Palace Revolt

The brainy, pleasant and supremely self-confident Yoo became Addington's main man at Justice, a prolific author of legal opinions granting the president maximum power during wartime. In the winter of 2002, the CIA began catching top Qaeda terrorists--so-called High Value Targets--like Abu Zubaydah. These hard-case jihadists proved resistant to normal methods of interrogation. In the fevered atmosphere of the time, the Bush administration feared a "second wave" attack from Qaeda sleeper cells still inside the United States. The CIA wanted legal permission to use "coercive methods."

An August 2002 OLC memo, signed by the then head of the OLC--Jay Bybee--but drafted by Yoo, gave the agency what it needed. The controversial document, which became famous as the "torture memo" when it leaked two years later, defined torture so narrowly that, short of maiming or killing a prisoner, interrogators had a free hand. What's more, the memo claimed license for the president to order methods that would be torture by anyone's definition--and to do it wholesale, and not just in specific cases. A very similar Yoo memo in March 2003 was even more expansive, authorizing military interrogators questioning terror suspects to ignore many criminal statutes--as well as the strict interrogation rules traditionally used by the military. Secretary of Defense Rumsfeld put some limits on interrogation techniques, and they were intended to be used only on true terror suspects. Perhaps inevitably, however, "coercive interrogation methods" spread from Guantanamo Bay, which housed terror suspects, into prisons like Abu Ghraib, where detainees could be almost anyone. (Poor leadership in the chain of command and on the ground was partly to blame, as well as loose or fuzzy legal rules.) The result: those grotesque images of Iraqis being humiliated by poorly trained and sadistic American prison guards, not to mention prisoners who have been brutalized and in some cases killed by interrogators in Afghanistan and elsewhere.

In the summer of 2003, Yoo, who stands by his body of work, left the Justice Department and returned to teaching law. His departure came in the midst of a critical power struggle. Addington and Gonzales had both wanted to make Yoo head of the OLC when Bybee went off to take a federal judgeship in March 2003, but Attorney General John Ashcroft balked. Ashcroft's reasons were apparently bureaucratic. (He declined to speak for this story.) According to colleagues, he resented Yoo's going behind his back to give the White House a private pipeline into the OLC. Yoo denied circumventing Ashcroft. "OLC kept the attorney general or his staff fully informed of all of its work in the war on terrorism," he said.

Jack Goldsmith, a law professor who was working in the general counsel's office at the Pentagon, was the eventual compromise choice to head the OLC. Goldsmith seemed like a natural fit. He was brilliant, a graduate of Oxford and Yale Law School, and he was conservative. Like Yoo, he was tagged a "New Sovereigntist" for his scholarly argument that international laws including prohibitions on human-rights abuses should not be treated as binding law by the U.S. courts.

But somehow, in the vetting of Goldsmith, one of his important views was overlooked. Goldsmith is no executive-power absolutist. What's more, his friends say, he did not intend to be a patsy for Addington and the hard-liners around Cheney. Goldsmith was not the first administration lawyer to push back against Addington & Co. At the CIA, general counsel Scott Muller had caused a stir by ruling that CIA agents could not join with the military in the interrogation of Iraqi prisoners. But Goldsmith became a rallying point for Justice Department lawyers who had legal qualms about the administration's stance.

Goldsmith soon served notice of his independence. Shortly after taking over the OLC in October 2003, he took the position that the so-called Fourth Geneva Convention--which bars the use of physical or moral coercion on prisoners held in a militarily occupied country--applied to all Iraqis, even if they were suspected of belonging to Al Qaeda.