Palace Revolt

Addington soon suffered pangs of buyer's remorse over Goldsmith. There was no way to simply ignore the new head of the OLC. Over time, Addington's heartburn grew much worse. In December, Goldsmith informed the Defense Department that Yoo's March 2003 torture memo was "under review" and could no longer be relied upon. It is almost unheard-of for an administration to overturn its own OLC opinions. Addington was beside himself. Later, in frequent face-to-face confrontations, he attacked Goldsmith for changing the rules in the middle of the game and putting brave men at risk, according to three former government officials, who declined to speak on the record given the sensitivity of the subject.

Addington's problems with Goldsmith were just beginning. In the jittery aftermath of 9/11, the Bush administration had pushed the top-secret National Security Agency to do a better and more expansive job of electronically eavesdropping on Al Qaeda's global communications. Under existing law--the Foreign Intelligence Surveillance Act, or FISA, adopted in 1978 as a post-Watergate reform--the NSA needed (in the opinion of most legal experts) to get a warrant to eavesdrop on communications coming into or going out of the United States. Reasoning that there was no time to obtain warrants from a secret court set up under FISA (a sometimes cumbersome process), the Bush administration justified going around the law by invoking a post-9/11 congressional resolution authorizing use of force against global terror. The eavesdropping program was very closely held, with cryptic briefings for only a few congressional leaders. Once again, Addington and his allies made sure that possible dissenters were cut out of the loop.

There was one catch: the secret program had to be reapproved by the attorney general every 45 days. It was Goldsmith's job to advise the A.G. on the legality of the program. In March 2004, John Ashcroft was in the hospital with a serious pancreatic condition. At Justice, Comey, Ashcroft's No. 2, was acting as attorney general. The grandson of an Irish cop and a former U.S. attorney from Manhattan, Comey, 45, is a straight arrow. (It was Comey who appointed his friend--the equally straitlaced and dogged Patrick Fitzgerald--to be the special prosecutor in the Valerie Plame leak-investigation case.) Goldsmith raised with Comey serious questions about the secret eavesdropping program, according to two sources familiar with the episode. He was joined by a former OLC lawyer, Patrick Philbin, who had become national-security aide to the deputy attorney general. Comey backed them up. The White House was told: no reauthorization.

The angry reaction bubbled up all the way to the Oval Office. President Bush, with his penchant for put-down nicknames, had begun referring to Comey as "Cuomey" or "Cuomo," apparently after former New York governor Mario Cuomo, who was notorious for his Hamlet-like indecision over whether to seek the Democratic presidential nomination in the 1980s. A high-level delegation--White House Counsel Gonzales and chief of staff Andy Card--visited Ashcroft in the hospital to appeal Comey's refusal. In pain and on medication, Ashcroft stood by his No. 2.

A compromise was finally worked out. The NSA was not compelled to go to the secret FISA court to get warrants, but Justice imposed tougher legal standards before permitting eavesdropping on communications into the United States. It was a victory for the Justice lawyers, and it drove Addington to new levels of vexation with Goldsmith.

Addington is a hard man to cross. Flanigan, his former White House colleague, described his M.O.: "David could go from zero to 150 very quickly. I'm not sure how much is temper and how much is for effect. At a meeting with government bureaucrats he might start out very calm. Then he would start with the sarcasm. He could say, 'We could do that, but that would give away all of the president's power.' All of a sudden here comes David Addington out of his chair. I'd think to myself we're not just dancing a minuet, there's a little slam dancing going on here." But Addington "usually had the facts, the law and the precedents on his side," says Flanigan. He had another huge advantage. He never needed to invoke Cheney's name, but everyone knew that he spoke for the vice president.