16 posts tagged “liberties”

By Barton Gellman
Washington Post Staff Writer
Sunday, September 14, 2008

This is the first 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.

A burst of ferocity stunned the room into silence. No other word for it: The vice president's attorney was shouting.

"The president doesn't want this! [1] You are not going to see the opinions. You are out . . . of . . . your . . . lane!"

Five government lawyers had gathered around a small conference table in the Justice Department command center. Four were expected. David S. Addington, counsel to Vice President Cheney, got wind of the meeting and invited himself.

If Addington smelled revolt, he was not far wrong. Unwelcome questions about warrantless domestic surveillance had begun to find their voice.

Cheney and his counsel would struggle for months to quash the legal insurgency. By the time President Bush became aware of it, his No. 2 had stoked dissent into flat-out rebellion. The president would face a dilemma, and the presidency itself a historic test. Cheney would come close to leading them off a cliff, man and office both [2].

On this second Monday in December 2003, Addington's targets were a pair of would-be auditors from the National Security Agency. He had displeasure to spare for their Justice Department hosts.
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Perfect example, right here. A couple of NSA bureaucrats breeze in and ask for the most sensitive documents in the building. And Justice wants to tell them, Help yourselves? This was going to be a very short meeting.

Joel Brenner and Vito Potenza, the two men wilting under Addington's wrath, had driven 26 miles from Fort Meade, the NSA's eavesdropping headquarters in Maryland. They were conducting a review of their agency's two-year-old special surveillance operation. They already knew the really secret stuff [3]: The NSA and other services had been unleashed to turn their machinery inward, collecting signals intelligence inside the United States. What the two men didn't know was why the Bush administration believed the program was legal.

It was an awkward question. Potenza, the NSA's acting general counsel, and Brenner, its inspector general, were supposed to be the ones who kept their agency on the straight and narrow. That's what Cheney and their boss, Lt. Gen. Michael V. Hayden, told doubters among the very few people who knew what was going on. Cheney, who chaired briefings for select members of Congress, said repeatedly that the NSA's top law and ethics officers -- career public servants -- approved and supervised the surveillance program.

That was not exactly true, not without one of those silent asterisks that secretly flip a sentence on its tail. Every 45 days, after Justice Department review, Bush renewed his military order for warrantless eavesdropping. Brenner and Potenza told Hayden that the agency was entitled to rely on those orders [4]. The United States was at war with al-Qaeda, intelligence-gathering is inherent in war, and the Constitution appoints the president commander in chief.

But they had not been asked to give their own written assessments of the legality of domestic espionage. They based their answer in part on the attorney general's certification of the "form and legality" of the president's orders. Yet neither man had been allowed to see the program's codeword-classified legal analyses [5], which were prepared by John C. Yoo, Addington's close ally in the Justice Department's Office of Legal Counsel. Now they wanted to read Yoo's opinions for themselves [6].

"This is none of your business!" Addington exploded.

He was massive in his swivel chair, taut and still, potential energy amping up the menace. Addington's pugnacity was not an act. Nothing mattered more, as the vice president and his lawyer saw the world, than these new surveillance tools. Bush had made a decision. Debate could only blow the secret, slow down vital work, or call the president's constitutional prerogatives into question.

The NSA lawyers returned to their car empty-handed.

* * *

The command center of "the president's program," as Addington usually called it, was not in the White House. Its controlling documents, which gave strategic direction to the nation's largest spy agency, lived in a vault across an alley from the West Wing [7] -- in the Eisenhower Executive Office Building, on the east side of the second floor, where the vice president headquartered his staff.

The vault was in EEOB 268, Addington's office. Cheney's lawyer held the documents, physical and electronic, because he was the one who wrote them. New forms of domestic espionage were created and developed over time in presidential authorizations that Addington typed on a Tempest-shielded computer across from his desk [8].

It is unlikely that the history of U.S. intelligence includes another operation conceived and supervised by the office of the vice president. White House Chief of Staff Andrew H. Card Jr. had "no idea," he said, that the presidential orders were held in a vice presidential safe. An authoritative source said the staff secretariat, which kept a comprehensive inventory of presidential papers, classified and unclassified, possessed no record of these.

In an interview, Card said the Executive Office of the President, a formal term that encompassed Bush's staff but not Cheney's, followed strict procedures for handling and securing presidential papers.

"If there were exceptions to that, I'm not aware of them," he said. "If these documents weren't stored the right way or put in the right places or maintained by the right people, I'm not aware of it."

Asked why Addington would write presidential directives, Card said, "David Addington is a very competent lawyer." After a moment he added, "I would consider him a drafter, not the drafter [9]. I'm sure there were a lot of smart people who were involved in helping to look at the language and the law."

Not many, it turned out. Though the president had the formal say over who was "read in" to the domestic surveillance program, Addington controlled the list in practice, according to three officials with personal knowledge. White House counsel Alberto R. Gonzales was aware of the program, but was not a careful student of the complex legal questions it raised. In its first 18 months, the only other lawyer who reviewed the program was John Yoo.

By the time the NSA auditors came calling, a new man, Jack L. Goldsmith, was chief of the Justice Department's Office of Legal Counsel. Soon after he arrived on Oct. 6, 2003, the vice president's lawyer invited him to EEOB 268. Addington pulled out a folder with classification markings that Goldsmith had never seen [10].

"David Addington was doing all the legal work. All the important documents were kept in his safe [11]," Goldsmith recalled. "He was the one who first briefed me."

Goldsmith's new assignment gave him final word in the executive branch on what was legal and what was not. Addington had cleared him for the post -- "the biggest presence in the room," Goldsmith said, during a job interview ostensibly run by Gonzales.

Goldsmith did not have the looks of a guy who posed a threat to the Bush administration's alpha lawyer. A mild-mannered law professor from the University of Chicago, he was rumpled and self-conscious, easy to underestimate. On first impression, he gave off a misleading aura of softness. Goldsmith had lettered in football, baseball and soccer at the Pine Crest School in Fort Lauderdale, Fla., [12] spending his formative years with a mob-connected Teamster who married his mother [13]. He was not a bare-knuckled brawler in Addington's mold, but Goldsmith arrived at Justice with no less confidence and strength of will.

Addington's behavior with the NSA auditors was "a wake-up call for me," Goldsmith said. Cheney and Addington, he came to believe, were gaming the system, using secrecy and intimidation to prevent potential dissenters from conducting an independent review.

"They were geniuses at this," Goldsmith said. "They could divide up all these problems in the bureaucracy, ask different people to decide things in their lanes, control the facts they gave them, and then put the answers together to get the result they want."

Dec. 9, 2003, the day of the visit from Brenner and Potenza, was the beginning of the end of that strategy. The years of easy victory were winding down for Cheney and his staff.

* * *

Goldsmith began a top-to-bottom review of the domestic surveillance program, taking up the work begun by a lawyer named Patrick F. Philbin after John Yoo left the department. Like Yoo and Goldsmith, Philbin had walked the stations of the conservative legal establishment: Federalist Society, a clerkship with U.S. Circuit Judge Laurence H. Silberman, another with Supreme Court Justice Clarence Thomas.

The more questions they asked, the less Goldsmith and Philbin liked the answers. Parts of the program fell easily within the constitutional powers of the commander in chief. Others looked dicier.

The two lawyers worked at the intersection of three complex systems: telecommunications, spy technology, and the statutory regimes that governed surveillance. After a few weeks, Goldsmith said, he decided the program "was the biggest legal mess I'd seen in my life."

He asked for permission to read in Attorney General John D. Ashcroft's new deputy, James B. Comey [14]. As always, he found Addington waiting with Gonzales in the White House counsel's corner office, one floor up from the chief of staff. They sat in parallel wing chairs, much as Bush and Cheney did in the Oval Office.

"The attorney general and I think the deputy attorney general should be read in," Goldsmith said.

Addington replied first.

"Forget it," he said.

"The president insists on strict limitations on access to the program," Gonzales agreed.

Weeks passed. Goldsmith kept asking. Addington kept saying no.

"He always invoked the president, not the vice president," Goldsmith said [15].

Comey was not exactly Mr. Popular at 1600 Pennsylvania Ave. He had arrived at Justice as a 6-foot-8 golden boy, smooth and polished, with top chops as a federal terrorism prosecutor in Northern Virginia and New York City. Then came Dec. 30, 2003. Comey did something unforgivable: He appointed an independent counsel to investigate the leak of Valerie Plame's identity as a clandestine CIA officer, a move that would bring no end of grief for Cheney.

In late January, Goldsmith and Addington cut a deal. Comey would get his read-in. Goldsmith would get off the fence about the program, giving his definitive answer by the March 11 deadline.

