<!DOCTYPE HTML PUBLIC "-//W3C//DTD HTML 4.0 Transitional//EN">
<HTML><HEAD>
<META http-equiv=Content-Type content="text/html; charset=iso-8859-1">
<META content="MSHTML 6.00.6000.16481" name=GENERATOR>
<STYLE></STYLE>
</HEAD>
<BODY bgColor=#ffffff>
<DIV><FONT face=Arial size=2><!--StartFragment --><FONT face="Times New Roman"
size=3> </FONT>
<P><A
href="http://blog.washingtonpost.com/cheney/chapters/pushing_the_envelope_on_presi/index.html"
target=_blank></A></P>
<P><FONT face="Arial, Helvetica, sans-serif" size=1><FONT
face="Arial, Helvetica, sans-serif" size=2> <B>Part II |
Pushing the Envelope on Presidential Power</B><BR> By
Barton Gellman and Jo Becker<BR> The Washington
Post</FONT></FONT></P>
<P><FONT face="Arial, Helvetica, sans-serif" size=1><FONT
face="Arial, Helvetica, sans-serif" size=2> Monday 25
June 2007</FONT></FONT></P>
<P><FONT face="Arial, Helvetica, sans-serif" size=1><FONT
face="Arial, Helvetica, sans-serif" size=2> Shortly after
the first accused terrorists reached the U.S. naval prison at Guantanamo Bay,
Cuba, on Jan. 11, 2002, a delegation from CIA headquarters arrived in the
Situation Room. The agency presented a delicate problem to White House counsel
Alberto R. Gonzales, a man with next to no experience on the subject. Vice
President Cheney's lawyer, who had a great deal of experience, sat nearby. The
meeting marked "the first time that the issue of interrogations comes up" among
top-ranking White House officials, recalled John C. Yoo, who represented the
Justice Department. "The CIA guys said, 'We're going to have some real
difficulties getting actionable intelligence from detainees'" if interrogators
confined themselves to humane techniques allowed by the Geneva
Conventions.</FONT></FONT></P>
<P><FONT face="Arial, Helvetica, sans-serif" size=1><FONT
face="Arial, Helvetica, sans-serif" size=2> >From that
moment, well before previous accounts have suggested, Cheney turned his
attention to the practical business of crushing a captive's will to resist. The
vice president's office played a central role in shattering limits on coercion
in U.S. custody, commissioning and defending legal opinions that the Bush
administration has since portrayed as the initiatives, months later, of
lower-ranking officials.</FONT></FONT></P>
<P><FONT face="Arial, Helvetica, sans-serif" size=1><FONT
face="Arial, Helvetica, sans-serif" size=2> Cheney and
his allies, according to more than two dozen current and former officials,
pioneered a novel distinction between forbidden "torture" and permitted use of
"cruel, inhuman or degrading" methods of questioning. They did not originate
every idea to rewrite or reinterpret the law, but fresh accounts from
participants show that they translated muscular theories, from Yoo and others,
into the operational language of government.</FONT></FONT></P>
<P><FONT face="Arial, Helvetica, sans-serif" size=1><FONT
face="Arial, Helvetica, sans-serif" size=2> A backlash
beginning in 2004, after reports of abuse leaked out of Iraq's Abu Ghraib prison
and Guantanamo Bay, brought what appeared to be sharp reversals in courts and
Congress - for both Cheney's claims of executive supremacy and his unyielding
defense of what he called "robust interrogation."</FONT></FONT></P>
<P><FONT face="Arial, Helvetica, sans-serif" size=1><FONT
face="Arial, Helvetica, sans-serif" size=2> But a more
careful look at the results suggests that Cheney won far more than he lost. Many
of the harsh measures he championed, and some of the broadest principles
undergirding them, have survived intact but out of public
view.</FONT></FONT></P>
<P><FONT face="Arial, Helvetica, sans-serif" size=1><FONT
face="Arial, Helvetica, sans-serif" size=2> The vice
president's unseen victories attest to traits that are often ascribed to him but
are hard to demonstrate from the public record: thoroughgoing secrecy,
persistence of focus, tactical flexibility in service of rigid aims and close
knowledge of the power map of government. On critical decisions for more than
six years, Cheney has often controlled the pivot points - tipping the outcome
when he could, engineering stalemate when he could not and reopening debates
that rivals thought were resolved.</FONT></FONT></P>
<P><FONT face="Arial, Helvetica, sans-serif" size=1><FONT
face="Arial, Helvetica, sans-serif" size=2> "Once he's
taken a position, I think that's it," said James A. Baker III, who has shared a
hunting tent with Cheney more than once and worked with him under three
presidents. "He has been pretty damn good at accumulating power, extraordinarily
effective and adept at exercising power."</FONT></FONT></P>
<P><FONT face="Arial, Helvetica, sans-serif" size=1><FONT
face="Arial, Helvetica, sans-serif" size=2> <B>"No More
Secret Opinions"</B></FONT></FONT></P>
<P><FONT face="Arial, Helvetica, sans-serif" size=1><FONT
face="Arial, Helvetica, sans-serif" size=2> David S.
