[Congressional Record (Bound Edition), Volume 154 (2008), Part 14]
[Senate]
[Pages 19370-19378]
[From the U.S. Government Publishing Office, www.gpo.gov]




                            CONSTITUTION DAY

  Mr. BYRD. Mr. President, I think that September 17 should be honored 
equally with the Fourth of July. Both dates mark bedrock, fundamentally 
important events in the life of our country. Most Americans know that 
July 4, 1776, marks the signing of the Declaration of Independence, but 
far fewer could say what is so important about September 17.
  I am sure that you are not scratching your head over this date, but 
perhaps

[[Page 19371]]

some who are listening are doing just that. September 17--does it mark 
the end of the American Revolution? Was it the date of George 
Washington's inauguration? Did Christopher Columbus spot land or the 
passengers of the Mayflower disembark on this date? The answer to all 
of the above is no. Those are important historical events, to be sure, 
but none of those dates reaches out to touch the daily lives in as many 
ways as September 17.
  On September 17, 1787, the U.S. Constitution was signed. Our great 
national experiment in representative democracy began nearly 2 years 
later with the approval and entry into force of the Constitution on 
March 4, 1789, after New Hampshire became the ninth State to ratify it. 
September 17, 1787, however, marks the ``miracle in Philadelphia'' when 
the Constitutional Convention gave birth to its masterpiece.
  We all know that the Declaration of Independence describes in soaring 
oratory the grand goals for the new Republic, chief among them the 
``life, liberty and the pursuit of happiness'' that most people 
recognize. It is also full of more specific examples of things the 
Founders could no longer tolerate, such as taxation without 
representation, having British troops quartered in private homes, and 
lack of access to fair trials. In the Constitution, the Founders 
created the structures of government to implement both the grand 
visions of a free republic and to prevent the abuses of government they 
had suffered under British rule and outlined in the Declaration. As a 
result, the Constitution generally makes for less compelling reading 
material than the Declaration of Independence. It is not full of 
stirring prose, but rather, it is like an assembly and repair manual, 
straightforward and commonsense. Yet it supports the framework for 
freedom and justice. Its words, and those of its amendments, are as 
critically important to every American as instructions on how to 
operate a lifeboat are to the passengers of a storm-tossed ship.
  The Constitutional Convention that met in Philadelphia managed to 
build an entire government in just seven articles and a preamble. One 
article for the legislative branch, one for the executive branch, one 
for the judicial branch, one for the States, one for the amendment 
process, one to define Federal power, and one to set forth the 
requirements for ratification--the Constitution is shorter than many 
instruction manuals for new cars, even if you add the 27 amendments. 
Yet, for over 200 years, the Constitution and the Government it created 
have overcome the challenges of insurrection, war, depression, growth, 
and technologies that could never have been anticipated by the Founding 
Fathers.
  This fall and winter, Americans will again witness their Constitution 
in action. We will elect a new President and many new Members of the 
House and Senate as well. Through the processes outlined in the 
Constitution and honed through years of practice, the Nation will 
peacefully transition to a new government. It seems routine to us, but 
the peaceful transition of government is a precious thing. Our system 
of checks and balances is a precious thing.
  On September 17, I hope that all Americans who love our country and 
cherish our flag will take just a few minutes to read and think about 
our remarkable Constitution. Keep it close to your heart, as I do.
  Mr. President, I ask unanimous consent to have printed in the Record 
a Washington Post article entitled ``Cheney Shielded Bush From 
Crisis.''
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

               [From the Washington Post Sept. 15, 2008]

                    Cheney Shielded Bush From Crisis

                          (By Barton Gellman)

       Vice President Cheney convened a meeting in the Situation 
     Room at 3 p.m. on Wednesday, March 10, 2004, with just one 
     day left before the warrantless domestic surveillance program 
     was set to expire. Around him were National Security Agency 
     Director Michael V. Hayden, White House counsel Alberto R. 
     Gonzales and the Gang of Eight--the four ranking members of 
     the House and the Senate, and the chairmen and vice chairmen 
     of the intelligence committees.
       Even now, three months into a legal rebellion at the 
     Justice Department, President Bush was nowhere in the 
     picture. He was stumping in the battleground state of Ohio, 
     talking up the economy.
       With a nod from Cheney, Hayden walked through the program's 
     vital mission. Gonzales said top lawyers at the NSA and 
     Justice had green-lighted the program from the beginning. Now 
     Attorney General John D. Ashcroft was in the hospital, and 
     James B. Comey, Ashcroft's deputy, refused to certify that 
     the surveillance was legal.
       That was misleading at best. Cheney and Gonzales knew that 
     Comey spoke for Ashcroft as well. They also knew, but chose 
     not to mention, that Jack L. Goldsmith, chief of the Office 
     of Legal Counsel at Justice, had been warning of major legal 
     problems for months.
       More than three years later, Gonzales would testify that 
     there was ``consensus in the room'' from the lawmakers, ``who 
     said, `Despite the recommendation of the deputy attorney 
     general, go forward with these very important intelligence 
     activities.' '' By this account--disputed by participants 
     from both parties--four Democrats and four Republicans 
     counseled Cheney to press on with a program that Justice 
     called illegal.
       In fact, Cheney asked the lawmakers a question that came 
     close to answering itself. Could the House and Senate amend 
     surveillance laws without raising suspicions that a new 
     program had been launched? The obvious reply became a new 
     rationale for keeping Congress out.
       The Bush administration had no interest in changing the 
     law, according to U.S. District Judge Royce C. Lamberth, 
     chief of the federal government's special surveillance court 
     when the warrantless eavesdropping began.
       ``We could have gone to Congress, hat in hand, the judicial 
     branch and the executive together, and gotten any statutory 
     change we wanted in those days, I felt like,'' he said in an 
     interview. ``But they wanted to demonstrate that the 
     president's power was supreme.''

                           *   *   *   *   *

       Late that Wednesday afternoon, Bush returned from 
     Cleveland. In early evening, the phone rang at the makeshift 
     FBI command center at George Washington University Medical 
     Center, where Ashcroft remained in intensive care. According 
     to two officials who saw the FBI logs, the president was on 
     the line. Bush told the ailing Cabinet chief to expect a 
     visit from Gonzales and White House Chief of Staff Andrew H. 
     Card Jr.
       A Senate hearing in 2007 described some of what happened 
     next. But much of the story remained untold.
       Alerted by Ashcroft's chief of staff, Comey, Goldsmith and 
     FBI Director Robert S. Mueller III raced toward the hospital, 
     abandoning double-parked vehicles and running up a stairwell 
     as fast as their legs could pump.
       Comey reached Ashcroft's bedside first. Goldsmith and his 
     colleague Patrick F. Philbin were close behind. Now came Card 
     and Gonzales, holding an envelope. If Comey would not sign 
     the papers, maybe Ashcroft would.
       The showdown with the vice president the day before had 
     been excruciating, the pressure ``so great it could crush you 
     like a grape,'' Comey said. This was worse.
       Was Comey going to sit there and watch a barely conscious 
     man make his mark? On an order that he believed, and knew 
     Ashcroft believed, to be unlawful?
       Unexpectedly, Ashcroft roused himself. Previous accounts 
     have said he backed his deputy. He did far more than that. 
     Ashcroft told the president's men he never should have 
     certified the program in the first place.
       ``You drew the circle so tight I couldn't get the advice 
     that I needed,'' Ashcroft said, according to Comey. He knew 
     things now, the attorney general said, that he should have 
     been told before. Spent, he sank back in his bed.
       Mueller arrived just after Card and Gonzales departed. He 
     shared a private moment with Ashcroft, bending over to hear 
     the man's voice.
       ``Bob, I'm struggling,'' Ashcroft said.
       ``In every man's life there comes a time when the good Lord 
     tests him,'' Mueller replied. ``You have passed your test 
     tonight.''

