Vice

by Lou Dubose

  Two days later, Yoo wrote another memo, this time with Patrick Philbin, a fellow deputy attorney general. (Philbin would later have second thoughts about Addington and Cheney's executive power grab. As a result, although Alberto Gonzales, by then the attorney general, had tapped Philbin for the job of deputy solicitor general, Addington blocked the appointment.) The December 28 memo argued that non-U.S.-citizen detainees at Guantánamo would not have access to that most basic of American rights, habeas corpus, the right of an individual to appear before a judge after detention. Almost two weeks later, Yoo coauthored a memo with Office of Legal Counsel attorney Robert J. Delahunty, concluding that the Geneva Conventions and other international agreements against torture "do not protect members of the al Qaeda organization, which as a non-State actor cannot be a party to the international agreements governing war." Furthermore, if Congress acted to "restrict presidential authority" by legislating that the U.S. armed forces had to obey the Geneva Conventions, it "would represent a possible infringement on presidential discretion to direct the military." It didn't matter that Congress had ratified the Geneva Conventions; executive power superseded that authority. White House chief counsel Alberto Gonzales—whose legal experience as a transactional lawyer and short tenure on the Texas Supreme Court had not exactly prepared him for national security law—wrote a memorandum upholding Yoo's conclusions. (The Justice Department won't release the memo, but a draft copy is public.)

  The State Department had tried to rein the White House back into the international human rights standards that had been accepted for almost half a century. State Department counsel William Taft argued to Gonzales that if the United States used torture, then when American troops were captured, they could expect the same in return. Furthermore, torture would inflame anti-Americanism in the Muslim world. Addington was working overtime to marginalize or bully any lawyer at Justice or the National Security Council who might disagree with this new approach, but enough dissent existed for Gonzales to write Bush the memo on January 25 laying out the various arguments for and against whether the Geneva Conventions should apply to al-Qaeda and Taliban prisoners. On the side of the ledger against adhering to the Conventions, Gonzales added the federal War Crimes Act of 1996. The act provides for strict sanctions, including the death penalty, for American officials convicted of serious war crimes as defined by the Geneva Conventions. Gonzales argued that if they dispensed with the Geneva Conventions, technically there would be no war crimes.

  In February, Bush decided to split the baby. In a memo on February 7, he wrote, "I have the authority under the Constitution to suspend Geneva as between the United States and Afghanistan, but I decline to exercise that authority at this time." While declaring that al-Qaeda detainees did not qualify as prisoners of war under Geneva, he allowed that "as a matter of policy, the United States Armed Forces shall continue to treat detainees humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of Geneva."

  And yet, some time after the West Wing meeting that produced that memo, Dick Cheney and Donald Rumsfeld agreed to ignore the part about humane treatment. "In going back and looking at the deliberations, it was clear to me that what the president had decided was one thing and what was implemented was quite another thing," says Wilkerson. The policy would be implemented as Cheney had "briefed it" to the president.

  The message filtered down, and it was unmistakable to everyone from Army reservists to highly trained CIA interrogators. The results at Abu Ghraib were murder, rape, and a menu of sadistic acts that ranged from sexual humiliation to physical maiming. For CIA interrogators, it included, among other torture tactics, "waterboarding," a simulated drowning of the victim that is essentially a mock execution.

  "The complicity of everyone down the line was mind-boggling to me, including the commander in the field, Rick Sanchez," says Wilkerson. "In some cases, Rumsfeld would protect himself very carefully. For example, I have his memo with appendixes and annexes where he goes from A to double D, telling them what they can do. When you read this, you read for example, that dogs can be used but they have to be muzzled. Well, I'm a soldier. I know what that means to an E-6 [noncommissioned officer] that is trying to question a guy and he's got a German shepherd with a muzzle on there. If that doesn't work, the muzzle comes off. If that doesn't work, you kind of let the dog leap at the guy and maybe every now and then take a bite out of him. It's a very careful crafting of a memo that would probably never get [Rumsfeld] in a court of law or get him convicted at the International Criminal Court, but it's damn sure apparent to me that things were different, things had changed. And I can't imagine Rumsfeld doing that without at least having his head covered by the vice president."

