Conflict Over Spying Led White House to Brink

Conflict Over Spying Led White House to Brink
http://www.truthout.org/article/conflict-over-spying-led-white-house-brink
This is the first of two stories adapted from "Angler: The Cheney
Vice Presidency," to be published Tuesday by Penguin Press. Original
source notes are denoted in [brackets] throughout.

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! [1] 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
[2].

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 [3]: 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 [4]. 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 [5], 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 [6].

"This is none of your business!" Addington exploded.

He was massive in his swivel chair, taut and still, potential
energy amping up the menace. Addington's pugnacity was not an act.
Nothing mattered more, as the vice president and his lawyer saw the
world, than these new surveillance tools. Bush had made a decision.
Debate could only blow the secret, slow down vital work, or call the
president's constitutional prerogatives into question.

The NSA lawyers returned to their car empty-handed.

* * *

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 [7] - 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 [8].

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. An authoritative source said the staff secretariat,
which kept a comprehensive inventory of presidential papers,
classified and unclassified, possessed no record of these.

In an interview, Card said the Executive Office of the President,
a formal term that encompassed Bush's staff but not Cheney's, followed
strict procedures for handling and securing presidential papers.

"If there were exceptions to that, I'm not aware of them," he
said. "If these documents weren't stored the right way or put in the
right places or maintained by the right people, I'm not aware of it."

Asked why Addington would write presidential directives, Card
said, "David Addington is a very competent lawyer." After a moment he
added, "I would consider him a drafter, not the drafter [9]. I'm sure
there were a lot of smart people who were involved in helping to look
at the language and the law."

Not many, it turned out. 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.

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 [10].

"David Addington was doing all the legal work. All the important
documents were kept in his safe [11]," Goldsmith recalled. "He was the
one who first briefed me."

Goldsmith's new assignment gave him final word in the executive
branch on what was legal and what was not. Addington had cleared him
for the post - "the biggest presence in the room," Goldsmith said,
during a job interview ostensibly run by Gonzales.

Goldsmith did not have the looks of a guy who posed a threat to
the Bush administration's alpha lawyer. A mild-mannered law professor
from the University of Chicago, he was rumpled and self-conscious,
easy to underestimate. On first impression, he gave off a misleading
aura of softness. Goldsmith had lettered in football, baseball and
soccer at the Pine Crest School in Fort Lauderdale, Fla., [12]
spending his formative years with a mob-connected Teamster who married
his mother [13]. He was not a bare-knuckled brawler in Addington's
mold, but Goldsmith arrived at Justice with no less confidence and
strength of will.

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.

* * *

Goldsmith began a top-to-bottom review of the domestic
surveillance program, taking up the work begun by a lawyer named
Patrick F. Philbin after John Yoo left the department. Like Yoo and
Goldsmith, Philbin had walked the stations of the conservative legal
establishment: Federalist Society, a clerkship with U.S. Circuit Judge
Laurence H. Silberman, another with Supreme Court Justice Clarence
Thomas.

The more questions they asked, the less Goldsmith and Philbin
liked the answers. Parts of the program fell easily within the
constitutional powers of the commander in chief. Others looked
dicier.

The two lawyers worked at the intersection of three complex
systems: telecommunications, spy technology, and the statutory regimes
that governed surveillance. After a few weeks, Goldsmith said, he
decided the program "was the biggest legal mess I'd seen in my life."

He asked for permission to read in Attorney General John D.
Ashcroft's new deputy, James B. Comey [14]. As always, he found
Addington waiting with Gonzales in the White House counsel's corner
office, one floor up from the chief of staff. They sat in parallel
wing chairs, much as Bush and Cheney did in the Oval Office.

"The attorney general and I think the deputy attorney general
should be read in," Goldsmith said.

Addington replied first.

"Forget it," he said.

"The president insists on strict limitations on access to the
program," Gonzales agreed.

Weeks passed. Goldsmith kept asking. Addington kept saying no.

"He always invoked the president, not the vice president,"
Goldsmith said [15].

Comey was not exactly Mr. Popular at 1600 Pennsylvania Ave. He had
arrived at Justice as a 6-foot-8 golden boy, smooth and polished, with
top chops as a federal terrorism prosecutor in Northern Virginia and
New York City. Then came Dec. 30, 2003. Comey did something
unforgivable: He appointed an independent counsel to investigate the
leak of Valerie Plame's identity as a clandestine CIA officer, a move
that would bring no end of grief for Cheney.

In late January, Goldsmith and Addington cut a deal. Comey would
get his read-in. Goldsmith would get off the fence about the program,
giving his definitive answer by the March 11 deadline.

"You're the head of the Office of Legal Counsel, and if you say we
cannot do this thing legally, we'll shut it off," Addington told him
[16].

Feel free to tell the president that his most important
intelligence operation has to stop.

Your call, Jack.

Goldsmith wanted to fix the thing, not stop it. He and Philbin
traveled again and again to Fort Meade, each time delving deeper. They
were in and out of Gonzales's office, looking for adjustments in the
program that would bring it into compliance with the law. The issues
were complex and remain classified. Addington bent on nothing,
swatting back every idea. Gonzales listened placidly, sipping Diet
Cokes from his little refrigerator, encouraging the antagonists to
keep things civil.

There would be no easy out, no middle ground. Addington made clear
that he did not believe for a moment that Justice would pull the
plug.

* * *