by James Comey
“Who’re we waitin’ on?” Bush asked, after he entered the Roosevelt Room five minutes before the scheduled start time.
Someone answered that Comey was downstairs in the Situation Room.
“Jim can catch up when he gets here,” Bush said. “Let’s get going.”
Bob could feel the perspiration trickle down his neck. The meeting marched through the departments, as various principals gave the president their briefings. Labor. Housing and Urban Development. Education. Agriculture. My seat sat empty. Bob’s ears began ringing as he realized he didn’t even know enough to give the president a bullshit answer. He had neither bull nor shit. Veterans Affairs. Health and Human Services. His head was swimming; he could feel his heart beating through his suit. Commerce. Small Business Administration. Beads of sweat on the back of his neck had by now soaked through his collar. Then the door burst open and, like the cavalry, I strode in.
“Hey, Jim, perfect timing,” Bush said. “I was just about to turn to Justice.”
I sat and gave him my spiel, the president thanked everyone for coming, and the meeting broke up. Bob didn’t look happy. “I’m going to kill you,” he whispered.
* * *
Although I may have had a different idea of “fun” than most, there were some parts of the Justice Department that had become black holes, where joy went to die. Places where morale had gotten so low and the battle scars from bureaucratic wrangling with other departments and the White House so deep, I worried that we were on the verge of losing some of our best, most capable lawyers. One of those places was the Justice Department’s Office of Legal Counsel, a kind of Supreme Court within the executive branch. Its gifted lawyers—who I often described as an obscure and isolated order of monks—would be given the hardest legal questions by people in other parts of the executive branch. Their job was to think about them well and render an opinion whether a proposed action was lawful, taking into account what the courts, Congress, and any earlier Office of Legal Counsel opinions had said on the topic. This was hard stuff, because often they had very little to go on in forming the opinion. It was harder still when the subject was classified, limiting their ability to talk about it with colleagues.
The head of the office was Jack Goldsmith. He was a former law professor and a generally sunny, cherub-faced man. But after only four months in his job, his list of problems was starting to dim that angelic glow. He had inherited a set of legal opinions written quickly and under great pressure by his predecessors following the attacks of September 11, 2001. Those lawyers had attested to the lawfulness of aggressive counterterrorism activities by the Central Intelligence Agency and the National Security Agency. The president and the intelligence community had relied on those opinions for more than two years. The opinions were dead wrong in many places, Goldsmith concluded. And the debate within the Bush administration over them was getting nasty.
Goldsmith’s primary concern was a then highly classified NSA program code-named “Stellar Wind.” Goldsmith and another brilliant department lawyer named Patrick Philbin had concluded that Stellar Wind, a program of NSA surveillance activities conducted in the United States against suspected terrorists and citizens without the need for judicial warrants, had been authorized by their predecessors on legally dubious grounds. Meanwhile, the entire Bush administration had come to rely on the program as a source of intelligence in the fight against terrorism. What Bush appeared not to know was that the NSA was engaging in activity that went beyond what was authorized, beyond even the legally dubious, and into what Goldsmith and Philbin concluded was clearly unlawful.
I understood the urgency behind these activities. Just two years had passed since the terrorist attacks of 9/11, when three thousand innocent people had been murdered in our country on a single, clear blue morning. That day changed our country and it changed the lives of all of us in government. We swore to do all we could to prevent such loss again. We would change the government, reshape the FBI, break down barriers, get new tools, and connect dots, all so we could avoid a pain so large as to be almost beyond description. I became the United States Attorney in Manhattan when Ground Zero, where thousands died, still smoldered. Late at night, I would stand at the fence and watch firefighters sift through the dirt to find those lost. Nobody needed to tell me how hard we needed to fight terrorism, but I also understood we had to do it the right way. Under the law.
Goldsmith and Philbin had shared their concerns with the White House—where the president’s counsel, Alberto Gonzales, and the vice president’s counsel, David Addington, were the primary contacts. Of the two, Addington was the dominant force. He was a tall, bearded lawyer with a booming voice that showed just a hint of a southern accent. In philosophy and temperament, he was a reflection of Vice President Cheney. He did not tolerate fools and had an ever-expanding definition of those who fit that category. After infuriating Addington by telling him the legal foundation of the program was falling apart, Goldsmith and Philbin then set about trying to convince Addington that I, the new deputy attorney general, should be told about—or “read into”—the Stellar Wind program so I could actually see what was going on.
Addington resisted this mightily. Since the program was conceived and authorized, he had succeeded in keeping the number of those who knew the details of the program to an absolute minimum—maybe a couple dozen throughout the U.S. government. Four people at the entire Justice Department had previously been read into the program, and that did not include my predecessor as deputy attorney general. On an activity of such profound importance, one that tested the limits of the law, that small circle was unusual if not unprecedented. Addington had even arranged to have the documents on the program held outside the normal process for presidential records. He—the vice president’s lawyer—kept the orders bearing the president’s signatures in a safe in his own office. Eventually, and only after considerable pressure, Addington relented and allow me to be briefed.
