[Ppnews] The Man Behind the Torture

[Political Prisoner News]

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Volume 54, Number 19 · December 6, 2007

The Man Behind the Torture
By David Cole
The Terror Presidency: Law and Judgment Inside the Bush Administration

by Jack Goldsmith
Norton, 256 pp., $25.95

Perhaps the most powerful lawyer in the Bush administration is also the
most reclusive. David Addington, who was Vice President Dick Cheney's
counsel from 2001 to 2005, and since then his chief of staff, does not
talk to the press. His voice, however, has been enormously influential
behind closed doors, where, with Cheney's backing, he has helped shape the
administration's strategy in the war on terror, and in particular its
aggressively expansive conception of executive power. Sometimes called
"Cheney's Cheney," Addington has twenty years of experience in national
security matters—he has been a lawyer for the CIA, the secretary of
defense, and two congressional committees concerned with intelligence and
foreign affairs. He is a prodigious worker, and by all accounts a
brilliant inside political player. Richard Shiffrin, deputy general
counsel for intelligence at the Defense Department until 2003, called him
"an unopposable force."[1] Yet most of the American public has never heard
him speak.

Addington's combination of public silence and private power makes him an
apt symbol for the Bush administration's general approach to national
security. Many of the administration's most controversial policies have
been adopted in secret, under Addington's direction, often without much
input from other parts of the executive branch, much less other branches
of government, and without public accountability. Among the measures we
know about are disappearances of detainees into secret CIA prisons, the
use of torture to gather evidence, rendition of suspects to countries
known for torture, and warrantless wiretapping of Americans.

When the public learns of such practices, usually because
someone—presumably not David Addington—has leaked information about them
to the press, the administration continues to invoke secrecy to block
efforts to hold it to account. After The New York Times revealed that
President Bush had authorized the National Security Agency (NSA) to
monitor Americans' phone calls without judicial approval, in violation of
a criminal statute, the administration labeled the program a "state
secret" and argued that lawsuits challenging its legality must be
dismissed in deference to executive claims of confidentiality.[2] On the
same grounds, the Supreme Court in October declined without comment to
hear a lawsuit challenging the administration's abduction of an innocent
German citizen who was taken to Afghanistan to be tortured, and then
dumped on a remote Albanian roadside when US officials realized they had
kidnapped the wrong man. The administration argued that the litigation
would reveal classified information, and the Supreme Court was unwilling
even to consider whether it is consistent with our democratic system to
elevate secrecy over all other constitutional and human rights
values—including the right not to be tortured.

Because of this secrecy, what little the public knows about Addington and
the policies he has advocated necessarily comes from others. No one has
provided more credible detail on that subject than Jack Goldsmith, himself
a former Bush administration insider, now a Harvard law professor, who has
written The Terror Presidency: Law and Judgment Inside the Bush
Administration, a captivating memoir of his brief time as head of the
Justice Department's Office of Legal Counsel (OLC) under Attorney General
John Ashcroft. Goldsmith's repeated run-ins with Addington ultimately
drove Goldsmith from office only nine months after he took the post in
October 2003.

Goldsmith's confrontations with Addington are central to the story he
tells. They began in his first weeks on the job, when Goldsmith informed
Addington that according to his analysis of the law, the Geneva
Conventions protect all Iraqis in Iraq, even those we suspect are
terrorists. "The President," Addington objected, "has already decided that
terrorists do not receive Geneva Convention protections. You cannot
question his decision." When Goldsmith told Addington that he did not
believe that a surveillance program being conducted by the NSA was legal,
Addington replied, "If you rule that way, the blood of the hundred
thousand people who die in the next attack will be on your hands."

In a discussion about whether surveillance of communications had to be
approved by a court, as required by the Foreign Intelligence Surveillance
Act (FISA), Addington boasted, "We're one bomb away from getting rid of
that obnoxious [FISA] court." And when Goldsmith and other high-level
Justice and State Department officials recommended going to Congress to
obtain legislative authority for the detention program at Guantánamo Bay,
Addington asked dismissively, "Why are you trying to give away the
President's power?" As Addington articulated the administration's general
strategy, "We're going to push and push and push until some larger force
makes us stop."

Goldsmith writes that Addington and Cheney viewed executive power
reductively as the "absence of constraint," and rejected all efforts to
exercise authority through persuasion, consultation, and
consensus-building. Such initiatives, they felt, would only show weakness.
They bristled at any law that tied the executive's hands. As Goldsmith
tells it, Addington and Cheney 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.

Addington would not even let the National Security Agency's counsel see
the opinions purporting to authorize NSA spying. And when other officials
objected that a particular policy would hurt the United States' image with
its allies, Addington's response was even more dismissive; according to
Goldsmith, he invariably replied, "They don't have a vote."

