Ben Goldberg's Homage to Steve Lacy

DATE July 5, 2006 ACCOUNT NUMBER N/A
TIME 12:00 Noon-1:00 PM AUDIENCE N/A
NETWORK NPR
PROGRAM Fresh Air

Interview: Reporter Jane Mayer talks about her article in The New
Yorker called "The Hidden Power" about David Addington, credited
with helping form Bush administration's legal strategy in war on
terror
TERRY GROSS, host:

This is FRESH AIR. I'm Terry Gross.

David Addington has been described as the legal mind behind the White House's
war on terror, the lawyer who's come up with the legal justifications for the
expanded executive authority that's been claimed by the Bush administration in
waging the war. Addington has also been described as "Cheney's Cheney," or
less charitably, as "Cheney's hitman." He replaced Lawrence "Scooter" Libby as
the vice president's chief of staff after Libby resigned last October. Before
that, Addington was Cheney's legal counsel. My guest, Jane Mayer, profiled
Addington in an article titled "The Hidden Power," which was published in the
July 3rd issue of The New Yorker.

Before we talk about David Addington's role in expanding executive powers in
the Bush administration, let's just get to last week's Supreme Court decision
about Guantanamo. How does that decision begin to narrow some of the powers
that the president has assumed in the war on terror?

Ms. JANE MAYER: Well, first off, it says that the president has to consult
with Congress now in the way that it tries the detainees in Guantanamo. The
president can't just make up his own rules for how those tribunals are going
to work. The president, instead, has to pay attention to the rules that were
already passed previously by Congress, which are for a court-martial as it's
set up under the uniform code of military justice. So the president has to
consult with Congress, the Congress has to OK what the president's going to do
in terms of trying detainees, and beyond that, and in many ways more
importantly, the court says that the president has to obey the Geneva
Conventions in the way that it treats detainees, which is exactly the opposite
of what David Addington has told the president. David Addington told them
they could just set these conventions aside.

GROSS: In what way has this David Addington been so key in defining and
expanding presidential power, executive power, during the war on terror.

Ms. MAYER: In his view, during time of war, the executive can pretty much
override all other branches of government in terms of deciding how the war is
conducted, and since this is a worldwide war and it is a war without any sort
of defined end, that gives the president pretty much unlimited power as David
Addington has defined it.

GROSS: You write about David Addington as being Cheney's Cheney, the kind of
legal mind behind Cheney and part of the power behind Cheney. What is the
vision that he and Cheney share of executive power?

Ms. MAYER: Well, they're both great devotees of Alexander Hamilton's view
that the president needs to be able to work with secrecy and dispatch and
energy and that a strong foreign policy requires a strong executive,
unencumbered, pretty much, as in--certainly in the conduct of war, by Congress
or the courts. So, they both really want to try to build up the presidency,
and some people see this as the new imperial presidency that they're trying to
build.

GROSS: You say that their views on executive power date back to the days of
the Ford administration.

Ms. MAYER: Yeah, it goes back years and years. I mean, in a way, it all
begins for both of them with Vietnam. Both these guys were terrific hawks on
the subject of Vietnam, and they felt that America could have won the war if
Congress hadn't stopped America from fighting that war. They look--they blame
Congress for losing the war in Vietnam and from stopping the president from
fighting on, and pretty much since the war, they've been pushing hard to try
to free the president to conduct kind of hawkish international policy without
being encumbered by Congress.

GROSS: Cheney and Addington sort of working together in the Reagan
administration. One of the things they worked on together was a report on the
Iran-Contra scandal. Cheney was the chief writer on the minority report on
that and Addington helped write the report. He was a like a legal aide. What
were their conclusions about Iran-Contra?

Ms. MAYER: It--they--most of the world was outraged that Reagan had
basically used kind of secret methods to fund a policy that violated what
Congress had wanted. Congress was trying to cut off the secret war in
Nicaragua and cut off funding for it, and the Reagan administration figured
out a way to fund it secretly. And so, well, the scandal was really how
Reagan had gone behind the back of Congress. That's not how Cheney saw it and
not how David Addington saw it. What they saw was that Congress was at fault
and that the president should have been allowed to fight the war the way he
wanted. They had a very--it was a very unusual view at the time, and not
widely shared, but it's a view that I think opens a real insight into their
thinking.