Addington, Cheney's general counsel, set the new legal agenda in a blunt
memorandum shortly after the CIA delegation returned to Langley. Geneva's
"strict limits on questioning of enemy prisoners," he wrote on Jan. 25, 2002,
hobbled efforts "to quickly obtain information from captured
terrorists."</FONT></FONT></P>
<P><FONT face="Arial, Helvetica, sans-serif" size=1><FONT
face="Arial, Helvetica, sans-serif" size=2> No longer was
the vice president focused on procedural rights, such as access to lawyers and
courts. The subject now was more elemental: How much suffering could U.S.
personnel inflict on an enemy to make him talk? Cheney's lawyer feared that
future prosecutors, with motives "difficult to predict," might bring criminal
charges against interrogators or Bush administration
officials.</FONT></FONT></P>
<P><FONT face="Arial, Helvetica, sans-serif" size=1><FONT
face="Arial, Helvetica, sans-serif" size=2> Geneva rules
forbade not only torture but also, in equally categorical terms, the use of
"violence," "cruel treatment" or "humiliating and degrading treatment" against a
detainee "at any time and in any place whatsoever." The War Crimes Act of 1996
made any grave breach of those restrictions a U.S. felony [Read the act]. The
best defense against such a charge, Addington wrote, would combine a broad
presidential direction for humane treatment, in general, with an assertion of
unrestricted authority to make exceptions.</FONT></FONT></P>
<P><FONT face="Arial, Helvetica, sans-serif" size=1><FONT
face="Arial, Helvetica, sans-serif" size=2> The vice
president's counsel proposed that President Bush issue a carefully ambiguous
directive. Detainees would be treated "humanely and, to the extent appropriate
and consistent with military necessity, in a manner consistent with the
principles of" the Geneva Conventions. When Bush issued his public decision two
weeks later, on Feb. 7, 2002, he adopted Addington's formula - with all its room
for maneuver - verbatim.</FONT></FONT></P>
<P><FONT face="Arial, Helvetica, sans-serif" size=1><FONT
face="Arial, Helvetica, sans-serif" size=2> In a radio
interview last fall, Cheney said, "We don't torture." What he did not
acknowledge, according to Alberto J. Mora, who served then as the Bush-appointed
Navy general counsel, was that the new legal framework was designed specifically
to leave room for cruelty. In international law, Mora said, cruelty is defined
as "the imposition of severe physical or mental pain or suffering." He added:
"Torture is an extreme version of cruelty."</FONT></FONT></P>
<P><FONT face="Arial, Helvetica, sans-serif" size=1><FONT
face="Arial, Helvetica, sans-serif" size=2> How extreme?
Yoo was summoned again to the White House in the early spring of 2002. This time
the question was urgent. The CIA had captured Abu Zubaida, then believed to be a
top al-Qaeda operative, on March 28, 2002. Case officers wanted to know "what
the legal limits of interrogation are," Yoo said.</FONT></FONT></P>
<P><FONT face="Arial, Helvetica, sans-serif" size=1><FONT
face="Arial, Helvetica, sans-serif" size=2> This
previously unreported meeting sheds light on the origins of one of the Bush
administration's most controversial claims. The Justice Department delivered a
classified opinion on Aug. 1, 2002, stating that the U.S. law against torture
"prohibits only the worst forms of cruel, inhuman or degrading treatment" and
therefore permits many others. Distributed under the signature of Assistant
Attorney General Jay S. Bybee, the opinion also narrowed the definition of
"torture" to mean only suffering "equivalent in intensity" to the pain of "organ
failure ..... or even death."</FONT></FONT></P>
<P><FONT face="Arial, Helvetica, sans-serif" size=1><FONT
face="Arial, Helvetica, sans-serif" size=2> When news
accounts unearthed that opinion nearly two years later, the White House
repudiated its contents. Some officials described it as hypothetical, without
disclosing that the opinion was written in response to specific questions from
the CIA. Administration officials attributed authorship to Yoo, a Berkeley law
professor who had come to serve in the Office of Legal
Counsel.</FONT></FONT></P>
<P><FONT face="Arial, Helvetica, sans-serif" size=1><FONT
face="Arial, Helvetica, sans-serif" size=2> But the
"torture memo," as it became widely known, was not Yoo's work alone. In an
interview, Yoo said that Addington, as well as Gonzales and deputy White House
counsel Timothy E. Flanigan, contributed to the analysis.</FONT></FONT></P>
<P><FONT face="Arial, Helvetica, sans-serif" size=1><FONT
face="Arial, Helvetica, sans-serif" size=2> The vice
president's lawyer advocated what was considered the memo's most radical claim:
that the president may authorize any interrogation method, even if it crosses
the line of torture. U.S. and treaty laws forbidding any person to "commit
torture," that passage stated, "do not apply" to the commander in chief, because
Congress "may no more regulate the President's ability to detain and interrogate
