When President Bush nominated Michael Mukasey as attorney general his distinguished career was offered as guarantee of his integrity and independence. A former federal district judge, senior partner at a major law firm and former assistant U.S. attorney, well known and widely respected by the New York bar, he appeared to have the experience and balance needed to restore trust to the battered Justice Department. The previous attorney general, Alberto Gonzales, had been an eager plaything of the White House, a factotum from Texas who faithfully followed orders to politicize and purge for partisan purposes. While Mukasey espouses conservative views upholding an expansive interpretation of the executive, and argues that warrantless domestic surveillance is therefore justified, Democratic senators on the Judiciary Committee were still willing to give him the benefit of the doubt.
Then Mukasey was questioned about whether waterboarding -- a technique of forced drowning first used in the Spanish Inquisition and by orders of the Bush administration applied to accused terrorist detainees -- is torture. At great length, the nominee feigned lack of knowledge: "I think it would be irresponsible of me to discuss particular techniques with which I am not familiar when there are people who are using coercive techniques and who are being authorized to use coercive techniques. And for me to say something that is going to put their careers or freedom at risk simply because I want to be congenial, I don't think it would be responsible of me to do that." Questioned further, he said, "If it amounts to torture, it is not constitutional." But he would not say whether it was torture.
All 10 Democratic senators on the committee sent Mukasey a letter asking him to clarify whether waterboarding is torture. On Oct. 30, the nominee replied in four convoluted pages. He called waterboarding "over the line" and "repugnant" on "a personal basis," but adopted the lawyerly pose that it was merely an academic issue: "Hypotheticals are different from real life and in any legal opinion the actual facts and circumstances are critical."
Mukasey's retreat into abstraction, however, did not shield him from controversy. On the contrary, Democratic senators on the committee now declared that his nomination was in jeopardy. With his deliberately opaque replies, Mukasey had failed to protect himself, but instead in a stroke exposed himself to rejection. He did not suddenly find himself in trouble because he was an outsider to Washington. Nor had he committed a gaffe or a slip of the tongue, or displayed strange behavior. The nominee who was to be the break from Gonzales was acting remarkably like Gonzales.
Mukasey is not a free agent. He had been strictly briefed and in his testimony was following orders. He has avoided calling waterboarding torture because that is consistent with the administration's position and past practice. Mukasey's refusal to disavow waterboarding reveals his acceptance of his assignment to a secondary role as attorney general, an inferior agent, not a constitutional officer, to certain political appointees in the White House.
Those who are responsible for waterboarding have defined and dictated Mukasey's evasions. His acquiescence demonstrates that no one in his position could take a contrary view to that of David Addington, Vice President Cheney's former counsel and now chief of staff, who directed and coauthored the infamous memos by former deputy assistant director of the Office of Legal Counsel John Yoo justifying torture, and charged the current acting director of OLC, Stephen Bradbury, to issue new memos rationalizing it.
Addington is the reigning legal authority within the administration, presiding over the attorney general no matter who would fill the job. Addington rules by decree and tantrum, intolerant of any alternative opinion, which he suppresses with intimidation and threat. Gonzales, as White House counsel and then attorney general, was the marionette of Karl Rove and Addington. Rove is gone, but Addington remains.
In his confirmation hearings, Mukasey has proved he will dance as the strings are pulled. His positions on waterboarding express precisely the relationship between the Bush White House and its Justice Department. Mukasey's testimony telegraphs that the White House will continue to call the shots. He has already ceded the essence of his power even before assuming it. His vaunted integrity and independence have been crushed, short work for Addington.
Addington's dominion over the law -- controlling the writing of the president's executive orders and the memos from OLC, the office of the White House counsel and the carefully placed network of general counsels throughout the federal government's departments and agencies -- is a well-established and central aspect of Cheney's power. Addington has been indispensable to the vice president since he served as his counsel on the joint congressional committee investigating the Iran-Contra scandal, when Cheney was the ranking minority member. In that capacity, Addington wrote, under Cheney's signature, the notorious minority report that was an early clarion call for the imperial presidency.
Addington and Cheney's report decried Congress for its "hysteria" over the Iran-Contra scandal, which involved the selling of missiles to Iran to finance arms for the Nicaraguan Contras against explicit congressional legislation. The Constitution, they argued, "leaves little, if any doubt that the president was expected to have the primary role of conducting the foreign policy of the United States." They added: "Congressional actions to limit the president in this area therefore should be reviewed with a considerable degree of skepticism. If they interfere with the core presidential foreign policy functions, they should be struck down."
The Cheney minority report was the doctrinal basis for the Bush presidency: the unitary executive, the commander in chief ruling in wartime by fiat and, ultimately, torture being defined as whatever the president, not the Geneva Conventions, said it was. Addington's authorship of the Cheney Iran-Contra report was largely overlooked until fairly recently, but his deeper connection to that scandal and its resonance have received little attention.