  In other words, Cheney not only had to know, he had to make it clear this was his and the president's policy.

  Six months after Bush's memo about humane treatment, the head of the Office of Legal Counsel, Jay Bybee, wrote what has become known as "the torture memo." Bybee today sits on the U.S. Court of Appeals for the Ninth Circuit as a Bush appointee. How much input Cheney and Adding-ton had into the document is unknown, but they would certainly have been aware of and had veto power over its contents.

  In order for it to qualify as torture, the memo said, "Where the pain is physical, it must be of an intensity akin to that which accompanies serious physical injury such as death or organ failure."

  Short of homicide, everything was fair game.

  Shrouded behind his antipathy toward congressional prerogatives is a little-known fact about Dick Cheney. When it comes to lobbying the Hill, he is one of the Bush administration's most effective weapons. Consistently, it is Cheney, as negotiator in chief, who has taken the lead role in binding GOP legislators to the White House. Even as this administration has drifted away from long-standing conservative principles like deficit reduction and limited government, the Republican Congress has meekly followed.

  As vice president, Cheney serves as the president of the Senate. While his main constitutional responsibility is to break tie votes, he has used his position to quietly insinuate himself into the very fabric of Senate deliberations and leadership. Cheney is a regular participant in the Senate GOP Tuesday meetings, where he mostly sits quietly and observes. When the White House refused to support Senate majority leader Trent Lott after he made a racist comment in 2002, Cheney didn't rise to the defense of his former House rival. Incoming Tennessee senator Bill Frist would be an infinitely more pliable leader for the White House, and thanks to the vice presidential search, Cheney already knew every skeleton that hung in Frist's closet. Yet Cheney's reach extends beyond S-214, his traditional ceremonial office in the Senate, and into areas of Congress where no vice president in American history has ever dared to tread.

  The Founding Fathers were quite explicit on the matter of how independent each branch of government should be from the other. Members of Congress cannot be employed by or receive benefit from the executive branch. While the vice president has a role in the Senate, there is no comparable position for a member of the executive in the House of Representatives. This is because the House was modeled after the British House of Commons, where the monarch has been unwelcome for four centuries.

  But shortly before President Bush's inauguration in January 2001, Speaker Dennis Hastert quietly, and without public notice, chucked aside 212 years of American tradition. He offered Vice President Dick Cheney a second office in the U.S. Capitol, on the House side. In the cramped domed building, workspace exists at a premium that would make even space-conscious New Yorkers wince. (In Manhattan, the average cost of real estate is more than a thousand dollars a square foot.) To make room for the vice president, Hastert ejected Representative Bill Thomas, chairman of the Ways and Means Committee, from part of his suite of committee offices just steps from the House chamber. Now, even in their own wing of the Capitol, when House members negotiate with Cheney, legislators come to him, and not the other way around.
"Offering office space to the vice president represented more than a breach in the symbolism concerning the powers and autonomy of the House of Representatives," notes Scott Lilly, a former House Appropriations Committee clerk. "Hastert's plan was to convert the House into a compliant and subservient role player inside the White Flouse political organization."

  Hastert succeeded in placing party over principle.

  The vice president further cemented his influence by being attentive to the one thing that matters to congressmen above all: campaign cash. No one in the administration headlines more fundraisers for individual GOP members of Congress than Cheney. Strategically, this is understandable, but it's also tactically smart. Cheney knows better than anyone else the peril an emboldened Democratic Congress represents for a Republican administration. It boils down to two words: subpoena power. A Democratic Senate or House would allow Democratic committee chairs to subpoena documents (and individuals) that would reveal the workings of the Bush-Cheney administration. Every fundraising event Cheney attends not only helps keep Congress under GOP control, it's an individual chit waiting to be called by the vice president at the appropriate moment. Still, despite Cheney's considerable pull in Congress, when it came to the issue of torture, in 2005 the vice president finally hit a wall of immovable moral authority even he couldn't push through head-on.

