1 Boring Old Man

Conflict Over Spying Led White House to Brink

^{A burst of ferocity stunned the room into silence. No other word for it: The vice president’s attorney was shouting. "The president doesn’t want this! You are not going to see the opinions. You are out . . . of . . . your . . . lane!"}

^{Five government lawyers had gathered around a small conference table in the Justice Department command center. Four were expected. David S. Addington, counsel to Vice President Cheney, got wind of the meeting and invited himself. If Addington smelled revolt, he was not far wrong. Unwelcome questions about warrantless domestic surveillance had begun to find their voice.}

^{Cheney and his counsel would struggle for months to quash the legal insurgency. By the time President Bush became aware of it, his No. 2 had stoked dissent into flat-out rebellion. The president would face a dilemma, and the presidency itself a historic test. Cheney would come close to leading them off a cliff, man and office both.}

^{On this second Monday in December 2003, Addington’s targets were a pair of would-be auditors from the National Security Agency. He had displeasure to spare for their Justice Department hosts. Perfect example, right here. A couple of NSA bureaucrats breeze in and ask for the most sensitive documents in the building. And Justice wants to tell them, Help yourselves? This was going to be a very short meeting.}

^{Joel Brenner and Vito Potenza, the two men wilting under Addington’s wrath, had driven 26 miles from Fort Meade, the NSA’s eavesdropping headquarters in Maryland. They were conducting a review of their agency’s two-year-old special surveillance operation. They already knew the really secret stuff: The NSA and other services had been unleashed to turn their machinery inward, collecting signals intelligence inside the United States. What the two men didn’t know was why the Bush administration believed the program was legal.}

^{It was an awkward question. Potenza, the NSA’s acting general counsel, and Brenner, its inspector general, were supposed to be the ones who kept their agency on the straight and narrow. That’s what Cheney and their boss, Lt. Gen. Michael V. Hayden, told doubters among the very few people who knew what was going on. Cheney, who chaired briefings for select members of Congress, said repeatedly that the NSA’s top law and ethics officers – career public servants – approved and supervised the surveillance program.}

^{That was not exactly true, not without one of those silent asterisks that secretly flip a sentence on its tail. Every 45 days, after Justice Department review, Bush renewed his military order for warrantless eavesdropping. Brenner and Potenza told Hayden that the agency was entitled to rely on those orders. The United States was at war with al-Qaeda, intelligence-gathering is inherent in war, and the Constitution appoints the president commander in chief.}

^{But they had not been asked to give their own written assessments of the legality of domestic espionage. They based their answer in part on the attorney general’s certification of the "form and legality" of the president’s orders. Yet neither man had been allowed to see the program’s codeword-classified legal analyses, which were prepared by John C. Yoo, Addington’s close ally in the Justice Department’s Office of Legal Counsel. Now they wanted to read Yoo’s opinions for themselves…}

^{The NSA lawyers returned to their car empty-handed.}

^{By the time the NSA auditors came calling, a new man, Jack L. Goldsmith, was chief of the Justice Department’s Office of Legal Counsel. Soon after he arrived on Oct. 6, 2003, the vice president’s lawyer invited him to EEOB 268. Addington pulled out a folder with classification markings that Goldsmith had never seen…}

^{Addington’s behavior with the NSA auditors was "a wake-up call for me," Goldsmith said. Cheney and Addington, he came to believe, were gaming the system, using secrecy and intimidation to prevent potential dissenters from conducting an independent review. "They were geniuses at this," Goldsmith said. "They could divide up all these problems in the bureaucracy, ask different people to decide things in their lanes, control the facts they gave them, and then put the answers together to get the result they want."}

^{Dec. 9, 2003, the day of the visit from Brenner and Potenza, was the beginning of the end of that strategy. The years of easy victory were winding down for Cheney and his staff.}

