Sunday, May 27, 2007

The trouble began shortly after 9/11, when the administration began looking for tough measures to head off another terrorist attack. The Justice Department has a relatively obscure department known as the Office of Legal Counsel. Typically staffed by brilliant young lawyers, the OLC opines on the legality and constitutionality of administration policies. One of the stars of OLC was a cocky young lawyer named John Yoo. After 9/11, Yoo began writing opinions giving the administration exceptional latitude to fight terrorism. Yoo's memos were used to justify both the secret eavesdropping program, which for the first time allowed the government to listen in on American citizens without obtaining a court warrant, and aggressive interrogation methods, like water boarding.

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. (Yoo declined to respond on the record, but he has told others that Ashcroft was fully briefed by him and approved his memos, and that his critics are now engaged in creative "Monday-morning quarterbacking.")

The bad feelings seemed to come to a head in 2003, when there was a vacancy to head OLC. At the White House, Gonzales wanted Yoo, and was so insistent that he took the matter to Bush. According to the former Ashcroft aide who did not want to openly discuss matters involving the president, Bush was surprised to learn that Ashcroft opposed Yoo as a renegade. A compromise was reached: a conservative lawyer named Jack Goldsmith was put in charge of OLC.

But the fight was really just beginning. Carefully reviewing Yoo's carte blanche memos, Goldsmith became convinced that the Justice Department had been signing off on memos approving initiatives, like wiretapping and water boarding, that were not legally supportable. Goldsmith took the matter to Ashcroft's deputy, Comey, and to Patrick Philbin, Comey's No. 2. Philbin's sterling conservative legal résumé tracked Yoo's—they had both clerked for Justice Clarence Thomas at the U.S. Supreme Court. But Philbin and Goldsmith were adamant. The Justice Department could no longer sign off on the wiretapping program, which had been expanded to wiretap more U.S. residents. "This was not ideological," recalled a former Ashcroft aide. "This was about the difference between pushing the limits to the edge of the line and crossing the line."