GROSS: When George H.W. Bush appointed Dick Cheney secretary of defense,
Cheney hired Addington as the special assistant, then promoted him to the
position of the Pentagon's general counsel, and then when Cheney moved to the
White House, he took Addington with him, I guess, first as his general counsel
and then as his chief of staff. And you say that Addington created a system
that helped make Cheney the most powerful vice president in history. What's
the system that Addington helped create to make Cheney so powerful.

Ms. MAYER: Well, a lot of it has to do with, believe it or not, paper flow,
which in Washington, is so important. It has to do with who knows what, and
basically the way Addington and Cheney set things up, they made sure that
every single piece of paper that flowed through the National Security Council
in the White House, including even just minor scraps from staff members that
were going up to Condi Rice at the time, were also channeled by blind copies
through the vice president's office. They made sure also that they were
involved in almost all the legal decisions of any importance that had to do
with the CIA and with the Defense Department, and so in one way or another,
there were people who used to call David Addington "the octopus." They
couldn't believe that he seemed to have his fingers in everything, and pretty
much they had arranged--he had already arranged as an expert by then in how
Washington works to have all important paper-flow flow through the vice
president's office if it had anything to do with national security policy.

GROSS: How was he able to do that? Did having served in the past as general
counsel at the Pentagon help? Did that help him do it?

Ms. MAYER: Oh, definitely. I mean, because what he--you know, in the
Pentagon, he served as, among other things, as Cheney's gatekeeper, and he's a
real stickler for sort of protocol and he just made sure that he saw every
piece of paper that went up to the boss, to Cheney. And so, what you get is,
you know, the guy that can decide what decisions gets passed onto the boss is
the guy that has an awful lot of power. And so he was the spigot, and he took
that role again in the White House.

GROSS: You say that sources told you that David Addington played a key role
in a lot of the major documents that set policy for how the Bush
administration was conducting the war on terror. What are some of those
documents and what can you tell us about his role?

Ms. MAYER: That's true. People in the administration tell me that he played
a very key role in drafting many of these memos and authorizing many of the
memos, at the very least, and there was a series of them, really pretty--they
kind of followed one another after September 11th. There was a September 25th
memo that authorized the president to fight back worldwide against anybody
that he deemed to be in any way associated with terrorism. It went way beyond
what the Congress had authorized about two weeks earlier. After that, there
was a memo that came out in November that allowed the government to detain
enemy combatants outside of the law in Guantanamo and to try them in tribunals
with rules that they pretty much improvised on the spot that were neither
following the laws of the uniform code of military justice nor domestic law.
Later on, there were--among some of the most controversial memos was, of
course, one that people now refer to as the "torture memo," that basically
allowed the president to sidestep the conventions against torture. If he
deemed it absolutely necessary, it said that the US government could torture,
you know, a suspect in terrorism if he felt it was necessary to do so. That
and many of these other memos were later amended by other lawyers who came in
and said they were too extreme, and as we know, some of these positions were
also struck down by the Supreme Court.

GROSS: My guest is Jane Mayer. Her article on David Addington is in the July
3rd issue of The New Yorker.

We'll talk more after a break. This is FRESH AIR.

(Announcements)

GROSS: If you're just joining us, my guest is Jane Mayer. She writes for The
New Yorker magazine, and we're talking about her latest article, which is
called "The Hidden Power: The Legal Mind Behind the White House's War on
Terror." The article is about David Addington, who is the vice president's
chief of staff and his former legal counsel.

There's another document I want to ask you about, and this is an executive
order from November 2001 that set up the military commissions. President Bush
signed the order, and sources told you that David Addington actually wrote
this memo. What was the order and its significance? And this gets to the
Supreme Court decision of last week because that decision challenged this
memo.

Ms. MAYER: That's right. Yeah. He and a handful of lawyers wrote it
together, apparently, but he was the driving force behind it. What they did
was they tried to set up a system of military tribunals that would try the
detainees in Guantanamo and elsewhere. Their hope was to try to create a
swift system of justice that would not be bogged down by providing defendants'
rights the way they are provided under the, you know, American domestic law
and under military law. I mean, basically, what they came up with was a
process that had--was very stripped down, and the detainees were not
necessarily allowed, for instance, to attend their own trials. They were not
necessarily allowed to see the evidence against them. The evidence could be
obtained through coercion or torture from others, so that it could have been
possibly extorted out of people in situations that might not have gotten to
the truth.

