- 7 months ago
How Vice President Dick Cheney pulled levers of power to give the presidency extraordinary executive power in times of war, even without the approval of Congress or review from the court system.
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00:30And additional funding from the Park Foundation, committed to raising public awareness.
00:43Tonight on Frontline, the battle over the power of the presidency
00:47and a new way of looking at the Constitution.
00:51They believe that the president could do as he liked, even if Congress,
00:56even if the Supreme Court said he couldn't.
00:58For three decades, Vice President Dick Cheney led a secretive and bitter behind-closed-doors battle
01:05to restore presidential power.
01:08He believes that the president should have the final word, indeed the only word,
01:12on all matters within the executive branch.
01:14After 9-11, there were enhanced presidential powers
01:18to detain, render, interrogate, wiretap.
01:23Mr. President, it is time to have some checks and balances in this country.
01:29It's a direct showdown constitutionally between the president and Congress.
01:34The latest clash is over secret Justice Department findings,
01:38authorizing the CIA to engage in the harshest interrogation techniques ever.
01:42Mr. President, we are a democracy.
01:45The Frontline goes inside the efforts to rewrite the rules
01:49to enhance the power of the presidency.
01:53Tonight, Cheney's Law.
01:55The Frontline, Cheney's Law
02:14in Washington there's so many people who will say he's not the same man as I used to know
02:28there's a lot of speculation among his friends did he change that I change what happened here
02:34why do we see the world so differently when we once saw it so similarly
02:37Cheney is regarded as a pretty reasonable even-handed yes conservative but somebody
02:51you can work with what people miss is that he's an absolute fanatic about executive power
02:57I Richard Bruce Cheney do solemnly swear that I will support and defend the Constitution of the
03:03United States against all enemies foreign and domestic so help me God congratulations
03:08right around inauguration day Dan Quayle went to see Dick Cheney and he said you know Dick you're
03:18going to be doing a lot of traveling and going to a lot of funerals a lot of fundraisers you're
03:23going to be doing the things that presidents don't want to do and that your president doesn't want to
03:28and Cheney just looked at him with that little half grin and raised his eyebrow and said I have
03:35a different understanding with the president the understanding was that the vice president would
03:41be the central player in the new administration and do everything he could to enhance presidential
03:47power they came in spurred by Dick Cheney to have an enlarged sense of the presidency to have a pension
03:55for secrecy to basically have a view that the Congress in effect works for us not with us that
04:02we're the lead branch not a not a co-equal branch and from the beginning the vice president set the
04:08style secrecy Vice President Cheney is an extremely secretive public official he himself doesn't write
04:14things down doesn't use email because he doesn't want to even raise the possibility his actions could
04:20someday be exposed which would then constrain what he wants to do now executive privilege was also an
04:27issue in the vice president's energy gas through the years Cheney's penchant for secrecy would cloak
04:32bold assertions of executive power and broad claims of executive privilege in an ongoing war with Congress
04:39tries to get testimony white house training had learned some hard lessons early in his political career
04:45he has been watching presidents for three decades it began at the end of the Nixon administration 33
04:57year old Dick Cheney saw it firsthand he viewed the searing moments of the Nixon administration which
05:04he was there at the in the front seats for as a diminution of what the president ought to be then in
05:111975 he became president Ford's chief of staff Dick Cheney was then about in his mid-30s for the first time in
05:19his life really having substantial amount of power and and responsibility Cheney watched Congress assert
05:28its authority over the president you have a wave of congressional investigations certainly appears to
05:35violate the Constitution and Cheney is trying to fight off these investigations
05:41he's talked about how Congress unduly burdened the president and in a way that he believed was
05:46unconstitutional believe that that's the way and Dick came out of that absolutely committed to the
05:51idea of restoring the powers of the presidency then in the 1980s Cheney went to Congress we have a bit
05:58of a tendency in the Congress to act as if we're the fount of all political virtue in the society and
06:02obviously we're not he found himself surrounded by Democrats determined to limit Ronald Reagan's powers
06:08amount of ambivalence to all of these proceedings Cheney said Reagan didn't need Congress's approval to
06:13fund the Contras through a back door I think it was perfectly acceptable for the president to
06:18encourage you the cause of the Contras at that time Cheney met David Addington one of the few
06:24staff lawyers who shared his views on executive power David Addington is an extremely intelligent
06:31extremely forceful individual he first entered the government and I believe the late seventies when
06:37he worked as a lawyer in the CIA he has very firmly held views and very well grounded views on a lot of
06:43issues you know Cheney is not a lawyer so what he finds in Addington is someone who can argue it in a
06:49way that can hold sway in the room I mean he's got a lawyer now who can say it's constitutional and so it
06:56becomes a very powerful duo at that point and they stayed together ever since together Cheney and
07:05Addington brought their ideas to the Defense Department in the first Bush administration will
07:10not stand this aggression against Kuwait as Secretary of Defense Cheney argued the president should not
07:17seek congressional authorization for the Gulf War and the leadership in Congress generally was telling the
07:24first president Bush you have to get permission from Congress to go into the Gulf War the president
07:29didn't think that was the case he resisted it I argued that we did not need congressional authorization
07:35and that legally and from a constitutional standpoint we had all the authority we needed
07:39Secretary of Defense Cheney's advice was that it was unnecessary and imprudent unnecessary because the
07:46Constitution did not require it imprudent because Congress might say no if we lost the boat in the
07:53Congress I would certainly recommend to the president we go forward anyway in the end Cheney's view did
07:58not prevail the president agreed to a congressional vote this vote the yeas are 52 and the nays are 47
08:06as the first Bush administration ended Cheney and Addington headed to the private sector they waited
08:15for a future president one more receptive to their ideas the David Addington Dick Cheney are true believers in
08:24what they're saying they not only believe that the president has these powers that the president has
08:30effectively unlimited powers as commander-in-chief but that he has to that if he doesn't that this
08:37country will be at grave risk I believe you're looking at the next vice president of the United
08:42eight years later Dick Cheney found a willing partner I think something the president's bought
