by Peter Baker
CHENEY HUSBANDED HIS clout on same-sex marriage, but he used it on North Korea. Sensing weakness, he had been working for months to shore up the American position, insisting that any new round of the six-party talks be based on the goal of a “complete, verifiable and irreversible dismantlement” of Pyongyang’s nuclear program. “We don’t negotiate with evil,” he had declared at a meeting in December. “We defeat it.”
By the evening of February 26, talks had opened again, but Cheney heard they were deadlocked over a joint statement. He met with Bush to intercede, fashioning language to force negotiators to take the unyielding line he had been pushing. He spent about an hour on the phone with Michael Green, the president’s Asia adviser, wordsmithing the language.
Unaware of the latest intervention were Colin Powell and Richard Armitage, who were attending a black-tie dinner until summoned outside to take a secure phone call in the limousine and work out language with Stephen Hadley. Armitage argued, but Hadley pushed back. “The vice president feels very strongly,” he said. Bush went with Cheney’s tougher language and Hadley ordered Green to read it over an unsecure telephone to the delegation headed by James Kelly rather than send it through the usual State Department cable. Green said the Chinese would almost certainly be tapping the line and hear. “Yeah,” Hadley said. “That’s what we want.”
Powell only learned later that Cheney’s language had been sent when an anxious Chinese foreign minister called to say the American position could blow up the talks. The negotiations wrapped up before the American delegation could execute its new instructions, averting a meltdown. But this was exactly the sort of situation that had been aggravating Powell and Armitage for years. “Diplomacy in the Bush administration is, ‘Alright, you fuckers, do what we say,’ ” Armitage complained at one point.
Powell confronted Bush at the White House the next day, February 27, before a meeting with Germany’s visiting chancellor.
“Busy last night, huh?” he asked Bush pointedly.
“Didn’t they tell you?” Bush asked.
“No, they didn’t,” Powell said.
It was lucky the talks adjourned, he scolded the president, because if they had gone ahead with these instructions, the process would have collapsed. “It would have been gone.”
To Cheney, such arguments were beside the point. In his mind, Powell had become a captive of the State Department bureaucracy, which cared more about process than results. “The diplomats, whether they knew it or not, in my estimation didn’t have license to strike a deal,” said Stephen Yates, who was Cheney’s Asia adviser. “But they may have thought they did, and so they kept trying to get these joint statements, trying to come up with solutions, which is sort of their job to try. Mysteriously, every time it would come up, they would receive instructions from the White House, from the very highest levels, not to agree to certain things or to remind them of their limited instructions on their interactions. That frustrated the diplomats; it offended people like Powell, Armitage, and Kelly who felt like they were fairly tough-minded people who served in the military, were no pushovers on these kinds of things.” They had a point, Yates said, but they were not in charge.
ANOTHER FAULT LINE was opening at the same time. In the two and a half years since Cheney helped usher in the National Security Agency’s warrantless surveillance program, it had been reauthorized twenty-two times. Each time, the intelligence agencies produced what had come to be called the “scary memos” outlining the threat to the country justifying renewal of the program. The program remained so secret that Bush personally had to approve telling anyone outside the NSA about it.
But John Yoo was now gone, and a new crop of lawyers had arrived at the Justice Department, only to be shocked at what they found. Jack Goldsmith, a conservative law professor who had taken over as head of the department’s Office of Legal Counsel, thought some of the opinions he had inherited were poorly reasoned and unsustainable. As the next reauthorization deadline approached on March 11, he concluded that one element of the program had evolved in a way that went beyond the original presidential authorization and could not be legally supported. Under this part of the program, “metadata” about e-mail and other Internet communications of tens of millions of people was swept up, including names of senders and recipients, and subject lines, but not their content. John Ashcroft was in the hospital with pancreatitis, leaving in charge his deputy, James Comey, the same man who had appointed Patrick Fitzgerald to investigate the CIA leak. Comey agreed with Goldsmith.