And in many other ways, there were--it was problematic from the standpoint of
defendants' rights in so many different ways that it created a--there was a
furor over it almost from the start, and it wasn't just what the tribunals
said. It wasn't just the rules for how they were set up, which were
problematical, but it was also the way that the tribunals were created, which
was in the, you know, hands of a couple of lawyers, basically Addington and a
few others, without consulting almost any of the other experts in the
government or the Cabinet members who oversaw the areas of, you know, the
State Department, the National Security Council. This was--it was really kind
of a back-room product.

GROSS: Yeah. And among the people who you say were not told about this
executive order setting up the military commissions was Colin Powell,
Condoleezza Rice, the highest-ranking...

Ms. MAYER: The CIA...

GROSS: ...the highest-ranking lawyer in the CIA.

Ms. MAYER: ...didn't know anything about it.

GROSS: Nobody in the CIA knew anything about it?

Ms. MAYER: The top lawyer said, you know, called up somebody in the White
House and said, `Thanks a lot for telling me," and this person said, `I didn't
know either.' Nobody--I mean it was just--it's astounding really to see how
the process worked during these early days after 9/11. It was such a tiny
group of people making decisions, and the decisions were so extreme and so
unvetted by the experts that really we wound up with a handful of people
making some of the most serious policy decisions in, you know, the history of
the country, and so that, I think, is what the court has been grappling with
still, is were those decisions constitutional? Were the rules they set up
constitutional? Were they fair enough? And basically this, you know, last
week what happened was the court said no.

GROSS: You know, among the people who weren't told that these military
commissions were going to be set up for Guantanamo detainees were the JAGs,
the judge advocate generals, the top lawyers in the military. Is that unusual
that even, like, the military lawyers wouldn't know about the system, the
legal system for dealing with the detainees?

Ms. MAYER: I mean, if you talk to the JAGs, they certainly think it's
unusual. I mean, they were outraged. There's one I speak to here in the
story named Don Gutter who talked about it, and when he did--they found out
about this, I guess, the weekend before the executive order was announced, and
they tried their best to see if they could amend some of the excesses and
bring it in line with military law, and they were completely marginalized, he
said, and left out. Their recommendations were discarded and, you know, for
the military--I mean, one of the things to me that's so interesting covering
these stories is that you think of the military as certainly conservative and
certainly not radical or soft or liberal or anything else that you would think
of as kind of lefty, yet among the most persistent and eloquent critics of the
Bush administration's terrorism policy have been the military experts because
they're very proud of the fact that they--we have a very fair and professional
military justice system, and it's a system that works not only for the people
that we are, you know, holding and trying as, you know, military prisoners of
war, but it works--the military feels it protects our own soldiers so that we

have the moral high ground. We don't torture people because we want to be
able to make the argument our people should not be tortured.

So they were very upset that they felt that there were no safeguards being put
in place on this and that what was being set up was something that they would
really not like to see US soldiers be subjected to.

GROSS: Were they concerned that they were being ordered to treat detainees in
a way that they didn't want to treat them?

Ms. MAYER: Well, yes, I mean--and both inside the CIA and even more so, the
FBI, the people who have to be involved in interrogation and who've had
experience with it over the years. This is another thing that's interesting
is that people who are interrogators didn't, for the most part, want to push
into a territory of brutalization. You know, they didn't want to be in the
room brutalizing detainees, and part of the reason they didn't was that they
felt it didn't work. A lot of the people who were closest to interrogations
say that what works to get real information out of people is much more of a
setting up kind of a personal relationship where you can kind of trade things
and wheedle things out of people and get their trust or trick them into
trusting you, but brutalization makes people talk but it doesn't necessarily
make them tell the truth. So there was resistance from the field to some of
these tactics also.

GROSS: Well, your sources told you that the CIA--members of the CIA and some
of the JAGS were concerned that they weren't getting enough intelligence from
the detainees. Now, did they think that that was because of the coercive
techniques that were being used to interrogate them or did they think it was
because these detainees didn't know anything in the first place?

