This article first appeared in the St. Louis Beacon, Sept. 7, 2011 - WASHINGTON - When former Vice President Dick Cheney predicted that his score-settling memoir, "In My Time," would "make heads explode," he wasn't kidding.
Colin Powell took aim, complaining about its "cheap shots." Another former secretary of state, Condoleeza Rice, decried its "attack on my integrity." But former Attorney General John D. Ashcroft has so far declined to respond to a section of Cheney's book involving the Missourian that others have described as "rewriting history."
In question is Cheney's take on the disruptive visit by two top White House officials to a hospital intensive care unit in March 2004 to try to convince the severely ill Ashcroft to sign documents reauthorizing a controversial, top-secret domestic surveillance program championed by Cheney after the 9/11 attacks.
Boasting that the domestic spying program was "one of the things of which I am proudest," the combative Cheney writes in his memoir that he "had little patience" with doubts by Ashcroft, the head of the FBI and other key Justice Department officials about the constitutionality of certain aspects of the program -- concerns that spurred resignation threats that later convinced President George W. Bush to make some changes.
The hospital incident and the resignation threats are regarded by some as crucial junctures in Bush's first term that led to an erosion of his confidence in both Cheney and Ashcroft, who resigned as attorney general after Bush's 2004 reelection. The former Missouri governor and U.S. senator now heads the Ashcroft Group in Washington.
In his book's account of the hospital incident that one Cheney biographer calls "less than honest," Cheney asserts that the gravely ill Ashcroft had told Bush in a phone conversation at the hospital that he would sign the surveillance renewal documents -- and then later reneged. Cheney also implies incorrectly that the White House had been unaware that Ashcroft had signed over his powers to his deputy while in the hospital.
The account seems to conflict with parts of Bush's own recollections, in his 2010 memoir "Decision Points," that portray the president as demanding "Where the hell is Ashcroft?" and claiming to be "blindsided" by key aides who did not fully brief him on the attorney general's illness and his reluctance to sign the surveillance-renewal documents.
This week, a spokesman for Ashcroft told the Beacon that the former attorney general would not comment on Cheney's book. But testimony at a 2007 Senate Judiciary Committee hearing, an inspector general's report and other accounts of the hospital incident indicate that some details of the former vice president's version are questionable.
Barton Gellman, a Pulitzer Prize-winning writer and author of a Cheney biography, "Angler: The Cheney Vice Presidency," writes in this week's issue of Time that Cheney's memoir amounts to "a war on history, rewriting the public record with lawyerly arguments that rest on truncated facts and dubious evidence."
Cheney's Version of Ashcroft Dispute
The secret warrantless surveillance program, first approved by Bush after the 9/11 attacks but not directly acknowledged until years later, allowed the National Security Agency to monitor e-mails and telephone calls between the United States and overseas if one party was believed linked to terrorist groups.
While the Justice Department had not objected to the eavesdropping program up to that point, a review by the department's Office of Legal Counsel early in 2004 raised concerns about whether parts of it were legal. Ashcroft's deputy, James B. Comey, later told a Senate panel that Ashcroft was briefed on March 4, 2004, about the "concerns as to our ability to certify [the program's] legality," and he agreed that some changes should be made.
Later that day, Ashcroft was rushed to the emergency room of George Washington University Hospital with severe stomach pains, later diagnosed as acute gallstone pancreatitis and requiring emergency gall bladder surgery. Writing later (in his 2006 book, "Never Again: Securing America and Restoring Justice"), Ashcroft said he signed over his responsibilities that day to his deputy, Comey, because "I was in no position to exercise judgment or to make decisions on behalf of the U.S. government." Ashcroft's office informed White House officials and sent over the documents within a day.
In his memoir, Cheney writes that Bush "called the attorney general, who was in George Washington University hospital in Washington [on March 10, 2004] and explained that the program was going to lapse without Department of Justice approval. The attorney general said that he would sign the documents, and the president asked [Chief of Staff] Andy Card and [White House Counsel] Al Gonzales to take the package to him.
"[They] drove to the hospital, and Card and Gonzales went into the room, where they found Deputy Attorney General Comey already present. It became immediately clear that Ashcroft had changed his mind. He said he would not sign the documents. He also indicated that, because of health issues, he had delegated all the responsibilities of his office to Comey."
Clearly upset with Ashcroft's doubts, Cheney writes: "I had little patience with what I saw happening. The program had been in place more than two years, and the attorney general had approved it some 20 times" during that period.
The three important details that experts question in Cheney's version are his assertions that Bush actually talked with Ashcroft at the hospital; that the ailing Ashcroft said he would sign the documents to certify that the surveillance was lawful; and that Card and Gonzales were surprised that Ashcroft had transferred his authority to Comey.
