How Dick Cheney's Zeal for Warrantless Spying Nearly Brought Down Bush Presidency
September 23, 2008
Juan Gonzalez: The Electronic Frontier Foundation filed a lawsuit Thursday against the National Security Agency, President Bush and Vice President Dick Cheney, challenging the legality of the administration's electronic surveillance program. The class-action lawsuit was filed on behalf of all residential AT&T customers and alleges that the NSA is conducting mass surveillance on U.S. residents, in violation of their First and Fourth Amendment rights.
A new book by award-winning journalist Barton Gellman reveals that the Vice President played a crucial role in maintaining this program of warrantless spying, even after Justice department officials began to doubt its legality in 2004. The book is called Angler: The Cheney Vice Presidency.
Amy Goodman: According to Gellman, there's quite a bit we've all been kept in the dark about, right from the decision to select Cheney as Bush's running mate, to winning congressional approval for war on Iraq and the administration's illegal wiretapping program.
Gellman writes, "The history of the Bush administration cannot be written without close attention to the moments when Cheney took the helm -- sometimes at Bush's direction, sometimes with his tacit consent, and sometimes without the president's apparent awareness." Cheney's "indifference to public opinion," Gellman writes, "verged on contempt."
Barton Gellman, the author of Angler: The Cheney Vice Presidency, joins us here in our firehouse studio. He's special projects reporter for the Washington Post. His series on Cheney for the Post, written with partner Jo Becker, won a 2008 Pulitzer Prize, a George Polk Award and the Goldsmith Prize for Investigative Reporting.
Welcome to Democracy Now!
Barton Gellman: Thanks for having me.
AG: Let's go back to the current vice president and how he was chosen. Wasn't he in charge of the vice-presidential pick for George Bush?
BG: Yeah, well, everyone knows that Bush asked Dick Cheney to manage and oversee the vice-presidential selection process, and there have been jokes for years about how he selected himself. And honestly, that's not true. Bush did choose him.
But the process made for an interesting contrast to Sarah Palin's. Dick Cheney oversaw the most probing, most intrusive vetting of potential vice presidents that I think there's ever been. He had, for sure, the longest questionnaire, questions that went to as bald as: Is there something that could be used to blackmail you, and if so, what? But he was looking for direct access. He insisted that the candidates sign waivers allowing him complete access to their medical and psychiatric records, FBI files, financial files, IRS returns, and so on.
Now, to a substantial degree, that's appropriate. You don't want to have a blackmailable vice president and potential commander-in-chief. The tricky thing is that when they pulled the switch and when Dick Cheney became the President's choice or the candidate's choice, he did not go through the same vetting process. He did not fill out his own questionnaire, which is contrary to what the campaign said at the time. He did not turn over even most of his public documents, old speeches and testimony and so forth. Halliburton would not cooperate with financial inquiries. And the cardiac surgeon, an eminent, famous surgeon, who was brought out by the campaign to vouch for Cheney's heart health, says in an on-the-record interview in the book that he never actually met Cheney or reviewed his medical records.
JG: And it is amazing, as you point out, that even for top security clearance most people are only required to go back about seven years in their history; he wanted an entire life -- every speech that any potential vice-presidential candidate had made, anything they had said. And yet, he doesn't do it for himself.
BG: Well, look. I mean, in fairness, Dick Cheney had a long record that was pretty well-known, and he had been confirmed by the Senate to be Secretary of Defense. He had been scrutinized pretty closely over the years. But even just as a political matter for the benefit of the campaign, his intense desire for secrecy and privacy was harmful, because the Democrats had done a lot more opposition research on Cheney than the campaign had done on him in its own headquarters, and so when they started bringing out his old votes as political lines of attack -- you know, against the Martin Luther King holiday or school lunch programs, whatever it was -- the campaign didn't actually know what his votes were.
AG: Can you talk about Vice President Cheney leaking confidential information to discredit a rival?
BG: This is an accusation made by one of the short-listed candidates for Bush's running mate, the governor of Oklahoma right next door, Frank Keating, who was a friend of Bush and someone who was described by the campaign as a finalist. He filled out all the paperwork, and he included in it, when asked, "Is there anything in your record that could potentially embarrass you or the campaign?" He said, "Look, I don't think this is embarrassing, but I'll let you know that a friend of mine has paid the college tuition of my kids" -- sort of a big gift from someone who did have certain interests in, not to make money for himself, but in a cause before the federal government. And it could be made to look bad. It was sort of on the line enough that Keating asked for an opinion from the Government Ethics Office, and the Ethics Office cleared it.
