 clipped from news.ncmonline.com
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The arrest warrants German authorities have issued against 10 CIA agents have strained German-American relations. Now, prosecutors in Munich want the agents extradited to Germany so they can stand trial for their alleged roles in the illegal kidnapping of terror suspects.
The 11-story apartment complex on Washington Boulevard in Arlington, Virginia, couldn't be in a more pleasant location. The buildings offer distant views across the Potomac River, all the way to the Lincoln Memorial and the White House. The residents here live both discreetly and within a stone's throw of the halls of power in Washington. There are no names, only numbers, on the mailboxes and apartment doors, and when visitors arrive unannounced, a uniformed woman at the reception desk shows them politely but firmly to the door.
There is a good reason for this secrecy in Washington. The buildings are home to many employees of the Defense Intelligence Agency, which is headquartered a short five-minute drive from Washington Boulevard. Other residents include CIA officers like Lyle L., who lives in apartment 801 and also has a short commute to his office at his agency's headquarters in Langley, Virginia.
But the orderly world of a handful of US intelligence agents is about to be turned upside down. The district attorney's office in Munich has filed international warrants with Interpol for the arrest of Lyle L., 51, and nine other CIA employees. Lyle L., also known as "Uncle Bud," a former member of the elite Green Berets combat unit, is alleged to have been part of a group of agents who kidnapped Khaled el-Masri, a Lebanese-born German citizen, in Macedonia in January 2004 and flew him to Afghanistan via the Mediterranean island of Mallorca. A trained medic, Lyle L. was probably the one who administered sedatives to Masri on board the Boeing 737.
Officials in Washington have since realized that the German investigation is more than just a symbolic act. This week in Berlin, a group of senior officials from the interior, foreign and justice ministries will meet to discuss the sensitive issue of how the German government should handle the Munich petition for "arrest for the purposes of extradition." There is general agreement within the government in Berlin that the request should be promptly delivered to the Bush administration, which would be tantamount to an official request for the arrest of the men being sought.
Lyle L. was probably the only person who would have had reason to be concerned about this request until now because he was the only member of the CIA team that allegedly abducted Masri who could be identified by his real name. But now the German investigators are in the process of uncovering the identities of the remaining CIA kidnappers, an effort that will further strain an already tense German-American relationship.
At a recent lunch in the German Embassy in Washington, Michael Hayden, the new CIA director, complained about the "bottomless criticism" from Europe that the US government faces for abducting suspicious Islamists. One US diplomat calls Germany's approach the "German double standard." On the one hand, he says, the Germans seek to benefit from information gleaned by the CIA. On the other, they are careful to keep their hands clean. According to US diplomats, US Secretary of State Condoleezza Rice has made it clear to her German counterpart, Foreign Minister Frank-Walter Steinmeier, that the investigations of the agents present a serious problem.
Even before the warrant was issued for the arrest of the agents, John Koenig, a representative of the US embassy in Berlin, had met with German officials at the Chancellery and the Justice Ministry and lodged an official diplomatic protest. Newsweek magazine fears a "US-European showdown" that could jeopardize "US cooperation with German intelligence agencies." A German government official also describes the investigations as "one of our main problems at the moment," which, in light of currently elevated threat levels
The German government could have put a stop to the arrest warrants in the first stage. It would simply have had to refer to Paragraph 153c of the German Code of Criminal Procedure, which states that a legal proceeding can be terminated by official decree if this is in the "prevailing public interest." But a group of senior officials meeting at the Justice Ministry rejected a government veto, arguing that any government efforts to apply the brakes on the investigation would be too difficult for the public to swallow. As a result, the cabinet decided to allow the Munich prosecutors' petition for the issuance of international arrest warrants to stand.
Tracking the Agents
Initially the effort seemed almost pointless for the Germans because, with the exception of Lyle L., the names on all of the arrest warrants were aliases. At Langley, false identities are seen as an effective intelligence tool that normally puts a stop to any investigation.
In its database of registered pilots, the FAA keeps careful track of who registers, under what names and when they register. The database includes the names of anyone who ever acquired a pilot's license in the United States. It even includes Mohammed Atta, one of the suicide pilots of the Sept. 11 attacks.
Munich district attorneys knew the captain of the Boeing 737 which carried Khaled el-Masri to Afghanistan after a stopover in Palma de Mallorca had the fictional name of "Fairing." Discovering his real identity became a matter of simple detective work. All a researcher had to do was enter the name "Fairing," along with other details -- such as his licenses to fly certain aircraft models, or special personal characteristics -- into the FAA database. The system soon produced the pilot's real name.
That was how the German investigators discovered that Captain James Fairing's real name is James K. And because K., 53, called his wife in North Carolina from a hotel in Mallorca, the investigators managed to track down his address. The captain lives in Johnston County, in a nice single-family home with a huge patio and garden.
A look at another database reveals that he drives a Toyota and has a college degree in biology. But anyone driving through the North Carolina tobacco fields to Johnston County to ask James K. about his work as a CIA pilot will encounter a man in a straw hat who threatens, furiously:
"Get off my property or I'll call the police!"
The example of Eric Fain also demonstrates what a lousy job the CIA did in attempting to cover up the identity of its agents. Fain's fake flight instructor's license is dated March 13, 1999. His real one is dated March 31, 1999, a simple transposition of numbers. A similar approach was taken to construct the supposed covers of a number of the CIA pilots.
The modern world of databases, which stores information about everyone and everything, especially in the United States -- and which the intelligence agencies use all too often themselves -- is proving to be the undoing of agents who are no longer as secret as they would like to be. CIA employees at all levels are increasingly nervous about the fact that their involvement in the so-called war on terrorism has made them potential targets. At CIA headquarters in Langley, most are now familiar with the details of the case of Robert Lady
Lady is one of the 26 Americans charged by Italian courts with involvement in the abduction of Imam Abu Omar
When Italian prosecutors learned about the kidnapping and even traced it to the nights the CIA agents spent in Milan luxury hotels, Lady became the fall guy. He was forced to disappear from Italy and go into retirement, and he is unlikely to ever see his country house in the Piedmont again, for which he is still paying the mortgage. The house was seized by the authorities. If Lady is found guilty, it will be confiscated.
