WASHINGTON – Vice President Dick Cheney and other Bush administration officials "blew through" legal constraints they didn't like and weakened the presidency with a go-it-alone approach in the War on Terror, a former Justice Department official writes in a new book.
In "The Terror Presidency," former assistant attorney general Jack Goldsmith details what he calls "one of the underappreciated stories in the war on terrorism: the daily clash inside the Bush administration between fear of another attack — which drives officials into doing whatever they can to prevent it — and the countervailing fear of violating the law, which checks their urge toward prevention."
Goldsmith rescinded two legal memos written by attorneys who previously ran the Office of Legal Counsel, which he later took over, and which provides opinions that both define the limits of presidential authority and provide the legal justification for presidents to act. The rescinded memos had narrowed the definition of torture.
He focuses on the strong influence wielded by Cheney lawyer David Addington, now the vice president's chief of staff.
Cheney and Addington had abhorred the Foreign Intelligence Surveillance Act's "intrusion on presidential power" since its enactment in 1978, writes Goldsmith. It requires court warrants to conduct surveillance.
Goldsmith describes Addington as the chief legal architect of the National Security Agency's Terrorist Surveillance Program that circumvented the secret FISA court created by the 1978 law.
On one hand, "it seemed crazy to require the commander in chief and his subordinates to get a judge's permission to listen to each communication under a legal regime that was designed before technological revolutions brought us high-speed fiber-optic networks, the public Internet, e-mail and $10 dollar cell phones," Goldsmith wrote. "But I deplored the way the White House went about fixing the problem."
"We're one bomb away from getting rid of that obnoxious (FISA) court," Goldsmith quoted Addington as saying "in his typically sarcastic style" during a tense White House meeting in February 2004.
In response to the book's focus on Addington, Cheney's office said in an e-mailed statement Friday that "David Addington has served the American people for two decades and is dedicated to upholding the Constitution."
After the Sept. 11 attacks, Cheney, Addington and other top officials "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.
"My first experience of this strict control, in fact, had come in a 2003 meeting when Addington angrily denied the NSA inspector general's request to see a copy of OLC's legal analysis in support of the Terrorist Surveillance Program," Goldsmith wrote. "Before I arrived in OLC, not even NSA lawyers were allowed to see the Justice Department's legal analysis of what NSA was doing."
As the Supreme Court began to focus on whether detainees had legal rights, Goldsmith suggested asking Congress to sign off on the program. "Why are you trying to give away the president's power?" Addington asked, according to Goldsmith.
Addington believed that "the very act of asking for Congress's help would imply, contrary to the White House line, that the president needed legislative approval and could not act on his own," Goldsmith wrote.
According to Goldsmith, Addington once expressed his general attitude toward accommodation by saying: "We're going to push and push and push until some larger force makes us stop."
Addington's attitude toward accommodating concerns of allies and international organizations was: "They don't have a vote," Goldsmith wrote.
Goldsmith pulled back two infamous memos — one of them still classified — that gave the military and the CIA authority broad latitude in interrogating prisoners. That prompted Addington to pull out a 3-by-5-inch card and, in the presence of top administration lawyers, identify various OLC opinions by Goldsmith's predecessor that Goldsmith had shelved or modified.
"Since you've withdrawn so many legal opinions that the president and others have been relying on, we need you to go through all of OLC's opinions and let us know which ones you still stand by," Goldsmith quoted Addington as saying. "In a mere nine months in office I had reversed or rescinded more OLC opinions than any of my predecessors." Goldsmith resigned.
In one instance, Goldsmith told Addington and then-White House counsel Alberto Gonzales that the Justice Department could not support the legality of an important counterterrorism initiative.
"If you rule that way, the blood of the hundred thousand people who die in the next attack will be on your hands," Addington told Goldsmith in disgust.
"It was said hundreds of times in the White House that the president and vice president wanted to leave the presidency stronger than they found it," said Goldsmith.
"In fact they seemed to have achieved the opposite," Goldsmith said. "They borrowed against the power of future presidencies — presidencies that, at least until the next attack, and probably even following one, will be viewed by Congress and the courts, whose assistance they need, with a harmful suspicion and mistrust because of the unnecessary unilateralism of the Bush years."