  As the pictures from Abu Ghraib and other details of detainee abuse filtered out, Arizona Republican senator John McCain experienced an almost visceral reaction. Shot down over Vietnam in 1967, McCain spent five and a half years as a prisoner of war, most of it in the infamous "Hanoi Hilton" prison camp. When his captors discovered that he was the son of the admiral in charge of the Pacific Command at the time, the North Vietnamese offered him freedom if he would cooperate in their propaganda efforts. McCain refused and was repeatedly tortured, leaving him physically incapacitated for life.

  The senator knows from experience that torture doesn't work. At one point during his captivity, the North Vietnamese tortured McCain for the names of the members of his flight squadron. Under the physical abuse he "confessed" and gave them the Green Bay Packers' offensive line instead. McCain also understands how devastatingly corrosive government-sponsored torture is to the standing and authority of the United States government both at home and abroad. He would write in an article for Newsweek: "What I do mourn is what we lose when by official policy or official neglect we allow, confuse or encourage our soldiers to forget that best sense of ourselves, that which is our greatest strength—that we are different and better than our enemies, that we fight for an idea, not a tribe, not a land, not a king, not a twisted interpretation of an ancient religion, but for an idea that all men are created equal and endowed by their Creator with inalienable rights."

  In the summer of 2005, McCain offered several bills to prohibit torture by U.S. forces. For the next six months, Dick Cheney would tenaciously fight to defeat them. Cheney started his campaign with two meetings in July, including a thirty-minute nighttime session with the most powerful Republican members of the Armed Services Committee: McCain, Senator Lindsey Graham of South Carolina, and the chairman, Senator John Warner of Virginia. The vice president was explicit in making the case that if McCain's amendments passed, they would encroach on the authority of the president and make America more vulnerable to attacks by terrorists. His arguments failed to convince. A steady, sickening barrage of evidence of abuses spoke louder.

  On October 5, McCain attached an anti-torture amendment to a $440 billion defense appropriations bill. The amendment prohibited cruel, inhumane, and degrading treatment of prisoners held in detention by the U.S. government. It also decreed that the Army Field Manual would be the uniform standard for the interrogation of Department of Defense detainees. The field manual was at that time going through revisions, and Pentagon sources had said that it would include a section on the importance of following the Geneva Conventions in the treatment of prisoners.

  On the floor of the Senate, McCain read a letter from the now retired Colin Powell. Under Powell, the State Department had fought Cheney on torture. As with most of his battles against the vice president, Powell had lost. "Our troops need to hear from Congress," he wrote. "The world will note that America is making a clear statement with respect to the expected future behavior of our soldiers."

  The Senate passed McCain's amendment by a vote of 90 to 9.

  But it wasn't to be that clear. Cheney wouldn't give up. The White House threatened to veto the bill, which would have been Bush's first veto ever. The vice president reportedly circulated pro-torture talking points to friendly Republicans on the Hill. A few weeks after the Senate vote, Cheney approached McCain again, this time with the hapless new CIA director Porter Goss in tow. As chairman of the House Intelligence Committee, Goss had refused Democratic pleas to hold hearings on the Valerie Plame case. His appointment to head the CIA set off an exodus of talented senior staff officers who recognized they had far better prospects in the private sector than in an agency that was beginning to suffer from institutional battered-spouse syndrome. By the end of his tenure in 2006, Goss was spending more time at his farm in Virginia than in the office at Langley as he waited for his inevitable departure. At the meeting with Cheney, the CIA Director asked McCain to exempt agency personnel from his anti-torture amendment when the president believed such procedures were necessary. McCain refused.

  In what should be ranked as one of the more distinguished moments in American journalism since Bush and Cheney took power, editorial writers from Anchorage to Miami condemned in the strongest possible terms the administration's practice of torture. Public opinion began to have an effect even on the ostrichlike Republican House. On November 4, the House leadership postponed a vote on a resolution endorsing McCain's amendment after they realized the measure would pass overwhelmingly.