In the 1980s, Addington, then in his 20s, served as deputy counsel to CIA director William Casey, the moving force behind the Iran-Contra affair and the most powerful figure in the Reagan administration after the president. Along with other hotshots in the counsel's office, Addington was part of what became known within the agency as the "Lawless Group," named after Richard Lawless, a CIA operative who was a close assistant to Casey, according to a former senior CIA official. After Casey's death, Rep. Dick Cheney co-opted the "Lawless Group," putting its members in key positions when he was secretary of defense during the first Bush administration and vice president in the second. (Lawless, for example, after working as Jeb Bush's business partner, served as deputy undersecretary of defense, retiring this past April.)
"A lot of the decisions on Iran-Contra were signed off by the counsel's office," a longtime senior CIA official told me. "It was not a renegade operation. It had lawyers, just like now. Everything they were doing was run by the general counsel's office and Addington was deputy. You may draw your own conclusions, as the Russians say." In fact, the role of the counsel's office surfaced in the trial of Alan Fiers, the CIA agent in charge of the Central American Task Force, who pleaded guilty to misleading Congress. But that role was never investigated or ever really reported.
"These guys don't like the mainstream CIA. In fact, they hate it," the CIA official explained. "They don't like information unless it fits what they want to hear. They hate the CIA because the CIA tells them what they don't want to hear. They want assessments that prove ideological points. They are looking for simplistic answers to complicated issues. They inhabit a make-believe world of moving up into perceived areas of expertise. It's the same guys; they all resurface when Republicans are back in power. It's the same group. It's a system. The similarities are amazing in all these wars we've been dragged into."
Casey is the half-forgotten forefather of the radical Bush presidency. A clandestine agent of the Office of Strategic Services during World War II, the intelligence group predating the CIA, Casey became a wealthy and politically influential lawyer. He was among the original godfathers of the conservative movement, serving on the board of the right-wing Regnery publishing house, operating as financier of William F. Buckley Jr.'s National Review and founding conservative think tank the Manhattan Institute.
An avid supporter of Richard Nixon's, Casey was appointed chairman of the Securities and Exchange Commission and president of the Import-Export Bank. Casey regarded the Watergate scandal as a mere political attack, "political shenanigans," as he described it to Nixon in a private letter in May 1973. In 1980, Casey was director of Reagan's campaign. After the election he wanted to be named secretary of state, but settled for CIA director.
"By God, we've got to get rid of the lawyers!" he told William Webster, Reagan's FBI director. Tim Weiner, in his newly published history of the CIA, "Legacy of Ashes," writes, "Like Nixon, he believed that if it's secret, it's legal." "Casey was an inappropriate choice," said former CIA director George H.W. Bush.
Casey conducted his own foreign policy, relying on secret methods and men of action. His rival, Reagan Secretary of State George Shultz, remarked, "The CIA's intelligence was in many cases simply Bill Casey's ideology." "Casey had made of himself a clandestine secretary of State," wrote his biographer Joseph Persico in "The Lives and Secrets of William J. Casey: From the OSS to the CIA." "His involvements in Afghanistan, China, the Philippines, Iran, and Central America had not been simply those of a spy chief but those of a covert foreign minister."
Casey chose Lt. Col. Oliver North to run the covert Contra operation and suggested to him plans for illegal supply in violation of the Boland Amendment and how to use a middleman for selling arms to Iran. The final report of the joint congressional committee on the Iran-Contra scandal concluded: "We believe that the late Director of Central Intelligence, William Casey, encouraged North, gave him direction and promoted the concept of an extra-legal covert organization." "The person who managed this whole affair was Casey," said Abraham Sofaer, then the State Department's counsel.
Before congressional committees, Casey falsely testified that the CIA was unaware of the shipment of missiles to Iran. His perjury was exactly the same as that of then National Security Advisor John Poindexter, on the same question, and it is likely he would have been indicted, faced trial and been convicted, like Poindexter. Casey's then deputy, Robert Gates, now secretary of defense, said, "Casey was guilty of contempt of Congress from the day he was sworn in." Adm. Bobby Inman, who preceded Gates as deputy, had resigned because, he said, "I caught him lying to me in a number of cases." Inman's immediate successor as deputy, John McMahon, quit after opposing the Iranian arms deal. After a week of mumbling appearances before Congress, Casey collapsed from a cancerous brain tumor and died.
Casey's closest aides -- including the Lawless Group -- scattered. Cheney promptly hired Addington. As his counsel, Addington attacked the investigation, defended the administration and covered up his own involvement in the Casey operation. One former prominent Democratic Senate staff member who had directed the probe told me that the Democrats were unaware of Addington's link to Casey. If they had been they would have raised it as a dangerous conflict of interest and demanded that he be removed. "Addington never should have been permitted to work on the committee," he said. "But no one paid attention to his background. It wasn't important."
Cheney's defense of Casey's actions as written by Addington in the minority report became the core of the Bush doctrine: The president as commander in chief can do whatever he wants regardless of Congress. There must be no checks and balances, no accountability. There must be no disclosure to other branches of government, whether legislative or judicial. Oral findings, or, if necessary, secret memos, make the illegal legal merely by saying they are legal in the name of presidential authority. The operational need to know determines who knows.
Now Mukasey, who was supposed to restore credibility to the Justice Department, has been transformed overnight into a cog in the machine, another servant to his masters, Addington's apologist. His brief tragedy is just one small outcome of a long history. The almost instantaneous tainting of his reputation should have been understood from the start as inevitable.