I’ll say this for Dick Cheney’s new memoir, In My Time: Unlike his former boss, the ex-vice president devotes considerable attention and a lot of passion in his book to one of the most significant periods in the history of the Bush administration. Cheney recounts in detail the decision to allow the National Security Agency to undertake a classified program of electronic eavesdropping after the 9/11 attacks, monitoring the phone calls and e-mails of suspected terrorists without warrants and without full briefings to Congress. Cheney’s story makes for good reading, and there are even some new details. But his account is notably short on the two elements that would have made it a valuable contribution to history: context and facts.
Cheney starts out by arguing the obvious. “It is hard to imagine a more important kind of communication for us to intercept from the standpoint of our national security than one potentially involving terrorists speaking to someone already in the United States,” he writes. True enough. No one has ever argued otherwise.
But in Cheney’s view, this isn’t broad common ground. It’s a tiny island that has to be vigilantly defended from interloping bureaucrats, particularly lawyers at the Justice Department, who are hell-bent on chipping away at the president’s wartime powers and tying his hands in the fight against terrorists.
Perhaps this should come as no surprise, considering that absolute preservation of executive authority has been Cheney’s raison d’être for his entire career in Washington. (If you want to understand the essence of his views, read this.) But Cheney’s account of the internal debate about the NSA program—and even what that program was meant to accomplish—need correction.
First, Cheney writes that “the three most experienced lawyers at the NSA” signed off on the program’s legality every 30 to 45 days, and that “the program was so sensitive and closely held that David Addington [Cheney’s legal counsel] carried the authorizing document in a locked classified documents pouch by hand to each of the officials involved.”
This makes it sound as if the NSA lawyers were fully on board and enjoyed close cooperation with Cheney’s right-hand man. And that’s laughable.
Several accounts already in the public domain, including those in my book, Barton Gellman’s, former Justice Department lawyer Jack Goldsmith’s, and the congressional testimony of the former deputy attorney general, James Comey [PDF], show that not only did NSA lawyers lack complete access to information about the program, making a full legal review impossible, but when some of them asked for more, Addington told them to back off. This, he made clear, was a White House operation.
One of the NSA’s “most experienced lawyers” whom Cheney is surely talking about, Joel Brenner, writes in his own book due out in September that the surveillance program was “run by the White House through the NSA.” Brenner doesn’t address his own role monitoring the surveillance program, or his run-ins with Addington. But others do. Gellman writes that in 2003, Brenner and another top attorney at NSA—Vito Potenza—were trying to review the NSA program in full, because they “did not know why exactly the Bush administration believed [it] was legal.”
Brenner was the inspector general and Potenza was acting general counsel. But neither was a constitutional lawyer. The legal issues in play here concerned more agencies than the NSA alone and involved the president’s wartime powers. To truly know whether the surveillance activities were legal, Brenner and Potenza would have to be able to review the Justice Department’s analysis, written by the Office of Legal Counsel. But the lawyers couldn’t see that analysis, because the White House wouldn’t let them.
In his book The Terror Presidency, Goldsmith, who took over the Office of Legal Counsel in 2003, recounts how Addington and White House officials adhered to a policy of “strict control.” In late 2003, Goldsmith writes, Addington “angrily denied” the NSA inspector general’s request to see a copy of the Justice Department’s legal analysis that formed the basis of the surveillance program. “Not even NSA lawyers were allowed to see the Justice Department’s legal analysis of what NSA was doing,” Goldsmith writes.
Cheney, through Addington, kept NSA’s lawyers in the dark. His account omits these crucial facts.
Cheney adds some new details to the NSA saga that reenforce the direct role he says Bush played in authorizing the program. Once, Cheney writes, the president was leaving for a trip to Asia when the program was up for renewal, and Addington and White House counselor Alberto Gonzales “flew to California to get the president’s signature, so the program would not stop while he was away.”
This begs the question: Just how closely involved with NSA’s secret activities was Bush if he was preparing to leave the country just as they were set to expire? At a minimum, this anecdote strains Cheney’s basic argument—that the NSA program was essential to national security—if the president himself was allowed to leave town without reauthorizing it.
Cheney also suggests that Congress was well informed about the NSA’s activities. But by his own account, he and the NSA director, General Michael Hayden, gave briefings only to the chairmen and ranking members of the House and Senate Intelligence Committees—four people. And those briefings were usually held in Cheney’s office. The former vice president correctly asserts that it’s a long-standing practice to brief only the top committee members on the most sensitive programs. But the NSA surveillance activities went on for years in secret, and they broadened over time. Indeed, by 2004, when a legal debate over one aspect of NSA’s program caused top Justice Department officials to threaten resignation, the “program” had grown into many other programs, including the broad, indiscriminate collection of transaction records about U.S. citizens’ phone calls and e-mails. This information was mined at NSA to look for patterns of suspicious activity, and it was stored in the agency’s databases for future use. As I write in my book, what began in the weeks after 9/11 as a targeted set of actions to track terrorists had morphed into a massive, classified operation that collected so much information NSA analysts couldn’t make very good sense of it all.
Notably, Cheney omits any mention of this expansion when he recounts a March 9, 2004, meeting with lawyers at the Justice Department, “who had raised concern about one aspect [of the program],” and “the professionals who were carrying out the program for the NSA . . . ” (I’m told by sources knowledgeable of the controversy that the dispute centered on the aforementioned data mining.) Cheney says that Hayden briefed the officials, “emphasizing how careful the NSA was about limits and safeguards,” but that the Justice layers “remained locked in place.” It was this meeting that preceded the legal showdown that nearly ended in mass resignations.
Gellman, in a piece for Time yesterday, picked apart many of the inconsistencies in Cheney’s version of these events, and how the former vice president “tried to rewrite history.” Cheney draws a stark line between the attorneys, whom he views as recalcitrant and meddlesome, and the “professionals” of the intelligence community who are, he thinks, capable of judging for themselves whether their own actions are legal.
Finally, Cheney says he has no regrets about launching the NSA program and letting it stay so secret for so long: “If I had it to do all over again, I would, in a heartbeat.” He calls the “Terrorist Surveillance Program,” which, it should be noted, is merely one facet of NSA activities that isn’t still classified, “one of the most important success stories in the history of American intelligence.” Cheney asserts, “I know it saved lives and prevented attacks.”
This is a dubious claim. The whole point of the NSA program, according to every public account and many private ones, was to be an early warning system for terrorism, to alert the United States to terrorist plots before they occurred. In all my years reporting on this story, I’ve yet to find one person who can make a credible case that the NSA program did that. (Cheney offers no evidence.) One former senior administration official told me that NSA surveillance was helpful in mapping the network of terrorists who tried to sneak liquid explosives onto airplanes in 2006. But the agency only came into the picture after British authorities detected the cell’s key members. What secret surveillance did do was imperil the privacy and liberties of countless innocent people and, in the view of some of those pesky lawyers, break the law.
Cheney asks readers to judge him after giving them only one set of the facts, and a muddled set at that. Blithely dismissing the concerns of the Justice Department’s top lawyers—all of whom were deeply committed to the war on terror—the former vice president suggests that anyone who would stand in his way was on the wrong side of that war, and on the wrong side of history. This is too simplistic an argument and, a decade after 9/11, it’s a tired one.