Above, outside the law

Mayer does a superb job of describing how the trauma of 9/11 all but unhinged Bush and Cheney and predisposed the chief executive to embrace the ready-made unitary executive theory of presidential power, which the vice president and his chief aide, David Addington, had come to Washington prepared to promote. In the opinion of the late historian Arthur Schlesinger, "the Bush administration's extralegal counterterrorism program presented the most dramatic, sustained and radical challenge to the rule of law in American history."

Such appraisals range across the ideological spectrum. Walter Dellinger, who served as Bill Clinton's solicitor general and now teaches constitutional law at Duke University, describes the Bush administration's arguments concerning inherent powers to supersede existing laws on domestic and foreign intelligence "insane." As he told Mayer, "I don't think anyone has ever taken the theory of presidential power and distorted it this way. Is it conservative? It's a particular brand of conservatism. It has nothing to do with respect for tradition. In it is the embodiment of power for the executive, it's like Mussolini in 1930."

Richard Shiffrin, a career government lawyer who oversaw the legality of National Security Agency surveillance activities for the Pentagon, initially was denied access to Yoo's legal memos on -- of all counts -- national security grounds. (The NSA is the most sensitive of all U.S. intelligence agencies.) As Mayer reports, Shiffrin understood why when he finally saw Yoo's now infamous memos. "A high school student could have done better," he said.

Jack Goldsmith, the deeply conservative lawyer and onetime academic colleague to Yoo, enjoyed a short tenure as head of the Office of Legal Counsel -- the president's private lawyer -- during which he overturned most of Yoo's work, to the disgust of Addington and Cheney. Subsequently forced to resign out of principle, Goldsmith wrote that the White House dealt with restrictions on its ability to conduct domestic spying "the way they dealt with other laws they didn't like: They blew through them in secret based on flimsy legal opinions that they guarded closely so no one could question the legal basis for the operations. . . . "