In the middle of February 2004, I found myself in a Justice Department secure conference room with the director of the National Security Agency, Air Force General Michael Hayden, getting from him a long-awaited briefing on the highly classified surveillance program. Hayden was an impeccably dressed, amiable man, with wire-rim glasses, a bald head, and a talent for folksy sayings and Pittsburgh Steeler references. As we sat down at the table, the general offered a preamble that I will never forget. “I’m so glad you are getting read into this program,” he said, “so that when John Kerry is elected president I won’t be alone at the green table.”
The reference to congressional testimony, behind a table that is often green, was jarring. What was this man about to tell me that required him to express his joy that I would join him in a congressional grilling once a new president arrived? And why on earth would he say such a thing to the second-ranking official of the United States Department of Justice? I had no time to do more than think these questions, because General Hayden plowed right into his briefing. His way of mixing folksy aphorisms and NSA-speak was both entertaining and reassuring. The problem, I would come to realize, was that his briefings were a river of really great-sounding stuff that didn’t make much sense once the briefing was over and you tried to piece together what you had just heard.
After Hayden departed, my Justice Department colleagues, Jack Goldsmith and Patrick Philbin, visibly exhaled. They then explained to me how the surveillance program actually worked and why so much of it was totally screwed up, as a matter of both law and practice. The NSA was doing stuff, they maintained, that had no legal basis because it didn’t comply with a law Congress had passed a generation earlier, which governed electronic surveillance inside the United States. The president was violating that statute in ordering the surveillance. The NSA was also doing other stuff that wasn’t even in the president’s orders, so nobody had authorized it at all. This wasn’t General Hayden’s fault. He wasn’t a lawyer or a technologist and, like Attorney General Ashcroft—who was prohibited from discussing
the program even with his personal staff—Hayden was strictly limited in who he could consult about the program. The program was set up as a short-term response to a national emergency, because even Addington knew this was an extraordinary assertion of presidential power, so the president’s orders were for short periods, usually about six weeks. The current presidential order expired on March 11. Goldsmith had told the White House that he could not support its reauthorization.
Given what I knew, I had to ensure that my boss had all of the facts. Many times over the past two-plus years, Ashcroft had approved Stellar Wind, and he needed to know that had been a mistake and could not continue. On Thursday, March 4, 2004, I met alone with Attorney General Ashcroft to tell him in detail about the problems with the program and why we could not approve another extension. We ate lunch together at a small table in his office. I brought my own store-bought sandwich in butcher paper. (It was either turkey or tuna. I was so busy in those days that my assistant, Linda Long, held my money and followed instructions to alternate those two sandwiches, forever.) The attorney general had a fancier setup from his chef, which was good because I needed the salt and pepper shakers and pieces of silverware to represent parts of the program. I showed him which pieces we could make reasonable arguments to support and which we simply couldn’t and that would need to stop or be changed. Ashcroft listened carefully. At the end of lunch, he said the analysis made sense to him and we should fix the program to be consistent with the law. I told him we had been keeping the White House informed and I would now march out and execute on his authority.
After our lunch, Ashcroft headed to the United States Attorney’s office across the Potomac in Alexandria to do a press event. He never made it. He collapsed and was rushed to George Washington University Hospital in the District of Columbia with acute pancreatitis, an extraordinarily painful ailment that can also be fatal. By this time, I had gotten on a commercial flight to Phoenix for a government meeting. I learned of the attorney general’s condition as I walked off the plane. My chief of staff, Chuck Rosenberg, called to tell me that with Ashcroft incapacitated, I was now the acting attorney general and needed to be back in Washington. They were sending a government plane to retrieve me.
Back in Washington, I met on Friday with Goldsmith and Philbin. They had communicated the Department of Justice position to the White House. The renewal date was March 11, one week away, and we were not going to support a renewal in the program’s current form. That weekend, Goldsmith was summoned to meet with Gonzales and Addington, but no progress was made. Gonzales was, as usual, pleasant. Addington was, as usual, angry. Neither man could explain to Goldsmith why we were wrong. Goldsmith had also informed them that I had assumed the duties of the attorney general.
On Tuesday, March 9, I was summoned to a meeting at the White House in Chief of Staff Andrew Card’s office. Card was a pleasant man who was usually quiet in meetings I attended. He saw his role as ensuring that the process supporting the president worked. He was not an adviser, at least not in my experience. Goldsmith and Philbin were with me. The vice president was presiding. He was sitting at the head of the conference table. I was offered a seat to his immediate left. Also at the table were General Hayden, Card, Gonzales, FBI Director Bob Mueller, and senior CIA officials. Goldsmith and Philbin found chairs at the far end, down to my left. David Addington stood, leaning against a windowsill behind the table.
The first part of the meeting was a presentation by NSA personnel using charts to show me how valuable the surveillance program had been in connection with an ongoing Al Qaeda plot in the United Kingdom. The intelligence collected had produced a link chart that showed connections among members of a terrorist cell. That was important stuff. Of course, I knew enough about the matter to have serious doubts about whether the NSA’s program was needed to find those links, given the other legal tools we had. Still, I said nothing. Our concerns were not based on the usefulness of the program. That was for others to decide; our job was to certify that the program had a reasonable basis in law.
