Cheney Shielded Bush From Crisis

Attorney General John D. Ashcroft told the president's men that he never should have certified the wiretapping program.
Attorney General John D. Ashcroft told the president's men that he never should have certified the wiretapping program. (Ezio Petersen - Newscom)
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By Barton Gellman
Washington Post Staff Writer
Monday, September 15, 2008

This is the second 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.

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 [1]. 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 [2]. 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.

More than three years later, Gonzales would testify that there was "consensus in the room" from the lawmakers, "who said, 'Despite the recommendation of the deputy attorney general, go forward with these very important intelligence activities.' [3] " By this account -- disputed by participants from both parties -- four Democrats and four Republicans counseled Cheney to press on with a program that Justice called illegal.

In fact, Cheney asked the lawmakers a question that came close to answering itself. Could the House and Senate amend surveillance laws without raising suspicions that a new program had been launched? The obvious reply became a new rationale for keeping Congress out.

The Bush administration had no interest in changing the law, according to U.S. District Judge Royce C. Lamberth, chief of the federal government's special surveillance court when the warrantless eavesdropping began.

"We could have gone to Congress, hat in hand, the judicial branch and the executive together, and gotten any statutory change we wanted in those days, I felt like," he said in an interview. "But they wanted to demonstrate that the president's power was supreme."

* * *

Late that Wednesday afternoon, Bush returned from Cleveland. In early evening, the phone rang at the makeshift FBI command center at George Washington University Medical Center, where Ashcroft remained in intensive care. According to two officials who saw the FBI logs, the president was on the line [4]. Bush told the ailing Cabinet chief to expect a visit from Gonzales and White House Chief of Staff Andrew H. Card Jr.

A Senate hearing in 2007 described some of what happened next. But much of the story remained untold [5].

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