Angler: The Dick Cheney Vice Presidency
'A Different Understanding With the President'
By Barton Gellman and Jo Becker | Washington Post Staff Writers | Sunday, June 24, 2007; Page A01
Just past the Oval Office, in the private dining room overlooking the South Lawn, Vice President Cheney joined President Bush at a round parquet table they shared once a week. Cheney brought a four-page text, written in strict secrecy by his lawyer. He carried it back out with him after lunch.
In less than an hour, the document traversed a West Wing circuit that gave its words the power of command. It changed hands four times, according to witnesses, with emphatic instructions to bypass staff review. When it returned to the Oval Office, in a blue portfolio embossed with the presidential seal, Bush pulled a felt-tip pen from his pocket and signed without sitting down. Almost no one else had seen the text.
Cheney's proposal had become a military order from the commander in chief. Foreign terrorism suspects held by the United States were stripped of access to any court -- civilian or military, domestic or foreign. They could be confined indefinitely without charges and would be tried, if at all, in closed "military commissions."
"What the hell just happened?" Secretary of State Colin L. Powell demanded, a witness said, when CNN announced the order that evening, Nov. 13, 2001. National security adviser Condoleezza Rice, incensed, sent an aide to find out. Even witnesses to the Oval Office signing said they did not know the vice president had played any part.
The episode was a defining moment in Cheney's tenure as the 46th vice president of the United States, a post the Constitution left all but devoid of formal authority. "Angler," as the Secret Service code-named him, has approached the levers of power obliquely, skirting orderly lines of debate he once enforced as chief of staff to President Gerald R. Ford. He has battled a bureaucracy he saw as hostile, using intimate knowledge of its terrain. He has empowered aides to fight above their rank, taking on roles reserved in other times for a White House counsel or national security adviser. And he has found a ready patron in George W. Bush for edge-of-the-envelope views on executive supremacy that previous presidents did not assert.
Over the past six years, Cheney has shaped his times as no vice president has before. This article begins a four-part series that explores his methods and impact, drawing on interviews with more than 200 men and women who worked for, with or in opposition to Cheney's office. Many of those interviewed recounted events that have not been made public until now, sharing notes,e-mails, personal calendars and other records of their interaction with Cheney and his senior staff. The vice president declined to be interviewed.
Two articles, today and tomorrow, recount Cheney's campaign to magnify presidential war-making authority, arguably his most important legacy. Articles to follow will describe a span of influence that extends far beyond his well-known interests in energy and national defense.
In roles that have gone largely undetected, Cheney has served as gatekeeper for Supreme Court nominees, referee of Cabinet turf disputes, arbiter of budget appeals, editor of tax proposals and regulator in chief of water flows in his native West. On some subjects, officials said, he has displayed a strong pragmatic streak. On others he has served as enforcer of ideological principle, come what may.
Cheney is not, by nearly every inside account, the shadow president of popular lore. Bush has set his own course, not always in directions Cheney preferred. The president seized the helm when his No. 2 steered toward trouble, as Bush did, in time, on military commissions. Their one-on-one relationship is opaque, a vital unknown in assessing Cheney's impact on events. The two men speak of it seldom, if ever, with others. But officials who see them together often, not all of them admirers of the vice president, detect a strong sense of mutual confidence that Cheney is serving Bush's aims.
The vice president's reputation and, some say, his influence, have suffered in the past year and a half. Cheney lost his closest aide, I. Lewis "Scooter" Libby, to a perjury conviction, and his onetime mentor, Donald H. Rumsfeld, in a Cabinet purge. A shooting accident in Texas, and increasing gaps between his rhetoric and events in Iraq, have exposed him to ridicule and approval ratings in the teens. Cheney expresses indifference, in public and private, to any verdict but history's, and those close to him say he means it.
Waxing or waning, Cheney holds his purchase on an unrivaled portfolio across the executive branch. Bush works most naturally, close observers said, at the level of broad objectives, broadly declared. Cheney, they said, inhabits an operational world in which means are matched with ends and some of the most important choices are made. When particulars rise to presidential notice, Cheney often steers the preparation of options and sits with Bush, in side-by-side wing chairs, as he is briefed.
Before the president casts the only vote that counts, the final words of counsel nearly always come from Cheney.
'The Go-To Guy on the Hill'
In his Park Avenue corner suite at Cerberus Global Investments, Dan Quayle recalled the moment he learned how much his old job had changed. Cheney had just taken the oath of office, and Quayle paid a visit to offer advice from one vice president to another.
"I said, 'Dick, you know, you're going to be doing a lot of this international traveling, you're going to be doing all this political fundraising . . . you'll be going to the funerals,' " Quayle said in an interview earlier this year. "I mean, this is what vice presidents do. I said, 'We've all done it.' "
Cheney "got that little smile," Quayle said, and replied, "I have a different understanding with the president."
"He had the understanding with President Bush that he would be -- I'm just going to use the word 'surrogate chief of staff,' " said Quayle, whose membership on the Defense Policy Board gave him regular occasion to see Cheney privately over the following four years.
Cheney, 66, grew up in Lincoln, Neb., and Casper, Wyo., acquiring a Westerner's passion for hunting and fishing but not for the Democratic politics of his parents. He wed his high school sweetheart, Lynne Vincent, beginning what friends describe as a lifelong love affair. Cheney flunked out of Yale but became a highly regarded PhD candidate in political science at the University of Wisconsin -- avoiding the Vietnam War draft with five deferments along the way -- before abandoning the doctoral program and heading to Washington as a junior congressional aide.
He went on to build an unmatched Washington resume as White House chief of staff, House minority whip and secretary of defense. An aversion to political glad-handing and a series of chronic health problems, including four heart attacks, helped derail his presidential ambitions and shifted his focus to a lucrative stint as chairman of Halliburton, an oil services company. His controlled demeanor, ranging mainly from a tight-lipped gaze to the trademark half-smile, conceals what associates call an impish sense of humor and unusual kindness to subordinates.
Cheney's influence in the Bush administration is widely presumed but hard to illustrate. Many of the men and women who know him best said an explanation begins with the way he defined his role.
As the Bush administration prepared to take office, "I remember at the outset, during the transition, thinking, 'What do vice presidents do?' " said White House Chief of Staff Joshua B. Bolten, who was then the Bush team's policy director. Bolten joined Libby, his counterpart in Cheney's office, to compile a list of "portfolios we thought might be appropriate." Their models, Bolten said, were Quayle's Council on Competitiveness and Al Gore's National Partnership for Reinventing Government.
"The vice president didn't particularly warm to that," Bolten recalled dryly.
Cheney preferred, and Bush approved, a mandate that gave him access to "every table and every meeting," making his voice heard in "whatever area the vice president feels he wants to be active in," Bolten said.
Cheney has used that mandate with singular force of will. Other recent vice presidents have enjoyed a standing invitation to join the president at "policy time." But Cheney's interventions have also come in the president's absence, at Cabinet and sub-Cabinet levels where his predecessors were seldom seen. He found pressure points and changed the course of events by "reaching down," a phrase that recurs often in interviews with current and former aides.
Mary Matalin, who was counselor to the vice president until 2003 and remains an informal adviser, described Cheney's portfolio as "the iron issues" -- a list that, as she defined it, comprises most of the core concerns of every recent president. Cheney took on "the economic issues, the security issues . . . the energy issues" -- and the White House legislative agenda, Matalin said, because he became "the go-to guy on the Hill." Other close aides noted, as well, a major role for Cheney in nominations and appointments.
As constitutional understudy, with no direct authority in the executive branch, Cheney has often worked through surrogates. Many of them owed their jobs to him.
While lawyers fought over the 2000 Florida ballot recount, with the presidential election in the balance, Cheney was already populating a prospective Bush administration. Brian V. McCormack, then his 26-year-old personal aide, said Cheney worked three cellphones from the round kitchen table of his townhouse in McLean, "making up lists" of nominees beginning with the secretaries of state, defense and the Treasury.
"His focus was that we need to prepare for the event that [the recount] comes out in our favor, because we will have a limited time frame," McCormack recalled.
Close allies found positions as chief and deputy chief of the Office of Management and Budget, deputy national security adviser, undersecretary of state, and assistant or deputy assistant secretary in numerous Cabinet departments. Other loyalists -- including McCormack, who progressed to assignments in Iraq's occupation authority and then on Bush's staff -- turned up in less senior, but still significant, posts.
In the years that followed, crossing Cheney would cost some of the same officials their jobs. David Gribben, a friend from graduate school who became the vice president's chief of legislative affairs, said Cheney believes in the "educational use of power." Firing a disloyal or poorly performing official, he said, sometimes "sends a signal crisply." Cheney believes he is "using his authority to serve the American people, and he's obviously not afraid to be a rough opponent," Gribben said.
A prodigious appetite for work, officials said, prepares Cheney to shape the president's conversations with others. His Secret Service detail sometimes reports that he is awake and reading at 4:30 a.m. He receives a private intelligence briefing between 6:30 and 7 a.m., often identifying issues to be called to Bush's attention, and then sits in on the president's daily briefing an hour later. Aides said that Cheney insists on joining Bush by secure video link, no matter how many time zones divide them.
Stealth is among Cheney's most effective tools. Man-size Mosler safes, used elsewhere in government for classified secrets, store the workaday business of the office of the vice president. Even talking points for reporters are sometimes stamped "Treated As: Top Secret/SCI." Experts in and out of government said Cheney's office appears to have invented that designation, which alludes to "sensitive compartmented information," the most closely guarded category of government secrets. By adding the words "treated as," they said, Cheney seeks to protect unclassified work as though its disclosure would cause "exceptionally grave damage to national security."
Across the board, the vice president's office goes to unusual lengths to avoid transparency. Cheney declines to disclose the names or even the size of his staff, generally releases no public calendar and ordered the Secret Service to destroy his visitor logs. His general counsel has asserted that "the vice presidency is a unique office that is neither a part of the executive branch nor a part of the legislative branch," and is therefore exempt from rules governing either. Cheney is refusing to observe an executive order on the handling of national security secrets, and he proposed to abolish a federal office that insisted on auditing his compliance.
In the usual business of interagency consultation, proposals and information flow into the vice president's office from around the government, but high-ranking White House officials said in interviews that almost nothing flows out. Close aides to Cheney describe a similar one-way valve inside the office, with information flowing up to the vice president but little or no reaction flowing down.
All those methods would be on clear display when the "war on terror" began for Cheney after eight months in office.
A 'Triumvirate' and Its Leader
In a bunker beneath the East Wing of the White House, Cheney locked his eyes on CNN, chin resting on interlaced fingers. He was about to watch, in real time, as thousands were killed on Sept. 11, 2001.
