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MADELEINE BRAND, host:

This is Day to Day, I'm Madeleine Brand.

ALEX CHADWICK, host

I'm Alex Chadwick. We heard the first part of Madeleine's interview with Jane Mayer yesterday. This is about Jane's new book, "The Dark Side: The Inside Story of How the War on Terror Turned into A War on American Ideals." We heard what was behind some of the most controversial decisions in the war on terror.

BRAND: Today, we hear who was behind them. Jane Mayer says it was Vice President Dick Cheney, along with his then legal adviser, David Addington. He's a man she describes as the most important man in America that Americans have never heard of.

Ms. JANE MAYER (Author): The two of them had long wished to restore the, kind of, nearly imperial powers of the presidency that were in the Nixon days. Cheney had been very upset during Watergate, and particularly upset with the post-Watergate reforms that put a lot of curbs on presidential power. Because of Nixon's spying, they stopped presidents from being able to spy domestically, they passed the War Powers Act, there was the Freedom Information Act, all kinds of things to try to put some more checks and balances on the president. And Cheney had been chafing at this for a very long time; so had Addington. So, after 9/11, basically by calling the war on terrorism a war, they could give the president the powers of the commander in chief, and then they reinvented exactly what that meant, by redefining the laws.

BRAND: And what exactly did they want to redefine? What powers did they want to give the president?

Ms. MAYER: Well, it's really quite incredible. We're still, only now, seeing some of these memos. Many of them have not come out still. I'm not a lawyer myself, but you can, sort of, read what Bruce Fine says. He's a Republican lawyer, and he says it, sort of, reminded him of, you know, Louis XIV or something. It was, kind of, like a secret legal empowerment going on in the back rooms of the Justice Department.

BRAND: All run by David Addington and Vice President Cheney?

Ms. MAYER: Well, there was a group of lawyers, a very small group of lawyers, they actually were, kind of, like a clique. They called themselves the War Council. David Addington was one of them. Jim Haynes, who was the lawyer at the Pentagon, was another. There were a couple of people in the White House legal office, including Alberto Gonzales, who was the legal counsel in the White House at the time. And they excluded, very carefully, anybody who would disagree with them. So many of the people, who were mostly experts in things like the law of war, particularly the military, many of the people who knew most about international law, like interpreting treaties, like the people at the State Department, those lawyers were cut out.

They really didn't know what was happening. And so, what I've been trying to do is piece all of this together. Because I think the country's gotten bits of it, kind of like pieces of a puzzle out of order. It's actually one great big incredible story. It's like an epic. It starts at 9/11 and it goes right on up through Guantanamo and the CIA, dark prison sites, and all the rest of the things that we're now, sort of, more familiar with than we wish we were.

BRAND: So it all starts with this small clique, as you say, that includes David Addington, Vice President Cheney, John Hugh at the office of legal counsel, and a few others. And they basically get together and don't include, for example, the Attorney General at the time, John Ashcroft. Nor do they include Colin Powell, the secretary of state at the time, or Condoleezza Rice, the national security adviser, and they all come up with these justifications for not abiding by the Geneva Conventions, of getting around the Fizel (ph) Law, of instituting these harsh interrogation techniques.

Ms. MAYER: Well, basically, they come up with a theory that the president was really above the law. When it came to protecting the country, he didn't have to abide by laws that have been passed by Congress. So, laws like the Convention against Torture, they'd find ways to reinterpret and step outside of. And it winds up with a, kind of, a breathtaking break with America's tradition, which is very much the rule of law. This was really, sort of, putting the president above and outside all of that.

BRAND: And where was the president on all this?

Ms. MAYER: Well, one of the funny things about this is that Cheney and the people around him were always arguing about expanding executive power in the name of the president. But the president actually is not that visible in a lot of these moves. From what I've been able to see, Cheney really was, in almost every case on national security, calling the shots. He and his old friend, Rumsfeld, basically. And the president, you know, I talked to somebody who briefed him regularly, who said, well, you know, he was kind of distracted. He said that they scheduled him in five minute increments, and so he really didn't have much time to focus on a lot of things, where, by contrast Cheney was described as really drilling down and really getting all of the details. He was also described as somebody who really couldn't care less if nobody liked him, so he was undeterred by the need to be popular, and he just, kind of, pursued a very extreme agenda that I think, if it had been public, would not have been popular.

BRAND: So, these legal memos are drafted to explain, in very dense legalese, how to get around certain laws by the office in the Justice Department, the office of legal counsel. And so then, these legal memos, they translate into what?

Ms. MAYER: They translate basically into call it what you will. They translate into a complete green light to go and wage the war on terror in pretty much any way they think they need to do so. And they also translate into what Jack Goldsmith, who used to run the office of legal counsel, called a golden shield, or a get out of jail free card. The Justice Department is telling both the CIA and the military that many of the rules that restricted how you treat prisoners are no longer applicable.

So, what happens is, the soldiers out in the field have the old rules taken away, the Geneva Convention rules, and really don't have anything new much to deal with. They're told they needed to try to treat prisoners humanely, but nobody really knows exactly what that means on any given day. So, they kind of put the soldiers into free fall. And the same thing with many of the CIA officers who were involved with interrogation. Suddenly, they're allowed to do things like water board detainees where, in the past, water boarding was absolutely considered torture and considered a crime. Now, I don't want to try to give the impression that the CIA's program was just, you know, willy nilly, and that people were just making it up as they were going along, because one of the things that I discovered in working on this book was that it was very tightly controlled, straight from the top, over the CIA.

It was almost like, if you remember that childhood game, Mother, May I, where you have to ask each time if you can take a step. They would have interrogators halfway around the world saying, can I slap the guy in the belly? Can I give him an extra hour of sleep deprivation? There was constant traffic back and forth between the interrogators and the bosses in Langley, which means that, should anyone be able to open up the books here, what they would be able to find is a true, sort of, line of accountability that goes right to the top of the government.

BRAND: Jane Mayer of the New Yorker Magazine. Our conversation continues tomorrow about her new book, "The Dark Side: The Inside Story of How the War on Terror Turned into A War on American Ideals."

Ms. MAYER: Many, many good people, most of the people who really clashed on the idea of torture, got driven out. And they took great expertise with them.

BRAND: So far, the White House has not responded to Jane Mayer's book. We asked again today, and again received no comment from them. Coming up, former Attorney General, John Ashcroft, testifies about the Justice Department's role when NPR's Day to Day continues.

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