According to an in-depth examination by the Washington Post, within hours of the 9/11 attacks, Vice President Dick Cheney begins working to secure additional powers for the White House. Cheney had plans in place to begin acquiring these powers for the executive branch before the attacks, but had not begun to execute them.
Gathering the Team – David Addington, Cheney’s general counsel and legal adviser, had been walking home after having to leave the now-evacuated Eisenhower Executive Office Building. He receives a message from the White House telling him to turn around, because the vice president needs him. After Addington joins Cheney in the Presidential Emergency Operations Center (PEOC) below the East Wing of the White House, the pair reportedly begin “contemplating the founding question of the legal revolution to come: What extraordinary powers will the president need for his response?” Later in the day, Addington connects by secure video with Timothy Flanigan, the deputy White House counsel, who is in the White House Situation Room. John Yoo, the deputy chief of the Office of Legal Counsel, is also patched in from the Justice Department’s command center. White House counsel Alberto Gonzales joins them later. This forms the core legal team that Cheney will oversee after the terrorist attacks. Associate White House counsel Bradford Berenson will later recall: “Addington, Flanigan and Gonzales were really a triumvirate. [Yoo] was a supporting player.” Addington dominates the group. Gonzales is there primarily because of his relationship with President Bush. He is not, Yoo will later recall, “a law-of-war expert and [doesn’t] have very developed views.” Along with these allies, Cheney will provide what the Washington Post calls “the rationale and political muscle to drive far-reaching legal changes through the White House, the Justice Department, and the Pentagon,” which will free the president to fight the war on terror, “as he saw fit.”
Drafting the AUMF – The team begins drafting the document that will become the Authorization to Use Military Force (AUMF—see October 10, 2002) passed by Congress for the assault on Afghanistan. In the words of the group, the president is authorized “to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States.”
Extraordinarily Broad Language – The language is extraordinarily broad; Yoo will later explain that they chose such sweeping language because “this war was so different, you can’t predict what might come up.” The AUMF draft is the first of numerous attempts to secure broad powers for the presidency, most justified by the 9/11 attacks. The Washington Post will later report, “In fact, the triumvirate knew very well what would come next: the interception—without a warrant—of communications to and from the United States” (see September 25, 2001). [CNN, 9/11/2001; CNN, 9/12/2001; Unger, 2007, pp. 220-221; Washington Post, 6/24/2007]
Between 1:30 p.m. and 3:30 p.m. September 11, 2001: Non-Essential Staff Removed from White House Bunker
In the Presidential Emergency Operations Center (PEOC) below the East Wing of the White House, numerous key officials are assembled, including Vice President Dick Cheney, his chief of staff I. Lewis “Scooter” Libby, National Security Adviser Condoleezza Rice, White House counselor Karen Hughes, and others. [Clarke, 2004, pp. 18-19] A technician informs Libby that levels of carbon dioxide in the room have climbed too high. Libby remembers that excessive carbon dioxide can affect a person’s judgment, and arranges to have any non-essential personnel—comprising various lower-level aides—removed from the room. [Newsweek, 12/31/2001] According to journalist and author Stephen Hayes, it is in fact David Addington, the vice president’s general counsel, who asks the lower-level officials to leave. [Hayes, 2007, pp. 343]
Shortly After 10:00 p.m. September 11, 2001: Vice President Cheney and Family Spend Night at Camp David
After attending President Bush’s meeting with his principal advisers in the Presidential Emergency Operations Center beneath the White House, Vice President Dick Cheney heads back upstairs, accompanied by his wife Lynne Cheney and his two top aides, I. Lewis “Scooter” Libby and David Addington. They all head out onto the White House’s South Lawn and get onto Marine Two, the vice president’s helicopter, being joined on it by a military aide, a communications expert, three Secret Service agents, and Cheney’s doctor. They take off, in violation of long-standing protocol, according to which only the president takes off from the South Lawn. Only a few of the most senior White House officials are informed of their destination. About 30 minutes later they arrive at Camp David, the presidential retreat in the Catoctin Mountains, about 70 miles from the White House. Again going against tradition, Cheney and his family settle into the cabin usually reserved for the president, Aspen Lodge. Liz Cheney, the vice president’s eldest daughter, and her young family, joins them there. This is the first of many nights that Cheney spends in “secure, undisclosed locations” in the aftermath of the 9/11 attacks (see September 12, 2001-2002). [Federation of American Scientists, 10/2/2000; Hayes, 2007, pp. 345-346] He will return to Washington the following morning for an 8 a.m. meeting at the White House (see September 12, 2001). [Washington Post, 1/28/2002]