08:47into to change for help to persuade him absolutely but is the president now persuaded absolutely and I
08:53think he's now a devote devotee of expanded executive power the new president brought some of his own
09:01people to the task one of them was his top lawyer Alberto Gonzalez Bush calls him Fredo he's intensely
09:11loyal he was a justice on the Texas courts he'd actually ruled favorably on several important cases for
09:19Bush they all like him he's the judge yeah they call him the judge inside the White House nice fella
09:26but he's not exactly a heavyweight Gonzales had virtually no experience in matters of constitutional
09:35law executive power or national security but David Addington did and he was the vice president's
09:44lawyer David Addington was someone who had experience in all of the matters that Gonzales initially did
09:51not have experience in I think it's fair to say that that Cheney's lawyer Addington dominated Bush's
09:57lawyer Alberto Gonzales in other presidencies that that I've covered anyway most of the center of the
10:05action is in the president's office it's in the Oval Office or maybe even the White House counsel's
10:10office but the strange thing about this administration is all of the most crucial decisions seem to be
10:16taking place in the vice president's office or even the vice president's counsel's office
10:20but then something happened they could not have imagined September 11th police operators we have the emergency
10:29I think 9-11 is a moment of preparation meeting opportunity
10:45after 9-11 essentially you know it's a whole nother world
10:54the secret service took the vice president to a secure room deep under the White House
11:00meanwhile the rest of the staff was hurriedly evacuated one of them was David Addington
11:06David Addington was evacuated so he started walking home about to cross into Virginia when his cell phone
11:15finally starts working again he gets a call from the White House and the message is turn around come back the vice
11:21president needs you it's not the place to be but you have to be here
11:26Addington walked back to the White House and the secret service took him down to the bunker
11:31what Cheney does at that moment is say that we will probably have to be a country ruled by men rather than
11:41laws in this period so on the very morning of 9-11 Dick Cheney is turning to his lawyer and saying
11:50what extraordinary powers is the president going to need to meet this threat
11:55they wanted to gather as much power for the president as possible
12:04they would need the legal backing of the justice department
12:09the first calls were critical
12:12the meetings and conferences were initially done by video phone that each of the you know national
12:18security agencies have the capability to link to each other and these locations by high-speed
12:26communication networks John you a 34 year old lawyer was on emergency duty at justice he had earned his
12:34conservative credentials as a clerk for Supreme Court Justice Clarence Thomas and at the Federalist Society even
12:40before I had gone to the Justice Department I had read every previous authorization ever written by Congress in wartime and every
12:47declaration of where I served my field the White House needed John you to authorize emergency presidential powers
12:54I didn't have the feeling that we were going to start we're entering uncharted territory
13:01John you very quickly begins to be the go-to guy at justice who is willing to say yes to everything that the vice president
13:08and addington are asking him to do he had views about legal issues that they found congenial and he was
13:16very very knowledgeable and he was very fast so I think he was a very important player
13:21John you worked in one of justice's most powerful departments the office of legal counsel the OLC
13:28OLC the office of legal counsel is the most important government office you've never heard of people who've headed that office in the past have gone on to be on the Supreme Court
13:38Justice Rehnquist Justice Scalia it is a tiny little sort of mini Supreme Court that passes legal judgment on whatever the administration wants to do
13:50At the OLC John you with the input of Addington and the White House counsel's office drafted his
13:58first piece of legislation it's extremely broad statute and it says use all necessary means to stop future terrorist attacks and to you know find those responsible for the past attacks
14:09find those responsible for the past attacks
14:16on Friday September 14th with John use proposed legislation in hand the administration reluctantly made a political gesture
14:26they asked Congress to approve the measure the White House tries at some point to see if they can get Congress to go along with giving them complete power to wage the war on terror globally against anybody that they deem to be
14:38a terrorist and the key area that they want is that the president can use wartime authority very very broadly constructed in the United States
14:51but the Democrats weren't disposed to grant such sweeping presidential authority and they controlled the Senate
14:57Congress had experienced going back to the Gulf of Tonkin resolution a series of yielding power that made them a little bit chastened about how far they wanted to go
15:07they saw it as completely unchecked authority for the president to take any military action anywhere in the world
15:14and Congress rejects this and says no we're not going to go quite that far
15:20it was exactly what Cheney and Addington feared Congress limiting the president
15:26and so Cheney and Addington and others sit down after that and say well we shouldn't have to go to them we're in a state of emergency we need to do what's needed
15:39the White House then secretly asked the Justice Department for another legal memo
15:45That day at the Justice Department John Yoo went to work
15:52The Justice Department had long thought that Congress cannot limit the commander in chief power that Congress cannot tell the president how to exercise his judgment as commander in chief
16:04The secret memo was officially signed by John Yoo 11 days later
16:09The president has broad constitutional power to use military force
16:14The laws they were written and the Constitution that we have gives the president a lot of power in wartime
16:19and the president is the commander in chief
16:21These decisions under our Constitution are for the president alone to make
16:25The truly remarkable thing about the opinion
16:28It went beyond the idea that the president didn't need Congress' authorization
16:33and said that there was nothing that the Congress could do to stop the president from doing these things
16:38That was the remarkable part of the opinion
16:40So what Congress took away the Justice Department gave
16:44The president was told he now had the authority to use virtually any means necessary
16:50Anywhere against any enemy
16:53As long as the nation was at war
16:56If you were president of the United States
16:59I think you personally would want to make certain
17:03That you had done everything you could
17:06To prevent another catastrophic act of terrorism
17:10This act will not stand
17:12We will find those who did it
17:14We will smoke them out of their holes
17:16Within days of 9-11
17:18It became clear to insiders that there was going to be war in Afghanistan
17:23Then pretty soon people started asking themselves
17:26What are we going to do with all the people we start picking up on the battlefield?
