Cheney's Law [home page]

Jack Goldsmith


Goldsmith, a law professor and rising star in conservative legal circles, joined the Bush administration and in 2003 became head of the Office of Legal Counsel (OLC), the Justice Department office that advises the executive branch on the legality of proposed actions. He soon realized there were "big problems" with the legal foundations underpinning some of the war on terror's most important policies, including interrogation policies and the president's domestic surveillance program. Goldsmith has written a book about his experience inside the administration - The Terror Presidency (2007). This is the edited transcript of an interview conducted on Aug. 22, 2007.

[When you got to the Pentagon in September 2002], what were going to be the top issues that would occupy your time?

I knew that I would be working on detention matters, military commissions, all things related to the war on terrorism. ... These were issues that I had been thinking and writing about. We were in a time in which everything was uncertain in terms of what the legal framework would be for this new type of war, and I thought it would be an extraordinary opportunity to be in the mix, in the middle of it.

Discuss your trip to Guantanamo.

Two weeks after I got to the Pentagon, late one night I got a call from [Pentagon General Counsel] Jim Haynes' assistant asking me if I wanted to go to Guantanamo the morning. ... Of course I jumped at the opportunity. It happened to be my 40th birthday.

Who was on the plane?

[Then-Counsel to the Vice President] David Addington was on the plane. Jim Haynes was on the plane, the number two person in the CIA general counsel's office, a lot of military lawyers.

What were you going there to do?

My understanding was that we were going to survey the detention facilities and the circumstances of detention for the detainees on Guantanamo and for the U.S. citizen detainees who were at the time being held in South Carolina and Virginia.

What's your impression of Guantanamo?

I didn't have much of a pre-impression of Guantanamo. ... This was 2002, before the nicer facilities were built. ... We basically had a tour of the detention facilities, of the medical facilities, of the interrogation facilities. We were shown the site of a future military commission that was being discussed at the time. It just seemed like a trip in which they were just doing due diligence. ...

Did you see actual detainees?

Yes. We walked through one of the compounds that held detainees. They were kept in very close quarters in these cagelike rooms. They were very sparse. There wasn't much to them.

Walking through that facility was eye-opening for a lot of reasons. I'd never been to a detention facility before, so I didn't know what to compare it to. But it was quite remarkable to walk through a building and see 20 orange-clad men in these cagelike rooms with their Qurans, sort of staring at you and looking at you as if you were alien or something worse.

Did it feel like the detainees were "the worst of the worst"?

I had no sense of whether they were the worst of the worst. I just had no sense of what they were or what they had done.

What was your opinion of keeping these detainees out of the jurisdiction of the U.S. courts?

I was basically supportive of the administration's legal policy positions at this point. I thought that they certainly had the authority to detain the enemy combatants, just as they had done in many other wars. And I thought the use of Guantanamo seemed like an appropriate place for a lot of reasons. It had been used by other administrations for similar purposes to detain persons who were dangerous or whom they wanted to keep outside of legal process for a variety of reasons. ...

At the time, you didn't have any reason to wonder about the interrogation procedures?

I had no knowledge and no reason to think about or worry about interrogation procedures at the time.

Where do you go after you leave Guantanamo?

We next flew to a brig in South Carolina, a Navy prison, where we visited Jose Padilla, who was being detained there. He was the so-called dirty bomber who was recently convicted of conspiracy in connection with terrorist activities in Miami. But at the time he was being held as an enemy combatant, a member of Al Qaeda, under detention authority in South Carolina.

Your sense of that circumstance?

He was in a wing by himself, and under very secure conditions. It was a very modern prison facility. I didn't see Padilla himself. I didn't really form much of an impression.

Then you saw [Yaser Esam] Hamdi [the U.S. citizen captured fighting with the Taliban in Afghanistan]?

... We flew from Charleston to Norfolk as evening was approaching to view Hamdi. This prison, the brig in Norfolk, in my sense was much different than the brig in Charleston. It was run-down and older. It was dark. We had a meeting with the people in charge of detaining Hamdi, and then we were taken to a room where we saw Hamdi in his cell on a closed-circuit television screen.

And there was this strange episode -- strange for me -- when these top administration lawyers and myself crowded around in a corner of this somewhat dilapidated guardhouse to this black-and-white television screen in the corner of the room where there was a closed-circuit television of Hamdi. He was lying there on this fuzzy black-and-white television screen in a fetal position, I think on his bed; I'm not sure. I was just moved at the time to think that there's something not quite right about this, with this 22-year-old sitting in the corner of this dilapidated prison with no contact with the outside world, in this black-and-white screen, in this fetal position.

I didn't question the legal authorities. Indeed, I immediately checked myself as soon as I had this emotion. I certainly didn't question the administration's power to detain him. But it was my first sense of something I came to feel more strongly later, that maybe, even though we had the legal authority to detain people, that maybe this isn't the right way to go about it. Maybe the circumstances and the conditions of detention should be different. ...

What is the Office of Legal Counsel? ...

The Office of Legal Counsel is a small office in the Justice Department. It has 22 lawyers. ... It's the Office of Legal Counsel, this small office in the Justice Department, that decides whether proposed executive branch actions are lawful.

The Office of Legal Counsel can be overruled in its determinations by basically two people: by the attorney general, for whom the Office of Legal Counsel works and whose delegated authority the Office of Legal Counsel exercises; and of course by the president, who sits atop the executive branch and under the Constitution is charged with the duty to faithfully execute the law and therefore is viewed as the chief legal officer of the executive branch.

One of the many reasons why the Office of Legal Counsel was especially important after 9/11 was that the president and his staff found itself, after 9/11, on 9/12, wanting to do all sorts of things to protect the country and to take the aggressive steps needed to find and thwart the terrorists and to prevent another attack. They found themselves, however, confronting everywhere they turned a whole variety of restrictions -- many of them criminal restrictions -- that Congress over the last couple of decades had put into place, ... thinking about all sorts of other problems that had occurred in the past.

In the military and the intelligence bureaucracies especially -- the agencies that the president and the White House were asking to do the aggressive things needed to thwart the terrorists -- they were understandably hesitant about acting aggressively in the teeth of these laws for many reasons. One, they didn't want to violate the law. Two, they worried that what seemed like it was lawful today may seem unlawful tomorrow or down the road two, five, seven years from now.

The Office of Legal Counsel was able to help alleviate this problem. ... When the Office of Legal Counsel says that a course of action is lawful, ... and therefore that the action can go forward, ... it gives the imprimatur to the Department of Justice to those actions. It basically says, "You can do these actions lawfully, and you don't have to worry about legal repercussions later." ...

How do you get the job as head of the Office of Legal Counsel?

By unlucky accident, I think. It was April of 2003, and I was working in the Defense Department. I'd been there about six or seven months. I loved the job there, but I had no further government ambitions. In fact, I had decided that one year was going be enough for me. ... I told Haynes I was going leave the government.

