After Terror, a Secret Rewriting of Military Law

October 24, 2004

'Determined to deal aggressively with the terrorists they expected
to capture, the officials bypassed th federal courts and their
constitutional guarantees, giving the military the authority to
detain foreign suspects indefinitely and prosecute them in tribunals
not used since World War II.'


By TIM GOLDEN

WASHINGTON - In early November 2001, with Americans still staggered by
the Sept. 11 attacks, a small group of White House officials worked in
great secrecy to devise a new system of justice for the new war they had
declared on terrorism.

Determined to deal aggressively with the terrorists they expected to
capture, the officials bypassed th federal courts and their
constitutional guarantees, giving the military the authority to detain
foreign suspects indefinitely and prosecute them in tribunals not used
since World War II.
photo of a prisoner at Guantanamo
The plan was considered so sensitive that senior White House officials
kept its final details hidden from the president's national security
adviser, Condoleezza Rice, and the secretary of state, Colin L. Powell,
officials said. It was so urgent, some of those involved said, that they
hardly thought of consulting Congress.

White House officials said their use of extraordinary powers would allow
the Pentagon to collect crucial intelligence and mete out swift,
unmerciful justice. "We think it guarantees that we'll have the kind of
treatment of these individuals that we believe they deserve," said Vice
President Dick Cheney, who was a driving force behind the policy.

But three years later, not a single terrorist has been prosecuted. Of
the roughly 560 men being held at the United States naval base at
Guantánamo Bay, Cuba, only 4 have been formally charged. Preliminary
hearings for those suspects brought such a barrage of procedural
challenges and public criticism that verdicts could still be months
away. And since a Supreme Court decision in June that gave the detainees
the right to challenge their imprisonment in federal court, the Pentagon
has stepped up efforts to send home hundreds of men whom it once branded
as dangerous terrorists.

"We've cleared whole forests of paper developing procedures for these
tribunals, and no one has been tried yet," said Richard L. Shiffrin, who
worked on the issue as the Pentagon's deputy general counsel for
intelligence matters. "They just ended up in this Kafkaesque sort of
purgatory."

The story of how Guantánamo and the new military justice system became
an intractable legacy of Sept. 11 has been largely hidden from public view.

But extensive interviews with current and former officials and a review
of confidential documents reveal that the legal strategy took shape as
the ambition of a small core of conservative administration officials
whose political influence and bureaucratic skill gave them remarkable
power in the aftermath of the attacks.

The strategy became a source of sharp conflict within the Bush
administration, eventually pitting the highest-profile cabinet
secretaries - including Ms. Rice and Defense Secretary Donald H.
Rumsfeld - against one another over issues of due process,
intelligence-gathering and international law.

In fact, many officials contend, some of the most serious problems with
the military justice system are rooted in the secretive and contentious
process from which it emerged.

Military lawyers were largely excluded from that process in the days
after Sept. 11. They have since waged a long struggle to ensure that
terrorist prosecutions meet what they say are basic standards of
fairness. Uniformed lawyers now assigned to defend Guantánamo detainees
have become among the most forceful critics of the Pentagon's own system.

Foreign policy officials voiced concerns about the legal and diplomatic
ramifications, but had little influence. Increasingly, the
administration's plan has come under criticism even from close allies,
complicating efforts to transfer scores of Guantánamo prisoners back to
their home governments.

To the policy's architects, the attacks on the World Trade Center and
the Pentagon represented a stinging challenge to American power and an
imperative to consider measures that might have been unimaginable in
less threatening times. Yet some officials said the strategy was also
shaped by longstanding political agendas that had relatively little to
do with fighting terrorism.

The administration's claim of authority to set up military commissions,
as the tribunals are formally known, was guided by a desire to
strengthen executive power, officials said. Its legal approach,
including the decision not to apply the Geneva Conventions, reflected
the determination of some influential officials to halt what they viewed
as the United States' reflexive submission to international law.

In devising the new system, many officials said they had Osama bin
Laden and other leaders of Al Qaeda in mind. But in picking through the
hundreds of detainees at Guantánamo Bay, military investigators have
struggled to find more than a dozen they can tie directly to significant
terrorist acts, officials said. While important Qaeda figures have been
captured and held by the C.I.A., administration officials said they were
reluctant to bring those prisoners before tribunals they still consider
unreliable.

