When these men were brought in at the Department of Justice, I reiterated the White House’s position—to look carefully at Stellar Wind to make sure we continued operating within the law. With my knowledge and blessing, Jack and Pat plunged into a major review of Stellar Wind, to make sure it remained on as strong a legal footing as possible. To better understand what NSA was doing, they visited the operators and analysts at the agency’s Fort Meade headquarters. They had total access to everything about Stellar Wind, as well as NSA’s legal and operational staffs. I fully supported and encouraged the efforts by Jack and Pat to understand the technical aspects of Stellar Wind.
Pat, especially, became a regular visitor to NSA. Pat asked pointed questions and peeled back the surveillance program one layer at a time, never voicing anything specifically but giving the impression that he was not totally comfortable with what the NSA was doing, but not stating why. He was liked by Mike Hayden and others at the agency, but he showed up at NSA so often, his presence piqued Hayden’s curiosity. Early in 2004, General Hayden crossed paths with Pat right outside the NSA director’s office. Hayden recalls, “I went up to Patrick one on one, nose to nose, and said, ‘Patrick, do I have to stop doing anything?’ He said, ‘No, no, you don’t.’ ”11 But Philbin continued to probe.
In early 2004, Jack Goldsmith informed me that he had concerns about some of the previous OLC reviews, but we could continue to rely on prior OLC legal opinions until his review of Stellar Wind was complete. He had questions about John Yoo’s broad view of the authorities granted to the president.
I said, “Fine, get comfortable. We want to make sure that what we’re doing is lawful.” So Jack went back and looked at the program and the law some more, and we had several subsequent conversations. I welcomed that kind of review, because it was important for the president to be assured that Stellar Wind was lawful. We had already tweaked the surveillance program from time to time, and in certain cases, we had narrowed it when necessary. It wouldn’t have been the first time lawyers in the Department of Justice were telling us to change the program in certain ways. That had had happened before, so I wasn’t overly concerned. In fact, I was happy Jack was looking at it and was making sure we were doing the right thing.
During the first two months of 2004, Stellar Wind operated as usual in its entirety, including the Terrorist Surveillance Program (Basket I). Attorney General Ashcroft signed off on it, as did the CIA, the DOD, and, of course, the president. The attorney general’s signature was particularly important to telecom companies who were relying on the Justice Department to say that their assistance with the government was legal and did not violate the rights of US citizens. Moreover, the AG had met with representatives of some of these companies, assuring them that their cooperation was legal.
Unfortunately, on Thursday, March 4, 2004, just days before the Stellar Wind program was required to be renewed again or else be discontinued, John Ashcroft developed severe abdominal pain and was hospitalized at George Washington University Hospital. He was diagnosed with acute gallstone pancreatitis, an extremely uncomfortable and potentially life-threating illness in which a gallstone blocks a duct of the pancreas, a gland that produces enzymes that aid in digestion. The doctors stabilized Ashcroft’s condition but kept him in the hospital, where he underwent surgery on March 9.
Meanwhile, on Friday afternoon, March 5, Jack Goldsmith and Pat Philbin came to my West Wing office to meet with David Addington and me regarding their concerns about the collection of certain metadata in the Stellar Wind program. As the head of OLC, Jack understood what his mission and charge was from the White House. His job was to tell us where we can draw the box in terms of what is lawful. The president would decide how close to the lines of the box we would move for the sake of national security. For months, Jack had expressed concerns, but had never presented those concerns as a final position. My response was always the same. “Well, fine. Keep looking. Make sure we’re doing the right thing.”
During our previous meetings in the early months of 2004, Jack had hinted that perhaps we needed to narrow the activities and tie them more closely to the 2001 authorization to use military force. Jack had a different, more narrow perception of the scope of the president’s constitutional authority than John Yoo had presented. John held a rather expansive view that FISA could not limit the president’s commander in chief powers under the Constitution regarding electronic surveillance. Jack’s view was far more limited. Consequently, Jack seemed more comfortable if the activities under Stellar Wind fit neatly within the authorities granted in the AUMF.
Jack would later write, “For months, Patrick Philbin and I had been trying to find a way to put an important counterterrorism initiative on a proper legal footing. We had come up empty, however, and were now meeting with Alberto Gonzales and David Addington to explain that the Justice Department could not support the initiative’s legality.”12
It wasn’t until this meeting—the one Jack is referring to that took place on March 5, 2004—that Jack first provided his specific opinion that certain collection of metadata could not be supported by the president’s constitutional authority, nor by the 2001 AUMF; thus, we had a problem under FISA. Now, neither Jack nor Pat said that any aspects of Stellar Wind were unlawful and should be discontinued; instead, they both expressed the idea that to keep everything legal, the collection of certain information should be modified and certain aspects of the program narrowed in scope to minimize the collection of US person data (data about a US citizen, a lawful permanent resident, or a US corporation).