Robert Lady is now pinning his hopes on the Italian courts. A Milan judge has temporarily suspended the case because it deals with state secrets. Now the Italian constitutional court will have to decide whether the indictment may contain state secrets. If Lady is found guilty, he could be sentenced to up to four years in prison.
Those who, unlike Lady, are not old enough to retire, face another problem. Because global warrants have been issued for their arrest, the affected CIA agents face the risk of detention upon crossing almost any border outside the United States.
For Lyle L., a.k.a. "Uncle Bud," who has been stationed in Bavaria and Brussels and served in special units in Bosnia and Afghanistan, there will be only one safe way to reach international hot spots in the future: He can travel with the US Air Force, whose passenger lists are generally not checked.
Ironically, this mode of travel will tend to take him through the US Air Force base in Ramstein, Germany -- where "Uncle Bud," because of his involvement in the Masri kidnapping, is currently the most wanted.
By Jo Becker and Barton Gellman
Washington Post Staff Writers
Tuesday, June 26, 2007; Page A01
Air Force Two touched down at the Greenbrier Valley Airport in West Virginia on Feb. 6, 2003, carrying Vice President Cheney to the annual retreat of Republican House and Senate leaders. He had come to sell them on the economic centrepiece of President Bush's first term: a $674 billion tax cut.
Cheney had spent months making sure the package contained everything he wanted. One thing was missing.
The president had accepted Cheney's diagnosis that the sluggish economy needed a jolt, overruling senior economic advisers who forecast dangerous budget deficits. But Bush rejected one of Cheney's remedies: deep reductions in the capital gains tax on investments.
The vice president
"was just hot on that," said Cesar Conda, then Cheney's domestic policy adviser. "It goes to show you: He wins and he loses, and he lost on that one."
Not for long.
As the Republican lawmakers debated in a closed-door session at the Greenbrier resort, the vice president revived the argument, touting his idea as a way to energize a stock market battered by scandals such as Enron. House allies inserted Cheney's cut into their package. But that came at the expense of one of Bush's priorities: abolishing the tax on stock dividends.
Scores of interviews with advisers to the president and vice president, as well as with other senior officials throughout the government, offer a backstage view of how the Bush White House operates. The president is "the decider," as Bush puts it, but the vice president often serves up his menu of choices.
Cheney led a group that winnowed the president's list of potential Supreme Court nominees. Cheney resolved a crisis in the space program after the Columbia shuttle disaster. Cheney fashioned a controversial truce between the legislative and executive branches -- and averted resignations at the top of the Justice Department and the FBI -- over the right of law enforcement authorities to investigate political corruption in Congress.
And it was Cheney who served as the guardian of conservative orthodoxy on budget and tax matters. He shaped and pushed through Bush's tax cuts, blunting the influence of Federal Reserve Chairman Alan Greenspan, a longtime friend, and of Cabinet rivals he had played a principal role in selecting. He managed to overcome the president's "compassionate conservative" resistance to multiple breaks for the wealthy. He even orchestrated a decision to let a GOP senator switch parties -- giving control of the chamber to Democrats -- rather than meet the senator's demand for billions of dollars in new spending.
On the home front, the vice president is well known for leading a secretive task force on energy policy. But in a town where politicians routinely scurry for credit, Cheney more often kept his role concealed, even from top Bush advisers.
"A lot of it was a black box, and I think designedly so," said former Bush speechwriter David Frum. "It was like -- you know that experiment where you pass a magnet under the table and you see the iron filings on the top of the table move? You know there's a magnet there because of what you see happening, but you never see the magnet."
A 'More Effective Role'
When Bush tapped Cheney to be his running mate seven years ago, he chose a man who had put a great deal of thought into how a vice president can transform himself from a funeral-trotting figurehead into a center of real power.
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As President Gerald R. Ford's chief of staff in the 1970s, Cheney saw firsthand how White House policies got shaped -- and how a vice president such as Nelson Rockefeller could become so marginalized as to be dumped from the ticket. Former Army secretary John O. Marsh Jr. said Cheney knew that he needed to control the process by which the president makes choices to ride "the rushing river of power" that winds through the West Wing to the Oval Office.
"Dick's major concern, one of them was, and I agree, that there needs to be a greater and more effective role for the vice president," Marsh, a longtime Cheney friend, said in an interview. "He holds the view, as do I, that the vice president should be the chief of staff in effect, that everything should run through his office."
"My impression is that the president thinks that the Reagan style of leadership is best -- guiding the ship of state from high up on the mast," said former White House lawyer Bradford A. Berenson. "It seems to me that the vice president is more willing to get down in the wheelhouse below the decks."
When the space shuttle Columbia disintegrated over Texas on Feb. 1, 2003, for example, Bush was consumed with concern for the families of the seven dead astronauts. That left Cheney to make the first critical decisions about the future of manned spaceflight.
Even as the vice president and others were grappling with the invasion of Iraq, Cheney crafted a solution to the most pressing problem facing the space program, said former NASA administrator Sean O'Keefe, a Cheney protege.
With its shuttle fleet grounded, the space agency had no way to resupply the crew aboard the international space station, including two Americans. Russia was demanding $100 million to take up the slack. But Congress had barred space-related payments to Moscow unless the administration could certify that the Russians were not transferring banned technology to Iran for nuclear, biological or chemical weapons. Getting the law changed would take time, and could "open up a can of worms" with no guarantee that the result would be to the administration's liking, O'Keefe said.
The vice president's solution, he said, was to get around the law by cutting the deal as a barter. The Russians wouldn't charge the United States for the costs of flying to the space station, and in return, the Americans wouldn't charge the Russians for their share of some operating and equipment costs.
The vice president then took the lead in persuading the State Department to go along with the plan, which never came to public attention.
"He helped frame how to do this without a major diplomatic dust-up," O'Keefe said.
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Last year, Cheney was behind another unprecedented and controversial deal that inserted the White House into an ongoing criminal probe.
When the FBI seized files from the office of Rep. William J. Jefferson (D-La.) as part of a bribery investigation, House Republican leaders erupted. With a number of their own members under investigation for other matters, they charged that the search violated the Constitution. They demanded the return of the files.
Cheney quickly gravitated toward the House's position, aides said, but Attorney General Alberto R. Gonzales; his top deputy, Paul J. McNulty; and FBI Director Robert S. Mueller III threatened to resign if forced to hand over evidence they believed had been properly collected under a warrant.