Some administration officials involved in the policy declined to be
interviewed, or would do so only on the condition they not be
identified. Others defended it strongly, saying the administration had a
responsibility to consider extraordinary measures to protect the country
from a terrifying enemy.

"Everybody who was involved in this process had, in my mind, a white hat
on," Timothy E. Flanigan, the former deputy White House counsel, said in
an interview. "They were not out to be cowboys or create a radical new
legal regime. What they wanted to do was to use existing legal models to
assist in the process of saving lives, to get information. And the war
on terror is all about information."

As the policy has faltered, other current and former officials have
criticized it on pragmatic grounds, arguing that many of the problems
could have been avoided. But some of the criticism also has a moral tone.

"What several of us were concerned about was due process," said John A.
Gordon, a retired Air Force general and former deputy C.I.A. director
who served as both the senior counterterrorism official and homeland
security adviser on President Bush's National Security Council staff.
"There was great concern that we were setting up a process that was
contrary to our own ideals."

*An Aggressive Approach*

The administration's legal approach to terrorism began to emerge in the
first turbulent days after Sept. 11, as the officials in charge of key
agencies exhorted their aides to confront Al Qaeda's threat with bold
imagination.

"Legally, the watchword became 'forward-leaning,' '' said a former
associate White House counsel, Bradford Berenson, "by which everybody
meant: 'We want to be aggressive. We want to take risks.' ''

That challenge resounded among young lawyers who were settling into
important posts at the White House, the Justice Department and other
agencies. Many of them were members of the Federalist Society, a
conservative legal fraternity. Some had clerked for Supreme Court
justices, Clarence Thomas and Antonin Scalia in particular. A striking
number had clerked for a prominent Reagan appointee, Lawrence H.
Silberman of the United States Court of Appeals for the District of
Columbia Circuit.

One young lawyer recalled looking around the room during a meeting with
Attorney General John Ashcroft. "Of 10 people, 7 of us were former
Silberman clerks," he said.

Mr. Berenson, then 36, had been consumed with the nomination of federal
judges until he was suddenly reassigned to terrorism issues and thrown
into intense, 15-hour workdays, filled with competing urgencies and
intermittent new alerts.

"All of a sudden, the curtain was lifted on this incredibly frightening
world," he said. "You were spending every day looking at the dossiers of
the world's leading terrorists. There was a palpable sense of threat."

As generals prepared for war in Afghanistan, lawyers scrambled to
understand how the new campaign against terrorism could be waged within
the confines of old laws.

Mr. Flanigan was at the center of the administration's legal
counteroffensive. A personable, soft-spoken father of 14 children, his
easy manner sometimes belied the force of his beliefs. He had arrived at
the White House after distinguishing himself as an agile legal thinker
and a Republican stalwart: During the Clinton scandals, he defended the
independent counsel, Kenneth W. Starr, saying he had conducted his
investigation "in a moderate and appropriate fashion." In 2000, he
played an important role on the Bush campaign's legal team in the
Florida recount.

In the days after the Sept. 11 attacks, Mr. Flanigan sought advice from
the Justice Department's Office of Legal Counsel on "the legality of the
use of military force to prevent or deter terrorist activity inside the
United States,'' according to a previously undisclosed department
memorandum that was reviewed by The New York Times.

The 20-page response came from John C. Yoo, a 34-year-old Bush appointee
with a glittering résumé and a reputation as perhaps the most
intellectually aggressive among a small group of legal scholars who had
challenged what they saw as the United States' excessive deference to
international law. On Sept. 21, 2001, Mr. Yoo wrote that the question
was how the Constitution's Fourth Amendment rights against unreasonable
search and seizure might apply if the military used "deadly force in a
manner that endangered the lives of United States citizens."

Mr. Yoo listed an inventory of possible operations: shooting down a
civilian airliner hijacked by terrorists; setting up military
checkpoints inside an American city; employing surveillance methods more
sophisticated than those available to law enforcement; or using military
forces "to raid or attack dwellings where terrorists were thought to be,
despite risks that third parties could be killed or injured by exchanges
of fire."

Mr. Yoo noted that those actions could raise constitutional issues, but
said that in the face of devastating terrorist attacks, "the government
may be justified in taking measures which in less troubled conditions
could be seen as infringements of individual liberties." If the
president decided the threat justified deploying the military inside the
country, he wrote, then "we think that the Fourth Amendment should be no
more relevant than it would be in cases of invasion or insurrection."