At about this time, there was a competition within the administration for the head of the Office of Legal Counsel. [Then-head] Jay Bybee had left to become a judge in the 9th Circuit, and the opening at OLC came up. [Then-Deputy Assistant Attorney General] John Yoo, my understanding was, was the leading contender for the White House. My understanding also was that Attorney General [John] Ashcroft did not want him to be the head of the Office for Legal Counsel, so he didn't get the job.

After this happened, I think I almost immediately was contacted. I didn't apply, and I certainly didn't even consider myself in the running for the job. But I think that John Yoo and Jim Haynes and David Leitch, who was at the time the White House counsel's deputy, Alberto Gonzales' deputy, all recommended me for the job. I had a very similar profile to John Yoo. I was a conservative academic, was an expert in international law, war powers, presidential power and the like. I think that's how I came to get the interview. ...

You knew John Yoo very well, and you'd been talking to him through this process. So you must have known about the formidable tasks that he had performed and that would await you.

I saw John a lot when I worked in the Department of Defense. We were close friends; we did things together. We went to dinner; we played squash. We spent a lot of time together. I sensed that his job was important and difficult, but we didn't talk that much about exactly what was going on at OLC. ...

Some people have described Yoo to us as a godsend if you are Addington, [Deputy White House Counsel Timothy E.] Flanigan, [Vice President Dick] Cheney.

Yeah. I think he was a very, very, very important person. Because he was in the Office of Legal Counsel, he had the authority to issue opinions that were binding throughout the executive branch. He had views about legal issues that they found congenial. He was very, very knowledgeable, and he was very fast. So I think he was a very important player. ...

[What was your sense of Yoo's Sept. 25, 2001 memo on the president's constitutional powers in the war on terror?]

… In some respects it was an unremarkable document, in the respects that it basically said that the president had very broad authority to use military force to protect the nation from attacks from terrorists. And it impressively marshaled precedents going back decades, and even into the 19th century, that articulated the executive's view of its very broad powers. …

The truly remarkable thing about the opinion was in the last paragraph or two, where after articulating the idea that the president had all of these broad powers without the need for Congress's support, it also said that Congress could not restrict the president's powers. So it went beyond the idea that the president didn't need Congress's authorization, and said that there was nothing the Congress could do to stop the president from doing these things. That was the remarkable part of the opinion. …

Did you know from him, or just from scuttlebutt in the newspapers, that Ashcroft and Addington and Gonzales were having a fight about whether Yoo should be the head of OLC?

We had actually, I believe, had lunch the very day that he got the news that he wasn't going to be the head of the Office of Legal Counsel. I asked him at lunch how it was going, because I just assumed that he was going to get the job. I thought it was going to be a done deal because I knew that the White House supported him. He expressed for the first time at that lunch that he might not get the job, and he was worried that Ashcroft might not want him to be the head of the office. I had some sense from that that there was some tension between the White House and the Justice Department, but I didn't know any of the details.

And did he call you when he didn't get the job later in the day?

He did call me. About five minutes before I heard from the White House to come over and interview, John called me to say that he didn't get the job, that Ashcroft had vetoed him, and that he had in strong terms recommended me to the White House for the job. ...

[What was the White House interview like?]

I took the subway from the Defense Department across the river to the White House. The interview was in David Leitch's office. David was a friend of mine and the deputy to Alberto Gonzales, so he was a very friendly face, the only friendly face in the room.

The other two were Alberto Gonzales and David Addington, both of whom I had met briefly -- Addington on the trip to Guantanamo, and Gonzales in some capacity at the Department of Defense, when he was over there -- but neither of whom I had extended conversations with, and I didn't know well at all. ...

Was there a political litmus test?

It wasn't a political litmus test. The Office of Legal Counsel is a political appointment, so any political appointment at that level has to be vetted politically.

They wanted to know whether you were Republican?

It wasn't obvious that I was a Republican because I don't think I'd ever given money to a Republican, and I'd given money to a Democrat. So they wanted to make sure that I in fact was a Republican. But I think this was pro forma since everybody in the room knew what my views were on things. ...

Then there's the Ashcroft interview.

The Ashcroft interview was a couple of days later. I knew going into the interview that I was the White House candidate for the job, and therefore I had to convince the attorney general that I was the right person for the job.

The interview was almost entirely occupied by discussion of the role between the Office of Legal Counsel and the attorney general, and the importance of keeping the attorney general fully in the loop for all of the Office of Legal Counsel's decisions.

Was it that they were worried because it felt so much like John Yoo was working directly for Gonzales and Addington?

Right. They didn't say so explicitly. They didn't talk explicitly about relationships between John Yoo and the White House and John Yoo and the attorney general's office, but they did make quite clear that they did not feel sufficiently in the loop about what he was doing, especially vis-à-vis the White House. I gave them every assurance that I would keep them fully in the loop. ...

Did you have an idea then what the issues that were going to be before you were there -- how fast and furious, what they'd be about?

I was extraordinarily naive. I had a sense this was an important job. I had a sense that it was heavily involved with the war on terrorism. I did not have a full sense of the nature of the issues or the pace. ...

What's your first big moment? ...

In my first day on the job, the afternoon after I was sworn in, I got a call from the White House asking me to decide by the end of the week about the extent to which the Geneva Conventions applied to terrorists that were in Iraq. This was not something that had been previously resolved for the government. The president's decision in February 2002 that Al Qaeda and Taliban did not receive Geneva Convention protections was about the prisoner-of-war convention. The issue I was asked about was about a different convention concerning occupation. This is a time when the insurgency was really getting going. ...

The basic question to me was, what were the legal limits on the government's ability to go after the terrorists? That boiled down to a question about whether the Geneva Conventions applied to terrorists in occupied territory. This was an issue that had actually been bounced around the government the summer before I got there, and it had been pretty thoroughly vetted by all of the top administration lawyers in the Defense Department, the CIA, the State Department and the Justice Department, I think in a group led by Patrick Philbin, who was a deputy in OLC. ...

There was a general consensus that for Iraqi citizens in Iraq, even if they were terrorists, that they received Geneva Convention protections. This meant, for example, that there was a prohibition on torture, a prohibition on coercion, very strict legal prohibitions on what could be done against Iraqi terrorists in Iraq. ...

It wasn't a terribly easy issue, but the consensus did emerge, and it seemed right to me. After my own research, I concluded that that was the right answer. The deadline was Friday, so on Friday, I believe it was that I went to the White House with Patrick Philbin, and on the way over there he said to me: "They're going to be mad. They've never been told no before." And he was right.

So you drive down?

We drove over in the car to the White House from the Justice Department, went to Alberto Gonzales' office. It was me and Philbin and Addington and Gonzales in the room. I announced the conclusion. Gonzales asked me three or four questions. I walk him through the legal analysis, and he didn't ask me any questions after that. I received my first broadside from David Addington. It was a relatively mild broadside in retrospect. ...

