The president swears to preserve, protect, and defend the Constitution, and implicit in that is the mandate to protect the health, safety, and welfare of every American citizen. So when he (or she) looks at these surveillance programs and discovers they’re effective, and the best lawyers in our government are saying, “Yes, we do have the authority to engage in these kinds of activities,” the choice is obvious.
Do we need safeguards against domestic spying and abuse of our intelligence programs? Absolutely. But the collection of information is vital if we want to keep our country safe.
Now, because the government is so good and so efficient at gathering intelligence information, and the technology is improving every day, it is even more necessary to ensure that Congress fulfills its responsibility of oversight. It is equally important to ensure that the inspector general, the general counsel of the NSA, and our other intelligence agencies are doing their jobs. And when discrepancies or mistakes happen, there must be accountability.
Despite the dangers and concerns, I don’t think our surveillance efforts should be discontinued. Congress has gone a long way to minimize the potential harm that could arise from abuse of our intelligence programs, so the notion that we should discontinue monitoring information from phone calls, e-mails, and other activities that are vitally important to the national security of our country is shortsighted and dangerous.
CHAPTER 30
GET YOUR UNIFORM ON
Often the branches of the US government engage in what I call an intense “dance,” resulting from the separation of powers envisioned by our Founding Fathers. Like two passionate flamenco dancers facing off with each other, at one moment flirting, at another moment flitting away, tantalizing and tempting as they interact, sometimes embracing each other, at other moments each violently stomping his or her feet, as though saying, “We will do this my way.” Ironically, the dancers in the branches of government are supposedly working together. Usually they do, but when Congress established the National Commission on Terrorist Attacks Upon the United States, or more simply, the 9/11 Commission to investigate the 9/11 attacks, including the US intelligence failures, I knew the dance would eventually get heated—and it did, including threats of subpoenas.
As White House counsel, I spent an inordinate amount of time with the 9/11 Commission over a two-year period. While the president wanted the White House to be helpful, and most importantly, to learn how we could better prevent future attacks by examining where we were vulnerable on September 10, 2001, my job—one that I exercised to the fullest—was to protect the institution of the presidency. These were uncharted waters relating to an unprecedented national tragedy, and I understood all too well that the way we provided access to personnel and information would set a precedent for future officials in the White House.
I had numerous official conversations with the members of the commission, especially Chairman Thomas Kean and Vice Chairman Lee Hamilton, resulting in some concessions and many disagreements over access to classified and privileged documents, as well as public testimony of executive branch officials. I also had many back-door conversations with certain commission members that helped pave the way to various compromises.
One of the more difficult debates revolved around whether National Security Advisor Condoleezza Rice would present public testimony before the commission. Condi had already given hours of testimony in private interview sessions, so I resisted because I felt the commission simply wanted to make a spectacle of her public testimony. No sitting national security advisor had ever testified before Congress on a matter not related to possible wrongdoing. Neither Andy Card nor I wanted Condi to testify. It would establish a harmful precedent. Historically, members of the president’s senior staff do not testify before Congress about events, policies, or conversations relating to or involving the president or the White House. This privilege was intended to encourage candid communications between the president and his advisors. The president also did not want Condi to testify in public. But for reasons that only Condi could explain, she wanted to testify, and she advocated strongly for that position. I suspected that she felt the need to publicly defend her integrity, partly to counteract accusations by former counterterrorism director Richard Clarke in which he indicated that we had prior information that Condi and others could have used to help prevent the attacks. Condi was offended—with good reason—and kept pushing the president for permission to publicly testify.
I was at my son Graham’s high school track meet on a Saturday afternoon when I received a call from the president. I casually slipped away from the bleachers where Becky and I had been watching the events. I walked down toward the end of the track to take the call.
President Bush expressed his concern about whether Condi should testify. “I just want to confirm that you think the right thing to do is to hold the line.”
I could sense that his opinion was not as strong as it was previously. I guessed that he was trying to gauge whether my position was still firm.
“Yes, sir, I do. The notion that she has to testify publicly under oath is silly. Condi has already testified privately, testimony that must be lawful under penalty of law. They have already asked her all their questions, they already have her answers; anything more is just theater.”
“I understand and agree.”
When I got off the phone, I breathed a sigh of relief. Okay . . . we’re okay. We’re going to hold the line.
Somewhere between that afternoon and the next morning, the president changed his mind. Andy and I were disappointed, but this was the president’s decision to make. My job was simply to make him aware of the possible repercussions on the institution of the presidency. Perhaps President Bush was responding to the wishes of the families of the 9/11 victims. No doubt he also hoped the attacks were a once-in-a-generation crisis, and future presidents would not be burdened by this precedent.