17:30The problem fell to Alberto Gonzalez
17:33Who handed it off to an official at the State Department
17:36A week after September 11th
17:38I was in the White House meeting with
17:40Then the White House counsel Alberto Gonzalez and David Addington
17:45Pierre Richard Prosper was Colin Powell's war crimes ambassador
17:50And because of my background having been a war crimes prosecutor in Rwanda
17:56And having dealt with these issues
17:58It was decided that I would lead an interagency group to look at this question
18:02Prosper brought almost two dozen lawyers from around the government to the State Department
18:07It's going to meet on the seventh floor of the State Department
18:11Around the corner from Colin Powell's office
18:13And they are going to come up with a recommendation
18:15For the president about how to handle these prisoners
18:19That put the problem on the table
18:21How are we going to deal with them?
18:23How can we prosecute them?
18:24What can we prosecute them for?
18:26And ultimately where will they be detained?
18:32But in the White House at the same time
18:35David Addington was initiating a secret process
18:38They knew exactly where they wanted to go
18:41They let the State Department group go and do its study
18:44And ponder all these great things
18:46But they decided to on their own in the back rooms
18:49Make the decisions on their own
18:51Cheney wants suspected terrorists
18:55Enemies of the United States
18:57To be held as far as possible
18:59From civilian courts
19:01And as far as possible from thick rule books and precedents
19:04Under the Uniform Code of Military Justice
19:06Ambassador Prosper's group handed in their report
19:10But while they waited
19:12Cheney and Addington quietly acted on their own plan
19:15First, they got the OLC to sign off on a presidential order
19:19Then they would outmaneuver others in the administration
19:23Addington and you discuss how they're going to create a military commission
19:29Almost no one else has consulted
19:31And Addington drafts a four-page text
19:36At their weekly lunch on November 13th
19:39In a small dining room just off the Oval Office
19:42The vice president delivered Addington's four-page document to the president
19:47We know from witnesses that Cheney walks in the room with a document
19:51We know he carries it back out with him afterward
19:54We know that it then changes hands four times
19:56Around the west wing of the White House
19:58Within an hour
20:00The document was ready for the president's signature
20:03What I remember is
20:05Standing in the staff secretary's office in the west wing
20:08With Stuart Bowen
20:10With final copies of the military order for the president to sign
20:16And being aware that he was about to leave the west wing for some trip
20:22In fact, I think we could hear the helicopter landing on the lawn
20:25As we approached the Oval Office
20:27And Bowen says, that's not the way it works around here
20:31The way it works around here is that every single person
20:34With the rank of assistant to the president
20:36Every one of them gets to look at this thing first
20:39Make their comments, sign off
20:41Then it goes to the president
20:43Bowen gets told, this can't wait
20:45This is urgent, this is secret
20:47The president's waiting for it
20:49He already knows it's coming
20:51The people involved in this did not want to wait
20:53For the president to get back from
20:55Whatever one or two day trip he was going on
20:57They felt it was important that the authority to create these commissions exist immediately
21:03And so Stuart and I went into the Oval Office
21:07Brought the order to the president
21:09He quickly reviewed it and put his signature on it
21:13And then headed off down the hallway with Andy Card and a couple of others to get on the helicopter
21:18President Bush has signed an order approving the use of a special military tribunal
21:23And it was only the latest of a series of dramatic changes
21:26The White House is defending President
21:28This is really to end run this process
21:29They don't even tell the lawyer for the national security staff, John Bellinger
21:34He finds out about it after the president has signed the document
21:38And Bellinger comes bursting into Gonzales' office saying
21:41What is this? I mean you didn't even tell me about an essential document
21:46That's really going to govern national security strategy after 9-11
21:51President Bush signed an order to allow special military tribunals to try
21:55The news breaks on cable television
21:57Colin Powell happens to be watching
21:59He's astonished by what he's just seen
22:02He picks up the phone to Prosper
22:05And he says what the hell just happened?