  A few days earlier, Cheney had taken a last run at Senate Republicans. During the Tuesday meeting, he had Senate staffers leave the room before giving what was described to reporters as an impassioned plea to let the CIA torture when necessary. The president needed the flexibility. If the Senate moved forward on the amendment, it could result in the loss of "thousands of lives," he said. As part of his argument, Cheney pointed to the capture of al-Qaeda leader Khalid Sheikh Mohammed. Aggressive interrogations of Mohammed had led to important disclosures, he insisted.

  Cheney didn't tell the senators anything about Mohammed's wife—or his son and daughter, ages seven and nine. They were also in custody and interrogators had told Mohammed they would be harmed if he didn't talk. Cheney didn't convey to the senators that rather than make Mohammed more talkative, the threats and the torture seemed to harden the terrorist. He likely didn't tell the senators about Abu Zubaydah and Ibn al-Sheikh al-Libi, two midlevel al-Qaeda leaders who gave false and misleading information under torture. (They started torturing Zubaydah, who suffered from split personality disorder, in May 2002. Made to think he was going to be killed, he reeled off lists of targets—supermarkets, banks, shopping malls, apartment buildings—with each new disclosure sending the U.S. government scurrying in fear to safeguard sites that defied protection.)

  At the meeting, McCain challenged Cheney, saying, "This is killing us around the world."

  By the middle of November, Cheney stepped away from trying to negotiate with McCain. Bush tapped National Security Advisor Stephen Hadley to continue discussions with the senator in Cheney's place. On December 15, the House passed its resolution in support of McCain's amendment 308 to 122. The next day, Bush met with McCain in the Oval Office. Cheney was not there. In a startling reversal, Bush endorsed the McCain amendment. In exchange, the senator agreed to language that would allow intelligence officers to present a defense that a "reasonable" person could conclude they were following a lawful order. The media billed it as a major setback for the vice president.

  Three days later, an unbowed vice president gave a startling interview to Nightline's Terry Moran. When asked where the president
drew the line on torture, Cheney said the rule, according to court decisions, was "whether or not it shocks the conscience."

  Here was how Cheney could say with a straight face that America didn't torture: "Now you can get into a debate about what shocks the conscience and what is cruel and inhuman. And to some extent, I suppose, that's in the eye of the beholder."

  There he was, Dick Cheney, nakedly amoral, and driven by fear: "We think it's important to remember that we are in a war against a group of individuals, a terrorist organization that did in fact slaughter three thousand innocent Americans on 9/11; that it's important for us to be able to have effective interrogation of these people when we capture them," Cheney continued.

  Unspoken was the concern that 9/11 was just a beginning, a prelude to much more terrifying attacks—a dirty bomb, poison gas in a subway, the release of a biological agent—in which as many as half a million could die. Future attacks could visit a degree of death on America not seen since the Civil War. It wasn't a matter of if as much as when. The fear of the big attack gave birth to a new doctrine. Ron Suskind, in his remarkably insightful book The One Percent Doctrine, describes the epiphany Cheney experienced: "If there was even a one percent chance of terrorists getting a weapon of mass destruction—and there has been a small probability of such an occurrence for some time—the United States must now act as if it was a certainty." It was prevention based on suspicion, dealt with by the application of overwhelming blunt force. The end justified any means necessary. It didn't matter how effective torture was as long as it provided even a remote chance that it might save American lives.

  "That one percent drove Cheney and Bush nuts," says Wilkerson. "In certain respects, they became paranoids, willing to sacrifice every element of our civil liberties, even our republic, to save the republic."

  A lifetime of experience had influenced the development of Cheney's new doctrine, not just the events of 9/11. Dick Cheney had thought about worst-case scenarios for almost half a century. What else would make a young man who supported the Vietnam War seek five deferments to avoid it, other than a fear of a personal worst-case scenario? Cheney's first heart attack at thirty-seven brought him face to face with his own mortality. As vice president, he lives with it ever)7 day. A device implanted near his heart keeps him from sudden death. An ambulance trails him wherever he goes, as does a team of the most sophisticated armed guards on the planet. He travels with a bioterrorism suit in case of an attack and spends time in undisclosed locations deep underground, practicing for Armageddon.