enemy combatants than it may regulate his ability to direct troop movements on
the battlefield."</FONT></FONT></P>
<P><FONT face="Arial, Helvetica, sans-serif" size=1><FONT
face="Arial, Helvetica, sans-serif" size=2> That same
day, Aug. 1, 2002, Yoo signed off on a second secret opinion, the contents of
which have never been made public. According to a source with direct knowledge,
that opinion approved as lawful a long list of specific interrogation techniques
proposed by the CIA - including waterboarding, a form of near-drowning that the
U.S. government classified as a war crime in 1947. The opinion drew the line
against one request: threatening to bury a prisoner alive.</FONT></FONT></P>
<P><FONT face="Arial, Helvetica, sans-serif" size=1><FONT
face="Arial, Helvetica, sans-serif" size=2> Yoo said for
the first time in an interview that he verbally warned lawyers for the
president, Cheney and Defense Secretary Donald H. Rumsfeld that it would be
dangerous as a matter of policy to permit military interrogators to use the
harshest techniques, because the armed services, vastly larger than the CIA,
could overuse the tools or exceed the limits. "I always thought that only the
CIA should do this, but people at the White House and at DOD felt differently,"
Yoo said. The migration of those techniques from the CIA to the military, and
from Guantanamo Bay to Abu Ghraib, aroused worldwide condemnation when abuse by
U.S. troops was exposed.</FONT></FONT></P>
<P><FONT face="Arial, Helvetica, sans-serif" size=1><FONT
face="Arial, Helvetica, sans-serif" size=2> On June 8,
2004, national security adviser Condoleezza Rice and Secretary of State Colin L.
Powell learned of the two-year-old torture memo for the first time from an
article in The Washington Post [Read the article]. According to a former White
House official with firsthand knowledge, they confronted Gonzales together in
his office.</FONT></FONT></P>
<P><FONT face="Arial, Helvetica, sans-serif" size=1><FONT
face="Arial, Helvetica, sans-serif" size=2> 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 ward chief of a mental
hospital in the 1975 film "One Flew Over the Cuckoo's Nest."</FONT></FONT></P>
<P><FONT face="Arial, Helvetica, sans-serif" size=1><FONT
face="Arial, Helvetica, sans-serif" size=2> Neither of
them took their objections to Cheney, the official said, a much more dangerous
course.</FONT></FONT></P>
<P><FONT face="Arial, Helvetica, sans-serif" size=1><FONT
face="Arial, Helvetica, sans-serif" size=2> <B>"His
Client, the Vice President"</B></FONT></FONT></P>
<P><FONT face="Arial, Helvetica, sans-serif" size=1><FONT
face="Arial, Helvetica, sans-serif" size=2> 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 been killed
less than a year before 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.</FONT></FONT></P>
<P><FONT face="Arial, Helvetica, sans-serif" size=1><FONT
face="Arial, Helvetica, sans-serif" size=2> Federal
courts, Olson argued, would not go along with that. But the CIA opposed any
outside contact, fearing relief from the isolation and dependence that
interrogators relied upon to break the will of suspected
terrorists.</FONT></FONT></P>
<P><FONT face="Arial, Helvetica, sans-serif" size=1><FONT
face="Arial, Helvetica, sans-serif" size=2> Flanigan said
that Addington's personal views leaned more toward Olson than against him, but
that he beat back the proposal to grant detainees access to lawyers, "because
that was the position of his client, the vice president."</FONT></FONT></P>
<P><FONT face="Arial, Helvetica, sans-serif" size=1><FONT
face="Arial, Helvetica, sans-serif" size=2> 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.</FONT></FONT></P>
<P><FONT face="Arial, Helvetica, sans-serif" size=1><FONT
face="Arial, Helvetica, sans-serif" size=2> 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."</FONT></FONT></P>
<P><FONT face="Arial, Helvetica, sans-serif" size=1><FONT
face="Arial, Helvetica, sans-serif" size=2> Gonzales
listened quietly as the Justice Department and his own staff lined up against
Addington. Then he decided in favor of Cheney's lawyer.</FONT></FONT></P>
<P><FONT face="Arial, Helvetica, sans-serif" size=1><FONT
face="Arial, Helvetica, sans-serif" size=2> John D.
Ashcroft, who was attorney general at the time, declined to discuss details of
the dispute but said the vice president's views "carried a great deal of weight.
He was the E.F. Hutton in the room. When he talked, everybody would listen."
Cheney, he said, "compelled people to think carefully about whatever he
mentioned."</FONT></FONT></P>
<P><FONT face="Arial, Helvetica, sans-serif" size=1><FONT
face="Arial, Helvetica, sans-serif" size=2> When a U.S.
District Court ruled several months later that Padilla had a right to counsel,
Cheney's office insisted on sending Olson's deputy, Paul Clement, on what
Justice Department lawyers called "a suicide mission": to tell Judge Michael B.
Mukasey that he had erred so grossly that he should retract his decision.