To help reinforce that point, I wrote a letter to the Speaker of the House and to the Senate majority leader stating that Dr. Rice’s testimony was highly unusual, but given the circumstances of 9/11, the president was going to permit it. From the White House’s perspective, however, her testimony would not be considered a precedent in future requests for testimony by high-level executive branch officials. It was the best I could do to protect the institutional prerogatives of the presidency.
An even more significant issue arose over the commission’s desire to interview the president and vice president. For months, the president refused the commission’s repeated requests, but after acquiescing to Condi’s requests, he later agreed to a private interview in the Oval Office, with all ten of the commission members. Their unprecedented interview, conducted with both the president and vice president at the same time, was historic. I was the only senior White House staff person in that three-hour-long, unrecorded interview, and Bush spoke bluntly about the events on 9/11 and his assessment of the war on terror. The president said it was his responsibility to protect America. “If previous administrations could have stopped al-Qaeda, they would have. If we could have stopped al-Qaeda, we would have.” He paused and then with firmness in his voice said, “The best strategy is to kill them. They are cold-blooded killers.” Referring to the Madrid train bombings, the president said bluntly, “When bin Laden sees Spanish troops pulling out of our conflict because of the train bombings, he will kill more.” Regarding the safety of America, the president reiterated strongly, “I am responsible.”
It was Bush at his best.
While I was working in the White House, my mother visited my wife, boys, and me in Washington. We toured the majestic historic monuments in the capital city and visited many of the museums, just as other tourists. But I also took my mom to the Oval Office to see the president. It was important for me to show this shy, seventy-year-old woman, who stood five foot nothing and had picked crops as a young girl, what I had accomplished, thanks to her sacrifices and those of my father.
Thanks to my parents, my sibli
ngs enjoyed lifestyles unimaginable to our grandparents, and I was living the American dream. At the time, my sister Angie lived with our mom and cared for her; my brother Tony had become an officer with the Houston Police Department, and for more than twenty-five years would serve as a key member of the force’s SWAT team. Our brother Timmy went through some difficult times, getting involved with drugs and alcohol and temporarily losing his way. But he would eventually return to his faith in God and became a minister of the gospel. Theresa and Christina were thriving, and our youngest brother, Paul, was an overachiever who one day would travel the world for his business.
As I took a few minutes to show my mom around the White House and then to the Oval Office, I thought, This is the American story; it is my story; it is all of our stories—that we live in a free country where dreams still can come true—and it remains a story worth fighting for, dying for, and living for.
On the last day of her visit, she was up before dawn to make breakfast for me. Reminiscent of the daily ritual I had enjoyed as a child, Mom filled the table with eggs and tortillas, just as she had done every morning for my father before he left for work. But I wasn’t dressed in coveralls and a hard hat, ready to go work at a construction site. I was wearing a business suit, and I was reporting to work at the White House to advise the president of the United States. I imagined the wonder that filled my mother’s heart. What a miracle, that her son could take her from the cotton fields of Texas to the Oval Office in the White House.
While President Bush’s initial agenda had been redirected by the 9/11 attacks, transforming him into a wartime president, perhaps nothing defines a president’s legacy any more than the men and women he selects to serve on the US Supreme Court. Similarly, no position in government has as much potential to impact and shape the long-term course of the nation as does a Supreme Court justice. The court’s influence on American society is enormous. Consider, for example, the court’s decisions about prayer in public schools, or the Roe v. Wade decision regarding abortion, or the more recent June 2015 Obergefell v. Hodges decision in which the court declared the Constitution guarantees a right to same-sex marriage, thus redefining the meaning of marriage.
The president recognized the powerful influence wielded by justices, and long before any openings occurred on the court, he and I engaged in a number of informal conversations about various aspects of the Supreme Court, including how a potential Supreme Court nominee should interpret the Constitution and the laws passed by Congress, and what role judges should play in our system of government. President Bush readily acknowledged that he was not a lawyer, so he and I discussed my view of the limited role of a judge, as well as my views of specific potential nominees.
About each potential nominee I asked myself several questions to help me properly advise the president. For instance: Is the person qualified by virtue of education and achievement? Is the nominee confirmable? Who controls the Judiciary Committee before whom the nominee must appear and be recommended for confirmation? Is the person a member of a minority group? Most important, what is the person’s judicial philosophy about the role of the court in our constitutional framework? And finally, I asked about intangibles such as character and courage. Is this person’s character strong enough to withstand the intense scrutiny that goes with the nomination and the job? And does the person have the courage to apply a consistent set of conservative principles, not merely today, but ten or twenty years from now?
I gave the president straightforward answers about the pros and cons of various possible selections. I emphasized that the best way to guess how a potential nominee might rule from the bench is to look at how he or she judged other cases (assuming the person under consideration had previous judicial experience).
Of course, my own possible nomination to the Supreme Court created an unspoken awkwardness. The president and I conducted our conversations against the backdrop of numerous stories in the media suggesting that he might make a historic choice by nominating the first Hispanic to the highest court in our nation—namely, me. That raised the hopes of Hispanics and raised the ire of ultraconservative types, as well as liberals.
