For instance, when Deputy Attorney General James
Comey refused to recertify the spying program in March 2004 – while
Attorney General John Ashcroft was in the hospital – Bush gave Comey a
derisive nickname, as “Cuomey” or “Cuomo” after New York’s former
liberal Democratic Gov. Mario Cuomo, Newsweek has reported.
Similarly, a high-ranking intelligence official who
questioned the wiretapping program told the Washington Post that his
objections soon made him an unwanted outsider. He encountered awkward
silences when he attended meetings where the eavesdropping rules were
“I became aware at some point of things I was not
being told about,” the intelligence official said. [Washington Post,
Feb. 5, 2006]
Another outcast from the Bush administration’s
clique of insiders was Assistant Attorney General Jack Goldsmith, who
reportedly led an internal rebellion of Justice Department lawyers who
protested Bush’s assertion of nearly unlimited presidential powers for
the duration of the War on Terror.
“Demanding that the White House stop using what
they saw as farfetched rationales for riding rough-shod over the law and
the Constitution, Goldsmith and the others fought to bring government
spying and interrogation methods within the law,” Newsweek wrote. “They
did so at their peril; ostracized, some were denied promotions, while
others left for more comfortable climes in private law firms and
White House Nerves
Goldsmith – a Republican conservative but not a
believer in the absolutist Presidency – started getting on the White
House’s nerves in fall 2003 after taking over the Justice Department’s
Office of Legal Counsel (OLC).
First, Goldsmith argued that Iraqi prisoners were
protected by the Geneva Conventions and couldn’t be subjected to
coercion. Then, Goldsmith challenged a legal memo that had supported
Bush’s right to authorize torture.
Vice President Dick Cheney’s chief counsel David
Addington addressed Goldsmith with dripping sarcasm, accusing him of
undermining the powers of the President, Newsweek reported in its Feb.
6, 2006, edition.
“Now that you’ve withdrawn legal opinions that the President of the
United States has been relying on,” Addington reportedly told Goldsmith,
“I need you to go through all of OLC’s opinions (relating to the War on
Terror) and let me know which ones you still stand by.”
Goldsmith’s opposition to Bush’s program for
warrantless wiretapping of Americans brought the tensions to a head. He
drew support from Comey, who refused to sign a recertification of the
wiretap program in March 2004 when he was filling in for ailing Attorney
White House chief of staff Andrew Card and Bush’s
counsel Alberto Gonzales rushed to visit Ashcroft, who was hospitalized
for gallbladder surgery. Faced with Comey’s objections – and the
resistance from Goldsmith – Ashcroft also balked at continuing the
wiretap program, which was temporarily suspended while a compromise was
reached on more safeguards. [NYT, Jan. 1, 2006]
The battle over the warrantless wiretaps reportedly
earned Comey the derisive nickname from Bush as “Cuomey” or just
“Cuomo,” a strong insult from Republicans who deem the former New York
governor to be both excessively liberal and famously indecisive.
Comey – previously a well-respected Republican
lawyer who was credited with prosecuting key terrorism cases including
the Khobar Towers bombing which killed 19 U.S. servicemen in 1996 – had
been deputy attorney general since December 2003.
But by 2004, Comey already was wearing out his
welcome with the White House. He also was responsible for picking
Patrick Fitzgerald to be special prosecutor to investigate who leaked
the identity of a covert CIA officer after her husband, former
Ambassador Joseph Wilson, criticized Bush’s misuse of intelligence on
In 2003, when Ashcroft was still handling the
investigation, Bush had expressed confidence that the leakers would
never be identified. But Ashcroft stepped aside because of conflicts of
interest and his deputy, Comey, selected U.S. Attorney Fitzgerald.
By mid-2004, Fitzgerald was proving himself to be a
dogged investigator as he zeroed in on Cheney’s chief of staff Lewis
Libby and Bush’s political adviser Karl Rove as two officials suspected
of exposing CIA officer Valerie Plame.
