Excerpt Endnotes: Spying Conflict Led White House to Brink

[1] The president doesn't want this: The account of this meeting is based on interviews with Jack Goldsmith, who was in attendance, and another government official who had access to a contemporary report of what transpired. Goldsmith's memoir of his service in the Bush administration alludes to the episode in one sentence. See Goldsmith, The Terror Presidency,pp. 181-82. Through spokesmen, Potenza, Brenner, and Addington declined to be interviewed. Patrick Philbin, who was also present, likewise declined to discuss the meeting.

[2] Cheney would come close to leading them off a cliff: The dilemma and Bush's near miss is described in tomorrow's excerpt in The Washington Post.

[3] They already knew the really secret stuff: Brenner was the in- house watchdog over "all aspects of NSA's signals intelligence," according to the official job description. Potenza had been the agency's first- or second- ranking lawyer for a decade.

[4] Brenner and Potenza had told Hayden: This account is based on interviews with confidential sources familiar with their analysis. In an exchange with Senator Dianne Feinstein, Hayden confirmed that his lawyers gave only oral, not written, advice, and that they based it on the president's commander-in-chief powers under Article II of the Constitution:

HAYDEN: I then brought the question to NSA lawyers. . . .
FEINSTEIN: Did they put anything in writing?
HAYDEN: No, and I did not ask for it. I asked them just to look at the authorization, and then come back and tell me. . . . Although they didn't rule out other underpinnings for the president's authorization, they talked to me about Article II.

Hayden said the lawyers noted that there were other issues involved and did "not rule out" that the program could be supported with other legal arguments, but they rendered no such opinion. "Confirmation Hearing of Michael Hayden to Be Director of the Central Intelligence Agency," Senate Select Committee on Intelligence, May 18, 2006.

[5] Yet neither man had been allowed: Letter from Shannen Coffin to Senator Patrick Leahy, Aug. 20, 2007, p. 2, refers to the documents as "Top Secret /Codeword." That means that they are handled as "sensitive compartmented information," with special procedures. See Director of Central Intelligence Directive 1/19, "Security Policy for Sensitive Compartmented Information and Security Policy Manual," Mar. 1, 1995, which states: "The primary security principle in safeguarding SCI is to ensure that it is accessible only by those persons with appropriate clearance, access approval, clearly identified need- to- know, and an appropriate indoctrination."

[6] Now they wanted: Those memoranda, which have never been made public, were dated Oct. 4 and Nov. 2, 2001; Jan. 9, May 17, and Oct. 11, 2002; and Feb. 25, 2003. See Coffin letter to Leahy, Aug. 20, 2007.

[7] Its controlling documents, which gave strategic direction: Interviews with confidential sources. The official and rather grand name for the roadway between the West Wing and the EEOB is West Executive Avenue, but "alley" or "driveway" is a better fit for the short, dead- end stretch of asphalt used for automobile access by high-ranking officials and their visitors.

[8] Addington typed on a Tempest-shielded computer: The layout of Addington's office was described by a confidential source. All classified documents must be written and stored on a computer with Tempest shielding, which prevents the inadvertent emanation of signals, such as from a display monitor, that might be intercepted by others.

[9] "I would consider him a drafter, not the drafter": Interview with Andrew Card, May 4, 2008.

[10] Addington pulled out a folder: It is true by definition that the classification markings were new to Goldsmith, because the program was codeword- classified. Until an official is "read in," he does not know there is a special access program with that codeword. If a hypothetical program were called "Banana," the document would be marked at the top and bottom of each page with TOP SECRET / BANANA.

[11] "David Addington was doing all the legal work": Interview with Jack Goldsmith, December 2007.

[12] He had lettered in football, baseball, and soccer: Interview with Jack Goldsmith, Apr. 26, 2008. Other biographical details come from Goldsmith, The Terror Presidency, pp. 19-21.
[13] The son of a Miss Teenage Arkansas: Goldsmith, The Terror Presidency, p. 20, called his stepfather "a mob- connected Teamsters executive named Chuck O'Brien who was Jimmy Hoffa's right- hand man and for decades a leading suspect in Hoffa's disappearance." For one among many news accounts of O'Brien's expulsion from the Teamsters for ties to organized crime, see http://www.cbc.ca/news/background/hoffa/.

[14] He asked for . . . Jim Comey: Goldsmith, The Terror Presidency, p. 159.

[15] "He always invoked the president, not the vice president": Interview with Jack Goldsmith, December 2007. Later, when asked to attend a congressional hearing after he replaced Scooter Libby as Cheney's chief of staff, Addington would assert through his lawyer: "The Chief of Staff to the Vice President is an employee of the Vice President, and not the President, and therefore is not in a position to speak on behalf of the President." Letter from Kathryn L. Wheelbarger, counsel to the vice president, to Perry Apelbaum, chief of staff and counsel to the House Judiciary Committee, Apr. 18, 2008. Even as a strictly literal matter, this did not seem to be true: Addington had inherited Libby's additional title of "assistant to the president." It certainly bore no resemblance to reports from at least two dozen witnesses that Addington spoke with absolute confidence, during internal debates, for the Bush administration as a whole.

[16] "You're the head of the Office of Legal Counsel": According to Goldsmith, Addington and Gonzales delivered variations on this message four or five times. Interviews with Jack Goldsmith, 2007 and 2008.

[17] "I'm so glad you're getting read in": Interview with James B. Comey, May 16, 2008. Hayden did not reply to notes sent to his personal email account, and a spokesman said Hayden would not answer any questions for Angler. When Comey and Hayden met, Kerry's main rivals for the Democratic nomination, Howard Dean and John Edwards, were on the verge of dropping out.

[18] Bush was across the river in Arlington: Bush's daily schedule showed this 11:00 a.m. appearance: "President Commends Recipients of Malcolm Baldrige Awards, Crystal Gateway Marriott, Arlington, Virginia."

[19] "How can you possibly be reversing course": The account of this meeting draws on interviews with two officials who had contemporary knowledge of and access to unclassified notes of what transpired. They did not describe the substance of the program. The times of, and participants in, the two meetings in Card's office were recorded in notes from Mueller released by the Justice Department. See "RSM Program Log," accompanying letter from Richard C. Powers to Representative John Conyers, Aug. 14, 2007.

[20] "No good lawyer," Comey said: Interviews with two officials who had contemporary knowledge. Comey's jab about "no good lawyer" was first reported in Scott Shane, David Johnston, and James Risen, "Secret U.S. Endorsement of Severe Interrogations," New York Times, Oct. 4, 2007.

[21] "I don't think it would be appropriate": Card interview, May 4, 2008. Card explained the reasons for delay but declined to say exactly when he notified Bush of the legal crisis. Three sources said Bush got his first word on Wednesday and did not know the breadth of the Justice Department problem until late Thursday or early Friday morning.

[22] They huddled in the West Wing lobby: Interview with eyewitness, 2008.

[23] "I think this is something I am not a part of ": The account of the Townsend-Comey conversation comes from confidential sources with contemporary knowledge.

[24] Like Steve Hadley and John Gordon and Secretary of Homeland Security Tom Ridge: Interviews with senior national security officials, 2006, 2007, and 2008. One White House aide recounted a telephone call from Ridge when the NSA story broke in the New York Times in December 2005. "I sort of knew something was up," the aide said. "You can't be around there that long and in the thick of things and not know something is up. But when Tom asked me, was I involved, I said, 'Absolutely not.' He was the secretary of homeland security, and this was domestic surveillance, and he didn't know about it!"