This is the second of two stories adapted from "Angler: The Cheney Vice Presidency," to be published Tuesday by Penguin Press.
Vice President Cheney convened a meeting in the Situation Room at 3 p.m. on Wednesday, March 10, 2004, with just one day left before the warrantless domestic surveillance program was set to expire. Around him were National Security Agency Director Michael V. Hayden, White House counsel Alberto R. Gonzales and the Gang of Eight — the four ranking members of the House and the Senate, and the chairmen and vice chairmen of the intelligence committees.
Even now, three months into a legal rebellion at the Justice Department, President Bush was nowhere in the picture. He was stumping in the battleground state of Ohio, talking up the economy.
With a nod from Cheney, Hayden walked through the program’s vital mission. Gonzales said top lawyers at the NSA and Justice had green-lighted the program from the beginning. Now Attorney General John D. Ashcroft was in the hospital, and James B. Comey, Ashcroft’s deputy, refused to certify that the surveillance was legal.
That was misleading at best. Cheney and Gonzales knew that Comey spoke for Ashcroft as well. They also knew, but chose not to mention, that Jack L. Goldsmith, chief of the Office of Legal Counsel at Justice, had been warning of major legal problems for months.
More than three years later, Gonzales would testify that there was "consensus in the room" from the lawmakers, "who said, ‘Despite the recommendation of the deputy attorney general, go forward with these very important intelligence activities.’" By this account — disputed by participants from both parties – four Democrats and four Republicans counseled Cheney to press on with a program that Justice called illegal…
Yesterday, I had a post [
darkest actors] about the two part series in the
Washington Post on the Crisis over the illegal N.S.A. unwarranted domestic spying program. The Yoo documents that authorized the program were held by Cheney and Addington in secret. With the appointment of Jack Goldsmith to the
Office of Legal Counsel, things were about to change. He involved Deputy Attorney General James Comey who, like Goldsmith, was horrified at the Yoo opinions – and presented the information to Attorney General John Ashcroft who agreed. So the Program no longer had the DOJ stamp of approval – but that didn’t stop Cheney. He and Addington planned to press on using their claims of Imperial Presidential Authority. Problem was, the actual President knew nothing about it. Meanwhile, the upper tier was poised to resign over the issue, and then the Attorny General had a severe attack of pancreatitis taking him out of commission [and threatening to take him out of life].
Alerted by Ashcroft’s chief of staff, Comey, Goldsmith and FBI Director Robert S. Mueller III raced toward the hospital, abandoning double-parked vehicles and running up a stairwell as fast as their legs could pump. Comey reached Ashcroft’s bedside first. Goldsmith and his colleague Patrick F. Philbin were close behind. Now came Card and Gonzales, holding an envelope. If Comey would not sign the papers, maybe Ashcroft would.
The showdown with the vice president the day before had been excruciating, the pressure "so great it could crush you like a grape," Comey said. This was worse. Was Comey going to sit there and watch a barely conscious man make his mark? On an order that he believed, and knew Ashcroft believed, to be unlawful?
Unexpectedly, Ashcroft roused himself. Previous accounts have said he backed his deputy. He did far more than that. Ashcroft told the president’s men he never should have certified the program in the first place. "You drew the circle so tight I couldn’t get the advice that I needed," Ashcroft said, according to Comey. He knew things now, the attorney general said, that he should have been told before. Spent, he sank back in his bed…
The unwarranted domestic spying program was instituted
less than a month after the World Trade Towers bombing. "
Oct. 4: President Bush [authorized the] warrantless domestic surveillance proposal presented by
Vice President Cheney. The program [went] operational two days later." That suggests to me that it was something Dick Cheney and David Addington already had in their minds. So now, two years later when the DOJ rebelled and refused to reauthorize the program and knowing that the upper echelon of the DOJ was about to walk out over this issue, Addington and Cheney drew up a document based on a radical notion that the President had
unlimited power and could approve the program without the DOJ –
a document that the President signed. Only later, on finally learning of the impending resignations in the DOJ and F.B.I. from Condi Rice, Bush did not follow Cheney and Addington into what would have been a major abyss caused by these mass resignations.
Seven days later, Bush amended his March 11 directive. The legal certification belonged again to the attorney general. The surveillance program stopped doing some things, and it did other things differently. Much of the operation remained in place. Not all of it.
Like the campaign for the Iraq War, the outing of Valerie Plame, the "Torture Program," Addington and Cheney ignore our system of government. Whenever either of them is asked about all of this, they talk about the need for whichever program they’re asked about, but they ignore the central question – "Who in the hell do they think they are that they can bend the whole Constitution and reinvent the American form of government to get what they want?" Whether they’re right or wrong isn’t the issue. They’re imposing their own decisions on the country in secrecy and exercising powers they were never given. In my mind, it’s a variant of Sedition [Sedition is a term of law which refers to covert conduct that is deemed by the legal authority as tending toward insurrection against the established order. Sedition often includes subversion of a constitution…] Cheney and Addington certainly "tend toward insurrection against the established order" repeatedly, and in this case, acted with Presidential Authority [or their grandiose view of it] outside of the President’s knowledge…
Standing Up to Angler A group of administration officials took on the vice president to defend the rule of law on surveillance.
The most startling revelation is that President Bush apparently was unaware — until the day after he signed off on the program’s renewal — of any opposition inside the Justice Department. He was also apparently in the dark about the number of officials who were poised to resign in protest. The list included Mr. Ashcroft, Mr. Comey, Office of Legal Counsel chief Jack L. Goldsmith, Justice Department national security expert Patrick F. Philbin, Criminal Division chief Christopher A. Wray, FBI Director Robert S. Mueller III, FBI general counsel Valerie E. Caproni and CIA general counsel Scott W. Mueller. Neither Mr. Cheney nor then-White House Counsel Alberto R. Gonzales or then-White House Chief of Staff Andrew H. Card Jr. bothered to tell the president of the looming resignations. Instead, they tried to persuade the ailing Mr. Ashcroft to sign the reauthorization from his hospital bed. When that failed, they argued that the president, relying on his powers as commander in chief, could unilaterally reauthorize the program. It took an intervention by Condoleezza Rice, then national security adviser, to inform the president about the possible departures and urge him to speak with Justice Department officials directly. Mr. Bush ultimately agreed to the legal changes that Mr. Comey and his allies deemed necessary…
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