Why didn’t I know about this?
—George W. Bush
Almost exactly a decade ago, Vice President Dick Cheney greeted President George W. Bush one morning in the Oval Office with the news that his administration was about to implode. Or not quite: Cheney let the president know that something was deeply wrong, though it would take Bush two more days of increasingly surprising revelations, and the near mass resignation of his senior Justice Department and law enforcement officials, to figure out exactly what it was. “On the morning of March 10, 2004,” as the former president recounts the story in his memoirs,
Dick Cheney and Andy Card greeted me with a startling announcement: The Terrorist Surveillance Program would expire at the end of the day.
“How can it possibly end?” I asked. “It’s vital to protecting the country.”
The Terrorist Surveillance Program, then known to the handful who were aware of it only as “the Program” or by its code name, “Stellar Wind,” was a highly secret National Security Agency effort—eventually revealed by The New York Times in December 2005 and then in much greater detail by former NSA contractor Edward Snowden last June. Among other things, Stellar Wind empowered the agency to assemble a vast collection of “metadata,” including on the telephone calls and e-mails of millions of Americans, that its analysts could search and “mine” for information.
Though the program would appear on its face to violate the Fourth Amendment and the Foreign Intelligence Surveillance Act of 1978, President Bush had approved it three weeks after the September 11 attacks, securing the signature of Attorney General John Ashcroft after the fact. To remain in force the program had to be recertified by the president and the attorney general every forty-five days.
And now, two and a half years later, Cheney and White House chief of staff Andrew Card told Bush, Justice Department lawyers “had raised a legal objection to one component of the program.” Unless that “component”—apparently, the sweeping up of Internet metadata—was eliminated or modified, they told the president, the lawyers would refuse to certify that the program was legal.
“Why didn’t I know about this?” I asked. Andy shared my disbelief. He told me he had just learned about the objection the previous night.
What did the third member of the triumvirate, Vice President Cheney—who had known about the conflict for weeks—say at this moment? Did he profess to share the disbelief of the president and his chief of staff? Or did he, as so often, say nothing at all? President Bush does not say but as we read his account—a remarkable two-and-a-half-page aria on what the president knew, what he didn’t, and, even as the crisis that threatened his administration was breaking all around him, what he still doesn’t—the president’s painfully protracted series of discoveries makes sense only if we assume Dick Cheney’s persistent and stubborn silence.
Bush knows he has a crisis on his hands—confronting him with a “decision point,” as the title of his memoirs has it. By his account, before flying off to deliver a speech in Cleveland, the president orders Card and his White House counsel Alberto Gonzales “to work with” the attorney general “to solve the problem.” On his return, however, he finds that “little progress had been made.”
“Where the hell is Ashcroft?” I asked.
“He’s in the hospital,” Andy replied.
That was news to me.
The second revelation: John Ashcroft has been in intensive care for nearly a week. Though Ashcroft is the chief law enforcement officer of the United States—and though it is the attorney general’s signature that is required to recertify Stellar Wind—no one seems to have thought it relevant to tell the commander in chief. No matter; Bush telephones intensive care, insists on speaking to the heavily sedated Ashcroft, and tells him he is sending over his chief of staff and White House counsel “to talk to him about an urgent matter.” What follows is the famous Hospital Room Showdown, the great melodramatic set piece of the Bush administration, which features, as Barton Gellman describes it in the superb Angler: The Cheney Vice Presidency, “men in their forties and fifties, stamping on the brakes, abandoning double-parked vehicles, and running up a hospital stairwell as fast as their legs could pump.”
The White House men were clutching the paper they were determined to persuade the attorney general to sign, and the Justice Department lawyers, led by James Comey, Ashcroft’s deputy, were determined to prevent him from signing it. They converged in a hospital room around the IV-festooned body of the ailing attorney general, who “looked half dead.” Nonetheless, Gellman tells us, in the midst of this coven of lawyers, like some unvanquishable horror movie character, Ashcroft “raised himself up stiffly” off the bed.
He glared at his visitors and said they had no business coming. He gave a lucid account of the reasons that Justice had decided to withhold support. And then he went beyond that. Ashcroft said he never should have certified the program.
