Abuse of Power, Big Time

This week, the Washington Post ran two excerpts from Barton Gellman’s new book Angler: The Cheney Vice Presidency, which describes the fight over warrantless wiretapping in greater detail than we’ve had before. We still don’t know the precise reach of the original (pre-2004) program, nor do we have the classified legal analysis prepared by John Yoo. But Gellman’s account makes you wonder just how far the program and the legal theory went, given that it horrified men like Attorney General John Ashcroft, Deputy A.G. James Comey, and Office of Legal Counsel head Jack Goldsmith–all staunch conservatives who were perfectly comfortable with ambitious theories of executive power, all of whom (along with FBI Director Robert Mueller and sundry other top Justice officials) were ready to resign over the original warrantless wiretapping program. (Marty Lederman made a similar point last year, when Comey testified before the Senate Judiciary Committee).

Ashcroft’s record on civil liberties and executive power is fairly well known. And keep in mind who Goldsmith and Comey are. Goldsmith says plainly that he’s “not a civil libertarian,” and he got the OLC job on John Yoo’s recommendation. And as a US Attorney in New York, James Comey was quite comfortable with pushing the law to its limits and beyond. He prosecuted Martha Stewart for misleading federal investigators about behavior that wasn’t a crime, and he even seriously considered pursuing mail and wire fraud charges against disgraced reporter Jayson Blair for the hitherto unknown crime of making stuff up in the New York Times (Bill Kristol, beware). But the original program was a bridge too far even for them.

Gellman describes a “come to Jesus” meeting orchestrated by David Addington, Alberto Gonzales and Dick Cheney, to get the Justice Department to reauthorize the surveillance program:

Comey, Goldsmith and Philbin found the titans of the intelligence establishment lined up, a bunch of grave-faced analysts behind them for added mass. The spy chiefs brought no lawyers. The law was not the point. This meeting, described by officials with access to two sets of contemporaneous notes, was about telling Justice to set its qualms aside.

The staging had been arranged for maximum impact. Cheney sat at the head of Card’s rectangular table, pivoting left to face the acting attorney general. The two men were close enough to touch. Card sat grimly at Cheney’s right, directly across from Comey. There was plenty of eye contact all around.

This program, Cheney said, was vital. Turning it off would leave us blind. Hayden, the NSA chief, pitched in: Even if the program had yet to produce blockbuster results, it was the only real hope of discovering sleeper agents before they could act.

“How can you possibly be reversing course on something of this importance after all this time?” Cheney asked.

“I will accept for purposes of discussion that it is as valuable as you say it is,” Comey said. “That only makes this more painful. It doesn’t change the analysis. If I can’t find a lawful basis for something, your telling me you really, really need to do it doesn’t help me.”

“Others see it differently,” Cheney said.

There was only one of those, really. John Yoo had been out of the picture for nearly a year. It was all Addington.

“The analysis is flawed, in fact facially flawed,” Comey said. “No lawyer reading that could reasonably rely on it.”

Gonzales said nothing. Addington stood by the window, over Cheney’s shoulder. He had heard a bellyful.

“Well, I’m a lawyer and I did,” Addington said, glaring at Comey.

“No good lawyer,” Comey said.

Bonus Angler revelation: Former House Majority Leader Dick Armey suggests that Cheney lied to him to keep Armey from going all wobbly on the Iraq War vote:

The threat Cheney described went far beyond public statements that have been criticized for relying on “cherry-picked” intelligence of unknown reliability. There was no intelligence to support the vice president’s private assertions, Gellman reports.

Armey had spoken out against the coming war, and his opposition gave cover to Democrats who feared the political costs of appearing weak. Armey reversed his position after Cheney told him, he said, that the threat from Iraq was “more imminent than we want to portray to the public at large.”

Cheney said, according to Armey, that Iraq’s “ability to miniaturize weapons of mass destruction, particularly nuclear,” had been “substantially refined since the first Gulf War.”

Cheney linked that threat to Hussein’s alleged ties to Al Qaeda, Armey said, explaining “we now know they have the ability to develop these weapons in a very portable fashion, and they have a delivery system in their relationship with organizations such as Al Qaeda.”

“Did Dick Cheney … purposely tell me things he knew to be untrue?” Armey said. “I seriously feel that may be the case… . Had I known or believed then what I believe now, I would have publicly opposed [the war] resolution right to the bitter end.”