September 12, 2001-2002: Vice President Cheney Moves between Secure Locations to Preserve ‘Continuity of Government’
In the months following 9/11, Vice President Dick Cheney spends large portions of his time in what are referred to as “secure and undisclosed” locations. [CNN, 3/1/2002] He is accompanied to these locations by those considered his “essential staff.” This includes his chief of staff, I. Lewis “Scooter” Libby, and Libby’s assistant, Jennifer Mayfield; Cheney’s personal secretary, Debbie Heiden; his personal aide, Brian McCormack; one of his military aides; and either his counsel, David Addington, or his staff secretary, Neil Patel.
Staff Ordered to Maintain Secrecy – Cheney’s personnel are ordered not to mention the vice president’s name or title on the phone; his schedule is to go out only over secure fax or classified e-mail; and all members of his staff must always keep a packed bag ready at the office. According to journalist and author Stephen Hayes, the “secure undisclosed location” the vice president goes to is usually Camp David, the presidential retreat in Maryland, although there are other locations. [Hayes, 2007, pp. 349]
Maintaining the ‘Continuity of Government’ – Cheney explains to PBS the reasoning behind his going to these locations: “[W]ith the possibility that the White House or the Capitol or other facilities here [in Washington] could be targeted in a terrorist attack… it’s not a good practice for the president and I to spend a lot of time together.… [I]t’s important from the standpoint of our responsibility to maintain the continuity of government to always see to it that nobody—no adversary or enemy would have the capacity of, in effect, decapitating the federal government by taking out the president and the vice president and other senior management, senior leadership.” [PBS, 10/12/2001] Yet, despite the supposed danger, he still goes ahead with a pre-planned pheasant-hunting trip in early November (see (November 4-5, 2001)). Cheney’s time at the “secure and undisclosed” locations is part of “shadow government” procedures that are implemented following the 9/11 attacks (see (2:00 p.m.) September 11, 2001). [CNN, 3/1/2002] In interviews, he never mentions that he had similarly gone away to undisclosed locations on a regular basis throughout the 1980s, during a series of Continuity of Government exercises (see 1981-1992). [Mann, 2004, pp. 138-139 and 296; Atlantic Monthly, 3/2004]
September 14-18, 2001: Congressional Joint Resolution Allows President Bush to Use All Necessary Military Force
The US Congress adopts a joint resolution, the Authorization for Use of Military Force (AUMF), that determines that “the president is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.” Congress also states that the “grave acts of violence” committed on the US “continue to pose an unusual and extraordinary threat to [its] national security and foreign policy.” [US Congress, 9/14/2001] President Bush signs the resolution into law on September 18. [White House, 9/18/2001] The passage of the AUMF served another purpose: to extend presidential power. While the Defense Department and the Joint Chiefs of Staff intended the AUMF to define the conflict in narrow terms, and authorize the US to move militarily against al-Qaeda and its confederates, and the Taliban, Vice President Dick Cheney and his chief of staff, David Addington, had a larger goal. Attorney Scott Horton, who has written two major studies on interrogation of terrorism suspects for the New York City Bar Association, says in 2005 that Cheney and Addington “really wanted [the AUMF defined more broadly], because it provided the trigger for this radical redefinition of presidential power.” Addington helped draft a Justice Department opinion in late 2001, written by lawyer John Yoo (see Late September 2001), that asserted Congress cannot “place any limits on the president’s determinations as to any terrorist threat, the amount of military force to be used in response, or the method, timing, and nature of the response.” [US News and World Report, 5/21/2006]
April 2002 and After: President Bush Deliberately Shielded from Knowledge of Harsh Interrogation Techniques
After the capture of al-Qaeda leader Abu Zubaida (see March 28, 2002), the US government is forced to review procedures on how Zubaida and future detainees should be treated. One CIA source will later say, “Abu Zubaida’s capture triggered everything.” The legal basis for harsh interrogations is murky at best, and the Justice Department will not give any legal guidelines to the CIA until August 2002, after Zubaida has already been tortured (see March 28-August 1, 2002 and August 1, 2002).