Demanding testimony from prominent journalists,
such as New York Times correspondent Judith Miller, Fitzgerald was too
high profile for the White House to easily remove. But the days of Comey
– Fitzgerald’s chief ally – were numbered.
After the “torture memo” leaked to the Washington
Post in June 2004, Comey and Goldsmith threw down the gauntlet again,
leading the fight to repudiate the memo and pressing for a revised
version that deleted the most controversial elements, again angering the
White House, according to Newsweek.
Facing withering criticism from White House hardliners, Goldsmith was
the first big name to go. In summer 2004, a battered and exhausted
Goldsmith quit the Justice Department to become a professor at Harvard
A year later, Comey followed Goldsmith out of the
department, going into private law practice. On Aug. 15, 2005, in his
farewell speech, Comey urged his colleagues to defend the integrity and
honesty of the department.
“I expect that you will appreciate and protect an
amazing gift you have received as an employee of the Department of
Justice,” Comey said. “It is a gift you may not notice until the first
time you stand up and identify yourself as an employee of the Department
of Justice and say something – whether in a courtroom, a conference room
or a cocktail party – and find that total strangers believe what you say
“That gift – the gift that makes possible so much
of the good we accomplish – is a reservoir of trust and credibility, a
reservoir built for us, and filled for us, by those who went before –
most of whom we never knew. They were people who made sacrifices and
kept promises to build that reservoir of trust.
“Our obligation – as the recipients of that great
gift – is to protect that reservoir, to pass it to those who follow,
those who may never know us, as full as we got it. The problem with
reservoirs is that it takes tremendous time and effort to fill them, but
one hole in a dam can drain them.
“The protection of that reservoir requires
vigilance, an unerring commitment to truth, and a recognition that the
actions of one may affect the priceless gift that benefits all. I have
tried my absolute best – in matters big and small – to protect that
reservoir and inspire others to protect it.”
Bush first tried to replace Comey with Timothy
Flanigan, a former deputy White House counsel who had become general
counsel of Tyco International. But Flanigan’s nomination foundered over
questions about his dealings with corrupt Republican lobbyist Jack
Abramoff and Flanigan’s role in developing White House interrogation
In 2002, as deputy to then-White House counsel
Gonzales, Flanigan joined other right-wing lawyers in advocating legal
strategies for protecting administration officials implicated in abuse
An Aug. 1, 2002, memo – prepared by hardliners in the Justice
Department and signed by Jay Bybee, then-chief of the Office of Legal
Counsel – defined torture so narrowly that interrogators would have wide
latitude in abusing prisoners to extract information.
The memo also sought to give Bush authority to order outright torture
of detainees. This “torture memo” argued that U.S. government operatives
should be spared prosecution for torture if they had Bush’s approval.
Flanigan sat in on at least one meeting during which lawyers
discussed various torture techniques, including telling detainees that
they would be buried alive and subjecting them to “waterboarding” which
involves tying a person to a board and using water to simulate drowning.
Flanigan and Addington reportedly tried to shepherd this policy
through the government by limiting the opportunities for critical
comments. As Newsweek reported, Flanigan and Addington “came up with a
solution: cut virtually everyone else out.”
During questioning by the Senate Judiciary Committee on his
nomination to replace Comey, Flanigan declined to say whether he voiced
support for the “torture memo” in its original version, although he did
say he supported a revised – less sweeping – version in December 2004.
Flanigan also told the committee that he saw ambiguities in setting
limits on the abuse of detainees, saying that he did “not believe that
the term ‘inhumane’ is susceptible to succinct definition.” As the fight
over his nomination grew more contentious, Flanigan asked Bush to
withdraw his name on Oct. 6, 2005. [Washington Post, Oct. 8, 2005]
With Flanigan’s nomination in flames, the acting deputy to
now-Attorney General Gonzales became Paul McNulty, who also has a strong
pedigree as a hardline Republican legal operative, a Bush loyalist and a
member of Gonzales’s inner circle.