Ms. MAYER: Well, both, I mean--and you bring up an interesting anecdote,
which was that very early on after Guantanamo was set up, there was kind of
growing consternation that detainees weren't giving up enough information.
They've got these guys, you know, incarcerated there and they're not talking,
and so eventually the CIA sent down an Arab-speaking expert who sat down and
tried to talk to as many of the detainees as he could, and he came back with
really bad news, and he wrote up a report, and what it said was that most of
the people in Guantanamo were not people who knew anything. They were sort
of--all kinds of--there were some people who knew some things but they were
not the super terrorists and the worst of the worst that Donald Rumsfeld had
described, and a number of people just were mistakes. They were just the
slowest people on the battlefield who'd been captured, and they were, you
know, farmers or old people or sick people or, you know, just kind of
bystanders really. There were people for whom--there was so little
information on some of the people that were held in Guantanamo early on that
our government didn't even know their names, let alone have any evidence
against them.

So this report circulated through the National Security Council where a number
of the people who were following this became very concerned because they
didn't want to see the United States government detaining indefinitely in
harsh conditions people who were innocent, and so they went to David Addington
and Alberto Gonzales, these people who had concerns, and they said, `Look.
Look at this report. We may have the wrong people there.' And what was
interesting to me in trying to figure out Addington's role was that he was the
loudest person in the room saying, `There's no problem. If they're there,
they're guilty basically. If we're detaining them, they're illegal enemy
combatants. What's the issue?' And you know, case dismissed. He was not
concerned, really, with the situation down in Guantanamo, and part of the
reason, again, goes back to his thinking about executive power, which is, the
president, in his view, has the right to determine that anybody is an enemy
combatant, anybody who is not a US citizen who could be defined as having
anything to do with being an enemy of the United States could be detained in
Guantanamo from his standpoint, and if the president said they were guilty,
then they were guilty. So these arguments went round and round, but they got
very little traction inside the administration.

GROSS: One of the things that's confusing to me is that, you know,
this--there's this new expanded definition of executive power that comes the
way you describe it largely from Vice President Cheney's legal counsel David
Addington, at least, he's the legal brains behind it. You know, the vice
president is very active in this new expanded definition of executive power,
and part of this expanded definition comes from the fact that the president is
commander in chief. OK. But the vice president himself is not part of the
military chain of command. So you have this rationale for the president's
expanded power as commander in chief. But it seems like it's the vice
president and his general counsel David Addington that are calling the shots
more than the president himself is.

Ms. MAYER: Well, that's an interesting point. I mean, it's an irony,
really, isn't it, that in order to try to build up the presidency, instead
what they did was build up the vice presidency and, you know, you can actually
see their points where they--the vice president and Addington really butt
right into the chain of command.

There's an anecdote in the story where they--about a young lawyer in the
Defense Department named Matthew Waxman, who was in charge of detainee
affairs. And he had the audacity to try to suggest that the Defense
Department might want to at least live up to the standards of the Geneva
Conventions in terms of human treatment of prisoners of war. Even if it
wasn't, you know, legislated, and even if it wasn't mandated, he thought that
those standards at least should be the minimal standards for how we treat
people, and so he made this argument and he was upbraided, just
unceremoniously. He was commanded to show up in David Addington's office and
he was--just berated for his, you know, being out of line and, you know,
fighting a war that's not the way the president wanted to fight it. But it
wasn't the president who was telling Matthew Waxman this. It was the vice
president's lawyer who was telling him this, and exactly why the vice
president's lawyer had the ability to summon a senior level person in the
Department of Defense is odd, but it tells you a lot about where the power
lies in Washington, which is straight in--you know, straight line into Vice
President Cheney's office.

GROSS: Jane Mayer's profile of David Addington was published in the July 3rd
issue of The New Yorker. She'll be back in the second half of the show.

I'm Terry Gross, and this is FRESH AIR.

(Soundbite of music)

(Announcements)

GROSS: This is FRESH AIR. I'm Terry Gross.

We're talking about David Addington, who had been described as the legal mind
behind the White House's war on terror and its expansion of executive
authority to wage that war. Addington is Dick Cheney's chief of staff. Jane
Mayer profiled Addington in an article called "The Hidden Power," published in
the July 3rd issue of The New Yorker. She's a staff writer for the magazine.
Let's get back to our interview with her.

Can the vice president's chief of staff and former legal counsel--did he have
an active role, do you know, in the president's approval of the National
Security Agency's program on warrantless wiretapping or on the president's
approval of the program to trace international financial transaction?