22:08We did have a conversation
22:11And I let him know
22:14I was in the dark
22:18Secretary of State Colin Powell
22:23National Security Advisor Condoleezza Rice
22:27And their lawyers had been kept out of the loop
22:30We are not going to call them prisoners of war
22:33These are killers
22:34These are terrorists
22:36At that point it seemed like the administration had decided that speed was more important than these other values
22:42And early on the imperatives to get things done trumped the normal processes of deliberation and consultation
22:51In the fall of 2002
22:53Conservative law professor Jack Goldsmith left the University of Chicago
22:57And joined the defense department
23:00I thought it would be an extraordinary opportunity to be in the middle of it
23:04They are not lawful combatants
23:06These are the worst of a very bad lot
23:09They are devoted to killing millions of Americans
23:11Within days the education of Jack Goldsmith began
23:15And perfectly prepared to die in the effort
23:17Late one night I got a call
23:19Telling me that a seat had opened up in a plane going to Guantanamo
23:23And of course I jumped at the opportunity
23:25And it happened to be my 40th birthday
23:29The plane flew directly to the Guantanamo Naval Air Station
23:33It was filled with lawyers including David Addington
23:36They had helped write the administration's rules governing detainees
23:40And now they wanted to see them in action
23:43We walked through one of the compounds that held detainees
23:47And they were kept in very close quarters
23:5020 men in these cage-like rooms
23:54Sort of staring at you and looking at you as if you were alien
23:58Or something worse
24:01I just had no sense of
24:04What they were or what they had done
24:06That summer the lawyers, Addington, Yu and others
24:10Had okayed tough new interrogation policies
24:14A delegation from the CIA and the military
24:18And a few other agencies
24:20Bring in John Yu to the White House
24:22And Addington is there and Gonzales is there
24:25And the question is what are going to be the limits legally on interrogation
24:30In this new kind of war that the president has declared
24:33That's the CIA he was asking
24:35Because they're the ones who have high value detainees
24:39You know people like Abu Zubaydah
24:41And you know who's the number three person in Al Qaeda
24:45Yu's new definition of torture was so narrow that it was almost impossible to commit the crime
24:52What that memo did was it defined torture down
24:55So that the only thing that really winds up being torture
24:58Is inflicting pain on someone in of an order that would be equivalent to organ failure
25:07And it has to be the intentional infliction of pain
25:11Because you could always argue
25:12Oh I didn't really mean for it to be so painful
25:15The document known as the Bybee memo
25:18Said the president could authorize whatever techniques were necessary to fight the war on terror
25:23Are we going to restrict ourselves to reading the Miranda rights
25:27Providing them a lawyer and right to remain silent
25:29And trying them in federal court
25:31Despite the fact that they must have knowledge
25:33Of the names of Al Qaeda operas who may be in the United States
25:36And in Western Europe
25:37And who are planning attacks on the United States
25:39I find it
25:40I don't find any reasonable alternative being proposed by critics
25:45And I think it's incumbent in this kind of war
25:47That we're still in the middle of
25:49That people who want to pursue a different policy
25:51Come up with what that policy ought to be
25:55The same day they flew to Guantanamo
25:57Jack Goldsmith and the lawyers also flew to see other detainees
26:01American citizens
26:03Being held solely on the order of the president
26:06In South Carolina, Jose Padilla
26:10In Virginia, Yasser Hamdi
26:12Both were being held in solitary confinement
26:16With no access to lawyers
26:18I was just moved at the time to think
26:20That there's something not quite right about this
26:22Even though we had the legal authorities
26:24To detain people that maybe this isn't the right way to go about it
26:27The circumstances and conditions of detention should be different
26:31Back in Washington, Jack Goldsmith was spending a lot of time with John Yu
26:40I saw John a lot when I worked in the Department of Defense
26:46We were close friends, we did things together
26:48We went to dinner, we played squash
26:50Goldsmith and Yu were rising stars in conservative legal circles
26:55Even co-authoring a magazine article
26:58But in the spring of 2003
27:01John Yu's Justice Department career was about to end
27:05It happened when the head of OLC resigned
27:09And John Yu didn't get the job
27:12We had lunch the very day that he got the news
27:16That he wasn't going to be the head of the Office of Legal Counsel
27:19The idea of promoting Yu had been strongly supported by David Addington and Alberto Gonzalez
27:24But Attorney General John Ashcroft wouldn't hear of it
27:28Ashcroft could see that his own guy was really not his guy after all
27:33It was the Vice President's guy
27:35And it irritated Ashcroft that Yu was in effect going behind his back
27:39John Ashcroft referred to John Yu as Dr. Yes
27:42For what he saw as excessive accommodation of White House demands
27:47Chaney, Addington and Gonzalez needed someone they could trust at OLC
27:53Yu recommended Jack Goldsmith
27:55They liked the idea
27:57Goldsmith promised Ashcroft he'd keep him in the loop
28:01And by October, Jack Goldsmith was sworn in as the new head of OLC
28:07I was extraordinarily naive
28:09I had a sense that this was an important job
28:12I had a sense that it was heavily involved with the war on terrorism
28:16I did not have a full sense of the nature of the issues or the pace
28:26Car bombs exploded in Baghdad
28:28Another deadly car bombing
28:30As the insurgency began to engulf Iraq
28:34The Vice President and David Addington wanted to get tough with the terrorists
28:39In order to do so
28:40They had to make the case that the Geneva Convention did not apply
28:45There was a tremendous fight going on about whether or not
28:49In Iraq the Geneva Conventions should apply to all detainees
28:55While they waited for a decision from Washington
28:57Some commanders in Iraq were pushing the limits of coercive interrogation
29:01The White House legal team
29:04Who were used to quick and supportive decisions from the OLC
29:08Wanted Goldsmith's approval in a hurry
29:10It was Goldsmith's first week on the job
29:13Article 4, persons protected by the convention
29:16Are those who at a given moment
29:18And in any manner
29:19It wasn't a terribly easy issue
29:20But after my own research
29:22I concluded that for Iraqi citizens in Iraq
29:27Even if they were terrorists
29:28That they received Geneva Convention protections
29:31Goldsmith decided to deliver the bad news in person
29:35He drove the six blocks to the White House
29:37With Deputy Attorney General Patrick Philbin
29:40And on the way over there
29:41He said to me
29:43They're going to be mad
29:44They've never been told no before
29:47And he was right
29:48I announced the conclusion
29:53Gonzalez asked me three or four questions
29:55I walked him through the legal analysis
29:57He didn't ask me any questions after that
30:00I received my first broadside from David Addington
30:03And Addington has thought it through
30:06He's ready for the fight
30:08And it is a fight
30:10Addington angrily argued
30:12An earlier presidential decision denying Al Qaeda
30:16Geneva protections
30:17Should apply in Iraq
30:20I was a little bit unprepared
30:21For the vehemence of the reaction
30:24He essentially says
30:25Are you with us
30:26Or are you against us?
