Profile: Barton Gellman

At a private lunch meeting, Vice President Cheney presents President Bush with a four-page memo, written in strict secrecy by lawyer John Yoo of the Justice Department’s Office of Legal Counsel (see November 6-10, 2001), and a draft executive order that establishes military commissions for the trial of suspected terrorists (see November 10, 2001). The legal brief mandates that foreign terrorism suspects held in US custody have no access to any courts whatsoever, civil, criminal, military, domestic, or foreign. They can be detained indefinitely without charges. If they are to be tried, they can be tried in closed “military commissions.” [White House, 11/13/2001; Savage, 2007, pp. 138; Washington Post, 6/24/2007]
Military Commissions Suitable to 'Unitary Executive' Agenda - According to author Craig Unger, military commissions are a key element of Cheney’s drive towards a “unitary executive,” the accretion of governmental powers to the presidency at the expense of the legislative and judicial branches. Federal trials for terror suspects would put them under all the legal procedures provided under the US judicial system, an unacceptable alternative. Military courts-martial would give them the rights granted by the Geneva Conventions. Military commissions, however, are essentially tribunals operating outside of both civilian and military law. Defendants have few rights. Secret evidence can be admitted without being disclosed to the defendants. Hearsay and coerced testimony are admissible. Prisoners can be held indefinitely. [Unger, 2007, pp. 221-222]
No Bureaucratic Footprints - After Bush peruses the memo and the draft order, Cheney takes them back with him to his office. After leaving Bush, Cheney takes extraordinary steps to ensure that no evidence of his involvement remains. The order passes from Cheney to his chief counsel David Addington, and then to associate White House counsel Bradford Berenson. At Berenson, the provenance of the order breaks, as no one tells him of its origin. Berenson rushes the order to deputy staff secretary Stuart Bowen with instructions to prepare it for signature immediately, without advance distribution to Bush’s top advisers. Bowen objects, saying that he had handled thousands of presidential documents without ever sidestepping the strict procedures governing coordination and review. Bowen relents only after being subjected to what he will later recall as “rapid, urgent persuasion” that Bush is standing by to sign and that the order is too sensitive to delay. Berenson will later say he understood that “someone had briefed” Bush “and gone over it” already. “I don’t know who that was.” When it is returned to Bush’s office later in the day, Bush signs it immediately (see November 13, 2001). Virtually no one else has seen the text of the memo. The Cheney/Yoo proposal has become a military order from the commander in chief.
Dodging Proper Channels - The government has had an interagency working group, headed by Pierre Prosper, the ambassador at large for war crimes, working on the same question (see Shortly Before September 23, 2001). But Cheney and Addington have refused to have any contact with Prosper’s group; one of Cheney’s team later says, “The interagency [group] was just constipated.” Cheney leapfrogged over Prosper’s group with their own proposal, performing an adroit bureaucratic move that puts their proposal in place without any oversight whatsoever, and cutting Prosper’s group entirely out of the process. When the news of the order is broadcast on CNN, Secretary of State Colin Powell demands, “What the hell just happened?” An angry Condoleezza Rice, the president’s national security adviser, sends an aide to find out. Virtually no one, even witnesses to the presidential signing, know that Cheney promulgated the order. In 2007, Washington Post reporters Barton Gellman and Jo Becker will call the episode “a defining moment in Cheney’s tenure” as vice president. Cheney has little Constitutional power, but his deft behind-the-scenes manuevering and skilled bureaucratic gamesmanship enable him to pull off coups like this one, often leaving even the highest White House officials none the wiser. “[H]e has found a ready patron in George W. Bush for edge-of-the-envelope views on executive supremacy that previous presidents did not assert,” the reporters write. [White House, 11/13/2001; Unger, 2007, pp. 221-222; Washington Post, 6/24/2007]
Quiet Contravening of US Law - Six years later, Unger will observe that few inside or outside Washington realize that Cheney has, within a matter of days, contravened and discarded two centuries of American law. He has given the president, in the words of former Justice Department lawyer Bruce Fein, “the functions of judge, jury, and prosecutor in the trial of war crimes [and] the authority to detain American citizens as enemy combatants indefinitely… a frightening power indistinguishable from King Louis XIV’s execrated lettres de cachet that occasioned the storming of the Bastille.” [Unger, 2007, pp. 223-224]

Entity Tags: Stuart W. Bowen, Office of Legal Counsel, Richard (“Dick”) Cheney, US Department of Justice, John C. Yoo, David S. Addington, George W. Bush, Barton Gellman, Bradford Berenson, Jo Becker, Bruce Fein, Condoleezza Rice, Craig Unger, Colin Powell, Pierre-Richard Prosper

Timeline Tags: Civil Liberties

Barton Gellman. [Source: Publicity photo via Washington Post]On December 12, 2002, the Washington Post publishes a front-page story by reporter Barton Gellman entitled “US Suspects Al-Qaeda Got Nerve Agent From Iraqis.” It states: “The Bush administration has received a credible report that Islamic extremists affiliated with al-Qaeda took possession of a chemical weapon in Iraq last month or late in October, according to two officials with firsthand knowledge of the report and its source. They said government analysts suspect that the transaction involved the nerve agent VX and that a courier managed to smuggle it overland through Turkey.” [Washington Post, 12/12/2002] The story proves so controversial that the Post’s ombudsman Michael Getler writes a column about in on December 22. Getler notes that, “[B]eginning with the second paragraph, which started out, ‘If the report proves true…’ the story contains an extraordinary array of flashing yellow lights.” He asks, “[W]hat, after all, is the use of this story that practically begs you not to put much credence in it? Why was it so prominently displayed, and why not wait until there was more certainty about the intelligence?” However, he says the Post stands by publishing the story. [Washington Post, 12/12/2002] Slate will comment in 2004, “[T]he Gellman scoop withered on the vine.… nobody advanced or refuted the story—not even Gellman.” Gellman will later admit that he should have run a follow-up story, if only to point out that no confirming evidence had come out. [Slate, 4/28/2004] He will later admit the story was incorrect. But he will continue to defend the story, claiming that “it was news even though it was clear that it was possible this report would turn out to be false.” [Washington Post, 8/12/2004]

Entity Tags: Al-Qaeda, Michael Getler, Barton Gellman

Timeline Tags: Complete 911 Timeline, Events Leading to Iraq Invasion, Domestic Propaganda