McNulty was chief counsel to the Republican-run House Judiciary
Committee when it pressed for impeachment of Democratic President Bill
Clinton in 1998. McNulty also headed Bush’s Justice Department
transition team after Election 2000. [NYT, Oct. 21, 2005]
Since Gonzales – like Ashcroft – has recused himself on the Plame
leak investigation, McNulty also has inherited the job of overseeing
Fitzgerald. In that position, the deputy attorney general can apply
subtle pressure on the special prosecutor through the allotment of staff
and other bureaucratic means.
The notion of constraining the work of a special prosecutor by
gaining control of his oversight is not unprecedented.
After Iran-Contra special prosecutor Lawrence Walsh broke through a
long-running White House cover-up of that scandal in 1991, Republican
Supreme Court Chief Justice William Rehnquist engineered a
behind-the-scenes coup against the senior judge overseeing Walsh.
In 1992, Rehnquist ousted moderate Republican Judge George MacKinnon
as chief of the three-judge panel that picked and oversaw independent
counsels. MacKinnon had staunchly backed Walsh, another old-time
Republican jurist, as he peeled back the secrets of the complex
Iran-Contra schemes, which threatened George H.W. Bush’s reelection.
At that key moment, Rehnquist replaced MacKinnon with Judge David
Sentelle, one of President Ronald Reagan’s conservative judicial
appointees and a protégé of Sen. Jesse Helms, then one of the most
right-wing Republicans in the U.S. Congress.
Earlier, as a judge on the U.S. Court of Appeals in Washington,
Sentelle had teamed with another Republican judge, Laurence Silberman,
to overturn the felony convictions of Oliver North in 1990. Sentelle
also provided one of the two votes in 1991 to throw out the convictions
of North’s boss, National Security Adviser John Poindexter.
Faced with these obstructions, Walsh had come to view the Reagan-Bush
loyalists on the U.S. Court of Appeals as “a powerful band of Republican
appointees [who] waited like the strategic reserves of an embattled
army.” Sentelle, who had named his daughter Reagan after the President,
was one of those “strategic reserves.”
A dozen years later, George W. Bush executed a similar maneuver,
replacing a relatively non-partisan Republican (Comey) with two
candidates who are considered more politically reliable – or some might
say pliable (Flanigan and McNulty).
With Comey gone, Fitzgerald still pressed ahead
with his investigation of the White House leak of Plame’s identity, but
he had lost the strong institutional support that Comey had provided.
On Oct. 28, 2005, Fitzgerald indicted Libby for
lying to investigators and obstructing justice, but the special
prosecutor backed off from his expected indictment of Rove, who had
become Bush’s deputy chief of staff.
(Significantly, Libby was replaced as Cheney’s
chief of staff by David Addington, who had helped formulate the White
House policy on torture.)
On Feb. 6, 2006 – with few Americans knowing or
understanding the significance of this history – Gonzales testified
before the Senate Judiciary Committee, avoiding any details about the
internal disputes on the legality of Bush’s warrantless wiretaps.
Gonzales simply told the senators that the
administration’s reading of the Foreign Intelligence Surveillance Act of
1978 let Bush bypass its seemingly clear language requiring warrants
from a special secret court for wiretaps of communications originating
in the United States.
Even Republican senators Arlen Specter and Lindsey
Graham objected to the administration’s strained interpretation of the
But Bush, in effect, is buying time while he builds
federal judicial majorities in favor of his vision of an all-powerful
Bush took a big step in that direction with the
confirmation of Justice Samuel Alito, an architect of the so-called “unitary
executive” theory. The U.S. Supreme Court now has at least four of
nine justices who favor granting the President virtually unlimited
powers as Commander in Chief.
In the meantime, Bush is relying on shrewd
bureaucratic maneuvers – neutralizing and removing skeptics – in order
to fend off harassing actions by Democrats and other Americans,
including traditional Republican lawyers, who oppose Bush’s
extraordinary assertions of power.