Ms. MAYER: Well, yeah, absolutely. I mean, again, it's so interesting
because you wouldn't think the vice president's lawyer would have a role in
such things but, in fact, he was right there in the room. It was--in terms of
the National Security Agency's, you know, surveillance, warrantless
surveillance, there were a series of meetings. They took place inside
Cheney's offices. David Addington was there with a tiny group of top lawyers
from the NSA, and the--I guess Addington, from what I understand from
interviewing people, was very persuasive in arguing that the president had no
need to try to get warrants, even though that's what the law that had been
passed by Congress in 1978 said were required. He argued that in a wartime
the president as commander in chief could just sidestep that process of checks
and balances and just plain order the surveillance as he saw fit. And the NSA
had some concerns from what I understand and argued back and pushed back on a
couple things that Addington and Cheney wanted to go even further on. But
basically Cheney and Addington won the day and the program was set up.

And in the course of this, they left out one lawyer that I talked to whose job
it was at the Pentagon to oversee the NSA. And he is--his name is Richard
Shiffrin. He's quoted in the story saying he was just astounded not to be
consulted on this. He didn't even know what was going on. He didn't learn
about it until he read about it in the newspapers. And that, again, shows you
how this tiny group of lawyers, Addington and a handful of people working with
him, really determined major policy without consulting the rest of the United
States government or many of the experts in the areas that they were making
these decisions on.

GROSS: Now another area in which David Addington has been a key figure in
what's called presidential signings, and these are signings--when the
president signs a law, he sometimes issues a statement saying that he reserves
the right to not comply with aspects of the law that he just signed because he
thinks that these parts of the law are not constitutional, and in that--it's
almost like a line-item veto, if I understand it correctly, without being
public.

Ms. MAYER: Well, it is like a line-item veto, but the problem for the White
House is that line-item veto was struck down by the court as unconstitutional,
so they--the president didn't have that option, so instead they kind of
created a secret line-item veto. It's a process that--I can't say that it is
only David Addington and this administration that has done it. It's been done
over the years before--people say that Sam Alito sort of created the notion of
doing this in a kind of a regular way during the Reagan administration when he
was in the Justice Department, but what happened in the Bush administration in
the hands of Addington, who was a real, kind of aficionado of this process,
was that they went from handfuls of these signing statements in earlier
administrations to what is said to be 750 of these signing statements
in--since the Bush administration has been in power, which is really just a
gigantic number of these caveats that have been written into the signing
statements by the president, and you know, it's an area that's so obscure,
most people, I mean, didn't notice this. I mean, nobody reads these kind of
ceremonial signing statements. It was really only recently that scholars--it
began with a, you know--some political scientists took a look at these things
and suddenly realized something strange was going on, and again, it goes back
to the office of David Addington. I doubt that he personally writes every
single one of these signing statements, but they--he certainly oversees the
process according to everybody who knows.

GROSS: From your article, it sounds that in some ways David Addington has had
more power and influence than the attorney general, Alberto Gonzales.

Ms. MAYER: Well, people define Gonzales, at least in the area of national
security law, as not impressive. The other lawyers who were at the table in
these small meetings said that Gonzales would ask questions but David
Addington would answer them and hold forth and really define the policy, and
you know, Gonzales had a certain amount of juice because he was close with
Bush. They go back to Texas when Bush was governor there, but other than that
personal relationship, he really was not up on the laws that were involved in
many of these war on terrorism issues. And Addington really has been an
expert on national security law. He's been involved in it for 20, 25 years,
and he has a very retentive memory, and he's very insistent, so he really
carried the day on most of these things.

And then again, I mean, you really can't talk about Addington without, you
know, understanding that he probably would not have been that persuasive if he
did not work for Vice President Cheney, but Cheney is so much the power on
these national security decisions. People understand that Addington speaks
for Cheney on them, and so it's the twosome together that has really made the
influence so powerful.

GROSS: Did you get the impression at all that President Bush intentionally
appointed somebody who would be perceived as weak as attorney general so that
Addington and Cheney would have more power?