Bush Kept out of Discussions – New York Times reporter James Risen will later claim in a 2006 book that after showing some initial interest in Zubaida’s treatment (see Late March 2002), President Bush is mysteriously absent from any internal debates about the treatment of detainees. The CIA’s Office of Inspector General later investigates evidence of the CIA’s involvement in detainee abuse, and concludes in a secret report that Bush is never officially briefed on the interrogation tactics used. Earlier meetings are chaired by White House counsel Alberto Gonzales and attended by, among others, Vice President Cheney’s chief lawyer David Addington, Justice Department lawyer John Yoo, White House lawyer Timothy Flanigan, and Pentagon chief counsel William J. Haynes. Later, CIA Director George Tenet gives briefings on the tactics to a small group of top officials, including Vice President Cheney, National Security Adviser Rice, Attorney General John Ashcroft, and future Attorney General Gonzales, but not Bush.
CIA: ‘No Presidential Approval’ Needed for Torture – Risen will note that “Normally, such high-stakes—and very secret—CIA activities would be carefully vetted by the White House and legally authorized in writing by the president under what are known as presidential findings. Such directives are required by Congress when the CIA engages in covert action.” But through a legal sleight-of-hand, the CIA determines the interrogations should be considered a normal part of “intelligence collection” and not a covert action, so no specific presidential approval is needed. Risen concludes: “Certainly, Cheney and senior White House officials knew that Bush was purposely not being briefed and that the CIA was not being given written presidential authorization for its tactics. It appears that there was a secret agreement among very senior administration officials to insulate Bush and to give him deniability, even as his vice president and senior lieutenants were meeting to discuss the harsh new interrogation methods. President Bush was following a ‘don’t ask, don’t tell’ policy on the treatment of prisoners.” Later, Flanigan will say of the meetings, “My overwheming impression is that everyone was focused on trying to avoid torture, staying within the line, while doing everything possible to save American lives.” [Risen, 2006, pp. 23-27; Savage, 2007, pp. 154]
August 1, 2002: Justice Department’s ‘Golden Shield’ Memo Approves Torture of Terrorism Suspects
The Justice Department’s Office of Legal Counsel (OLC) sends a non-classified memo to White House Counsel Alberto Gonzales, offering the opinion that a policy allowing suspected al-Qaeda members to be tortured abroad “may be justified.” [US Department of Justice, 8/1/2002 
] This memo will later be nicknamed the “Golden Shield” by insiders in the hopes that it will protect government officials from later being charged with war crimes (see April 2002 and After). [ABC News, 4/9/2008]
Multiple Authors – The 50-page “torture memo” is signed and authored by Jay S. Bybee, head of OLC, and co-authored by John Yoo, a deputy assistant attorney general. It is later revealed that Yoo authored the memo himself, in close consultation with Vice President Cheney’s chief adviser David Addington, and Bybee just signed off on it (see December 2003-June 2004). [Washington Post, 6/9/2004] Deputy White House counsel Timothy Flanigan also contributed to the memo. Addington contributed the claim that the president may authorize any interrogation method, even if it is plainly torture. Addington’s reasoning: US and treaty law “do not apply” to the commander in chief, because Congress “may no more regulate the president’s ability to detain and interrogate enemy combatants than it may regulate his ability to direct troop movements on the battlefield.” [Washington Post, 6/25/2007]
Statute Only Prohibits ‘Extreme Acts’ – Gonzales had formally asked for the OLC’s legal opinion in response to a request by the CIA for legal guidance. A former administration official, quoted by the Washington Post, says the CIA “was prepared to get more aggressive and re-learn old skills, but only with explicit assurances from the top that they were doing so with the full legal authority the president could confer on them.” [Washington Post, 6/9/2004] “We conclude that the statute, taken as a whole,” Bybee and Yoo write, “makes plain that it prohibits only extreme acts.” Addressing the question of what exactly constitute such acts of an extreme nature, the authors proceed to define torture as the infliction of “physical pain” that is “equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.” Purely mental pain or suffering can also amount to “torture under Section 2340,” but only if it results “in significant psychological harm of significant duration, e.g. lasting for months or even years.” [Washington Post, 6/9/2004]