[Addington] was very aggressive, and even angry about the decision. He said I was countermanding the president's decision of February 2002 that terrorists did not receive Geneva Convention protections. ... I explained the quite different legal structure of the two conventions and how they worked quite differently, and after some heated exchange for about five minutes the meeting ended, and we left.

Heated in both directions?

No. It was my first week on the job, and I wasn't yelling and screaming or anything like that. But I was receiving a very vigorous reaction from Addington.


Why did he react that way? I think that basically I was articulating limits on the president's and executive branch's power in fighting a war. I was saying that a Geneva Convention actually placed constraints on what the president and the military was doing in Iraq. This shouldn't have been that much of a surprise, because the administration had made clear and there was really not any dispute that this Fourth Convention, the occupation convention, applied in Iraq.

I'm sure he thought that I was misinterpreting the convention, although he never explained his reasoning. I think he must have thought that I was tying the military's and the executive's hands vis-à-vis terrorists in a way that would lead Americans to be harmed. He might have been right. And it wasn't something I was happy about, but that's the way we interpreted the law.

Do you worry about that?

In all of the hard decisions I made, especially when I was making decisions that put constraints on the president, I worried intensely about tying someone in the executive branch's hands in a way that may one day lead to Americans being killed.

You really felt that?

Yes. Yes, I did feel it. And it was something I was reminded of not infrequently by David Addington, that the consequences of my decision would be that people would be killed. But he didn't have to tell me that. I understood this. The stakes were crystal clear of what the law required on the one hand and preventing people from being killed on the other. That's the way a lot of these decisions seemed. ...

... Do you think they had an inkling that maybe they had future problems with you?

I don't know what they thought. It was a surprising decision to them, but it was not surprising among the very conservative lawyers in the administration. This was something that Justice Department and the Defense Department and the State Department, and my understanding was the lawyers in the CIA, agreed with. It wasn't a radical interpretation.

But Philbin correctly predicted that they would not be happy with it. He had a lot more experience dealing with them than I did. And I was a little bit unprepared for the vehemence of the reaction. ...

... Over the next six weeks you begin to read the interrogation memos. How do you get into that? What sends you there?

So over the first eight weeks on the job, first two months on the job, there was a lot to learn and do. I had to meet everyone in my office and get to know them. ... There are a whole slew of questions that had been put off waiting for me to come and make decisions as confirmed by the Senate head of the Office of Legal Counsel.

I was really running around getting up to speed on everything and trying to answer all the questions coming my way. And I was being briefed into a lot of programs, classified programs, counterterrorism programs. All the programs I was briefed into ... were supported by Office of Legal Counsel opinions basically blessing the programs.

You're seeing the playbook for the war on terror?

I don't know how much of the playbook on the war on terrorism, but I'm seeing a lot of the secret playbook on the war on terrorism for the first time in these first two months, yes.

What's that like? ...

My reaction on being briefed into these programs was at first to be struck by how much more was going on, and how much more intense and serious and controversial the war on terrorism was than I realized based on my previous experiences.

My second reaction was basically to think that this is what's necessary to thwart the terrorists. I didn't question any of the policies at the time, because I didn't think it was my role to question these policies. But I did start to look at the legal opinions supporting them. ...

After about six or eight weeks, one of the programs I learned about that I can't discuss because it's classified -- Patrick Philbin, who had been working in the office for a couple of years, pointed out to me that some of the legal arguments in support of this program were flawed. He had been working on this for six months or so, and it was ultimately my responsibility. ...

After I absorbed the extent to which legal foundations for this program were flawed, I asked Philbin whether there were other programs and other opinions that were similarly flawed in their legal foundations, and he said there might be. He brought me a short stack of opinions. I read those opinions, and after talking to him and thinking about it and doing some research, I concluded that some of those opinions were deeply flawed. ... From six or eight weeks in, I knew that there were big problems. ...

What's that like, to read that stuff? ...

After I read these opinions I had a whole flurry of emotions. My first one was disbelief that programs of this importance could be supported by legal opinions that were this flawed. My second was the realization that I would have a very, very hard time standing by these opinions if pressed. My third was the sinking feeling, what was I going to do if I was pressed about reaffirming these opinions or something required my decision related to these programs?

At that point I wasn't sure. Even after eight weeks I wasn't sure whether I should stay on because I worried about a lot of things. But primarily I worried that I was going to screw up ... many of our important counterterrorism policies by questioning the legal foundations for the policies.

That was intense.

It was a very intense set of realizations, yes.

And of course on top of it all, to some extent you could define what had already happened to you once when you walked into the White House and knocked down a thing that you thought was uncontroversial.

[I] didn't have to be told by anyone that questioning the legal foundations for these programs would be monumentally controversial and, to put it very mildly, disruptive. ...

The government was doing things that the Office of Legal Counsel had said were lawful. And I thought that many of the arguments that the Office of Legal Counsel gave for the legality of these practices -- the arguments themselves were flawed, but I wasn't sure the practices were illegal. I thought it was possible to substitute a different and, in my opinion, better and sounder legal analysis that would allow the government to continue doing what it had been doing without having to worry about these severely flawed legal foundations. But I wasn't sure. ...

Why were they so flawed?

I don't know. And I hesitate to criticize my predecessors about why these opinions were so flawed. My predecessors were obviously acting under enormous pressure to prevent another attack. ...

I think it's no accident that for the opinions that were the most flawed, these were also the opinions that were the most secretive, at least in my experience. I think in retrospect that the absence of deliberation that it was felt necessary to have after 9/11, in the emergency after 9/11, led to some of the problems. ...

When you read the interrogation documents, what did you see that got you nervous?

There were a lot of things in the opinions that made me worry. One was that the opinions were so much broader and so much more extreme than were necessary to support ... the actual interrogation techniques and policies that were being used. The administration later used the phrase in defending itself; it said that the opinions were "unnecessary and overbroad," and it's true. ...

So my main worry was that these really overbroad opinions might be used and relied on to do interrogations that were much more extreme than the ones that I knew were actually being approved.

Another thing I worried about was the nature of the analysis in the opinions, in addition to their overbreadth. I thought that there were errors in some of the legal arguments, sometimes bad errors. I thought that there were extravagant and unnecessary claims of presidential power that were, again, wildly overbroad to the tasks at hand and had implications for other laws that I just found way too extreme.

The opinions had an unusually tendentious quality that was not really consistent with the norms of opinion writing in the Office of Legal Counsel. They were obviously stretching to reach a result rather than doing a more impassioned analysis. All of these factors combined to make me worry about the opinions and what they may be relied on for. ...

... How rare is it that OLC overturned an existing opinion inside the same administration?

... There was no precedent that I knew of for doing this within an administration. As far as I knew it had never been done, and it had certainly never been done on an issue of this importance. So I really at first didn't know how to proceed. ...

On the one hand, I thought it was very important to fix the opinions. But it wasn't that simple. I couldn't just say, "OK, I'm withdrawing this, and then I'm going to take my time and fix the opinions," because there had been huge reliance on these opinions.