White House Chief of Staff Joshua B. Bolten called a meeting on May 25, 2006, to resolve the political and legal crisis. The president's lawyers and congressional liaison were in the room, and so was Cheney. Once again, it was the vice president who came up with a solution, according to a participant. Cheney's plan met his goal of keeping the files from federal investigators. The files would be placed under seal for 45 days. Within hours of the meeting, Bush made Cheney's recommendation official. As often happens in government, delay was decisive. Jefferson was indicted earlier this month on 16 counts of bribery, racketeering, fraud, money laundering and obstruction of justice. But nearly half of the files remain off-limits, tied up in legal disputes.
Taking Options 'Off the Table'
Cheney's influence is manifested not just in crisis but also through his extraordinary involvement in the daily machinery of the White House.
The vice president chairs a budget review board, a panel the Bush administration created to set spending priorities and serve as arbiter when Cabinet members appeal decisions by White House budget officials. The White House has portrayed the board as a device to keep Bush from wasting time on petty disagreements, but previous administrations have seldom seen Cabinet-level disputes in that light. Cheney's leadership of the panel gives him direct and indirect power over the federal budget -- and over those who must live within it. [Read then-OMB Director Joshua Bolten's memo about the review board.]
Mitchell E. Daniels Jr., who served as Bush's budget director from 2001 to 2003 and is now governor of Indiana, said that during his tenure the number of times a Cabinet official made a direct budget appeal to Bush "was zero," which aides from previous administrations found "stunning," he added.
Daniels said he chalked that track record up to "the respect people had for the vice president." Cabinet members, he said, recognized that if the board didn't agree with them, "then the president wasn't likely to, either."
It is well known that Cheney is usually the last to speak to the president before Bush makes a decision. Less so is his role, to a degree unmatched by his predecessors, in steering debate by weighing in at the lower-level meetings where proposals are born and die.
Cheney, Bolten said, is a vocal participant at a weekly luncheon meeting of Bush's economic team, which gathers without the president. As the most senior official in the room, Cheney receives great deference from Bush's advisers.
Wise officials vet their proposals in advance. White House budget director Rob Portman, for instance, sought Cheney's counsel as he was putting together the budget for the upcoming year, using him as a "sounding board" on issues as varied as defense spending and tax reform.
"He never, ever has said to me, 'Do this.' Never. Which is interesting, because that might be the perception of how he operates," Portman said. "But it is 'What do you think of this?' Well, he's the vice president of the United States -- and obviously I'm interested in his point of view."
Perhaps more important than Cheney's influence in pushing policies is his power to stop them before they reach the Oval Office.
When Edward P. Lazear, chairman of the White House Council of Economic Advisers, broached the idea of limiting the popular mortgage tax deduction, he said he quickly dropped it after Cheney told him it would never fly with Congress. "He's a big timesaver for us in that he takes off the table a lot of things he knows aren't going to go anywhere," Lazear said.
Lazear, who is otherwise known as a fierce advocate for his views, said that he may argue a point with Cheney "for 10 minutes or so" but that in the end he is always convinced. "I can't think of a time when I have thought I was right and the vice president was wrong."
But Cheney is careful to choose which issues deserve his attention, preferring not to dissipate his influence. "Dick Cheney learned early on to say no to things that were peripheral to his primary interests or assignments," said his longtime friend David Gribbin.
Current and former White House officials say that the vice president has largely steered clear of hot-button issues such as stem cell research and Bush's "faith-based" initiative to funnel more federal money to religious groups. He is also savvy enough, they say, to retreat when the president expresses strong personal views.
Cheney sided with conservatives who wanted to urge the Supreme Court to reverse a landmark ruling that permitted affirmative action. But, former officials said, he did not press the case when the president, who as governor of Texas had run a state university system, made it clear that he intended to take a more limited and nuanced legal position.
Word of a Cheney loss seldom leaks, a trait that has further endeared him to Bush -- and that has served to exaggerate his influence. Former Cheney and Bush aides described several domestic policy defeats that never reached public notice.
Cheney shared conservative trepidations about the president's signature education initiative, the No Child Left Behind Act, which gave the federal government more control over K-12 education. He has griped privately to confidants, such as economist and CNBC host Lawrence Kudlow, about the administration's failure to control spending. And in robust internal White House discussions, he raised concerns about the cost of the administration's decision to expand Medicare to include a new multibillion-dollar drug entitlement, but bowed to the political reality that the president had to fulfill a campaign promise.
"At least in my area, he didn't have a 100 percent batting average," said Conda, the former domestic policy adviser.
In each case, however, Cheney was a loyal soldier, instrumental in helping to sell the president's policies on the Hill and to the Republican base.
"Dick once told me that our president is a 'big-government conservative,'" said former senator Phil Gramm (R-Tex.), in a recollection disputed by Cheney's office. "Now, Dick keeps his opinions to himself whenever he disagrees with the administration, as he should. But I believe that Dick is a small-government conservative."
'A Spine Quotient'
When Sen. James M. Jeffords (Vt.) threatened to bolt the GOP during negotiations over the president's 2001 tax package, senior Bush advisers and Republican senators were deeply split over whether to buy him off. It was a momentous decision -- a Jeffords defection would toss the Senate to Democratic control for the first time since 1994.
But in a contentious internal debate, the vice president forcefully argued that the administration should not capitulate by giving Jeffords the billions of dollars in special-education funding he sought, recalled O'Keefe, at the time deputy director of the Office of Management and Budget.
O'Keefe said Cheney argued that the White House should not sacrifice conservative principle in the face of Jeffords's threat by scaling back tax cuts dear to the GOP base in order to create an expensive new mandate. Gramm, who confirmed that account, said there would have been no end to such demands if the president had caved.
"The principle was 'Hell, we can't go around funding programs based on what some individual might do,'" said Gramm, who worked closely with Cheney during the negotiations.
By the end of the critical meeting, O'Keefe said, the divided group presented Cheney's view as the consensus recommendation to the president. Bush's $1.35 trillion tax cut passed, and Jeffords defected as promised.
Such stands by Cheney were not uncommon, said Bolten, the White House chief of staff. Cheney often stepped in if he sensed the administration was softening its commitment to Republican "first principles," Bolten said, and he was "a pretty vigorous voice for holding the line on spending and for holding the line on tax cuts." Longtime Cheney adviser Mary Matalin said the vice president brings a "spine quotient" to internal debates.