…If it were up to him now, he would refuse to approve. But it was not up to him. Gesturing at his deputy, Ashcroft said, “There is the attorney general.” Spent and pale, Ashcroft sank back down.
In the face of this defiance, the White House chief of staff and counsel ignore Comey and stride from the room and then race back to the White House where, Bush informs us rather laconically, “they told me Ashcroft hadn’t signed.” Why not? Apparently they didn’t say and the president doesn’t ask. Instead, he decides to overrule the objections of the Department of Justice and sign “an order keeping the TSP alive based on my authority as head of the executive branch.”
It is, as will soon become clear, a momentous decision, though there is no sign he realizes quite how momentous. Still, the president isn’t happy. “I went to bed irritated,” Bush tells us, “and had a feeling I didn’t know the full story.”
The following morning, when Bush arrives at the Oval Office, his chief of staff confirms these suspicions. “Mr. President,” Card tells him, “we’ve got a major problem.”
“Jim Comey is the acting attorney general, and he’s going to resign…. So are a bunch of other Justice Department officials.”
I was stunned. Nobody had told me that Comey, John Ashcroft’s deputy, had taken over Ashcroft’s responsibilities when he went in for surgery.
Revelation Three: it is Comey who is now in charge at Justice. After that morning’s FBI briefing, where Comey is sitting in for Ashcroft, the president takes the deputy attorney general aside:
I started by explaining that I had an obligation to do what was necessary to protect the country…. He explained his concerns about the problematic aspect of the program. “I just don’t understand why you are raising this at the last minute,” I said.
He looked shocked. “Mr. President,” he said, “your staff has known about this for weeks.”
Revelation Four: what Bush had believed, had been led to believe, was a last-minute disagreement was in fact a policy conflict that had been raging for weeks between the White House and the Department of Justice. And that is not all:
Then [Comey] dropped another bomb. He wasn’t the only one planning to resign. So was FBI Director Bob Mueller. I was about to witness the largest mass resignation in modern presidential history, and we were in the middle of a war.
“Witness” is, alas, the appropriate word. Bush has finally reached the innermost Russian doll: a score or more of top lawyers in the Justice Department, including the deputy attorney general and possibly the attorney general himself, and the director of the FBI, and perhaps other attorneys at the CIA and elsewhere in the national security bureaucracy, are about to resign en masse over a secret, highly intrusive, warrantless surveillance program less than eight months before Bush will have to face the voters. And it is all going to happen today—and Bush has up until this moment known nothing about it. It will be an enormous scandal with George W. Bush playing hapless witness to his own destruction.
I basically would have let them resign….
Bush, the self-described “decider,” author of Decision Points, knows, he tells us, he has “to make a big decision, and fast.” He can agree to modify Stellar Wind as Comey and Ashcroft demand and thus avert their resignations, and allow it to continue; but this would mean reversing his decision of the day before, something Bush simply does not do. Or, as “some in the White House believed,” he could “stand on my powers under Article II of the Constitution and suffer the walkout.”
Who are these “some in the White House” who go so conspicuously unnamed in Bush’s account? “I had little patience with what I saw happening,” Dick Cheney tells us his memoirs, In My Time. “The program had been in place more than two years and the attorney general had approved it some twenty times.” Speaking to R.J. Cutler for his film The World According to Dick Cheney, the former vice-president is rather more explicit:
I basically would have let them resign because I thought the program was perfectly legitimate, it was totally necessary, and it had been totally approved and signed up to twenty separate occasions by the Attorney General of the United States….
On its face this argument seems sophistical: Ashcroft, as he suggested from his hospital bed, had been able to do little if any legal research or consultation before he first certified the program, and in any event the requirement that it be recertified every forty-five days was meant to allow for reevaluation of it and the emergency conditions that supposedly required it. Cheney’s refusal to accept the lawyers’ refusal was in effect an admission that he believed the president hadn’t needed the lawyers to begin with; their approval of the program was so much decoration draped over the bedrock of the president’s “Article II powers.”