Ms. MAYER: No. I really think--I mean, that's an interesting, you know,
question. I really think in some ways it was an accident of fate. This
administration is unusual in having very few lawyers in their most senior
positions, if you think about it. The president is not a lawyer, the vice
president's not a lawyer. The secretary of defense is not a lawyer. The
secretary of state's not a lawyer. The national security adviser, when
she--it was Condi Rice--was not a lawyer. So you've got the very powerful
Cabinet members and top, you know, elected officials are not people who are as
conversant with the Constitution as many of the senior people have been in
past administrations. And so that kind of leaves a lot of latitude for the
people who are the lawyers to interpret it and tell them what they can do, and
I think it's another reason that David Addington wounded up being so powerful
because he was a lawyer who could tell them how far they could go, and he
basically told them they could go as far as they wanted.

And there are--there is a critical voice in the story from someone whose name

I can't use but who was a very tough lawyer in the White House and who
basically said, `You know, David Addington didn't act like a lawyer here. He
acted like an agent to Cheney, because a lawyer sometimes says no, and
basically David Addington always said, `Yes, you can do anything you want to
do.'

GROSS: One other thing that you learned about David Addington is that
politically he really uses hardball tactics. For example, a former top
national security lawyer told you Addington takes a political litmus test of
everyone. If you're not sufficiently ideological, he would cut the ground out
from under you. Is that a typical comment you heard about his political
style?

Ms. MAYER: Yes. He is a tough operator, and he is not beloved, but I have
to say one of the things that made this story hard to do is people are scared
of him, and so it was hard to get people to speak out and certainly,
especially hard to get people to speak out on the record. That person was on
background.

GROSS: How hard was it to write this article? You said you spoke to about 50
or 60 sources. At the same time, you said a lot of people who have worked
with Addington are reluctant to talk with--about him either because they're
afraid of him or because they want to respect his right to privacy. He
doesn't talk to the press, he doesn't allow photos of him, so, you know, the
people who like him don't talk about him either.

Ms. MAYER: It was really hard to write this story. I guess, you know, and
I'm just sorry I couldn't get him to talk to me. You know, anytime that
you're profiling somebody who won't speak to you, it's very hard, and I made
many, many efforts to try to get a hold of him, and we ran all of the material
in the story by the vice president's office in an effort to try to make sure
that it was correct, and I actually--I called his mother at one point. I
spoke with his sister, I spoke with his best friend in high school. I spoke
with his high school teacher. I mean, you just kind of go to the ends of the
earth to piece together a picture of somebody like this, and, you know, I
think it's worth it because I--to me, it's just very important in a democracy
that the public understand who's making the decisions, what their values are,

how they make those decisions, and it's just part of the accountability
process. I want to connect the dots between the policy and the policy makers,
and when you've got somebody who's so secretive and so hidden as this, it's
extra hard to do, but it seems to me extra worthwhile doing. And the reason I
took a look at David Addington is that, from the start, I kept hearing, `It's
David Addington,'`It's all David Addington.' All these different people kept
saying to me, `If you really want to know who's in charge, it's David
Addington.' And I would say, `Who's David Addington?' And, you know, they
would say, `Well, he's the vice president's lawyer' and I'd say, `What does he
have to do with all of this?' And they'd say, `Everything.' So, you know, it
became very mysterious to me. I mean, some people have described him as kind
of the Keyser Soze of the administration. He's kind of the secret power
behind the throne, and, in fact, you know, the more I reported, the more I
could see that his fingerprints were everywhere.

GROSS: My guest is Jane Mayer. Her article on David Addington was published
in the July 3rd issue of The New Yorker.

We'll talk more after a break. This is FRESH AIR.

(Announcements)

GROSS: If you're just joining us, my guest is Jane Mayer, and she writes for
The New Yorker, and her latest article is called "The Hidden Power: The Legal
Mind Behind the White House's War on Terror," and it's about David Addington,
who's Vice President Cheney's chief of staff.

David Addington is not--does not want to be a public figure, yet you have this
article about him. US News & World Report a couple of weeks ago had a shorter
article about him. There was a short piece in the Boston Globe about him.
He's becoming a little more exposed, and I'm wondering if you have any read on
how that's affecting him.