The prospect of such military action at home was mostly hypothetical at
that point, but with the government taking the fight against terrorism
to Afghanistan and elsewhere around the world, lawyers in the
administration took the same "forward-leaning" approach to making plans
for the terrorists they thought would be captured.

The idea of using military commissions to try suspected terrorists
first came to Mr. Flanigan, he said, in a phone call a couple of days
after the attacks from William P. Barr, the former attorney general
under whom Mr. Flanigan had served as head of the Justice Department's
Office of Legal Counsel during the first Bush administration.

Mr. Barr had first suggested the use of military tribunals a decade
before, to try suspects in the bombing of Pan Am Flight 103 over
Lockerbie, Scotland. Although the idea made little headway at the time,
Mr. Barr said he reminded Mr. Flanigan that the Legal Counsel's Office
had done considerable research on the question. Mr. Flanigan had an aide
call for the files.

"I thought it was a great idea," he recalled.

Military commissions, he thought, would give the government wide
latitude to hold, interrogate and prosecute the sort of suspects who
might be silenced by lawyers in criminal courts. They would also put the
control over prosecutions squarely in the hands of the president.

The same ideas were taking hold in the office of Vice President Cheney,
championed by his 44-year-old counsel, David S. Addington. At the time,
Mr. Addington, a longtime Cheney aide with an indistinct portfolio and
no real staff, was not well-known even in the government. But he would
become legendary as a voraciously hard-working official with strongly
conservative views, an unusually sharp pen and wide influence over
military, intelligence and other matters. In a matter of months, he
would make a mark as one of the most important architects of the
administration's legal strategy against foreign terrorism.

Beyond the prosecutorial benefits of military commissions, the two
lawyers saw a less tangible, but perhaps equally important advantage.
"From a political standpoint," Mr. Flanigan said, "it communicated the
message that we were at war, that this was not going to be business as
usual."

*Changing the Rules*

In fact, very little about how the tribunal policy came about resembled
business as usual. For half a century, since the end of World War II,
most major national-security initiatives had been forged through
interagency debate. But some senior Bush administration officials felt
that process placed undue power in the hands of cautious, slow-moving
foreign policy bureaucrats. The sense of urgency after Sept. 11 brought
that attitude to the surface.

Little more than a week after the attacks, officials said, the White
House counsel, Alberto F. Gonzales, set up an interagency group to draw
up options for prosecuting terrorists. They came together with high
expectations.

"We were going to go after the people responsible for the attacks, and
the operating assumption was that we would capture a significant number
of Al Qaeda operatives," said Pierre-Richard Prosper, the State
Department official assigned to lead the group. "We were thinking hundreds."

Mr. Prosper, then 37, had just been sworn in as the department's
ambassador-at-large for war crimes issues. As a prosecutor, he had taken
on street gangs and drug Mafias and had won the first genocide
conviction before the International Criminal Tribunal for Rwanda. Even
so, some administration lawyers eyed him suspiciously - as more diplomat
than crime-fighter.

Mr. Gonzales had made it clear that he wanted Mr. Prosper's group to put
forward military commissions as a viable option, officials said. The
group laid out three others - criminal trials, military courts-martial
and tribunals with both civilian and military members, like those used
for Nazi war criminals at Nuremberg.

Representatives of the Justice Department's criminal division, which had
prosecuted a string of Qaeda defendants in federal district court over
the previous decade, argued that the federal courts could do the job
again. The option of toughening criminal laws or adapting the courts, as
several European countries had done, was discussed, but only briefly,
two officials said.

"The towers were still smoking, literally," Mr. Prosper said. "I
remember asking: Can the federal courts in New York handle this? It
wasn't a legal question so much as it was logistical. You had 300 Al
Qaeda members, potentially. And did we want to put the judges and juries
in harm's way?"

Lawyers at the White House saw criminal courts as a minefield, several
officials said.

Much of the evidence against terror suspects would be classified
intelligence that would be difficult to air in court or too sketchy to
meet federal standards, the lawyers warned. Another issue was security:
Was it safe to try Osama bin Laden in Manhattan, where he was facing
federal charges for the 1998 bombings of American Embassies in East Africa?

Then there was a tactical question. To act pre-emptively against Al
Qaeda, the authorities would need information that defense lawyers and
due-process rules might discourage suspects from giving up.