"You're the head of the Office of Legal Counsel, and if you say we cannot do this thing legally, we'll shut it off," Addington told him [16].

Feel free to tell the president that his most important intelligence operation has to stop.

Your call, Jack.

Goldsmith wanted to fix the thing, not stop it. He and Philbin traveled again and again to Fort Meade, each time delving deeper. They were in and out of Gonzales's office, looking for adjustments in the program that would bring it into compliance with the law. The issues were complex and remain classified. Addington bent on nothing, swatting back every idea. Gonzales listened placidly, sipping Diet Cokes from his little refrigerator, encouraging the antagonists to keep things civil.

There would be no easy out, no middle ground. Addington made clear that he did not believe for a moment that Justice would pull the plug.

* * *

Mike Hayden and Vito Potenza drove down from NSA headquarters after lunch on Feb. 19, 2004, to give Jim Comey his first briefing on the program. In the Justice Department's vault-like SCIF, a sensitive compartmented information facility, Hayden got Comey's attention fast.

"I'm so glad you're getting read in, because now I won't be alone at the table when John Kerry is elected president," the NSA director said [17].

The witness table, Hayden meant. Congressional hearing, investigation of some kind. Nothing good. Kerry had the Democratic nomination just about locked up and was leading Bush in national polls. Hardly anyone in the intelligence field believed the next administration would climb as far out on a legal limb as this one had.

"Hayden was all dog-and-pony, and this is probably what happened to those poor folks in Congress, too," Comey told his chief of staff after the briefing. "You think for a second, 'Wow, that's great,' and then if you try actually to explain it back to yourself, you don't get it. You scratch your head afterward and you think, 'What the hell did that guy just tell me?' "

The NSA chief insisted on limiting surveillance to e-mails, phone calls and faxes in which one party was overseas, deflecting arguments from Cheney and Addington that he could just as well collect communications inside the United States.

That was one reason Hayden hated when reporters referred to "domestic surveillance." He made his point with a folksy analogy: He had taken "literally hundreds of domestic flights," he said, and never "landed in Waziristan." That sounded good. But the surveillance statutes said a warrant was required if either end of the conversation was in U.S. territory. The American side of the program -- the domestic surveillance -- was its distinguishing feature.

By the end of February, Goldsmith and Philbin had reached their conclusion: Parts of the surveillance operation had no support in law. Comey was so disturbed that he drove to Langley one evening to compare notes with Scott W. Muller, the general counsel at the CIA. Muller "got it immediately," agreeing with the Goldsmith-Philbin analysis, Comey said.

"At the end of the day, I concluded something I didn't ever think I would conclude, and that is that Pat Philbin and Jack Goldsmith understood this activity much better than Michael Hayden did," he said.

On Thursday, March 4, Comey brought the findings to Ashcroft, conferring for an hour one-on-one. Three senior Justice Department officials said in interviews that Ashcroft gave his full backing. He was not going to sign the next presidential order -- due in one week, March 11 -- unless the White House agreed to a list of required changes.

* * *

A few hours later, Ashcroft was reviewing notes for a news conference in Alexandria when his color changed and he sat down heavily. An aide, Mark Corallo, ducked out and returned to find the attorney general laid out on his back. By nightfall, Ashcroft was taken to George Washington University Medical Center in severe pain, suffering acute gallstone pancreatitis. Comey became acting attorney general on Friday.

The next day -- Saturday, March 6, five days before the March 11 deadline -- Goldsmith brought the Justice Department verdict to the White House. He told Gonzales and Addington for the first time that Justice would not certify the program.

A long silence fell. It lasted three full days.

Gonzales phoned Goldsmith at home before sunrise on Tuesday, March 9, with two days left before the program expired. Obviously there was bad chemistry with Addington. Why not come in and talk, he asked, just the two of us?

Goldsmith arrived at the White House in morning twilight. Alone in his office, Gonzales begged the OLC chief to reconsider. Gonzales tried to dispute Goldsmith's analysis, but he was in over his head. At least let us have more time, he said. Goldsmith said he couldn't do that.

The time had come for the vice president to step in. Proxies were not getting the job done. Cheney was going to have to take hold of this thing himself.

Even now, after months of debate, Cheney did not enlist the president. Bush was across the river in Arlington, commending the winners of the Malcolm Baldrige awards for quality improvement in private industry [18]. Campaign season had come already, and the president was doing a lot of that kind of thing. That week he had a fundraiser in Dallas, a "Bush-Cheney 2004 event" in Santa Clara, Calif., and a meet-and-greet at a rodeo in Houston.

Soon after hearing what had happened between Goldsmith and Gonzales, the vice president asked Andy Card to set up a meeting at noon with Mike Hayden, FBI Director Robert S. Mueller III, and John McLaughlin from the CIA (substituting for his boss, George J. Tenet). Cheney spoke to them in Card's office, the door closed.

Four hours later, at 4 p.m., the same cast reconvened. This time the Justice contingent was invited. 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 [19].

Comey held his ground. The program had to operate within the law. The Justice Department knew a lot more now than it had before, and Ashcroft and Comey had reached this decision together.

"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 [20].

In for a dime, in for a dollar.

Addington started disputing the particulars. Now he was on Jack Goldsmith's turf. From across the room the head of the Office of Legal Counsel jumped in. And right there in front of the big guys, the two of them bickered in the snarly tones of a couple who knew all of each other's lines.

* * *

As the sun went down on Tuesday, March 9, the president of the United States had yet to learn that his Justice Department was heading off the rails. A train wreck was coming, but Cheney wanted to handle it. Neither Card nor Gonzales was in the habit of telling him no.

"I don't think it would be appropriate for the president to be engaged in the to-and-fro until it is, you know, penultimate," Card said in a recent interview [21]. "I guess the definition of 'penultimate' could vary from four steps to three steps to two steps to one step. That's why you have White House counsel and people who do the legal work."

Participants in the afternoon meeting, including some of Cheney's recruits, left the room shaken. Mueller worked for the attorney general, and the FBI's central mission was to "uphold and enforce the criminal laws of the United States." Hayden's neck, and his agency, were on the line. The NSA director believed in the program, believed he was doing the right thing. But keep on going when the Justice Department said no?

Early the next morning -- Wednesday, March 10, with 24 hours to deadline -- Hayden was back in the White House. One colleague saw him conferring in worried whispers with Homeland Security adviser John A. Gordon, a mentor and fellow Air Force general, much the senior of the two. They huddled in the West Wing lobby, Hayden on a love seat and Gordon in a chair [22].

Jim Comey was in the White House that morning, too, arriving early for the president's regular 8:30 terrorism brief. He had heard nothing since the discouraging meeting the day before.

Comey found Frances Fragos Townsend, an old friend, waiting just outside the Oval Office, standing by the appointment secretary's desk. She was Bush's deputy national security adviser for combating terrorism. Comey had known her since their days as New York mob prosecutors in the 1980s. Since then, Townsend had run the Justice Department's intelligence office. She lived and breathed surveillance law.

Comey took a chance. He pulled her back out to the hallway between the Roosevelt Room and the Cabinet Room.

"If I say a word, would you tell me whether you recognize it?" he asked quietly.

He did. She didn't. The program's classified code name left her blank. Comey tried to talk around the subject.

"I think this is something I am not a part of," Townsend said [23]. "I can't have this conversation." Like John Gordon and deputy national security adviser Steven J. Hadley and Homeland Security Secretary Tom Ridge, she was out of the loop [24].

Oh, God, Comey remembers thinking. They've held this so tight. Even Fran Townsend. The president's counterterrorism adviser is not read in? Comey towered over his diminutive friend. He chose his words carefully.

"I need to know," he said, "whether your boss recognizes that word, and whether she's read in on a particular program. Because we had a meeting here yesterday on that topic that I would have expected her to be at."

He meant national security adviser Condoleezza Rice. Comey was hoping for an ally, or maybe rescue.

"I felt very alone, with some justification," Comey recalled. "The attorney general is in intensive care. There's a train coming down the tracks that's about to run me and my career and the Department of Justice over. I was exploring every way to get off the tracks I could."

Townsend had a pretty good guess about what was on Comey's mind. Cheney had kept her out of the loop, but it was hard to hide a warrantless domestic surveillance program completely from the president's chief terrorism adviser.

"I'm not the right person to talk to," she told her friend, her voice close to a whisper. Comey ought to go see Rice.

"I'm going to tell her you've got concerns," Townsend said.

Comey's concerns no longer interested Cheney. The vice president had tried to back him down. That didn't work.

Only one day remained before the surveillance program expired. Time for Cheney to take the fight somewhere else.

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].