Previous accounts have described Cheney's adrenaline-charged evacuation to the Presidential Emergency Operations Center that morning, a Secret Service agent on each arm. They have not detailed his reaction, 22 minutes later, when the south tower of the World Trade Center collapsed.
"There was a groan in the room that I won't forget, ever," one witness said. "It seemed like one groan from everyone" -- among them Rice; her deputy, Stephen J. Hadley; economic adviser Lawrence B. Lindsey; counselor Matalin; Cheney's chief of staff, Libby; and the vice president's wife.
Cheney made no sound. "I remember turning my head and looking at the vice president, and his expression never changed," said the witness, reading from a notebook of observations written that day. Cheney closed his eyes against the image for one long, slow blink.
Three people who were present, not all of them admirers, said they saw no sign then or later of the profound psychological transformation that has often been imputed to Cheney. What they saw, they said, was extraordinary self-containment and a rapid shift of focus to the machinery of power. While others assessed casualties and the work of "first responders," Cheney began planning for a conflict that would call upon lawyers as often as soldiers and spies.
More than any one man in the months to come, Cheney freed Bush to fight the "war on terror" as he saw fit, animated by their shared belief that al-Qaeda's destruction would require what the vice president called "robust interrogation" to extract intelligence from captured suspects. With a small coterie of allies, Cheney supplied the rationale and political muscle to drive far-reaching legal changes through the White House, the Justice Department and the Pentagon.
The way he did it -- adhering steadfastly to principle, freezing out dissent and discounting the risks of blow-back -- turned tactical victory into strategic defeat. By late last year, the Supreme Court had dealt three consecutive rebuffs to his claim of nearly unchecked authority for the commander in chief, setting precedents that will bind Bush's successors.
Yet even as Bush was forced into public retreats, an examination of subsequent events suggests that Cheney has quietly held his ground. Most of his operational agenda, in practice if not in principle, remains in place.
In expanding presidential power, Cheney's foremost agent was David S. Addington, his formidable general counsel and legal adviser of many years. On the morning of Sept. 11, Addington was evacuated from the Eisenhower Executive Office Building next to the White House and began to make his way toward his Virginia home on foot. As he neared the Arlington Memorial Bridge, someone in the White House reached him with a message: Turn around. The vice president needs you.
Down in the bunker, according to a colleague with firsthand knowledge, Cheney and Addington began contemplating the founding question of the legal revolution to come: What extraordinary powers will the president need for his response?
Before the day ended, Cheney's lawyer joined forces with Timothy E. Flanigan, the deputy White House counsel, linked by secure video from the Situation Room. Flanigan patched in John C. Yoo at the Justice Department's fourth-floor command center. White House counsel Alberto R. Gonzales joined later.
Thus formed the core legal team that Cheney oversaw, directly and indirectly, after the terrorist attacks.
Yoo, a Berkeley professor-turned-deputy chief of the Office of Legal Counsel, became the theorist of an insurrection against legal limits on the commander in chief. Addington, backed by Flanigan, found levers of government policy and wrote the words that moved them.
"Addington, Flanigan and Gonzales were really a triumvirate," recalled Bradford A. Berenson, then an associate White House counsel. Yoo, he said, "was a supporting player."
Gonzales, a former Texas judge, had the seniority and the relationship with Bush. But Addington -- a man of imposing demeanor, intellect and experience -- dominated the group. Gonzales "was not a law-of-war expert and didn't have very developed views," Yoo recalled, echoing blunter observations by the Texan's White House colleagues.
Cheney 'Has the Portfolio'
Flanigan, with advice from Yoo, drafted the authorization for use of military force that Congress approved on Sept. 18. [Read the authorization document] Yoo said they used the broadest possible language because "this war was so different, you can't predict what might come up."
In fact, the triumvirate knew very well what would come next: the interception -- without a warrant -- of communications to and from the United States. Forbidden by federal law since 1978, the surveillance would soon be justified, in secret, as "incident to" the authority Congress had just granted. Yoo was already working on that memo, completing it on Sept. 25.
It was an extraordinary step, bypassing Congress and the courts, and its authors kept it secret from officials who were likely to object. Among the excluded was John B. Bellinger III, a man for whom Cheney's attorney had "open contempt," according to a senior government lawyer who saw them often. The eavesdropping program was directly within Bellinger's purview as ranking national security lawyer in the White House, reporting to Rice. Addington had no line responsibility. But he had Cheney's proxy, and more than once he accused Bellinger, to his face, of selling out presidential authority for good "public relations" or bureaucratic consensus.
Addington, who seldom speaks to reporters, declined to be interviewed.
"David is extremely principled and dedicated to doing what he feels is right, and can be a very tough customer when he perceives others as obstacles to achieving those goals," Berenson said. "But it's not personal in the sense that 'I don't like you.' It's all about the underlying principle."
Bryan Cunningham, Bellinger's former deputy, said: "Bellinger didn't know. That was a mistake." Cunningham said Rice's lawyer would have recommended vetting the surveillance program with the secret court that governs intelligence intercepts -- a step the Bush administration was forced to take five years later.
On Oct. 25, 2001, the chairmen and ranking minority members of the intelligence committees were summoned to the White House for their first briefing on the eavesdropping and were told that it was one of the government's most closely compartmented secrets. Under Presidents George H.W. Bush or Bill Clinton, officials said, a conversation of that gravity would involve the commander in chief. But when the four lawmakers arrived in the West Wing lobby, an aide led them through the door on the right, away from the Oval Office.
"We met in the vice president's office," recalled former senator Bob Graham (D-Fla.). Bush had told Graham already, when the senator assumed the intelligence panel chairmanship, that "the vice president should be your point of contact in the White House." Cheney, the president said, "has the portfolio for intelligence activities."
'Oh, By the Way'
By late October, the vice president and his allies were losing patience with the Bush administration's review of a critical question facing U.S. forces in Afghanistan and elsewhere: What should be done with captured fighters from al-Qaeda and the Taliban? Federal trials? Courts-martial? Military commissions like the ones used for Nazis under President Franklin D. Roosevelt?
Cheney's staff did not reply to invitations to join the interagency working group led by Pierre Prosper, ambassador at large for war crimes. But Addington, the vice president's lawyer, knew what his client wanted, Berenson said. And Prosper's group was still debating details. "Once you start diving into it, and history has proven us right, these are complicated questions," one regular participant said.
The vice president saw it differently. "The interagency was just constipated," said one Cheney ally, who spoke on condition of anonymity.
Flanigan recalled a conversation with Addington at the time in which the two discussed the salutary effect of showing bureaucrats that the president could act "without their blessing -- and without the interminable process that goes along with getting that blessing."
Throughout his long government career, Cheney had counseled against that kind of policy surprise, insisting that unvetted decisions lead presidents to costly mistakes.
When James A. Baker III was tapped to be White House chief of staff in 1980, he interviewed most of his living predecessors. Advice from Cheney filled four pages of a yellow legal pad. Only once, to signify Cheney's greatest emphasis, did Baker write in all capital letters:
BE AN HONEST BROKER
DON'T USE THE PROCESS TO IMPOSE YOUR POLICY VIEWS ON PRES.
Cheney told Baker, according to the notes, that an "orderly paper flow is way you protect the Pres.," ensuring that any proposal has been tested against other views. Cheney added:
"It's not in anyone's interest to get an 'oh by the way decision' -- & all have to understand that. Can hurt the Pres. Bring it up at a Cab. mtg. Make sure everyone understands this."
In 1999, not long before he became Bush's running mate, Cheney warned again about "'oh, by the way' decisions" at a conference of White House historians. According to a transcript, he added: "The process of moving paper in and out of the Oval Office, who gets involved in the meetings, who does the president listen to, who gets a chance to talk to him before he makes a decision, is absolutely critical. It has to be managed in such a way that it has integrity."
Two years later, at his Nov. 13 lunch with Bush, Cheney brought the president the ultimate "oh, by the way" choice -- a far-reaching military order that most of Bush's top advisers had not seen.
According to Flanigan, Addington was not the first to think of military commissions but was the "best scholar of the FDR-era order" among their small group of trusted allies. "He gained a preeminent role by virtue of his sheer ability to turn out a draft of something in quick time."
That draft, said one of the few lawyers apprised of it, "was very closely held because it was coming right from the top."
'In Support of the President'
To pave the way for the military commissions, Yoo wrote an opinion on Nov. 6, 2001, declaring that Bush did not need approval from Congress or federal courts. Yoo said in an interview that he saw no need to inform the State Department, which hosts the archives of the Geneva Conventions and the government's leading experts on the law of war. "The issue we dealt with was: Can the president do it constitutionally?" Yoo said. "State -- they wouldn't have views on that."
Attorney General John D. Ashcroft, was astonished to learn that the draft gave the Justice Department no role in choosing which alleged terrorists would be tried in military commissions. Over Veterans Day weekend, on Nov. 10, he took his objections to the White House.
The attorney general found Cheney, not Bush, at the broad conference table in the Roosevelt Room. According to participants, Ashcroft said that he was the president's senior law enforcement officer, supervised the FBI and oversaw terrorism prosecutions nationwide. The Justice Department, he said, had to have a voice in the tribunal process. He was enraged to discover that Yoo, his subordinate, had recommended otherwise -- as part of a strategy to deny jurisdiction to U.S. courts.
Raising his voice, participants said, Ashcroft talked over Addington and brushed aside interjections from Cheney. "The thing I remember about it is how rude, there's no other word for it, the attorney general was to the vice president," said one of those in the room. Asked recently about the confrontation, Ashcroft replied curtly: "I'm just not prepared to comment on that."
According to Yoo and three other officials, Ashcroft did not persuade Cheney and got no audience with Bush. Bolten, in an October 2006 interview after becoming Bush's chief of staff, did not deny that account. He signaled an intention to operate differently in the second term.
"In my six months' experience it would not fall to the vice president to referee that kind of thing," Bolten added. "If it is a presidential decision, the president will make it. . . . I think the vice president appreciates that -- that his role is in support of the president, and not as a second-tier substitute."
Three days after the Ashcroft meeting, Cheney brought the order for military commissions to Bush. No one told Bellinger, Rice or Powell, who continued to think that Prosper's working group was at the helm.
After leaving Bush's private dining room, the vice president took no chances on a last-minute objection. He sent the order on a swift path to execution that left no sign of his role. After Addington and Flanigan, the text passed to Berenson, the associate White House counsel. Cheney's link to the document broke there: Berenson was not told of its provenance.
