The TNR Q&A: Jane Mayer

Rosen: Let's address the dog-that-didn't-bite question: There hasn't been another attack in the U.S. since 9/11. Were there intelligence successes short of torture that contributed to that?

Mayer: I think a lot of smart things have been done to make America safer since 9/11. I just think that coercive interrogation was counterproductive. But in particular, the better coordination between the FBI and the CIA and the State Department and the better coordination with our allies around the world who are now looking closely at terrorism have made the difference.

Many of the coercive interrogations you describe in The Dark Side turn out to be ostensibly overseen by Washington bureaucrats. You quote one general as saying, "If the law allows [you to heat a room to] 80 degrees, we'll do 79.9 degrees." Can coercive interrogation ever be bureaucratized so it stops short of torture?

That one quote you've got, which comes from General Miller down in Guantanamo, shows you a lot, because, basically, there's a problem of something called force drift in torture, which is, if holding somebody at 79 degrees cold seems to work, then why not drop it a little bit further if they can? What happens is you think that if a little pain works, a lot of pain is going to work better. It's just a kind of slippery slope that seems to occur whenever torture occurs, and has occurred throughout history and all over the world.

I was struck by your account of how powerless the courts were to check the administration’s extraordinary excesses. Khaled El-Masri, an innocent German citizen who was subject to rendition and torture, was unable to get legal redress for his indignities, and even after three defeats before the Supreme Court, the administration still continued to run amok. Are courts adequate to check a determined executive in this sort of situation?

The courts were really scared off by the administration's argument that national security would be damaged if they so much as acknowledged that the rendition program existed. It's ridiculous, because by that point [fall 2007] there was a major Hollywood movie on the subject that was playing all across the country. The notion that the courts couldn't discuss a subject that was in a movie house is a joke, but the courts were certainly intimidated in that case.

In the other instances, I feel that some of the heroes in the country have been on the bench. They've shown great courage and great patriotism, from my standpoint at least, in standing up for the rule of law. The Supreme Court has weighed in again and again, but what's happened is that the lawyers that are really the extremists in the White House, in particular David Addington, have reinterpreted the rulings from the Court in clever, tricky ways to undermine them, and then Addington worked with the Republicans on the Hill to try to legislate around whatever the Court's been trying to rule. It's been kind of an ongoing game, really, for the administration to get around the laws and reinterpret them in ways that will allow them to keep violating the spirit of the law, if not the letter.

David Addington is one of your villains, and you paint him as smart, but all of his predictions about the Supreme Court turned out to be wrong. How good a lawyer is he?

Well, he's certainly not smart politically. And I think that you can see that again and again he and Vice President Cheney seemed to believe that they really did not need the consensus of the governed to put these policies through. They looked at the democratic process as something of an impediment and felt that they knew better and that they needed to work in secret to protect the American public. They thought they were trying to strengthen the White House; instead they've been slapped back by the courts and by Congress, to some extent now, in ways that put them right back where they started, if not even behind. And so they made very poor political calculations.

As for the law, there's a great exchange that I always love, when Jim Comey, who was the number two in the Justice Department, is in a meeting in the White House with David Addington, in which he finally is discussing the legal work on which the wiretapping NSA program is based, and he says that just absolutely no lawyer would ever buy this. It was just so far-fetched. And David Addington says, "Well, I'm a lawyer, and I'm convinced by it," and Comey shoots back, "No good lawyer." So I'll leave it in Comey's mouth then, because that's certainly his view.

Many have wondered what transformed Vice President Cheney into the Prince of Darkness. Why do you think he embraced Addington's radical legal vision so enthusiastically?

Of course, I don't really know; you can't get inside of his head. I wish I'd been able to interview him. I certainly think he had a pre-existing political agenda, which was to strengthen the executive branch. But people I've interviewed who know him well, including an old family friend who really likes him, said that he was altered in some profound way by 9/11. This particular friend said that he became steely, that he had seen something terrible that he could no longer talk about. And, of course, Lawrence Wilkerson, the former chief-of-staff to Colin Powell, actually comes out and says that he thinks Cheney became paranoid. Granted, that's a clinical term, and Lawrence Wilkerson is not a doctor. But there's more than ample evidence that he became obsessed with the terrorist threat, and you could question whether his judgment became skewed.

I think one of the interesting questions is whether after 9/11 the top people in the Bush administration didn't almost poison themselves with information. They removed all the filters on the kind of intelligence information that went to the president and vice president and other top people in the administration. Prior to 9/11, the CIA and the FBI screened out all the unreliable information about what kinds of threats were coming in. But after 9/11, Cheney in particular wanted to see everything. He no longer trusted that the CIA was able to screen it properly. So, according to one of the people I quote, Roger Cressey, who was at the National Security Council at the time, they started just bombarding themselves every morning with these reports filled with what Cressey describes as mostly garbage, but that were completely alarming. And so, in the words of Jim Comey again, he describes it as locking yourself in a room with Led Zeppelin every morning. You would just lose your mind.