Alerted by Ashcroft's chief of staff, Comey, Goldsmith and FBI Director Robert S. Mueller III raced toward the hospital, abandoning double-parked vehicles and running up a stairwell as fast as their legs could pump.

Comey reached Ashcroft's bedside first. Goldsmith and his colleague Patrick F. Philbin were close behind. Now came Card and Gonzales, holding an envelope. If Comey would not sign the papers, maybe Ashcroft would.

The showdown with the vice president the day before had been excruciating, the pressure "so great it could crush you like a grape," Comey said [6]. This was worse.

Was Comey going to sit there and watch a barely conscious man make his mark? On an order that he believed, and knew Ashcroft believed, to be unlawful?

Unexpectedly, Ashcroft roused himself. Previous accounts have said he backed his deputy. He did far more than that. Ashcroft told the president's men he never should have certified the program in the first place [7].

"You drew the circle so tight I couldn't get the advice that I needed," Ashcroft said, according to Comey. He knew things now, the attorney general said, that he should have been told before. Spent, he sank back in his bed.

Mueller arrived just after Card and Gonzales departed. He shared a private moment with Ashcroft, bending over to hear the man's voice.

"Bob, I'm struggling," Ashcroft said.

"In every man's life there comes a time when the good Lord tests him," Mueller replied. "You have passed your test tonight."

* * *

Goldsmith was out the door. He telephoned Ed Whelan, his deputy, who was at home bathing his children.

"You've got to get into the office now," Goldsmith said. "Please draft a resignation letter for me. I can't tell you why."

All hell was breaking loose at Justice. Lawyers streamed back from the suburbs, converging on the fourth-floor conference room. Most of them were not cleared to hear the details, but a decision began to coalesce: If Comey quit, none of them were staying.

At the FBI, they called Mueller "Bobby Three Sticks," playfully tweaking the Roman numerals in his fancy Philadelphia name. Late that evening, word began to spread. It wasn't only Comey. Bobby Three Sticks was getting ready to turn in his badge.

Justice had filled its top ranks with political loyalists. They hoped to see Bush reelected. Had anyone explained to the president what was at stake?

Whelan pulled out his BlackBerry. He fired off a message to White House staff secretary Brett Kavanaugh, a friend whose position gave him direct access to Bush.

"I knew zilch about what the matter was, but I did know that lots of senior DOJ folks were on the verge of resigning," Whelan said in an e-mail [8], declining to discuss the subject further. "I thought it important to make sure that the president was aware of that situation so that he could factor it in as he saw fit."

Kavanaugh had no more idea than Whelan, but he passed word to Card.

The timing was opportune. Just about then, around 11 p.m., Comey responded to an angry summons from the president's chief of staff. Whatever Card was planning to say, he had calmed down suddenly.

What was all this he heard, Card asked, about quitting?

"I don't think people should try to get their way by threatening resignations," Comey replied [9]. "If they find themselves in a position where they're not comfortable continuing, then they should resign."

"He obviously got the gist of what I was saying," Comey recalled.

It was close to midnight when Comey got home, long past the president's bedtime. Bush had yet to learn that his government was coming apart.

Trouble was spreading. The FBI's general counsel, Valerie E. Caproni, and her CIA counterpart, Scott W. Mueller, told colleagues they would leave if the president reauthorized the program over Justice Department objections [10].

Assistant Attorney General Christopher A. Wray, who ran Justice's criminal division, stopped Comey in a hallway.

"Look, I don't know what's going on, but before you guys all pull the rip cords, please give me a heads-up so I can jump with you," he said.

James A. Baker, the counselor for intelligence, thought hard about jumping, too [11]. Early on, he got wind of the warrantless eavesdropping and forced the White House to disclose it to Lamberth. Later, Baker told Lamberth's successor that he could not vouch that the Bush administration was honoring its promise to keep the chief surveillance judge fully informed.

"I was determined to stay there and fight for what I thought was right," Baker said in an interview [12], declining to say what the fight was about, on or off the record. He had obligations, he said, to the lawyers who worked for him in the Office of Intelligence Policy and Review. "If it had come to this, if people were willing to go to the mat and tolerate the attorney general and deputy attorney general resigning, that's pretty serious. God knows what else they would have come up with."

* * *

At the White House on Thursday morning, the president moved in a bubble so tight that hardly any air was getting in. It was March 11, decision day. If Bush reauthorized the program, he would have no signature from the attorney general. By now that was nowhere near the president's biggest problem.

Many of the people Bush trusted most were out of the picture. Karl Rove was not cleared for the program. Neither was Dan Bartlett or Karen Hughes.

National security adviser Condoleezza Rice had the clearance, but Cheney did not invite her to the meetings that mattered.

Bush gave a speech to evangelicals that morning and left the White House for an after-lunch fundraiser in New York [13]. In whatever time he took to weigh his options, the president had only Cheney, Card and Gonzales to advise him.

The vice president knew exactly where he stood, unswerving in his commitment to keep the program just as it was. Gonzales later told two confidants that he had broken with David S. Addington, Cheney's lawyer, urging Bush to find common ground with Justice. Card, too, told colleagues that he had urged restraint.

"My job was to communicate with the president about the peripheral vision, not just the tunnel vision of the moment," he said, deflecting questions about the details [14].

Did peripheral vision mean a broader view of the consequences?

"Yes," Card replied. "It was like -- I don't want to limit it to this particular matter, but that's part of a chief of staff's job. A lot of people who work in the White House have tunnel vision, and not an awful lot of people have peripheral vision. And I think the chief of staff is one of the people who should have peripheral vision."

Card didn't really need the corner of his eye to see a disaster at hand. Even so, Bush didn't know what his subordinates knew that Thursday morning.

Cheney, Addington, Card and Gonzales had plenty of data. Card had heard the news directly from Comey the night before. On Thursday, the FBI director delivered much the same warning.

For Cheney, it didn't matter much whether one official or 10 or 20 took a walk. Maybe they were bluffing, maybe not. The principle was the same: Do what has to be done.

"The president of the United States is the chief law enforcement officer -- that was the Cheney view," said Bartlett, Bush's counselor, who was later briefed into the program and the events of the day. "You can't let resignations deter you if you're doing what's right."

Cheney and Addington "were ready to go to the mat," he said, and the vice president's position boiled down to this: " 'That's why we're leaders, that's why we're here. Take the political hit. You've got to do it.' "

* * *
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Addington opened the code-word-classified file on his computer. He had a presidential directive to rewrite.

It has been widely reported that Bush executed the March 11 order with a blank space over the attorney general's signature line. That is not correct [15]. For reasons both symbolic and practical, the vice president's lawyer could not tolerate an empty spot where a mutinous subordinate should have signed. Addington typed a substitute signature line: "Alberto R. Gonzales."

What Addington wrote for Bush that day was more transcendent than that. He drew up new language in which the president relied on his own authority to certify the program as lawful. Bush expressly overrode the Justice Department and any act of Congress or judicial decision that purported to constrain his power as commander in chief. Only Richard M. Nixon, in an interview after leaving the White House in disgrace, claimed authority so nearly unlimited [16].

The specter of future prosecutions hung over the program, now that Justice had ruled it illegal.

"Pardon was in the air," said one of the lawyers involved.

It was possible to construct a case, he said, in which those who planned and carried out the program were engaged in a criminal conspiracy. That would be tendentious, this lawyer believed, but with a change of government it could not be ruled out.

"I'm sure when we leave office we're all going to be hauled up before congressional committees and grand juries," Addington told one colleague in disgust.

* * *

Bush signed the directive before leaving for New York around lunchtime on Thursday, March 11, 2004.

Comey got word a couple of hours later. He sat down and typed a letter.

"Over the last two weeks . . . I and the Department of Justice have been asked to be part of something that is fundamentally wrong," he wrote [17]. "As we have struggled over these last days to do the right thing, I have never been prouder of the Department of Justice or of the Attorney General. Sadly, although I believe this has been one of the institution's finest hours, we have been unable to right that wrong. . . . Therefore, with a heavy heart and undiminished love of my country and my Department, I resign as Deputy Attorney General of the United States, effective immediately."

David Ayres, Ashcroft's chief of staff, pleaded with Comey to wait a few days [18]. He was certain that Ashcroft would want to quit alongside him. Comey agreed to hold his letter through the weekend.

Bush was not a man to second-guess himself. By Friday morning, he would need new facts to save him. Somebody, finally, would have to tell him something.

It was Rice, largely in the dark herself, who threw the president a lifeline. She had a few minutes alone with him, shortly before 7:30 a.m., on the day after he renewed the surveillance order. She told Bush about Comey's agitated approach, the day before, to Frances Fragos Townsend, the deputy national security adviser for combating terrorism. This was no way to keep a secret.