The very act of withdrawing and replacing the opinions, especially because it was so unprecedented, would have, I believed, enormous reverberations in the administration. The people who were being asked to rely on these opinions to do controversial things to protect the country would, I realized, be very nervous about this whole process. ...

So what did you decide to do?

With the interrogation opinions, my basic strategy -- and this was my strategy in other areas as well -- was to as quickly as I could figure out which of the things that had been going on were lawful. When I determined affirmatively that they were lawful, I would withdraw the opinion, advise the agency about the withdrawal, but also advise it that what it had been doing was lawful and to just keep doing that and nothing more. That was my basic strategy, was to try to have a replacement opinion before I caused disruptions. ...

[What did you do in the case of the still-classified March 2003 interrogation opinion for the Defense Department?]

The first step I took was to call Jim Haynes, my former boss and my friend, who was the general counsel of the Department of Defense. One of the flawed opinions had been written by the Office of Legal Counsel to Jim Haynes the previous spring. Because the actual techniques being employed by the Department of Defense were, it became clear fairly quickly, lawful, I was able to call Haynes and tell him very quickly not to rely on what I viewed as the flawed OLC opinion, but to also tell him in the same breath, in the same sentence, that what he had been doing was lawful and I was basically was reaffirming the legality of those techniques. But I asked him not to do any other techniques in reliance on this flawed OLC opinion. ...

I didn't really know what else the Department of Defense might be doing. But I did have this worry that there was this very broad green-light opinion out there that had the blessing of the Department of Justice and the Office of Legal Counsel, so I just asked him not to rely on that opinion further.

And his reaction?

He was, I think, silent for a while. I think he was very surprised and probably worried because I was basically withdrawing a legal opinion written to him on which he had relied. But he was very professional. He asked me some questions about what the flaws were. It was a very brief conversation, and we haven't spoken about it very much ever since.

Can you imagine what the implications of that were for him?

I don't know what the implications were fully. One of the things that I worried about was that I knew that the issuance of the original OLC opinion that I was withdrawing had sparked enormous controversy inside the Department of Defense. I knew that he was in the middle of that controversy that had on the one side the military lawyers who wanted to uphold the traditional Department of Defense understandings about interrogation, and on the other side I believe the White House -- I didn't know for sure -- that was pushing for more aggressive interrogation of detainees.

Haynes was in the middle of this. ... He felt bound, quite rightly in my view, to follow the legal opinion of the Department of Justice and OLC, which is binding on the government. And he negotiated this tension by taking steps within his discretion to not go to the full limits of what the OLC opinion authorized, and to instead just go to these techniques that were relatively uncontroversial. ...

Did you run this by Ashcroft first?

I did run it by Ashcroft first, yes. All the important decisions I made I ran by the attorney general.

Did he have qualms, issues?

He did not have qualms. He supported all of my efforts to review the potentially flawed legal opinions and to put them on a firm legal foundation. This one was especially easy because we weren't asking anyone to do anything differently. It was simply replacing one flawed legal opinion with a better legal analysis. ...

Did you hear back from Addington and Gonzales on this?

I did not hear back from Addington and Gonzales on this for many, many months because I didn't inform them about it. The opinion was written from the Department of Justice to the Department of Defense. It was not something that went through the White House. ...

Spring comes along, and you are now dealing with the [August 2002] interrogation memo [written for the CIA that became known as the "torture memo." Did it have the same flaws?]

... I had the same basic set of concerns with the other interrogation opinion. It had the same set of problems. But fixing that opinion was much harder because I had a much harder time determining whether I could reaffirm all the practices that had been going on. ... It was much harder to do for the more aggressive interrogation techniques that the CIA was employing. It was a task that took me many, many months.

That was not, believe it or not, the most consequential or important problem I was trying to fix at the time in the Department of Justice. I wish I had taken steps earlier to fix the other opinion, but I just didn't have the resources, and it wasn't, believe it or not, the highest priority in the office. So it was many, many months before that was fixed. ...

[In Chapter 3 of your book you talk about another dispute over the legality of "an important counterterrorism initiative."]

I can't tell you what the underlying legal issue is, but that gives one a sense about the context in which these decisions were taken. These were mistakes that people perceived -- and that Addington especially perceived -- in these decisions about hand-tying decisions on the president's power, because everyone was scared to death, really worried about the next, more devastating attack. And therefore every legal decision placing a constraint in the president's path to stopping the attack was obviously viewed in these alarmist terms.

What did Addington say to you?

He says, "If you rule that way, the blood of 100,000 people who die in the next attack will be on your hands."

Your reaction?

It wasn't a pleasant thought, but it wasn't a surprising thought either. The truth is, he didn't have to tell me that. Everyone understood what the stakes were. ...

Do you ever fight back?

I sometimes fought back with Addington. But usually I tried to do so in a low-key way through legal arguments. There wasn't much in it for me with getting in a yelling match with him.

And you weren't going to win.

The truth is that the vice president's counsel did not have any particular power or authority over me. I made my decisions in the name of the attorney general. The president could overrule them if he wanted to, but most of Addington's power vis-à-vis me was basically in the bluster and the yelling and the bringing arguments to my attention. ...

Let's talk about the NSA [National Security Agency] wiretapping program. ...

I'm not allowed to say much at all about the terrorist surveillance program. In fact, I'm not allowed to say anything more than I was approved by the government to say in the book. Basically all I said in the book was that the terrorist surveillance program was an example of the administration going it alone in secret based on inadequate legal reasoning and flawed legal opinions, and the problems that I encountered in other aspects of the government's counterterrorism policies were front and center with regard to the terrorist surveillance program. ...

I can say that it was by far the biggest and hardest and most contested and difficult challenge that I faced in the government. It's where I had my greatest fights with the White House. It was where the legal analysis was the most challenging and difficult. It's where the judgment calls about whether and how to proceed were the hardest. I'm not really allowed to say much more than that. It was the dominant event of my time at the Office of Legal Counsel.

And the arguments that you had were with all the people you had the arguments with about other things?

Basically my main argument over this was with the White House, yes. ...

This was a very closely held secret.

It was a very closely held secret. Very, very, very few people in the Department of Justice knew about this. To my astonishment, one of the first times that I confronted the extraordinary secrecy around legal opinions in the government, in OLC, was when, in connection with the NSA program, in a meeting in which the inspector general of the NSA, who was doing an audit of the NSA program, asked to see the legal opinions from the Office of Legal Counsel supporting the program, and David Addington snapped his head off and said that he was not to see the opinions.

I don't even think the lawyers in the NSA had access to the OLC legal opinions. It was so tightly held that not even the NSA, [which] was being asked to act in a way that was very unusual and contrary to its culture and traditions, not even the NSA had access to these legal opinions.

That's astonishing.

It is. It is truly astonishing, yes. Again, I can't get in any more detail, but it seems quite plausible that many of the errors would have been avoided if more expert and seasoned voices had been brought to bear. ...

Why can't you say anything more about it?