Goldsmith went over to the White House on March 6 to tell Alberto Gonzales and David Addington that the department would not reauthorize the program.
Addington erupted in full volcanic fury. “If you rule that way, the blood of the hundred thousand people who die in the next attack will be on your hands,” he thundered.
Goldsmith stood firm. “The president is free to overrule me if he wants.”
Addington had been the key architect of the eavesdropping program and as fierce a guardian of executive prerogative as Washington had seen. He was tall, bearded, intellectually formidable, and profoundly intimidating. He kept his office locked at all times and carried a worn copy of the Constitution that he often pulled out of his pocket dramatically to make his arguments. In times of war, he believed that a president’s power was largely unfettered. “We’re going to push and push and push until some larger force makes us stop,” he once said. Since his time working on the Iran-contra commission with Cheney, Addington had scorned the constraints others tried to apply to a president guarding national security. He particularly disdained the Foreign Intelligence Surveillance Act and the secret court that enforced it. At a meeting just a month earlier, he had said, “We’re one bomb away from getting rid of that obnoxious court.”
Cheney was alarmed when he heard what the Justice Department was saying. At a meeting at noon on March 9 in Andy Card’s office, the vice president consulted with Michael Hayden, the NSA director; John McLaughlin, the deputy CIA director; Robert Mueller, the FBI director; and various White House officials.
Cheney made clear the Justice Department’s legal objections would not stop the program. “The president may have to reauthorize without blessing of DOJ,” he said.
“I could have a problem with that,” Mueller responded. The FBI would “have to review legality of continued participation in the program.”
So now Cheney faced a revolt not just by the lawyers but by the FBI. He summoned Comey, Goldsmith, and other lawyers to the White House later that afternoon.
“How can you possibly be reversing course on something of this importance after all this time?” Cheney demanded. The program was “critically important,” he said, and, echoing Addington, asserted that Comey would risk “thousands” of lives if he did not sign off.
Comey said the program’s importance did not change the legal issues. “The analysis is flawed, in fact facially flawed,” he said. “No lawyer reading that could reasonably rely on it.”
“Well, I’m a lawyer and I did,” Addington interrupted.
“No good lawyer,” Comey said.
Thwarted, Cheney invited the congressional Gang of Eight to the White House for an emergency meeting on the afternoon of March 10, the day before the program would expire.
This was an important program, Cheney explained to lawmakers. “We think it is essential,” he said. But the lawyers were refusing to sign off.
“You ought to get yourself some new lawyers,” said Senator Pat Roberts of Kansas, the Republican chairman of the Senate Intelligence Committee.
After Hayden explained the program for those who had not previously attended such briefings, Cheney asked whether the lawmakers thought it should continue. “None of them says, ‘Well, then, you ought to stop the program,’ ” Hayden recalled. Cheney asked whether they thought the White House should go to Congress to explicitly authorize the program. Again, none did. But several Democrats later said they did not recommend the program proceed
either.
That evening, Bush had his staff call Ashcroft at George Washington University Hospital, where he had undergone surgery the day before to remove his gallbladder, but his wife, Janet, had ordered no calls be accepted. So Bush picked up the phone himself and was put through. According to Card, who was listening to Bush’s end, the president told Ashcroft he had a reauthorization for the attorney general to sign and the program was about to expire. Ashcroft in this version agreed to sign. “I’ll send Alberto and Andy over,” Bush said.
Janet Ashcroft quickly told the attorney general’s chief of staff, David Ayres, that Card and Alberto Gonzales were on their way. Ayres then called Comey, who was in his car on the way home. Sensing an end run, Comey directed his security detail to rush him to the hospital with emergency lights flashing, and he called Mueller and others to urge them to come too.
Arriving at the hospital around 7:10 p.m., Comey did not wait for the elevator and bounded up the stairs, beating the president’s emissaries to Ashcroft’s room. He called Mueller back and had him instruct the FBI detail that under no circumstances should Comey be removed from Ashcroft’s room. Card and Gonzales arrived at 7:35 p.m. with an envelope containing forms to renew the surveillance program. By Comey’s account, they did not acknowledge him.