30:28They're both very, very smart
30:31And very, very stubborn
30:33But neither one of them
30:34Would ever climb down
30:35From a firmly held view
30:38And Addington was well known for his temper
30:41He's very gruff
30:43And incredibly forceful
30:45Behind doors and meetings
30:46He can go from mild to hot
30:48Pretty quickly
30:49And he's sarcastic
30:50And he makes effective use of sarcasm
30:52And his own great intelligence
30:54And his ability to put people down
30:56To wield a pretty sharp knife
30:59In small meetings
31:00And he acted with the implicit blessing
31:02Of the vice president
31:03So all these things made him
31:04A very, very forceful presence
31:05But
31:06Most of Addington's power vis-a-vis me
31:08Was basically
31:10And the bluster
31:11And the yelling
31:12And the bringing arguments
31:13To my attention
31:17Addington and Cheney
31:18Were forced to comply
31:19With Jack Goldsmith's decision
31:21The Geneva Convention
31:22Would now apply
31:23To all Iraqis
31:27Back at the Justice Department
31:28It was time for Jack Goldsmith
31:30To be shown
31:31The most closely held secrets
31:33He's handed this stack of letters
31:36That John Yoo has written
31:37Authorizing or permitting
31:39All sorts of government activities
31:41My reaction on being briefed
31:42Into these programs
31:43Was at first to be struck
31:46By how much more was going on
31:48And how much more intense
31:50And serious and controversial
31:52The war on terrorism was
31:54Than I realized
31:55Based on my previous experiences
31:56Goldsmith was one of the first
31:59Outsiders to read the memos
32:01Written by his friend John Yoo
32:03To his surprise
32:05They placed almost no limits
32:07On the power of the president
32:09I knew that there were big problems
32:11I thought that there were errors
32:13In some of the legal arguments
32:14Sometimes bad errors
32:16I thought that there were extravagant
32:18And unnecessary claims
32:19Of presidential power
32:21He took a look at a few things
32:22That had been authorized
32:24And basically said
32:25Oh my god
32:26I cannot believe they're doing this
32:27And said
32:29You've got to stop right away
32:33One of the programs
32:34Was authorized by John Yoo
32:36Right after 9-11
32:37It was the centerpiece
32:39Of intelligence gathering
32:40In the war on terror
32:41It was very closely held secret
32:44It was
32:45You know
32:46Very, very, very few people
32:47In the department of justice
32:48Were knew about this
32:50They called it
32:52The crown jewel
32:54They began to spy on Americans
32:57In an unprecedented way
32:58In a way that they never
32:59Had done before
33:00By creating a special program
33:02To eavesdrop on
33:05Americans without warrants
33:08On their international phone calls
33:10And also by mounting
33:12A massive data mining operation
33:16The data from billions of telephone calls
33:19And emails
33:20Were being captured
33:21By the National Security Agency
33:23But in the 1970s
33:25Congress had prohibited such activities
33:27Without the approval of a special court
33:30The initial justification legally
33:32Comes from yet another memo
33:34By John Yoo
33:35In which he says
33:37That congress may no more regulate
33:39The president's gathering of intelligence
33:42Against enemies
33:43Than it can decide
33:44Where he deploys troops
33:45On the battlefield
33:47If it's part of the president's power
33:49As a constitutional matter
33:51To gather intelligence
33:52Including intercepting communications
33:54Then that's a power that's included
33:57And congress can't seize it
33:59Just because it wants to
34:01The program was top secret
34:03When Jack Goldsmith decided to review it
34:06It's the most important thing
34:08During my time in government
34:09And it is central
34:11To the government's counter-terrorism policy
34:14So the stakes are enormous
34:15Once again
34:17Goldsmith couldn't support the administration
34:20I went as far as I could
34:21But at some point
34:22The legal arguments just ran out
34:24Goldsmith took his concerns
34:26To James Comey
34:27A former U.S. attorney
34:29Who was second in command of justice
34:31Goldsmith and Comey were kindred spirits
34:34They understood that their job
34:36Was to uphold the law
34:38Goldsmith delivers this legal opinion
34:41Comey decides
34:43That he has a real problem
34:45With this NSA program
34:47And he tells Ashcroft
34:50And Ashcroft agrees with him
34:52Attorney General John Ashcroft
34:54Was supposed to sign a reauthorization
34:56Of the program
34:57Every 45 days
34:59And for two years he had
35:01But now he balked
35:03And they're waiting for the deadline
35:06For the reauthorization
35:07And then Ashcroft gets sick
35:11He's so sick
35:16He's so sick
35:17He's so ill
35:18That he has to lie down
35:20On the floor
35:21He's on the verge of passing out
35:23He has to be hospitalized
35:25It was acute pancreatitis
35:27Severe enough that James Comey
35:30Became the acting attorney general
35:32He will decide whether to reauthorize
35:34The surveillance program
35:36And decides he can't reauthorize it
35:38The way it exists
35:41But Addington, Cheney, and the president
35:44Fought back
35:45Alberto Gonzalez and Chief of Staff
35:47Andy Card went to Ashcroft's hospital room
35:51Deputy Chief of Staff Jim Comey
35:53Gets word that Alberto Gonzalez
35:55And Andrew Card are on the way
35:57To see Ashcroft
36:00And Comey gets his car
36:02And his security detail
36:04And they rushed to the hospital
36:05To try and beat him there
36:07It was the evening about 8 o'clock
36:09And I got a call
36:10From the Justice Department Command Center
36:12So I rushed to the hospital
36:14Double parked, ran up the stairs
36:16Ashcroft's own wife
36:17Doesn't want the White House men
36:19To come barging in there
36:21He had tubes going in and out of him
36:23He looked ashen
36:25And I actually thought he looked near death
36:28I thought he looked just terrible
36:31In walked Alberto Gonzalez
36:33The White House Counsel
36:34And Andrew Card
36:35The President's Chief of Staff
36:38They would have to know
36:39That a healthy John Ashcroft
