Jane Mayer's "The Dark Side"

Jane Mayer's The Dark Side is a meticulously researched indictment of the Bush administration's flawed and lawless response to the 9/11 attacks. Cobbled together from a series of long articles that first appeared in The New Yorker, Mayer's book charts the rapid manner in which a small coterie of figures aligned with Vice President Dick Cheney used the attack to enlarge the powers of the presidency.

Mayer's recounts the surprising hurry in which so many of the important policy decisions were made in the wake of 9/11. These were major changes, unprecedented steps, made with little or no debate. Most were made by a small group of largely unelected officials who formed an unofficial inter-agency group called "the war council." This group included Cheney, his aide David Addington, John Yoo (a deputy chief at DoJ's Office of Legal Counsel), William Haynes (the Chief Counsel at the Department of Defense), assistant White House Counsel Tim Flanigan, and his boss Alberto Gonzales. Mayer likens this five man group to "a high-school clique, some of the members played squash and racquetball together and took secret trips together, while mocking those they excluded as "soft and leakers to the press"(66).

The big decision made early on was to treat Al Qaeda as a military problem rather than a matter of criminal justice. Within a week of the attack, the Justice department was effectively sidelined; because "the Department of Defense had no military plan for defeating Al Qada in Afghanistan"(33), the CIA was given the primary responsibility for crafting the initial response. CIA director George Tenent along with the CIA's Center for Counter Terrorism (CTC)Chief Cofer Black needed to spend little time or effort convincing Bush to grant the Agency a long-held wishlist. Within a week, Black managed to get presidential approval for "the inauguration of secret paramilitrary death squads" who would have the authority on Tenent's orders to carry out assassinations in 80 countries(39). In addition, a presidential finding gave "blanket authority ot Tenet to decide on a case-by-case basis whom to kill, whom to kidnap, whom to detain and interrogate, and how"(39).

Prodded by the war council, Bush handed over the bulk of the nation's response to the Agency despite its dismal record dealing with Al Qaeda prior to 9/11. Mayer details how the Agency failed to adequately notify the FBI that two future 9/11 terrorists had entered the United States sometime in 2000; according to the CIA's IG "fifty or sixty individuals within the CIA knew that two Al Qaeda suspects had come to America-but no one officially notified the FBI about this"(16). Although whole virtual unit had been assigned to keep track of the terrorist group Al Qaeda, the Agency did not have a single spy within the terrorist organization. Often, one hears how America was simply unaware of the threat posed by Al Qaeda prior to 9/11. Mayers makes it clear: the Agency was well aware of the threat posed by Al Qaeda but was unable to head it off.

Moreover, the Agency was poorly prepared to carry out the new tasks which they'd asked for and had suddenly assigned to them. The CIA was almost completely lacking in operations muscle at the time; "the [CIA's] Special Activities Division...[a] small paramilitary unit...consisted mostly of inactive vertans of the military's Special Forces"(40). They lacked interrogators with any experience or skill. According to "a former CIA operative involved at the time...'They invented the program of interrogation with people who had no understanding of Al Qaeda or the Arab world'"(144). Worse, according to Mayer, "The CIA knew even less about running prisons than it did about hostile interrogations"(145).

Some claim that there was a pre- and post-9/11 mentality; many argue, we failed to deal with the threat before the attack because we were too concerned with playing by the rules. The Bush administration quickly corrected this over-attention to the rules, and ended up basically throwing away the rule book and writing a new one to their wishes. Specifically, OLC deputy chief attorney John Yoo proved repeatedly instrumental in writing a new rule book for the Bush administration to use in its war on terror. Young, ambitious, bright and highly partisan, Yoo had his fingerprints on nearly all the important legal memos that the Bush administration used to step outside the established laws governing the treatment and handling of detainees.

According to Mayer, the OLC "plays a unique role in the federal government...
iss[uing] opinions that are legally binding on the rest of the executive branch...if the OLC says a previously outlawed practice...is legal, it is nearly impossible to prosecute U.S. officials who followed that advice on good faith." Jack Goldsmith, who became OLC head in 2003, maintains the office controls "'one of the most momentous, and dangerous powers in the government: the power to dispense get-out-of-jail-free cards'"(65).