Goldsmith's account is credible not only because he was an insider, but
because he shares so many of Addington's views. Like his classmate at Yale
Law School and onetime friend John Yoo, another Office of Legal Counsel
lawyer who worked closely with Addington to justify the administration's
most extreme assertions of unilateral power,[3] Goldsmith made his
reputation as a scholar with articles highly skeptical of international
law, human rights, and international institutions. While serving in the
legal counsel office at the Department of Defense, he wrote a memo for
Donald Rumsfeld dismissing international law as a tool of the weak. He
accused other nations and nongovernmental organizations of creating a "web
of international laws and judicial institutions that today threatens USG
interests," and recommended that the United States "confront...the
threat." And Goldsmith is equally critical of domestic legal constraints;
in The Terror Presidency he characterizes post-Watergate legal limits on
executive power—the very limits Addington and Cheney so resented—as "one
of the Bush administration's biggest obstacles in responding to the 9/11
attacks."

Why, then, did two lawyers with so much in common come to such an impasse?
In Goldsmith's retelling, it is because he was more faithful to the law
than to the President, and was unwilling to bend the law at every juncture
to authorize whatever the administration desired. Apparently, Goldsmith
was the first official in the OLC to challenge the administration's claims
to unchecked power. While other high officials, including Secretary of
State Colin Powell, State Department legal adviser William Taft III, and
National Security Council adviser John Bellinger, had objected to various
aspects of the war on terror, they could be, and generally were, ignored.
It was more difficult to disregard the OLC, because its job is to
interpret federal law within the executive branch. If it takes the view
that an administration program is legal, those charged with carrying it
out can rest assured that they will not be prosecuted for violating
federal law. As Goldsmith puts it, the OLC has the power to issue
"get-out-of-jail-free cards." Because the White House was repeatedly
pushing the limits of criminal law on torture, wiretapping, and war
crimes, it deemed opposition from the OLC unacceptable. And after his
appointment on October 6, 2003, Goldsmith soon showed that, unlike his
predecessor, Jay S. Bybee, he was willing to say "no."

Goldsmith crossed the administration frequently. As noted above, he ruled
that the Geneva Conventions protect all Iraqi civilians, much to
Addington's displeasure. In early 2004, he concluded—along with FBI
Director Robert Mueller, Deputy Attorney General James Comey, and Attorney
General John Ashcroft—that the NSA spying program violated FISA, which
requires judicial approval for electronic surveillance of US citizens and
permanent residents. And in June 2004, he withdrew the Justice
Department's infamous August 2002 memo on torture, drafted by John Yoo at
Alberto Gonzales's request. This memo, in effect, allowed the CIA to use
harsh interrogation tactics, including waterboarding, head-slapping, sleep
deprivation, stress positions, and exposure to extremes of heat and cold,
by assuring CIA agents that they would not be prosecuted for violating the
federal torture statute. Goldsmith writes:

The message of the August 1, 2002, OLC opinion was indeed clear: violent
acts aren't necessarily torture; if you do torture, you probably have a
defense; and even if you don't have a defense, the torture law doesn't
apply if you act under color of presidential authority. CIA interrogators
and their supervisors, under pressure to get information about the next
attack, viewed the opinion as a "golden shield," as one CIA official later
called it, that provided enormous comfort.

Goldsmith did not come to these positions lightly. In his view, the OLC
should approve presidential action so long as there is any reasonable
legal argument available to defend it. In these instances, he apparently
concluded that no reasonable lawyer could say "yes." Or, in other words,
David Addington and John Yoo were not reasonable lawyers.

Goldsmith has received widespread and deserved commendation for his
courage in standing up against these assertions of unchecked executive
power, at both personal and professional cost.[4] John Yoo, once a close
friend, no longer speaks to him. And saying "no" was not a way to get
ahead in the Bush administration. Patrick Philbin, who worked with
Goldsmith at the OLC and reportedly supported Goldsmith's challenges to
the White House, was vetoed for a prestigious post in the solicitor
general's office for having done so.

Still, when one probes more deeply, Goldsmith's differences with Addington
often turn out to be more about style and prudence than about substance.
Goldsmith rarely criticizes any of the administration's policies on their
merits, whether the CIA's interrogation tactics or disappearances into
secret prisons or detentions at Guantánamo or military tribunals. His
complaint is not that these measures were wrong, but simply that it would
have been more diplomatic to seek congressional authorization for them.
Thus he cites with approval the 2006 Military Commissions Act (MCA), which
stripped Guantánamo detainees of habeas corpus review, authorized the
admission of coerced testimony in military trials, retroactively immunized
CIA interrogators from prosecution for war crimes, barred foreign
nationals from invoking the Geneva Conventions in court, and watered down
the federal war crimes statute. Goldsmith takes issue with none of these
developments, and instead praises the MCA as "an important first step in
the right direction of putting counterterrorism policy on a more secure
and sensible legal foundation."