There's much obviously public debate about the terrorist surveillance program, what it means, what it is, what other programs there might be. The entire set of issues is very highly classified, so I have to be very careful in talking about it.

There's also a criminal investigation going on about the leaks of the program to The New York Times and others, so I have to be doubly cautious about that. ...

There's a series of meetings at the Justice Department. How important does it all feel?

It's the most important thing during my time in government, and it is central to the government's counterterrorism policy, so the stakes were enormous. ...

Were you present for the conversations between Deputy Attorney General [James B.] Comey and Ashcroft?

I was fully involved in all those issues, yes, completely involved. We know that Comey has said that I advised him about this very important classified program, and he has said that he was acting in reliance of my legal analysis. ...

Do both you and Comey know that you have to go to the attorney general about the classified program?

Without getting into details -- and I really can't get into details -- the attorney general was fully aware of everything I was doing in the Office of Legal Counsel to form a legal opinion. ...

He has to authorize whatever it is that has to happen.

According to press reports, yes, he has to authorize. And I think that Jim Comey testified to that effect. ...

Everyone realized the stakes of the issue and what we were doing. Ashcroft's directions were always very clear in this and other issues: We want to be as aggressive as we can, consistent with the law, but we have to get the legal foundations right. He was unambiguous about that.

[What happened at the hospital?]

It was Wednesday, March 10, I believe. I was at home. It was the evening, about 8:00. I was having dinner with my wife. I got a call from the Justice Department command center, which is a 24-hour communications center in the Justice Department through which all top Justice Department officials can be reached at all times, ... telling me to get to the hospital as quickly as possible, where I knew that Attorney General Ashcroft was in intensive care.

So I rushed to the hospital, double-parked, ran up the stairs, reached the wing of intensive care where he was being held. Then very soon after I got there, Jim Comey and I and Patrick Philbin went into the attorney general's hospital room. And in the room was the attorney general and Mrs. Ashcroft. Mrs. Ashcroft was standing behind the attorney general.

He looked terrible. He looked just absolutely dreadful. He had lost a lot of weight since the last time I'd seen him a couple of weeks ago. He had tubes going in and out of him. He looked ashen, and I actually thought he looked near death. ... I was taken aback by how bad he looked.

Soon after Philbin, Comey and I entered the room, in walked Alberto Gonzales, the White House counsel, and Andrew Card, the president's chief of staff. There were some very brief pleasantries about the attorney general's health. Judge Gonzales had an envelope in his hand, and it became apparent that he was there to ask the attorney general to authorize this program that it was known that I and Jim Comey did not think the Department of Justice could authorize.

Gonzales spoke very briefly, and then, in one of the most extraordinary events I've ever seen in my life, Attorney General Ashcroft kind of lifted himself -- he arose from the bed, lifted himself up and gave about a two- or three-minute speech or talk, addressed to Gonzales and Card in which he basically -- I can't get into the details, but he showed enormous, unbelievable clarity about what the issues were and what was going on, and he explained why he also would not approve the program. He read them a bit of the riot act, and then at the end of all this he said, "And in any event, I'm not the attorney general now; Jim Comey is," because Jim Comey was the acting attorney general.

And with that extraordinary performance -- and it was just one of the most amazing things I'd ever seen in my life, because he went from seeming near death to having this amazing moment of clarity -- he just again receded into the bed. I really worried at that point that he was going to expire. It looked like he gave it the last of his energy. It was an intense, unbelievable scene. Gonzales and Card quickly left, and that was the end of it.

How did Gonzales and Card take it?

They looked slightly surprised to see me and Comey and Philbin in the room and somewhat taken aback by the attorney general's reaction. But for the most part their demeanor was placid.

How did you guys know to get to the hospital?

I believe that the chief of staff of the Justice Department, David Ayres, had given notice that because the attorney general was in such bad shape, that no one was allowed to see him except Mrs. Ashcroft and that if anyone made an attempt to try to see him, to let Ayres know.

The attorney general had a security detail, obviously, and they were there, and they were given these instructions. When we got word that Judge Gonzales and Andrew Card were coming over, they informed Ayres, who informed Comey, who I believe, through Philbin, informed me. ...

Why were you there?

... We were there because we believed that they were coming to try to get authorization from the attorney general in what we all believed was a state in which he didn't have a capacity to make this decision, and we knew that he supported all the actions we had taken. ...

It's amazing, isn't it?

It was unbelievable. The whole scene was unbelievable. In talking about it now, it doesn't seem real.

Were the stakes high?

The stakes were enormously high. ... That's the way the stakes were perceived. That's why everyone felt the need to be as aggressive as possible. The president would be responsible for another attack, and no excuse would justify the next attack. The White House understood this. That's why they took every step they could to stop another attack from happening. The stakes were literally, as someone told me once about what the attitude was in August 2002, that we were sure there would be bodies in the street, and we had to do everything we could to prevent it from happening.

That scene wouldn't have happened if it wasn't for you.

Thanks for reminding me. In some sense that's true. As Jim Comey has testified, the original set of decisions about the legal analysis was mine. And believe me, it was not a decision that I took lightly. ...

In a nutshell, what are you standing up for at that point?

I wasn't standing up for anything. I didn't see it as a dramatic moment. This sounds corny, but I was just trying to do my job. I had a job, and my job was to interpret the law. I thought it was consistent with -- and other people who have served in my role thought it was consistent with -- the norms of the office... to try desperately to find a lawful way for the president to do what he thought was necessary to prevent another attack. ... I tried everything I could, as imaginatively and aggressively as I could, to keep everything on track to do what the president and others thought was necessary to stop another attack.

I was not alone in my judgment. It was initially my judgment, but I had to convince Jim Comey, and I eventually had to convince other people, not because the law required it but because it was important that my judgment was right. And no one disagreed with me. ... I went as far as I could, but at some point the legal arguments just ran out.

In the immediate aftermath of this event, there's the threat at some moment of rather large-scale resignations. What of that, if any, do you know either firsthand or by people telling you about it?

I was not in the White House on Friday morning, March 12, when there were these meetings, according to Comey, in which he ... and [FBI Director Robert] Mueller had direction from the president to do what the Justice Department thought was the right thing to do. ... I learned about them as soon as they happened, as soon as Jim Comey came back to the Justice Department.

He sat in the office and said, "Here's what happened"?

I actually got a very cryptic e-mail from him, I believe, that obviously didn't reveal classified information, but that basically said something extraordinary has happened. And we had a meeting soon after he got back to the Justice Department. ...

At that moment, I had drafted my resignation letter and was prepared to resign. I was sure I was going to resign that day. It was inconceivable to me, based on what had happened the last two days, that I wouldn't resign. ...

What stopped you?

... I was still prepared to resign for many reasons. I'd had enough of a variety of things. But David Ayres, who was the attorney general's chief of staff, asked me not to for what I thought was a very good reason: He said that you should wait until the attorney general is well enough to decide whether he himself wants to resign, because it's just appropriate to let him have the first shot. He didn't say this, but it's the way I took it. You don't want to make it seem like the attorney general is following your resignation or someone else's resignation. ...