                           *   *   *   *   *

       Goldsmith was out the door. He telephoned Ed Whelan, his 
     deputy, who was at home bathing his children.
       ``You've got to get into the office now,'' Goldsmith said. 
     ``Please draft a resignation letter for me. I can't tell you 
     why.''
       All hell was breaking loose at Justice. Lawyers streamed 
     back from the suburbs, converging on the fourth-floor 
     conference room. Most of them were not cleared to hear the 
     details, but a decision began to coalesce: If Comey quit, 
     none of them were staying.
       At the FBI, they called Mueller ``Bobby Three Sticks,'' 
     playfully tweaking the Roman numerals in his fancy 
     Philadelphia name. Late that evening, word began to spread. 
     It wasn't only Comey. Bobby Three Sticks was getting ready to 
     turn in his badge.
       Justice had filled its top ranks with political loyalists. 
     They hoped to see Bush reelected. Had anyone explained to the 
     president what was at stake?
       Whelan pulled out his BlackBerry. He fired off a message to 
     White House staff secretary

[[Page 19372]]

     Brett Kavanaugh, a friend whose position gave him direct 
     access to Bush.
       ``I knew zilch about what the matter was, but I did know 
     that lots of senior DOJ folks were on the verge of 
     resigning,'' Whelan said in an e-mail, declining to discuss 
     the subject further. ``I thought it important to make sure 
     that the president was aware of that situation so that he 
     could factor it in as he saw fit.''
       Kavanaugh had no more idea than Whelan, but he passed word 
     to Card.
       The timing was opportune. Just about then, around 11 p.m., 
     Comey responded to an angry summons from the president's 
     chief of staff. Whatever Card was planning to say, he had 
     calmed down suddenly.
       What was all this he heard, Card asked, about quitting?
       ``I don't think people should try to get their way by 
     threatening resignations,'' Comey replied. ``If they find 
     themselves in a position where they're not comfortable 
     continuing, then they should resign.''
       ``He obviously got the gist of what I was saying,'' Comey 
     recalled.
       It was close to midnight when Comey got home, long past the 
     president's bedtime. Bush had yet to learn that his 
     government was coming apart.

                           *   *   *   *   *

       Trouble was spreading. The FBI's general counsel, Valerie 
     E. Caproni, and her CIA counterpart, Scott W. Mueller, told 
     colleagues they would leave if the president reauthorized the 
     program over Justice Department objections.
       Assistant Attorney General Christopher A. Wray, who ran 
     Justice's criminal division, stopped Comey in a hallway.
       ``Look, I don't know what's going on, but before you guys 
     all pull the rip cords, please give me a heads-up so I can 
     jump with you,'' he said.
       James A. Baker, the counselor for intelligence, thought 
     hard about jumping, too. Early on, he got wind of the 
     warrantless eavesdropping and forced the White House to 
     disclose it to Lamberth. Later, Baker told Lamberth's 
     successor that he could not vouch that the Bush 
     administration was honoring its promise to keep the chief 
     surveillance judge fully informed.
       ``I was determined to stay there and fight for what I 
     thought was right,'' Baker said in an interview, declining to 
     say what the fight was about, on or off the record. He had 
     obligations, he said, to the lawyers who worked for him in 
     the Office of Intelligence Policy and Review. ``If it had 
     come to this, if people were willing to go to the mat and 
     tolerate the attorney general and deputy attorney general 
     resigning, that's pretty serious. God knows what else they 
     would have come up with.''

                           *   *   *   *   *

       At the White House on Thursday morning, the president moved 
     in a bubble so tight that hardly any air was getting in. It 
     was March 11, decision day. If Bush reauthorized the program, 
     he would have no signature from the attorney general. By now 
     that was nowhere near the president's biggest problem.
       Many of the people Bush trusted most were out of the 
     picture. Karl Rove was not cleared for the program. Neither 
     was Dan Bartlett or Karen Hughes.
       National security adviser Condoleezza Rice had the 
     clearance, but Cheney did not invite her to the meetings that 
     mattered.
       Bush gave a speech to evangelicals that morning and left 
     the White House for an after-lunch fundraiser in New York. In 
     whatever time he took to weigh his options, the president had 
     only Cheney, Card and Gonzales to advise him.
       The vice president knew exactly where he stood, unswerving 
     in his commitment to keep the program just as it was. 
     Gonzales later told two confidants that he had broken with 
     David S. Addington, Cheney's lawyer, urging Bush to find 
     common ground with Justice. Card, too, told colleagues that 
     he had urged restraint.
       ``My job was to communicate with the president about the 
     peripheral vision, not just the tunnel vision of the 
     moment,'' he said, deflecting questions about the details.
       Did peripheral vision mean a broader view of the 
     consequences?
       ``Yes,'' Card replied. ``It was like--I don't want to limit 
     it to this particular matter, but that's part of a chief of 
     staff's job. A lot of people who work in the White House have 
     tunnel vision, and not an awful lot of people have peripheral 
     vision. And I think the chief of staff is one of the people 
     who should have peripheral vision.''
       Card didn't really need the corner of his eye to see a 
     disaster at hand. Even so, Bush didn't know what his 
     subordinates knew that Thursday morning.
       Cheney, Addington, Card and Gonzales had plenty of data. 
     Card had heard the news directly from Comey the night before. 
     On Thursday, the FBI director delivered much the same 
     warning.
       For Cheney, it didn't matter much whether one official or 
     10 or 20 took a walk. Maybe they were bluffing, maybe not. 
     The principle was the same: Do what has to be done.
       ``The president of the United States is the chief law 
     enforcement officer--that was the Cheney view,'' said 
     Bartlett, Bush's counselor, who was later briefed into the 
     program and the events of the day. ``You can't let 
     resignations deter you if you're doing what's right.''
       Cheney and Addington ``were ready to go to the mat,'' he 
     said, and the vice president's position boiled down to this: 
     `` `That's why we're leaders, that's why we're here. Take the 
     political hit. You've got to do it.' ''

                           *   *   *   *   *

       Addington opened the code-word-classified file on his 
     computer. He had a presidential directive to rewrite.
       It has been widely reported that Bush executed the March 11 
     order with a blank space over the attorney general's 
     signature line. That is not correct. For reasons both 
     symbolic and practical, the vice president's lawyer could not 
     tolerate an empty spot where a mutinous subordinate should 
     have signed. Addington typed a substitute signature line: 
     ``Alberto R. Gonzales.''
       What Addington wrote for Bush that day was more 
     transcendent than that. He drew up new language in which the 
     president relied on his own authority to certify the program 
     as lawful. Bush expressly overrode the Justice Department and 
     any act of Congress or judicial decision that purported to 
     constrain his power as commander in chief. Only Richard M. 
     Nixon, in an interview after leaving the White House in 
     disgrace, claimed authority so nearly unlimited.
       The specter of future prosecutions hung over the program, 
     now that Justice had ruled it illegal.
       ``Pardon was in the air,'' said one of the lawyers 
     involved.
       It was possible to construct a case, he said, in which 
     those who planned and carried out the program were engaged in 
     a criminal conspiracy. That would be tendentious, this lawyer 
     believed, but with a change of government it could not be 
     ruled out.
       ``I'm sure when we leave office we're all going to be 
     hauled up before congressional committees and grand juries,'' 
     Addington told one colleague in disgust.