Why did Bush turn over so much of his presidency to Cheney and Addington? Did he understand the radicalism of the positions taken in his name?  

This is such a good question. I've interviewed people who are more moderate than Cheney in the administration, who like to think that if they had only been able to get more information to President Bush, he would have put the brakes on. And they blame Cheney and Addington and a small group of others around them for too radically narrowing the information that reached President Bush. Yet there were memos that did reach the president. He certainly had the basic outlines of what was going on. What I'm told is that Cheney really knew how to play him, and would say in meetings, If we don't continue to use the most extreme possible methods on terror suspects, if anything goes wrong, you'll be blamed.

And nobody ever did a Plan B kind of analysis to see whether this radical course in fact was necessary for national security. The CIA never sent in a team to see whether they got better information out of torturing people or out of not torturing people. There was no alternative program that was ever given to the president about how to treat terrorist suspects.

What about Jack Goldsmith's thesis that Bush's excesses resulted from a failure to recognize that presidential power is the power to persuade. Was Bush's problem that he had contempt for politics?

No, I think that, again, what Cheney convinced Bush of was that if they did not go to the farthest possible regions of the law, the most outermost edges of what you could do to detainees, then they would be shirking their responsibility in terms of protecting the country. So rather than having a policy debate and a political debate on what the right thing to do was, and what the smartest thing to do was, they simply let the lawyers define policy by setting the outer limits of the law. You have John Yoo saying, "Well, I'm just a lawyer; I'm just telling you what you can do legally. It's above my pay grade to have a policy debate." But his judgments became the policy because they didn't have that debate.

Your book is a testament to the malleability of law, isn't it?

I'm not a lawyer, but I have to say, as somebody who's not a lawyer, I was surprised that there seem to be almost no limits beyond which you can stretch it once you've got a clever enough lawyer reinterpreting the law. Harold Koh, the dean of the Yale Law School, has said he's never seen a more incorrect legal memo than the one that John Yoo wrote on torture. But it seems there are no consequences for this. John Yoo teaches without impunity and with tenure at Berkeley, and it's considered a First Amendment issue that he continues on the faculty there. There seem to be no kinds of repercussions for stretching the law almost beyond its breaking point here.

Perhaps Koh was overconfident. There are, after all, respectable supporters of unitary executive theory. You quote Samuel Alito's defense of it. Was he defending something different than what Cheney and Yoo made out of it? In other words, how did unitary executive theory get radicalized by the Bush administration, and would a different Republican administration have acted all that differently?

I thought it was interesting what [Federalist Society co-founder Steven] Calabresi told me, that he thought they went further than he could quite support. It's very complicated from my standpoint, but it's as if nothing is illegal. If you argue basically that the president stood above the statutes, and if national security was involved, arguably they could break the laws, right? And I mean, who's to say they're wrong? Is it the Supreme Court? Who, finally, defines that?

The American public, mobilized by the courts and Congress. And unless Congress and the courts act repeatedly, then they're right, and if there's broad resistance, then they're wrong.   

That's it, basically. So it's really a political tug of war, then, that it comes down to. I hadn't understood that completely till writing this book. I thought there would be an answer, a bright line, but there isn't. It's a constantly blurry and constantly being redefined line.

It's one of the great lessons of the book.

Well, I had to learn it too.

Are you too accepting of the administration's critics, and is there nothing to be said for the administration? Even Jack Goldsmith, whom you praise, says that The New York Times' disclosure of the terrorist surveillance program tipped off terrorists and might result in Americans being killed. Is there nothing to be said for secrecy and unilateral action?

I certainly agree that secrecy is required in covert operations and military affairs. When there are lives at risk, sometimes reporters have to hold stories or even not publish, and I have done that myself in the past. But I feel that has been stretched and exploited and abused by the administration, which has--and Jack Goldsmith says this too in his book--used secrecy as a cover to hide politically embarrassing situations and to shield themselves from dissent.

Goldsmith writes at one point, and I quote in the book, that after a while he began to think that the reason Addington and Cheney worked in such a tiny little self-affirming group was not that they were really afraid that national security would be risked if they opened it up a little further, but that they felt that if they let in people with other points of view, they'd have to defend what they were doing, and they might not be able to.

At the end of the book you quote Philip Zelikow predicting that Bush's descent into torture would be seen as akin to Roosevelt's internment of Japanese-Americans during World War II, but in the beginning you quote Arthur Schlesinger as saying that Bush's torture policy was the worst policy ever adopted by any American president. Which is it?

I think we're at a turning point where it's up to the American public to decide this. It depends whether what happened during the Bush administration in terms of turning to torture in the war on terror is a temporary parenthesis that has a close to it at the end of this administration, or if it becomes an ongoing and sustained break with the cherished values of the Founding Fathers. And that remains to be seen, I think.

Jeffrey Rosen is the legal affairs editor of The New Republic.