Similarly, while Goldsmith differed with the White House over the NSA
spying program during the spring of 2004, he ultimately approved a program
that appears to have violated criminal law. Goldsmith initially sided with
Comey, Mueller, and Ashcroft in concluding that some aspects of the
program as it existed in 2004 were illegal. This is what led to the
now-famous March 2004 hospital room confrontation, in which White House
Counsel Alberto Gonzales sought to get an ailing and sedated Ashcroft to
reverse his own prior decision and approve the NSA program.[5] Thanks to
candid congressional testimony from Comey, it will not be difficult to
stage the scene for the inevitable made-for-television movie. In an
interview with Jeffrey Rosen for a New York Times Magazine article,
Goldsmith added the detail that Mrs. Ashcroft stuck her tongue out at
Gonzales and White House Chief of Staff Andrew Card as they left the room,
having been rebuffed by Ashcroft from his sick bed.

But we still do not know what aspect of the program prompted the
disagreement—and Goldsmith does not tell us. What we do know is that once
the White House agreed to change the program, Goldsmith and others fell
into line and approved it, despite its apparent continuing illegality. The
Justice Department's legal opinion defending that altered program, which
Goldsmith presumably approved and which has now been made public,
authorizes warrantless wiretapping of Americans' international calls to or
from persons suspected of ties to al-Qaeda, and does so by relying heavily
on the Addington-Cheney view that the President has uncheckable
constitutional authority to ignore criminal statutes when engaging the
enemy in wartime.[6]

While Goldsmith reserves his harshest criticism for the August 2002
torture memo, that is an easy target, and he appears to have taken no
steps to halt any of the interrogation tactics it authorized. The memo
infamously maintained that torture was limited to the infliction of
physical pain at a level associated with organ failure or death, thus
permitting all lesser forms of physical abuse. Goldsmith writes that no
one in the administration other than Addington was willing to defend the
memo once it became public. In his recent confirmation hearing for the
post of attorney general, Judge Michael Mukasey called the August 2002
memo "worse than a sin." To Goldsmith's credit, he recognized that it was
deeply flawed before the photographs from Abu Ghraib were released, and
before the memo was leaked to the press. But it is telling that he did not
actually withdraw it until after the memo was leaked.

More disturbing, while Goldsmith ultimately withdrew the memo, he did not
succeed in issuing a replacement: the new memo was drafted in December
2004 by his successor, Daniel Levin, after Goldsmith had resigned. Most
disturbing of all, even after Goldsmith withdrew the August 2002 memo, he
never requested that a single interrogation tactic previously approved on
the basis of the retracted memo be prohibited. In his book, he says only
that he "just didn't yet know" whether any of the CIA methods were
illegal, an evasion remarkably similar to Judge Mukasey's recent
statements that he is unable to say whether waterboarding is torture.
Goldsmith's failure to reach a decision meant that the CIA continued to
engage in waterboarding, head slapping, stress positions, sleep
deprivation, and the like, even after the August 2002 memo was withdrawn.

And while Goldsmith harshly criticizes the Yoo memo, his objections are
that it was "wildly broader than was necessary," "tendentious [in] tone,"
and lacked "care and sobriety." In other words, to Goldsmith the memo's
sin was that it was poorly drafted, not that the tactics it authorized
were illegal and immoral and had to be stopped.

In fact, in discussing the December 2004 memo drafted by Levin, Goldsmith
cites with approval a footnote stating that "we have reviewed this
Office's prior opinions addressing issues involving treatment of detainees
and do not believe that any of their conclusions would be different under
the standards set forth in this memorandum." Goldsmith cites this footnote
as evidence that the August 2002 memo was unnecessarily broad, which it
certainly was. But he expresses no concern that even after the initial
memo was replaced, waterboarding and other forms of torture continued to
be used and approved.

For all its strengths as a descriptive account of an administration run
amok, the prescriptive elements of The Terror Presidency are at best
conventional and at worst perverse. Holding up Franklin Delano Roosevelt
as a model, Goldsmith recommends that the executive branch should take a
more diplomatic approach to the other branches of government. As a matter
of realpolitik, he suggests, the executive might well consolidate and
exercise its power more effectively by working with Congress and the
courts than by aggressively asserting immunity from legislative and
judicial oversight on national security matters. What is striking is not
the content of this prescription, which in itself is neither novel nor
controversial, but the fact that Addington and other members of the Bush
administration so vehemently rejected it.

