. Circuit Court.

Several officials involved in the internal debates over detention policy said a group of administration officials -- including Zelikow and Deputy Defense Secretary Gordon R. England -- continued to argue that the White House would be better off obtaining congressional approval for the full detention program.

"There was a group of people both outside and inside who were saying that this overreaching would result ultimately in a loss that would weaken the presidency, and that the courts would just not accept it," said one senior administration official, who was not authorized to speak publicly about the deliberations and spoke on the condition of anonymity. The official added: "They kind of reaped what they sowed, and now they have 270 habeas cases."

After the Supreme Court's June 2006 decision in Hamdan v. Rumsfeld invalidated the military commissions set up by the Pentagon after Sept. 11, 2001, to try terrorism suspects, the White House finally pushed through a plan securing legislative endorsement of the commissions system. At the White House's behest, the Senate narrowly defeated a proposal to give detainees the right to seek habeas corpus review of their imprisonment in federal courts.

Even then, the White House was warned that a lack of habeas corpus protections for detainees would be struck down by the Supreme Court -- as it was last week. "The court is going to knock it out," Sen. Arlen Specter (R-Pa.), then chairman of the Judiciary Committee, said in a September 2006 interview with The Washington Post.

In a concurring opinion last week, Justice David H. Souter pointed out that a majority of the court had long made it clear how it might rule on the matter. He said the decision in another detainee case, Rasul v. Bush in 2004, "put everyone on notice that habeas process was available to Guantanamo prisoners."

"Whether one agrees or disagrees with today's decision, it is no bolt out of the blue," he wrote.

Staff writer Robert Barnes and staff researcher Julie Tate contributed to this report.