"It was a compartmented issue," Rice recalled in an interview [19]. "Obviously, there was a security issue here and not just a legal one, because you didn't want this sort of bumping around."

Rice made a suggestion.

Comey is "a reasonable guy," she told the president. "You really need to make sure that you are hearing these folks out."

An hour later, Comey and Robert Mueller arrived at the White House for the regular 8:30 terrorism briefing. They had a lot to cover: Bombs aboard commuter trains in Madrid had killed 191 people.

Both men told aides that this would be their last day in government. There would be no door-slamming, but the president had made his choice and they had made theirs.

Bush stood as the meeting ended, crossing behind Cheney's chair. Comey moved in the opposite direction, on his way out. He had nearly reached the grandfather clock at the door, two witnesses said, when the president said, "Jim, can I talk to you for a minute? [20]"

Bush nodded toward the private dining room a few steps from his desk, the one he shared with Cheney once a week. This time the vice president was not invited.

"I'll wait for you downstairs," Mueller told Comey.

* * *

By now, around 9:15 Friday morning, Bush knew enough to be nervous about what the acting attorney general might do. That did not mean he planned to reverse himself. One high-ranking adviser said there was still an "optimism that maybe you can finesse your way through this."

Afterward, in conversations with aides, the two men described the meeting in similar terms.

"You don't look well," Bush began.

Oldest trick in the book. Establish dominance, put the other guy off his game [21].

"Well, I feel okay."

"I'm worried about you. You look burdened."

"I am, Mr. President. I feel like there's a tremendous burden on me."

"Let me lift that burden from your shoulders," Bush said. "Let me be the one who makes the decision here."

"Mr. President, I would love to be able to do that."

Bush's tone grew crisp.

"I decide what the law is for the executive branch," he said.

"That's absolutely true, sir, you do. But I decide what the Department of Justice can certify to and can't certify to, and despite my absolute best efforts, I simply cannot in the circumstances."

Comey had majored in religion, William and Mary Class of 1982. He might have made a connection with Bush if he had quoted a verse from Scripture. The line that came to him belonged to a 16th-century theologian who defied an emperor.

"As Martin Luther said, 'Here I stand; I can do no other,' " Comey said. "I've got to tell you, Mr. President, that's where I am."

Now Bush said something that floored Comey.

"I just wish that you weren't raising this at the last minute."

The last minute! He didn't know.

The president kept talking. Not the way it's supposed to work, popping up with news like this. The day before a deadline?

Wednesday. He didn't know until Wednesday. No wonder he sent Card and Gonzales to the hospital.

"Oh, Mr. President, if you've been told that, you have been very poorly served by your advisers," Comey said. "We have been telling them for months we have a huge problem here."

"Give me six weeks," Bush asked. One more renewal.

"I can't do that," Comey said. "You do say what the law is in the executive branch, I believe that. And people's job, if they're going to stay in the executive branch, is to follow that. But I can't agree, and I'm just sorry."

If they're going to stay.

Comey was edging toward a breach of his rule against resignation threats.

This man just needs to know what's about to happen.

"I think you should know that Director Mueller is going to resign today," Comey said.

Bush raised his eyebrows. He shifted in his chair. He could not hide it, or did not try. He was gobsmacked.

"Thank you very much for telling me that," he said.

Comey hurried down to Mueller, who sat in the foyer outside the Situation Room. A Secret Service agent followed close behind. The president would like to see you, the agent told Mueller.

Comey pulled out his BlackBerry and sent a note to six colleagues at 9:27 a.m.

"The president just took me into his private office for a 15 minute one on one talk," he wrote [22]. "Told him he was being misled and poorly served. We had a very full and frank exchange. Don't know that either of us can see a way out. . . . Told him Mueller was about to resign. He just pulled Bob into his office."

The FBI director was no more tractable than Comey. This was a rule-of-law question, he told the president, and the answer was in the Justice Department [23]. The FBI could not participate in operations that Justice held to be in breach of criminal law. If those were his orders, he would respectfully take his leave.

And there it was, unfinessable. Bush was out of running room, all the way out. He had only just figured out that the brink was near, and now he stood upon it.

Not 24 hours earlier, the president had signed his name to an in-your-face rejection of the attorney general's ruling on the law. Now he had two bad choices. March on, with all the consequences. Or retreat.

The president stepped back from the precipice. He gave Mueller a message for Comey.

"Tell Jim to do what Justice thinks needs to be done," he said.

Seven days later, Bush amended his March 11 directive. The legal certification belonged again to the attorney general. The surveillance program stopped doing some things, and it did other things differently. Much of the operation remained in place. Not all of it.

* * *

Because Bush did not walk off the cliff, and because so much of the story was suppressed, an extraordinary moment in presidential history passed unrecognized.

"I mean, it would be damn near unprecedented for the top echelon of your Justice Department to resign over a position you've taken," Bartlett said.

There might be one precedent, he allowed. He did not want to spell it out.

"Not a good one," he said.

During the Watergate scandal, the attorney general and deputy attorney general resigned, refusing to carry out Richard Nixon's order to fire the special prosecutor. Nixon lost his top two Justice officials, and that was called the Saturday Night Massacre.

Bush had come within minutes of losing his FBI director and at least the top five layers at Justice. What would they call that? Suicide, maybe?

"You don't have to be the smartest guy to figure out that [mass resignations] would be pretty much the most devastating thing that could happen to your administration," said Mark Corallo, Ashcroft's communications director and, during Bush's first race for the White House, chief spokesman for the Republican National Committee. "The rush to hearings on the Hill, both in the House and Senate, would be unbelievable. The media frenzy that would have ensued would have been unlike anything we've ever seen. That's when you're getting into Watergate territory."

Long after departing as chief of staff, Card held fast to the proposition that whatever happened was nobody's business, and no big deal anyway [24].

"I think you're writing about something that's irrelevant," Card said. "Voyeurism."

Because?

"Nobody resigned over this," he said. It all boiled down to trash talk: " 'Oh, I was gonna swing at the pitch but it was too high.' "

That seems unlikely to stand as history's verdict. In the fourth year of his presidency, a man who claimed the final word was forced by subordinates to comply with their ruling on the law. Ashcroft, Comey, Goldsmith, Philbin -- believers, one and all, in the "unitary executive branch" -- obliged the commander in chief to stand down. For the first time, a president claimed in writing that he alone could say what the law was. A rebellion, in direct response, became so potent a threat that Bush reversed himself in a day.

"This is the first time when the president of the United States really wanted something in wartime, and tried to overrule the Department of Justice, and the law held," said Goldsmith, after studying similar conflicts under Abraham Lincoln and Franklin D. Roosevelt.

In the aftermath, the White House senior staff asked questions. Was the president getting timely information and advice? Had he relinquished too much control to Cheney?

Bush, aides said, learned something he would not forget. Cheney was the nearest thing to an anti-politician in elected office. Bush could not afford to be like that. In his second term, his second chance, the president would take greater care to consult his own instincts.

"Cheney was not afraid of giving pure, kind of principled advice," Bartlett said. "He thinks from a policy standpoint, and I think he does this out of pure intentions. He thinks of the national security interest or the prerogatives of the executive. The president has other considerations he has to take into account. The political fallout of certain reactions -- he's just going to calculate different than Cheney does."

"He grew accustomed to that," Bartlett said. 

The Washington Post
Saturday, September 13, 2008; 10:37 PM

The following are key documents related to the Bush administration's implementation and defense of the National Security Agency's warrantless domestic surveillance program.

• Conflict Over Spying Led White House to Brink
• A Near-Meltdown
• Key Documents
• About the Series
• Wednesday, Sept. 17 at noon ET: Books: "Angler: The Cheney Vice Presidency"

[Ed. Note: Marielaem hipped me to this story, and I am grateful.]

A group of south London graffiti artists were jailed last week for up to two years for defacing public property. Yet as they begin their sentences, their work is to be championed by a New York gallery.

By Arifa Akbar and Paul Vallely
Wednesday, 16 July 2008

On the face of it, as a society, we seem to be a little mixed-up when it comes to "graffiti", as you call it if you work in the local council's cleansing department, or "street art" as you say if you're the chap – and they do mainly seem to be blokes – wielding the spray can.

But the confusion now runs deeper than those who spray and those who remove the paint. Great British institutions have been polarised. Last week the might of English law delivered its verdict at Southwark Crown Court where five members of the DPM graffiti crew were jailed – one, Andrew Gillman, for two years – after admitting conspiracy to cause criminal damage costing the taxpayer at least £1m.