                           *   *   *   *   *

       Bush signed the directive before leaving for New York 
     around lunchtime on Thursday, March 11, 2004.
       Comey got word a couple of hours later. He sat down and 
     typed a letter.
       ``Over the last two weeks . . . I and the Department of 
     Justice have been asked to be part of something that is 
     fundamentally wrong,'' he wrote. ``As we have struggled over 
     these last days to do the right thing, I have never been 
     prouder of the Department of Justice or of the Attorney 
     General. Sadly, although I believe this has been one of the 
     institution's finest hours, we have been unable to right that 
     wrong. . . . Therefore, with a heavy heart and undiminished 
     love of my country and my Department, I resign as Deputy 
     Attorney General of the United States, effective 
     immediately.''
       David Ayres, Ashcroft's chief of staff, pleaded with Comey 
     to wait a few days. He was certain that Ashcroft would want 
     to quit alongside him. Comey agreed to hold his letter 
     through the weekend.
       Bush was not a man to second-guess himself. By Friday 
     morning, he would need new facts to save him. Somebody, 
     finally, would have to tell him something.
       It was Rice, largely in the dark herself, who threw the 
     president a lifeline. She had a few minutes alone with him, 
     shortly before 7:30 a.m., on the day after he renewed the 
     surveillance order. She told Bush about Comey's agitated 
     approach, the day before, to Frances Fragos Townsend, the 
     deputy national security adviser for combating terrorism. 
     This was no way to keep a secret.
       ``It was a compartmented issue,'' Rice recalled in an 
     interview. ``Obviously, there was a security issue here and 
     not just a legal one, because you didn't want this sort of 
     bumping around.''
       Rice made a suggestion.
       Comey is ``a reasonable guy,'' she told the president. 
     ``You really need to make sure that you are hearing these 
     folks out.''
       An hour later, Comey and Robert Mueller arrived at the 
     White House for the regular 8:30 terrorism briefing. They had 
     a lot to cover: Bombs aboard commuter trains in Madrid had 
     killed 191 people.
       Both men told aides that this would be their last day in 
     government. There would be no door-slamming, but the 
     president had made his choice and they had made theirs.
       Bush stood as the meeting ended, crossing behind Cheney's 
     chair. Comey moved in the opposite direction, on his way out. 
     He had nearly reached the grandfather clock at the door, two 
     witnesses said, when the president said, ``Jim, can I talk to 
     you for a minute?''
       Bush nodded toward the private dining room a few steps from 
     his desk, the one he shared with Cheney once a week. This 
     time the vice president was not invited.
       ``I'll wait for you downstairs,'' Mueller told Comey.

                           *   *   *   *   *

       By now, around 9:15 Friday morning, Bush knew enough to be 
     nervous about what the acting attorney general might do. That 
     did not mean he planned to reverse himself. One high-ranking 
     adviser said there was still an ``optimism that maybe you can 
     finesse your way through this.''
       Afterward, in conversations with aides, the two men 
     described the meeting in similar terms.

[[Page 19373]]

       ``You don't look well,'' Bush began.
       Oldest trick in the book. Establish dominance, put the 
     other guy off his game.
       ``Well, I feel okay.''
       ``I'm worried about you. You look burdened.''
       ``I am, Mr. President. I feel like there's a tremendous 
     burden on me.''
       ``Let me lift that burden from your shoulders,'' Bush said. 
     ``Let me be the one who makes the decision here.''
       ``Mr. President, I would love to be able to do that.''
       Bush's tone grew crisp.
       ``I decide what the law is for the executive branch,'' he 
     said.
       ``That's absolutely true, sir, you do. But I decide what 
     the Department of Justice can certify to and can't certify 
     to, and despite my absolute best efforts, I simply cannot in 
     the circumstances.''
       Comey had majored in religion, William and Mary Class of 
     1982. He might have made a connection with Bush if he had 
     quoted a verse from Scripture. The line that came to him 
     belonged to a 16th-century theologian who defied an emperor.
       ``As Martin Luther said, `Here I stand; I can do no other,' 
     '' Comey said. ``I've got to tell you, Mr. President, that's 
     where I am.''
       Now Bush said something that floored Comey.
       ``I just wish that you weren't raising this at the last 
     minute.''
       The last minute! He didn't know.
       The president kept talking. Not the way it's supposed to 
     work, popping up with news like this. The day before a 
     deadline?
       Wednesday. He didn't know until Wednesday. No wonder he 
     sent Card and Gonzales to the hospital.
       ``Oh, Mr. President, if you've been told that, you have 
     been very poorly served by your advisers,'' Comey said. ``We 
     have been telling them for months we have a huge problem 
     here.''
       ``Give me six weeks,'' Bush asked. One more renewal.
       ``I can't do that,'' Comey said. ``You do say what the law 
     is in the executive branch, I believe that. And people's job, 
     if they're going to stay in the executive branch, is to 
     follow that. But I can't agree, and I'm just sorry.''
       If they're going to stay.
       Comey was edging toward a breach of his rule against 
     resignation threats.
       This man just needs to know what's about to happen.
       ``I think you should know that Director Mueller is going to 
     resign today,'' Comey said.
       Bush raised his eyebrows. He shifted in his chair. He could 
     not hide it, or did not try. He was gobsmacked.
       ``Thank you very much for telling me that,'' he said.
       Comey hurried down to Mueller, who sat in the foyer outside 
     the Situation Room. A Secret Service agent followed close 
     behind. The president would like to see you, the agent told 
     Mueller.
       Comey pulled out his BlackBerry and sent a note to six 
     colleagues at 9:27 a.m.
       ``The president just took me into his private office for a 
     15 minute one on one talk,'' he wrote. ``Told him he was 
     being misled and poorly served. We had a very full and frank 
     exchange. Don't know that either of us can see a way out. . . 
     . Told him Mueller was about to resign. He just pulled Bob 
     into his office.''
       The FBI director was no more tractable than Comey. This was 
     a rule-of-law question, he told the president, and the answer 
     was in the Justice Department. The FBI could not participate 
     in operations that Justice held to be in breach of criminal 
     law. If those were his orders, he would respectfully take his 
     leave.
       And there it was, unfinessable. Bush was out of running 
     room, all the way out. He had only just figured out that the 
     brink was near, and now he stood upon it.
       Not 24 hours earlier, the president had signed his name to 
     an in-your-face rejection of the attorney general's ruling on 
     the law. Now he had two bad choices. March on, with all the 
     consequences. Or retreat.
       The president stepped back from the precipice. He gave 
     Mueller a message for Comey.
       ``Tell Jim to do what Justice thinks needs to be done,'' he 
     said.
       Seven days later, Bush amended his March 11 directive. The 
     legal certification belonged again to the attorney general. 
     The surveillance program stopped doing some things, and it 
     did other things differently. Much of the operation remained 
     in place. Not all of it.