Ms. MAYER: Well, I don't really, but I have to say that if the Supreme
Court's Hamdan decision was a rebuke to anyone, it was a rebuke to David
Addington. He is the man who's created so many of the policies that the court
struck down. So--I mean, far more than the kind of stories that we've
written, I would think he would be under a tremendous amount of pressure right
now because the courts have completely undermined his position. Now,
how--where we go from here will be interesting. It's hard for me to tell.
But my instinct about Addington and Cheney is that they don't back down, and
they're not going to just fold and say, `Well, gee, we were wrong.' My guess
is that they will wage another fight, because they've been told, really,
they've been told they were wrong by lawyers inside this administration and
outside this administration almost since September 11th, and it hasn't changed
their position.

GROSS: What is Congress directly going to be called on to decide now in the
wake of last week's Supreme Court decision on Guantanamo?

Ms. MAYER: Well, there are a number of areas. I mean, the first is they
need to try to come up with some sort of military tribunals that are in line
with the uniform code of military justice, which is a law that Congress
passed. It's a code that Congress passed for how the--how military trials are
supposed to take place. You know, they can try to bring--the system that
David Addington and others designed is way outside of the uniform code of
military justice. It doesn't provide enough safeguards for the defendants.
And they can try to amend that system and bring it in line with the UCMJ.
That's one thing they can do. Another thing that really is, in a way, more
far reaching, is that the court majority said that the United States
government has to treat detainees of all sorts in the standards of the Geneva
Convention, which we're signatory of, and we have not been doing that.
It--the Geneva Conventions require a level of humane treatment that is--has
not been afforded many of the detainees that we are holding and the
government's position--the Bush administration's position has been, `We don't
need to follow Geneva,' and, of course, that's not so.

So I think the question is going to be how much Congress fights to bring--will
the government--will the Bush administration be made to follow the standards
of the Geneva Conventions or will they find some way to cut a loophole? Will
they just violate the conventions and say it's OK to violate the conventions
or will they make the White House follow the conventions? And, you know,
that's a very open question right now, so I--you know, I'm waiting to see
whether the Democrats will speak up about it. So far, the Republicans have
pretty much taken the view that the Geneva Conventions shouldn't apply even if
the court says they should. There's a problem then, because, right now, if
you follow what the court said, the way the United States government has been
treating detainees, means that US troops are open to charges of war crimes,
and you know, that one of the things they can do is try to amend the war
crimes act so that they're no longer violating it or else they can try to make
the US government follow the laws. It's very much up in the air right now.

GROSS: This is a very tense time between the Bush administration and the
press. The president has accused the press of compromising our national
security by publishing stories like the NSA warrantless wiretapping story, the
monitoring of international financial transactions. Are there any revelations
that you've published in The New Yorker that you really had to think twice
about before publishing, wondering, could this possibly compromise our
national security?

Ms. MAYER: Well, yes, there are. I mean, and in particular, I've published
the names--the name of a interrogator who used--who's a CIA interrogator who
really was accused of using fairly tortuous methods on a detainee, and I was
told by the CIA that it might endanger his life if I published his name. And
I would not have published it if I felt that I was `outing' him in some way,
but, in fact, I found some promotional brochures that he had put out in a
conference that boasted of his role. So I felt it was OK because he was
advertising himself that way, but that would have been one of those calls.

And then I also published the name of another interrogator for the CIA, who--a
man named Mark Swanner, who's--who interrogated an Iraqi prisoner who died
during the interrogation, and I tried very hard to go interview Mark Swanner.
I went to his house and I called him and I called his lawyer. He's not been
charged with murder or with, you know, manslaughter or anything yet, but the
case has been investigated for years now. And to me, it was a very
interesting issue of whether or not the CIA could be held liable for a
detainee's death, and, you know, I thought long and hard about whether to
bring his name into this, and I decided to do it because, again, I think sort
of the fundamental role of the government is that--in a democracy is that they
need to be held accountable. People need--we don't want faceless bureaucrats
doing things that we don't understand. We really--the role of the press is to
try to bring information to the public so it can assess what's going on and,
you know, vote about it in a democratic way. So it's been a tough time to be
a reporter in Washington though. It's been a very--it's very tense, as you
say.

GROSS: David Remnick, who's the editor of The New Yorker, has a piece in this
week's edition about the president and the press, and let me just quote
something he says. He says, "More than any other White House in history, Bush
has tried to starve, mock, weaken, bypass, devalue, intimidate and deceive the
press." I'm wondering if you agree with that and if you think that you have
been intentionally deceived or bypassed or mocked by the administration.