A 2009 inspector general's report on the history and legality of what was called "the President's Surveillance Program" cites Ashcroft's FBI security detail as noting that Ashcroft's wife, Janet, had followed doctor's orders and declined to put through a call from Bush. Also, Gellman writes that Comey and four other officials told him that Janet Ashcroft had blocked two efforts by White House officials to reach the attorney general while he was in the intensive care unit.
[The IG report says, on page 24, that: "According to notes from Ashcroft's FBI security detail, at 6:20 p.m. that evening Card called the hospital and spoke with an agent in Ashcroft's security detail, advising him that President Bush would be calling shortly to speak with Ashcroft. Ashcroft's wife told the agent that Ashcroft would not accept the call. Ten minutes later, the agent called Ashcroft's chief of staff . . . to request that [he] speak with Card about the president's intention to call Ashcroft. The agent conveyed . . . Mrs. Ashcroft's desire that no calls be made to Ashcroft for another day or two. However, at 6:45 p.m., Card and the president called the hospital and, according to the agent's notes, 'insisted on speaking [with Attorney General Ashcroft].' According to the agent's notes, Mrs. Ashcroft took the call from Card and the president and was informed that Gonzales and Card were coming to the hospital."]
Gellman writes in Time that he questions Cheney's assertion that Bush was able to talk with Ashcroft by phone. "Cheney would have readers believe instead that the president discussed a code-word classified intelligence program on an open phone line and that Ashcroft was lucid and that he reversed his position twice within an hour." Gellman also writes that Ashcroft at the time "was drifting in and out of consciousness." Both Comey and FBI Director Robert S. Mueller have described Ashcroft at that point as being heavily sedated and barely articulate.
In fact, Mueller -- who visited Ashcroft shortly after the departure of Card and Gonzales -- later wrote in his notes: "AG in chair; is feeble, barely articulate, clearly stressed."
And there are several documents that contradict Cheney's implication that Card and Gonzales were unaware before the hospital visit that Ashcroft had signed over his powers to Comey days earlier. Aside from the Justice Department's notification to the White House counsel and chief of staff's offices, CNN and other news outlets had reported that Comey was acting attorney general. Also, the inspector general report said Comey had taken part in several White House meetings in that capacity.
According to a Washington Post account of Comey's testimony at the 2007 Senate hearing, the sickbed visit was part of a showdown between Justice Department and the White House officials that Comey said was resolved only when Bush later overruled Gonzales and Card. One reason for Bush's decision, he testified, was that Ashcroft, Comey, FBI Director Mueller and their top aides had prepared a mass resignation.
"I was angry" during the hospital confrontation, Comey testified, according to a May 2007 Washington Post article about the Senate hearing. "I thought I just witnessed an effort to take advantage of a very sick man, who did not have the powers of the attorney general because they had been transferred to me."
Facing the threat of more than a dozen resignations, Bush wrote in his memoir that he made the decision -- against Cheney's advice -- to make the requested changes in the warantless eavesdropping program. "I was willing to defend the powers of the presidency," Bush wrote, "but not at any cost.... It wouldn't give me much satisfaction to know I was right in the legal principles while my administration imploded."
Cheney offers a somewhat different take, writing that "faced with threats of resignation, the president decided to alter the NSA program, even though he and his advisers were confident of his constitutional authority to continue the program unchanged."
Describing the "Terrorist Surveillance Program" as "one of the most important success stories in the history of American intelligence," Cheney writes that "this program is one of the things of which I am proudest. I know it saved lives and prevented attacks. If I had it to do all over again, I would, in a heartbeat."
Ashcroft Avoids Discussing Hospital Incident
For his part, Ashcroft has seldom discussed the details of the hospital confrontation, declining even to talk with the inspectors general about the incident and glossing over the hospital incident in his books.
In an interview in December, Ashcroft told the Beacon -- when asked about Bush's "Where the hell is Ashcroft?" account -- that "frankly, the White House was informed" about the Justice Department's objections to renewing the surveillance program without changes. "But he [Bush] may not have been" fully briefed by his aides before the hospital incident, Ashcroft said.
As for why he signed over his authority while being treated for acute pancreatitis, Ashcroft told the Beacon that "given the circumstances of potential jeopardy to the U.S. to have an attorney general who is not in full control of his capacities would be" wrong.
In the interview, Ashcroft played down the confrontation. "It's conceded that there was a disagreement between White House lawyers and Justice Department lawyers. What's so unusual about that? That's what lawyers are for," he told the Beacon.
"No. 2: That it was an impasse that couldn't be broken, and it was raised to the president for a decision as to which interpretation of the law would be embraced. And No. 3: Ultimately, the position that was vindicated -- and that was followed by the administration -- was the position of the experienced people at the Justice Department.
"What's wrong with that picture?" Ashcroft asked. "You have attorneys that disagree, you have the issues of disagreement raised to the president, and he decides to go with long-term experts at the Justice Department."