From our conversations, I understood that while the president intended to nominate only someone with a conservative track record and stellar credentials, he had no desire to take on a difficult confirmation battle because of a person’s prior record, rulings, or remarks on controversial issues such as race, religion, or abortion. While I knew this would disappoint hardcore right supporters, my sense was that the president was comfortable moving the court to the right in incremental steps.
The president had campaigned on the promise of appointing justices in the conservative vein of Justices Antonin Scalia and Clarence Thomas, but privately he also emphasized diversity. There is no doubt in my mind that he would have been delighted and proud to have appointed a woman or a Hispanic to the court. When discussing our wish list, the president often reminded me, “Bring me diversity.” He looked to me to recommend only people qualified by virtue of their education, training, and experience, but I also understood his habit of going with his gut. I knew that in the final analysis, he would base his decision on subjective factors, intangibles such as how he felt about the candidate as a person. For that reason, it was all the more important that I meet with the serious contenders and get to know them on a personal level. Well before any Supreme Court vacancies occurred during the Bush administration, I met privately with Samuel Alito and Emilio Garza in my West Wing office. I met with Michael Luttig at his home in northern Virginia. I spent an hour with John Roberts in April 2005 at my office at the Department of Justice.
Beginning as far back as the presidential transition, lawyers in the counsel’s office and the Department of Justice developed a list of potential nominees. We compiled thick notebooks filled with information about each of the potential nominees. The notebooks included the nominee’s biography, court opinions, speeches, books, articles, or other writings, and any other pertinent information. Knowing the importance of a president’s Supreme Court nominees, we kept a running list of potential justices. Our search was not limited to current or former judges; we also looked at university and law school professors and scholars, current and past members of Congress, sitting or former government officials, and community and legal leaders from around the country. We initially considered more than three hundred individuals, and then narrowed our list to one hundred, then to fifty, and then did extensive research and write-ups on approximately twenty potential nominees that we had ready for consideration by the president at any given moment. The president had made it clear to all of us that he wanted to be well informed and ready when openings on the court occurred. He was adamant that he did not wish to make the same mistake his father had made in nominating someone like Justice David Souter, who was assumed to be conservative, yet often leaned more liberal in his decisions once on the court.
During the last year of President Bush’s first term, as chances of a court vacancy increased, the president agreed that a small group of individuals would make final recommendations to him in the event of a vacancy. This unofficial, unnamed committee began meeting to discuss potential nominees. The group included Dick Cheney, John Ashcroft, Karl Rove, Andy Card, and me.
Cheney was not bashful about letting his opinions be known regarding the possible selections. He wanted the bluest of blue conservatives possible. He recognized that might engender a fight with liberals. “I’m telling you right now,” he said, “we’ll come up with a list of conservatives, and if the first one gets knocked down, we’ll move on to the next.” I suspected Ashcroft was in the same camp. Andy, Karl, and I all favored conservative jurists, but were realistic in terms of how far the president could move the court to the right.
Prior to the end of President Bush’s first term, he and I engaged in candid conversations about my future. While I was honored that my name had ever been mentioned as a possible Supreme Court justice, I expressed my concerns that due to my
roles in the detainee interrogations, the terrorist surveillance programs, and other controversial decisions, I would be too heavy a lift when it came to confirmation. Moreover, I worried about how conservative groups might view my positions on affirmative action based on the Michigan cases, and abortion based on my votes while serving on the Texas Supreme Court regarding the parental notification cases. No doubt, Karl Rove and others expressed those same concerns to the president. As White House counsel, I would have done the same about a candidate with my history.
It was obvious that President Bush was going to run for a second term, so my wife suggested I resign and that we leave Washington at the completion of his first term. That would be a natural transition for the president and for us. That would also give me a chance to earn a little more money, before—if or when—the president might want me to go on the court.
Becky and our children and I would have been perfectly comfortable returning to Texas after serving out the first term, but the president requested that I stay aboard. “I have plans for you in the second term,” he told me.
When John Ashcroft resigned as attorney general the day after the 2004 election, the president, who often used sports metaphors, said to me, “Get your uniform on; you’re going in.”
I mentioned the president’s comment to Becky. My wife still had reservations about my staying on in the Bush administration. Becky was anxious for us to get back to Texas and for me to continue my law practice. She realized that our boys were growing up fast, approaching college age, and we needed to earn some money. Contrary to popular opinion, most people serving in high-profile positions in government do not get rich while in office. Although government service pays well compared to many other jobs, the cost of living in Washington evens the playing field. We had been living frugally since serving in Texas, and Becky had done a great job of pinching pennies. But with college for our boys on the horizon, she knew our budget was stretched beyond our means.
True Faith and Allegiance Page 38