36:41Would oppose them
36:43They would know that
36:45Judge Gonzalez had an envelope in his hand
36:48And it became apparent
36:50That he was there to
36:52Ask the Attorney General
36:54To authorize this program
36:56Attorney General Ashcroft
36:58Kind of lifted himself
37:00He arose from the bed
37:03Kind of lifted himself up
37:05And gave about a 2 or 3 minute speech
37:07Or talk
37:08Or address
37:09To Gonzalez and Card
37:11In which he basically
37:12I can't get into the details
37:14But he showed enormous
37:16Unbelievable clarity
37:17About what the issues were
37:19And what was going on
37:21And he explained why
37:23He also would not approve the program
37:25And he read them a bit of the riot act
37:28And then he said
37:30At the end of all this
37:31He said
37:32In any event
37:33I'm not the Attorney General now
37:34Jim Comey is
37:35Because Jim Comey
37:36Was the acting Attorney General
37:38And with that extraordinary performance
37:41And it was just an amazing
37:42One of the most amazing things
37:43I've ever seen in my life
37:44Because he went from seeming
37:46You know near death
37:47To having this a moment
37:49This amazing moment
37:50Of clarity
37:51And he just
37:54Again receded into the bed
37:56And I really worried
37:57At that point
37:58That he was going to expire
37:59And I mean it just
38:01It looked like he gave it
38:02The last of his energy
38:04It was an intense
38:06Unbelievable scene
38:08And Gonzales and Card
38:11Quickly left
38:12And that was the end of it
38:17The next morning
38:19At the urging of his inner circle
38:21President Bush reauthorized the program
38:23On his own signature
38:25At the Justice Department
38:27Jack Goldsmith
38:28Prepared his letter of resignation
38:30I had drafted my resignation letter
38:32And was prepared to resign
38:34And I was sure
38:35I was going to resign that day
38:36It was inconceivable to me
38:37Based on what had happened
38:38The last two days
38:39That I wouldn't resign
38:40As many as 30 other
38:43Justice Department employees
38:44Also threatened to resign
38:46Including James Comey
38:48John Ashcroft
38:49And even Robert Mueller
38:51The director
38:52Of the Federal Bureau
38:53Of Investigation
38:54Bush views Mueller
38:56As a warrior
38:57In the war on terror
38:59In the battle
39:00Just like Bush and Cheney are
39:01The rest of them
39:03He sees as lawyers
39:04You know
39:05Guys who watch the battle
39:07So when Mueller says
39:09This is about rule of law
39:11And Mr. President
39:12I'll have to resign
39:14If you don't make the right
39:16Choice here
39:17That finally stops Bush
39:19The President agreed
39:21To change enough
39:22Of the program
39:23So it was legally acceptable
39:24To the Justice Department
39:26The change
39:27Remains top secret
39:29I want to thank my superb campaign team
39:36That fall
39:37The President and the Vice President
39:38Won re-election
39:40The Vice President serves America
39:42With wisdom and honor
39:44And I'm proud to serve beside him
39:50Attorney General John Ashcroft
39:52Jack Goldsmith
39:53And other top Justice Department officials
39:54Left the administration
40:00Then the President's own lawyer
40:01Alberto Gonzalez
40:03Was named Attorney General
40:04He'd been on
40:05On the Vice President's side
40:06In these battles
40:07They wanted somebody
40:08They could control
40:09It was an effort
40:10By the White House
40:11To get control again
40:13Of Justice
40:14To make sure
40:15That there's no repeat
40:16Of that rebellion of 2004
40:17As Gonzalez prepared
40:19For what promised to be
40:20Bruising confirmation hearings
40:21Justice published
40:23On its website
40:24A kinder
40:25Gentler
40:26Torture Memo
40:27Its first words
40:28Are torture
40:29Is abhorrent
40:30Torture is abhorrent
40:31Both to American law
40:33And values
40:34And to international norms
40:35It's a much more
40:36Modest sounding memo
40:37Although it also
40:38Has a critical footnote
40:39That says
40:40By the way
40:41Everything we've been doing
40:42Up until now
40:43We still think is legal
40:44While we have identified
40:45Various disagreements
40:47With the August 2002
40:48Memorandum
40:49That footnote
40:50Calls into question
40:51Whether this really
40:52Was a change
40:53Or was just window dressing
40:55The nation has a new
40:56Attorney General
40:57Alberto Gonzalez
40:58Behind the scenes
40:59Gonzalez took charge
41:01He began to exert control
41:02Over the OLC
41:04Appointing Stephen Bradbury
41:06To replace Jack Goldsmith
41:08But the appointment
41:09Had a catch
41:10Some people at justice
41:11Told us that
41:12That was essentially
41:13A trial period
41:14During which he
41:15Had to demonstrate
41:16To the White House
41:17That he wasn't going
41:18To make any
41:19Big trouble
41:20Bradbury wrote
41:21A top secret opinion
41:22To authorize
41:23The harshest
41:24Techniques yet
41:25For CIA
41:26Interrogations
41:27These are very
41:28Harsh techniques
41:29Which had not been
41:30Approved in decades
41:31Of US practice
41:32Including slapping
41:34People
41:35Keeping them in
41:36Cold rooms
41:37Sleep deprivation
41:38Bombarding them
41:39With music
41:40And even waterboarding
41:41The simulated drowning
41:42This opinion
41:43We're told
41:44Gives expansive approval
41:45To the combination
41:46Of those different
41:47Tactics
41:48Stephen Bradbury
41:49Passed his trial period
41:51The president
41:52Nominated him
41:53Permanent head
41:54Of the office
41:55Of legal counsel
41:56By this time
42:05The vice president
42:06Found himself
42:07Engaged in a new
42:08Struggle with Congress
42:09Abu Ghraib
42:10Demonstrators
42:11Demonstrators
42:12Gathered
42:13Outside
42:14Iraq's
42:15Abu Ghraib prison
42:16Today
42:17Protesting
42:18The treatment
42:19On Capitol Hill
42:20Congress
42:21Was beginning to stir
42:22The issue
42:23Torture
42:24There's abuse
42:25Of prisoners
42:26Harms
42:27Not helps
42:28In the war on terror
42:29It is now time
42:30For congress
42:31To say
42:32Even conservative
42:33Republicans in the Senate
42:34Began to complain
42:35Congress has been AWOL
42:37When it comes to the war on terror
42:38In terms of interrogation