Mukasey derided the government's "pinched legalism" and added acidly that his
order was "not a suggestion or request."</FONT></FONT></P>
<P><FONT face="Arial, Helvetica, sans-serif" size=1><FONT
face="Arial, Helvetica, sans-serif" size=2> Cheney's
strategy fared worse in the Supreme Court, where two cases arrived for oral
argument alongside Padilla's on April 28, 2004.</FONT></FONT></P>
<P><FONT face="Arial, Helvetica, sans-serif" size=1><FONT
face="Arial, Helvetica, sans-serif" size=2> For months,
Olson and his Justice Department colleagues had pleaded for modest shifts that
would shore up the government's position. Hamdi, the American, had languished in
a Navy brig without a hearing or a lawyer for two and a half years. Shafiq
Rasul, a British citizen at Guantanamo Bay, had been held even longer. Olson
could make Cheney's argument that courts had no jurisdiction, but he wanted to
"show them that you at least have some system of due process in place" to ensure
against wrongful detention, according to a senior Justice Department official
who closely followed the debates.</FONT></FONT></P>
<P><FONT face="Arial, Helvetica, sans-serif" size=1><FONT
face="Arial, Helvetica, sans-serif" size=2> The vice
president's counsel fought and won again. He argued that any declaration of
binding rules would restrict the freedom of future presidents and open the door
to further lawsuits. On June 28, 2004, the Supreme Court ruled 8 to 1 in the
Hamdi case that detainees must have a lawyer and an opportunity to challenge
their status as enemy combatants before a "neutral decision maker." The Rasul
decision, the same day, held 6 to 3 that Guantanamo Bay is not beyond the reach
of federal law.</FONT></FONT></P>
<P><FONT face="Arial, Helvetica, sans-serif" size=1><FONT
face="Arial, Helvetica, sans-serif" size=2> Eleven days
later, Olson stepped down as solicitor general. His deputy succeeded him. What
came next was a reminder that it does not pay to cross swords with the vice
president.</FONT></FONT></P>
<P><FONT face="Arial, Helvetica, sans-serif" size=1><FONT
face="Arial, Helvetica, sans-serif" size=2> Ashcroft,
with support from Gonzales, proposed a lawyer named Patrick Philbin for deputy
solicitor general. Philbin was among the authors of the post-9/11 legal
revolution, devising arguments to defend Cheney's military commissions and the
denial of habeas corpus rights at Guantanamo Bay. But he had tangled with the
vice president's office now and then, objecting to the private legal channel
between Addington and Yoo and raising questions about domestic surveillance by
the National Security Agency.</FONT></FONT></P>
<P><FONT face="Arial, Helvetica, sans-serif" size=1><FONT
face="Arial, Helvetica, sans-serif" size=2> Cheney's
lawyer passed word that Philbin was an unsatisfactory choice. The attorney
general and White House counsel abandoned their candidate.</FONT></FONT></P>
<P><FONT face="Arial, Helvetica, sans-serif" size=1><FONT
face="Arial, Helvetica, sans-serif" size=2> "OVP plays
hardball," said a high-ranking former official who followed the episode,
referring to the office of the vice president. "No one would defend
Philbin."</FONT></FONT></P>
<P><FONT face="Arial, Helvetica, sans-serif" size=1><FONT
face="Arial, Helvetica, sans-serif"
size=2> <B>"Unacceptable to the Vice President's
Office"</B></FONT></FONT></P>
<P><FONT face="Arial, Helvetica, sans-serif" size=1><FONT
face="Arial, Helvetica, sans-serif" size=2> Rumsfeld,
Cheney's longtime friend and mentor, gathered his senior subordinates at the
Pentagon in the summer of 2005. Rumsfeld warned them to steer clear of Senate
Republicans John McCain, John W. Warner and Lindsay O. Graham, who were drafting
a bill to govern the handling of terrorism suspects.</FONT></FONT></P>
<P><FONT face="Arial, Helvetica, sans-serif" size=1><FONT
face="Arial, Helvetica, sans-serif" size=2> "Rumsfeld
made clear, emphatically, that the vice president had the lead on this issue,"
said a former Pentagon official with direct knowledge.</FONT></FONT></P>
<P><FONT face="Arial, Helvetica, sans-serif" size=1><FONT
face="Arial, Helvetica, sans-serif" size=2> Though his
fingerprints were not apparent, Cheney had already staked out a categorical
position for the president. It came in a last-minute insert to a "statement of
administration policy" by the Office of Management and Budget, where Nancy Dorn,
Cheney's former chief of legislative affairs, was deputy director. Without
normal staff clearance, according to two Bush administration officials, the vice
president's lawyer added a paragraph - just before publication on July 21, 2005
- to the OMB's authoritative guidance on the 2006 defense spending
bill.</FONT></FONT></P>
<P><FONT face="Arial, Helvetica, sans-serif" size=1><FONT
face="Arial, Helvetica, sans-serif" size=2> "The
Administration strongly opposes" any amendment to "regulate the detention,
treatment or trial of terrorists captured in the war on terror," the statement
said. Before most Bush administration officials even became aware that the
subject was under White House review, Addington wrote that "the President's
senior advisers would recommend that he veto" any such bill.</FONT></FONT></P>
<P><FONT face="Arial, Helvetica, sans-serif" size=1><FONT
face="Arial, Helvetica, sans-serif" size=2> Among those
taken unawares was Deputy Defense Secretary Gordon R. England. More than a year
had passed since Bush expressed "deep disgust" over the abuse photographed at
Abu Ghraib, and England told aides it was past time to issue clear rules for
U.S. troops.</FONT></FONT></P>
<P><FONT face="Arial, Helvetica, sans-serif" size=1><FONT
face="Arial, Helvetica, sans-serif" size=2> In late
August 2005, England called a meeting of nearly three dozen Pentagon officials,
including the vice chief and top uniformed lawyer for each military branch.