Torture Legal and Defensible – Bybee and Yoo appear to conclude that any act short of torture, even though it may be cruel, inhuman or degrading, would be permissible. They examine, for example, “international decisions regarding the use of sensory deprivation techniques.” These cases, they notice, “make clear that while many of these techniques may amount to cruel, inhuman or degrading treatment, they do not produce pain or suffering of the necessary intensity to meet the definition of torture. From these decisions, we conclude that there is a wide range of such techniques that will not rise to the level of torture.” More astounding is Bybee and Yoo’s view that even torture can be defensible. “We conclude,” they write, “that, under the current circumstances, necessity or self-defense may justify interrogation methods that might violate Section 2340A.” Inflicting physical or mental pain might be justified, Bybee and Yoo argue, “in order to prevent further attacks on the United States by the al-Qaeda terrorist network.” In other words, necessity or self-defense may justify torture. Moreover, “necessity and self-defense could provide justifications that would eliminate any criminal liability.” [Washington Post, 6/8/2004] International anti-torture rules, furthermore, “may be unconstitutional if applied to interrogations” of suspected terrorists. [US News and World Report, 6/21/2004] Laws prohibiting torture would “not apply to the president’s detention and interrogation of enemy combatants” in the “war on terror,” because the president has constitutional authority to conduct a military campaign. [Washington Post, 6/27/2004]
Protecting US Officials from Prosecution – In 2007, author and reporter Charlie Savage will write: “In case an interrogator was ever prosecuted for violating the antitorture law (see October 21, 1994 and January 26, 1998, Yoo laid out page after page of legal defenses he could mount to get the charges dismissed. And should someone balk at this strained interpretation of the law, Yoo offered his usual trump card: Applying the antitorture law to interrogations authorized by the president would be unconstitutional, since only the commander in chief could set standards for questioning prisoners.” [Savage, 2007, pp. 155-156]
Virtually Unrestricted Authority of President – “As commander in chief,” the memo argues, “the president has the constitutional authority to order interrogations of enemy combatants to gain intelligence information concerning the military plans of the enemy.” [Washington Post, 6/9/2004] According to some critics, this judgment—which will be echoed in a March 2003 draft Pentagon report (see March 6, 2003)—ignores important past rulings such as the 1952 Supreme Court decision in Youngstown Steel and Tube Co v. Sawyer, which determined that the president, even in wartime, is subject to US laws. [Washington Post, 6/9/2004] The memo also says that US Congress “may no more regulate the president’s ability to detain and interrogate enemy combatants than it may regulate his ability to direct troop movements on the battlefield.” [Washington Post, 6/27/2004]
Ashcroft Refuses to Release Memo – After the memo’s existence is revealed, Attorney General John Ashcroft denies senators’ requests to release it, and refuses to say if or how the president was involved in the discussion. “The president has a right to hear advice from his attorney general, in confidence,” he says. [New York Times, 6/8/2004; Bloomberg, 6/8/2004; Washington Post, 6/9/2004] Privately, Ashcroft is so irritated by Yoo’s hand-in-glove work with the White House that he begins disparagingly referring to him as “Dr. Yes.” [New York Times, 10/4/2007]
Only ‘Analytical’ – Responding to questions about the memo, White House press secretary Scott McClellan will claim that the memo “was not prepared to provide advice on specific methods or techniques,” but was “analytical.” But the 50-page memo seems to have been considered immensely important, given its length and the fact that it was signed by Bybee. “Given the topic and length of opinion, it had to get pretty high-level attention,” Beth Nolan, a former White House counsel from 1999-2001, will tell reporters. This view is confirmed by another former Office of Legal Counsel lawyer who says that unlike documents signed by deputies in the Office of Legal Counsel, memorandums signed by the Office’s head are considered legally binding. [Washington Post, 6/9/2004]
Memo Will be Withdrawn – Almost two years later, the OLC’s new head, Jack Goldsmith, will withdraw the torture memos, fearing that they go far beyond anything countenanced by US law (see December 2003-June 2004).