Cheney's power derives in part from meticulous preparation paired with a strong will to prevail. He knows what he wants, and as one rival put it, Cheney and his staff are "just ferocious negotiators."
The vice president regularly convenes a kitchen cabinet of diverse outside economic experts, often before the president is about to make a major decision. Members of the group describe a man who enjoys the nitty-gritty of economics, poring over charts of obscure data such as freight-car loadings and quizzing experts on the subtle ways the government can influence the economy.
"With the president it was much shorter. It's 'Marty, what do you think of where we stand today?'" said Martin Feldstein, a Harvard economics professor and the president and chief executive of the National Bureau of Economic Research. "It's also a less technical presentation."
R. Glenn Hubbard, Bush's former chairman of the Council of Economic Advisers, said of Cheney: "I'd have conversations with him that were at a level of detail that those with the president were not."
In the weeks following the attacks of Sept. 11, 2001, as the White House was putting together an economic recovery package, Cheney gathered his kitchen cabinet, frequently interrupting the experts as he furiously jotted notes on a stack of cards embossed with the vice presidential seal. What kind of tax cuts are needed? Cheney wanted to know. How big?
A few days later, Cheney was "on fire" when he met with the president, Cheney's chief of staff, I. Lewis "Scooter" Libby, later told Conda. Cheney had decided that the best way to shake business leaders out of their post-attack paralysis was to let them immediately write off the cost of new plants and equipment. After hearing him out, Bush made Cheney's idea a centerpiece of his plan.
In previous administrations, such initiatives typically have been generated by the Treasury Department or the White House economic team. But Cheney has made the vice president's office a hub of tax policy, enabled by the fact that "this president appears to want to have Treasury take the orders from the White House," said John H. Makin, an economist and an informal Cheney adviser.
All this put Cheney in a position to outflank some of Bush's top advisers, and even his old friend Greenspan, to shape the administration's signature tax package: the 2003 cuts that Cheney sold at the Greenbrier resort in West Virginia.
'The President Made the Call'
As far as Greenspan knew, the vice president agreed with him on the danger of the tax package Bush was contemplating. The Federal Reserve chairman worried that the sheer size of the cuts would drown the federal budget in red ink.
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Cheney and Greenspan met regularly, far more often than the Fed chief met with Bush, according to interviews and Greenspan's calendar. And when the president did meet with Greenspan, Cheney was nearly always in the room.
The vice president and the Fed chairman had formed a close bond when both served in the Ford administration. The Fed chief saw the vice president as a conduit to a president he did not know nearly as well, someone he could trust to fairly present his views to Bush.
So Greenspan sent Cheney a study by one of the central bank's senior economists showing that big deficits lead to higher long-term interest rates, according to a person with firsthand knowledge. Higher rates, Greenspan believed, would wipe out any short-term benefit from a tax cut.
In subsequent meetings with the Fed chief, Cheney never took issue with the study. What Greenspan did not know was that, behind the scenes, the vice president took steps to undermine an argument that could threaten the big tax cut he favored. Conda, the vice president's aide, said Cheney asked him to critique the study. Conda attached his own memo arguing that the Fed's analytical model was flawed. He said "it wasn't my job to know" what Cheney did with the paperwork, but noted that Greenspan's study did not gain traction inside the White House.
Aside from Greenspan, Cheney had faced down opposition from many of the administration's senior economic voices, including Daniels, Treasury Secretary Paul H. O'Neill and Commerce Secretary Donald L. Evans. They believed that the economy was recovering and that a deep tax cut wasn't needed. Daniels said he worried that it would undermine the GOP message of fiscal discipline.
Cheney, however, pressed his argument that the economy needed a jump-start. He wanted not only to reduce the tax on dividends but also to cut the capital gains tax and accelerate income tax breaks for top earners, according to Daniels, Conda, Hubbard and others. Conda said Cheney subscribed to the view of supply-side economists that when government cuts taxes the economy grows, generating additional tax revenue that largely offsets the losses from lower tax rates.
The standoff came to a head in late November 2002, during a meeting in the Roosevelt Room.
O'Neill continued to oppose the tax cut on grounds that the government was moving toward "fiscal crisis," irritating Cheney. "The vice president really got a sense of where O'Neill was coming from and surmised it was a problem," Conda said. The following month, Cheney would demand O'Neill's resignation.
Bush sided with Cheney on the dividends tax but thought it would be better to eliminate it altogether. The president was cooler on the capital gains tax, according to Conda and others. And having campaigned on a platform of compassionate conservatism, he expressed doubts about giving another income tax break to the wealthiest Americans, particularly because they would benefit the most from the elimination of the dividends tax, Hubbard said.
But by the time Bush publicly announced his tax package on Jan. 7, 2003, Cheney lost on only one major count. The president included no reduction in the tax on capital gains. [Read the legislation: As first introduced in the House | As passed by Congress.]
"There was a question of priorities and how to fit things in," said Karl Rove, Bush's chief political adviser. "And ultimately the president made the call."
It was then that Cheney doubled back at the Greenbrier retreat.
"We were deciding how to proceed," recalled Rep. Adam H. Putnam (Fla.), now the third-ranking Republican in the House. "Are we going to put all our eggs in the dividends basket, or are we going to move on capital gains? As I recall, he was a very strong advocate on both counts, but particularly capital gains in terms of its potential to unleash the economy."
In the end, the House decided against eliminating the dividends tax cut, as Bush had wanted, choosing instead to just reduce the rate to make room for a capital gains cut.
Bill Thomas, the California Republican who guided the final bill to passage as chairman of the House tax-writing committee, said he and Cheney go way back and "use each other in the best sense," with the two men deciding which one will make a proposal and which will speak up in its support.
In the case of the capital gains proposal, Cheney pitched it to the Greenbrier gathering. Thomas pitched it to the White House, and he credited the vice president with persuading Bush to go along. "That," Thomas said, "is why the administration changed its position."
The vote in the Senate was 51 to 50. Cheney, exercising his only formal power under the Constitution, cast the tie-breaking vote.
Staff researcher Julie Tate contributed to this report.