                           *   *   *   *   *

       Because Bush did not walk off the cliff, and because so 
     much of the story was suppressed, an extraordinary moment in 
     presidential history passed unrecognized.
       ``I mean, it would be damn near unprecedented for the top 
     echelon of your Justice Department to resign over a position 
     you've taken,'' Bartlett said.
       There might be one precedent, he allowed. He did not want 
     to spell it out.
       ``Not a good one,'' he said.
       During the Watergate scandal, the attorney general and 
     deputy attorney general resigned, refusing to carry out 
     Richard Nixon's order to fire the special prosecutor. Nixon 
     lost his top two Justice officials, and that was called the 
     Saturday Night Massacre.
       Bush had come within minutes of losing his FBI director and 
     at least the top five layers at Justice. What would they call 
     that? Suicide, maybe?
       ``You don't have to be the smartest guy to figure out that 
     [mass resignations] would be pretty much the most devastating 
     thing that could happen to your administration,'' said Mark 
     Corallo, Ashcroft's communications director and, during 
     Bush's first race for the White House, chief spokesman for 
     the Republican National Committee. ``The rush to hearings on 
     the Hill, both in the House and Senate, would be 
     unbelievable. The media frenzy that would have ensued would 
     have been unlike anything we've ever seen. That's when you're 
     getting into Watergate territory.''
       Long after departing as chief of staff, Card held fast to 
     the proposition that whatever happened was nobody's business, 
     and no big deal anyway.
       ``I think you're writing about something that's 
     irrelevant,'' Card said. ``Voyeurism.''
       Because?
       ``Nobody resigned over this,'' he said. It all boiled down 
     to trash talk: `` `Oh, I was gonna swing at the pitch but it 
     was too high.' ''
       That seems unlikely to stand as history's verdict. In the 
     fourth year of his presidency, a man who claimed the final 
     word was forced by subordinates to comply with their ruling 
     on the law. Ashcroft, Comey, Goldsmith, Philbin--believers, 
     one and all, in the ``unitary executive branch''--obliged the 
     commander in chief to stand down. For the first time, a 
     president claimed in writing that he alone could say what the 
     law was. A rebellion, in direct response, became so potent a 
     threat that Bush reversed himself in a day.
       ``This is the first time when the president of the United 
     States really wanted something in wartime, and tried to 
     overrule the Department of Justice, and the law held,'' said 
     Goldsmith, after studying similar conflicts under Abraham 
     Lincoln and Franklin D. Roosevelt.
       In the aftermath, the White House senior staff asked 
     questions. Was the president getting timely information and 
     advice? Had he relinquished too much control to Cheney?
       Bush, aides said, learned something he would not forget. 
     Cheney was the nearest thing to an anti-politician in elected 
     office. Bush could not afford to be like that. In his second 
     term, his second chance, the president would take greater 
     care to consult his own instincts.
       ``Cheney was not afraid of giving pure, kind of principled 
     advice,'' Bartlett said. ``He thinks from a policy 
     standpoint, and I think he does this out of pure intentions. 
     He thinks of the national security interest or the 
     prerogatives of the executive. The president has other 
     considerations he has to take into account. The political 
     fallout of certain reactions--he's just going to calculate 
     different than Cheney does.''
       ``He grew accustomed to that,'' Bartlett said.

  Mr. BYRD. Mr. President, I yield the floor.
  I thank all Senators.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. SANDERS. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. SANDERS. Mr. President, I wish to say a few words in thanking 
Senator Byrd, not only for his years of illustrious service to the 
American people but for reminding us about the importance of the 
Constitution. It is incredible that year after year he has come up 
here--and perhaps more than any other Member of the Congress--to 
instruct the American people about that great document and to urge 
people--children, old people, people from all over this country--to 
once again study what the Constitution is about.
  I would hope, as a result of Senator Byrd's efforts, classrooms all 
over this country--our young people--will understand the importance of 
the Constitution.
  So I say to Senator Byrd, thank you so much for your service in that 
regard.
  Mr. BYRD. I thank the Senator.
  Mr. SANDERS. Mr. President, as we observe Constitution Day today, we 
do not have to look very far to be reminded why it is important for us 
to reflect on the 221st birthday of the Constitution, which was signed 
by the Framers in Philadelphia on this date in 1787. I think the reason 
why it is so important to take a hard look at the Constitution today is 
because of what has happened over the last 8 years, because in many 
respects we have had a President who did not do as Senator Byrd urged 
us to do: Study the Constitution.

[[Page 19374]]

  We all know that international terrorism is a very serious issue. We 
take it terribly seriously, and all of us are pledged to do everything 
we can to protect the American people from international terrorism. 
However, many of us believe we can do it within the context of the 
United States Constitution and the separation of powers----
  Mr. BYRD. Yes.
  Mr. SANDERS. Brought forth in that Constitution.
  Unfortunately, over the last 8 years under the Bush administration, 
we have seen a tragic effort on the part of the executive branch to 
impose on the people of this country a vision of government where, 
instead of three coequal branches of government as laid out by our 
Constitution--the executive, the legislative, and the judicial 
branches--we have moved toward one dominant branch, that of the 
executive ruling under the theory of the unitary executive.
  Mr. BYRD. King.
  Mr. SANDERS. In my view, that is not what the Constitution of our 
great country is about, nor is it what the Framers wanted it to be. The 
theory of unitary executive states that since the Constitution 
inherently gives the President the power to do all kinds of things--
especially within the military and defense context beyond what is 
detailed in article II, then the President essentially can make up 
whatever he wants to justify for this or that action. In other words, 
he can say: We are threatened by international terrorism and I, as the 
President of the United States, can do anything I want to fight 
international terrorism. I don't have to worry about separation of 
powers. I don't have to worry about the laws of the land. I don't have 
to worry about the Constitution. I am the President. In my judgment, I 
can do what I want. I think the Senator from West Virginia would agree 
with me, that that is not what the Constitution of this country is 
about.
  Mr. BYRD. That is right.
  Mr. SANDERS. And that, unfortunately, we have a President who does 
not understand that.
  In the last 8 years, sadly, we have seen a steady erosion of the 
fundamental rights and balance of power laid out in the Constitution 
and in our Bill of Rights. We have seen the President, the Vice 
President, and the administration carry out an unprecedented number of 
programs that insult our constitutional system and erode our standing 
around the world----
  Mr. BYRD. Yes.
  Mr. SANDERS. Because our Nation was founded as a nation of laws, not 
of individuals.
  Mr. BYRD. Right.
  Mr. SANDERS. Let me list a few of the programs. I will not go on for 
too long, but I want the American people to get a glimpse of what has, 
in fact, gone on in the last 8 years under a President who neither 
understands the Constitution nor respects the Constitution. Let me 
enumerate some of those provisions:
  Passage of the original PATRIOT Act and the PATRIOT Act 
Reauthorization.
  Illegal and expanded use of national security letters by the FBI.
  The NSA's warrantless wiretap program.
  Using Presidential signing statements to ignore the intent of 
Congress's laws.
  Mr. BYRD. Yes.
  Mr. SANDERS. We have a President who says: Well, it is an interesting 
law. I will pick and choose which of the provisions I want to 
implement. That is not what the Constitution says. If you don't like 
the law, veto it.
  Mr. BYRD. Yes.
  Mr. SANDERS. But you cannot pick and choose. That is clearly not what 
the Constitution had in mind.
  Furthermore, we have seen profiling of citizens engaged in 
constitutionally protected free speech and peaceful assembly. My view 
is, if you are an American, you have a right to protest, you have a 
right to engage in the political process without worrying that somebody 
is spying on you.
  Mr. BYRD. Yes.
  Mr. SANDERS. We have seen in recent years data mining of personal 
records.
  We have seen, of course, the Abu Ghraib prison scandal.
  We have seen a broad interpretation of congressional resolutions 
regarding use of military force as justification for unauthorized 
surveillance and other actions.
  Mr. BYRD. Yes.
  Mr. SANDERS. We have seen extraordinary renditions of detainees to 
countries that allow torture.
  We have seen getting rid of the right of detainees to file habeas 
corpus petitions.
  We have seen the condoning of the use of torture.
  We have seen political firings of U.S. Attorneys.
  We have seen destruction of CIA tapes.
  The list goes on and on and on. Those are just some of the insults to 
the Constitution that we have seen over the last 8 years.
  Mr. BYRD. Yes.
  Mr. SANDERS. Mr. President, I also wish to take a few moments to 
highlight one of the more egregious examples of this abuse which was 
recently chronicled by the Washington Post.
  Mr. BYRD. Yes. Please do.
  Mr. SANDERS. This article describes the unprecedented use of 
executive authority which trampled on the rule of law and, in the 
process, Americans' basic civil liberties. Specifically, the article 
focuses on how a small group of people in the White House--the 
President, the Vice President, the Vice President's Chief of Staff, and 
a few others--decided through their own twisted interpretation of the 
Constitution that with the President's say-so alone, they had the power 
to perform warrantless surveillance on innocent Americans known as the 
NSA warrantless wiretapping program. They created a program almost 
completely outside of the authority of our laws based on the principle 
that because the President of the United States is the Commander in 
Chief, and it is his job to protect the country, anything they think of 
that protects this country--anything that fights terrorism--is 
justified under the Constitution. That, in my view, is dead wrong.
  Mr. BYRD. Shame.
  Mr. SANDERS. This view of the Constitution and the balance of power 
in our Government should make all Americans, no matter what political 
persuasion--and I do want to say there are a number of conservatives 
all over this country--and every honest conservative should be appalled 
by the constitutional abuse that has taken place by President Bush. No 
matter what your point of view is, you should be concerned, but 
especially for those citizens in our country who consider themselves 
conservatives and wish to limit the role of government.
  I ask the Senator from West Virginia: How often have we heard 
conservatives talk about a limited role in government and then go out 
and say: Oh, the government can do anything they want; forget the 
Constitution.
  Mr. BYRD. Yes, how often?
  Mr. SANDERS. I think that is absolutely hypocritical.
  Mr. BYRD. Yes.
  Mr. SANDERS. Even more amazingly, when a few members of the 
Department of Justice--the top law enforcement agency of our 
Government--including then-Attorney General John Ashcroft, FBI Director 
Robert Mueller, and Acting Attorney General James Comey, who learned of 
the program and refused to renew the program unless it was redrafted to 
fall within the confines of U.S. surveillance law, the President and 
his aides attempted to completely bypass these critics and decide that 
the President, and the President alone, could decide what is lawful or 
unlawful.
  Mr. BYRD. Oh, my, my.
  Mr. SANDERS. During a debate about who had the final word on the 
warrantless wiretapping program, the Washington Post quotes President 
Bush as saying: ``I decide what the law is for the executive branch.''
  Mr. BYRD. Oh, my God.
  Mr. SANDERS. I concur.
  The President does not decide the law. It is the people of this 
country through the Congress who decide the law, and the President, as 
every other American citizen, obeys the law.