Berenson rushed the order to deputy staff secretary Stuart W. Bowen Jr., bearing instructions to prepare it for signature immediately -- without advance distribution to the president's top advisers. Bowen objected, he told colleagues later, saying he had handled thousands of presidential documents without ever bypassing strict procedures of coordination and review. He relented, one White House official said, only after "rapid, urgent persuasion" that Bush was standing by to sign and that the order was too sensitive to delay. [Read the order]
In an interview, Berenson said it was his understanding that "someone had briefed" the president "and gone over it" already. He added: "I don't know who that was."
'It'll Leak in 10 Minutes'
On Nov. 14, 2001, the day after Bush signed the commissions order, Cheney took the next big step. He told the U.S. Chamber of Commerce that terrorists do not "deserve to be treated as prisoners of war." [Read Cheney's full remarks]
The president had not yet made that decision. Ten weeks passed, and the Bush administration fought one of its fiercest internal brawls, before Bush ratified the policy that Cheney had declared: The Geneva Conventions would not apply to al-Qaeda or Taliban fighters captured on the battlefield.
Since 1949, Geneva had accorded protections to civilians and combatants in a war zone. Those protections varied with status, but the prevailing U.S. and international view was that anyone under military control -- even an alleged war criminal -- has some rights. Rumsfeld, elaborating on the position Cheney staked out, cast that interpretation aside. All captured fighters in Afghanistan, he said at a news briefing, are "unlawful combatants" who "do not have any rights" under Geneva.
At the White House, Bellinger sent Rice a blunt -- and, he thought, private -- legal warning. The Cheney-Rumsfeld position would place the president indisputably in breach of international law and would undermine cooperation from allied governments. Faxes had been pouring in at the State Department since the order for military commissions was signed, with even British authorities warning that they could not hand over suspects if the U.S. government withdrew from accepted legal norms.
One lawyer in his office said that Bellinger was chagrined to learn, indirectly, that Cheney had read the confidential memo and "was concerned" about his advice. Thus Bellinger discovered an unannounced standing order: Documents prepared for the national security adviser, another White House official said, were "routed outside the formal process" to Cheney, too. The reverse did not apply.
Powell asked for a meeting with Bush. The same day, Jan. 25, 2002, Cheney's office struck a preemptive blow. It appeared to come from Gonzales, a longtime Bush confidant whom the president nicknamed "Fredo." Hours after Powell made his request, Gonzales signed his name to a memo that anticipated and undermined the State Department's talking points. The true author has long been a subject of speculation, for reasons including its unorthodox format and a subtly mocking tone that is not a Gonzales hallmark.
A White House lawyer with direct knowledge said Cheney's lawyer, Addington, wrote the memo. Flanigan passed it to Gonzales, and Gonzales sent it as "my judgment" to Bush [Read the memo]. If Bush consulted Cheney after that, the vice president became a sounding board for advice he originated himself.
Addington, under Gonzales's name, appealed to the president by quoting Bush's own declaration that "the war against terrorism is a new kind of war." Addington described the Geneva Conventions as "quaint," casting Powell as a defender of "obsolete" rules devised for another time. If Bush followed Powell's lead, Addington suggested, U.S. forces would be obliged to provide athletic gear and commissary privileges to captured terrorists.
According to David Bowker, a State Department lawyer, Powell did not in fact argue that al-Qaeda and Taliban forces deserved the privileges of prisoners of war. Powell said Geneva rules entitled each detainee to a status review, but he predicted that few, if any, would qualify as POWs, because they did not wear uniforms on the battlefield or obey a lawful chain of command. "We said, 'If you give legal process and you follow the rules, you're going to reach substantially the same result and the courts will defer to you,'" Bowker said.
Late that afternoon, as the "Gonzales memo" began to circulate around the government, Addington turned to Flanigan.
"It'll leak in 10 minutes," he predicted, according to a witness.
The next morning's Washington Times carried a front-page article in which administration sources accused Powell of "bowing to pressure from the political left" and advocating that terrorists be given "all sorts of amenities, including exercise rooms and canteens."
Though the report portrayed Powell as soft on enemies, two senior government lawyers said, Addington blamed the State Department for leaking it. The breach of secrecy, Addington said, proved that William H. Taft IV, Powell's legal adviser, could not be trusted. Taft joined Bellinger on a growing -- and explicit -- blacklist, excluded from consultation. "I was off the team," Taft said in an interview. The vice president's lawyer had marked him an enemy, but Taft did not know he was at war.
"Which, of course, is why you're ripe for the taking, isn't it?" he added, laughing briefly.
Staff researcher Julie Tate contributed to this report.
Pushing the Envelope on Presidential Power
By Barton Gellman and Jo Becker | Washington Post Staff Writers | Monday, June 25, 2007
Shortly after the first accused terrorists reached the U.S. naval prison at Guantanamo Bay, Cuba, on Jan. 11, 2002, a delegation from CIA headquarters arrived in the Situation Room. The agency presented a delicate problem to White House counsel Alberto R. Gonzales, a man with next to no experience on the subject. Vice President Cheney's lawyer, who had a great deal of experience, sat nearby.
The meeting marked "the first time that the issue of interrogations comes up" among top-ranking White House officials, recalled John C. Yoo, who represented the Justice Department. "The CIA guys said, 'We're going to have some real difficulties getting actionable intelligence from detainees'" if interrogators confined themselves to treatment allowed by the Geneva Conventions.
From that moment, well before previous accounts have suggested, Cheney turned his attention to the practical business of crushing a captive's will to resist. The vice president's office played a central role in shattering limits on coercion of prisoners in U.S. custody, commissioning and defending legal opinions that the Bush administration has since portrayed as the initiatives, months later, of lower-ranking officials.
Cheney and his allies, according to more than two dozen current and former officials, pioneered a novel distinction between forbidden "torture" and permitted use of "cruel, inhuman or degrading" methods of questioning. They did not originate every idea to rewrite or reinterpret the law, but fresh accounts from participants show that they translated muscular theories, from Yoo and others, into the operational language of government.
A backlash beginning in 2004, after reports of abuse leaked out of Iraq's Abu Ghraib prison and Guantanamo Bay, brought what appeared to be sharp reversals in courts and Congress -- for Cheney's claims of executive supremacy and for his unyielding defense of what he called "robust interrogation."
But a more careful look at the results suggests that Cheney won far more than he lost. Many of the harsh measures he championed, and some of the broadest principles undergirding them, have survived intact but out of public view.
The vice president's unseen victories attest to traits that are often ascribed to him but are hard to demonstrate from the public record: thoroughgoing secrecy, persistence of focus, tactical flexibility in service of fixed aims and close knowledge of the power map of government. On critical decisions for more than six years, Cheney has often controlled the pivot points -- tipping the outcome when he could, engineering stalemate when he could not and reopening debates that rivals thought were resolved.
"Once he's taken a position, I think that's it," said James A. Baker III, who has shared a hunting tent with Cheney more than once and worked with him under three presidents. "He has been pretty damn good at accumulating power, extraordinarily effective and adept at exercising power."
'At Any Time and in Any Place'
David S. Addington, Cheney's general counsel, set the new legal agenda in a blunt memorandum shortly after the CIA delegation returned to Langley. Geneva's "strict limits on questioning of enemy prisoners," he wrote on Jan. 25, 2002, hobbled efforts "to quickly obtain information from captured terrorists."
No longer was the vice president focused on procedural rights, such as access to lawyers and courts. The subject now was more elemental: How much suffering could U.S. personnel inflict on an enemy to make him talk? Cheney's lawyer feared that future prosecutors, with motives "difficult to predict," might bring criminal charges against interrogators or Bush administration officials.
Geneva rules forbade not only torture but also, in equally categorical terms, the use of "violence," "cruel treatment" or "humiliating and degrading treatment" against a detainee "at any time and in any place whatsoever." The War Crimes Act of 1996 made any grave breach of those restrictions a U.S. felony [Read the act]. The best defense against such a charge, Addington wrote, would combine a broad presidential directive for humane treatment, in general, with an assertion of unrestricted authority to make exceptions.
The vice president's counsel proposed that President Bush issue a carefully ambiguous directive. Detainees would be treated "humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of" the Geneva Conventions. When Bush issued his public decision two weeks later, on Feb. 7, 2002, he adopted Addington's formula -- with all its room for maneuver -- verbatim.
In a radio interview last fall, Cheney said, "We don't torture." What he did not acknowledge, according to Alberto J. Mora, who served then as the Bush-appointed Navy general counsel, was that the new legal framework was designed specifically to avoid a ban on cruelty. In international law, Mora said, cruelty is defined as "the imposition of severe physical or mental pain or suffering." He added: "Torture is an extreme version of cruelty."
How extreme? Yoo was summoned again to the White House in the early spring of 2002. This time the question was urgent. The CIA had captured Abu Zubaida, then believed to be a top al-Qaeda operative, on March 28, 2002. Case officers wanted to know "what the legal limits of interrogation are," Yoo said.
This previously unreported meeting sheds light on the origins of one of the Bush administration's most controversial claims. The Justice Department delivered a classified opinion on Aug. 1, 2002, stating that the U.S. law against torture "prohibits only the worst forms of cruel, inhuman or degrading treatment" and therefore permits many others. [Read the opinion] Distributed under the signature of Assistant Attorney General Jay S. Bybee, the opinion also narrowed the definition of "torture" to mean only suffering "equivalent in intensity" to the pain of "organ failure ..... or even death."
When news accounts unearthed that opinion nearly two years later, the White House repudiated its contents. Some officials described it as hypothetical, without disclosing that the opinion was written in response to specific questions from the CIA. Administration officials attributed authorship to Yoo, a law professor at the University of California at Berkeley who had come to serve in the Office of Legal Counsel.
But the "torture memo," as it became widely known, was not Yoo's work alone. In an interview, Yoo said that Addington, as well as Gonzales and deputy White House counsel Timothy E. Flanigan, contributed to the analysis.
The vice president's lawyer advocated what was considered the memo's most radical claim: that the president may authorize any interrogation method, even if it crosses the line into torture. U.S. and treaty laws forbidding any person to "commit torture," that passage stated, "do not apply" to the commander in chief, because Congress "may no more regulate the President's ability to detain and interrogate enemy combatants than it may regulate his ability to direct troop movements on the battlefield."
That same day, Aug. 1, 2002, Yoo signed off on a second secret opinion, the contents of which have never been made public. According to a source with direct knowledge, that opinion approved as lawful a long list of interrogation techniques proposed by the CIA -- including waterboarding, a form of near-drowning that the U.S. government has prosecuted as a war crime since at least 1901. The opinion drew the line against one request: threatening to bury a prisoner alive.