Matthew Waxman, the deputy assistant secretary for detainee affairs, set the
agenda.</FONT></FONT></P>
<P><FONT face="Arial, Helvetica, sans-serif" size=1><FONT
face="Arial, Helvetica, sans-serif" size=2> Waxman said
that the president's broadly stated order of Feb. 7, 2002 - which called for
humane treatment, "subject to military necessity" - had left U.S. forces unsure
about how to behave. The Defense Department, he said, should clarify its bedrock
legal requirements with a directive incorporating the language of Geneva's
Common Article 3 [Read Common Article 3]. That was exactly the language -
prohibiting cruel, violent, humiliating and degrading treatment - that Cheney
had spent three years expunging from U.S. policy.</FONT></FONT></P>
<P><FONT face="Arial, Helvetica, sans-serif" size=1><FONT
face="Arial, Helvetica, sans-serif" size=2> "Every vice
chief came out strongly in favor, as did every JAG," or judge advocate general,
recalled Mora, who was Navy general counsel at the time.</FONT></FONT></P>
<P><FONT face="Arial, Helvetica, sans-serif" size=1><FONT
face="Arial, Helvetica, sans-serif" size=2> William J.
Haynes II, a close friend of Addington's who served as Rumsfeld's general
counsel, was one of two holdouts in the room. The other was Stephen A. Cambone,
Rumsfeld's undersecretary for intelligence.</FONT></FONT></P>
<P><FONT face="Arial, Helvetica, sans-serif" size=1><FONT
face="Arial, Helvetica, sans-serif" size=2> Waxman,
believing his opponents isolated, circulated a draft of DOD Directive 2310.
Within a few days, Addington and I. Lewis "Scooter" Libby, Cheney's chief of
staff, invited Waxman for a visit.</FONT></FONT></P>
<P><FONT face="Arial, Helvetica, sans-serif" size=1><FONT
face="Arial, Helvetica, sans-serif" size=2> According to
Mora, Waxman returned from the meeting with the message that his draft was
"unacceptable to the vice president's office." Another defense official, who
made notes of Waxman's report, said Cheney's lawyer ridiculed the vagueness of
the Geneva ban on "outrages upon personal dignity," saying it would leave U.S.
troops timid in the face of unpredictable legal risk. When Waxman replied that
the official White House policy was far more opaque, according to the report,
Addington accused him of trying to replace the president's decision with his
own.</FONT></FONT></P>
<P><FONT face="Arial, Helvetica, sans-serif" size=1><FONT
face="Arial, Helvetica, sans-serif" size=2> "The impact
of that meeting is that Directive 2310 died," Mora said.</FONT></FONT></P>
<P><FONT face="Arial, Helvetica, sans-serif" size=1><FONT
face="Arial, Helvetica, sans-serif" size=2> <B>"Total
Indifference to Public Opinion"</B></FONT></FONT></P>
<P><FONT face="Arial, Helvetica, sans-serif" size=1><FONT
face="Arial, Helvetica, sans-serif" size=2> Over the next
12 months, Congress and the Supreme Court imposed many of the restrictions that
Cheney had squelched.</FONT></FONT></P>
<P><FONT face="Arial, Helvetica, sans-serif" size=1><FONT
face="Arial, Helvetica, sans-serif" size=2> "The irony
with the Cheney crowd pushing the envelope on presidential power is that the
president has now ended up with lesser powers than he would have had if they had
made less extravagant, monarchical claims," said Bruce Fein, an associate deputy
attorney general under President Ronald Reagan. Flanigan, a founding member of
that crowd, said he still believes that Addington and Yoo were right in their
"application of generally accepted constitutional principles." But he
acknowledged that many battles ended badly. "The Supreme Court," Flanigan said,
"decided to change the rules." Even so, Cheney's losses were not always as they
appeared.</FONT></FONT></P>
<P><FONT face="Arial, Helvetica, sans-serif" size=1><FONT
face="Arial, Helvetica, sans-serif" size=2> On Oct. 5,
2005, the Senate voted 90 to 9 in favor of McCain's Detainee Treatment Act,
which included the Geneva language [Read the bill]. It was, by any measure, a
rebuke to Cheney. Bush signed the bill into law. "Well, I don't win all the
arguments," Cheney told the Wall Street Journal.</FONT></FONT></P>
<P><FONT face="Arial, Helvetica, sans-serif" size=1><FONT
face="Arial, Helvetica, sans-serif" size=2> Yet Cheney
and Addington found a roundabout path to the exceptions they sought for the CIA,
as allies in Congress made little-noticed adjustments to the
bill.</FONT></FONT></P>
<P><FONT face="Arial, Helvetica, sans-serif" size=1><FONT
face="Arial, Helvetica, sans-serif" size=2> The final
measure confined only the Defense Department to the list of interrogation
techniques specified in a new Army field manual. No techniques were specified
for CIA officers, who were forbidden only in general terms to employ "cruel" or
"inhuman" methods. Crucially, the new law said those words would be interpreted
in light of U.S. constitutional law. That made a big difference to
Cheney.</FONT></FONT></P>