A somewhat distorted version of this disclosure got leaked to Newsweek after Cheney was chosen as running mate and while Bush was starting to form a cabinet. Keating was also said to be a leading candidate to be attorney general. And in fact, a bunch of very conservative and influential organizations, like the Federalist Society, were pushing his candidacy. And that was not Cheney's choice. And, lo and behold, one day Newsweek comes out with this piece of his vetting file, except that Newsweek says he didn't disclose it.
Frank Keating tells me, for the first time, on the record -- and I sort of lay out the story at length in Angler -- that he sees no way this could have been produced by anybody but Cheney or his three close aides, who were the only ones who saw the files. He said, "Dick Cheney coming into my life has been like a black cloud." Now, people with an ax to grind, you have to worry about. He didn't get a job. He was disappointed. One thing that gave it more credence for me is that another Republican governor, a close friend of Bush who was also said to be a finalist, John Engler of Michigan, told me that he agrees with Frank Keating. He doesn't see any way it could have leaked without Cheney's participation.
AG: And the title of your book, Angler?
BG: Cheney's Secret Service code name. They have a wry sense of humor about the way they give codenames, and a lot of times they have a double meaning. Obviously, Cheney is an avid fisherman. I thought it was a nice metaphor for the way that he works. He tends to approach the levers of power obliquely. He doesn't like to â€¦ have an overt public role. He finds his way to the place where decisions are made and often doesn't leave many signs of his presence.
JG: I'd like to ask you whether -- the extraordinary power of Vice President Dick Cheney has been remarked upon quite often, but I don't think it's ever been quite given in such detail, how it developed and accumulated, as you have in this book.
9/11 and the days afterwards, and Cheney's role in that -- you go into that quite in detail. If you could talk about some of the especially unusual aspects of the role that he assumed in those days?
BG: Well, you had the unfortunate coincidence of the President being, as everyone knows, in a schoolroom reading (My) Pet Goat to elementary school students when the attacks took place. And they have very good communications for the President, but he was still hard to reach and not in the thick of things. And Dick Cheney just took command.
He was hustled down to the White House bunker, the PEOC, they call it, Presidential Emergency Operations Center. And one intriguing thing to note, from a close look at the record, is that if American Flight 77 had in fact been aiming at the White House, which is what the Secret Service thought when they dragged him double-speed down to the bunker, he would have lost the race: the plane would have struck the White House before he got to the bunker.
Down inside, he was focused very much on sort of the need to direct the cabinet, emergency decision making. There is new reason to doubt the story that he and President Bush said, that when he gave the famous shoot-down order, to say that if there were additional hijacked planes coming towards Washington or anywhere else, that the Air Force had authority to shoot them down. And at the time he gave that order, he believed that there was a plane on the way right now. There's new reasons to doubt that Bush authorized that in advance. It looks as though the Vice President made that decision on his own and looked for a blessing afterward.
Now, to me, actually, just as a citizen, if the President can't be reached and a plane is considered to be a couple of minutes from Washington and could strike Congress, which happens to sort of be pretty full at the moment, or the Supreme Court, which happens to be hosting a national conference of federal judges at that moment, I'm not sure I would want him to stand on exact procedure and let the plane come in because the President can't be reached. What's troubling here and what's kind of a precursor to what comes later is that the President and Vice President did not level with us about the way it happened.
JG: And in the days after 9/11, the role that he began to assume?
BG: Well, even, actually, as of that day, he made an interesting decision. You're in the middle of an ongoing emergency. There are so many decisions to make about restarting aviation, which has never been shut down in this country; reopening the stock markets; what to say to other countries; what steps to take at the borders. And one of the things that Cheney does is he calls for his lawyer, David Addington. "Please come back down here into the bunker. We have things to talk about." And as early as the day of 9/11, they were talking together about what new powers the President would require and what legal changes would be required in order to empower the commander-in-chief the way Cheney thought he should be empowered.
AG: Talk about the internal struggle within the Bush administration that almost ended Bush's presidency.
BG: It starts just a few days after 9/11, in one sense, because it turns out the Vice President is truly the father of the warrantless domestic surveillance program. He called in Mike Hayden, who was the head of the National Security Agency, and he said, "Tell me what you're not doing against al-Qaeda that you could be doing."