^{The time had come for the vice president to step in. Proxies were not getting the job done. Cheney was going to have to take hold of this thing himself. Even now, after months of debate, Cheney did not enlist the president. Bush was across the river in Arlington, commending the winners of the Malcolm Baldrige awards for quality improvement in private industry. Campaign season had come already, and the president was doing a lot of that kind of thing. That week he had a fundraiser in Dallas, a "Bush-Cheney 2004 event" in Santa Clara, Calif., and a meet-and-greet at a rodeo in Houston.}

^{Soon after hearing what had happened between Goldsmith and Gonzales, the vice president asked Andy Card to set up a meeting at noon with Mike Hayden, FBI Director Robert S. Mueller III, and John McLaughlin from the CIA (substituting for his boss, George J. Tenet). Cheney spoke to them in Card’s office, the door closed.}

^{Four hours later, at 4 p.m., the same cast reconvened. This time the Justice contingent was invited. Comey, Goldsmith and Philbin found the titans of the intelligence establishment lined up, a bunch of grave-faced analysts behind them for added mass. The spy chiefs brought no lawyers. The law was not the point. This meeting, described by officials with access to two sets of contemporaneous notes, was about telling Justice to set its qualms aside.}

^{The staging had been arranged for maximum impact. Cheney sat at the head of Card’s rectangular table, pivoting left to face the acting attorney general. The two men were close enough to touch. Card sat grimly at Cheney’s right, directly across from Comey. There was plenty of eye contact all around.}

^{This program, Cheney said, was vital. Turning it off would leave us blind. Hayden, the NSA chief, pitched in: Even if the program had yet to produce blockbuster results, it was the only real hope of discovering sleeper agents before they could act. "How can you possibly be reversing course on something of this importance after all this time?" Cheney asked.}

^{Comey held his ground. The program had to operate within the law. The Justice Department knew a lot more now than it had before, and Ashcroft and Comey had reached this decision together. "I will accept for purposes of discussion that it is as valuable as you say it is," Comey said. "That only makes this more painful. It doesn’t change the analysis. If I can’t find a lawful basis for something, your telling me you really, really need to do it doesn’t help me."}

^{"Others see it differently," Cheney said. There was only one of those, really. John Yoo had been out of the picture for nearly a year. It was all Addington. "The analysis is flawed, in fact facially flawed," Comey said. "No lawyer reading that could reasonably rely on it." Gonzales said nothing. Addington stood by the window, over Cheney’s shoulder. He had heard a bellyful. "Well, I’m a lawyer and I did," Addington said, glaring at Comey. "No good lawyer," Comey said.}

My reason for quoting this article extensively is to remind us of how our government conducted itself in the post-911 period. This meeting with Dick Cheney happened in March of 2004. Joseph Wilson had already written his op-ed 9 months before, and these same characters had retaliated by exposing Wilson’s wife’s secret identity. Anyone with any sense had, by this time, figured out that the Iraq War had been undertaken using false intelligence – there were no WMD’s in Iraq. But it would be almost two years before the New York Times would expose the N.S.A. Domestic Spying program to the public.

I’m not sure we yet know the full level of illegal domestic surveillance in the original program, but it was extensive. Cheney and Addington kept it a secret from everyone – even the justifying Yoo documents were held in the Office of the Vice President’s safe. In the face of a clear ruling by the Justice Department [Comey and Goldsmith] that what they were doing was illegal, all they did was look for some new creative way to get around the law.

I doubt that Obama will pursue punishing these two men for extreme abuses of power. It’s not his style. If McCain is elected, all of this will be swept under the rug. So, what seems to me to be criminal conduct by the Office of the Vice President  [Cheney, Libby, and Addington] will never arrive in our courts where it belongs. But I do think that if we elect a Democratic Administration, we will at least know the facts. Dick Cheney and David Addington made a mockery of our Constitution and our legal system during their tenure. I can see no way of restoring the integrity of these vital tenets of our government without a full disclosure of all that’s happened in these last eight years. There are many reasons to throw the Republican Party out of the White House, but one of the most compelling is to allow the extreme misbehavior of the Machavellian Duo of Dick Cheney and David Addington to be fully disclosed. They are some of the darkest actors in our history…