That, combined with this change of heart by the president, is what caused the delay in the resignations over the weekend. At that point it seemed like the Justice Department's legal views had prevailed, so perhaps the reasons for resigning had dissipated. I have to say that I was still considering resigning for a lot of reasons. Unfortunately I can't get into them.

But the last reason I didn't resign in March of 2004 was that I worried that if I resigned after everything that had happened, the top might blow off the whole thing and it might leak to the press, and I was afraid there would be this national security leak. For all those reasons I decided to carry on. ...

Why do you think that the inspector general from the NSA and maybe all the lawyers at the NSA [were not] read into the program? ...

I'm not going to say who was and wasn't read into the program, or what programs or any of that. My comment -- and the book makes this clear -- is that with regard to what I in Chapter 6 call the "terrorist surveillance program," neither the inspector general nor the lawyers in the NSA were allowed to look at the Office of Legal Counsel's legal opinions about what the NSA was doing.


That's a very good question, which I've thought a lot about. There is a benign answer and a not-so-benign answer. ...

The benign answer is an excessive, extreme concern for secrecy and to make sure that as few people as necessary were allowed to look at this so that it wouldn't leak. That was always used as a justification for keeping things in a very, very close hold.

The not-so-benign explanation is that they did not want the legal opinions to be looked at because they didn't want the legal opinions to be questioned. I don't know what the right answer is. I have to say that sometimes I thought it was the latter.

Well, secrecy is sort of the heart and soul of everything they want to do from almost the very beginning.

They were very secretive about everything they did. And again, there was a good reason for it and a not-so-good reason for it. The good reason was they wanted to prevent leaks. In my book I quote Justice [Potter] Stewart in the Pentagon Papers case saying ... that when everything is secret nothing is secret. Certainly that probably describes a lot of what happened in the Bush administration.

... Where are you when you see and learn about Abu Ghraib?

I learned about the Abu Ghraib scandal when I saw the pictures either in late April or early May of 2004 on a television screen in Alberto Gonzales' office. We were there meeting on another matter, and that's when I first saw the pictures. ...

[What was your reaction?]

My first reaction, frankly, was to worry about what I had done that may have been related to this. My mind started roving over all the possibilities. I worried about that first decision I made in October of 2003 about Iraqi terrorists being protected -- there was the legal analysis that there was an exception to that for non-Iraqi terrorists who entered occupied territory. That's what the Geneva Conventions said, and that's the way we interpreted the Geneva Conventions. I worried if that loophole had been exploited in some way that I didn't know about.

I worried about the legal opinion that OLC had written to the Department of Defense. I don't have any basis for thinking it was responsible for this, but I certainly worried about it.

And the reason that Abu Ghraib becomes relevant is you were still evaluating the August 2002 interrogation memo.

The revelations of Abu Ghraib set off a series of events, a chain of events that led to me withdrawing the other torture opinion. The basic chain of events was as follows: The Abu Ghraib pictures and the scandal [become] public. About a month later the OLC interrogation [opinions] were leaked to the press. They came under enormous criticism publicly. The merits of the opinions had, as far as I could tell, no defenders whatsoever outside or really inside the administration. I was nonetheless under a lot of pressure to stand by these opinions because they had been relied on by, in particular, the CIA, as has been made clear since the event.

I couldn't stand by the opinions because I had already acted six months earlier and already determined that the analysis in them was flawed. But I still hadn't done the legal analysis necessary ... to determine what was legal and what wasn't, and hopefully to replace the flawed opinion with another opinion that would support as many of the practices as possible. But I couldn't delay any longer because there was enormous pressure on me to decide one way or the other, and especially to stand by the opinions. ...

I spent a very hard week trying to figure out exactly what to do and how to do it. I ultimately decided that every day that went by that OLC didn't fix this very public problem that I knew was a terrible error was a day that was going to make things worse. So I acted without having the replacement opinion. I withdrew that opinion. I couldn't stand by it.

Who did you withdraw to?

It was my decision. ... But of course, like everything else, it's the attorney general's call. He can either stand by me or reverse me. I went and explained it to him, and he ultimately ended up agreeing with me, although, more than any other time, this was the time in which he was most clearly moved by what I was doing. The stakes of this were enormous. But he did support me, and so it became the Department of Justice's position.

You mean he pushed back a little bit?

No, I wouldn't say that he pushed back. He quite appropriately questioned me on all of my decisions and asked me hard questions. And he asked me hard questions this time as well. I explained to him that I was basically relying on the same legal analysis that had led me to withdraw the DoD opinion six months earlier, which he had known about and approved. I basically told him that we didn't really have any choice.

Jim Comey supported me on this, and at some point he had a separate conversation with the attorney general. But I had no reason to think that the attorney general would reverse me. He just wasn't happy about the news of what was really a black eye and an embarrassment to the Department of Justice being made public, and basically confessing error.

And how does the White House react?

The White House, at this point -- it was the end of my tenure. This was not the first decision of this type I had made. Their reaction, at least in my presence, was remarkably subdued. Unlike on at least one other occasion, there was no overt attempt made to reverse the decision in the White House. ... Obviously it had huge reverberations in the White House. The press reported soon thereafter that it had big impact on the CIA. It suddenly became very nervous and didn't want to engage in any interrogations. ...

I at the time [had] very frosty relations with the CIA, understandably so, because I had pulled the rug out from underneath them in a way that I certainly didn't want to do. ...

So this was not an Addington shouting match. This was something else.

No, there was no Addington shouting match about this. In the weeks before, Addington let me know quite clearly about what he thought about my actions at the Office of Legal Counsel trying to fix these opinions. He told me one day in a meeting -- I can't remember what the issue was, but there were top administration lawyers there, and Addington pulled out of his coat pocket a 3-by-5 card that he carried right next to the copy of the Constitution that he kept in his pocket. He said that he had been keeping a list of all of the OLC opinions that I had withdrawn or revised, and that he thought it was appropriate for me to go through every single OLC opinion and let the White House know what I stood by and what I didn't, because the president needed to know what he could do and what he couldn't do in the war on terrorism.

Now frankly, this was in some sense a perfectly legitimate question for him to ask. I had taken some extraordinary steps and done some extraordinary things in withdrawing and revising some opinions. That was kind of the prelude.

But there was never a shouting match, in my presence anyway, when I withdrew the interrogation opinion. One reason was because it had no defenders. There was no one defending the opinions on the merits. ...

[When the controversy erupted over the president's signing statement attached to the McCain anti-torture bill, did you see] the hand of David Addington all over that one?

I don't know for certain from firsthand information that David Addington wrote that. But he was, during my time in office, the person that was pure on defending every single potential presidential prerogative from congressional intrusion through signing statements. So I would be stunned if he were not the person who drafted that signing statement.

There's nothing unusual or unprecedented or illegal about signing statements. Many presidents over many decades, going back to the 19th century, used signing statements. There's a lot of controversy about the legality of signing statements and what it meant, and that controversy got caught up in the separate controversy about the scope of executive power.