[[Page 19375]]


  Mr. BYRD. Right.
  Mr. SANDERS. When we lose that understanding, we lose what our 
Constitution is about, we lose the essence of what the United States of 
America is about. Thankfully, thankfully--let's give credit where 
credit is due--by threatening their mass resignation, the top leaders 
of the Justice Department forced the President to revise his and the 
Vice President's legal justification for this wiretap program, making 
it only a bit less objectionable.
  While I am opposed to the wiretapping program in its current form due 
to the fact that it does not have an adequate check on the power to 
monitor the conversations of innocent Americans, I do respect--and I 
hope we all respect--those individuals at the Department of Justice 
who, during this time in 2003 and 2004, stood up for the basic aspects 
of our legal system.
  Mr. BYRD. Yes.
  Mr. SANDERS. Mr. President, I ask unanimous consent that a copy of 
the Washington Post articles written by Barton Gellman and published on 
September 14 and 15 of this year be printed in the Record at the 
conclusion of my remarks.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (See exhibit 1.)
  Mr. SANDERS. Mr. President, I am not the only person with these 
concerns about the balance of power between the branches of Government. 
An August poll conducted by the Associated Press and the National 
Constitution Center found that:

       Two-thirds of Americans oppose altering the balance of 
     power among the three branches of government to strengthen 
     the presidency, even when they thought that doing so would 
     improve the economy or national security.

  Mr. BYRD. Amen.
  Mr. SANDERS. This is not a partisan issue, no matter what 
administration, no matter what party. I am quite confident that whether 
it is a Democratic President or a Republican President, Senator Byrd 
will be there raising exactly the same issues.
  Mr. BYRD. Yes.
  Mr. SANDERS. Because he understands--and I hope all of us 
understand--that the Constitution is far deeper than partisan politics 
or who happens to sit in the White House in this or that year.
  Mr. BYRD. Yes.
  Mr. SANDERS. The secret creation of the warrantless wiretapping 
program outside the confines of law is only one example of a number of 
the ways the Constitution has been abused over the last 8 years.
  I conclude by again congratulating Senator Byrd. Because the work he 
is doing here of trying to make sure that people from Maine to 
California study our Constitution--something that is not happening 
enough in our schools--
  Mr. BYRD. Right.
  Mr. SANDERS. People should understand the Constitution and understand 
that the Constitution has laid out an extraordinary framework from the 
first day of this country. It is an extraordinary document, perhaps the 
greatest document ever written in the Western World.
  Mr. BYRD. Yes, it is.
  Mr. SANDERS. We should be enormously proud. What we have to do 
regardless of our political views is we have to stand and defend and 
fight for the integrity of that Constitution.
  So I thank Senator Byrd so much for what he has done in that regard 
to protect our constitutional rights.
  With that, Mr. President, I yield the floor.
  Mr. BYRD. And I thank Senator Sanders.

                               Exhibit 1

               [From the Washington Post, Sept. 14, 2008]

             Conflict Over Spying Led White House to Brink

                          (By Barton Gellman)

       A burst of ferocity stunned the room into silence. No other 
     word for it: The vice president's attorney was shouting.
       ``The president doesn't want this! You are not going to see 
     the opinions. You are out . . . of . . . your . . . lane!''
       Five government lawyers had gathered around a small 
     conference table in the Justice Department command center. 
     Four were expected. David S. Addington, counsel to Vice 
     President Cheney, got wind of the meeting and invited 
     himself.
       If Addington smelled revolt, he was not far wrong. 
     Unwelcome questions about warrantless domestic surveillance 
     had begun to find their voice.
       Cheney and his counsel would struggle for months to quash 
     the legal insurgency. By the time President Bush became aware 
     of it, his No. 2 had stoked dissent into flat-out rebellion. 
     The president would face a dilemma, and the presidency itself 
     a historic test. Cheney would come close to leading them off 
     a cliff, man and office both.
       On this second Monday in December 2003, Addington's targets 
     were a pair of would-be auditors from the National Security 
     Agency. He had displeasure to spare for their Justice 
     Department hosts.
       Perfect example, right here. A couple of NSA bureaucrats 
     breeze in and ask for the most sensitive documents in the 
     building. And Justice wants to tell them, Help yourselves? 
     This was going to be a very short meeting.
       Joel Brenner and Vito Potenza, the two men wilting under 
     Addington's wrath, had driven 26 miles from Fort Meade, the 
     NSA's eavesdropping headquarters in Maryland. They were 
     conducting a review of their agency's two-year-old special 
     surveillance operation. They already knew the really secret 
     stuff: The NSA and other services had been unleashed to turn 
     their machinery inward, collecting signals intelligence 
     inside the United States. What the two men didn't know was 
     why the Bush administration believed the program was legal.
       It was an awkward question. Potenza, the NSA's acting 
     general counsel, and Brenner, its inspector general, were 
     supposed to be the ones who kept their agency on the straight 
     and narrow. That's what Cheney and their boss, Lt. Gen. 
     Michael V. Hayden, told doubters among the very few people 
     who knew what was going on. Cheney, who chaired briefings for 
     select members of Congress, said repeatedly that the NSA's 
     top law and ethics officers--career public servants--approved 
     and supervised the surveillance program.
       That was not exactly true, not without one of those silent 
     asterisks that secretly flip a sentence on its tail. Every 45 
     days, after Justice Department review, Bush renewed his 
     military order for warrantless eavesdropping. Brenner and 
     Potenza told Hayden that the agency was entitled to rely on 
     those orders. The United States was at war with al-Qaeda, 
     intelligence-gathering is inherent in war, and the 
     Constitution appoints the president commander in chief.
       But they had not been asked to give their own written 
     assessments of the legality of domestic espionage. They based 
     their answer in part on the attorney general's certification 
     of the ``form and legality'' of the president's orders. Yet 
     neither man had been allowed to see the program's codeword-
     classified legal analyses, which were prepared by John C. 
     Yoo, Addington's close ally in the Justice Department's 
     Office of Legal Counsel. Now they wanted to read Yoo's 
     opinions for themselves.
       ``This is none of your business!'' Addington exploded.
       He was massive in his swivel chair, taut and still, 
     potential energy amping up the menace. Addington's pugnacity 
     was not an act. Nothing mattered more, as the vice president 
     and his lawyer saw the world, than these new surveillance 
     tools. Bush had made a decision. Debate could only blow the 
     secret, slow down vital work, or call the president's 
     constitutional prerogatives into question.
       The NSA lawyers returned to their car empty-handed.