Cheney believed in a “unitary executive,” believed quite literally that “the executive Power shall be vested in a President of the United States of America.” He believed that the various post-Watergate hearings of the mid-1970s, the Church and Pike committees and others—he had watched their progress as the thirty-four-year-old chief of staff in President Gerald Ford’s White House—and the laws that had followed their exposé—had “neutered” the intelligence agencies, had “put the gloves on,” and that a vital part of the Bush administration’s post–September 11 mission, his mission, was to take those gloves off.
One of those “gloves” was the Foreign Intelligence Surveillance Act of 1978—the law Comey and now Ashcroft believed that Stellar Wind’s sweeping warrantless metadata collections violated. The president had approved Stellar Wind on October 4, 2001, a few weeks after the September 11 attack, and given the temper in Washington and in the country at that time he likely could simply and easily have amended the law. “We could have gone to Congress, hat in hand, the judicial branch and the executive together,” Royce Lamberth, then the chief FISA court judge, tells Gellman, “and gotten any statutory change we wanted…. But they wanted to demonstrate that the president’s power was supreme, and the judiciary was just a tagalong when necessary, but not appreciated.” They didn’t want to change the law, that is; they wanted to circumvent it, and so demonstrate that, in the face of the president’s wartime powers, the law didn’t matter.
Cheney and his allies—most prominently the vice-president’s formidable counsel, David Addington—seem to have had a similar attitude toward the Department of Justice. The lawyers worked for the president; if they forgot that, let them go ahead and resign. Yet in the end the Stellar Wind confrontation—with whose consequences, in the form of the Snowden revelations, among other things, we are still living—serves as a kind of reductio ad absurdum of this particular position. Bush himself summarizes it rather eloquently: “I was willing to defend the powers of the presidency under Article II,” he writes in Decision Points, “But not at any cost.”
I thought about the Saturday Night Massacre in October 1973, when President Richard Nixon’s firing of Watergate prosecutor Archibald Cox led his attorney general and deputy attorney general to resign. That was not a historical crisis I was eager to replicate. It wouldn’t give me much satisfaction to know I was right on the legal principles while my administration imploded and our key programs in the war on terror were exposed in the media firestorm that would inevitably follow.
This is the mundane, pragmatic truth. Such a mass resignation would certainly have led immediately to high-profile hearings on Capitol Hill, though the intense press coverage probably would have exposed Stellar Wind before they could be convened—exposed it and likely severely curtailed or ended it, given the circumstances: senior Justice Department lawyers, who resigned rather than violate the law, criticizing advocates of a secret program that snooped on Americans’ telephone calls and e-mails without a warrant.
Cheney, no less able a politician than Bush, could certainly see this. And yet, at the end of the day, standing on principle—making the “tough decision” and taking the political hit for it—was more important to him than the survival of the program itself. Principle trumped pragmatism, even when “these programs and keeping them secret,” as he tells us in his memoirs, “are critical for the defense of the nation.” Gellman claims that this makes Cheney “the nearest thing there was to an antipolitician in elected office.”
The statement is provocative, the word alluring; but if he means by “antipolitician” that Cheney was “above politics,” as he seems to (“A vice president…could afford to be. Bush could not”), then the term seems hardly adequate. In this vital instance Cheney would choose purity and toughness even though such a course would have led to the exposure and destruction of the program itself. Perhaps the word “ideologue”—“an adherent of an ideology, especially one who is uncompromising or dogmatic”—better captures the cold sterility of such a choice, where dead “principle” is deemed more important than a living, supposedly vital program. But if Cheney is better described as an ideologue, what precisely was his ideology?
It is a truism and a quite inadequate one to say that Richard Bruce Cheney was the most powerful vice-president in American history. It was Cheney’s singular genius to take an oddly archaic constitutional office that had at best been regarded as a useful if perilous stepping stone to a presidential run and at worst as “not worth a bucket of warm piss” (in the imperishable words of James Nance Garner), and to reshape it, by force of will, quiet audacity, and a peculiar institutional brilliance, into the most powerful position in the American government. In doing this he doubly benefited from that vital attribute of the successful politician: luck.