But [given] what everyone thinks about the legality of signing statements or the correctness of the interpretation of the president's powers in the signing statement, it struck me as a monumentally politically imprudent thing to do. It was unnecessary to do. There was nothing in that signing statement that was necessary. If the president decided later that some application of his power was unduly restricted and unconstitutionally restricted by this law, he could at that time assert the arguments.

There was nothing, no point served by the signing statement and lots of negative consequences from this in-your-face signing statement after this moment of reconciliation.

[So why did he do it?]

I don't know for sure, but this is something that's very important to understand about understanding the White House's and especially David Addington's attitude toward executive power. They were deeply principled about executive power, so deeply principled that even in the face of terrible political consequences, time and time again they would assert these arguments out of principle, because they thought it was the right thing to do. Sometimes I thought that the greater the political costs, then the more tightly they would stand by the principle, because that was kind of a way of measuring their commitment to the principle.

You said it was almost theological.

I described it in my book as having a theological commitment to executive power. I could have used the word "ideological," but that is a more charged word even than "theological." What I meant by that was that this was a set of beliefs and commitments that kind of trumped consequences, and it was more important to hold onto these beliefs in many instances than it was to achieve the political results.

Addington seems to have a tin ear for politics.

David Addington's forte was not statecraft and political relations and good congressional relations. He didn't do that as his job, and he didn't seem to care about that at all. His view and his job was to make what he viewed as the correct legal arguments. And he felt passionately about them. In the book, I quoted Colin Powell as saying that David Addington didn't care at all about the Constitution. But, in fact, he cared deeply about the Constitution, and he could quote it by heart, and he knew a lot about constitutional law. He just had an unusual view of the Constitution.

And his view was?

David Addington's views about presidential power were nuanced. ... But basically he looked very skeptically on any congressional attempts to restrict the commander in chief's power to do what the commander in chief thought was necessary in a war to win the war. If I was going to boil that down in a nutshell, that was his view. ...

He first entered the government in I believe the late '70s when he worked as a lawyer in the CIA. People I talked to said that he was a quiet, bookish young man and he was not, at the time, known for his very strong views on executive power. … I don't know how and why, or exactly when David came to have those views.

Is Addington a guy who is completely surrounded by staff, churning out position papers? How does he do it?

When I was there, Addington operated almost entirely alone. He was remarkable for having no staff. He had, as I recall, one person working for him, one morning a week, doing I believe mostly administrative and technical things. But one of the many remarkable things about David Addington was he did all of his own work. And he did a lot of it. He had his fingers in many, many pots, and he had views on most of the things that he looked at.

[What was he like to work with?]

He was many things. He had a lot of experience, so he could always make arguments from precedent or the way things had been done before, which was very powerful in these arguments. He was very tough in making his arguments. He was very sarcastic and aggressive against people with whom he disagreed, and dismissive oftentimes. He was learned. He knew a lot about precedents and practices, and he acted with the implicit blessing of the vice president. All of these things made him a very, very forceful presence.

How did you know he had the "implicit blessing" of the vice president?

I say implicit because it was never explicit. ... I don't ever recall him invoking the vice president's authority. But everyone understood that ... he and the vice president were on the same page, and everyone understood that the arguments that Addington was making in these meetings were the arguments that the vice president was going to be making to the president. ...

[What was it like to argue with Addington?]

David could be very, very aggressive in his arguments, sometimes personal and ad hominem, often mixed with precedents, arguments, knowledge, directions from the president. It was a bombastic mixture of argumentative strategies. ...

There were two questions that Addington always asked: "Do you think we have the power on our own to do what we're doing?" And the answer was yes, there were good legal arguments for it.

The second question was: "Is it possible that if we go to Congress the president might not get what he wants, and the Congress might place restrictions on the president, and the president might conceivably be left in a weaker position, thereby making it harder for him to protect Americans?" And the answer to that question was always yes. Those two questions usually ended the argument. ...

If there was a precedent saying that Lincoln or Roosevelt did something without having to go to Congress, then it was just not acceptable for President Bush, even though it was a completely different legal culture, to have to go to Congress to ask for the authority to do so.

What was Addington and Gonzales' relationship?

David Addington was someone who had experience in all of the matters that Gonzales initially did not have experience in. He had worked in the CIA. He had worked on Capitol Hill doing foreign relations and national security. He'd been the general counsel to the Department of Defense. He'd had lots of other jobs over several decades, and he had enormous experience with all matters related to national security.

In my experience, the two had a very, very close working relationship. Addington was almost always present for meetings that I was involved in related to terrorism and national security. They got along very well. Addington, I think, had a lot of influence with Gonzales. I didn't see them disagreeing very much. ...

For some, it's a been a surprise that it's the vice president who takes ownership, saying, "This executive power idea is my idea."

It's well documented that's been a long-held view of his since the 1970s … how Congress unduly burdened the president and in a way that he believed was unconstitutional. And I think it's been something that he's spoken about publicly and very eloquently, ever since the 1970s. So it's not a new position for him at all. …

[Before the first Gulf War, as defense secretary], Cheney argued that George H.W. Bush didn't need to go to Congress for authority to take on Saddam Hussein. Do you know anything about that?

Just what the public record indicates. ... Secretary of Defense Cheney's advice was that it was unnecessary and imprudent, unnecessary because the Constitution did not require it, imprudent because Congress might say no.

What do you think about [how the administration set up military tribunals for trying enemy combatants]?

My views on this are sort of complex. In November 2001, when the president issued the order, my own view is that the commissions were clearly authorized by the Constitution and by various statutes, including the [Sept. 14, 2001] authorization to use force; that there were very powerful precedents to support it, including a World War II precedent called Quirin that had been used to try by military commission eight Nazi saboteurs found out of uniform in the United States who had come here basically to commit acts of terrorism, and one of whom was an American citizen. Military commissions have been used in many prior wars. On the legal front, the legal argument for military commissions were very powerful.

I wasn't there in 2001. I don't know what the bureaucratic imperatives were and whether it was a good idea or not to circumvent the bureaucratic process. It did become clear after the commissions were announced in November that the administration did not do a good job of explaining them or defending them. To a lot of people it seemed like something terribly aberrational in our constitutional system even though there were these powerful arguments. ...

[Is this an early example of the go-it-alone approach?]

I wasn't there in the fall of 2001. There's always a trade-off. The more people you bring into a process of deliberation and consultation, the greater the chance of roadblocks and veto points being thrown up and the greater the chance of the policy being blocked. On the other hand, the more consultation and deliberation you have, the more voices you get, and oftentimes it leads one to avoid errors because you get different perspectives.

They decided in the fall of 2001 that speed was more important than these other values. I can't say in the fall of 2001 that they were wrong. I don't know exactly what they thought they were going to do in military commissions, but early on the imperatives to get things done trumped the normal processes of deliberation and consultation. In emergencies that often happens. I think as time went on, the circumvention of the normal processes of deliberation and consultation, maybe the balance tipped; that speed and quick decision making may have been able to go slower on that in exchange for more deliberation and consultation. ...

