After September 11, 2001: Cheney Lawyers and Justice Department Subordinates Drive White House Expansion of Presidential Power

After the 9/11 attacks, the Bush administration seizes the new opportunities to expand the power of the presidency that present themselves as part of the government’s response to the attacks (see (After 10:00 a.m.) September 11, 2001). The Bush-Cheney legal team, largely driven by Vice President Cheney and his staff (see January 21, 2001), aggressively pushes for new opportunities to expand executive branch authorities.
'Bravado,' 'Close-Minded Group of Like-Minded People' - A senior White House official later tells author and reporter Charlie Savage of the “pervasive post-9/11 sense of masculine bravado and one-upmanship when it came to executive power.” In Savage’s words, and quoting the official, “a ‘closed group of like-minded people’ were almost in competition with one another, he said, to see who could offer the farthest-reaching claims of what a president could do. In contrast, those government lawyers who were perceived as less passionate about presidential power were derided as ‘soft’ and were often simply cut out of the process” (see September 25, 2001).
Suspicion of Oversight - “The lawyers for the administration felt a tremendous amount of time pressure, and there was a lot of secrecy,” the official will say. “These things were being done in small groups. There was a great deal of suspicion of the people who normally act as a check inside the executive branch, such as the State Department, which had the reputation of being less aggressive on executive power. This process of faster, smaller groups fed on itself and built a dynamic of trying to show who was tougher on executive power.”
Addington and Yoo: Outsized Influence - While nominally the leaders of the White House legal team are Attorney General John Ashcroft and White House counsel Alberto Gonzales, neither has as much influence as lawyers and staffers ostensibly of lower rank than themselves. Ashcroft is a vociferous supporter of the administration’s anti-terrorism policies, but is not a member of Bush’s inner circle and sometimes disagrees with the White House’s legal moves. Neither Ashcroft nor Gonzales have prior experience dealing with the legal issues surrounding executive power and national security. Two of the driving forces behind the White House’s push for more presidential power are Cheney’s chief counsel, David Addington, and an obscure deputy in the Office of Legal Counsel (OLC), John Yoo. Because of a dispute between Ashcroft and the Bush inner circle over who should lead the OLC, there is no official chief of the OLC until November 2002, leaving Yoo and his fellows free to be as aggressive as they like on expanding presidential power and handling the war on terrorism. When the OLC chief, law professor Jay Bybee, finally arrives, he, like Ashcroft and Gonzales, finds himself hampered by his lack of knowledge of the law as it pertains to national security. Savage will later write, “When he finally started work, Bybee let deputies continue to spearhead the review of matters related to the war on terrorism.” Yoo is only a deputy assistant attorney general, but he has “signing power”—the ability to make his opinion legally binding—and is rarely reviewed by his peers because much of his work is classified. [Savage, 2007, pp. 76-78] As for Addington, Lawrence Wilkerson, the chief of staff for Secretary of State Colin Powell, will later say that he was the leader of the small but highly influential group of lawyers “who had these incredible theories and would stand behind their principles [Cheney, Bush, and others], whispering in their ears about these theories, telling them they have these powers, that the Constitution backs these powers, that these powers are ‘inherent’ and blessed by God and if they are not exercised, the nation will fall. He’d never crack a smile. His intensity and emotions and passion for these theories are extraordinary.” [Savage, 2007, pp. 84]