Mr. Flanigan framed the choice starkly: "Are we going to go with a
system that is really guaranteed to prevent us from getting information
in every case or are we going to go another route?"

Military commissions had no statutory rules of their own. In past
American wars, when such tribunals had been used to carry out
battlefield justice against spies, saboteurs and others accused of
violating the laws of war, they had generally hewed to prevailing
standards of military justice. But the advocates for commissions in the
Bush administration saw no reason they could not adapt the rules,
officials said. Standards of proof could be lowered. Secrecy provisions
could be expanded. The death penalty could be more liberally applied.

But some members of the interagency group saw it as more complicated.
Terrorism had not been clearly established as a war crime under
international law. Writing new law for a military tribunal might end up
being more difficult than prosecuting terrorism cases in existing courts.

By late October 2001, the White House lawyers had grown impatient with
what they saw as the dithering of Mr. Prosper's group and what one
former official called the "cold feet" of some of its members. Mr.
Flanigan said he thought the government needed to move urgently in case
a major terrorist linked to the attacks was apprehended.

He gathered up the research that the Prosper group had completed on
military commissions and took charge of the matter himself. Suddenly,
the other options were off the table and the Prosper group was out of
business.

"Prosper is a thoughtful, gentle, process-oriented guy," the former
official said. "At that time, gentle was not an adjective that anybody
wanted."

*A Secretive Circle*

With the White House in charge, officials said, the planning for
tribunals moved forward more quickly, and more secretly. Whole agencies
were left out of the discussion. So were most of the government's
experts in military and international law.

The legal basis for the administration's approach was laid out on Nov.
6 in a confidential 35-page memorandum sent to Mr. Gonzales from Patrick
F. Philbin, a deputy in the Legal Counsel's office. (Attorney General
Ashcroft has refused recent Congressional requests for the document, but
a copy was reviewed by The Times.)

The memorandum's plain legalese belied its bold assertions.

It said that the president, as commander in chief, has "inherent
authority'' to establish military commissions without Congressional
authorization. It concluded that the Sept. 11 attacks were "plainly
sufficient" to warrant applying the laws of war.

Opening a debate that would later divide the administration, the
memorandum also suggested that the White House could apply international
law selectively. It stated specifically that trying terrorists under the
laws of war "does not mean that terrorists will receive the protections
of the Geneva Conventions or the rights that laws of war accord to
lawful combatants."

The central legal precedent cited in the memorandum was a 1942 case in
which the Supreme Court upheld President Franklin D. Roosevelt's use of
a military commission to try eight Nazi saboteurs who had sneaked into
the United States aboard submarines. Since that ruling, revolutions had
taken place in both international and military law, with the adoption of
the Geneva Conventions in 1949 and the Uniform Code of Military Justice
in 1951. Even so, the Justice memorandum said the 1942 ruling had "set a
clear constitutional analysis" under which due process rights do not
apply to military commissions.

Roosevelt, too, created his military commission without new and explicit
Congressional approval, and authorized the military to fashion its own
procedural rules. He also established himself, rather than a military
judge, as the "final reviewing authority'' for the case.

Mr. Addington seized on the Roosevelt precedent as a model, two people
involved in the process said, despite vast differences. Roosevelt acted
against enemy agents in a traditional war among nations. Mr. Bush would
be asserting the same power to take on a shadowy network of adversaries
with no geographic boundaries, in a conflict with no foreseeable end.

Mr. Addington, who drafted the order with Mr. Flanigan, was particularly
influential, several officials said, because he represented Mr. Cheney
and brought formidable experience in national-security law to a small
circle of senior officials. Mr. Addington turned down several requests
for interviews and a spokesman for the vice president's office declined
to comment.

"He was probably the only one there who would know what an order would
look like, what it would say," a former Justice Department official
said, noting Mr. Addington's work at the Defense Department, the C.I.A.,
and Congressional intelligence committees. "He didn't have authority
over anyone. But he's a persuasive guy."

To many officials outside the circle, the secrecy was remarkable.

While Mr. Ashcroft and his deputy, Larry D. Thompson, were closely
consulted, the head of the Justice Department's criminal division,
Michael Chertoff, who had argued for trying terror suspects in federal
court, saw the military order only when it was published, officials
said. Mr. Rumsfeld was kept informed of the plan mainly through his
general counsel, William J. Haynes II, several Pentagon officials said.