42:40Detention and prosecution
42:41And we've done it in a way
42:43To weaken our nation
42:44The vice president's fear
42:46That congress would force a showdown
42:48And limit the president's power
42:50Was now a reality
42:52Never simply fight evil
42:53With evil
42:55Senator John McCain
42:56Introduced a tough
42:57Anti-torture resolution
42:59It was gaining strong support
43:01When the vice president
43:03Began to act
43:04In ways public and private
43:06And especially private
43:07Cheney starts heading to the hill
43:09And lobbying McCain especially
43:11There was a lot of real hardball going on
43:14And arm twisting
43:15In which they were going to loyal Republicans
43:18And saying
43:19If you prohibit us from doing these things
43:21People will die
43:23For those in congress
43:25Who believed the executive branch
43:27Had gone too far
43:28Torture was just the kind of issue
43:31Where they could draw the line
43:32This isn't about who they are
43:34This is about who we are
43:36The president threatened to use his first veto ever
43:40But in a ninety to nine vote
43:42The senate rebuked the white house
43:44President Bush is forced to retreat
43:46After the white house reverse course
43:48Vice president Dick Cheney long resisted McCain
43:51It looked like a rare setback for the vice president
43:54The announcement came after months
43:55Of administration resistance
43:57So the white house arranged a public display
43:59Of capitulation
44:01The president acknowledged McCain
44:03And congress's victory
44:05Thank you Mr. President
44:06Thanks John
44:07Welcome
44:08Thank you
44:09Thank you
44:10I appreciate it
44:11Thank you
44:12The president decided to sign the bill
44:13From his ranch in Crawford
44:15Five days after Christmas
44:17Congress is out of town
44:18The president's out of town
44:19Most of the press corps is on vacation
44:21No one's really paying attention to what's happening
44:23And around eight p.m. on the day he signs his bill
44:28The white house quietly issues a document
44:31Which gets filed into the federal register
44:33The document known as a signing statement
44:38Had been drafted by white house staff
44:40On the day of the signing
44:42The statement is sitting in the staff secretary's office
44:46David addington takes his copy
44:48And he literally draws a red line through the entire text
44:53And he substitutes a single very long sentence
44:58Some in Washington were watching closely
45:01For just such a move
45:03I was actually on my way out to a New Year's Eve party
45:06Waiting for it to appear on the white house website
45:09And sure enough it popped up
45:11The executive branch shall construe in a manner consistent
45:14With the constitutional authority of the president
45:17To supervise the unitary executive branch as commander in chief
45:21And what that means in plain English was
45:23My instructions to the executive branch is
45:26This provision is unconstitutional
45:28Because it impringes on my core exclusive powers as president
45:33And so regardless of the fact that I've signed it into law
45:36It need not be obeyed as written
45:39In Washington they began searching for more signing statements
45:43From the administration
45:45The Boston Globe found hundreds of them
45:48What it turned out to be was a road map essentially
45:51To the implications of the unfettered presidency
45:56That the Cheney legal team was trying to create
46:01Lawmakers say that signing statement defeats the purpose of the law
46:05Members of Congress want to know why President Bush just ignore the law
46:09Raising questions about the reach of executive
46:12Signing statements were primarily the handiwork of one person in the administration
46:17David Addington
46:19Addington is the Picasso of signing statements
46:21The master of the art form
46:23And nobody has created more of them
46:28And insisted on putting more of them into legislation
46:32So it's really his thing
46:33He was during my time in office the person that was pure on defending every single potential presidential prerogative
46:44From congressional intrusion through signing statements
46:48Within the signing statements are more than 1,000 implicit constitutional challenges to acts of Congress
46:56It's a direct showdown constitutionally between the president and Congress
47:01Congress has the right to pass laws
47:03But the president is saying
47:05But I'm not going to obey all your laws
47:07While the signing statements were one way to challenge Congress
47:10Writing legal opinions was another
47:13A new highly classified opinion from the OLC
47:17Reportedly limited the effect of the McCain amendment
47:20It essentially let the CIA off the hook
47:24Even under the new standard that Congress was about to impose
47:28In effect, it appears the White House had managed to get the OLC to let them do what they wanted
47:35Justice Department in these secret opinions in 2005
47:38Which remain in effect
47:40Has carved out essentially the same latitude
47:45For the CIA to do the things that it was doing
47:50Under the John Yoo memo of 2002
47:53Democrats will have the upper hand in the new Congress
47:57Democrats took control of the House for the first time in 12 years
48:01In the fall of 2006, the midterm elections
48:04It's a sweep. Democrats have sealed control of both houses of Congress
48:08Discontent with the president is having a major impact on these elections
48:12After the Democrats won, they wanted some of Congress's power back
48:16Now, Cheney and Addington have something very different to deal with
48:21A Congress with subpoena power
48:25Congress began by digging into that crown jewel issue
48:29Warrantless domestic wiretapping
48:31I was very upset, I was angry
48:34I prepared a letter of resignation
48:36Intending to resign
48:38James Comey, Jack Goldsmith's boss at the DOJ
48:42Was called to testify
48:44Under oath, he revealed that hospital story
48:48And the reasons he threatened to resign
48:50I believe that I couldn't
48:52I couldn't stay
48:53If the administration was going to engage in conduct
48:55Of the Department of Justice, it said, had no legal basis