And Hayden has this sort of famous, or famous in Washington, briefing device. He draws a Venn diagram with three overlapping ovals: one of them is what they would love to be able to do, one is what they're technically capable of doing, and one is what's legal. And what he says is, you know, "Where we work is right in the space where those three ovals intersect."
And Cheney tells him, "Suppose that third oval wasn't there. Suppose you were not constrained by the law." And he is not saying, "Let's break the law." He's saying, "Let's suppose there were no legal restriction. Then what would you do?" And he does not go in the direction of asking for a change in the law. He presses the interpretation that, as commander-in-chief in wartime and because intelligence gathering is inherent in war, Bush doesn't have to follow the explicit prohibitions in two felony statutes on warrantless surveillance, that Bush, as commander-in-chief, can simply override those and override them secretly.
And so, fast-forward now something around a little over two years later. December of 2003, the Justice Department starts to become very doubtful that parts of this program are legal. There's a new guy heading the Office of Legal Counsel, which is sort of like the internal Supreme Court of the executive branch. And he says, "I just can't back this thing." And it needs to be certified as legal by the Justice Department every 45 days. There's a deadline coming up in March of '04, March 11th. And for three months, Dick Cheney and David Addington are trying to squelch a legal insurgency at Justice, where they're saying, with increasing intensity, "We can't go along with this."
JG: Well, you say -- you indicate also that it's not just at Justice, that the inspector general and the chief counsel of the National Security Agency had questions about the program as well, right?
BG: Yeah. I devote two whole chapters to this thing. It's the longest narrative in the book, because it's unbelievably -- there was so much that's new here that we didn't know, and it's an extraordinary drama.
The first shot of this little revolution, I guess, is that the acting general counsel and the inspector general of the National Security Agency, who are essentially the two guys charged with making sure it follows the rules, say, "Well, we're starting to hear some funny questions from Justice. If you're not sure this is legal, we better find out more about it. Let's -- we want to come in and read the opinions." Now, that alone is an amazing question. It's vanishingly rare to have a major program at an agency about -- and the agency doesn't know what the legal basis is. But they had not been given the opinions.
They show up at Justice for a meeting, and David Addington hears about it. He turns up uninvited, and he tells them to go home. "You're not getting the opinions. This is none of your business." And he's a very imposing man. And they left.
So, three months go by. The battle continues. And Dick Cheney does not tell the President for three months. The President does not find out that Justice thinks this thing is illegal and won't sign until the day before the deadline.
AG: By the way, this is just a side story, but Cheney has the White House e-mail all blindly going to him, so everyone who writes to each other in the White House, Cheney gets that e-mail?
BG: Early on in the administration, he made arrangements that he and his office would be copied with all the significant paperwork in the White House on issues. Now, it was not true that if you wrote to the person in the cubicle next door, he was going to get a blind copy. But if you sent to the working group on Asia or on arms control, you would see that it was going to your colleagues in the White House in the appropriate directorates; you would not see that it was also going to Cheney. And there were people who made the mistake of giving very frank advice and making very frank statements about the positions of the Vice President's Office without knowing that they were being read right over there.
AG: Well, back to what could have been a replay of the Saturday Night Massacre of Nixon.
BG: Well, there are two extraordinary facts that just blew me away. One is that, again, Bush doesn't know until Wednesday afternoon, when the deadline is Thursday, that Justice is not buying this. Now, you recall, at the time, John Ashcroft is in the hospital. Jim Comey is the acting attorney general. We all know about the famous visit to Ashcroft's sickbed by Andy Card, the chief of staff; Alberto Gonzales, the White House counsel. Now I know why.
The President comes back from a campaign swing in Cleveland, is told, "Well, we've got a problem. Justice -- actually, Jim Comey won't go along with this thing that Ashcroft has signed all this time." And in fact, Card, Gonzales and Cheney and Addington know that Ashcroft is backing Comey in this. It appears that the President doesn't know this. That's why he dispatches his two guys to the hospital bed and say, "Well, I don't know what's up with this--
AG: Gonzales and Card.
BG: Yeah, Gonzales and Card. "I don't know what's up with this Comey fellow, but let's just go bring it to Ashcroft." Ashcroft, everyone knows now, backed Comey.