The most provocative aspect of Goldsmith's argument, however, is also the
least persuasive. He contends that the problem was not that Addington and
the administration did not care sufficiently about the law, but that they
cared too intensely, so much so that they were "strangled by law." He
claims that "this war has been lawyered to death," and describes
government officials as overly chilled by the prospect that they might be
held criminally accountable for actions taken in the name of the country's
security. Goldsmith prefers the good old days when matters of national
security and war were, for the most part, not regulated by federal
legislation, and presidents, such as FDR, were free to shape their
judgments without regard for law, and could concentrate instead on
"political legitimation." In the post-Watergate era, he laments, Congress
passed "many of the laws that so infuriatingly tied the President's hands
in the post-9/11 world." This view, of course, is fully consonant with
that of Cheney and Addington. Cheney, for example, told reporters on board
Air Force One in 2005 that "a lot of the things around Watergate and
Vietnam both, in the seventies, served to erode the authority I think the
President needs."

What exactly are the laws that Goldsmith thinks "so infuriatingly tied the
President's hands?" The only ones that he discusses are the War Crimes
Act, which makes some Geneva Convention violations a federal crime; the
federal torture statute, which makes torture inflicted abroad a felony;
and the Foreign Intelligence Surveillance Act, which requires judicial
approval of wiretapping targeted at US citizens and permanent residents.
Which of these laws would Goldsmith do away with? He does not say. And
does he really think that Addington, Gonzales, Cheney, and Bush would have
acted more prudently if there had been no laws barring torture,
warrantless wiretapping, and crimes of war? The only reason these
officials had to listen to Goldsmith at all was that there were laws in
place that limited their options. And the limits themselves are not
especially onerous. FISA does not forbid surveillance, but merely requires
judicial oversight. The torture statute does not preclude interrogation,
but prohibits only torture. And the War Crimes Act merely enforces the
very laws of war that we insisted on enforcing against the Nazis after
World War II.

It is true that FDR was not subject to these laws. But Goldsmith never
identifies any causal connection between the absence of formal legal
restraints and FDR's willingness to collaborate with Congress. It is
highly implausible that Bush and Cheney would have been more open to
diplomacy had they faced fewer restraints. What restraints they faced they
sought to avoid through subterfuge and legal gamesmanship—redefining
torture so that it could be used, issuing "signing statements" that
asserted the power to ignore the very laws the President was officially
approving, and claiming in secret that other laws simply did not apply to
actions that they were clearly intended to cover. Those taking the "push,
push, push" attitude would have reveled in the absence of legal
restraints, because then there would have been no "larger force" to make
them stop.

Goldsmith writes convincingly that the pressures on an administration
fearful of another terrorist attack are so strong that the executive feels
obligated to do everything it can to stop the next attack. He contends
that "this is why the question 'What should we do?' so often collapsed
into the question 'What can we lawfully do?'" But if his account of this
pressure is accurate, it only underscores the need for legal restraints.
Indeed, it is because of the abuse of executive power in times of crisis
that we now have laws regulating torture, the treatment of enemy
detainees, and wiretapping for foreign intelligence.

Ironically, had the laws Goldsmith condemns as "paralyzing" not been on
the books, he would have had no standing to resist Addington's relentless
drive to expand executive power. The laws governing warfare,
interrogation, and surveillance were written to rein in such people as
Addington, and their ultimate effectiveness turns on having people like
Goldsmith and Comey in office willing to enforce them. If Goldsmith's
perverse proposal to erase the very lines he drew were accepted, the
result would be disastrous for future efforts to restrain rampant
executive power.

—November 7, 2007

Notes
[1] See Jane Mayer, "The Hidden Power," The New Yorker, July 3, 2006.

[2] I am co-counsel in one such case, Center for Constitutional Rights v.
Bush.

[3] For reviews of Yoo's role in shaping the administration's strategy,
see David Luban, "The Defense of Torture," The New York Review, March 15,
2007; and David Cole, "What Bush Wants to Hear," The New York Review,
November 17, 2005.

[4] See, for example, Jeffrey Rosen, "Conscience of a Conservative," The
New York Times Magazine, September 9, 2007.

[5] I recount the story of that confrontation in "The Grand Inquisitors,"
The New York Review, July 19, 2007.

[6] Martin Lederman and I drafted an open letter to Congress on behalf of
fourteen prominent constitutional scholars and former executive officials
sharply critical of the Justice Department's defense of the program. See
"On NSA Spying: A Letter to Congress," The New York Review, February 9,
2006. A federal court declared the program unconstitutional, although a
court of appeals subsequently vacated that decision, finding that the
plaintiffs lacked standing to sue. See ACLU v. NSA, 438 F. Supp. 2d 754
(E.D. Mich. 2006), vacated 493 F. 3d 644 (6th Cir. 2007).


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