In 2005, after pushing out the Justice Department lawyer who had overturned President George W. Bush’s claimed authority to abuse “war on terror” prisoners, his administration reinstated key elements of the memos granting Bush virtually unlimited powers over the detainees.

Senior Bush administration officials were furious at the attempts by Goldsmith, who with the support of then-Deputy Attorney General James Comey, knocked down memos by previous OLC lawyers John Yoo and Jay Bybee.

Yoo and Bybee had worked closely with the White House to create legal arguments for Bush to claim his Commander-in-Chief power essentially let him operate beyond the law.

In the May 2005 memos, Bradbury reinstated key elements of the Yoo-Bybee memos – and even expanded on some – clearing the way for additional use of “enhanced interrogation techniques” against detainees.

The chronology of events – the White House collaborating with Yoo and Bybee to develop the memos after 9/11, Goldsmith and Comey then challenging them before being driven from their jobs, and Bradbury reviving the Yoo-Bybee arguments – provides further evidence that the Bush administration politicized the OLC’s traditional role of giving objective legal advice regarding the limits of presidential power.

In effect, Bush and his team appear to have “lawyer-shopped” for Justice Department officials who would give them legal cover to engage in torture and other actions that violated U.S. laws, international treaties and the U.S. Constitution.

Torture Memos

One memo signed by Bradbury on May 10, 2005, largely restored the infamous Yoo-Bybee “torture memo” of August 2002 which spelled out what techniques CIA interrogators could use against prisoners.

The “torture memo,” along with others drafted by Yoo and signed by Bybee, was withdrawn by Goldsmith after he took over the OLC in October 2003. In his 2007 book, The Terror Presidency, Goldsmith described the August 2002 memo as “legally flawed” and “sloppily reasoned.”

In his book, Goldsmith recounted his collaboration with Comey, an experienced federal prosecutor, in trying to restore some integrity to the legal advice under which the Bush administration had operated after the 9/11 attacks.

“Ever since Comey had come on board in December of 2003, he had been my most powerful ally … in correcting the flawed interrogation opinions,” Goldsmith wrote. “He always acted with a sensitivity to upholding the integrity of the Justice Department.”

As Goldsmith struck down key Yoo-Bybee opinions, he and Comey encountered angry resistance and even ridicule from Bush insiders, particularly David Addington, the legal adviser to Vice President Dick Cheney.

Goldsmith described one White House meeting at which Addington pulled out a 3-by-5-inch card listing the OLC opinions that Goldsmith had withdrawn.

“Since you’ve withdrawn so many legal opinions that the President and others have been relying on,” Addington said with sarcasm in his voice, “we need you to go through all of OLC’s opinions and let us know which ones you will stand by.”

So, after nine contentious months at the OLC, a battered Goldsmith quit, accepting a tenured position at Harvard Law School.

Comey wasn’t far behind. Comey offended the White House, too, by resisting its warrantless surveillance program of Americans in March 2004.

That battle over the warrantless wiretaps reportedly earned Comey the derisive nickname from Bush as “Cuomey” or just “Cuomo,” a strong insult from Republicans who deemed former New York Gov. Mario Cuomo to be excessively liberal and famously indecisive.

Comey previously had been a well-respected Republican lawyer who was credited with prosecuting key terrorism cases including the Khobar Towers bombing which killed 19 U.S. servicemen in 1996.

Comey also wore out his White House welcome by picking Patrick Fitzgerald to be special prosecutor to investigate who leaked the identity of covert CIA officer Valerie Plame after her husband, former Ambassador Joseph Wilson, criticized Bush’s misuse of intelligence on Iraq.

In 2003, when Attorney General John Ashcroft was still handling the investigation, Bush expressed confidence that the leakers would never be identified. But Ashcroft stepped aside because of conflicts of interest and his deputy, Comey, selected U.S. Attorney Fitzgerald, who proved himself to be a more dogged investigator, eventually tracking the anti-Wilson campaign to the highest levels of the White House.

Restoring Bush’s Powers

After Goldsmith departed in summer 2004 and was replaced on an acting basis by Bradbury in 2005, Comey fought a rear-guard action against the restoration of the Yoo-Bybee views on sweeping presidential powers, but lost.

On May 10, 2005, Bradbury expanded those powers even more authorizing the CIA to use a combination of torture techniques, including waterboarding, prolonged standing, frigid temperatures and slamming detainees into walls.

The Justice Department was pressured by Dick Cheney and his lawyer, David Addington to approve the combined techniques memo and others issued that month, according to e-mails Comey wrote in April and May 2005 that were obtained and released by The New York Times Saturday.

Then-Attorney General Alberto Gonzales approved the legal memorandum on ‘combined effects’ over the objections of Comey,who had resigned over a series of clashes he had with White House officials over the legality of torture and domestic surveillance.

The May 10, 2005, memo drafted by Bradbury discussed whether CIA interrogation methods violate the cruel, inhuman and degrading treatment standard under federal and international law. The legal opinion concludes that past and present CIA interrogation methods do not constitute cruel, inhuman and degrading treatment.

Another memo issued on that date discussed “whether CIA interrogation methods violate the cruel, inhuman and degrading treatment standard under federal and international law.”

“I expect that you will appreciate and protect an amazing gift you have received as an employee of the Department of Justice,” Comey said. “It is a gift you may not notice until the first time you stand up and identify yourself as an employee of the Department of Justice and say something – whether in a courtroom, a conference room or a cocktail party – and find that total strangers believe what you say next.

“That gift – the gift that makes possible so much of the good we accomplish – is a reservoir of trust and credibility, a reservoir built for us, and filled for us, by those who went before – most of whom we never knew. They were people who made sacrifices and kept promises to build that reservoir of trust.

“Our obligation – as the recipients of that great gift – is to protect that reservoir, to pass it to those who follow, those who may never know us, as full as we got it. The problem with reservoirs is that it takes tremendous time and effort to fill them, but one hole in a dam can drain them.

“The protection of that reservoir requires vigilance, an unerring commitment to truth, and a recognition that the actions of one may affect the priceless gift that benefits all. I have tried my absolute best – in matters big and small – to protect that reservoir and inspire others to protect it.”

Torture Aftermath

The Yoo-Bybee and Bradbury memos were the subject of a four-year-long internal investigation conducted by Justice Department’s internal watchdog agencies. The probe centered on whether Yoo, Bybee and Bradbury provided the White House with poor legal advice and violated “professional standards” in interpreting the Constitution.