Memo Addresses CIA Concerns – The administration, particularly the axis of neoconservatives centered around Cheney’s office, has enthusiastically advocated the use of violent, abusive, and sometimes tortuous interrogation techniques, though the US has never endorsed such tactics before, and many experts say such techniques are counterproductive. The CIA, responding to the desires from the White House, hastily put together a rough program after consulting with intelligence officials from Egypt and Saudi Arabia, where detainees are routinely tortured and killed in captivity, and after studying methods used by former Soviet Union interrogators. The legal questions were continuous. The former deputy legal counsel for the CIA’s Counterterrorist Center, Paul Kelbaugh, recalls in 2007: “We were getting asked about combinations—‘Can we do this and this at the same time?… These approved techniques, say, withholding food, and 50-degree temperature—can they be combined?’ Or ‘Do I have to do the less extreme before the more extreme?’” The “torture memo” is designed to address these concerns. [New York Times, 10/4/2007]
2003-2004: Three White House Officials Asked about Destruction of CIA Interrogation Tapes, Response Unclear
The CIA meets three White House officials to discuss what to do with videotapes it has made of detainee interrogations (see Spring-Late 2002). The CIA wants to destroy the tapes, so it briefs the officials on them and asks their advice. The officials are: 
Alberto Gonzales, White House counsel until early 2005, when he will become attorney general; David Addington, counsel to Vice President Dick Cheney; John Bellinger, senior lawyer at the National Security Council;
There are conflicting accounts of the advice the lawyers give the CIA. One source will say there was “vigorous sentiment” among some unnamed top White House officials to destroy the tapes. They apparently want to destroy the tapes in 2005 because they could be damaging in the light of the Abu Ghraib scandal (see April 28, 2004). Other sources will say nobody at the White House advocates destroying the tapes. However, it seems none of the lawyers gives a direct order to preserve the tapes or says their destruction would be illegal. [New York Times, 12/19/2007] A source familiar with Bellinger’s account will say, “The clear recommendation of Bellinger and the others was against destruction of the tapes… The recommendation in 2003 from the White House was that the tapes should not be destroyed.” [Associated Press, 12/20/2007] When CIA Director Michael Hayden informs legislators of these discussions in late 2007, he will say that upon being informed high-ranking CIA officials are demanding the tapes be destroyed, the lawyers “consistently counseled caution.” The Washington Post will comment: “The ambiguity in the phrasing of Hayden’s account left unresolved key questions about the White House’s role. While his account suggests an ambivalent White House view toward the tapes, other intelligence officials recalled White House officials being more emphatic at the first meeting that the videos should not be destroyed. Also unexplained is why the issue was discussed at the White House without apparent resolution for more than a year.” [Washington Post, 12/20/2007] Another White House official, Harriet Miers, is also consulted around this time and is said to advise against the tapes’ destruction (see Between 2003-Late 2005). [New York Times, 12/19/2007] When it is revealed that these officials were consulted, Law professor Jonathan Turley will comment: “[T]his is a very significant development, because it shows that this was not just some rogue operator at the CIA that destroyed evidence being sought by Congress and the courts. It shows that this was a planned destruction, that there were meetings and those meetings extended all the way to the White House, and included Alberto Gonzalez, who would soon become attorney general and Harriet Miers, who would become White House counsel. That’s a hair’s breath away from the president himself.” [CNN, 12/19/2007]