<P><FONT face="Arial, Helvetica, sans-serif" size=1><FONT
face="Arial, Helvetica, sans-serif" size=2> The Supreme
Court has defined cruelty as an act that "shocks the conscience" under the
circumstances. Addington suggested, according to another government lawyer, that
harsh methods would be far less shocking under circumstances involving a
mass-casualty terrorist threat. Cheney may have alluded to that advice in an
interview with ABC's "Nightline" on Dec. 18, 2005, saying that "what shocks the
conscience" is to some extent "in the eye of the beholder."</FONT></FONT></P>
<P><FONT face="Arial, Helvetica, sans-serif" size=1><FONT
face="Arial, Helvetica, sans-serif" size=2> Eager to put
detainee scandals behind them, Bush's advisers spent days composing a statement
in which the president would declare support for the veto-proof bill on detainee
treatment. Hours before Bush signed it into law on Dec. 30, 2005, Cheney's
lawyer intercepted the accompanying statement "and just literally takes his red
pen all the way through it," according to an official with firsthand
knowledge.</FONT></FONT></P>
<P><FONT face="Arial, Helvetica, sans-serif" size=1><FONT
face="Arial, Helvetica, sans-serif" size=2> Addington
substituted a single sentence. Bush, he wrote, would interpret the law "in a
manner consistent with the constitutional authority of the President to
supervise the unitary executive branch and as Commander in
Chief."</FONT></FONT></P>
<P><FONT face="Arial, Helvetica, sans-serif" size=1><FONT
face="Arial, Helvetica, sans-serif" size=2> Cheney's
office had used that technique often. Like his boss, Addington disdained what he
called "interagency treaties," one official said. He had no qualms about
discarding language "agreed between Cabinet secretaries," the official
said.</FONT></FONT></P>
<P><FONT face="Arial, Helvetica, sans-serif" size=1><FONT
face="Arial, Helvetica, sans-serif" size=2> Top officials
from the CIA, Justice, State and Defense departments unanimously opposed the
substitution, according to two officials. The ranking national security lawyer
at the White House, John B. Bellinger III, warned that Congress would view
Addington's statement as a "stick in the eye" after weeks of consensus-building
by national security adviser Stephen J. Hadley.</FONT></FONT></P>
<P><FONT face="Arial, Helvetica, sans-serif" size=1><FONT
face="Arial, Helvetica, sans-serif" size=2> None of that
mattered. With Cheney's weight behind it, White House counsel Harriet E. Miers
sent Addington's version to Bush for his signature. "The only person in
Washington who cares less about his public image than David Addington is Dick
Cheney," said a former White House ally. "What both of them miss is that .....
in times of war, a prerequisite for success is people having confidence in their
leadership. This is the great failure of the administration - a complete and
total indifference to public opinion."</FONT></FONT></P>
<P><FONT face="Arial, Helvetica, sans-serif" size=1><FONT
face="Arial, Helvetica, sans-serif" size=2> <B>Not
"Exactly as the Vice President Would Have Wanted"</B></FONT></FONT></P>
<P><FONT face="Arial, Helvetica, sans-serif" size=1><FONT
face="Arial, Helvetica, sans-serif" size=2> On June 29,
2006, the Supreme Court struck its sharpest blow to the house that Cheney built,
ruling 5 to 3 that the president had no lawful power to try alleged terrorists
in military commissions. The tribunal order that Cheney brought to Bush's
private dining room, and the game plan Cheney's lawyer wrote to defend it,
fetched condemnation on disparate legal grounds. The majority relied, as
Addington's critics foresaw, on Justice Kennedy's vote. Not only did the court
leave the president beholden to Congress for the authority to charge and punish
terrorists, but it rejected a claim of implicit legislative consent that Bush
was using elsewhere to justify electronic surveillance without a warrant. And
not only did it find that Geneva's Common Article 3 protects "unlawful enemy
combatants," but it said that those protections - including humane treatment and
the right to a trial by "a regularly constituted court" - were enforceable by
federal judges in the United States.</FONT></FONT></P>
<P><FONT face="Arial, Helvetica, sans-serif" size=1><FONT
face="Arial, Helvetica, sans-serif" size=2> The court's
decision, in Hamdan v. Rumsfeld, was widely seen as a calamity for Cheney's war
plan against al-Qaeda. As the Bush administration formed its response, the vice
president's position appeared to decline further still. White House strategists
agreed that they had to submit legislation to undo the damage of the Hamdan
case. Cheney and Addington, according to a former official with firsthand
knowledge, favored a one-page bill. Their proposal would simply have stated that
the Geneva Conventions confer no right of access to U.S. courts, stripped U.S.