Yoo said for the first time in an interview that he verbally warned lawyers for the president, Cheney and Defense Secretary Donald H. Rumsfeld that it would be a risky policy to permit military interrogators to use the harshest techniques, because the armed services, vastly larger than the CIA, could overuse the tools or exceed the limits. "I always thought that only the CIA should do this, but people at the White House and at DOD felt differently," Yoo said. The migration of those techniques from the CIA to the military, and from Guantanamo Bay to Abu Ghraib, aroused worldwide condemnation when abuse by U.S. troops was exposed.
Through is spokeswoman, Tasia Scolinos, Gonzales declined a request for an interview about his time in the White House counsel's office and his interactions with Cheney. The vice president's spokeswoman, Lea Anne McBride, declined to comment on Yoo's recollection.
On June 8, 2004, national security adviser Condoleezza Rice and Secretary of State Colin L. Powell learned of the two-year-old torture memo for the first time from an article in The Washington Post [Read the article]. According to a former White House official with firsthand knowledge, they confronted Gonzales together in his office.
Rice "very angrily said there would be no more secret opinions on international and national security law," the official said, adding that she threatened to take the matter to the president if Gonzales kept them out of the loop again. Powell remarked admiringly, as they emerged, that Rice dressed down the president's lawyer "in full Nurse Ratched mode," a reference to the head nurse of the mental hospital in the 1975 film "One Flew Over the Cuckoo's Nest."
Neither of them took their objections to Cheney, the official said, a much more dangerous course.
'His Client, the Vice President'
In the summer and fall of 2002, some of the Bush administration's leading lawyers began to warn that Cheney and his Pentagon allies had set the government on a path for defeat in court. As the judicial branch took up challenges to the president's assertion of wartime power, Justice Department lawyers increasingly found themselves defending what they believed to be losing positions -- directed by the vice president and his staff. One of the uneasy lawyers was Solicitor General Theodore B. Olson , a conservative stalwart whose wife, Barbara, had died on Sept. 11, 2001 when the hijacked American Airlines Flight 77 crashed into the Pentagon. Olson shared Cheney's robust view of executive authority, but his job was to win cases. Two that particularly worried him involved U.S. citizens -- Jose Padilla and Yaser Esam Hamdi -- who had been declared enemy combatants and denied access to lawyers.
Federal courts, Olson argued, would not go along with that. But the CIA and military interrogators opposed any outside contact, fearing relief from the isolation and dependence that they relied upon to break the will of suspected terrorists.
Flanigan said that Addington's personal views leaned more toward Olson than against him, but that Addington beat back the proposal to grant detainees access to lawyers, "because that was the position of his client, the vice president."
Decision time came in a heated meeting in Gonzales's corner office on the West Wing's second floor, according to four officials with direct knowledge, none of whom agreed to be quoted by name about confidential legal deliberations. Olson was backed by associate White House counsel Bradford A. Berenson , a former law clerk to Supreme Court Justice Anthony M. Kennedy.
Berenson told colleagues that the court's swing voter would never accept absolute presidential discretion to declare a U.S. citizen an enemy and lock him up without giving him an opportunity to be represented and heard. Another former Kennedy clerk, White House lawyer Brett Kavanaugh, had made the same argument earlier.
Addington accused Berenson of surrendering executive power on a fool's prophecy about an inscrutable court. Berenson accused Addington of "know-nothingness."
Gonzales listened quietly as the Justice Department and his own staff lined up against Addington. Then he decided in favor of Cheney's lawyer.
John D. Ashcroft, who was attorney general at the time, declined to discuss details of the dispute but said the vice president's views "carried a great deal of weight. He was the E.F. Hutton in the room. When he talked, everybody would listen." Cheney, he said, "compelled people to think carefully about whatever he mentioned."
When a U.S. District Court ruled several months later that Padilla had a right to counsel, Cheney's office insisted on sending Olson's deputy, Paul Clement, on what Justice Department lawyers called "a suicide mission": to tell Judge Michael B. Mukasey that he had erred so grossly that he should retract his decision. Mukasey derided the government's "pinched legalism" and added acidly that his order was "not a suggestion or request."
Cheney's strategy fared worse in the Supreme Court, where two cases arrived for oral argument alongside Padilla's on April 28, 2004.
For months, Olson and his Justice Department colleagues had pleaded for modest shifts that would shore up the government's position. Hamdi, the American, had languished in a Navy brig for two and a half years with out a hearing or a lawyer. Shafiq Rasul, a British citizen at Guantanamo Bay, had been held even longer. Olson could make Cheney's argument that courts had no jurisdiction, but he wanted to "show them that you at least have some system of due process in place" to ensure against wrongful detention, according to a senior Justice Department official who closely followed the debates.
Addington, the vice president's counsel fought and won again. He argued that any declaration of binding rules would restrict the freedom of future presidents and open the door to further lawsuits. On June 28, 2004, the Supreme Court ruled 8 to 1 in the Hamdi case that detainees must have a lawyer and an opportunity to challenge their status as enemy combatants before a "neutral decision maker." The Rasul decision, the same day, held 6 to 3 that Guantanamo Bay is not beyond the reach of federal law.
Eleven days later, Olson stepped down as solicitor general. His deputy succeeded him. What came next was a reminder that it does not pay to cross swords with the vice president.
Ashcroft, with support from Gonzales, proposed a lawyer named Patrick Philbin for deputy solicitor general. Philbin was among the authors of the post-Sept. 11 legal revolution, devising arguments to defend Cheney's military commissions and the denial of habeas corpus rights at Guantanamo Bay. But he had tangled with the vice president's office now and then, objecting to the private legal channel between Addington and Yoo and raising questions about domestic surveillance by the National Security Agency.
Cheney's lawyer passed word that Philbin was an unsatisfactory choice. The attorney general and White House counsel abandoned their candidate.
"OVP plays hardball," said a high-ranking former official who followed the episode, referring to the office of the vice president. "No one would defend Philbin."
Rumsfeld, Cheney's longtime friend and mentor, gathered his senior subordinates at the Pentagon in the summer of 2005. He warned them to steer clear of Senate Republicans John McCain, John W. Warner and Lindsay O. Graham, who were drafting a bill to govern the handling of terrorism suspects.
"Rumsfeld made clear, emphatically, that the vice president had the lead on this issue," said a former Pentagon official with direct knowledge.
Though his fingerprints were not apparent, Cheney had already staked out a categorical position for the president. It came in a last-minute insert to a "statement of administration policy" by the Office of Management and Budget, where Nancy Dorn, Cheney's former chief of legislative affairs, was deputy director. Without normal staff clearance, according to two Bush administration officials, the vice president's lawyer added a paragraph -- just before publication on July 21, 2005 -- to the OMB's authoritative guidance on the 2006 defense spending bill [Read the document].
"The Administration strongly opposes" any amendment to "regulate the detention, treatment or trial of terrorists captured in the war on terror," the statement said. Before most Bush administration officials even became aware that the subject was under White House review, Addington wrote that "the President's senior advisers would recommend that he veto" any such bill.
Among those taken unawares was Deputy Defense Secretary Gordon R. England. More than a year had passed since Bush expressed "deep disgust" over the abuse photographed at Abu Ghraib, and England told aides it was past time to issue clear rules for U.S. troops.
In late August 2005, England called a meeting of nearly three dozen Pentagon officials, including the vice chief and top uniformed lawyer for each military branch. Matthew Waxman, the deputy assistant secretary for detainee affairs, set the agenda.
Waxman said that the president's broadly stated order of Feb. 7, 2002 -- which called for humane treatment, "subject to military necessity" -- had left U.S. forces unsure about how to behave. The Defense Department, he said, should clarify its bedrock legal requirements with a directive incorporating the language of Geneva's Common Article 3 [Read Common Article 3]. That was exactly the language -- prohibiting cruel, violent, humiliating and degrading treatment -- that Cheney had spent three years expunging from U.S. policy.
"Every vice chief came out strongly in favor, as did every JAG," or judge advocate general, recalled Mora, who was Navy general counsel at the time.
William J. Haynes II, a close friend of Addington's who served as Rumsfeld's general counsel, was one of two holdouts in the room. The other was Stephen A. Cambone, Rumsfeld's undersecretary for intelligence.
Waxman, believing his opponents isolated, circulated a draft of DOD Directive 2310. Within a few days, Addington and I. Lewis "Scooter" Libby, Cheney's chief of staff, invited Waxman for a visit.
According to Mora, Waxman returned from the meeting with the message that his draft was "unacceptable to the vice president's office." Another defense official, who made notes of Waxman's report, said Cheney's lawyer ridiculed the vagueness of the Geneva ban on "outrages upon personal dignity," saying it would leave U.S. troops timid in the face of unpredictable legal risk. When Waxman replied that the official White House policy was far more opaque, according to the report, Addington accused him of trying to replace the president's decision with his own.
"The impact of that meeting is that Directive 2310 died," Mora said.
'Total Indifference to Public Opinion'
Over the next 12 months, Congress and the Supreme Court imposed many of the restrictions that Cheney had squelched.
"The irony with the Cheney crowd pushing the envelope on presidential power is that the president has now ended up with lesser powers than he would have had if they had made less extravagant, monarchical claims," said Bruce Fein, an associate deputy attorney general under President Ronald Reagan.
Flanigan, a founding member of that crowd, said he still believes that Addington and Yoo were right in their "application of generally accepted constitutional principles." But he acknowledged that many battles ended badly. "The Supreme Court," Flanigan said, "decided to change the rules."
Even so, Cheney's losses were not always as they appeared.
On Oct. 5, 2005, the Senate voted 90 to 9 in favor of McCain's Detainee Treatment Act, which included the Geneva language [Read the bill]. It was, by any measure, a rebuke to Cheney. Bush signed the bill into law. "Well, I don't win all the arguments," Cheney told the Wall Street Journal.
Yet he and Addington found a roundabout path to the exceptions they sought for the CIA, as allies in Congress made little-noticed adjustments to the bill.
The final measure confined only the Defense Department to the list of interrogation techniques specified in a new Army field manual. No techniques were specified for CIA officers, who were forbidden only in general terms to employ "cruel" or "inhuman" methods. Crucially, the new law said those words would be interpreted in light of U.S. constitutional law. That made a big difference to Cheney.
The Supreme Court has defined cruelty as an act that "shocks the conscience" under the circumstances. Addington suggested, according to another government lawyer, that harsh methods would be far less shocking under circumstances involving a mass-casualty terrorist threat. Cheney may have alluded to that advice in an interview with ABC's "Nightline" on Dec. 18, 2005, saying that "what shocks the conscience" is to some extent "in the eye of the beholder."