March 7 – Mid-April, 2003: Alleged 9/11 Mastermind Tortured in Poland
9/11 planner Khalid Shaikh Mohammed, after being detained and abused for three days in US custody in Afghanistan (see February 29 or March 1, 2003 and Shortly After February 29 or March 1, 2003), is transferred to another CIA-run facility in Poland. [New Yorker, 8/6/2007; New York Review of Books, 3/15/2009] The facility is later identified as Stare Kiejkuty, a secret prison near the Szymany military airbase. Mohammed is flown in on a Gulfstream N379P jet known to prison officials as “the torture taxi.” The plane is probably piloted by “Jerry M,” a 56-year-old pilot for Aero Contractors, a company that transfers prisoners around the world for US intelligence agencies. [Der Spiegel (Hamburg), 4/27/2009] He is dressed in a tracksuit, blindfolded, hooded, has sound-blocking headphones placed over his ears, and is flown “sitting, leaning back, with my hands and ankles shackled in a high chair,” as he will later tell officials of the International Committee of the Red Cross (ICRC—see October 6 – December 14, 2006). He later says he manages to sleep a few hours, for the first time in days. Upon arrival, Mohammed is stripped naked and placed in a small cell “with cameras where I was later informed by an interrogator that I was monitored 24 hours a day by a doctor, psychologist, and interrogator.” The walls are wooden and the cell measures some 10 by 13 feet. [New York Review of Books, 3/15/2009; Der Spiegel (Hamburg), 4/27/2009]
‘I Would Be Brought to the Verge of Death and Back Again’ – As he will later recall, it was in this detention camp that “the most intense interrogation occurred, led by three experienced CIA interrogators, all over 65 years old and all strong and well trained.” The interrogators tell him that they have received the “green light from Washington” to give him “a hard time” (see Late September 2001 and September 25, 2002). As he will later recall: “They never used the word ‘torture’ and never referred to ‘physical pressure,’ only to ‘a hard time.’ I was never threatened with death, in fact I was told that they would not allow me to die, but that I would be brought to the ‘verge of death and back again.‘… I was kept for one month in the cell in a standing position with my hands cuffed and shackled above my head and my feet cuffed and shackled to a point in the floor.” When he falls asleep, “all my weight [is] applied to the handcuffs around my wrist resulting in open and bleeding wounds.” The ICRC will later confirm that Mohammed bears scars consistent with his allegations on both wrists and both ankles. “Both my feet became very swollen after one month of almost continual standing.”
Interrogations – He is interrogated in a different room, in sessions lasting anywhere from four to eight hours, and with a wide variety of participants. Sometimes women take part in the interrogations. A doctor is usually present. “If I was perceived not to be cooperating I would be put against a wall and punched and slapped in the body, head, and face. A thick flexible plastic collar would also be placed around my neck so that it could then be held at the two ends by a guard who would use it to slam me repeatedly against the wall. The beatings were combined with the use of cold water, which was poured over me using a hose-pipe. The beatings and use of cold water occurred on a daily basis during the first month.”