Many of the Pentagon's experts on military justice, uniformed lawyers
who had spent their careers working on such issues, were mostly kept in
the dark. "I can't tell you how compartmented things were," said retired
Rear Adm. Donald J. Guter, who was then the Navy's senior military
lawyer, or judge advocate general. "This was a closed administration."

A group of experienced Army lawyers had been meeting with Mr. Haynes
repeatedly on the process, but began to suspect that what they said did
not resonate outside the Pentagon, several of them said.

On Friday, Nov. 9, Defense Department officials said, Mr. Haynes called
the head of the team, Col. Lawrence J. Morris, into his office to review
a draft of the presidential order. He was given 30 minutes to study it
but was not allowed to keep a copy or even take notes.

The following day, the Army's judge advocate general, Maj. Gen. Thomas
J. Romig, hurriedly convened a meeting of senior military lawyers to
discuss a response. The group worked through the Veterans Day weekend to
prepare suggestions that would have moved the tribunals closer to
existing military justice. But when the final document was issued that
Tuesday, it reflected none of the officers' ideas, several military
officials said. "They hadn't changed a thing," one official said.

In fact, while the military lawyers were pulling together their
response, they were unaware that senior administration officials were
already at the White House putting finishing touches on the plan. At a
meeting that Saturday in the Roosevelt Room, Mr. Cheney led a discussion
among Attorney General Ashcroft, Mr. Haynes of the Defense Department,
the White House lawyers and a few other aides.

Senior officials of the State Department and the National Security
Council staff were excluded from final discussions of the policy, even
at a time when they were meeting daily about Afghanistan with the
officials who were drafting the order. According to two people involved
in the process, Mr. Cheney advocated withholding the draft from Ms. Rice
and Secretary Powell.

When the two cabinet members found out about the military order - upon
its public release - Ms. Rice was particularly angry, several senior
officials said. Spokesmen for both officials declined to comment.

Mr. Bush played only a modest role in the debate, senior administration
officials said. In an initial discussion, he agreed that military
commissions should be an option, the officials said. Later, Mr. Cheney
discussed a draft of the order with Mr. Bush over lunch, one former
official said. The president signed the three-page order on Nov. 13.

No ceremony accompanied the signing, and the order was released to the
public that day without so much as a press briefing. But its historic
significance was unmistakable.

The military could detain and prosecute any foreigner whom the
president or his representative determined to have "engaged in, aided or
abetted, or conspired to commit" terrorism. Echoing the Roosevelt order,
the Bush document promised "free and fair" tribunals but offered few
guarantees: There was no promise of public trials, no right to remain
silent, no presumption of innocence. As in 1942, guilt did not
necessarily have to be proven beyond a reasonable doubt and a death
sentence could be imposed even with a divided verdict.

Despite those similarities, some military and international lawyers were
struck by the differences.

"The Roosevelt order referred specifically to eight people, the eight
Nazi saboteurs," said Mr. Shiffrin, who was then the Defense
Department's deputy general counsel for intelligence matters and had
studied the Nazi saboteurs' case. "Here we were putting in place a
parallel system of justice for a universe of people who we had no idea
about - who they would be, how many of them there would be. It was a
very dramatic measure."

*Mounting Criticism*

The White House did its best to play down the drama, but criticism of
the order was immediate and widespread.

Civil libertarians and some Congressional leaders saw an attempt to
supplant the criminal justice system. Critics also worried about the
concentration of power: The president or his proxies would define the
crimes (often after an act had been committed); set the rules for trial;
and choose the judges, juries and appellate panels.

Senator Patrick J. Leahy, the Vermont Democrat who was then chairman of
the Senate Judiciary Committee, was among a handful of legislators who
argued that the administration's plan required explicit Congressional
authorization. The Congress had just passed the Patriot Act by a huge
margin, and Mr. Leahy proposed authorizing military commissions, but
with some important changes, including a presumption of innocence for
defendants and appellate review by the Supreme Court.

Critics seized on complaints from abroad, including an announcement
from the Spanish authorities that they would not extradite some
terrorist suspects to the United States if they would face the
tribunals. "We are the most powerful nation on earth," Mr. Leahy said.
"But in the struggle against terrorism, we don't have the option of
going it alone. Would these military tribunals be worth jeopardizing the
cooperation we expect and need from our allies?"