Gonzales asked Ashcroft how he was feeling.
“Not well,” the attorney general said.
“You know, there’s a reauthorization that has to be renewed,” Gonzales ventured.
Ashcroft, still woozy from the surgery, lifted himself in his bed and said he shared Comey’s concerns.
“But that doesn’t matter,” he added, “because I’m not the attorney general.” Pointing to Comey, who was formally acting in his stead, Ashcroft said, “There is the attorney general.” Physically spent, he sank back into the bed.
Card and Gonzales later said they did not know that Ashcroft had transferred his power to Comey and made no further effort. “We said, ‘Hope you are doing better,’ and left,” Card recalled. “We were not trying to get him to sign something that he didn’t want to sign.”
Janet Ashcroft stuck her tongue out at Card and Gonzales as they walked out. Mueller arrived at 8:00 p.m. and spoke with Ashcroft. “AG in chair; is feeble, barely articulate, clearly stressed,” Mueller wrote in his notes.
There are conflicting accounts of key details of the episode. By Card’s account, Bush explicitly raised the program on the phone and Ashcroft agreed to sign, only to change his mind after Comey arrived first. In his memoirs, though, Bush made no claim that he said anything other than telling Ashcroft he was sending Card and Gonzales over on an urgent matter. Aides to Ashcroft have cast doubt on the notion that he agreed on the phone to sign.
The confrontation escalated. After returning to the White House that night, Card called Comey and ordered him to come to his office right away; Comey refused to come without a witness and had Solicitor General Theodore Olson pulled out of a dinner party. Comey met first at the Justice Department with a group of lawyers, and there was broad agreement that they would all resign if the White House overruled their judgment. One of the lawyers quietly e-mailed a friend at the White House, who passed on news of the brewing mass resignation to Card. By the time Comey arrived at the White House at 11:00 p.m., Card realized he faced an insurrection and convinced the acting attorney general to leave Olson outside while they talked. But Comey still refused to budge on the surveillance program.
The next day, March 11, Bush signed the order renewing the surveillance program without Ashcroft or Comey. Addington retyped the order to delete the signature line for the attorney general and substituted the White House counsel instead, so Gonzales could sign it, even though he had no authority. As far as Bush and Cheney were concerned, the importance of the program was brought home all too vividly the same day when terrorists set off ten bombs on four commuter trains in Madrid, killing 191 people and injuring another 1,800 just three days before Spain was to hold elections. It was one of the deadliest such attacks since September 11, and in the heart of Europe, dooming the government of Bush’s ally Prime Minister José María Aznar.
Comey and Goldsmith drafted letters of resignation. At 1:30 a.m. on March 12, Mueller scrawled out his own by hand, saying he was “forced to withdraw the FBI from participation in the program.” He added, “Further, should the President order the continuation of the FBI’s participation in the program, and in the absence of further legal advice from the AG, I would be constrained to resign as Director of the FBI.”
Bush did not understand just how far the conflict over the program had gone until later that morning when Card told him Comey and as many as a dozen officials planned to quit because the president had reauthorized it. “I was stunned,” Bush said later, asserting that he did not even realize that Ashcroft had transferred his powers to Comey. When Comey showed up for a routine meeting that morning, Bush asked him to stick around afterward.
“I just don’t understand why you are raising this at the last minute,” Bush said.
Comey was shocked and realized Bush had been kept in the dark. “Mr. President,” he said, “your staff has known about this for weeks.”
Only then did Bush learn that Mueller also planned to resign. Flashing through his mind were visions of Richard Nixon’s “Saturday Night Massacre,” when the attorney general and the deputy attorney general both resigned rather than carry out the president’s order to fire the Watergate special prosecutor. “I was about to witness the largest mass resignation in modern presidential history, and we were in the middle of a war,” Bush concluded. One Justice Department official predicted, with only a bit of hyperbole, that if the top law enforcement officials all walked out, the president would have to resign within seventy-two hours or risk impeachment.
