It has been widely held that Bush is a puppet of stronger men hiding behind the scenes. Identified Puppetmasters include Karl Rove (Political Strategy) and Dick Cheney (all things Secret and Dark).
With a new book by Jack Goldsmith, former head of the Office of Legal Council, we now know that with respect to legal decision guiding the Administration in the "War on Terror", there is one man in government who was serving as Bush's Brain.
This man was responsible for pushing all of the policies the Administration pursued that broadened executive power and restricted civil liberties under the guise of "fighting terror": David Addington
The below analyisis is based on the first of a three-part exclusive series by Dahlia Lithwick at Slate that contains interviews with and excerpts from the writing of Jack Goldsmith, Head of the Office of Legal Council from 12/03- 7/04. This report offers an insiders view of the decision-makers of Presidential Policy in the War on terror.
Following 9/11, Top legal advisors within the Bush Administration formed a working group outside the normal structural channels of government to advise the president on the legality of presidential directives in anti-terrorism policy. This group of men dubbed themselves the "War Council", and according to Jack Goldsmith, from 12/03 through his resignation in July 2004, consisted of the following people (noting their positions at the time):
Alberto Gonzales- Legal Counsel to President Bush
Tim Flanigan- Deputy Counsel to the President
David Addington- Legal counsel to Vice President Dick Cheney (Now Cheney's Chief of Staff)
Jack Goldsmith- Former Head of OLC
John Yoo- Former Deputy in OLC
William J. "Jim" Haynes II- Legal Counsel of the DoD
Arguably, as the President's Counsel, Gonzales was the highest ranking member of the War Council, but Jack Goldsmith details the real power structure within the group:
Addington's hard-line nonaccommodation stance always prevailed when the lawyers met to discuss legal policy issues in Alberto Gonzales' office. During these meetings, Gonzales himself would sit quietly in his wing chair, occasionally asking questions but mostly listening as the querulous Addington did battle with whomever was seeking to "go soft." It was Gonzales' responsibility to determine what to advise the president after the lawyers had kicked the legal policy matters around. But I only knew him to disagree with Addington once, on an issue I cannot discuss, and on that issue the president overruled Gonzales and sided with the Addington position.
Thus, we now know with insider detail who's legal voice held the most sway over the President. It was clearly David Addington.
Goldsmith goes on to describe Addington's Philosophy:
- That Executive Power was unitarily supreme in the fighting the War on terror.
- That any involvement of congress or the courts in shaping anti-terror policy was an unnecessary and dangerous usurpation of Presidential Authority.
These beliefs fell on willing ears in the White House, as it shaped their policy in the war on terror, but also in almost all other Policy Measures. This broadened executive power brought us torture, suspension of habeas corpus, warrantless surveillance and a host of decisions and programs that restrict constitutional freedoms. There was no oversight by design.
Goldsmith sheds further light on how the monomaniacal Addington dealt with dissenters in his quest for unfettered executive power:
As the complaints grew and grew, as the pressure to change course increased, Addington became more and more insistent that the administration was doing the right thing, and he stuck to his guns with an ever-firmer grip. Many times when Addington faced enormous resistance, I thought to myself, "He'll have to back down now." But he rarely did. And he never did on something he thought was important unless an immediate and unavoidable disaster would result. I grudgingly admired Addington's perverse integrity, even when I thought his judgments were crazy.
Perverted integrity and crazy judgement are all well and good when they are confined to an academic discussion between colleagues, but when this voice is the only voice connected to the Prsident's ear, then God Help our Country.
Fates of the 2003-2004 War Council Members
David Addington, Bush's Legal Brain, remains in our Government. Addington Replaced Scooter Libby as Cheney's Chief of Staff.
Alberto Gonzales became Attorney General but recently resigned, in large part due to his role in the decisions made by the War Council.
Tim Flanigan was nominated to be Deputy AG under Gonzales, but his nomination was withdrawn under intense pressure from Democrats.
John Yoo and Jack Goldsmith are now in academic positions outside our Government.
Jim Haynes remains DoD Counsel.
A Final Note
It is interesting to note that the DOJ under Ashcroft and Comey mounted the most successful stance against the policies of War Council. Perhaps in response to this last bastion of oversight within the Executive, Bush installed Gonzales as Attorney General and sought to install Flanigan as his Deputy. Now that Gonazales is gone, we can only hope that the new acting AG, Paul Clement will be a moderating influence on Unitary Executive Legal policy.
Goldsmith notes Clement was often "soft" with respect to Addington's hard line:
Paul Clement, the deputy to Solicitor General Ted Olson and the best Supreme Court litigator of his generation, said the court's action [decision to review a lower court's approval of the government's detention, without charge or trial, of Yaser Hamdi] was bad news. He explained that although we had solid legal arguments, the Supreme Court might not accept traditional wartime detention in the seemingly indefinite and ill-defined war on terrorism.
"Why don't we just go to Congress and get it to sign off on the whole detention program?" I asked, explaining that the Supreme Court would have a much harder time striking down a wartime detention program that had Congress' explicit support. Clement concurred, as did John Bellinger, Condoleezza Rice's legal adviser, and Department of Defense general counsel Jim Haynes. Those men had made this argument before. They had always been shot down, just as I was about to be.