Pushing the Envelope on Presidential Power
By Barton Gellman and Jo Becker
Washington Post Staff Writers
Monday, June 25, 2007
Shortly after the first accused terrorists reached the U.S. naval prison at Guantanamo Bay, Cuba, on Jan. 11, 2002, a delegation from CIA headquarters arrived in the Situation Room. The agency presented a delicate problem to White House counsel Alberto R. Gonzales, a man with next to no experience on the subject. Vice President Cheney's lawyer, who had a great deal of experience, sat nearby.
The meeting marked
"the first time that the issue of interrogations comes up" among top-ranking White House officials, recalled John C. Yoo, who represented the Justice Department. "The CIA guys said, 'We're going to have some real difficulties getting actionable intelligence from detainees'"if interrogators confined themselves to treatment allowed by the Geneva Conventions.
From that moment, well before previous accounts have suggested, Cheney turned his attention to the practical business of crushing a captive's will to resist. The vice president's office played a central role in shattering limits on coercion of prisoners in U.S. custody, commissioning and defending legal opinions that the Bush administration has since portrayed as the initiatives, months later, of lower-ranking officials.
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Cheney and his allies, according to more than two dozen current and former officials, pioneered a novel distinction between forbidden
"torture" and permitted use of "cruel, inhuman or degrading"methods of questioning. They did not originate every idea to rewrite or reinterpret the law, but fresh accounts from participants show that they translated muscular theories, from Yoo and others, into the operational language of government.
A backlash beginning in 2004, after reports of abuse leaked out of Iraq's Abu Ghraib prison and Guantanamo Bay, brought what appeared to be sharp reversals in courts and Congress -- for Cheney's claims of executive supremacy and for his unyielding defense of what he called "robust interrogation."
But a more careful look at the results suggests that Cheney won far more than he lost. Many of the harsh measures he championed, and some of the broadest principles undergirding them, have survived intact but out of public view.
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The vice president's unseen victories attest to traits that are often ascribed to him but are hard to demonstrate from the public record: thoroughgoing secrecy, persistence of focus, tactical flexibility in service of fixed aims and close knowledge of the power map of government. On critical decisions for more than six years, Cheney has often controlled the pivot points -- tipping the outcome when he could, engineering stalemate when he could not and reopening debates that rivals thought were resolved.
"Once he's taken a position, I think that's it," said James A. Baker III, who has shared a hunting tent with Cheney more than once and worked with him under three presidents. "He has been pretty damn good at accumulating power, extraordinarily effective and adept at exercising power."
David S. Addington, Cheney's general counsel, set the new legal agenda in a blunt memorandum shortly after the CIA delegation returned to Langley. Geneva's
"strict limits on questioning of enemy prisoners," he wrote on Jan. 25, 2002, hobbled efforts "to quickly obtain information from captured terrorists."
No longer was the vice president focused on procedural rights, such as access to lawyers and courts. The subject now was more elemental: How much suffering could U.S. personnel inflict on an enemy to make him talk? Cheney's lawyer feared that future prosecutors, with motives "difficult to predict," might bring criminal charges against interrogators or Bush administration officials.
Geneva rules forbade not only torture but also, in equally categorical terms, the use of
"violence," "cruel treatment" or "humiliating and degrading treatment" against a detainee "at any time and in any place whatsoever."The War Crimes Act of 1996 made any grave breach of those restrictions a U.S. felony [Read the act]. The best defense against such a charge, Addington wrote, would combine a broad presidential directive for humane treatment, in general, with an assertion of unrestricted authority to make exceptions.
The vice president's counsel proposed that President Bush issue a carefully ambiguous directive. Detainees would be treated
"humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of"the Geneva Conventions. When Bush issued his public decision two weeks later, on Feb. 7, 2002, he adopted Addington's formula -- with all its room for manoeuvre -- verbatim.
In a radio interview last fall, Cheney said,
"We don't torture." What he did not acknowledge, according to Alberto J. Mora, who served then as the Bush-appointed Navy general counsel, was that the new legal framework was designed specifically to avoid a ban on cruelty. In international law, Mora said, cruelty is defined as "the imposition of severe physical or mental pain or suffering." He added: "Torture is an extreme version of cruelty."
How extreme? Yoo was summoned again to the White House in the early spring of 2002. This time the question was urgent. The CIA had captured Abu Zubaida, then believed to be a top al-Qaeda operative, on March 28, 2002. Case officers wanted to know
"what the legal limits of interrogation are," Yoo said.
This previously unreported meeting sheds light on the origins of one of the Bush administration's most controversial claims. The Justice Department delivered a classified opinion on Aug. 1, 2002, stating that the U.S. law against torture
"prohibits only the worst forms of cruel, inhuman or degrading treatment"and therefore permits many others. [Read the opinion] Distributed under the signature of Assistant Attorney General Jay S. Bybee, the opinion also narrowed the definition of "torture" to mean only suffering
"equivalent in intensity" to the pain of "organ failure ..... or even death."
When news accounts unearthed that opinion nearly two years later, the White House repudiated its contents. Some officials described it as hypothetical, without disclosing that the opinion was written in response to specific questions from the CIA. Administration officials attributed authorship to Yoo, a law professor at the University of California at Berkeley who had come to serve in the Office of Legal Counsel.
But the "torture memo," as it became widely known, was not Yoo's work alone. In an interview, Yoo said that Addington, as well as Gonzales and deputy White House counsel Timothy E. Flanigan, contributed to the analysis.
The vice president's lawyer advocated what was considered the memo's most radical claim: that the president may authorize any interrogation method, even if it crosses the line into torture. U.S. and treaty laws forbidding any person to "commit torture," that passage stated, "do not apply" to the commander in chief, because Congress "may no more regulate the President's ability to detain and interrogate enemy combatants than it may regulate his ability to direct troop movements on the battlefield."
That same day, Aug. 1, 2002, Yoo signed off on a second secret opinion, the contents of which have never been made public. According to a source with direct knowledge, that opinion approved as lawful a long list of interrogation techniques proposed by the CIA -- including waterboarding, a form of near-drowning that the U.S. government has prosecuted as a war crime since at least 1901. The opinion drew the line against one request: threatening to bury a prisoner alive.
Yoo said for the first time in an interview that he verbally warned lawyers for the president, Cheney and Defense Secretary Donald H. Rumsfeld that it would be a risky policy to permit military interrogators to use the harshest techniques, because the armed services, vastly larger than the CIA, could overuse the tools or exceed the limits. "I always thought that only the CIA should do this, but people at the White House and at DOD felt differently," Yoo said. The migration of those techniques from the CIA to the military, and from Guantanamo Bay to Abu Ghraib, aroused worldwide condemnation when abuse by U.S. troops was exposed.