courts of jurisdiction over foreign nationals declared to be enemy combatants
and affirmed the president's authority to create military commissions exactly as
he had already done. Bush chose to spend the fall of 2006 negotiating a much
more complex bill that became the Military Commissions Act. The White House
proposal, said Bolten, the chief of staff, "did not come out exactly as the vice
president would have wanted."</FONT></FONT></P>
<P><FONT face="Arial, Helvetica, sans-serif" size=1><FONT
face="Arial, Helvetica, sans-serif" size=2> In another
reversal for Cheney, Bush acknowledged publicly on Sept. 6 that the CIA
maintained secret prisons overseas for senior al-Qaeda detainees, a subject on
which he had held his silence since The Post disclosed them late in 2005. The
president announced a plan to empty the "black sites" and bring their prisoners
to Guantanamo Bay to be tried.</FONT></FONT></P>
<P><FONT face="Arial, Helvetica, sans-serif" size=1><FONT
face="Arial, Helvetica, sans-serif" size=2> The same day,
almost exactly a year after the vice president's office shelved Waxman's
Pentagon plan, Waxman's successor dusted it off. DOD Directive 2310.01E, the
Department of Defense Detainee Program, included the verbatim text of Geneva's
Common Article 3 and described it, as Waxman had, as "a minimum standard for the
care and treatment of all detainees." The new Army field manual, published the
next day, said that interrogators were forbidden to employ a long list of
techniques that had been used against suspected terrorists since Sept. 11, 2001
- including stripping, hooding, inflicting pain and forcing the performance of
sex acts.</FONT></FONT></P>
<P><FONT face="Arial, Helvetica, sans-serif" size=1><FONT
face="Arial, Helvetica, sans-serif" size=2> For all the
apparent setbacks, close observers said, Cheney has preserved his top-priority
tools in the "war on terror." After a private meeting with Cheney, one of them
said, Bush decided not to promise that there would be no more black sites - and
seven months later, the White House acknowledged that secret detention had
resumed. The Military Commissions Act, passed by strong majorities of the Senate
and House on Sept. 28 and 29, 2006, gave "the office of the vice president
almost everything it wanted," said Yoo, who maintained his contact with
Addington after returning to a tenured position at Berkeley.</FONT></FONT></P>
<P><FONT face="Arial, Helvetica, sans-serif" size=1><FONT
face="Arial, Helvetica, sans-serif" size=2> The new law
withstood its first Supreme Court challenge on April 2. It exempts CIA case
officers and other government employees from prosecution for past war crimes or
torture. Once again, an apparently technical provision held great importance to
Cheney and his allies.</FONT></FONT></P>
<P><FONT face="Arial, Helvetica, sans-serif" size=1><FONT
face="Arial, Helvetica, sans-serif" size=2> Without
repealing the War Crimes Act, which imposes criminal penalties for grave
breaches of Geneva's humane-treatment standards, Congress said the president,
not the Supreme Court, has final authority to decide what the standards mean -
and whether they even apply.</FONT></FONT></P>
<P><FONT face="Arial, Helvetica, sans-serif" size=1><FONT
face="Arial, Helvetica, sans-serif" size=2> <B>"I'd Like
to Close Guantanamo"</B></FONT></FONT></P>
<P><FONT face="Arial, Helvetica, sans-serif" size=1><FONT
face="Arial, Helvetica, sans-serif" size=2> Air Force Two
touched down in Sydney this past Feb. 24. Cheney had come to discuss Iraq. Prime
Minister John Howard brought the conversation around to an Australian citizen
who had unexpectedly become a political threat. Under pressure at home, Howard
said he told Cheney that there must be a trial "with no further delay" for David
Hicks, 31, who was beginning his sixth year at the U.S. naval prison at
Guantanamo Bay. Five days later, Hicks was indicted as a war criminal. On March
26, he pleaded guilty to providing "material support" for terrorism. At every
stage since his capture, in a taxi bound for the Afghan-Pakistan border, Hicks
had crossed a legal landscape that Cheney did more than anyone to reshape. He
was Detainee 002 at Guantanamo Bay, arriving on opening day at an asserted no
man's land beyond the reach of sovereign law. Interrogators questioned him under
guidelines that gave legal cover to the infliction of pain and fear - and,
according to an affidavit filed by British lawyer Steven Grosz, Hicks was
subjected to beatings, sodomy with a foreign object, sensory deprivation,
disorienting drugs and prolonged shackling in painful
positions.</FONT></FONT></P>
<P><FONT face="Arial, Helvetica, sans-serif" size=1><FONT
face="Arial, Helvetica, sans-serif" size=2> The U.S.