[What has been the Supreme Court's reaction to the administration's policies?]

The Supreme Court has been very skeptical about the Bush administration's legal arguments on the war on terrorism. The Supreme Court has not, however, put a whole lot of restrictions yet on what the president can do. A lot of what the Supreme Court has been doing in its first few decisions -- Hamdi [v. Rumsfeld], Hamdan [v. Rusmfeld], Rasul [v. Bush] -- has basically been saying: "We are not going to allow you to proceed on the war on terrorism without judicial supervision. We're not yet going to tell you exactly what norms are required in the war on terrorism. We hope that you go to Congress and get this thing on a firmer legal foundation so that we don't have to answer these questions." That's basically all the court has done so far.

The two biggest blows were the Rasul case, where the court said that it had jurisdiction over Guantanamo, and especially the Hamdan case, which declared unlawful the military commissions, and more importantly declared that a small part of the Geneva Convention governs the war on terrorism.

But the president was able to go back that summer, that fall, after the Supreme Court's decision and get a lot of what he'd been doing, and in some respects more from Congress, which is remarkable for a lot of reasons.

Is that a speed bump to Addington, Cheney and the forces of executive power, or was it more than that?

On the one hand, these have been losses in the Supreme Court, and they're losses that are precedents that add up, that are restrictions on presidential power.

On the other hand, I don't think the administration has actually been stopped from doing much at all of what it's wanted to do since 9/11. In terms of what they're actually doing, the combination of the congressional restrictions that have grown up and the Supreme Court restrictions to date have at best put very modest limitations on what they wanted to do.

So you might think that the go-it-alone strategy of pushing as hard as they could for executive prerogative, going to Congress only when necessary, has in some sense paid off, because they're still able to do what they want to do, and as we speak there's been no attack since 9/11. That's likely in the White House viewed as an enormous success.

But there have also been losses to the presidency and to the power of future presidents. There's no doubt that Congress and the courts are more suspicious and less trustful of the president and the presidency now than they were after 9/11 and that this suspicion of the president will harm future presidencies. I have no doubt about that.

So in some important sense the White House has not, I think, left the presidency as powerful as it was in 2001 or 2000. ...

[How many of the administration's post-9/11 actions are being driven by ideology, by the desire to increase executive power?]

I don't think that the aggressive actions that they took after 9/11 were themselves viewed as primarily part of the program of expanding executive power. ... I do think, however, that in acting aggressively, as any president would in that situation, that the White House's conception of executive power and its agenda for executive power informed everything it did. There's no doubt that they had certain attitudes toward how to proceed, and that led them to proceed in certain ways.

So it's an attitude. It's not an every day getting up and saying, "What can I do to further the cause?"

Yes, that's right. I don't think they woke up every morning saying, "Let's do whatever we can in this war to expand executive power." I think they woke up every morning saying, "Let's do whatever we can today to protect the country." ...

Tell me about your resignation.

... There were many reasons why I resigned in the summer of 2004, some personal, some professional. On the personal front, I was exhausted and worn out by the job, even though I'd only been doing it for 10 months. I had two little boys at home and a wife that I never saw. ... I had an offer from Harvard Law School to go teach at Harvard. ...

The main reason that I resigned was that I really thought after all the things I had done, all the opinions I had withdrawn, that I was losing the faith of the men and women in the White House and the intelligence agencies who were asked to rely on Office of Legal Counsel opinions. ...

I basically thought that after some earlier events that I can't talk about and after the withdrawal of the interrogation opinion in the summer of 2004, which had a very disruptive effect, that I really wasn't going to be effective as the head of the Office of Legal Counsel. So I thought it was time to go, and a decision that was made easier by these personal factors.

You went quietly.

I went quietly. I didn't intend to be quiet or not quiet. I just left and went back to my academic life. I mean, I didn't come out of the administration complaining about it certainly or criticizing it. Even today my criticisms are, I think, I hope, hedged and always consider the other side of the issue and the pressures that the administration was under in making the decisions it's made. I'm not sure what you mean by going quietly. ...

What do you make of the administration's exercise of executive privilege saying Karl Rove, Harriet Miers, and others don't have to [testify before Congress in the U.S. attorneys scandal?]

It's the natural card you would play, but it's also not a terribly controversial assertion of executive privilege. I think it's the card that any president would play in a similar circumstance, or some card like that. President Clinton was very aggressive in his use of executive privilege, and other presidents have been.

Are we heading for some big and important fundamental clash over all of this?

I don't think so. … It's quite possible that all the storm and dust in July and August about executive privilege and contempt proceedings and the like is all political posturing, and that there would either be some sort of a compromise and reconciliation or some attempt by Congress to enforce a subpoena.

But it's very, very hard for Congress to enforce its subpoenas against an executive branch bent on asserting executive privilege. And Congress' real recourse is to use politics to cause harm to the administration to get them to do what Congress wants it to do. …

You got a visit from the Federal Bureau of Investigation?

I was at Harvard working on the last chapter of my book, and I was set to meet with two agents from the FBI in Harvard Square. I'd met with them previously, and they interviewed me for many hours in Washington in connection with the leak of the terrorist surveillance program to The New York Times. One of the reasons they were interested in talking to me was because I had had a conversation after I left OLC, and was still in Washington, with Eric Lichtblau of The New York Times, at the end of which he started asking me questions about a secret NSA program. I stonewalled with him and immediately went and told people in the Justice Department about this meeting, that I was very worried that The New York Times had access to some very highly classified information.

I had been through several meetings with the FBI in Washington. ... I had very friendly relations with the two FBI agents. I'd been very cooperative with them in their prior meetings. As we were sitting down at the table over coffee, one of the agents sort of sheepishly handed me a manila envelope, and he said that it was a subpoena for a grand jury investigation into the leak to The New York Times. He was very embarrassed and sheepish about this. He said he was sorry, and the reason they had come to Cambridge was to serve me in person, because they didn't want me to be too mad.

They told me that they didn't suspect me of anything, they didn't think that I leaked information, and that they thought the reasons that the lawyers in the Justice Department had subpoenaed me was because I had this contact with Lichtblau.

[What was your reaction?]

I was really taken aback. I actually couldn't believe that they had subpoenaed me. ... At the time all I could think about was the expense of having to hire lawyers for the grand jury investigation. I didn't know a whole lot about grand jury investigations, but I knew that a lot of Washington political investigations ended up with people committing perjury before grand juries, or at least allegations of perjury. Obviously I had no intention not to tell the truth. I'd had scores of hours of interviews with the FBI, and I worried that I would misremember something and inadvertently not tell the truth and the like. ...

But the real thing I couldn't believe was that I was being subpoenaed in connection with this program that I had spent a lot of time, hundreds of hours, trying to put on a firm legal foundation. ...

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posted october 16, 2007

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