‘Alternative Procedures’ – The CIA interrogators use what they will later call “alternative procedures” on Mohammed, including waterboarding (see After March 7, 2003) and other techniques. He is sprayed with cold water from a hose-pipe in his cell and the “worst day” is when he is beaten for about half an hour by one of the interrogators. “My head was banged against the wall so hard that it started to bleed. Cold water was poured over my head. This was then repeated with other interrogators.” He is then waterboarded until a doctor intervenes. He gets an hours’s sleep and is then “put back in my cell standing with my hands shackled above my head.” He sleeps for a “few minutes” on the floor of cell after the torture sessions, but does not sleep well, “due to shackles on my ankles and wrists.” The toilet consists of a bucket in the cell, which he can use on request, but “I was not allowed to clean myself after toilet during the first month.” In the first month he is only fed on two occasions, “as a reward for perceived cooperation.” He gets Ensure [a liquid nutritional supplement] to drink every four hours. If he refuses it, “then my mouth was forced open by the guard and it was poured down my throat by force.” He loses 18 kg in the first month, after which he gets some clothes. In addition, “Artificial light was on 24 hours a day, but I never saw sunlight.” [New York Review of Books, 3/15/2009]
Deliberately False Information – As he will later tell ICRC officials, he often lies to his interrogators: “During the harshest period of my interrogation, I gave a lot of false information in order to satisfy what I believed the interrogators wished to hear in order to make the ill-treatment stop.… I’m sure that the false information I was forced to invent… wasted a lot of their time and led to several false red-alerts being placed in the US.” [New York Review of Books, 3/15/2009] It will later be reported that up to 90 percent of Mohammed’s confessions may be unreliable. Furthermore, he will recant many of his statements (see August 6, 2007).
June 2003: White House Counsel Gonzales Continues to Stonewall Commission over White House Access
In a series of meetings with 9/11 Commission Chairman Tom Kean and Vice-Chairman Lee Hamilton, White House Counsel Alberto Gonzales continues to deny the commission access to White House documents and personnel (see Late January 2003). The commission wants access to classified White House documents, as well as interviews with President George W. Bush, Vice President Dick Cheney and National Security Adviser Condoleezza Rice.
Claim of Executive Privilege – Gonzales says that the access the commission wants is protected by executive privilege, which means that if advice given to the president by his staff is to have any value, it must remain secret. He thinks that, as the commission was created by Congress, if he gives the commission the access it wants, this will set a precedent, meaning the White House will have to turn over other documents to Congress.
Not a “Viable Position” – Kean thinks that this is not a “viable position” for Gonzales and that he must give them something. He asks himself if Gonzales understands the political damage he is doing to President Bush, and also if Bush knows what Gonzales is doing in his name. Kean is also aware that the commission could subpoena documents, but never makes this threat explicitly to Gonzales. Issuing subpoenas would lead to a constitutional argument that would do a lot of political damage to the White House. Kean believes that Gonzales will have to compromise in the end—9/11 was such a unique event that providing some access will not set a precedent. 9/11 Commissioner and former White House Counsel Fred Fielding is also extremely surprised by what Gonzales is doing. He knows it is only a matter of time before Gonzales retreats, and the longer it takes him to do so, the more damage he will do to Bush. [Shenon, 2008, pp. 122-126] Fielding will return as White House counsel in January 2007. In a scandal over the firing of US attorneys for allegedly political reasons, he will behave in much the same way as Gonzales does in this case. [Washington Post, 4/11/2007]
Gonzales Refuses to Meet Commission Lawyer – Gonzales insists on meeting only Kean and Hamilton and, following an earlier frosty meeting with executive director Philip Zelikow (see Late January 2003), refuses to see anyone else from the commission, including its counsel Daniel Marcus. When Kean and Hamilton return from the meetings with Gonzales at the White House, Marcus has to debrief them and work out a counter-strategy to what Gonzales’ position seems to be. “It was very messy,” Marcus will recall. Marcus also knows Gonzales is getting Bush in trouble: “Gonzales didn’t have good political judgment and staked out positions that got the White House in trouble—these kinds of wooden separation of powers arguments.”
Some Speculate Addington Behind Gonzales – Some commissioners and staff think that what Gonzales is doing is so damaging to President Bush that he may not even be expressing Bush’s views. According to this line of thinking, Gonzales is being directed by Vice President Dick Cheney and his counsel David Addington, both of whom are known to have extreme views on executive privilege (see June 26, 2007 and June 27, 2007). Kean will later say the commission “never knew” who was really behind the arguments. [Shenon, 2008, pp. 122-126]