government denied those claims, and before accepting Hicks's guilty plea it
required him to affirm that he had "never been illegally treated." But the
tribunal's rules, written under principles Cheney advanced, would have allowed
the Australian's conviction with evidence obtained entirely by "cruel, inhuman
or degrading" techniques.</FONT></FONT></P>
<P><FONT face="Arial, Helvetica, sans-serif" size=1><FONT
face="Arial, Helvetica, sans-serif" size=2> Shortly after
Cheney returned from Australia, the Hicks case died with a whimper. The U.S.
government abruptly shifted its stance in plea negotiations, dropping the
sentence it offered from 20 years in prison to nine months if Hicks would say
that he was guilty.</FONT></FONT></P>
<P><FONT face="Arial, Helvetica, sans-serif" size=1><FONT
face="Arial, Helvetica, sans-serif" size=2> Only the
dramatic shift to lenience, said Joshua Dratel, one of three defense lawyers,
resolved the case in time to return Hicks to Australia before Howard faces
reelection late this year. The deal, negotiated without the knowledge of the
chief prosecutor, Air Force Col. Morris Davis, was supervised by Susan J.
Crawford, the senior authority over military commissions. Crawford received her
three previous government jobs from then-Defense Secretary Cheney - appointed as
his special adviser, Pentagon inspector general and then judge on the U.S. Court
of Appeals for the Armed Forces.</FONT></FONT></P>
<P><FONT face="Arial, Helvetica, sans-serif" size=1><FONT
face="Arial, Helvetica, sans-serif" size=2> Yet the
tactical retreat on Hicks, according to Bush administration officials, diverted
attention from the continuity of U.S. policy on detainees.</FONT></FONT></P>
<P><FONT face="Arial, Helvetica, sans-serif" size=1><FONT
face="Arial, Helvetica, sans-serif" size=2> A year after
Bush announced at a news conference that "I'd like to close Guantanamo," plans
to expand it are proceeding. Senior officials said Cheney, standing nearly
alone, has turned back strong efforts - by Rice, England, new Defense Secretary
Robert M. Gates and former Bush speechwriter Mike Gerson, among others - to give
the president what he said he wants.</FONT></FONT></P>
<P><FONT face="Arial, Helvetica, sans-serif" size=1><FONT
face="Arial, Helvetica, sans-serif" size=2> Cheney and
his aides "didn't circumvent the process," one participant said. "They were just
very effective in using it."</FONT></FONT></P>
<P><FONT face="Arial, Helvetica, sans-serif" size=1><FONT
face="Arial, Helvetica, sans-serif" size=2> <B>"His Great
Virtue and His Weakness"</B></FONT></FONT></P>
<P><FONT face="Arial, Helvetica, sans-serif" size=1><FONT
face="Arial, Helvetica, sans-serif" size=2> More than a
year after Congress passed McCain-sponsored restrictions on the questioning of
suspected terrorists, the Bush administration is still debating how far the
CIA's interrogators may go in their effort to break down resistant detainees.
Two officials said the vice president has deadlocked the
debate.</FONT></FONT></P>
<P><FONT face="Arial, Helvetica, sans-serif" size=1><FONT
face="Arial, Helvetica, sans-serif" size=2> Bush said
last September that he would "work with" Congress to review "an alternative set
of procedures" for "tough" - but, he said, lawful - interrogation. He did not
promise to submit legislation or to report particulars to any oversight
committee, and he has not done so.</FONT></FONT></P>
<P><FONT face="Arial, Helvetica, sans-serif" size=1><FONT
face="Arial, Helvetica, sans-serif" size=2> Two questions
remain, officials said. One involves techniques to be authorized now. The other
is whether any technique should be explicitly forbidden. According to
participants in the debate, the vice president stands by the view that Bush need
not honor any of the new judicial and legislative restrictions. His lawyer, they
said, has recently restated Cheney's argument that when courts and Congress
"purport to" limit the commander in chief's warmaking authority, he has the
constitutional prerogative to disregard them.</FONT></FONT></P>
<P><FONT face="Arial, Helvetica, sans-serif" size=1><FONT
face="Arial, Helvetica, sans-serif" size=2> If Cheney
advocates a return to waterboarding, they said, they have not heard him say so.
But his office has fought fiercely against an executive order or CIA directive
that would make the technique illegal.</FONT></FONT></P>
<P><FONT face="Arial, Helvetica, sans-serif" size=1><FONT
face="Arial, Helvetica, sans-serif" size=2> "That's just
the vice president," said Gerson, Bush's longtime chief speechwriter, referring
to Cheney's October remark that "a dunk in the water" for terrorists - a radio
interviewer's term - is "a no-brainer for me."</FONT></FONT></P>
<P><FONT face="Arial, Helvetica, sans-serif" size=1><FONT
face="Arial, Helvetica, sans-serif" size=2> Gerson added:
"It's principled. He's deeply conscious that this is a dangerous world, and he
wants this president and future presidents to be able to deal with that. He
feels very strongly about these things, and it's his great virtue and his
weakness."</FONT></FONT></P></FONT></DIV></BODY></HTML>