                           *   *   *   *   *

       The command center of ``the president's program,'' as 
     Addington usually called it, was not in the White House. Its 
     controlling documents, which gave strategic direction to the 
     nation's largest spy agency, lived in a vault across an alley 
     from the West Wing--in the Eisenhower Executive Office 
     Building, on the east side of the second floor, where the 
     vice president headquartered his staff.
       The vault was in EEOB 268, Addington's office. Cheney's 
     lawyer held the documents, physical and electronic, because 
     he was the one who wrote them. New forms of domestic 
     espionage were created and developed over time in 
     presidential authorizations that Addington typed on a 
     Tempest-shielded computer across from his desk.
       It is unlikely that the history of U.S. intelligence 
     includes another operation conceived and supervised by the 
     office of the vice president. White House Chief of Staff 
     Andrew H. Card Jr. had ``no idea,'' he said, that the 
     presidential orders were held in a vice presidential safe. An 
     authoritative source said the staff secretariat, which kept a 
     comprehensive inventory of presidential papers, classified 
     and unclassified, possessed no record of these.
       In an interview, Card said the Executive Office of the 
     President, a formal term that encompassed Bush's staff but 
     not Cheney's, followed strict procedures for handling and 
     securing presidential papers.
       ``If there were exceptions to that, I'm not aware of 
     them,'' he said. ``If these documents weren't stored the 
     right way or put in the right places or maintained by the 
     right people, I'm not aware of it.''

[[Page 19376]]

       Asked why Addington would write presidential directives, 
     Card said, ``David Addington is a very competent lawyer.'' 
     After a moment he added, ``I would consider him a drafter, 
     not the drafter. I'm sure there were a lot of smart people 
     who were involved in helping to look at the language and the 
     law.''
       Not many, it turned out. Though the president had the 
     formal say over who was ``read in'' to the domestic 
     surveillance program, Addington controlled the list in 
     practice, according to three officials with personal 
     knowledge. White House counsel Alberto R. Gonzales was aware 
     of the program, but was not a careful student of the complex 
     legal questions it raised. In its first 18 months, the only 
     other lawyer who reviewed the program was John Yoo.
       By the time the NSA auditors came calling, a new man, Jack 
     L. Goldsmith, was chief of the Justice Department's Office of 
     Legal Counsel. Soon after he arrived on Oct. 6, 2003, the 
     vice president's lawyer invited him to EEOB 268. Addington 
     pulled out a folder with classification markings that 
     Goldsmith had never seen.
       ``David Addington was doing all the legal work. All the 
     important documents were kept in his safe,'' Goldsmith 
     recalled. ``He was the one who first briefed me.''
       Goldsmith's new assignment gave him final word in the 
     executive branch on what was legal and what was not. 
     Addington had cleared him for the post--``the biggest 
     presence in the room,'' Goldsmith said, during a job 
     interview ostensibly run by Gonzales.
       Goldsmith did not have the looks of a guy who posed a 
     threat to the Bush administration's alpha lawyer. A mild-
     mannered law professor from the University of Chicago, he was 
     rumpled and self-conscious, easy to underestimate. On first 
     impression, he gave off a misleading aura of softness. 
     Goldsmith had lettered in football, baseball and soccer at 
     the Pine Crest School in Fort Lauderdale, Fla., spending his 
     formative years with a mob-connected Teamster who married his 
     mother. He was not a bare-knuckled brawler in Addington's 
     mold, but Goldsmith arrived at Justice with no less 
     confidence and strength of will.
       Addington's behavior with the NSA auditors was ``a wake-up 
     call for me,'' Goldsmith said. Cheney and Addington, he came 
     to believe, were gaming the system, using secrecy and 
     intimidation to prevent potential dissenters from conducting 
     an independent review.
       ``They were geniuses at this,'' Goldsmith said. ``They 
     could divide up all these problems in the bureaucracy, ask 
     different people to decide things in their lanes, control the 
     facts they gave them, and then put the answers together to 
     get the result they want.''
       Dec. 9, 2003, the day of the visit from Brenner and 
     Potenza, was the beginning of the end of that strategy. The 
     years of easy victory were winding down for Cheney and his 
     staff.

                           *   *   *   *   *

       Goldsmith began a top-to-bottom review of the domestic 
     surveillance program, taking up the work begun by a lawyer 
     named Patrick F. Philbin after John Yoo left the department. 
     Like Yoo and Goldsmith, Philbin had walked the stations of 
     the conservative legal establishment: Federalist Society, a 
     clerkship with U.S. Circuit Judge Laurence H. Silberman, 
     another with Supreme Court Justice Clarence Thomas.
       The more questions they asked, the less Goldsmith and 
     Philbin liked the answers. Parts of the program fell easily 
     within the constitutional powers of the commander in chief. 
     Others looked dicier.
       The two lawyers worked at the intersection of three complex 
     systems: telecommunications, spy technology, and the 
     statutory regimes that governed surveillance. After a few 
     weeks, Goldsmith said, he decided the program ``was the 
     biggest legal mess I'd seen in my life.''
       He asked for permission to read in Attorney General John D. 
     Ashcroft's new deputy, James B. Comey. As always, he found 
     Addington waiting with Gonzales in the White House counsel's 
     corner office, one floor up from the chief of staff. They sat 
     in parallel wing chairs, much as Bush and Cheney did in the 
     Oval Office.
       ``The attorney general and I think the deputy attorney 
     general should be read in,'' Goldsmith said.
       Addington replied first.
       ``Forget it,'' he said.
       ``The president insists on strict limitations on access to 
     the program,'' Gonzales agreed.
       Weeks passed. Goldsmith kept asking. Addington kept saying 
     no.
       ``He always invoked the president, not the vice 
     president,'' Goldsmith said.
       Comey was not exactly Mr. Popular at 1600 Pennsylvania Ave. 
     He had arrived at Justice as a 6-foot-8 golden boy, smooth 
     and polished, with top chops as a federal terrorism 
     prosecutor in Northern Virginia and New York City. Then came 
     Dec. 30, 2003. Comey did something unforgivable: He appointed 
     an independent counsel to investigate the leak of Valerie 
     Plame's identity as a clandestine CIA officer, a move that 
     would bring no end of grief for Cheney.
       In late January, Goldsmith and Addington cut a deal. Comey 
     would get his read-in. Goldsmith would get off the fence 
     about the program, giving his definitive answer by the March 
     11 deadline.
       ``You're the head of the Office of Legal Counsel, and if 
     you say we cannot do this thing legally, we'll shut it off,'' 
     Addington told him.
       Feel free to tell the president that his most important 
     intelligence operation has to stop.
       Your call, Jack.
       Goldsmith wanted to fix the thing, not stop it. He and 
     Philbin traveled again and again to Fort Meade, each time 
     delving deeper. They were in and out of Gonzales's office, 
     looking for adjustments in the program that would bring it 
     into compliance with the law. The issues were complex and 
     remain classified. Addington bent on nothing, swatting back 
     every idea. Gonzales listened placidly, sipping Diet Cokes 
     from his little refrigerator, encouraging the antagonists to 
     keep things civil.
       There would be no easy out, no middle ground. Addington 
     made clear that he did not believe for a moment that Justice 
     would pull the plug.

