Tuesday, June 18, 2013

Comey v. Cheney: In a Different Light

James Comey, the former Deputy Attorney General who famously stood up to the administration's warrantless wire-tapping policies is back in the news because he is about to be appointed Director of the FBI.  His back-story is also relevant as US domestic intelligence collection policies are in the news.

A quick re-cap, when Jack Goldsmith took over the Office of Legal Counsel at DOJ he tossed out the previous opinion that authorized the administration's domestic intelligence collection.  He persuaded Comey that the opinion authored by his predecessor and used as legal support for the adminstration's domestic intelligence collection policies was not legally sound.  One aspect of the program was that it had to be re-authorized by the Secretary of Defense, the Attorney General, and the Director of Central Intelligence every 45 days.  Comey, acting in Ashcroft's stead during the Attorney General's hospitalization, refused to re-authorize the program.  This led to the infamous hospital scene in which White House chief of staff Andrew Card and White House Counsel Alfredo Gonzales went to Ashcroft's hospital room to get him to sign and had a confrontation with Comey.  Comey took the issue to the President, warning him that appointees at the Department of Justice would resign en masse if the program were continued.  The President, who reportedly did not know the extent of DOJ's dissatisfaction with the situation, altered the program.

This story is generally taken as yet another case of Cheney's nefarious influence.  Cheney's support of the intelligence gathering policy is not in dispute and apparently there was little love lost between Cheney and Comey.  But was Cheney really in the driver's seat?  I think there is another way to view the incident - not as a matter the facts, but rather the interpretation.

First, the episode occurred in 2004.  Bush's priority would have been on his re-election campaign.  He told his vice president to keep things off of his personal agenda if it all possible.

Second, the program had been re-authorized 20 times without incident.  From Cheney's perspective the question had to be, in effect, "What now?"

Bush called the ailing Ashcroft at his hospital to press him to sign and he agreed to do so.  When Bush's people arrived though Comey was there digging his heels in.  It could be argued that Cheney might have served the President better by alerting him to these kinds of difficulties so that the administration could address the problems before they became a crisis.  But by most accounts, Bush was not passively drawn into the extensive surveillance programs - he thought they were a good idea and was a proponent of them.  So his staff was acting as his bludgeon - pushing through his preferences.

So instead of Darth Cheney, architect of a surveillance program dimly understood by his callow President - we see VP Cheney doing what VPs have done since they were given a role: help the President do whatever it is the President wants to do.

VPs do sometimes provide the "wait a minute" moments - telling Presidents a difficult truth that no one else can articulate.  Maybe it would have been wise for Cheney to play that role (as Ford's chief of staff he sought to make sure Ford heard a range of views on key issues and ensure there was an orderly policy process.)  And maybe he did that on some issues.  But the President specifically tasked Cheney with ensuring there were no more attacks against the US, and Cheney took that mission to heart.

This is an alternate take, but it is tough to know what the real truth was.  Still as I keep thinking along these lines, I remember an old SNL skit:

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