Eager to put detainee scandals behind them, Bush's advisers spent days composing a statement in which the president would declare support for the veto-proof bill on detainee treatment. Hours before Bush signed it into law on Dec. 30, 2005, Cheney's lawyer intercepted the accompanying statement "and just literally takes his red pen all the way through it," according to an official with firsthand knowledge.
Addington substituted a single sentence. Bush, he wrote, would interpret the law "in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief."
Cheney's office had used that technique often. Like his boss, Addington disdained what he called "interagency treaties," one official said. He had no qualms about discarding language "agreed between Cabinet secretaries," the official said.
Top officials from the CIA, and the Justice, State and Defense departments unanimously opposed the substitution, according to two officials. John B. Bellinger III, the ranking national security lawyer at the White House, warned that Congress would view Addington's statement as a "stick in the eye" after weeks of consensus-building by national security adviser Stephen J. Hadley.
None of that mattered. With Cheney's weight behind it, White House counsel Harriet E. Miers sent Addington's version to Bush for his signature.
"The only person in Washington who cares less about his public image than David Addington is Dick Cheney," said a former White House ally. "What both of them miss is that ..... in times of war, a prerequisite for success is people having confidence in their leadership. This is the great failure of the administration -- a complete and total indifference to public opinion."
'Almost Everything' Cheney Wanted
On June 29, 2006, the Supreme Court struck its sharpest blow to the house that Cheney built, ruling 5 to 3 that the president had no lawful power to try alleged terrorists in military commissions [Read the opinion]. The tribunal order that Cheney brought to Bush's private dining room, and the game plan Cheney's lawyer wrote to defend it, fetched condemnation on disparate legal grounds. The majority relied, as Addington's critics foresaw, on Justice Kennedy's vote.
Not only did the court leave the president beholden to Congress for the authority to charge and punish terrorists, but it rejected a claim of implicit legislative consent that Bush was using elsewhere to justify electronic surveillance without a warrant. And not only did it find that Geneva's Common Article 3 protects "unlawful enemy combatants," but it also said that those protections -- including humane treatment and the right to a trial by "a regularly constituted court" -- were enforceable by federal judges in the United States.
The court's decision, in Hamdan v. Rumsfeld, was widely seen as a calamity for Cheney's war plan against al-Qaeda. As the Bush administration formed its response, the vice president's position appeared to decline further still.
White House strategists agreed that they had to submit legislation to undo the damage of the Hamdan case. Cheney and Addington, according to a former official with firsthand knowledge, favored a one-page bill. Their proposal would simply have stated that the Geneva Conventions confer no right of access to U.S. courts, stripped U.S. courts of jurisdiction over foreign nationals declared to be enemy combatants and affirmed the president's authority to create military commissions exactly as he had already done. Bush chose to spend the fall of 2006 negotiating a much more complex bill that became the Military Commissions Act.
The White House proposal, said Joshua B. Bolten, the chief of staff, "did not come out exactly as the vice president would have wanted."
In another reversal for Cheney, Bush acknowledged publicly on Sept. 6 that the CIA maintained secret prisons overseas for senior al-Qaeda detainees, a subject on which he had held his silence since The Post disclosed them late in 2005. The president announced that he had emptied the "black sites" and transferred their prisoners to Guantanamo Bay to be tried.
The same week, almost exactly a year after the vice president's office shelved Waxman's Pentagon plan, Waxman's successor dusted it off. DOD Directive 2310.01E, the Department of Defense Detainee Program, included the verbatim text of Geneva's Common Article 3 and described it, as Waxman had, as "a minimum standard for the care and treatment of all detainees." [Read the directive] The new Army field manual, published with the directive, said that interrogators were forbidden to employ a long list of techniques that had been used against suspected terrorists since Sept. 11, 2001 -- including stripping, hooding, inflicting pain and forcing the performance of sex acts.
For all the apparent setbacks, close observers said, Cheney has preserved his top-priority tools in the "war on terror." After a private meeting with Cheney, one of them said, Bush decided not to promise that there would be no more black sites -- and seven months later, the White House acknowledged that secret detention had resumed.
The Military Commissions Act, passed by strong majorities of the Senate and House on Sept. 28 and 29, 2006, gave "the office of the vice president almost everything it wanted," said Yoo, who maintained his contact with Addington after returning to a tenured position at Berkeley.
The new law withstood its first Supreme Court challenge on April 2. It exempts CIA case officers and other government employees from prosecution for past war crimes or torture. Once again, an apparently technical provision held great importance to Cheney and his allies.
Without repealing the War Crimes Act, which imposes criminal penalties for grave breaches of Geneva's humane-treatment standards, Congress said the president, not the Supreme Court, has final authority to decide what the standards mean -- and whether they even apply.
'I'd Like to Close Guantanamo'
Air Force Two touched down in Sydney this past Feb. 24. Cheney had come to discuss Iraq. Prime Minister John Howard brought the conversation around to an Australian citizen who had unexpectedly become a political threat.
Under pressure at home, Howard said he told Cheney that there must be a trial "with no further delay" for David Hicks, 31, who was beginning his sixth year at the U.S. naval prison at Guantanamo Bay. Five days later, Hicks was indicted as a war criminal. On March 26, he pleaded guilty to providing "material support" for terrorism.
At every stage since his capture, as he changed taxis at the Afghan-Pakistan border, Hicks had crossed a legal landscape that Cheney did more than anyone to reshape. He was Detainee 002 at Guantanamo Bay, arriving on opening day at an asserted no man's land beyond the reach of sovereign law. Interrogators questioned him under guidelines that gave legal cover to the infliction of pain and fear -- and, according to an affidavit filed by British lawyer Steven Grosz, Hicks was subjected to beatings, sodomy with a foreign object, sensory deprivation, disorienting drugs and prolonged shackling in painful positions.
The U.S. government denied those claims, and before accepting Hicks's guilty plea it required him to affirm that he had "never been illegally treated." But the tribunal's rules, written under principles Cheney advanced, would have allowed the Australian's conviction with evidence obtained entirely by "cruel, inhuman or degrading" techniques.
Shortly after Cheney returned from Australia, the Hicks case died with a whimper. The U.S. government abruptly shifted its stance in plea negotiations, dropping the sentence it offered from 20 years in prison to nine months if Hicks would say that he was guilty.
Only the dramatic shift to lenience, said Joshua Dratel, one of three defense lawyers, resolved the case in time to return Hicks to Australia before Howard faces reelection late this year. The deal, negotiated without the knowledge of the chief prosecutor, Air Force Col. Morris Davis, was supervised by Susan J. Crawford, the convening authority over military commissions. Crawford received her three previous government jobs from then-Defense Secretary Cheney -- she was appointed as his special adviser, Pentagon inspector general and then judge on the U.S. Court of Appeals for the Armed Forces.
Yet the tactical retreat on Hicks, according to Bush administration officials, diverted attention from the continuity of U.S. policy on detainees.
A year after Bush announced at a news conference that "I'd like to close Guantanamo," the camp remains open and has been expanded. Senior officials said Cheney, with few allies left, has turned back strong efforts -- by Rice, England, new Defense Secretary Robert M. Gates and former Bush speechwriter Mike Gerson, among others -- to give the president what he said he wants.
Cheney and his aides "didn't circumvent the process," one participant said. "They were just very effective in using it."
'This is a Dangerous World'
More than a year after Congress passed McCain-sponsored restrictions on the questioning of suspected terrorists, the Bush administration is still debating how far the CIA's interrogators may go in their effort to break down resistant detainees. Two officials said the vice president has deadlocked the debate.
Bush said last September that he would "work with" Congress to review "an alternative set of procedures" for "tough" -- but, he said, lawful -- interrogation. He did not promise to submit legislation or to report particulars to any oversight committee, and he has not done so.
Two questions remain, officials said. One involves techniques to be authorized now. The other is whether any technique should be explicitly forbidden.
According to participants in the debate, the vice president stands by the view that Bush need not honor any of the new judicial and legislative restrictions. His lawyer, they said, has recently restated Cheney's argument that when courts and Congress "purport to" limit the commander in chief's warmaking authority, he has the constitutional prerogative to disregard them.
If Cheney advocates a return to waterboarding, they said, they have not heard him say so. But his office has fought fiercely against an executive order or CIA directive that would make the technique illegal.
"That's just the vice president," said Gerson, the former speechwriter, referring to Cheney's October remark that "a dunk in the water" for terrorists -- a radio interviewer's term -- is "a no-brainer for me."
Gerson added: "It's principled. He's deeply conscious that this is a dangerous world, and he wants this president and future presidents to be able to deal with that. He feels very strongly about these things, and it's his great virtue and his weakness."
Staff researcher Julie Tate contributed to this report.
A Strong Push From Backstage
By Jo Becker and Barton Gellman | Washington Post Staff Writers | Tuesday, June 26, 2007; Page A01
Air Force Two touched down at the Greenbrier Valley Airport in West Virginia on Feb. 6, 2003, carrying Vice President Cheney to the annual retreat of Republican House and Senate leaders. He had come to sell them on the economic centerpiece of President Bush's first term: a $674 billion tax cut.
Cheney had spent months making sure the package contained everything he wanted. One thing was missing.
The president had accepted Cheney's diagnosis that the sluggish economy needed a jolt, overruling senior economic advisers who forecast dangerous budget deficits. But Bush rejected one of Cheney's remedies: deep reductions in the capital gains tax on investments.
The vice president "was just hot on that," said Cesar Conda, then Cheney's domestic policy adviser. "It goes to show you: He wins and he loses, and he lost on that one."
Not for long.
As the Republican lawmakers debated in a closed-door session at the Greenbrier resort, the vice president revived the argument, touting his idea as a way to energize a stock market battered by scandals such as Enron. House allies inserted Cheney's cut into their package. But that came at the expense of one of Bush's priorities: abolishing the tax on stock dividends.
Cheney has changed history more than once, earning his reputation as the nation's most powerful vice president. His impact has been on public display in the arenas of foreign policy and homeland security, and in a long-running battle to broaden presidential authority. But he has also been the unseen hand behind some of the president's major domestic initiatives.
Scores of interviews with advisers to the president and vice president, as well as with other senior officials throughout the government, offer a backstage view of how the Bush White House operates. The president is "the decider," as Bush puts it, but the vice president often serves up his menu of choices.
Cheney led a group that winnowed the president's list of potential Supreme Court nominees. Cheney resolved a crisis in the space program after the Columbia shuttle disaster. Cheney fashioned a controversial truce between the legislative and executive branches -- and averted resignations at the top of the Justice Department and the FBI -- over the right of law enforcement authorities to investigate political corruption in Congress.