By contrast, just down the road, the riverside facade of Tate Modern had been covered in giant murals by six urban artists with international reputations, including Blu from Bologna, Faile from New York, and Sixeart from Barcelona, in the first display of street art at a major museum.

The courtroom and the museum were so close that supporters of the men on trial popped down to the Tate to do a bit of retouching during one lunchtime adjournment. "There is a huge irony in the juxtaposition of the two events," said one of the artists.

The man to credit for bringing street art into established gallery spaces is Banksy. A few years ago he was sneaking his work into galleries such as the Louvre and Tate Britain. Now Tate Modern is selling his book in its gift shop. His works go for hundreds of thousands of pounds and he was recently featured in a retrospective exhibition alongside Andy Warhol. He, more than anyone else, has legitimised the genre and spawned a new generation of young imitators – much to the chagrin of those who want to clean up behind them.

Bob has been involved in graffiti since 1982 when he was a punk. He now works, by day, for a London art gallery and describes himself as an upstanding taxpayer. "London is to street art, at the start of the 21st century, what Paris was for Impressionism at the start of the 20th," he says with unfeigned immodesty. "And yet we hate graffiti more than anywhere else in the world. England is by far and away the most draconian for punishments for what are only economic crimes."

A gallery in New York launches an exhibition next week based on the work of those convicted at Southwark. "DPM – Exhibit A", at the Anonymous Gallery Project in SoHo, will display large photographs of the convicts' work alongside copies of their charge sheets to ask whether the men are criminals or artists.

It is a question which prompts different answers in different parts of the world, says Cedar Lewinsohn, the curator of the exhibition at Tate Modern. "Brazil for instance is more relaxed about it," he says. "In parts of Australia, they are like the UK and people really hate graffiti and tags on vans and trains, but in Melbourne van drivers compete with each other as to whose is more decorated."

They have similarly schizophrenic responses in other nations too. In Toronto, police have just hired a street artist to paint walls to help find the man who murdered her brother. Elsewhere in Canada, a court has ruled that, after a police crackdown on graffiti artists, a 28-year-old man is only allowed to venture into town if he is accompanied by his mother. One internet blogger wrote: "In their twenties and still vandalising other people's property – shouldn't they have moved on to drug dealing, or perhaps become real estate agents by that age?"

Street art, you see, is a highly polarising phenomenon. On the one hand there are those like the American artist Elura Emerald, who is also involved in next week's New York exhibition, who insist that "artists who paint on the street are merely expressing themselves, not hurting anyone" and should not be punished "but appreciated and celebrated". Then there are those like Judge Christopher Hardy who, in court in Southwark, described the activities of the DPM Crew as "a wholesale self-indulgent campaign to damage property on an industrial scale".

How is such a dichotomy to be resolved? How, The Independent asked the street artist Bob, can artistic expression be reconciled with the fear and loathing that graffiti inspires in many citizens who see it as a symbol of lawlessness and the deterioration of their neighbourhood? "Well, not by sending them to jail," he says.

Gedis Grudzinskas, whose son Ziggy, 25, was one of those jailed last week agrees. "Ziggy has been sent to prison for 18 months having pleaded guilty to a crime not involving violence, terrorism, knives or drugs but vandalising public property," he says.

Having said that, Bob concedes, "you can't let people run wild". "If there's a clash of rights obviously those of the owner of the wall take precedence over those of the person painting on it," he adds. "There's room for debate but jail sentences shouldn't be part of that. They should just have to do youth work, or clean up ugly tags."

Greenwich and Tower Hamlets councils agree. They commissioned Ziggy and another DPM member to lead summer workshops as street art tutors for young and vulnerable people. The two councils sent references to court vouching that the DPM men were "positive" and "inspirational" in working with "young people who aren't able to do reading or writing". But it was not enough to save them from prison.

Is artistic merit enough of an excuse? A hoary old "is it art?" debate is taking place on street art next month at Tate Modern. Under the title "Graffiti – Utopia or a bit boring?", two art critics will consider whether graffiti is "glorified vandalism or a legitimate cultural movement". Bob does not think it will help much.

"Street art starts with kids doing ugly tags," he says. "When a kid starts to play music only the next-door neighbours hear but with street art the whole neighbourhood sees him not being very good when he starts out." The trouble is there is a whole lot of learning going on.

Some 85 per cent of graffiti is just tags, and another 10 per cent is gang communication, according to US sociologists who survey this kind of thing. And who, anyway, says Bob, is going to police "what is art and what is ugly"?

The money men will not help much, for all their attempts to cash in on street art. Red Bull, Adidas, Puma, 55DSL and Lee Jeans have all incorporated graffiti into their marketing campaigns. The BBC hired the DPM Crew's ringleader Andrew Gillman to deface the set of EastEnders to add a sense of authenticity to Albert Square. And the German paint firm Belton has even developed a new line of spray paint called Molotov aimed at street stencillers, with colours named after well-known graffiti artists.

So if artistic merit and commercial value aren't yardsticks for resolving our national confusion what is?

"I suppose the greater the cost of removing the graffiti, the greater the punishment should be, though not prison," says Bob, somewhat unexpectedly. This is not a million miles from Judge Hardy's verdict on the two-year spree in which the DPM Crew staged 120 night-time attacks on stations, trains and railway rolling stock in London, Somerset, Liverpool, Manchester, Sunderland, Paris, Amsterdam and the Czech Republic.

The judge had little patience with Gillman's notion that "trains were like a moving canvas" on which to create something artistic and thought-provoking that made "commuters look up from their paper".

Judge Hardy admitted that "it would be wrong of me not to acknowledge that some examples of your handiwork show considerable artistic talent", but he concluded, "the trouble is that it is has been sprayed all over other people's property without their consent and that is simply vandalism." Over the two years the bill must have run into millions of pounds.

If art is defined by the artist's intent then vandalism must be determined by the response of the owner of the thing vandalised. Peterborough City Council recently tried to find a compromise. It erected two 8ft by 4ft boards to allow artists there to express themselves freely. The trouble was that they were pulled down by vandals.

Additional reporting by Kate Mead

Six of the best street artists (apart from Banksy)

Paul Insect

Insect's Pop-art inspired street art has rapidly risen in profile. Last year, Damien Hirst snapped up his entire collection before it reached exhibition for a reported £50,000, while the actor Kevin Spacey has also acquired some pieces. Insect is best known for his anti-establishment messages.

Rough

One of the most respected and sought-after artists in Britain, Rough uses letterforms for his graffiti artwork. With a career spanning nearly two decades, Rough's work has been exhibited to critical acclaim in Australia and across Europe. A graphic designer, Rough has published a book, runs a T-shirt label and releases records as a rapper in a hip-hop band.

Blek Le Rat

The grand old man of street art is said to have paved the way for Banksy. After years of dodging the French authorities, he ended up being embraced by them. The Parisian has been spraying stencil-art graffiti since the early 1980s, the style favoured by Banksy.

Eine

Best known for the letters he paints on shop fronts around London. He spray-painted the word "nightmare" along a 110ft wall in an exhibition of street art in east London last year showing an alternative vision of Christmas.

Nick Walker

Emerged from the 1980s Bristol graffiti scene alongside Banksy. His work Moona Lisa – a bottom-baring version of La Joconde – went for £54,000 at Bonhams.

Robert Del Naja

Also known as 3D, the street artist and musician was part of the Bristol collective known as The Wild Bunch and went on to become a founding member of Massive Attack. His first live gig was as a DJ accompanying artwork he had produced in a Bristol gallery.

Jail/gaol is a place for murderers, rapists, corrupt politicians/bankers/wall street bastards, people who beat people up for money who don't have promoters and do it on streets instead of in a ring with a fellow fighter, hardcore b&e folks and thieves, pa/edophiles, folks who sell nasty drugs to kids, and their ilk.
It is not a place for women forced into prostitution, artists, people who smoke pot/use hallucinogens, folks who think in a way that's different from their ruler's way of "thinking," etc.

Op-Ed Columnist
The New York Times
By FRANK RICH
Published: July 13, 2008

WE know what a criminal White House looks like from “The Final Days,” Bob Woodward and Carl Bernstein’s classic account of Richard Nixon’s unraveling. The cauldron of lies, paranoia and illegal surveillance boiled over, until it was finally every man for himself as desperate courtiers scrambled to save their reputations and, in a few patriotic instances, their country.

“The Final Days” was published in 1976, two years after Nixon abdicated in disgrace. With the Bush presidency, no journalist (or turncoat White House memoirist) is waiting for the corpse to be carted away. The latest and perhaps most chilling example arrives this week from Jane Mayer of The New Yorker, long a relentless journalist on the war-on-terror torture beat. Her book “The Dark Side” connects the dots of her own past reporting and that of her top-tier colleagues (including James Risen and Scott Shane of The New York Times) to portray a White House that, like its prototype, savaged its enemies within almost as ferociously as it did the Constitution.