                           *   *   *   *   *

       Mike Hayden and Vito Potenza drove down from NSA 
     headquarters after lunch on Feb. 19, 2004, to give Jim Comey 
     his first briefing on the program. In the Justice 
     Department's vault-like SCIF, a sensitive compartmented 
     information facility, Hayden got Comey's attention fast.
       ``I'm so glad you're getting read in, because now I won't 
     be alone at the table when John Kerry is elected president,'' 
     the NSA director said.
       The witness table, Hayden meant. Congressional hearing, 
     investigation of some kind. Nothing good. Kerry had the 
     Democratic nomination just about locked up and was leading 
     Bush in national polls. Hardly anyone in the intelligence 
     field believed the next administration would climb as far out 
     on a legal limb as this one had.
       ``Hayden was all dog-and-pony, and this is probably what 
     happened to those poor folks in Congress, too,'' Comey told 
     his chief of staff after the briefing. ``You think for a 
     second, `Wow, that's great,' and then if you try actually to 
     explain it back to yourself, you don't get it. You scratch 
     your head afterward and you think, `What the hell did that 
     guy just tell me?' ''
       The NSA chief insisted on limiting surveillance to e-mails, 
     phone calls and faxes in which one party was overseas, 
     deflecting arguments from Cheney and Addington that he could 
     just as well collect communications inside the United States.
       That was one reason Hayden hated when reporters referred to 
     ``domestic surveillance.'' He made his point with a folksy 
     analogy: He had taken ``literally hundreds of domestic 
     flights,'' he said, and never ``landed in Waziristan.'' That 
     sounded good. But the surveillance statutes said a warrant 
     was required if either end of the conversation was in U.S. 
     territory. The American side of the program--the domestic 
     surveillance--was its distinguishing feature.
       By the end of February, Goldsmith and Philbin had reached 
     their conclusion: Parts of the surveillance operation had no 
     support in law. Comey was so disturbed that he drove to 
     Langley one evening to compare notes with Scott W. Muller, 
     the general counsel at the CIA. Muller ``got it 
     immediately,'' agreeing with the Goldsmith-Philbin analysis, 
     Comey said.
       ``At the end of the day, I concluded something I didn't 
     ever think I would conclude, and that is that Pat Philbin and 
     Jack Goldsmith understood this activity much better than 
     Michael Hayden did,'' he said.
       On Thursday, March 4, Comey brought the findings to 
     Ashcroft, conferring for an hour one-on-one. Three senior 
     Justice Department officials said in interviews that Ashcroft 
     gave his full backing. He was not going to sign the next 
     presidential order--due in one week, March 11--unless the 
     White House agreed to a list of required changes.

                           *   *   *   *   *

       A few hours later, Ashcroft was reviewing notes for a news 
     conference in Alexandria when his color changed and he sat 
     down heavily. An aide, Mark Corallo, ducked out and returned 
     to find the attorney general laid out on his back. By 
     nightfall, Ashcroft was taken to George Washington University 
     Medical Center in severe pain, suffering acute gallstone 
     pancreatitis. Comey became acting attorney general on Friday.
       The next day--Saturday, March 6, five days before the March 
     11 deadline--Goldsmith brought the Justice Department verdict 
     to the White House. He told Gonzales and Addington for the 
     first time that Justice would not certify the program.
       A long silence fell. It lasted three full days.
       Gonzales phoned Goldsmith at home before sunrise on 
     Tuesday, March 9, with two days left before the program 
     expired. Obviously there was bad chemistry with Addington. 
     Why not come in and talk, he asked, just the two of us?
       Goldsmith arrived at the White House in morning twilight. 
     Alone in his office, Gonzales begged the OLC chief to 
     reconsider. Gonzales tried to dispute Goldsmith's analysis, 
     but he was in over his head. At least let us have more time, 
     he said. Goldsmith said he couldn't do that.
       The time had come for the vice president to step in. 
     Proxies were not getting the job

[[Page 19377]]

     done. Cheney was going to have to take hold of this thing 
     himself.
       Even now, after months of debate, Cheney did not enlist the 
     president. Bush was across the river in Arlington, commending 
     the winners of the Malcolm Baldrige awards for quality 
     improvement in private industry. Campaign season had come 
     already, and the president was doing a lot of that kind of 
     thing. That week he had a fundraiser in Dallas, a ``Bush-
     Cheney 2004 event'' in Santa Clara, Calif., and a meet-and-
     greet at a rodeo in Houston.
       Soon after hearing what had happened between Goldsmith and 
     Gonzales, the vice president asked Andy Card to set up a 
     meeting at noon with Mike Hayden, FBI Director Robert S. 
     Mueller III, and John McLaughlin from the CIA (substituting 
     for his boss, George J. Tenet). Cheney spoke to them in 
     Card's office, the door closed.
       Four hours later, at 4 p.m., the same cast reconvened. This 
     time the Justice contingent was invited. Comey, Goldsmith and 
     Philbin found the titans of the intelligence establishment 
     lined up, a bunch of grave-faced analysts behind them for 
     added mass. The spy chiefs brought no lawyers. The law was 
     not the point. This meeting, described by officials with 
     access to two sets of contemporaneous notes, was about 
     telling Justice to set its qualms aside.
       The staging had been arranged for maximum impact. Cheney 
     sat at the head of Card's rectangular table, pivoting left to 
     face the acting attorney general. The two men were close 
     enough to touch. Card sat grimly at Cheney's right, directly 
     across from Comey. There was plenty of eye contact all 
     around.
       This program, Cheney said, was vital. Turning it off would 
     leave us blind. Hayden, the NSA chief, pitched in: Even if 
     the program had yet to produce blockbuster results, it was 
     the only real hope of discovering sleeper agents before they 
     could act.
       ``How can you possibly be reversing course on something of 
     this importance after all this time?'' Cheney asked.
       Comey held his ground. The program had to operate within 
     the law. The Justice Department knew a lot more now than it 
     had before, and Ashcroft and Comey had reached this decision 
     together.
       ``I will accept for purposes of discussion that it is as 
     valuable as you say it is,'' Comey said. ``That only makes 
     this more painful. It doesn't change the analysis. If I can't 
     find a lawful basis for something, your telling me you 
     really, really need to do it doesn't help me.''
       ``Others see it differently,'' Cheney said.
       There was only one of those, really. John Yoo had been out 
     of the picture for nearly a year. It was all Addington.
       ``The analysis is flawed, in fact facially flawed,'' Comey 
     said. ``No lawyer reading that could reasonably rely on it.''
       Gonzales said nothing. Addington stood by the window, over 
     Cheney's shoulder. He had heard a bellyful.
       ``Well, I'm a lawyer and I did,'' Addington said, glaring 
     at Comey.
       ``No good lawyer,'' Comey said.
       In for a dime, in for a dollar.
       Addington started disputing the particulars. Now he was on 
     Jack Goldsmith's turf. From across the room the head of the 
     Office of Legal Counsel jumped in. And right there in front 
     of the big guys, the two of them bickered in the snarly tones 
     of a couple who knew all of each other's lines.