And it was Cheney who served as the guardian of conservative orthodoxy on budget and tax matters. He shaped and pushed through Bush's tax cuts, blunting the influence of Federal Reserve Chairman Alan Greenspan, a longtime friend, and of Cabinet rivals he had played a principal role in selecting. He managed to overcome the president's "compassionate conservative" resistance to multiple breaks for the wealthy. He even orchestrated a decision to let a GOP senator switch parties -- giving control of the chamber to Democrats -- rather than meet the senator's demand for billions of dollars in new spending.
On the home front, the vice president is well known for leading a secretive task force on energy policy. But in a town where politicians routinely scurry for credit, Cheney more often kept his role concealed, even from top Bush advisers.
"A lot of it was a black box, and I think designedly so," said former Bush speechwriter David Frum. "It was like -- you know that experiment where you pass a magnet under the table and you see the iron filings on the top of the table move? You know there's a magnet there because of what you see happening, but you never see the magnet."
A 'More Effective Role'
When Bush tapped Cheney to be his running mate seven years ago, he chose a man who had put a great deal of thought into how a vice president can transform himself from a funeral-trotting figurehead into a center of real power.
As President Gerald R. Ford's chief of staff in the 1970s, Cheney saw firsthand how White House policies got shaped -- and how a vice president such as Nelson Rockefeller could become so marginalized as to be dumped from the ticket. Former Army secretary John O. Marsh Jr. said Cheney knew that he needed to control the process by which the president makes choices to ride "the rushing river of power" that winds through the West Wing to the Oval Office.
"Dick's major concern, one of them was, and I agree, that there needs to be a greater and more effective role for the vice president," Marsh, a longtime Cheney friend, said in an interview. "He holds the view, as do I, that the vice president should be the chief of staff in effect, that everything should run through his office."
In Bush, Cheney found the perfect partner. The president's willingness to delegate left plenty of room for his more detail-oriented vice president.
"My impression is that the president thinks that the Reagan style of leadership is best -- guiding the ship of state from high up on the mast," said former White House lawyer Bradford A. Berenson. "It seems to me that the vice president is more willing to get down in the wheelhouse below the decks."
When the space shuttle Columbia disintegrated over Texas on Feb. 1, 2003, for example, Bush was consumed with concern for the families of the seven dead astronauts. That left Cheney to make the first critical decisions about the future of manned spaceflight.
Even as the vice president and others were grappling with the invasion of Iraq, Cheney crafted a solution to the most pressing problem facing the space program, said former NASA administrator Sean O'Keefe, a Cheney protege.
With its shuttle fleet grounded, the space agency had no way to resupply the crew aboard the international space station, including two Americans. Russia was demanding $100 million to take up the slack. But Congress had barred space-related payments to Moscow unless the administration could certify that the Russians were not transferring banned technology to Iran for nuclear, biological or chemical weapons. Getting the law changed would take time, and could "open up a can of worms" with no guarantee that the result would be to the administration's liking, O'Keefe said.
The vice president's solution, he said, was to get around the law by cutting the deal as a barter. The Russians wouldn't charge the United States for the costs of flying to the space station, and in return, the Americans wouldn't charge the Russians for their share of some operating and equipment costs.
The vice president then took the lead in persuading the State Department to go along with the plan, which never came to public attention. "He helped frame how to do this without a major diplomatic dust-up," O'Keefe said.
Last year, Cheney was behind another unprecedented and controversial deal that inserted the White House into an ongoing criminal probe.
When the FBI seized files from the office of Rep. William J. Jefferson (D-La.) as part of a bribery investigation, House Republican leaders erupted. With a number of their own members under investigation for other matters, they charged that the search violated the Constitution. They demanded the return of the files.
Cheney quickly gravitated toward the House's position, aides said, but Attorney General Alberto R. Gonzales; his top deputy, Paul J. McNulty; and FBI Director Robert S. Mueller III threatened to resign if forced to hand over evidence they believed had been properly collected under a warrant.
White House Chief of Staff Joshua B. Bolten called a meeting on May 25, 2006, to resolve the political and legal crisis. The president's lawyers and congressional liaison were in the room, and so was Cheney. Once again, it was the vice president who came up with a solution, according to a participant. Cheney's plan met his goal of keeping the files from federal investigators. The files would be placed under seal for 45 days. Within hours of the meeting, Bush made Cheney's recommendation official. As often happens in government, delay was decisive. Jefferson was indicted earlier this month on 16 counts of bribery, racketeering, fraud, money laundering and obstruction of justice. But nearly half of the files remain off-limits, tied up in legal disputes.
Taking Options 'Off the Table'
Cheney's influence is manifested not just in crisis but also through his extraordinary involvement in the daily machinery of the White House.
The vice president chairs a budget review board, a panel the Bush administration created to set spending priorities and serve as arbiter when Cabinet members appeal decisions by White House budget officials. The White House has portrayed the board as a device to keep Bush from wasting time on petty disagreements, but previous administrations have seldom seen Cabinet-level disputes in that light. Cheney's leadership of the panel gives him direct and indirect power over the federal budget -- and over those who must live within it. [Read then-OMB Director Joshua Bolten's memo about the review board.]
Mitchell E. Daniels Jr., who served as Bush's budget director from 2001 to 2003 and is now governor of Indiana, said that during his tenure the number of times a Cabinet official made a direct budget appeal to Bush "was zero," which aides from previous administrations found "stunning," he added.
Daniels said he chalked that track record up to "the respect people had for the vice president." Cabinet members, he said, recognized that if the board didn't agree with them, "then the president wasn't likely to, either."
It is well known that Cheney is usually the last to speak to the president before Bush makes a decision. Less so is his role, to a degree unmatched by his predecessors, in steering debate by weighing in at the lower-level meetings where proposals are born and die.
Cheney, Bolten said, is a vocal participant at a weekly luncheon meeting of Bush's economic team, which gathers without the president. As the most senior official in the room, Cheney receives great deference from Bush's advisers.
Wise officials vet their proposals in advance. White House budget director Rob Portman, for instance, sought Cheney's counsel as he was putting together the budget for the upcoming year, using him as a "sounding board" on issues as varied as defense spending and tax reform.
"He never, ever has said to me, 'Do this.' Never. Which is interesting, because that might be the perception of how he operates," Portman said. "But it is 'What do you think of this?' Well, he's the vice president of the United States -- and obviously I'm interested in his point of view."
Perhaps more important than Cheney's influence in pushing policies is his power to stop them before they reach the Oval Office.
When Edward P. Lazear, chairman of the White House Council of Economic Advisers, broached the idea of limiting the popular mortgage tax deduction, he said he quickly dropped it after Cheney told him it would never fly with Congress. "He's a big timesaver for us in that he takes off the table a lot of things he knows aren't going to go anywhere," Lazear said.
Lazear, who is otherwise known as a fierce advocate for his views, said that he may argue a point with Cheney "for 10 minutes or so" but that in the end he is always convinced. "I can't think of a time when I have thought I was right and the vice president was wrong."
But Cheney is careful to choose which issues deserve his attention, preferring not to dissipate his influence. "Dick Cheney learned early on to say no to things that were peripheral to his primary interests or assignments," said his longtime friend David Gribbin.
Current and former White House officials say that the vice president has largely steered clear of hot-button issues such as stem cell research and Bush's "faith-based" initiative to funnel more federal money to religious groups. He is also savvy enough, they say, to retreat when the president expresses strong personal views.
Cheney sided with conservatives who wanted to urge the Supreme Court to reverse a landmark ruling that permitted affirmative action. But, former officials said, he did not press the case when the president, who as governor of Texas had run a state university system, made it clear that he intended to take a more limited and nuanced legal position.
Word of a Cheney loss seldom leaks, a trait that has further endeared him to Bush -- and that has served to exaggerate his influence. Former Cheney and Bush aides described several domestic policy defeats that never reached public notice.
Cheney shared conservative trepidations about the president's signature education initiative, the No Child Left Behind Act, which gave the federal government more control over K-12 education. He has griped privately to confidants, such as economist and CNBC host Lawrence Kudlow, about the administration's failure to control spending. And in robust internal White House discussions, he raised concerns about the cost of the administration's decision to expand Medicare to include a new multibillion-dollar drug entitlement, but bowed to the political reality that the president had to fulfill a campaign promise.
"At least in my area, he didn't have a 100 percent batting average," said Conda, the former domestic policy adviser.
In each case, however, Cheney was a loyal soldier, instrumental in helping to sell the president's policies on the Hill and to the Republican base.
"Dick once told me that our president is a 'big-government conservative,'" said former senator Phil Gramm (R-Tex.), in a recollection disputed by Cheney's office. "Now, Dick keeps his opinions to himself whenever he disagrees with the administration, as he should. But I believe that Dick is a small-government conservative."
'A Spine Quotient'
When Sen. James M. Jeffords (Vt.) threatened to bolt the GOP during negotiations over the president's 2001 tax package, senior Bush advisers and Republican senators were deeply split over whether to buy him off. It was a momentous decision -- a Jeffords defection would toss the Senate to Democratic control for the first time since 1994.
But in a contentious internal debate, the vice president forcefully argued that the administration should not capitulate by giving Jeffords the billions of dollars in special-education funding he sought, recalled O'Keefe, at the time deputy director of the Office of Management and Budget.
O'Keefe said Cheney argued that the White House should not sacrifice conservative principle in the face of Jeffords's threat by scaling back tax cuts dear to the GOP base in order to create an expensive new mandate. Gramm, who confirmed that account, said there would have been no end to such demands if the president had caved.
"The principle was 'Hell, we can't go around funding programs based on what some individual might do,'" said Gramm, who worked closely with Cheney during the negotiations.
By the end of the critical meeting, O'Keefe said, the divided group presented Cheney's view as the consensus recommendation to the president. Bush's $1.35 trillion tax cut passed, and Jeffords defected as promised.
Such stands by Cheney were not uncommon, said Bolten, the White House chief of staff. Cheney often stepped in if he sensed the administration was softening its commitment to Republican "first principles," Bolten said, and he was "a pretty vigorous voice for holding the line on spending and for holding the line on tax cuts." Longtime Cheney adviser Mary Matalin said the vice president brings a "spine quotient" to internal debates.
Cheney's power derives in part from meticulous preparation paired with a strong will to prevail. He knows what he wants, and as one rival put it, Cheney and his staff are "just ferocious negotiators."
The vice president regularly convenes a kitchen cabinet of diverse outside economic experts, often before the president is about to make a major decision. Members of the group describe a man who enjoys the nitty-gritty of economics, poring over charts of obscure data such as freight-car loadings and quizzing experts on the subtle ways the government can influence the economy.
"With the president it was much shorter. It's 'Marty, what do you think of where we stand today?'" said Martin Feldstein, a Harvard economics professor and the president and chief executive of the National Bureau of Economic Research. "It's also a less technical presentation."
