Emily Bazelon - Slate.com (June 26, 2008)

The Headmaster and the SchoolboyDavid Addington and John Yoo visit the Hill.

By Emily Bazelon
Posted Thursday, June 26, 2008, at 8:05 PM ET


Two hostile witnesses are better than one. This we learn today on Capitol Hill from the mashup of David Addington, the vice president's consiglieri, and John Yoo, author of the 2002 and 2003 torture memos. Appearing before a House subcommittee, Yoo-Addington is like the witness version of good cop-bad cop. Yoo is wide-faced, plaintive, perplexed as to why anyone in Congress might be upset about anything he's written or done or his refusals to answer their questions. He goes for schoolboy sympathy. Addington, on the other hand, is all stern-faced headmaster. No one is schooling him today, thank you very much.

The purpose of hauling in these reluctant witnesses, Rep. Jerrold Nadler, D-N.Y., says at the outset of the hearing, is to examine the role of Bush administration lawyers in developing interrogation policy—the policy that led to water-boarding and other harsh methods that are hard to square with the Geneva Conventions, no matter how long you squint at them. Addington and Yoo listen politely to Nadler's wishful thinking. Their lawyers have already done their best to whittle today's substance to the barest of bones. When the House judiciary committee initially asked Addington to testify, the Office of the Vice President said no, with lots of fighting words about how Congress couldn't compel Dick Cheney or anyone who works for him to talk. It seemed a foregone conclusion that Addington would go the way of nonwitnesses like Harriet Miers and Josh Bolten: to court rather than to the committee room.

Then, in May, Cheney's top aide and his office relented. Sort of. Addington would show up but only with a long off-limits list. As he and his lawyer understood it, Congress would not ask him to speak with authority about the nature and scope of presidential power in wartime, the administration's approach to those questions under U.S. and international law, or U.S. policy relating to interrogation by the CIA or the military. What would Addington discuss? This is the mystery when the gavel raps at 10 a.m.


Rep. John Conyers, D-Mich., optimistically opens with his own list. He wants Addington and Yoo to come clean about 1) the torture memos: how they were drafted and why; 2) the effect of Yoo's legal advice on interrogation at Guantanamo Bay; 3) the so-called War Council in which Addington and Yoo reportedly participated, which "made key legal decisions on national security issues outside of normal channels," as Conyers puts it in a written version of his remarks.

Addington parries with no written statement, just a list of exhibits, most of them about the back-and-forth between his lawyer and the subcommittee. (Oh, and a speech by the president, in case we missed it on C-SPAN.) He has five minutes to open. He uses about 30 seconds to correct two small errors in Nadler's rendition of his bio. Then he's done. Nadler is thrown off balance. "Is that the entirety of your statement?" he asks.* Addington sits back and nods. It's a great move—his version of nimbly stepping out of the way as his opponent lunges forward.

Yoo, on the other hand, has a written statement that is supposed to shield him with a shrinking spell. The Office of Legal Counsel at the Justice Department, where he worked when he wrote his infamous memos, "was not involved in the making of policy decisions," he asserts. He continues, "Those policy choices—adopting particular techniques within the lines that OLC had determined to be lawful—were not mine to make, and I did not make them." Also, he wants the subcommittee to know that his bosses at the Office of the Attorney General reviewed and edited everything he wrote. This opening gambit implicitly denies that Yoo had any role on any War Council, thereby refuting the much-cited reports of Jack Goldsmith, the OLC guy who later pulled Yoo's torture memos and denounced them (and then left the DoJ, too, and is now tapping away somewhere for Slate on the latest Supreme Court decisions).

Yoo is so determined to distance himself from interrogation-related policymaking that he pulls Rep. Keith Ellison, D-Minn., into a tug-of-war over the meaning of the word implemented. Ellison wants to know whether the legal advice was implemented that reduced the definition of torture to acts that damage a suspect's internal organs. By which he means, Did interrogators use the tactics allowed by Yoo's theory of the law? The answer to this, of course, is yes, and to know that answer, all Yoo would have to admit is that he reads the newspaper. But he won't go there. "The memo was signed," he offers after much demurral. This exchange peters out, as do the next few, leading a further questioner, Steve Cohen, D-Tenn., to grimly mutter, "You guys sure are good at beating out the clock." To which Yoo replies, with an innocent shrug, "I don't play basketball." Too busy being captain of the debate team.

The next point, though, goes to Rep. Nadler. He asks a series of questions that other questioners have also gone through, along these lines: Did Yoo's memos allow the president to bury a suspect alive? To torture the child of a suspect? To cut off a suspect's fingers? To which Yoo replies with some variation of, "An American president would not issue such an order." Nadler responds that he hadn't asked what the president "would do. I asked what he could do," given Yoo's legal theory and advice.

"It's not fair to ask that question without any facts," Yoo complains. But that's not really what his questioners are doing. They're trying to establish whether anything is off limits to the president in Yoo's legal universe. And Yoo doesn't come up with a single example, even as he insists that "my memo does not authorize anyone to torture anyone." This is an assurance that's not reassuring.

As a result of all this back-and-forth, Addington gets less air time. That seems odd, since he's the higher-up and the one who's still in office. But if you could choose between going after the slightly whiny student and the caustic, blustery headmaster, what would you do? Addington does a lot of smacking down of the questioners. (I understand what I mean. I'm not sure exactly what you mean.) He doesn't admit to making interrogation policy, either, only to "monitoring what was going on" and, during a handful of visits to Guantanamo, observing "a detainee in an orange jumpsuit sitting in a chair talking" to an interrogator. It's all so benign that it bores him. As for the War Council, that was a name the Department of Defense seems to have come up with for a regular gathering that also included former DoD General Counsel William Haynes, former White House Counsel Alberto Gonzales, and a few deputies. "To me, it was just the lawyers getting together to talk," Addington says. Need I add that his tone was dismissive?

Addington also gets in a little fear-mongering: When the torture memos were written, he says, "the smoke was still rising" from 9/11. Actually, by 2003, that was no longer the case. But never mind: Addington's point is that things were different then, "but not as different today as a lot of people may think. … No American should think that we're free, or that the war is over. Because that's wrong." He's the teacher. That's the lesson. Now, go copy it onto the blackboard 500 times, Congress.

Correction, June 27, 2008: The original sentence misattributed the reaction to Addington's opening, and the subsequent quote, to Rep. John Conyers rather than Rep. Jerrold Nadler.