I just returned from a conference on counter-terrorism issues convened in Europe where the United States was represented by a delegation of very senior figures from the Department of Justice. The experience reminded me that there are committed professionals, individuals with integrity, still there. We should have sympathy for them, for these times must be very difficult. They deserve leadership committed to the law and the Constitution, and most importantly, to the concept of justice. But the recent scandal surrounding the United States attorneys has pointed a powerful searchlight into the Department’s leadership and has revealed levels of political corruption and abuse that have been unknown in our country in modern times. Those who are concerned about our country, its reputation for justice and the integrity of its institutions cannot be indifferent to these developments. At this point it is clear that dramatic action is needed to set things right and to restore the Department to the position it once held: an institution set apart from others in Washington in its commitment to ideals above the political fray.
Michael Isikoff and Thomas Evans, writing in the June 4 issue of Newsweek give up a patient reconstruction of the jigsaw puzzle which has emerged, piece by piece over the last several months. The most important element of the new story is the account of how, following the attempts to coerce Ashcroft on his hospital sickbed, the White House faced a mass resignation at Justice in response to its concerted efforts to subvert the law. It’s worth stressing that this was not a liberal – conservative struggle by any stretch. We’re talking about political appointees for the most part, hand-picked by John Ashcroft and often with the White House’s blessing. All are bona fide political conservatives and Republicans. The divide was between those committed to the Constitution and Rule of Law, and those preparing the way for a Presidential Dictatorship. Here’s the key graph:
Appalled by the White House’s heavy-handed attempt to coerce the gravely ill attorney general, virtually the entire top leadership of the Justice Department is threatening to resign. The group includes the director of the FBI, Robert Mueller, Associate Attorney General Robert McCallum and the chief of the Criminal Division, Chris Wray. Some of them gather in the conference room of Deputy Attorney General James Comey, who describes Ashcroft’s bravely turning away the president’s men from his hospital bed. The mood that night in the conference room was tense—and sober. “This was a showdown,” says a former senior Justice Department official who was there. “Everybody understood the choice they were making and the gravity of the situation. Everybody knew what the stakes were.” A different source estimated that as many as 30 top DOJ officials would have resigned.
And who, exactly, was the “enemy within” at Justice? The spotlight in the Newsweek account falls immediately on John Yoo, now a Berkeley law professor and then a “rising star” at the Office of Legal Counsel:
While easygoing and congenial on the surface, Yoo was a fierce bureaucratic infighter with a penchant for circumventing his superiors. Though all the top officials at Justice were conservative Republicans, Yoo seemed to regard them as political dolts. “He had this calm, unruffled, almost ‘devil may care’ attitude when he talked about issues that were extraordinarily sensitive,” recalled a former Justice Department official. “He would sort of come flying by your office and say things like, ‘We’ve done a little analysis, it’s no big deal’.” Only later, the official said, would he discover that Yoo had sent the White House an opinion authorizing some sweeping new—-and constitutionally dubious—-program.
Yoo was increasingly seen as a rogue operator inside the Justice Department. Officials were suspicious of his ties to David Addington, counsel to Vice President Cheney. The vice president’s office took a hard-line view that the executive branch should not be trammeled in the war on terror by legislators and bureaucrats. Yoo was “out of control,” recalled a former Ashcroft aide. Almost without exception, this conflict stayed behind closed doors.
This account is consistent with all the external facts already developed. It’s only a bit short-sighted in that it ends with the account of how the situation was defused through two weeks of patient negotiation with the White House. In retrospect, it would have been much better had the rupture been publicly exposed at that time. For how did this develop further?
Bush was reelected, and he set about reshaping the Justice Department – Gonzales replaced Ashcroft; McNulty replaced Comey; Philbin and Goldsmith left. In other words: those loyal to the Cheney-Addington vision of a President above the Rule of Law emerged triumphant, and those loyal to the Constitution were shoved out.
One mystery in this turnover process has now been solved. After Jack Goldsmith left OLC, Gonzales badly wanted John Yoo to be Goldsmith’s successor. Ashcroft is reported not only to have dismissed this idea, but to have been uncharacteristically pointed and brusque in the process. (Our principal source: some embittered comments from John Yoo). The new Isikoff-Evans account makes clear how this developed – namely Yoo had made himself into a mole for the Vice President’s office, specifically David Addington, in the process. His agenda was clear: to establish the legal basis for a Presidential Dictatorship. He was using the powers of OLC to achieve that. Jack Goldsmith uncovered his handiwork, notified Ashcroft of it (through Comey and Philbin) and set about rectifying the situation.
These are extraordinary, powerful and important developments in America’s legal history. As Marty Lederman asks: “Is there anything remotely like it in U.S. history?” The answer is no. The essence of the Addington-Gonzales-Yoo interaction was a plot against the Constitution – a Schmittian design under which the war powers were being used as a state of exception to overturn the Constitutional order of government and install something new and previously unseen. The courts and Congress were to be emasculated, and the president was to assume hitherto unprecedented powers to govern. Moreover, he was to do this secretly. And all of this was being done behind closed doors in the White House and Department of Justice. It was not only unknown to the public; it was unknown even to senior figures at Justice – Yoo’s superiors up the line.
There are many points remaining to be developed here, and with the inquiry now started, more information is likely to surface very quickly. But among the major issues, here’s an obvious question no one has asked which should be put plainly. Yoo reported to Jay Bybee, who headed the OLC during this period. How could he do what he did, as a “rogue operator,” without Bybee’s knowledge and consent? How could his memoranda be issued? Indeed, Bybee’s name appears on the repudiated torture memorandum, now widely viewed as the single most reprehensible document generated in the entire history of the Justice Department. Yet Bybee sits today as a judge in the Court of Appeals. How could this possibly be? Surely, it’s high time for an accounting from Judge Bybee for his conduct at the Justice Department. And an accounting is but the first step.
It’s worth noting at the outset that Newsweek has occupied the journalistic lead for three years in one particular arena: detailing the role played by the Department of Justice in the formulation of overall administration policy on counter-terrorism. Newsweek stories broke important angles of the “torture memoranda” and the internal dynamics within the Office of Legal Counsel and the White House that produced them. Similarly, the new, dramatic revelations concerning the late-night visit by Gonzales and Card to Ashcroft’s hospital bed actually appeared in a rather muted form in a Newsweek story published more than a year ago. The Administration has consistently cast aspersions on this reporting, but it has later always emerged as accurate, indeed in retrospect rather sedate and cautious. The entire Newsweek team is entitled to recognition for their efforts in this arena. In an era of infotainment and Paris Hilton, they remind us that the qualities of high journalistic professionalism have not disappeared entirely.