Cheney and others urged Bush not to give in. “I had little patience with what I saw happening,” the vice president said. But Bush backed down, modifying the Internet surveillance part of the program that Comey and Mueller objected to. Ultimately, it was restarted several months later under a different legal theory, this time with Comey’s assent.
But Cheney struck back at Comey, who had already gotten on the vice president’s bad side by appointing the special prosecutor in the CIA leak case; several months later, Cheney blocked a move to make Comey’s aide Patrick Philbin deputy solicitor general.
ON THE ELECTORAL front, John Kerry had locked up the Democratic nomination, and the Bush team was feeling on the defensive. Bush tried to settle down his jittery staff during a meeting in the White House residence.
“Listen, I’ve been involved in a lot of campaigns,” he started, implicitly reminding his team that he had already seen five presidential campaigns up close. “The accidental genius of the process in its length is it strips you bare. You’re totally revealed to the American people. You can’t hide who you are. It’s one of the reasons why people made fun of me with my pillow in 2000 and I wanted to get home. But you need your sleep. It’s exhausting.” The bottom line this year, he added pointedly, was this: “We’re going to win because John Kerry is an asshole.”
Bush and Cheney wasted little time before going after Kerry. The challenge was to shape his public image before Kerry could do it himself, and the vice president would be the pit bull. “Cheney would be the attack dog who went after Kerry a little more pointedly than the president could,” as Scott McClellan, the White House press secretary, later put it. The opening came in mid-March. The campaign team learned that Kerry would be visiting West Virginia, so they decided to try to bait him by airing an ad on local television attacking him for voting against funding for troops in Iraq. When a member of the audience posed the same question at Marshall University in Huntington on March 16, Kerry was already irritated. He explained that he first voted for a Democratic alternative to finance the war by reducing Bush’s tax cuts for the wealthy. “I actually did vote for the $87 billion before I voted against it,” he said.
There it was, one sentence th
at neatly summed up the argument that Kerry was an unreliable flip-flopper. Mark McKinnon ran around the Bush-Cheney campaign headquarters wearing a beret and screaming with delight. Game, set, and match, he thought. He quickly recut the West Virginia ad to include the Kerry line and sent it out nationally. “When I saw that,” Cheney recalled, he thought, “that is a gift.” He quickly inserted the line into his stump speech. “I couldn’t pass it up and I quoted Kerry saying that and the crowd just roared and I used it in just about every speech.”
While exploiting Kerry’s gaffe, Bush tried to find a way to minimize his own vulnerability: the missing weapons in Iraq. Humor historically had helped presidents smooth over political problems. So at the black-tie dinner of the Radio and Television Correspondents Association on March 24, Bush presented a slide show of photographs, including a couple of him looking under furniture in the Oval Office.
“Those weapons of mass destruction gotta be somewhere,” he joked. When another such picture showed up later in the slide show, he quipped, “Nope, no weapons over there. Maybe under here.”
The jokes went over fine in the room at the time, but by morning making light of a colossal intelligence failure that propelled the country to war seemed in poor taste.
In the same performance, Bush needled Cheney, making him a foil, as he did increasingly over the course of his presidency. Bush showed a picture of the two of them in the Oval Office with Andy Card making an odd face as the vice president seemed to be talking to his finger and thumb. “As you can tell from the look on Andy Card’s face, we’ve become a little concerned about the vice president lately,” Bush said. “Whenever you ask him a question, he replies, ‘Let’s see what my little friend says.’ ”
Other Republicans saw not a punch line but a liability—among them, one of Cheney’s most important patrons. A number of Republicans approached Gerald Ford to see if he might help ease Cheney off the ticket. Despite their different political philosophies, Cheney revered Ford, who had entrusted his White House to him at a young age. Ford rebuffed the emissaries who approached him. But Ford told a friendly journalist in March, “Dick has not been the asset I expected on the ticket. As you know, he’s a great friend of mine. He did a great job for me. But he has not clicked, if that’s the right word.”