The OLC under Yoo wrote the Bush administration a lot of get-out-of-jail-free cards. A November 6, 2001 memo authorized the president to establish military commissions and first suggested that detainees picked up in the administration's "war on terror" were not covered by the Geneva Convention. Early in 2002, a series of legal memos took the suggestion further and "enshrined the political position already expressed by Cheney, advising the President that he did not have to comply with the Geneva Conventions or other customary international laws in handling detainees in the war on terror"(121). Supposedly prompted by the expressed needs of the CIA, in August of 2002, the OLC authorized brutal interrogation techniques by redefining what was meant by the word torture. Yoo offered the Defense Department a similar memo in March of 2003.

Mayer does a good job of bringing together and concisely recounting the most egregious and revolting abuse and torture that took place. What she documents is but a part of what went on. We are likely to never know but a part of the administrations application of a torture policy; in possible violation of the law,the CIA destroyed hundreds of hours of video-taped interrogations during which extreme measure were used.

Worse than torture, in at least a couple of cases, the CIA tortured and killed innocent men. Mayer tells the story of Khaled el-Masri a German national who was picked up, sent to a CIA black site and subjected to inhumane treatment. When it became clear that he was not involved with Al Qaeda, the agency simply "dropped him near the border with Serbia and Macedonia...[and] told to start walking and not look back."

Villains abound in this story. Mayers also offers plenty of often quixotic, conflicted heroes. Navy chief counsel Albert Mora began to suspect abusive treatment of detainees at Guantanamo in the Fall of 2002 and pushed hard to get the Department of Defense to adhere to a humane detainee policy. Eventually, he was presented with a Yoo legal memo and told to hush and ultimately policy was issued without his input.

Jack Goldsmith replaced Jay Bybee as the head of the OLC, in October of 2003. Immediately, Gonzales asked him to provide a legal ruling allowing the CIA to render detainees captured in Iraq. Recognizing that these individuals were covered under the Genevea Conventions, Goldsmith declined, earning the dismay of the war council. A staunch conservative, the more he learned, the more Goldsmith grew disillusioned with the Bush approach. Shortly after taking office and looking over the detainne/enhanced interrogation opinions the OLC had rendered in the previous couple years, Goldsmith grew "increasingly alarmed" by what he was reading. Goldsmith attempted to gradually overturn these opinions and rewrite the law governing these matters. He did so despite worrying that doing so seriously impaired his office's authority. Nevertheless, he proceeded by first reversing the opinions Yoo had provided The DoD.

Asked to review CIA Inspector General Helgerson's internal review the CIA's detention program, he was provided with all the gruesome details of that thread of the Bush team's war on terror. Appalled as he was, again Goldsmith was reluctant to pull Yoo's authorizing opinion of August 2002 until it leaked to the press in June of 2004. Apparently, he did so to the considerable consternation of the White House apparently. According to Mayer, Goldsmith and ally James Comey (deputy attorney general) "were both so paranoid by then about the powerful backlash they had provoked inside the administration that they actually thought they might be in physical danger"(294). Ultimately, burned out, Goldsmith withdrew the memo and resigned without putting anything in its place.

The task of possibly writing a more humane policy fell to interim OLC chief Dan Levin. Levin was another Republican conservative whose time within the Bush administration proved scarring. He went to great lengths to create a solid opinion, even subjecting himself to stress positions and water-boarding in hopes of determining whether or not these practices amounted to torture. Levin apparently discovered that waterboarding "could definitely be classified as illegal torture unless, in his view, it was strictly limited in terms of tiem and severity and was closely monitored in a very professional way"(299).

Mayer has done a lot of the reporting on this book. However, at points, it often devolves into long recaps of others' work. For instance, at one point, page after page of Mayer's narrative is almost exclusively based on Bob Woodard's Bush at War. Like Woodard, Mayer uses a large number of unnamed sources. At some level one must trust her. However, in her defense, books like this rely on such sources by necessity. In addition, the book has been out a while and nobody has come forwarded to dispute her account.

The Dark Side is best seen as a laudable work of synthesis. While likely a rough draft on history,it is essential reading and a strong polemic that challenges the reader to make a stand. It reminds us of what we purport to stand for and in lawyerly like fashion accuses the Bush administration of trampling on these principles in a fashion befitting an enemy of our republic. In an epilogue proceeding her afterword, she quotes an incident from the papers of Dr. James McHenry, a delegate to the Federal Convention of 1787. Apparently a lady asked Benjamin Frnaklin "'Well Doctor, what have we got, a republic or a monarchy,'" to which he replied "'A republic...if you can keep it'"(327).