Senators called for Mr. Rumsfeld and Mr. Ashcroft to testify about the
tribunals plan. Instead, the administration sent Mr. Prosper from the
State Department and Mr. Chertoff of the Justice Department - both of
whom had questioned the use of commissions and were later excluded from
the administration's final deliberations.

But the Congressional opposition melted in the face of opinion polls
showing strong support for the president's measures against terrorism.

There was another reason fears were allayed. With the order signed, the
Pentagon was writing rules for exactly how the commissions would be
conducted, and an early draft that was leaked to the news media
suggested defendants' rights would be expanded. Mr. Rumsfeld, who
assembled a group of outside legal experts - including some who had
worked on World War II-era tribunals - to consult on the rules, said
critics' concerns would be taken into account.

But all of the critics were not outside the administration.

Many of the Pentagon's uniformed lawyers were angered by the implication
that the military would be used to deliver "rough justice" for the
terrorists. The Uniform Code of Military Justice had moved steadily into
line with the due-process standards of the federal courts, and senior
military lawyers were proud and protective of their system. They
generally supported using commissions for terrorists, but argued that
the system would not be fair without greater rights for defendants.

"The military lawyers would from time to time remind the civilians that
there was a Constitution that we had to pay attention to," said Admiral
Guter, who, after retiring as the Navy judge advocate general, signed a
"friend of the court" brief on behalf of plaintiffs in the Guantánamo
Supreme Court case.

Even as uniformed lawyers were given a greater role in writing rules for
the commissions, they still felt out of the loop.

In early 2002, Admiral Guter said, during a weekly lunch with Mr. Haynes
and the top lawyers for the military branches, he raised the issue with
Mr. Haynes directly: "We need more information."

Mr. Haynes looked at him coldly. "No, you don't," he quoted Mr. Haynes
as saying.

Mr. Haynes declined to comment on the exchange.

Lt. Col. William K. Lietzau, a Yale-trained Marine lawyer on Mr.
Haynes's staff, often found himself in the middle. "I could see how the
JAGs were frustrated that the task of setting up the commissions hadn't
been delegated to them,'' he said, referring to the senior military
lawyers. "On the other hand, I could see how some of their
recommendations frustrated the leadership because they didn't always
appear to embrace the paradigm shift needed to deal with terrorism."

Some Justice Department officials also urged changes in the commission
rules, current and former officials said. While Attorney General
Ashcroft staunchly defended the policy in public, in a private meeting
with Pentagon officials, he said some of the proposed commission rules
would be seen as "draconian," two officials said.

On nearly every issue, interviews and documents show, the harder line
was staked out by White House lawyers: Mr. Addington, Mr. Gonzales and
Mr. Flanigan. They opposed allowing civilian lawyers to assist the
tribunal defendants, as military courts-martial permit, or allowing
civilians to serve on the appellate panel that would oversee the
commissions. They also opposed granting defendants a presumption of
innocence.

In the end, Mr. Rumsfeld compromised. He granted defendants a
presumption of innocence and set "beyond a reasonable doubt" as a
standard for proving guilt. He also allowed the defendants to hire
civilian lawyers, but restricted the lawyers' access to case
information. And he gave the presiding officer at a tribunal license to
admit any evidence he thought might be convincing to a "reasonable person.''

One right the administration sought to deny the prisoners was the
ability to appeal the legality of their detentions in federal court. The
administration had done its best to decide the question when searching
for a place to detain hundreds of prisoners captured in Afghanistan.
Every location it seriously considered - including an American military
base in Germany and islands in the South Pacific - was outside the
United States and, the administration believed, beyond the reach of the
federal judiciary.

On Dec. 28, 2001, after officials settled on Guantánamo Bay, Mr. Philbin
and Mr. Yoo told the Pentagon in a memorandum that it could make a "very
strong" claim that prisoners there would be outside the purview of
American courts. But the memorandum cautioned that a reasonable argument
could also be made that Guantánamo "while not part of the sovereign
territory of the United States, is within the territorial jurisdiction
of a federal court." That warning would come back to haunt the
administration.

*A Shift in Power*

Some of the officials who helped design the new system of justice would
later explain the influence they exercised in the chaotic days after
Sept. 11 as a response to a crisis. But a more enduring shift of power
within the administration was taking place - one that became apparent in
a decision that would have significant consequences for how terror
suspects were interrogated and detained.

At issue was whether the administration would apply the Geneva
Conventions to the conflicts with Al Qaeda and the Taliban and whether
those enemies would be treated as prisoners of war.