Cheney was lucky to be vice-president during the attacks of September 11, a national security crisis that drew on precisely the encyclopedic knowledge and bureaucratic skills he had cultivated in a quarter-century spent at the heights of power in Washington, from White House chief of staff in the 1970s to leading member of the House Intelligence Committee in the 1980s to wartime secretary of defense in the 1990s. And he was particularly lucky in serving an untested president who, while intelligent and strong-willed, found himself at the apex of a government suddenly under attack, a government that he knew he lacked the experience and knowledge and confidence to effectively lead.
While the caricature of George W. Bush as his vice-president’s puppet is plainly false—“The alpha male in the White House was the president,” as former Joint Chiefs Chairman General Richard Myers put it—after September 11 Bush clearly needed Cheney, and he knew it. He needed Cheney’s knowledge of foreign and security policy, particularly his familiarity with “the dark side” where Cheney proclaimed, less than a week after the attacks, a major part of the war on terror would be fought, and even more he needed Cheney’s deep knowledge of the government and his unique ability to push forward effectively what was a truly radical transformation. These changes could not have been imposed without experience, dedication, and ruthlessness. For as Gellman remarks, while the death and destruction of September 11 were horrible, “decisions made in the White House, in response, had incomparably greater impact on American interests and society.”
It is an astute point, all the more so for seeming obvious: the unique policies put into effect by Bush and Cheney were not consequences of the September 11 attacks but calculated responses to them. There was nothing fated about Stellar Wind, or “black sites” and the “enhanced interrogation techniques” that were practiced in them, or Guantánamo and military commissions; these and the other distinctive post–September 11 policies that still cast their shadows over us were born of choices made by government officials and, in the event, by a vanishingly small number of them. Cheney, Gellman writes, “freed Bush to fight the ‘war on terror’ as he saw fit, driven by a shared belief that the government had to shake off old habits of self-restraint.” As noted, some of these “habits” Cheney, as President Ford’s chief of staff, had seen inscribed in law during the post-Vietnam revolution of the 1970s, when government misdeeds, not only those by the White House but by the FBI, CIA, and NSA, were exposed, and Congress acted to restrain those institutions, and the president’s power to make use of them, with new legislation. September 11 offered the opportunity for a counterrevolution, which Gellman neatly summarizes:
With Bush’s consent, Cheney unleashed foreign intelligence agencies to spy at home. He gave them legal cover to conduct what he called “robust interrogation” of captured enemies, using calculated cruelty to break their will. At Cheney’s initiative, the United States stripped terror suspects of long-established rights under domestic and international law, building a new legal edifice under exclusive White House ownership. Everything from capture and confinement to questioning, trial, and punishment would proceed by rules invented on the fly.
The depth of this transformation is truly breathtaking and its surface signs are still visible all around us, if we take the trouble to look: in the detainees still languishing at Guantánamo, in the unpiloted drones tracking and killing thousands of people, and indeed in the sweeping up of our telephone and Internet metadata by the four programs that have been the successors of Stellar Wind. These revolutionary changes in our government’s policies toward holding prisoners, toward waging war, and toward surveilling its citizens could never have been effected without the imagination, experience, and audacity of Dick Cheney.
The “interagency process” embodied in the National Security Council system, whereby policies are carefully developed and evaluated across the bureaucracy, rising stepwise through the assistant secretary, deputy secretary, and finally principle levels, is inherently conservative, making substantive systemic changes slow and cumbersome. As Gellman shows in detail, Cheney made use of secrecy and a cadre of dedicated and ruthless allies that he, as chief of Bush’s transition—unprecedented for a vice-president elect—had seeded at strategic points throughout the government. This enabled Bush to circumvent that process and instead make policy in tiny, highly secret groups. And it was Cheney who urged Bush to impose those policies unilaterally, relying on his own asserted authority as commander in chief—even policies like Stellar Wind that appeared to violate express provisions of the law.
In the end, perhaps inevitably, Bush would disappoint Cheney, bowing, in the steely unforgiving view of the older man, to the shoddy demands of politics and the fear of “negative press stories.” As Cheney describes the end of the Stellar Wind confrontation in his memoirs, one can almost hear the condescending disappointment in the former vice-president’s voice:
Faced with threats of resignation, the president decided to alter the NSA program, even though he and his advisors were confident of his constitutional authority to continue the program unchanged.