Some of “The Dark Side” seems right out of “The Final Days,” minus Nixon’s operatic boozing and weeping. We learn, for instance, that in 2004 two conservative Republican Justice Department officials had become “so paranoid” that “they actually thought they might be in physical danger.” The fear of being wiretapped by their own peers drove them to speak in code.

The men were John Ashcroft’s deputy attorney general, James Comey, and an assistant attorney general, Jack Goldsmith. Their sin was to challenge the White House’s don, Dick Cheney, and his consigliere, his chief of staff David Addington, when they circumvented the Geneva Conventions to make torture the covert law of the land. Mr. Comey and Mr. Goldsmith failed to stop the “torture memos” and are long gone from the White House. But Vice President Cheney and Mr. Addington remain enabled by a president, attorney general (Michael Mukasey) and C.I.A. director (Michael Hayden) who won’t shut the door firmly on torture even now.

Nixon parallels take us only so far, however. “The Dark Side” is scarier than “The Final Days” because these final days aren’t over yet and because the stakes are much higher. Watergate was all about a paranoid president’s narcissistic determination to cling to power at any cost. In Ms. Mayer’s portrayal of the Bush White House, the president is a secondary, even passive, figure, and the motives invoked by Mr. Cheney to restore Nixon-style executive powers are theoretically selfless. Possessed by the ticking-bomb scenarios of television’s “24,” all they want to do is protect America from further terrorist strikes.

So what if they cut corners, the administration’s last defenders argue. While prissy lawyers insist on habeas corpus and court-issued wiretap warrants, the rest of us are being kept safe by the Cheney posse.

But are we safe? As Al Qaeda and the Taliban surge this summer, that single question is even more urgent than the moral and legal issues attending torture.

On those larger issues, the evidence is in, merely awaiting adjudication. Mr. Bush’s 2005 proclamation that “we do not torture” was long ago revealed as a lie. Antonio Taguba, the retired major general who investigated detainee abuse for the Army, concluded that “there is no longer any doubt” that “war crimes were committed.” Ms. Mayer uncovered another damning verdict: Red Cross investigators flatly told the C.I.A. last year that America was practicing torture and vulnerable to war-crimes charges.

Top Bush hands are starting to get sweaty about where they left their fingerprints. Scapegoating the rotten apples at the bottom of the military’s barrel may not be a slam-dunk escape route from accountability anymore.

No wonder the former Rumsfeld capo, Douglas Feith, is trying to discredit a damaging interview he gave to the British lawyer Philippe Sands for another recent and essential book on what happened, “Torture Team.” After Mr. Sands previewed his findings in the May issue of Vanity Fair, Mr. Feith protested he had been misquoted — apparently forgetting that Mr. Sands had taped the interview. Mr. Feith and Mr. Sands are scheduled to square off in a House hearing this Tuesday.

So hot is the speculation that war-crimes trials will eventually follow in foreign or international courts that Lawrence Wilkerson, Colin Powell’s former chief of staff, has publicly advised Mr. Feith, Mr. Addington and Alberto Gonzales, among others, to “never travel outside the U.S., except perhaps to Saudi Arabia and Israel.” But while we wait for the wheels of justice to grind slowly, there are immediate fears to tend. Ms. Mayer’s book helps cement the case that America’s use of torture has betrayed not just American values but our national security, right to the present day.

In her telling, a major incentive for Mr. Cheney’s descent into the dark side was to cover up for the Bush White House’s failure to heed the Qaeda threat in 2001. Jack Cloonan, a special agent for the F.B.I.’s Osama bin Laden unit until 2002, told Ms. Mayer that Sept. 11 was “all preventable.” By March 2000, according to the C.I.A.’s inspector general, “50 or 60 individuals” in the agency knew that two Al Qaeda suspects — soon to be hijackers — were in America. But there was no urgency at the top. Thomas Pickard, the acting F.B.I. director that summer, told Ms. Mayer that when he expressed his fears about the Qaeda threat to Mr. Ashcroft, the attorney general snapped, “I don’t want to hear about that anymore!”

After 9/11, our government emphasized “interrogation over due process,” Ms. Mayer writes, “to pre-empt future attacks before they materialized.” But in reality torture may well be enabling future attacks. This is not just because Abu Ghraib snapshots have been used as recruitment tools by jihadists. No less destructive are the false confessions inevitably elicited from tortured detainees. The avalanche of misinformation since 9/11 has compromised prosecutions, allowed other culprits to escape and sent the American military on wild-goose chases. The coerced “confession” to the murder of the Wall Street Journal reporter Daniel Pearl by Khalid Sheikh Mohammed, to take one horrific example, may have been invented to protect the real murderer.

The biggest torture-fueled wild-goose chase, of course, is the war in Iraq. Exhibit A, revisited in “The Dark Side,” is Ibn al-Shaykh al-Libi, an accused Qaeda commander whose torture was outsourced by the C.I.A. to Egypt. His fabricated tales of Saddam’s biological and chemical W.M.D. — and of nonexistent links between Iraq and Al Qaeda — were cited by President Bush in his fateful Oct. 7, 2002, Cincinnati speech ginning up the war and by Mr. Powell in his subsequent United Nations presentation on Iraqi weaponry. Two F.B.I. officials told Ms. Mayer that Mr. al-Libi later explained his lies by saying: “They were killing me. I had to tell them something.”

That “something” was crucial in sending us into the quagmire that, five years later, has empowered Iran and compromised our ability to counter the very terrorists that torture was supposed to thwart. As The Times reported two weeks ago, Iraq has monopolized our military and intelligence resources to the point where we don’t have enough predator drones or expert C.I.A. field agents to survey the tribal areas where terrorists are amassing in Pakistan. Meanwhile, the threat to America from Al Qaeda is “comparable to what it faced on Sept. 11, 2001,” said Seth Jones, a RAND Corporation terrorism expert and Pentagon consultant. The difference between now and then is simply that the base of operations has moved, “roughly the difference from New York to Philadelphia.”

Yet once again terrorism has fallen off America’s map, landing at or near the bottom of voters’ concerns in recent polls. There were major attacks in rapid succession last week in Pakistan, Afghanistan (the deadliest in Kabul since we “defeated” the Taliban in 2001) and at the American consulate in Turkey. Who listened to this ticking time bomb? It’s reminiscent of July 2001, when few noticed that the Algerian convicted of trying to bomb Los Angeles International Airport on the eve of the millennium testified that he had been trained in bin Laden’s Afghanistan camps as part of a larger plot against America.

In last Sunday’s Washington Post, the national security expert Daniel Benjamin sounded an alarm about the “chronic” indecisiveness and poor execution of Bush national security policy as well as the continuing inadequacies of the Department of Homeland Security. Mr. Benjamin must feel a sinking sense of déjà vu. Exactly seven years ago in the same newspaper, just two months before 9/11, he co-wrote an article headlined “Defusing a Time Bomb” imploring the Bush administration in vain to pay attention to Afghanistan because that country’s terrorists “continue to pose the most dangerous threat to American lives.”

And so we’re back where we started in the summer of 2001, with even shark attacks and Chandra Levy’s murder (courtesy of a new Washington Post investigation) returning to the news. We are once again distracted and unprepared while the Taliban and bin Laden’s minions multiply in Afghanistan and Pakistan. This, no less than the defiling of the Constitution, is the legacy of an administration that not merely rationalized the immorality of torture but shackled our national security to the absurdity that torture could easily fix the terrorist threat.

That’s why the Bush White House’s corruption in the end surpasses Nixon’s. We can no longer take cold comfort in the Watergate maxim that the cover-up was worse than the crime. This time the crime is worse than the cover-up, and the punishment could rain down on us all.

Editorial
The New York Times

After watching wholesale lots of the Bush administration’s most important e-mails go mysteriously missing, Congress is trying to legislate against any further damage to history. The secrecy-obsessed White House is, of course, threatening a veto — one more effort to deny Americans their rightful access to the truth about how their leaders govern or misgovern.

The House approved a measure last week that would require the National Archives to issue stronger standards for preserving e-mails and to aggressively inspect whether an administration is in compliance. The Archives needs spine stiffening. Congressional investigators found that its staff backed off from inspections of e-mail storage after the Bush administration took office.