Through is spokeswoman, Tasia Scolinos, Gonzales declined a request for an interview about his time in the White House counsel's office and his interactions with Cheney. The vice president's spokeswoman, Lea Anne McBride, declined to comment on Yoo's recollection.
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On June 8, 2004, national security adviser Condoleezza Rice and Secretary of State Colin L. Powell learned of the two-year-old torture memo for the first time from an article in The Washington Post [Read the article]. According to a former White House official with firsthand knowledge, they confronted Gonzales together in his office.
Rice "very angrily said there would be no more secret opinions on international and national security law," the official said, adding that she threatened to take the matter to the president if Gonzales kept them out of the loop again. Powell remarked admiringly, as they emerged, that Rice dressed down the president's lawyer "in full Nurse Ratched mode," a reference to the head nurse of the mental hospital in the 1975 film "One Flew Over the Cuckoo's Nest."
Neither of them took their objections to Cheney, the official said, a much more dangerous course.
In the summer and fall of 2002, some of the Bush administration's leading lawyers began to warn that Cheney and his Pentagon allies had set the government on a path for defeat in court. As the judicial branch took up challenges to the president's assertion of wartime power, Justice Department lawyers increasingly found themselves defending what they believed to be losing positions -- directed by the vice president and his staff. One of the uneasy lawyers was Solicitor General Theodore B. Olson , a conservative stalwart whose wife, Barbara, had died on Sept. 11, 2001 when the hijacked American Airlines Flight 77 crashed into the Pentagon. Olson shared Cheney's robust view of executive authority, but his job was to win cases. Two that particularly worried him involved U.S. citizens -- Jose Padilla and Yaser Esam Hamdi -- who had been declared enemy combatants and denied access to lawyers.
Federal courts, Olson argued, would not go along with that. But the CIA and military interrogators opposed any outside contact, fearing relief from the isolation and dependence that they relied upon to break the will of suspected terrorists.
Flanigan said that Addington's personal views leaned more toward Olson than against him, but that Addington beat back the proposal to grant detainees access to lawyers, "because that was the position of his client, the vice president."
Decision time came in a heated meeting in Gonzales's corner office on the West Wing's second floor, according to four officials with direct knowledge, none of whom agreed to be quoted by name about confidential legal deliberations. Olson was backed by associate White House counsel Bradford A. Berenson , a former law clerk to Supreme Court Justice Anthony M. Kennedy.
Berenson told colleagues that the court's swing voter would never accept absolute presidential discretion to declare a U.S. citizen an enemy and lock him up without giving him an opportunity to be represented and heard. Another former Kennedy clerk, White House lawyer Brett Kavanaugh, had made the same argument earlier.
Addington accused Berenson of surrendering executive power on a fool's prophecy about an inscrutable court. Berenson accused Addington of "know-nothingness."
Gonzales listened quietly as the Justice Department and his own staff lined up against Addington. Then he decided in favor of Cheney's lawyer.
John D. Ashcroft, who was attorney general at the time, declined to discuss details of the dispute but said the vice president's views "carried a great deal of weight. He was the E.F. Hutton in the room. When he talked, everybody would listen." Cheney, he said, "compelled people to think carefully about whatever he mentioned."
When a U.S. District Court ruled several months later that Padilla had a right to counsel, Cheney's office insisted on sending Olson's deputy, Paul Clement, on what Justice Department lawyers called "a suicide mission": to tell Judge Michael B. Mukasey that he had erred so grossly that he should retract his decision. Mukasey derided the government's "pinched legalism" and added acidly that his order was "not a suggestion or request."
Cheney's strategy fared worse in the Supreme Court, where two cases arrived for oral argument alongside Padilla's on April 28, 2004.
For months, Olson and his Justice Department colleagues had pleaded for modest shifts that would shore up the government's position. Hamdi, the American, had languished in a Navy brig for two and a half years with out a hearing or a lawyer. Shafiq Rasul, a British citizen at Guantanamo Bay, had been held even longer. Olson could make Cheney's argument that courts had no jurisdiction, but he wanted to "show them that you at least have some system of due process in place" to ensure against wrongful detention, according to a senior Justice Department official who closely followed the debates.
Addington, the vice president's counsel fought and won again. He argued that any declaration of binding rules would restrict the freedom of future presidents and open the door to further lawsuits. On June 28, 2004, the Supreme Court ruled 8 to 1 in the Hamdi case that detainees must have a lawyer and an opportunity to challenge their status as enemy combatants before a "neutral decision maker." The Rasul decision, the same day, held 6 to 3 that Guantanamo Bay is not beyond the reach of federal law.
Eleven days later, Olson stepped down as solicitor general. His deputy succeeded him. What came next was a reminder that it does not pay to cross swords with the vice president.
Ashcroft, with support from Gonzales, proposed a lawyer named Patrick Philbin for deputy solicitor general. Philbin was among the authors of the post-Sept. 11 legal revolution, devising arguments to defend Cheney's military commissions and the denial of habeas corpus rights at Guantanamo Bay. But he had tangled with the vice president's office now and then, objecting to the private legal channel between Addington and Yoo and raising questions about domestic surveillance by the National Security Agency.
Cheney's lawyer passed word that Philbin was an unsatisfactory choice. The attorney general and White House counsel abandoned their candidate.
"OVP plays hardball," said a high-ranking former official who followed the episode, referring to the office of the vice president. "No one would defend Philbin."
Rumsfeld, Cheney's longtime friend and mentor, gathered his senior subordinates at the Pentagon in the summer of 2005. He warned them to steer clear of Senate Republicans John McCain, John W. Warner and Lindsay O. Graham, who were drafting a bill to govern the handling of terrorism suspects.
"Rumsfeld made clear, emphatically, that the vice president had the lead on this issue," said a former Pentagon official with direct knowledge.
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Though his fingerprints were not apparent, Cheney had already staked out a categorical position for the president. It came in a last-minute insert to a "statement of administration policy" by the Office of Management and Budget, where Nancy Dorn, Cheney's former chief of legislative affairs, was deputy director. Without normal staff clearance, according to two Bush administration officials, the vice president's lawyer added a paragraph -- just before publication on July 21, 2005 -- to the OMB's authoritative guidance on the 2006 defense spending bill [Read the document].
