Truly Unbelievable

With the presidential election gearing up for the homestretch and the financial markets melting down, some important stories aren't getting the attention they deserve. One of them is Barton Gellman's series in the Washington Post on the internal conflict in 2004 that very nearly led to the resignation of virtually every high-ranking lawyer in the Bush administration. Many of the details of the story have already been reported (by Gellman and others), but Gellman's series fills in a lot of missing pieces, and it's an absolutely riveting read. Please read the whole thing: (part 1, 2).

The most amazing part of the story (and really the whole story is amazing) is the way Dick Cheney managed to control the flow of information to the President, and in doing so, just about led the entire administration off a cliff. Cheney's political myopia is astounding. Had Comey not managed to get Bush himself alone for a few minutes in March of 2004, the Bush administration would have completely imploded. For those of you who don't have time to read the whole piece, I'm going to try to highlight the most revealing parts.

The first big bombshell, in my mind, is this:

The command center of "the president's program," as Addington usually called it, was not in the White House. Its controlling documents, which gave strategic direction to the nation's largest spy agency, lived in a vault across an alley from the West Wing -- in the Eisenhower Executive Office Building, on the east side of the second floor, where the vice president headquartered his staff.

The vault was in EEOB 268, Addington's office. Cheney's lawyer held the documents, physical and electronic, because he was the one who wrote them. New forms of domestic espionage were created and developed over time in presidential authorizations that Addington typed on a Tempest-shielded computer across from his desk.

It is unlikely that the history of U.S. intelligence includes another operation conceived and supervised by the office of the vice president. White House Chief of Staff Andrew H. Card Jr. had "no idea," he said, that the presidential orders were held in a vice presidential safe. . . .

Though the president had the formal say over who was "read in" to the domestic surveillance program, Addington controlled the list in practice, according to three officials with personal knowledge. White House counsel Alberto R. Gonzales was aware of the program, but was not a careful student of the complex legal questions it raised. In its first 18 months, the only other lawyer who reviewed the program was John Yoo.

I cannot overstate how incredible that is. This surveillance program was run entirely out of the Vice President's office. Even the President's chief of staff hadn't seen the orders and didn't know where they were kept. And virtually all of the administration's top lawyers, including the Attorney General and the lawyers at the NSA and CIA were kept entirely out of the loop.

But the more incredible part to me is the way Cheney kept the President himself out of the loop:

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.

As I've long suspected, Cheney badly misled Congress about the program, particularly the legal basis for it. But perhaps even more troubling was the way he kept the President in the dark. The President had no idea that the Justice Department had been threatening for months to withhold its certification of the program. He had no idea that virtually all of the top ranking lawyers in his administration (at the DOJ, CIA, and NSA), as well as the Director of the FBI, were on the verge of submitting their resignation letters:

At the White House on Thursday morning, the president moved in a bubble so tight that hardly any air was getting in. It was March 11, decision day. If Bush reauthorized the program, he would have no signature from the attorney general. By now that was nowhere near the president's biggest problem. . . .

For Cheney, it didn't matter much whether one official or 10 or 20 took a walk. Maybe they were bluffing, maybe not. The principle was the same: Do what has to be done.

"The president of the United States is the chief law enforcement officer -- that was the Cheney view," said Bartlett, Bush's counselor, who was later briefed into the program and the events of the day. "You can't let resignations deter you if you're doing what's right."

Cheney and Addington "were ready to go to the mat," he said, and the vice president's position boiled down to this: " 'That's why we're leaders, that's why we're here. Take the political hit. You've got to do it.' " . . .

It has been widely reported that Bush executed the March 11 order with a blank space over the attorney general's signature line. That is not correct. For reasons both symbolic and practical, the vice president's lawyer could not tolerate an empty spot where a mutinous subordinate should have signed. Addington typed a substitute signature line: "Alberto R. Gonzales."

What Addington wrote for Bush that day was more transcendent than that. He drew up new language in which the president relied on his own authority to certify the program as lawful. Bush expressly overrode the Justice Department and any act of Congress or judicial decision that purported to constrain his power as commander in chief. Only Richard M. Nixon, in an interview after leaving the White House in disgrace, claimed authority so nearly unlimited.

The specter of future prosecutions hung over the program, now that Justice had ruled it illegal.

"Pardon was in the air," said one of the lawyers involved.

At Cheney's behest, Bush signed this extraordinary order, all without knowing what was going on around him:

Bush signed the directive before leaving for New York around lunchtime on Thursday, March 11, 2004.

Comey got word a couple of hours later. He sat down and typed a letter.

"Over the last two weeks . . . I and the Department of Justice have been asked to be part of something that is fundamentally wrong," he wrote. "As we have struggled over these last days to do the right thing, I have never been prouder of the Department of Justice or of the Attorney General. Sadly, although I believe this has been one of the institution's finest hours, we have been unable to right that wrong. . . . Therefore, with a heavy heart and undiminished love of my country and my Department, I resign as Deputy Attorney General of the United States, effective immediately."

David Ayres, Ashcroft's chief of staff, pleaded with Comey to wait a few days. He was certain that Ashcroft would want to quit alongside him. Comey agreed to hold his letter through the weekend.

Bush was not a man to second-guess himself. By Friday morning, he would need new facts to save him. Somebody, finally, would have to tell him something.

In stepped Condaleeza Rice, who had gotten word via a back channel that something was going down. Rice, the National Security Advisor, hadn't been invited to the meetings Cheney had convened in the days leading up to this showdown:

It was Rice, largely in the dark herself, who threw the president a lifeline. She had a few minutes alone with him, shortly before 7:30 a.m., on the day after he renewed the surveillance order. She told Bush about Comey's agitated approach, the day before, to Frances Fragos Townsend, the deputy national security adviser for combating terrorism. . . .

Rice made a suggestion. Comey is "a reasonable guy," she told the president. "You really need to make sure that you are hearing these folks out."

When Bush finally met with Comey (without Cheney in the room), Comey laid out his position. Here's Gellman's account of that conversation:

Now Bush said something that floored Comey.

"I just wish that you weren't raising this at the last minute."

The last minute! He didn't know.

The president kept talking. Not the way it's supposed to work, popping up with news like this. The day before a deadline?

Wednesday. He didn't know until Wednesday. No wonder he sent Card and Gonzales to the hospital.

"Oh, Mr. President, if you've been told that, you have been very poorly served by your advisers," Comey said. "We have been telling them for months we have a huge problem here."

And then there was this:

"I think you should know that Director Mueller is going to resign today," Comey said.

Bush raised his eyebrows. He shifted in his chair. He could not hide it, or did not try. He was gobsmacked.

"Thank you very much for telling me that," he said.

Gellman continues:

And there it was, unfinessable. Bush was out of running room, all the way out. He had only just figured out that the brink was near, and now he stood upon it.

Not 24 hours earlier, the president had signed his name to an in-your-face rejection of the attorney general's ruling on the law. Now he had two bad choices. March on, with all the consequences. Or retreat.

The president stepped back from the precipice. He gave Mueller a message for Comey.

"Tell Jim to do what Justice thinks needs to be done," he said.

Truly unbelievable. If it hadn't been for Comey's back channel attempts to circumvent Cheney and Rice's last minute intervention, the Bush administration would have completely imploded in March of 2004. It was have been worse than the Saturday Night Massacre in the Nixon administration. Virtually the entire upper eschelon of the DOJ, plus top lawyers other agencies and the Director of the FBI, would have resigned over an illegal problem that hadn't even been reported publicly. There is no way that Bush would have won re-election under those circumstances. Incredible.