R. Glenn Hubbard, Bush's former chairman of the Council of Economic Advisers, said of Cheney: "I'd have conversations with him that were at a level of detail that those with the president were not."
In the weeks following the attacks of Sept. 11, 2001, as the White House was putting together an economic recovery package, Cheney gathered his kitchen cabinet, frequently interrupting the experts as he furiously jotted notes on a stack of cards embossed with the vice presidential seal. What kind of tax cuts are needed? Cheney wanted to know. How big?
A few days later, Cheney was "on fire" when he met with the president, Cheney's chief of staff, I. Lewis "Scooter" Libby, later told Conda. Cheney had decided that the best way to shake business leaders out of their post-attack paralysis was to let them immediately write off the cost of new plants and equipment. After hearing him out, Bush made Cheney's idea a centerpiece of his plan.
In previous administrations, such initiatives typically have been generated by the Treasury Department or the White House economic team. But Cheney has made the vice president's office a hub of tax policy, enabled by the fact that "this president appears to want to have Treasury take the orders from the White House," said John H. Makin, an economist and an informal Cheney adviser.
All this put Cheney in a position to outflank some of Bush's top advisers, and even his old friend Greenspan, to shape the administration's signature tax package: the 2003 cuts that Cheney sold at the Greenbrier resort in West Virginia.
'The President Made the Call'
As far as Greenspan knew, the vice president agreed with him on the danger of the tax package Bush was contemplating. The Federal Reserve chairman worried that the sheer size of the cuts would drown the federal budget in red ink.
Cheney and Greenspan met regularly, far more often than the Fed chief met with Bush, according to interviews and Greenspan's calendar. And when the president did meet with Greenspan, Cheney was nearly always in the room.
The vice president and the Fed chairman had formed a close bond when both served in the Ford administration. The Fed chief saw the vice president as a conduit to a president he did not know nearly as well, someone he could trust to fairly present his views to Bush.
So Greenspan sent Cheney a study by one of the central bank's senior economists showing that big deficits lead to higher long-term interest rates, according to a person with firsthand knowledge. Higher rates, Greenspan believed, would wipe out any short-term benefit from a tax cut.
In subsequent meetings with the Fed chief, Cheney never took issue with the study. What Greenspan did not know was that, behind the scenes, the vice president took steps to undermine an argument that could threaten the big tax cut he favored. Conda, the vice president's aide, said Cheney asked him to critique the study. Conda attached his own memo arguing that the Fed's analytical model was flawed. He said "it wasn't my job to know" what Cheney did with the paperwork, but noted that Greenspan's study did not gain traction inside the White House.
Aside from Greenspan, Cheney had faced down opposition from many of the administration's senior economic voices, including Daniels, Treasury Secretary Paul H. O'Neill and Commerce Secretary Donald L. Evans. They believed that the economy was recovering and that a deep tax cut wasn't needed. Daniels said he worried that it would undermine the GOP message of fiscal discipline.
Cheney, however, pressed his argument that the economy needed a jump-start. He wanted not only to reduce the tax on dividends but also to cut the capital gains tax and accelerate income tax breaks for top earners, according to Daniels, Conda, Hubbard and others. Conda said Cheney subscribed to the view of supply-side economists that when government cuts taxes the economy grows, generating additional tax revenue that largely offsets the losses from lower tax rates.
The standoff came to a head in late November 2002, during a meeting in the Roosevelt Room.
O'Neill continued to oppose the tax cut on grounds that the government was moving toward "fiscal crisis," irritating Cheney. "The vice president really got a sense of where O'Neill was coming from and surmised it was a problem," Conda said. The following month, Cheney would demand O'Neill's resignation.
Bush sided with Cheney on the dividends tax but thought it would be better to eliminate it altogether. The president was cooler on the capital gains tax, according to Conda and others. And having campaigned on a platform of compassionate conservatism, he expressed doubts about giving another income tax break to the wealthiest Americans, particularly because they would benefit the most from the elimination of the dividends tax, Hubbard said.
But by the time Bush publicly announced his tax package on Jan. 7, 2003, Cheney lost on only one major count. The president included no reduction in the tax on capital gains. [Read the legislation: As first introduced in the House | As passed by Congress.]
"There was a question of priorities and how to fit things in," said Karl Rove, Bush's chief political adviser. "And ultimately the president made the call."
It was then that Cheney doubled back at the Greenbrier retreat.
"We were deciding how to proceed," recalled Rep. Adam H. Putnam (Fla.), now the third-ranking Republican in the House. "Are we going to put all our eggs in the dividends basket, or are we going to move on capital gains? As I recall, he was a very strong advocate on both counts, but particularly capital gains in terms of its potential to unleash the economy."
In the end, the House decided against eliminating the dividends tax cut, as Bush had wanted, choosing instead to just reduce the rate to make room for a capital gains cut.
Bill Thomas, the California Republican who guided the final bill to passage as chairman of the House tax-writing committee, said he and Cheney go way back and "use each other in the best sense," with the two men deciding which one will make a proposal and which will speak up in its support.
In the case of the capital gains proposal, Cheney pitched it to the Greenbrier gathering. Thomas pitched it to the White House, and he credited the vice president with persuading Bush to go along. "That," Thomas said, "is why the administration changed its position."
The vote in the Senate was 51 to 50. Cheney, exercising his only formal power under the Constitution, cast the tie-breaking vote.
Staff researcher Julie Tate contributed to this report.
Leaving No Tracks
By Jo Becker and Barton Gellman | Washington Post Staff Writers | Wednesday, June 27, 2007; Page A01
Sue Ellen Wooldridge, the 19th-ranking Interior Department official, arrived at her desk in Room 6140 a few months after Inauguration Day 2001. A phone message awaited her.
"This is Dick Cheney," said the man on her voice mail, Wooldridge recalled in an interview. "I understand you are the person handling this Klamath situation. Please call me at -- hmm, I guess I don't know my own number. I'm over at the White House."
Wooldridge wrote off the message as a prank. It was not. Cheney had reached far down the chain of command, on so unexpected a point of vice presidential concern, because he had spotted a political threat arriving on Wooldridge's desk.
In Oregon, a battleground state that the Bush-Cheney ticket had lost by less than half of 1 percent, drought-stricken farmers and ranchers were about to be cut off from the irrigation water that kept their cropland and pastures green. Federal biologists said the Endangered Species Act left the government no choice: The survival of two imperiled species of fish was at stake.
Law and science seemed to be on the side of the fish. Then the vice president stepped in.
First Cheney looked for a way around the law, aides said. Next he set in motion a process to challenge the science protecting the fish, according to a former Oregon congressman who lobbied for the farmers.
Because of Cheney's intervention, the government reversed itself and let the water flow in time to save the 2002 growing season, declaring that there was no threat to the fish. What followed was the largest fish kill the West had ever seen, with tens of thousands of salmon rotting on the banks of the Klamath River.
Characteristically, Cheney left no tracks.
The Klamath case is one of many in which the vice president took on a decisive role to undercut long-standing environmental regulations for the benefit of business.
By combining unwavering ideological positions -- such as the priority of economic interests over protected fish -- with a deep practical knowledge of the federal bureaucracy, Cheney has made an indelible mark on the administration's approach to everything from air and water quality to the preservation of national parks and forests.
It was Cheney's insistence on easing air pollution controls, not the personal reasons she cited at the time, that led Christine Todd Whitman to resign as administrator of the Environmental Protection Agency, she said in an interview that provides the most detailed account so far of her departure.
The vice president also pushed to make Nevada's Yucca Mountain the nation's repository for nuclear and radioactive waste, aides said, a victory for the nuclear power industry over those with long-standing safety concerns. And his office was a powerful force behind the White House's decision to rewrite a Clinton-era land-protection measure that put nearly a third of the national forests off limits to logging, mining and most development, former Cheney staff members said.
Cheney's pro-business drive to ease regulations, however, has often set the administration on a collision course with the judicial branch.
The administration, for example, is appealing the order of a federal judge who reinstated the forest protections after she ruled that officials didn't adequately study the environmental consequences of giving states more development authority.
And in April, the Supreme Court rejected two other policies closely associated with Cheney. It rebuffed the effort, ongoing since Whitman's resignation, to loosen some rules under the Clean Air Act. The court also rebuked the administration for not regulating greenhouse gases associated with global warming, issuing its ruling less than two months after Cheney declared that "conflicting viewpoints" remain about the extent of the human contribution to the problem.
In the latter case, Cheney made his environmental views clear in public. But with some notable exceptions, he generally has preferred to operate with stealth, aided by loyalists who owe him for their careers.
When the vice president got wind of a petition to list the cutthroat trout in Yellowstone National Park as a protected species, his office turned to one of his former congressional aides.
The aide, Paul Hoffman, landed his job as deputy assistant interior secretary for fish and wildlife after Cheney recommended him. In an interview, Hoffman said the vice president knew that listing the cutthroat trout would harm the recreational fishing industry in his home state of Wyoming and that he "followed the issue closely." In 2001 and again in 2006, Hoffman's agency declined to list the trout as threatened.
Hoffman also was well positioned to help his former boss with what Cheney aides said was one of the vice president's pet peeves: the Clinton-era ban on snowmobiling in national parks. "He impressed upon us that so many people enjoyed snowmobiling in the Tetons," former Cheney aide Ron Christie said.
With Cheney's encouragement, the administration lifted the ban in 2002, and Hoffman followed up in 2005 by writing a proposal to fundamentally change the way national parks are managed. That plan, which would have emphasized recreational use over conservation, attracted so much opposition from park managers and the public that the Interior Department withdrew it. Still, the Bush administration continues to press for expanded snowmobile access, despite numerous studies showing that the vehicles harm the parks' environment and polls showing majority support for the ban.
Hoffman, now in another job at the Interior Department, said Cheney never told him what to do on either issue -- he didn't have to.
"His genius," Hoffman said, is that "he builds networks and puts the right people in the right places, and then trusts them to make well-informed decisions that comport with his overall vision."
Robert F. Smith had grown desperate by the time he turned to the vice president for help.
The former Republican congressman from Oregon represented farmers in the Klamath basin who had relied on a government-operated complex of dams and canals built almost a century ago along the Oregon-California border to irrigate nearly a quarter-million acres of arid land.
In April 2001, with the region gripped by the worst drought in memory, the spigot was shut off.
Studies by the federal government's scientists concluded unequivocally that diverting water would harm two federally protected species of fish, violating the Endangered Species Act of 1973. The Bureau of Reclamation was forced to declare that farmers must go without in order to maintain higher water levels so that two types of suckerfish in Upper Klamath Lake and the coho salmon that spawn in the Klamath River could survive the dry spell.