"The Administration strongly opposes" any amendment to "regulate the detention, treatment or trial of terrorists captured in the war on terror," the statement said. Before most Bush administration officials even became aware that the subject was under White House review, Addington wrote that "the President's senior advisers would recommend that he veto" any such bill.
Among those taken unawares was Deputy Defense Secretary Gordon R. England. More than a year had passed since Bush expressed "deep disgust" over the abuse photographed at Abu Ghraib, and England told aides it was past time to issue clear rules for U.S. troops.
In late August 2005, England called a meeting of nearly three dozen Pentagon officials, including the vice chief and top uniformed lawyer for each military branch. Matthew Waxman, the deputy assistant secretary for detainee affairs, set the agenda.
Waxman said that the president's broadly stated order of Feb. 7, 2002 -- which called for humane treatment, "subject to military necessity" -- had left U.S. forces unsure about how to behave. The Defense Department, he said, should clarify its bedrock legal requirements with a directive incorporating the language of Geneva's Common Article 3 [Read Common Article 3]. That was exactly the language -- prohibiting cruel, violent, humiliating and degrading treatment -- that Cheney had spent three years expunging from U.S. policy.
"Every vice chief came out strongly in favor, as did every JAG," or judge advocate general, recalled Mora, who was Navy general counsel at the time.
William J. Haynes II, a close friend of Addington's who served as Rumsfeld's general counsel, was one of two holdouts in the room. The other was Stephen A. Cambone, Rumsfeld's undersecretary for intelligence.
Waxman, believing his opponents isolated, circulated a draft of DOD Directive 2310. Within a few days, Addington and I. Lewis "Scooter" Libby, Cheney's chief of staff, invited Waxman for a visit.
According to Mora, Waxman returned from the meeting with the message that his draft was "unacceptable to the vice president's office." Another defense official, who made notes of Waxman's report, said Cheney's lawyer ridiculed the vagueness of the Geneva ban on "outrages upon personal dignity," saying it would leave U.S. troops timid in the face of unpredictable legal risk. When Waxman replied that the official White House policy was far more opaque, according to the report, Addington accused him of trying to replace the president's decision with his own.
"The impact of that meeting is that Directive 2310 died," Mora said.
Over the next 12 months, Congress and the Supreme Court imposed many of the restrictions that Cheney had squelched.
"The irony with the Cheney crowd pushing the envelope on presidential power is that the president has now ended up with lesser powers than he would have had if they had made less extravagant, monarchical claims," said Bruce Fein, an associate deputy attorney general under President Ronald Reagan.
Flanigan, a founding member of that crowd, said he still believes that Addington and Yoo were right in their "application of generally accepted constitutional principles." But he acknowledged that many battles ended badly. "The Supreme Court," Flanigan said, "decided to change the rules."
Even so, Cheney's losses were not always as they appeared.
On Oct. 5, 2005, the Senate voted 90 to 9 in favor of McCain's Detainee Treatment Act, which included the Geneva language [Read the bill]. It was, by any measure, a rebuke to Cheney. Bush signed the bill into law. "Well, I don't win all the arguments," Cheney told the Wall Street Journal.
Yet he and Addington found a roundabout path to the exceptions they sought for the CIA, as allies in Congress made little-noticed adjustments to the bill.
The final measure confined only the Defense Department to the list of interrogation techniques specified in a new Army field manual. No techniques were specified for CIA officers, who were forbidden only in general terms to employ "cruel" or "inhuman" methods. Crucially, the new law said those words would be interpreted in light of U.S. constitutional law. That made a big difference to Cheney.
The Supreme Court has defined cruelty as an act that "shocks the conscience" under the circumstances. Addington suggested, according to another government lawyer, that harsh methods would be far less shocking under circumstances involving a mass-casualty terrorist threat. Cheney may have alluded to that advice in an interview with ABC's "Nightline" on Dec. 18, 2005, saying that "what shocks the conscience" is to some extent "in the eye of the beholder."
Eager to put detainee scandals behind them, Bush's advisers spent days composing a statement in which the president would declare support for the veto-proof bill on detainee treatment. Hours before Bush signed it into law on Dec. 30, 2005, Cheney's lawyer intercepted the accompanying statement "and just literally takes his red pen all the way through it," according to an official with firsthand knowledge.
Addington substituted a single sentence. Bush, he wrote, would interpret the law "in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief."
Cheney's office had used that technique often. Like his boss, Addington disdained what he called "interagency treaties," one official said. He had no qualms about discarding language "agreed between Cabinet secretaries," the official said.
Top officials from the CIA, and the Justice, State and Defense departments unanimously opposed the substitution, according to two officials. John B. Bellinger III, the ranking national security lawyer at the White House, warned that Congress would view Addington's statement as a "stick in the eye" after weeks of consensus-building by national security adviser Stephen J. Hadley.
None of that mattered. With Cheney's weight behind it, White House counsel Harriet E. Miers sent Addington's version to Bush for his signature.
"The only person in Washington who cares less about his public image than David Addington is Dick Cheney," said a former White House ally. "What both of them miss is that ..... in times of war, a prerequisite for success is people having confidence in their leadership. This is the great failure of the administration -- a complete and total indifference to public opinion."
On June 29, 2006, the Supreme Court struck its sharpest blow to the house that Cheney built, ruling 5 to 3 that the president had no lawful power to try alleged terrorists in military commissions [Read the opinion]. The tribunal order that Cheney brought to Bush's private dining room, and the game plan Cheney's lawyer wrote to defend it, fetched condemnation on disparate legal grounds. The majority relied, as Addington's critics foresaw, on Justice Kennedy's vote.
Not only did the court leave the president beholden to Congress for the authority to charge and punish terrorists, but it rejected a claim of implicit legislative consent that Bush was using elsewhere to justify electronic surveillance without a warrant. And not only did it find that Geneva's Common Article 3 protects "unlawful enemy combatants," but it also said that those protections -- including humane treatment and the right to a trial by "a regularly constituted court" -- were enforceable by federal judges in the United States.
The court's decision, in Hamdan v. Rumsfeld, was widely seen as a calamity for Cheney's war plan against al-Qaeda. As the Bush administration formed its response, the vice president's position appeared to decline further still.