Based on the advice of White House and Justice Department lawyers, Mr.
Bush initially decided on Jan. 18, 2002, that the conventions would not
apply to either conflict. But at a meeting of senior national security
officials several days later, Secretary of State Powell asked him to
reconsider.

Mr. Powell agreed that the conventions did not apply to the global fight
against Al Qaeda. But he said troops could be put at risk if the United
States disavowed the conventions in dealing with the Taliban - the de
facto government of Afghanistan. Both Mr. Rumsfeld and the chairman of
the Joint Chiefs of Staff, Gen. Richard B. Myers, supported his
position, Pentagon officials said.

In a debate that included the administration's most experienced
national-security officials, a voice heard belonged to Mr. Yoo, only a
deputy in the Office of Legal Counsel. He cast Afghanistan as a "failed
state," and said its fighters should not be considered a real army but a
"militant, terrorist-like group." In a Jan. 25 memorandum, the White
House counsel, Mr. Gonzales, characterized that opinion as "definitive,"
although it was not the final basis for the president's decision.

The Gonzales memorandum suggested that the "new kind of war" Mr. Bush
wanted to fight could hardly be reconciled with the "quaint" privileges
that the Geneva Conventions gave to prisoners of war, or the "strict
limitations" they imposed on interrogations.

Military lawyers disputed the idea that applying the conventions would
necessarily limit interrogators to the name, rank and serial number of
their captives. "There were very good reasons not to designate the
detainees as prisoners of war, but the claim that they couldn't be
interrogated was not one of them," Colonel Lietzau said. Again, though,
such questions were scarcely heard, officials involved in the
discussions said.

Mr. Yoo's rise reflected a different approach by the Bush administration
to sensitive legal questions concerning foreign affairs, defense and
intelligence.

In past administrations, officials said, the Office of Legal Counsel
usually weighed in with opinions on questions that had already been
deliberated by the legal staffs of the agencies involved. Under Mr.
Bush, the office frequently had a first and final say. "O.L.C. was
definitely running the show legally, and John Yoo in particular," a
former Pentagon lawyer said. "He's kind of fun to be around, and he has
an opinion on everything. Even though he was quite young, he exercised
disproportionate authority because of his personality and his strong
opinions."

Mr. Yoo's influence was amplified by friendships he developed not just
with Mr. Addington and Mr. Flanigan, but also Mr. Haynes, with whom he
played squash as often as three or four times a week at the Pentagon
Officers Athletic Club.

If the Geneva Conventions debate raised Mr. Yoo's stature, it had the
opposite effect on lawyers at the State Department, who were later
excluded from sensitive discussions on matters like the interrogation of
detainees, officials from several agencies said.

"State was cut out of a lot of this activity from February of 2002 on,"
one senior administration official said. "These were treaties that we
were dealing with; they are meant to know about that."

The State Department legal adviser, William H. Taft IV, was shunned by
the lawyers who dominated the detainee policy, officials said. Although
Mr. Taft had served as the deputy secretary of defense during the Reagan
administration, more conservative colleagues whispered that he lacked
the constitution to fight terrorists.

"He was seen as ideologically squishy and suspect," a former White House
official said. "People did not take him very seriously."

Through a State Department spokesman, Richard A. Boucher, Mr. Taft
declined to comment.

The rivalries could be almost adolescent. When field trips to Guantánamo
Bay were arranged for administration lawyers, the invitations were
sometimes relayed last to the State Department and National Security
Council, officials said, in the hope that lawyers there would not be
able to go on short notice.

It was on the first field trip, 10 days after detainees began to arrive
there on Jan. 11, 2002, that White House lawyers made clear their
intention to move forward quickly with military commissions.

On the flight home, several officials said, Mr. Addington urged Mr.
Gonzales to seek a blanket designation of all the detainees being sent
to Guantánamo as eligible for trial under the president's order. Mr.
Gonzales agreed.

The next day, the Pentagon instructed military intelligence officers at
the base to start filling out one-page forms for each detainee,
describing their alleged offenses. Weeks later, Mr. Haynes issued an
urgent call to the military services, asking them to submit nominations
for a chief prosecutor.

The first trials, many military and administration officials believed,
were just around the corner.Next: A Policy Unravels

/Jack Begg contributed research for this article./

Copyright 2004 The New York Times
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