48:58It simply couldn't stay
49:00Congress wanted more information
49:02So it issued subpoenas
49:04For some of the vice president's documents
49:06Including those from the OLC
49:08But the administration would say
49:10They didn't have to respond
49:12And would raise the prospect of claiming executive privilege
49:16The vice president respects the legal privileges
49:19Afforded by the Constitution to the presidency
49:22Such as executive privilege
49:25Protecting, among other things
49:26National security secrets
49:28And policy deliberations
49:30The White House sent Alberto Gonzalez
49:38To testify before Congress
49:40Alberto Gonzalez is left as the guy
49:43To sort of defend it in public
49:45But I think people really felt
49:47He was defending decisions
49:48That were primarily coming
49:50From the vice president's office
49:53Mr. Attorney General
49:54Do you think
49:55Constitutional government
49:56In the United States
49:57Can survive
49:58If the president has the unilateral authority
50:02To reject congressional inquiries
50:06On grounds of executive privilege
50:08Senator, you're asking me a question
50:09That is related to an ongoing controversy
50:11Which I am recused
50:12I will say
50:13The president has tried very hard
50:15No, no, no
50:16I'm not asking you a question
50:17About something you're recused of
50:18I'm asking you a question
50:19About constitutional law
50:21You're asking me a question
50:22That's related to an ongoing controversy
50:23I'm asking you whether
50:24You can have a constitutional government
50:25With the Congress
50:27Exercising its constitutional authority
50:30For oversight
50:31If when the president
50:33Claims executive privilege
50:35The president then forecloses the Congress
50:37From getting a judicial determination of it
50:39That's the constitutional law
50:41It's very, very hard
50:43For Congress to force its subpoenas
50:45Against an executive branch
50:47Bent on asserting executive privilege
50:49Congress' real recourse
50:51Is to use politics
50:53To cause harm to the administration
50:54To get them to do
50:55What Congress wants it to do
50:56You've come here seeking our trust
50:58Frankly, Mr. Attorney General
51:00You've lost mine
51:01I take no pleasure in saying this
51:04But I'm seriously
51:06Gravely
51:08Disappointed
51:09Adjourned
51:11Senior people at the White House realized
51:17They had a government to run
51:19And they couldn't have
51:20An attorney general as crippled and wounded
51:22As Alberto Gonzalez
51:24Gonzalez lasted one more month
51:27Then he submitted his resignation
51:29President Bush is looking for a new attorney general this morning
51:32The last day on the job for attorney general Alberto Gonzalez
51:35Recently the president nominated a new attorney general
51:40Scheduled to appear before Congress this week
51:43He'll be asked about those secret interrogation memos
51:47Revealing the depths of Cheney and Addington's struggle
51:50To control the office of legal counsel
51:53Congress has put a hold on the nomination of Stephen Bradbury
51:57The man picked by the president to run the OLC
52:00Bradbury declined to speak with Frontline
52:03At the White House David Addington has been promoted
52:08Replacing Scooter Libby as Dick Cheney's chief of staff
52:12Addington also declined to speak to Frontline
52:17And as for the vice president
52:19Gonzalez is out, Roe's out
52:22And Cheney is ready to fight the next battle tomorrow
52:26Cheney truly believes he's in a conversation with history
52:30You know it's that same principle
52:32Victory goes not to the swift nor to the strong
52:34But to he who endureth until the end
52:37That's a principle that guides this ship of state
52:42And these men who are running it
52:47Frontline also asked the vice president for an interview
52:49He declined
52:51However in 2002 he did speak to Fox News
52:55I've been around town for 34 years
52:58Time after time after time
53:00Administrations have traded away
53:02The authority of the president to do his job
53:04We're not going to do that in this administration
53:06The president's bound and determined
53:08To defend those principles
53:10And to pass on this office
53:11His and mine
53:12To future generations
53:14In better shape than we found it
53:16And for us to compromise on this basic fundamental principle
53:19Would in effect do that
53:21It would further weaken the presidency
53:23And we don't want to do that
53:24This report continues on our website
53:45Or you can watch the program again
53:47Read extended interviews with administration insiders
53:50Jack Goldsmith
53:51The stakes are enormous
53:52And Brad Berenson
53:53You were president of the United States
53:55And others
53:56Unfettered Presidencies
53:57Examine analysis by journalists and insiders
54:00Of Dick Cheney and his views on executive power
54:03The dynamics of the Bush-Cheney relationship
54:06The behind closed doors battles within the Bush administration
54:11And how the current confrontation over presidential powers
54:14Can be viewed in the context of history
54:16And read the internal memos discussed in this report
54:20Then join the discussion at PBS.org
54:23Iran's active pursuit of weapons
54:37Threatens the security of nations everywhere
54:391,100 feet of American diplomacy is here
54:42And threatens the Middle East
54:44Many of the people who argued to take the United States into Iraq
54:48Are again beating the war drums
54:50Threatens the nuclear holocaust
54:52It would be the worst of all worlds
54:54For an outgoing administration to start a conflict
54:57We will confront this danger before it is too late
55:00To order Frontline's Cheney's Ball on DVD
55:11Call PBS Home Video at 1-800-PLAY-PBS
55:16Frontline is made possible by contributions to your PBS station from viewers like you. Thank you.
55:34With major funding from the John D. and Catherine T. MacArthur Foundation
55:50Helping to build a more just world
55:52And additional funding from the Park Foundation
55:56And additional funding from the Park Foundation
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