White House strategists agreed that they had to submit legislation to undo the damage of the Hamdan case. Cheney and Addington, according to a former official with firsthand knowledge, favored a one-page bill. Their proposal would simply have stated that the Geneva Conventions confer no right of access to U.S. courts, stripped U.S. courts of jurisdiction over foreign nationals declared to be enemy combatants and affirmed the president's authority to create military commissions exactly as he had already done. Bush chose to spend the fall of 2006 negotiating a much more complex bill that became the Military Commissions Act.
The White House proposal, said Joshua B. Bolten, the chief of staff, "did not come out exactly as the vice president would have wanted."
In another reversal for Cheney, Bush acknowledged publicly on Sept. 6 that the CIA maintained secret prisons overseas for senior al-Qaeda detainees, a subject on which he had held his silence since The Post disclosed them late in 2005. The president announced that he had emptied the "black sites" and transferred their prisoners to Guantanamo Bay to be tried.
The same week, almost exactly a year after the vice president's office shelved Waxman's Pentagon plan, Waxman's successor dusted it off. DOD Directive 2310.01E, the Department of Defense Detainee Program, included the verbatim text of Geneva's Common Article 3 and described it, as Waxman had, as "a minimum standard for the care and treatment of all detainees." [Read the directive] The new Army field manual, published with the directive, said that interrogators were forbidden to employ a long list of techniques that had been used against suspected terrorists since Sept. 11, 2001 -- including stripping, hooding, inflicting pain and forcing the performance of sex acts.
For all the apparent setbacks, close observers said, Cheney has preserved his top-priority tools in the "war on terror." After a private meeting with Cheney, one of them said, Bush decided not to promise that there would be no more black sites -- and seven months later, the White House acknowledged that secret detention had resumed.
The Military Commissions Act, passed by strong majorities of the Senate and House on Sept. 28 and 29, 2006, gave "the office of the vice president almost everything it wanted," said Yoo, who maintained his contact with Addington after returning to a tenured position at Berkeley.
The new law withstood its first Supreme Court challenge on April 2. It exempts CIA case officers and other government employees from prosecution for past war crimes or torture. Once again, an apparently technical provision held great importance to Cheney and his allies.
Without repealing the War Crimes Act, which imposes criminal penalties for grave breaches of Geneva's humane-treatment standards, Congress said the president, not the Supreme Court, has final authority to decide what the standards mean -- and whether they even apply.
Air Force Two touched down in Sydney this past Feb. 24. Cheney had come to discuss Iraq. Prime Minister John Howard brought the conversation around to an Australian citizen who had unexpectedly become a political threat.
Under pressure at home, Howard said he told Cheney that there must be a trial "with no further delay" for David Hicks, 31, who was beginning his sixth year at the U.S. naval prison at Guantanamo Bay. Five days later, Hicks was indicted as a war criminal. On March 26, he pleaded guilty to providing "material support" for terrorism.
At every stage since his capture, as he changed taxis at the Afghan-Pakistan border, Hicks had crossed a legal landscape that Cheney did more than anyone to reshape. He was Detainee 002 at Guantanamo Bay, arriving on opening day at an asserted no man's land beyond the reach of sovereign law. Interrogators questioned him under guidelines that gave legal cover to the infliction of pain and fear -- and, according to an affidavit filed by British lawyer Steven Grosz, Hicks was subjected to beatings, sodomy with a foreign object, sensory deprivation, disorienting drugs and prolonged shackling in painful positions.
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The U.S. government denied those claims, and before accepting Hicks's guilty plea it required him to affirm that he had "never been illegally treated." But the tribunal's rules, written under principles Cheney advanced, would have allowed the Australian's conviction with evidence obtained entirely by "cruel, inhuman or degrading" techniques.
Shortly after Cheney returned from Australia, the Hicks case died with a whimper. The U.S. government abruptly shifted its stance in plea negotiations, dropping the sentence it offered from 20 years in prison to nine months if Hicks would say that he was guilty.
Only the dramatic shift to lenience, said Joshua Dratel, one of three defense lawyers, resolved the case in time to return Hicks to Australia before Howard faces reelection late this year. The deal, negotiated without the knowledge of the chief prosecutor, Air Force Col. Morris Davis, was supervised by Susan J. Crawford, the convening authority over military commissions. Crawford received her three previous government jobs from then-Defense Secretary Cheney -- she was appointed as his special adviser, Pentagon inspector general and then judge on the U.S. Court of Appeals for the Armed Forces.
Yet the tactical retreat on Hicks, according to Bush administration officials, diverted attention from the continuity of U.S. policy on detainees.
A year after Bush announced at a news conference that "I'd like to close Guantanamo," the camp remains open and has been expanded. Senior officials said Cheney, with few allies left, has turned back strong efforts -- by Rice, England, new Defense Secretary Robert M. Gates and former Bush speechwriter Mike Gerson, among others -- to give the president what he said he wants.
Cheney and his aides "didn't circumvent the process," one participant said. "They were just very effective in using it."
More than a year after Congress passed McCain-sponsored restrictions on the questioning of suspected terrorists, the Bush administration is still debating how far the CIA's interrogators may go in their effort to break down resistant detainees. Two officials said the vice president has deadlocked the debate.
Bush said last September that he would "work with" Congress to review "an alternative set of procedures" for "tough" -- but, he said, lawful -- interrogation. He did not promise to submit legislation or to report particulars to any oversight committee, and he has not done so.
Two questions remain, officials said. One involves techniques to be authorized now. The other is whether any technique should be explicitly forbidden.
According to participants in the debate, the vice president stands by the view that Bush need not honor any of the new judicial and legislative restrictions. His lawyer, they said, has recently restated Cheney's argument that when courts and Congress "purport to" limit the commander in chief's warmaking authority, he has the constitutional prerogative to disregard them.
If Cheney advocates a return to waterboarding, they said, they have not heard him say so. But his office has fought fiercely against an executive order or CIA directive that would make the technique illegal.
"That's just the vice president," said Gerson, the former speechwriter, referring to Cheney's October remark that "a dunk in the water" for terrorists -- a radio interviewer's term -- is "a no-brainer for me."
Gerson added: "It's principled. He's deeply conscious that this is a dangerous world, and he wants this president and future presidents to be able to deal with that. He feels very strongly about these things, and it's his great virtue and his weakness."
Staff researcher Julie Tate contributed to this report.
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