We fear we may never find out all that has gone missing in this administration, although we urge Congressional investigators to keep trying. What we do know is that the Bush gaps of missing e-mails run into hundreds of thousands during some of the most sensitive political moments. Key gaps coincide with the lead-up to the Iraq war — and the White House’s manipulation of intelligence — as well as the destruction of videotapes of C.I.A. interrogations and the outing of the C.I.A. operative Valerie Plame Wilson.

Missing e-mails include entire blank days at the offices of President Bush and Vice President Cheney. Also mysteriously wiped from the record are e-mails from Karl Rove, the president’s political guru, and dozens of other White House workers who improperly conducted government business on Republican Party e-mail accounts. The White House now claims that nothing has been lost, though officials previously acknowledged large-scale purging, claiming they were accidental.

An administration with nothing to fear from the truth would be in the forefront of protecting the historical record. The Senate must stand with the House and ensure that at least future administrations are stopped from doing wholesale damage to history.

They want all the privacy in the world while they tap our phones, and read our mail, credit card bills and email.  Screw you, washington dc.

Editorial
The New York Times

Anyone who has doubts that this country is abusing and terrorizing undocumented immigrant workers should read an essay by Erik Camayd-Freixas, a professor and Spanish-language court interpreter who witnessed the aftermath of a huge immigration workplace raid at a meatpacking plant in Iowa.

The essay chillingly describes what Dr. Camayd-Freixas saw and heard as he translated for some of the nearly 400 undocumented workers who were seized by federal agents at the Agriprocessors kosher plant in Postville in May.

Under the old way of doing things, the workers, nearly all Guatemalans, would have been simply and swiftly deported. But in a twist of Dickensian cruelty, more than 260 were charged as serious criminals for using false Social Security numbers or residency papers, and most were sentenced to five months in prison.

What is worse, Dr. Camayd-Freixas wrote, is that the system was clearly rigged for the wholesale imposition of mass guilt. He said the court-appointed lawyers had little time in the raids’ hectic aftermath to meet with the workers, many of whom ended up waiving their rights and seemed not to understand the complicated charges against them.

Dr. Camayd-Freixas’s essay describes “the saddest procession I have ever witnessed, which the public would never see” — because cameras were forbidden.

“Driven single-file in groups of 10, shackled at the wrists, waist and ankles, chains dragging as they shuffled through, the slaughterhouse workers were brought in for arraignment, sat and listened through headsets to the interpreted initial appearance, before marching out again to be bused to different county jails, only to make room for the next row of 10.”

He wrote that they had waived their rights in hopes of being quickly deported, “since they had families to support back home.” He said that they did not understand the charges they faced, adding, “and, frankly, neither could I.”

No one is denying that the workers were on the wrong side of the law. But there is a profound difference between stealing people’s identities to rob them of money and property, and using false papers to merely get a job. It is a distinction that the Bush administration, goaded by immigration extremists, has willfully ignored. Deporting unauthorized workers is one thing; sending desperate breadwinners to prison, and their families deeper into poverty, is another.

Court interpreters are normally impartial participants and keep their opinions to themselves. But Dr. Camayd-Freixas, a professor of Spanish at Florida International University, said he was so offended by the cruelty of the prosecutions that he felt compelled to break his silence. “A line was crossed at Postville,” he wrote.

By SAUL HANSELL
The New York Times
Published: July 12, 2008

Federal regulators are prepared to take action against sellers of Internet access that want to restrict what their customers can do online.

Kevin J. Martin, chairman of the Federal Communications Commission, said Friday that Comcast, the nation’s largest cable company, should be sanctioned because it had interfered with the Internet connections of users who were exchanging files with other people.

Mr. Martin’s recommendation is a strong push for network neutrality, the idea that Internet access providers like Comcast should not be allowed to favor some uses of their networks over others. Internet companies like Google and free speech advocates have backed this approach.

The cable and phone companies that provide most of the nation’s Internet service have argued that such rules were not needed. They have said that they should be free to run their networks as they see fit, and that there had been no cases of problems with such discrimination.

Comcast’s practice of slowing the use of BitTorrent, a method of trading video, music and software files, provides such a case. The practice was intended to prevent frequent file-swappers from clogging up the company’s network.

Under Mr. Martin’s recommendation, which would need to be approved by the full commission, Comcast would not be fined. But it would be forced to change its practices and give the commission more details on what it did in the past.

Mr. Martin wants to set a standard that will make it difficult for an Internet provider to discriminate against users based on what they want to do online.

“The Internet is based upon the idea that consumers can go anywhere they want and access any content they want,” Mr. Martin said in an interview. “When they show they are blocking access to some sort of content, they have the burden to show that what they are doing is reasonable.”

Mr. Martin also said Comcast did not explain to its customers what it was doing. “If they are going to put limits on individual customers if you use a certain amount of bandwidth per month or per hour, they have to be willing to tell their customers more about how it works,” he said.

But Mr. Martin said the issue went beyond simple disclosure because Comcast’s approach was not tightly related to the problem it said it was trying to solve. For example, BitTorrent users who were not exchanging large files were also blocked.

Mr. Martin said that the commission wanted to protect legal activities, and that the rules would not apply to an Internet service that tried to block the unauthorized transmission of copyrighted material or child pornography.

Comcast argues that its approach is legitimate, and that the commission does not have the authority to impose any sanctions.

“We believe that the network management technique we chose at the time was reasonable,” said Sena Fitzmaurice, a Comcast spokeswoman. She added that Comcast had already said it planned to change its approach to dealing with heavy use. It is developing a system that will slow the Internet connections of people who are moving large amounts of data at busy times.

Ms. Fitzmaurice was nonetheless concerned about Mr. Martin’s approach. She asked: “Does this create some broader precedent or authority for the F.C.C. that would be asserted in other cases?”

She said that if the action was approved by the commission, the company would have to examine the order before deciding whether to appeal.

Spokesmen for Time Warner Cable and Verizon, two other large providers of Internet access, concurred that their preferences would be for the commission to limit its scope to ensuring that providers properly disclose their practices to their customers.

Some advocates of network neutrality are hoping that the commission uses this case to establish a broader principle.

“The normative message is that it is wrong to block the Internet,” said Tim Wu, a professor at Columbia Law School who is the chairman of Free Press, an advocacy group that filed the complaint about Comcast for which Mr. Martin is proposing a resolution.

“The deeper message he’s sending here is that users are sovereign. If two people want to send a file between each other, the carriers are not to get in the way.”

Professor Wu said the issues at stake go back to the common-law concept of a common carrier, which defined certain businesses — from blacksmiths to ferries — as so essential to commerce that their owners could not discriminate against any paying customer.

These ancient concerns are increasingly relevant to the Internet as an ever-greater share of commerce is conducted online. Companies that sell products or offer content over the Internet have worried that without regulation, the Internet access providers might chose to offer better and faster service to some companies — perhaps those that pay for preferred treatment — than to others.

Many are particularly concerned that cable and phone companies, which are in the pay television business, will choose to inhibit the growth of free video over the Internet from sites like YouTube, which is owned by Google.

“If it turned out that the system accidentally or deliberately discriminated against online television, that would be anticompetitive because online television competes with Comcast,” said Marvin Ammori, the general counsel of Free Press.

Other Internet experts say that Comcast is simply trying to compensate for the limited capacity of its network. On Internet connections delivered over cable systems, there is much more capacity for users to receive information than to send it, so uploading large files can quickly overwhelm the sending capacity.

Some are concerned that if Mr. Martin presses these rules, the Internet providers will move away from offering unlimited Internet service. Already Time Warner is testing a system that would impose significant caps on how much its users could download.

security theater comes to the metro. er, i mean metrolink

By Wil Wheaton

As gas prices leave the “um, really?” territory and speed into the “are you fucking serious?” range, a whole lot of Angelenos are finally considering using our fair city’s subway commuter rail system.*

That’s awesome. Getting cars off the road is great for the environment, and anything we can do to reduce congestion on our over-crowded freeways is always a good idea. The metro doesn’t really go to as many places as you’d expect (thanks, City Council Board of Supervisors!) and it doesn’t run as late as it does in . . . well, every other city in the world, but you go to work on the metro you have, not the metro you wish you had.

Sure, it’s a little inconvenient to take the metro, but with a some sacrifice and extra planning, it can be a pretty pleasant experience (as long as you don’t want to take pictures, you goddamn terrorist-fist-jabbing America hater) and it’s certainly cost effective.

However, the experience of riding the metro is about to become as annoying and frustrating as trying to get on an airplane, because security theater is coming to town:

In June 2008, Metrolink’s Los Angeles County Sheriff’s Bureau will begin deploying its Passenger Random Baggage Search Program to further strengthen rail security and discourage and deter violent criminals from carrying weapons, explosives, or other dangerous items onto Metrolink trains. According to the Transportation Security Administration, random baggage inspections are an effective security tool for deterring individuals who may pose a threat to passengers on board commuter trains.