After the analysts rolled up their charts and left the room, the vice president took over. He and I were sitting close enough to touch knees, with Addington out of focus behind Cheney. The vice president looked at me gravely and said that, as I could plainly see, the program was very important. In fact, he said, “Thousands of people are going to die because of what you are doing.”
The air in the room felt thin. It was obvious that the purpose of this meeting was to squeeze me, although nobody said that. To have the vice president of the United States accuse me of recklessly producing another 9/11—even seeming to suggest that I was doing it intentionally—was stunning.
He didn’t want to hear another side. He didn’t seem to accept the obvious truth that there was another side. To him, he was right, everyone else was wrong, and a bunch of weak-willed and probably liberal lawyers weren’t going to tell him otherwise. My head was swimming, the blood rushing to my cheeks in anger, but I regained my footing.
“That’s not helping me,” I said. “That makes me feel bad, but it doesn’t change the legal analysis. I accept what you say about how important it is. Our job is to say what the law can support, and it can’t support the program as it is.”
Cheney then expressed a frustration that was entirely reasonable. He pointed out that the Department of Justice’s Office of Legal Counsel had written a memo to support the program in 2001 and that the attorney general had repeatedly certified the program’s legality in the two and one-half years since. How can you now switch positions on something so important? he asked.
I sympathized with him and told him so, but I added that the 2001 opinion was so bad as to be “facially invalid.” I said, “No lawyer could rely upon it.”
From the windowsill came Addington’s cutting voice: “I’m a lawyer and I did.”
I didn’t break eye contact with the vice president. “No good lawyer,” I added.
It was unusual for me to be nasty like that. But Addington reminded me of someone. He seemed like a bully, not too different in some ways from the kids who picked on me back in school, or even like me when I overturned that poor college freshman’s room. I didn’t like it. I had lived in a foxhole with Goldsmith and Philbin for the short several months I had been DAG. I had seen the impact of Addington’s threats and bullying on these exhausted and fundamentally decent people. In my opinion, his arrogance was the reason we were in this mess, and these two guys were really good people. I had had enough. So I was nasty. It was no surprise that the meeting ended shortly after, without resolution.
Attorney General Ashcroft’s chief of staff, David Ayres, had been keeping me informed about our boss’s condition. The situation was grim. He was in terrible pain in intensive care, with an illness that could cause organ failure and death in severe cases like his. Doctors had operated on him the very day I was meeting with the vice president.
That Wednesday was strangely quiet on the Stellar Wind front, despite the fact that the current order expired the next day. And then, late that day, Ayres called to pass on Janet Ashcroft’s urgent message—Andy Card and Al Gonzales planned to do an end run around me. They were on their way to the hospital, and I had to figure out what to do.
On the way to George Washington University Hospital, I called my chief of staff, Chuck Rosenberg. I deeply trusted him and his judgment. I told him what was happening and asked him to come to the hospital. Then I added, “Get as many of our people as possible.” I’m not sure, but I think this was an instinct from my days as a federal prosecutor in Manhattan. When a prosecutor was struggling in court, a call would go out in those days for “all hands to courtroom X.” When that announcement came, we would all get up from our desks and go, having no idea what it was about. One of our colleagues needed our support, so we went.
Whatever the source of my instinct, Chuck Rosenberg gave it life. He ran to members of my staff and soon a dozen lawyers were headed to the hospital, having no idea why they were go
ing, except that I needed them there. After that, I called FBI Director Bob Mueller, who was at a restaurant with his wife and one of their children. I wanted Bob Mueller to be a witness to what was happening. Mueller and I were not particularly close and had never seen each other outside of work, but I knew Bob understood and respected our legal position and cared deeply about the rule of law. His whole life was about doing things the right way. When I told him what was happening, he said he would be there immediately.
My vehicle screeched to a stop in the driveway of the hospital. I jumped out and ran up the stairs to Ashcroft’s floor, relieved to learn that I had arrived ahead of Card and Gonzales. Ashcroft’s intensive care room was at the end of a hallway that had been cleared of other patients. The hall was dimly lit, occupied only by half a dozen FBI agents in suits, there to protect the attorney general. I nodded to the agents and immediately went into Ashcroft’s room. He was lying in the bed, heavily medicated. His skin was gray and he didn’t seem to recognize me. I did my best to tell him what was happening and to remind him that this was related to the matter we had discussed at lunch before he got sick. I couldn’t tell whether he was absorbing any of what I was saying.
I then went out into the hall and spoke to the lead agent for Ashcroft’s FBI protective detail. I knew Card and Gonzales would arrive with a Secret Service detail and, as incredible as it seems now, I feared they might try to forcibly remove me so they could speak with Ashcroft alone. While standing with the FBI special agent, I called Bob Mueller again on his cell phone. He was on his way.
“Bob,” I said, “I need you to order your agents not to permit me to be taken from Ashcroft’s room under any circumstances.”
Mueller asked me to pass the phone to the agent. I stood as the agent listened, crisply answered, “Yes, sir,” and passed the phone back.
The agent looked at me with a steely expression. “You will not leave that room, sir. This is our scene.”