Talking to Cutler for his film, Cheney is more explicit and in his typically precise phrases lets peep through more than a hint of a sneer:
If you’re a man of principle, compromise is a bit of a dirty word. The President made the decision that he wanted to avoid major controversy. It was his call so that’s what we did.
It is clear who is the man of principle and who is not. There is a hint here of the complicated emotional strains of mutual dependency inherent in this relationship. Cheney needed Bush, of course, for without him his high title would have been what it had been for so many of his predecessors: empty words. Bush alone had the power to give Cheney power—and because Cheney’s power came from him personally the president could expect loyalty and discretion in return. But in Cheney’s recollections of Bush one also senses resentment and a kind of moral trumping that is none too subtle. “If you’re a man of principle, compromise is a bit of a dirty word.”
We see a more obvious sign of the instability built into this mutual dependency in Bush’s own account of the Stellar Wind crisis, where Cheney, strikingly, is hardly mentioned. Behind the scenes the vice-president is very much the lead actor in the drama—the conflict is inconceivable without the central part he played in pushing forward Stellar Wind, in maintaining that it could be recertified without Department of Justice approval, and in insisting that the resulting high-profile resignations could be survived. But the reader is left to puzzle out who exactly Bush is referring to when he writes that “some in the White House” wanted him to let Comey, Muller, and their colleagues, and perhaps Ashcroft himself, resign. Even writing his memoirs years after leaving office Bush is loath to identify Cheney as the antagonist who almost scuttled his presidency—though had he done so, his account, which portrays an incurious president very much out of touch, might have been less embarrassing to him personally.
“I made clear to my advisers that I never wanted to be blindsided like that again,” he writes in Decision Points. In the film Gellman tells Cutler that with that confrontation the high water mark of Cheney’s power had passed, that Bush understood that the incident had been “a mortal threat to his presidency. He understood…that Cheney had walked him right to the edge of a cliff and it changed their relationship forever.” Perhaps; but is it resentment, embarrassment, or even lingering gratitude, or a mixture of the three, that leaves Bush unable to mention Cheney by name?
The final irony is that Stellar Wind survived because Bush, when faced with a political crisis that would have exposed it, was willing to compromise, while Cheney, “the antipolitician,” preferred to hold to principles that would have meant watching Stellar Wind collapse into controversy. If there had been a mass resignation, there can be no doubt that the principled objections of the high Justice Department officials would have been widely heard. It is quite possible that had Bush followed the chosen course of “the man of principle”—and had the Justice Department officials resigned while their objections were leaked to the public—the metadata collection would have ended in the spring of 2004, and eight months later, very possibly, the presidency of George W. Bush.
Instead, Stellar Wind lived on, first without the Internet metadata collection that Ashcroft, Comey, and other Justice Department lawyers had refused to approve, and then, three months later, in its original form but according to a different legal theory under the authority of the FISA court. Meanwhile a lawyer farther down the hierarchy in the Justice Department who found himself deeply troubled by the program, and who was warned, after raising his concerns with a superior, “not to go there,” put in a call to Eric Lichtblau and James Risen of The New York Times. After the Times, under heavy administration pressure, held their story for a year, the paper finally revealed Stellar Wind to Americans in December 2005.
The story brought shock and controversy but in the event there were no high Justice Department officials who had resigned their posts rather than approve warrantless surveillance; there was just the Times and its unnamed sources. The controversy cooled, the collection of metadata went on under Stellar Wind’s successor programs, only to be revealed again, thanks to Edward Snowden, by Glenn Greenwald of The Guardian and Gellman himself in The Washington Post in June 2013.
It goes on still. This is the way of the post–September 11 world, where whistleblowers and news organizations reveal what would have once been considered illegal and then, years later, find themselves “revealing” it yet again, and then again. So it has been with torture and extrajudicial killing and warrantless wiretapping. We might call these frozen scandals, which begin in revelation and white-hot controversy and end with our learning to live with secret wrongdoing that is in fact no secret at all. This is our new normal—and a vital attribute of the world Dick Cheney bequeathed us.
—This is the fifth in a series of articles.