If the Transportation Security Administration says it’s an effective security tool, you know that shit is seriously vetted, dogg. Remember, according to the Transportation Security Administration, 3.1 or more ounces of any liquid is deadly (3.0 is fine, though), shoes are dangerous, we should be scared shitless all the time, everywhere we go, and people who aren’t too keen on having some guy shove his fist up their ass to take a look around whenever you want to ride in a plane, train, or bus is worthy of tremendous suspicion. In fact, those people probably want to take pictures of things while they’re in public! OMG TERRORISTS! OH NOES! EVERYBODY PANIC!

The MTA tells us that this the best thing since cupcakes. It’s going to keep us safe because it’s totally random and the big scary bad guys won’t know where the cops will be stopping and searching people. See, when they don’t know where the cops will be, they won’t be able to plan . . . uh, what are we scared of today? I haven’t watched cable news in a long time, so I’m going to use a reliable old standby: the suitcase nuke that takes 3.2 ounces of toothpaste and a pair of tweezers to activate!!!1!

Being random is the opposite of being predictable, so that’ll make this really effective. The Terrorists (OMG) will never know where the security will be, so they’ll take their bomb vests and go home. This makes a lot of sense, right?

Wrong. This isn’t even random like it is at the airport, where everyone goes through the same checkpoint, and someone randomly wins the “I’m not a criminal, I’m just being treated like one” lottery when they’re late for a flight. This particular bit of security theater randomly moves from station to station, where:

Prior to initiation of a screening event, signs will be posted at all entrances to the station parking lots and platforms to notify passengers that the deputies are present and the random security screening will be conducted.

GENIUS! Let’s schedule random searches, but make sure everyone knows exactly where the random searches will happen! Good thing criminals and terrorists don’t know how to read signs and go to a different station! Oh, wait, they don’t have to read. All they have to do is refuse to be searched:

Any passenger may refuse to permit an inspection of his or her baggage. A refusal to permit inspection will result in the individual’s not being permitted to access the Metrolink system. Deputies will request that the passenger leave the station facility.

Now, this may seem like it’s kind of a stupid idea. It may seem like the police could use this as an excuse to harass people who aren’t doing anything wrong, but might be . . . undesirable. It may seem like this is just happening so people are constantly afraid. It may seem like this is happening to justify the existence of a giant government bureaucracy that’s really pretty pointless.

Yes, it may seem like any or all of those things, but I’m here to remind you that we have to do things like this prevent THE TERRORISTS from taking away our precious freedoms, like the freedom to ride the subway without being subject to constant surveillance and random security theater. And if you think this is a stupid idea, maybe you should just stare at the terror alert warning for a moment until you remember that it’s your patriotic duty to shut up, keep shopping, and vote for McCain.

God bless America! Fuck yeah!

(Terrorist fist-jab to Opher Banarie.)

*Bert Green points out in the comments that this random screening is coming to Metrolink, not Metro. Metrolink is, of course, the train service that runs from city to city, while MTA (Metro) is the Green, Gold, Red, Orange, Blue, etc. lines that still don’t serve Dodger Stadium. I regret the error, but still scoff at the security theater.

By NINA BERNSTEIN
The New York Times
Published: May 14, 2008

He was a carefree Italian with a recent law degree from a Roman university. She was “a totally Virginia girl,” as she puts it, raised across the road from George Washington’s home. Their romance, sparked by a 2006 meeting in a supermarket in Rome, soon brought the Italian, Domenico Salerno, on frequent visits to Alexandria, Va., where he was welcomed like a favorite son by the parents and neighbors of his girlfriend, Caitlin Cooper.

Ms. Cooper, 23, who had promised to show her boyfriend another side of her country on this visit — meaning Las Vegas and the Grand Canyon — eventually learned that he had been sent in shackles to a rural Virginia jail. And there he remained for more than 10 days, locked up without charges or legal recourse while Ms. Cooper, her parents and their well-connected neighbors tried everything to get him out.

Mr. Salerno’s case may be extreme, but it underscores the real but little-known dangers that many travelers from Europe and other first-world nations face when they arrive in the United States — problems that can startle Americans as much as their foreign visitors.

“We have a lot of government people here and lobbyists and lawyers and very educated, very savvy Washingtonians,” said Jim Cooper, Ms. Cooper’s father, a businessman, describing the reaction in his neighborhood, the Wessynton subdivision of Alexandria. “They were pretty shocked that the government could do this sort of thing, because it doesn’t happen that often, except to people you never hear about, like Haitians and Guatemalans.”  [Italics mine; thoughtlessness his.]

Each year, thousands of would-be visitors from 27 so-called visa waiver countries are turned away when they present their passports, said Angelica De Cima, a spokeswoman for Customs and Border Protection, who said she could not discuss any individual case. In the last seven months, 3,300 people have been rejected and more than 8 million admitted, she said.

Though citizens of those nations do not need visas to enter the United States for as long as 90 days, their admission is up to the discretion of border agents. There are more than 60 grounds for finding someone inadmissible, including a hunch that the person plans to work or immigrate, or evidence of an overstay, however brief, on an earlier visit.

While those turned away are generally sent home on the next flight, “there are occasional circumstances which require further detention to review their cases,” Ms. De Cima said. And because such “arriving aliens” are not considered to be in the United States at all, even if they are in custody, they have none of the legal rights that even illegal immigrants can claim.

Government officials have acknowledged that intensified security since the Sept. 11, 2001, attacks has sometimes led to the heavy-handed treatment of foreigners caught in a bureaucratic tangle or paperwork errors. But despite encouraging officers to resolve such cases quickly, excesses continue to come to light.

One recent case involved an Icelandic woman who was refused entry at Kennedy Airport because, a dozen years earlier, she had overstayed her visa by three weeks. The woman, Erla Osk Arnardottir Lillendahl, was deported Dec. 10 after what she described as 24 hours of interrogation and humiliating treatment — locked in a cell and barred from making phone calls. The Department of Homeland Security later issued a letter of regret.

In questioning Mr. Salerno, customs agents seemed to suspect that he intended to work here. Ms. Cooper, a copy editor for an educational publication, said she was in the airport lobby when an agent called to ask about Mr. Salerno’s income and why he visited so often.

The youngest son of a prosperous contractor in Calabria, Mr. Salerno helps out in his brother’s law firm in Rome and is able to visit the United States several times a year. Neighbors said he joined volunteers in refurbishing the Wessynton recreation center in 2006, then became one of its summer attractions, kicking a soccer ball with the kids and playing tennis with the adults.

“He just is a very open, fun and helpful guy,” said Christopher M. Porter, a resident of Wessynton.

Ms. Cooper said that at the airport, when she begged to know what was happening to Mr. Salerno, an agent told her, “You know, he should try spending a little more time in his own country.”

Another agent eventually told her to go home because Mr. Salerno was being detained as an asylum-seeker.

“The border patrol officer said to my face that Domenico said he would be killed if he went back to Italy,” she recalled, voicing incredulity that, in his halting English, he could express such a thought. “Also, who on earth would ever seek asylum from Italy?”

Twelve hours later, when Mr. Salerno was granted a five-minute phone call, he called Ms. Cooper and denied saying anything of the kind. Instead, he said, the asylum story seemed to be retaliation for his insisting on speaking to his embassy.

After being turned over to Immigration and Customs Enforcement, he was taken to the Pamunkey Regional Jail in Hanover, Va., where he ended up in a barracks with 75 other men, including asylum-seekers who told him they had been waiting a year.

Ten days after he landed in Washington, Mr. Salerno was still incarcerated, despite efforts by Senator John W. Warner, Republican of Virginia, and two former immigration prosecutors hired by the Coopers.

“He’s just really scared,” Ms. Cooper said in an interview last Thursday. “He asked me if Virginia has the death penalty.”

Luis Paoli, a lawyer hired by the Coopers, said there was no limit on detention while waiting for an asylum interview. But even after officials agreed the asylum issue had been a mistake, Mr. Salerno was not released.

“Now an innocent European, who has never broken any laws, committed any crimes, or overstayed his visa, is being held in a county jail,” Ms. Cooper wrote in an e-mail message to The New York Times last Wednesday, prompting a reporter’s inquiries.

Less than 24 hours later, immigration officials intervened and arranged to deliver Mr. Salerno to Dulles, where last Friday he flew to Rome. Ms. Cooper, who said she was now considering moving to Italy, was by his side.

Mr. Salerno was still shaken. “In America,” he said, “there are so many good people and beautiful people that don’t deserve to be showing these terrible things to the world.”