                           *   *   *   *   *

       As the sun went down on Tuesday, March 9, the president of 
     the United States had yet to learn that his Justice 
     Department was heading off the rails. A train wreck was 
     coming, but Cheney wanted to handle it. Neither Card nor 
     Gonzales was in the habit of telling him no.
       ``I don't think it would be appropriate for the president 
     to be engaged in the to-and-fro until it is, you know, 
     penultimate,'' Card said in a recent interview. ``I guess the 
     definition of `penultimate' could vary from four steps to 
     three steps to two steps to one step. That's why you have 
     White House counsel and people who do the legal work.''
       Participants in the afternoon meeting, including some of 
     Cheney's recruits, left the room shaken. Mueller worked for 
     the attorney general, and the FBI's central mission was to 
     ``uphold and enforce the criminal laws of the United 
     States.'' Hayden's neck, and his agency, were on the line. 
     The NSA director believed in the program, believed he was 
     doing the right thing. But keep on going when the Justice 
     Department said no?
       Early the next morning--Wednesday, March 10, with 24 hours 
     to deadline--Hayden was back in the White House. One 
     colleague saw him conferring in worried whispers with 
     Homeland Security adviser John A. Gordon, a mentor and fellow 
     Air Force general, much the senior of the two. They huddled 
     in the West Wing lobby, Hayden on a love seat and Gordon in a 
     chair.
       Jim Comey was in the White House that morning, too, 
     arriving early for the president's regular 8:30 terrorism 
     brief. He had heard nothing since the discouraging meeting 
     the day before.
       Comey found Frances Fragos Townsend, an old friend, waiting 
     just outside the Oval Office, standing by the appointment 
     secretary's desk. She was Bush's deputy national security 
     adviser for combating terrorism. Comey had known her since 
     their days as New York mob prosecutors in the 1980s. Since 
     then, Townsend had run the Justice Department's intelligence 
     office. She lived and breathed surveillance law.
       Comey took a chance. He pulled her back out to the hallway 
     between the Roosevelt Room and the Cabinet Room.
       ``If I say a word, would you tell me whether you recognize 
     it?'' he asked quietly.
       He did. She didn't. The program's classified code name left 
     her blank. Comey tried to talk around the subject.
       ``I think this is something I am not a part of,'' Townsend 
     said. ``I can't have this conversation.'' Like John Gordon 
     and deputy national security adviser Steven J. Hadley and 
     Homeland Security Secretary Tom Ridge, she was out of the 
     loop.
       Oh, God, Comey remembers thinking. They've held this so 
     tight. Even Fran Townsend. The president's counterterrorism 
     adviser is not read in? Comey towered over his diminutive 
     friend. He chose his words carefully.
       ``I need to know,'' he said, ``whether your boss recognizes 
     that word, and whether she's read in on a particular program. 
     Because we had a meeting here yesterday on that topic that I 
     would have expected her to be at.''
       He meant national security adviser Condoleezza Rice. Comey 
     was hoping for an ally, or maybe rescue.
       ``I felt very alone, with some justification,'' Comey 
     recalled. ``The attorney general is in intensive care. 
     There's a train coming down the tracks that's about to run me 
     and my career and the Department of Justice over. I was 
     exploring every way to get off the tracks I could.''
       Townsend had a pretty good guess about what was on Comey's 
     mind. Cheney had kept her out of the loop, but it was hard to 
     hide a warrantless domestic surveillance program completely 
     from the president's chief terrorism adviser.
       ``I'm not the right person to talk to,'' she told her 
     friend, her voice close to a whisper. Comey ought to go see 
     Rice.
       ``I'm going to tell her you've got concerns,'' Townsend 
     said.
       Comey's concerns no longer interested Cheney. The vice 
     president had tried to back him down. That didn't work.
       Only one day remained before the surveillance program 
     expired. Time for Cheney to take the fight somewhere else.

  Mr. REED. Mr. President, today we celebrate the 221st anniversary of 
the signing of the Constitution of the United States, the longest-
living written constitution in history and the very foundation of our 
democracy. I thank Senator Byrd for his tireless commitment to the 
Constitution and to ensuring its recognition every year on Constitution 
Day, which he established in 2004.
  Our Constitution serves as a testament to the brilliance of the 
Founding Fathers, who sought to create a document that would ensure 
that political power was derived from the people and that their rights 
would never be infringed upon. The Framers worked diligently over the 
summer of 1787 to forge a document that has persisted for more than two 
centuries. The Framers rightly understood that it would take hard work 
and compromise to establish a solid foundation for a new government 
that aspired to protect the liberty of all its people. A remarkably 
brief document, containing only seven articles, the Constitution limits 
the power of the government, maximizes the freedom of the people, and 
provides for the common good.
  Although my home State of Rhode Island did not send delegates to the 
Constitutional Convention in 1787, the effects of this small State on 
the formation of the Constitution are still felt today.
  Roger Williams, whose statue stands just outside this Chamber, 
founded what would become the State of Rhode Island in 1636 after he 
was exiled from the Massachusetts Bay Colony. A theologian, he founded 
Providence Plantation on the principles of separation of church and 
state and religious freedom.
  One hundred fifty-one years later, the Framers enshrined these same 
principles in the Bill of Rights. Williams and the Framers recognized 
that religious freedom is a natural right that had to be afforded to 
all people. Indeed, this freedom is one of the defining freedoms of our 
democracy.
  I would again like to thank Senator Byrd for his dedication to 
honoring our Constitution and the achievements of our Founding Fathers. 
His devotion to this document enriches our understanding of its 
importance and reminds

[[Page 19378]]

us of its essential role in our democracy. He has taken up the call to 
protect and defend the Constitution by ensuring that its central place 
in American history is not forgotten. I join him in asking all 
Americans to honor our great national charter today and every day.
  (At the request of Mr. Reid, the following statement was ordered to 
be printed in the Record.)
 Mr. KENNEDY. Mr. President, today we celebrate Constitution 
Day, the 221st birthday of the founding document of our country. Now, 
more than ever, it is time to reaffirm our commitment to defending the 
liberties guaranteed by the Constitution, and to recognize that 
strengthening civic education is an important part of this commitment. 
``Democracy must be reborn in every generation, and education is its 
midwife,'' wrote John Dewey. In fact, civic education was the original 
mission of American public education.
  Sadly, students today know too little about the civil liberties 
established in the Constitution that define our American way of life. 
On the most recent national civics assessment in 2006, only 20 percent 
of eighth grade students scored at or above the proficient level. Less 
than one-third could identify the purpose of the Constitution. Less 
than a fifth of high school seniors could explain how citizen 
participation strengthens democracy. Gaps in understanding like these 
translate later in life to reduced voter turnout, decreased civic 
engagement and community service, and a weaker sense of national 
identity.
  As a result of legislation enacted in 2005, more students across the 
country are receiving instruction on the Constitution, civics, and 
American history in their schools today. To become responsible 
citizens, students need to know that the Constitution is not about the 
39 men who signed it. It is a vital document that shapes events today 
and in the future. Instilling an understanding of the American ideals 
of liberty, justice, equality, and civic responsibility should be a 
central task in every school, every day.
  It should encourage the type of civic-mindedness displayed by the 
actions of community-based organizations and private citizens who 
rushed to aid victims of Hurricane Katrina and the September 11 
terrorist attacks. The long-term health of our democracy and America's 
standing in the world depend on our own understanding of our past.
  In the reauthorization of the No Child Left Behind Act next year, we 
can strengthen our commitment to history and civics education, and 
encourage them to be integrated into all subject areas, extracurricular 
activities, and service-based learning.
  Our Nation's Founders understood that education was critical to the 
strength of our democracy. As James Madison said to Thomas Jefferson 
after the Constitution was written, ``Educate and inform the whole mass 
of the people . . . They are the only sure reliance for the 
preservation of our liberty.''
  As we commemorate the anniversary of the ratification of the 
Constitution, those words are especially timely, because they remind us 
that their work alone cannot sustain American democracy. Our democracy 
depends heavily on enlightened and engaged citizens, and high-quality 
civic education is the best way to ensure that its fundamental 
principles will continue to guide America for the next 221 years, as we 
and future generations do our best ``to form a more perfect Union, 
establish Justice, insure domestic Tranquility, provide for the common 
defence, promote the general Welfare, and secure the Blessings of 
Liberty to ourselves and our Posterity.'' May it always be so.
  Mr. SANDERS. I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. LEVIN. I ask unanimous consent that the order for the quorum call 
be rescinded.
  The PRESIDING OFFICER (Mrs. McCaskill). Without objection, it is so 
ordered.

                          ____________________