Ms. MAYER: Yeah, I thought his commentary was fabulous, and I was really
glad to see it in the magazine because I do feel that, of course, that this
administration has been harder than any other that I've covered, going back to
the Reagan administration to get information out of. And they basically don't
think reporters have a legitimate role to play, so they've made that clear in
every way they can.

GROSS: Well, Jane Mayer, I want to thank you very much for talking with us.

Ms. MAYER: Well, it's so great to be here. Thank you so much for having me.

GROSS: Jane Mayer's profile of David Addington was published in the July 3rd
issue of The New Yorker.

Well, let's get in a little music. This is the title track from Davy
Burrell's latest CD, "Margie Pargie."

(Soundbite of music from "Margie Pargie")

GROSS: Coming up, jazz critic Kevin Whitehead reviews Ben Goldberg's new CD
paying tribute to the late soprano saxophonist Steve Lacy.

This is FRESH AIR.

(Announcements)

(Soundbite of music)

* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *

Review: Jazz critic Kevin Whitehead reviews Ben Goldberg Quintet's
"The Door, The Hat, The Chair, The Fact" CD, which is a tribute
to Steve Lacy
TERRY GROSS, host:

Clarinetist Ben Goldberg is the linchpin of the Bay Area improvising scene,
where he became known in the early 1990s as a member of the New Klezmer Trio.
A few years before that, he became friends and studied informally with
clarinetist-turned-soprano saxophonist Steve Lacy. Goldberg's new album is a
memorial to Lacy who died two years ago. Jazz critic Kevin Whitehead says,
`It shows how well Goldberg understands his subject.'

(Soundbite of "Blinks" by Steve Lacy)

Mr. KEVIN WHITEHEAD (Jazz Critic): "Blinks" by Steve Lacy, as played by the
Ben Goldberg Quintet. Goldberg composed all the rest of the music for his
quintet's new CD when Lacy was dying in 2004. That album called "The Door,
The Hat, The Chair, The Fact," which is on the Cryptogramophone label, was
recorded just days after Lacy passed. Ben Goldberg had set out to compose
music in the spirit of his old hero to the point of writing several variations
on the tune we just heard. "Song and Dance" is the same sort of cuckoo
clockwork as a Lacy original.

(Soundbite of "Song and Dance")

Mr. WHITEHEAD: Ben Goldberg's Quintet. To pay tribute to Steve Lacy,
Goldberg aimed for an ensemble dynamic similar to Lacy's sextet. Ben's
clarinet stands in for Lacy's soprano sax while tenor saxophonist Rob Sudduth
is his brawnier, heavier foil, like Lacy's alto player, Steve Potts.

Lacy wrote musical settings of poems by 20th century masters like Anna
Akhmatova and Robert Creeley. They were sung by Lacy's companion and one-time
string player Irene Aebi as he shadowed her on saxophone. In the same spirit,
Goldberg gives violinist Carla Kihlstedt a text to sing and play along with.
"Facts" is Ben's setting of a casual note Lacy faxed him along with some sheet
music he'd requested to the tune we heard at the top. It read, "Dear Ben,
Been out of town. Probably two late, but here's "Blinks" anyway. I am hardly
here these days."

(Soundbite of music)

Unidentified Singer: (Singing) "Dear Ben...(unintelligible)...probably too
late, but hear this anyway. I am hardly here these days. I am hardly here
these days. I am hardly here these days."

(End of soundbite)

Mr. WHITEHEAD: "Facts," like other pieces on Ben Goldberg's new CD reflects
Steve Lacy's leisurely sense of time. Still Goldberg knows better than to pay
tribute by strict imitation. The actual sound of much of the music isn't so
Lacy-like because, after all, Goldberg has his own band to nurture.

(Soundbite of music)

Mr. WHITEHEAD: Ben Goldberg on clarinet, with Devin Hoff on bass and Ches
Smith on drums. Like Steve Lacy or any wise musician who starts out emulating
the greats, Goldberg transforms his influences into something personal. In
the end, "The Door, The Hat, The Chair, The Fact" works because he lets his
quintet be itself, lets his players find their own balance without looking
over their shoulders.

(Soundbite of music)

GROSS: Kevin Whitehead teaches English and American studies at the University
of Kansas, and he's a jazz columnist for eMusic.com.

(Credits)

GROSS: I'm Terry Gross.

(Soundbite of music)
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