What I found out about the hospital visit -- I mean, I got a lot more detail about it, and that's a lengthy scene in the book -- is that Ashcroft said something much more dramatic than just "I'm backing Jim Comey." He said, "If I knew then what I knew now -- and I didn't know it, because you didn't tell me -- I never would have signed off on this program in the first place."
Now, Jim Comey, Jack Goldsmith, others at the top of Justice and the FBI considered it so outrageous that the President would try to go around the acting attorney general to a sick man in the hospital, that they were preparing to resign as of Wednesday night. And Andy Card knew that, too.
Thursday, the President signs a brand new order, rewritten by David Addington, because this whole thing was operated out of Cheney's office, not out of the White House. The documents were actually written and stored in a vault in the Room 268 of the executive office -- Eisenhower Building, next to the White House. That's Addington's office. Addington rewrites the thing, because they don't have a legal certification from Justice. And now it's a very in-your-face document he writes. It says, notwithstanding anything that Justice may say, and notwithstanding any purported limit on the President from the judicial or legislative branches, the President, as chief law enforcement officer of the nation, authorizes this. And so, Bush, on March 11th, signs a renewal of the program, says, "We're marching ahead, whatever Justice says."
So, Jim Comey writes a resignation letter. And I got a copy of that letter. I reproduce it in the book. And the uprising spreads. There are about two dozen people who are getting ready to resign, including the director of the FBI, the chief lawyer for the CIA and quite a lot of people, at least the top five layers of leadership at Justice. Bush also does not know that when he signs. And he finds out almost by accident, because Condi Rice finds out by accident, in a sort of chain that I describe in the book, that there's big trouble at Justice. She tells Bush, 7:30 Friday morning, "You better talk to Jim Comey, because there's something going on at Justice." And hour later, hour and a half later, Bush calls Comey into his private office and said, "What's going on?"
Because I had access to contemporary notes and e-mails and other sorts of accounts, I'm able to reproduce the conversation that Comey had with Bush pretty closely. And each of them gets a really big surprise. Comey is stunned when the President says, "I just wish you weren't raising this at the last minute, day before the deadline," which is sort of unbelievable. I mean, Comey has been fighting this battle for three months. And he does not believe in resignation threats, Comey told me. He believes that you shouldn't try to, you know, blackmail your way to a policy, when, if you don't feel comfortable, you should just leave. But suddenly he's feeling like, "I can't count on the idea that George Bush knows what's happening here."
So he says, "Mr. President, I think you ought to know that Director Mueller of the FBI is going to resign today." Bush is just stunned to hear that. He has no idea. And so, he calls in Mueller. Mueller says, "Yeah. I'm sorry. I cannot execute an order that Justice tells me is illegal." Upholding the criminal laws of the United States is actually the prime directive of the FBI. And Bush says no mas; he caves. He reverses an order that he had written, very in-your-face, or that he had signed less than 24 hours earlier.
And this is just a -- this is a remarkable moment in presidential history. I'm unable to find any precedent for a time when the president in wartime, or what he considered wartime, gave an order that he considered very high priority and was forced by his subordinates to back down the very next day, or any time.
The significance of this -- and this is not me talking, this is the President's senior political advisers, including Dan Bartlett, his political counselor -- is that if Bush had not discovered Friday morning or had not reversed himself Friday morning, then his presidency was over. It was March of 2004. None of the people I talked to who were Bush's political advisers think he would have been reelected. You know, look. Nixon lost three senior Justice Department officials, and they call that the Saturday Night Massacre. This would have been a couple of dozen and the FBI director. I think that's closer to suicide than a massacre.
JG: And in the time that we have left, did it have any impact on his relationship with Cheney from then on?
BG: I think it did. I can't know what was said between them and the aftermath of that, but what I can know is what the President said to others and how he behaved. And that was a turning point in a kind of trajectory of the Cheney vice presidency, in which he had enormous power to drive policy early on, and by around the midpoint of these eight years, he began to lose some influence. Bush still valued his opinion and his experience, but he realized that this guy had a potential to lead him off a cliff, and he had to subject Cheney's advice to a few other filters and levels of scrutiny.
AG: Well, we're going to have to do part two another time. We haven't even begun to talk about the war in Iraq, but we're going to get there. Barton Gellman, 2008 Pulitzer Prize-winning journalist for the Washington Post, his new book is called Angler: The Cheney Vice Presidency.