Farmers and their families, furious and fearing for their livelihoods, formed a symbolic 10,000-person bucket brigade. Then they took saws and blowtorches to dam gates, clashing with U.S. marshals as water streamed into the canals that fed their withering fields, before the government stopped the flow again.
What they didn't know was that the vice president was already on the case.
Smith had served with Cheney on the House Interior Committee in the 1980s, and the former congressman said he turned to the vice president because he knew him as a man of the West who didn't take kindly to federal bureaucrats meddling with private use of public land. "He saw, as every other person did, what a ridiculous disaster shutting off the water was," Smith said.
Cheney recognized, even before the shut-off and long before others at the White House, that what "at first blush didn't seem like a big deal" had "a lot of political ramifications," said Dylan Glenn, a former aide to President Bush.
Bush and Cheney couldn't afford to anger thousands of solidly Republican farmers and ranchers during the midterm elections and beyond. The case also was rapidly becoming a test for conservatives nationwide of the administration's commitment to fixing what they saw as an imbalance between conservation and economics.
"What does the law say?" Christie, the former aide, recalled the vice president asking. "Isn't there some way around it?"
Next, Cheney called Wooldridge, who was then deputy chief of staff to Interior Secretary Gale A. Norton and the woman handling the Klamath situation.
Aides praise Cheney's habit of reaching down to officials who are best informed on a subject he is tackling. But the effect of his calls often leads those mid-level officials scrambling to do what they presume to be his bidding.
That's what happened when a mortified Wooldridge finally returned the vice president's call, after receiving a tart follow-up inquiry from one of his aides. Cheney, she said, "was coming from the perspective that the farmers had to be able to farm -- that was his concern. The fact that the vice president was interested meant that everyone paid attention."
Cheney made sure that attention did not wander. He had Wooldridge brief his staff weekly and, Smith said, he also called the interior secretary directly.
"For months and months, at almost every briefing it was 'Sir, here's where we stand on the Klamath basin,'" recalled Christie, who is now a lobbyist. "His hands-on involvement, it's safe to say, elevated the issue."
'Let the Water Flow'
There was, as it happened, an established exemption to the Endangered Species Act.
A rarely invoked panel of seven Cabinet officials, known informally as the "God Squad," is empowered by the statute to determine that economic hardship outweighs the benefit of protecting threatened wildlife. But after discussing the option with Smith, Cheney rejected that course. He had another idea, one that would not put the administration on record as advocating the extinction of endangered or threatened species.
The thing to do, Cheney told Smith, was to get science on the side of the farmers. And the way to do that was to ask the National Academy of Sciences to scrutinize the work of the federal biologists who wanted to protect the fish.
Smith said he told Cheney that he thought that was a roll of the dice. Academy panels are independently appointed, receive no payment and must reach a conclusion that can withstand peer review.
"It worried me that these are individuals who are unreachable," Smith said of the academy members. But Cheney was firm, expressing no such concerns about the result. "He felt we had to match the science."
Smith also wasn't sure that the Klamath case -- "a small place in a small corner of the country" -- would meet the science academy's rigorous internal process for deciding what to study. Cheney took care of that. "He called them and said, 'Please look at this, it's important,'" Smith said. "Everyone just went flying at it."
William Kearney, a spokesman for the National Academies, said he was unaware of any direct contact from Cheney on the matter. The official request came from the Interior Department, he said.
It was Norton who announced the review, and it was Bush and his political adviser Karl Rove who traveled to Oregon in February 2002 to assure farmers that they had the administration's support. A month later, Cheney got what he wanted when the science academy delivered a preliminary report finding "no substantial scientific foundation" to justify withholding water from the farmers.
There was not enough clear evidence that proposed higher lake levels would benefit suckerfish, the report found. And it hypothesized that the practice of releasing warm lake water into the river during spawning season might do more harm than good to the coho, which thrive in lower temperatures. [Read the report.]
Norton flew to Klamath Falls in March to open the head gate as farmers chanted "Let the water flow!" And seizing on the report's draft findings, the Bureau of Reclamation immediately submitted a new decade-long plan to give the farmers their full share of water.
When the lead biologist for the National Marine Fisheries Service team critiqued the science academy's report in a draft opinion objecting to the plan, the critique was edited out by superiors and his objections were overruled, he said. The biologist, Michael Kelly, who has since quit the federal agency, said in a whistle-blower claim that it was clear to him that "someone at a higher level" had ordered his agency to endorse the proposal regardless of the consequences to the fish.
Months later, the first of an estimated 77,000 dead salmon began washing up on the banks of the warm, slow-moving river. Not only were threatened coho dying -- so were chinook salmon, the staple of commercial fishing in Oregon and Northern California. State and federal biologists soon concluded that the diversion of water to farms was at least partly responsible.
Fishermen filed lawsuits and courts ruled that the new irrigation plan violated the Endangered Species Act. Echoing Kelly's objections, the U.S. Court of Appeals for the 9th Circuit observed that the 10-year plan wouldn't provide enough water for the fish until year nine. By then, the 2005 opinion said, "all the water in the world" could not save the fish, "for there will be none to protect." In March 2006, a federal judge prohibited the government from diverting water for agricultural use whenever water levels dropped beneath a certain point.
Last summer, the federal government declared a "commercial fishery failure" on the West Coast after several years of poor chinook returns virtually shut down the industry, opening the way for Congress to approve more than $60 million in disaster aid to help fishermen recover their losses. That came on top of the $15 million that the government has paid Klamath farmers since 2002 not to farm, in order to reduce demand.
The science academy panel, in its final report, acknowledged that its draft report was "controversial," but it stood by its conclusions. Instead of focusing on the irrigation spigot, it recommended broad and expensive changes to improve fish habitat. [Read the final report]
"The farmers were grateful for our decision, but we made the decision based on the scientific outcome," said the panel chairman, William Lewis, a biologist at the University of Colorado at Boulder. "It just so happened the outcome favored the farmers."
But J.B. Ruhl, another member of the panel and a Florida State University law professor who specializes in endangered species cases, said the Bureau of Reclamation went "too far," making judgments that were not backed up by the academy's draft report. "The approach they took was inviting criticism," Ruhl said, "and I didn't think it was supported by our recommendations."
Whitman, then head of the EPA, was on vacation with her family in Colorado when her cellphone rang. The vice president was on the line, and he was clearly irked.
Why was the agency dragging its feet on easing pollution rules for aging power and oil refinery plants?, Cheney wanted to know. An industry that had contributed heavily to the Bush-Cheney campaign was clamoring for change, and the vice president told Whitman that she "hadn't moved it fast enough," she recalled.
Whitman protested, warning Cheney that the administration had to proceed cautiously. It was August 2001, just seven months into the first term. We need to "document this according to the books," she said she told him, "so we don't look like we are ramrodding something through. Because it's going to court."
But the vice president's main concern was getting it done fast, she said, and "doing it in a way that didn't hamper industry."
At issue was a provision of the Clean Air Act known as the New Source Review, which requires older plants that belch millions of tons of smog and soot each year to install modern pollution controls when they are refurbished in a way that increases emissions.
Industry officials complained to the White House that even when they had merely performed routine maintenance and repairs, the Clinton administration hit them with violations and multimillion-dollar lawsuits. Cheney's energy task force ordered the EPA to reconsider the rule.
Whitman had already gone several rounds with the vice president over the issue.
She and Cheney first got to know each other in one of the Nixon administration's anti-poverty agencies, working under Donald H. Rumsfeld. When Cheney offered her the job in the Bush administration, the former New Jersey governor marveled at how far both had come. But as with Treasury Secretary Paul H. O'Neill, another longtime friend who owed his Cabinet post to Cheney, Whitman's differences with the vice president would lead to her departure.
Sitting through Cheney's task force meetings, Whitman had been stunned by what she viewed as an unquestioned belief that EPA's regulations were primarily to blame for keeping companies from building new power plants. "I was upset, mad, offended that there seemed to be so much head-nodding around the table," she said.
Whitman said she had to fight "tooth and nail" to prevent Cheney's task force from handing over the job of reforming the New Source Review to the Energy Department, a battle she said she won only after appealing to White House Chief of Staff Andrew H. Card Jr. This was an environmental issue with major implications for air quality and health, she believed, and it shouldn't be driven by a task force primarily concerned with increasing production.
Whitman agreed that the exception for routine maintenance and repair needed to be clarified, but not in a way that undercut the ongoing Clinton-era lawsuits -- many of which had merit, she said.
Cheney listened to her arguments, and as usual didn't say much. Whitman said she also met with the president to "explain my concerns" and to offer an alternative.
She wanted to work a political trade with industry -- eliminating the New Source Review in return for support of Bush's 2002 "Clear Skies" initiative, which outlined a market-based approach to reducing emissions over time. But Clear Skies went nowhere. "There was never any follow-up," Whitman said, and moreover, there was no reason for industry to embrace even a modest pollution control initiative when the vice president was pushing to change the rules for nothing.
She decided to go back to Bush one last time. It was a crapshoot -- the EPA administrator had already been rolled by Cheney when the president reversed himself on a campaign promise to limit carbon dioxide emissions linked to global warming -- so she came armed with a political argument.
Whitman said she plunked down two sets of folders filled with news clips. This one, she said, pointing to a stack about 2-1/2 inches thick, contained articles, mostly negative, about the administration's controversial proposal to suspend tough new standards governing arsenic in drinking water. And this one, she said as she pointed to a pile four or five times as thick, are the articles about the rules on aging power plants and refineries -- and the administration hadn't even done anything yet.
"If you think arsenic was bad," she recalled telling Bush, "look at what has already been written about this."
But Whitman left the meeting with the feeling that "the decision had already been made." Cheney had a clear mandate from the president on all things energy-related, she said, and while she could take her case directly to Bush, "you leave and the vice president's still there. So together, they would then shape policy."
What happened next was "a perfect example" of that, she said.
The EPA sent rule revisions to White House officials. The read-back was that they weren't happy and "wanted something that would be more pro-industry," she said.
The end result, which she said was written at the direction of the White House and announced in August 2003, vastly broadened the definition of routine maintenance. It allowed some of the nation's dirtiest plants to make major modifications without installing costly new pollution controls.
By that time, Whitman had already announced her resignation, saying she wanted to spend more time with her family. But the real reason, she said, was the new rule.
"I just couldn't sign it," she said. "The president has a right to have an administrator who could defend it, and I just couldn't."
A federal appeals court has since found that the rule change violated the Clean Air Act. In their ruling, the judges said that the administration had redefined the law in a way that could be valid "only in a Humpty-Dumpty world."
Staff researcher Julie Tate contributed to this report.