Did Cheney beget the warrantless NSA spying?

Tomorrow's report in the New York Times suggests to me at least that the warrantless spying program at the NSA was foisted on the nation at the insistence of Dick Cheney. The anonymous sources behind this story are either friendly to Gen. Michael Hayden, or at least concerned to distance the NSA from the inception of the program. You'll want to take the whole dish with a large helping of salt. Never the less, it's more than a little interesting to observe that, once again, a major scandal is laid right at the door of Dick Cheney.

From the Times story:

In the weeks after the Sept. 11 attacks, Vice President Dick Cheney and his top legal adviser argued that the National Security Agency should intercept purely domestic telephone calls and e-mail messages without warrants in the hunt for terrorists, according to two senior intelligence officials.

But N.S.A. lawyers, trained in the agency's strict rules against domestic spying and reluctant to approve any eavesdropping without warrants, insisted that it should be limited to communications into and out of the country, said the officials, who were granted anonymity to discuss the debate inside the Bush administration late in 2001.

The N.S.A.'s position ultimately prevailed. But just how Gen. Michael V. Hayden, the director of the agency at the time, designed the program, persuaded wary N.S.A. officers to accept it and sold the White House on its limits is not yet clear....

On one side was a strong-willed vice president and his longtime legal adviser, David S. Addington, who believed that the Constitution permitted spy agencies to take sweeping measures to defend the country. Later, Mr. Cheney would personally arrange tightly controlled briefings on the program for select members of Congress.

On the other side were some lawyers and officials at the largest American intelligence agency, which was battered by eavesdropping scandals in the 1970's and has since wielded its powerful technology with extreme care to avoid accusations of spying on Americans.

The anonymous NSA sources for this story are serving up generous portions of CYA, obviously. On the other hand, the mention of David Addington lends verisimilitude to the picture of the Vice President, motivated by a vision of an imperial presidency, as a prime mover in creating the warrantless NSA programs.

The NYT report is pretty difficult to interpret, but I'll do my best. Clearly, supporters of Hayden have been trying to convince the paper that neither he nor the NSA should be blamed for the warrantless spying. Yet at the same time, and I would argue as part of that spin, they depict the NSA programs as having been created by Hayden under the traditional guidelines that the NSA works under. Thus they are willing to go along with the story that Bush promulgated two months ago in Cleveland--that the warrantless spying arose as a result of a meeting held right after 9/11, at which Gen. Hayden spoke up to volunteer to institute the surveillance program.

To my mind, that raises a question that the NYT article does nothing, really, to answer: Why bring Cheney into the matter at all? The NYT piece, as quoted above, indicates that right after 9/11 Cheney strenously urged the NSA to conduct spying on domestic phone calls without warrants. Indeed, the article strongly implies that Cheney and his feared and loathed legal adisor, David Addington, were on the warpath against Hayden for some time. Hayden, we're told, absolutely refused to conduct domestic surveillance. Ultimately, the NYT advises us, the good guys at the NSA won out in this struggle for control over the programs. They designed them so as to accord with the law, we're told, or at least with what they believed the law permitted.

So how does Cheney even figure in this story? A partial answer is, obviously, that his role in the tale makes everybody else involved in the spying look good by comparison. If you're appalled by the spying that (you now know) is being done, imagine how much worse it would be if Cheney and Addington had gotten their way.

That's just dandy. But, still, I have this nagging doubt. If Cheney's idea for purely domestic surveillance went nowhere in the end, why is the Vice President's abortive role being dredged up now by NSA types?

Perhaps a better explanation is that the foundation myth for the warrantless spying program has until now omitted a key detail: The initial idea for the program came not from Hayden, but from Cheney.

It could well be that Cheney also or especially wanted the program to focus on domestic surveillance, and that the NSA or Hayden in particular redirected the program's focus toward less indefensible targets. Or perhaps Hayden and the NSA convinced themselves that they had managed to refocus it away from the worst excesses that Cheney lusted after. If so, the NSA would have remembered very distinctly the role of Cheney in the genesis of a program that actually did take effect (though, possibly, in modified form). That seems like a much more plausible scenario, than the implication of the NYT story as presented--that the NSAers still vividly resent a push by Cheney that ended up going nowhere.

Naturally, since the news article in question does not give away why Cheney's role is given so much prominence, all this analysis must remain speculative. Still, the NYT piece provides plenty of big gaps in which to maneuver. Perhaps my own reconstruction is as credible as the curious story the NYT tells.

In fact, the third paragraph (quoted above) seems to imply that the reporters, Scott Shane and Eric Lightblau, were somewhat bemused by the account they were being given. Of the three questions they indicate remain unanswered by their informants, the most intractable is "just how Gen. Michael V. Hayden...persuaded wary N.S.A. officers to accept it". If Hayden and the NSA really were sticklers for remaining within the law and abiding by the Agency's operating principles, why did they create programs that by nearly every account (except their own) are egregiously illegal?

The story we're given here does not add up, as even the reporters seem to acknowledge. The position reportedly taken by Hayden and reluctant staffers at the NSA would however make much more sense if they viewed it as the best compromise they could strike with an administration, one half of which was trying to force the NSA to spy much more aggressively on Americans at home.