David Addington was clearly irritated at this news, and not bashful about expressing his disgust. After all, the Justice Department had blessed these activities for more than two years. Jack recalls David responding, “If you rule that way, the blood of the hundred thousand people who die in the next attack will be on your hands.”13
He was not being bombastic or overly dramatic. We lived with the daily threat of extraordinary evils, from conventional attacks to catastrophic destruction. Much of our intelligence was drawn from billions of communications, a portion of which Jack was now saying were off limits for NSA surveillance. Granted, many of the daily threats never materialized; other potential threats were thwarted before they grew into something more serious. But as we were often reminded, the terrorists could be wrong a thousand times; we could not be wrong even once.
Moreover, attempting to prevent attacks from such an obscure, nebulous, nationless enemy made matters even more complicated. Jim Baker, the former head of the Office of Intelligence Policy and Review, compared our task to that of a goalie in a soccer game who must stop every shot because the enemy wins if it scores a single goal. The problem, Baker says, “is that the goalie cannot see the ball—it is invisible. So are the players—he doesn’t know how many there are, or where they are, or what they look like. He also doesn’t know where the sidelines are—they are blurry and constantly shifting, as are the rules of the game itself.” The invisible players might shoot from the front of the goal, or from the back, or from some other direction—the goalie just doesn’t know.14 Baker was not the first or the last to use this sort of metaphor, and it alarmed me every time I heard it.
I knew that Jack and Pat had worked hard to make sure the advice from OLC was solid and could be upheld in the courts. To their credit, legal opinions often change based on new information or circumstances or even court decisions. I could accept their different opinions if that was the motivation behind their reticence to continue Stellar Wind as it was. But I wanted them to be sure of their position.
I never once questioned the integrity of these two men, their commitment to the law, or their love for our country. Jack was relatively new to the Justice Department, so it made sense for him to question some of the things that had been done from his office in the past. Pat had been there since 2001, and knew the terrorism playing field well. He also understood the positions of the telecommunications companies well, and had extensive experience
challenging federal agency decisions in the courts of appeals. Pat had served as one of Verizon Communication’s primary outside counsel challenging multiple FCC rulemakings implementing the Telecommunications Act of 1996. He knew both sides of the coin.
So I had no qualms about what Jack and Pat were doing. Nevertheless, I worried that they might be retreating from previous OLC opinions simply because the Stellar Wind program was sure to be controversial if it were ever discovered—as it most certainly would be one day. Jack was also an expert on “lawfare,” the attempts by foreign countries to claim “universal jurisdiction” whereby they could indict and prosecute US officials as far ranging as Henry Kissinger, Donald Rumsfeld, or General Tommy Franks and others for war crimes, based on the actions of our country. The United States did not agree to this policy, but I wondered about Jack’s concerns regarding possible future international prosecutions.
“Certainly, the president is free to overrule me, if he wants,” Jack told David and me. We knew that, of course, but we also knew—and I’m guessing that Jack did as well—that the president would not likely want to overrule the OLC when his entire administration had been relying heavily upon the OLC for approval of Stellar Wind for more than two and half years. I would have advised against overruling OLC as well, since acting in contravention of DOJ guidance in normal circumstances placed the president in legal jeopardy and serious political danger.
Jack implied that there were precedents for a president to do whatever he felt was necessary to protect the country during times of crisis going all the way back to Thomas Jefferson, Abraham Lincoln, and Franklin D. Roosevelt. That, too, was known to us, but helped little in solving our problem. During dangerous times, I believed the president was willing to go to the edge of the box in doing what was lawful, but I did not believe he would allow us to engage in illegal surveillance activities, on anything outside the box.
As Jack and Pat were preparing to leave my office, Jack reiterated that he felt that OLC should advise the president to narrow the scope of the collection activities NSA was conducting, making it fit neatly under the AUMF.
“Do whatever you need to do,” I told them, “but only what you need to do.” I knew that Stellar Wind was an important program for our nation’s security and President Bush would not want to change it unless something about the surveillance activities was considered unlawful. Jack and Pat understood and went back to work on the opinion.
Later that afternoon, I called Jack and told him that if OLC was going to require a change in the scope of the surveillance activities, I wanted to make sure the OLC legal opinions covered the new parameters of what the NSA could do. “Whatever you do,” I said, “make sure that whatever our intelligence people need to do is covered by the OLC opinion.”
It was an innocuous request, but my exhortation to Jack set in motion a series of events that changed the security of our country, and nearly destroyed my reputation and career.
CHAPTER 26
STUNTING STELLAR WIND
It had been quite awhile since I’d enjoyed a simple, fun weekend in Washington with my family. This weekend would be no different in that respect, but pivotal in many others.
On Saturday afternoon, March 6, Jack called me and urgently demanded a meeting with David Addington and me. Along with Pat, we met in my office at about 3:30 p.m. and discussed their concerns about various aspects of Stellar Wind for several hours. Jack explained that following my call to him the previous day, he and Pat had gone back to review President Bush’s authorization of Stellar Wind, and the various existing legal opinions that had been rendered about it. After thinking about it overnight, Jack essentially said, “I don’t think all of the Stellar Wind collection is covered by the opinions that we’ve been giving you.”
It was as though he had experienced an “Oh, my God!” moment and now he could see that one element of Stellar Wind was problematic.
Jack had two main concerns about the Stellar Wind program: one, the language of the authorizations that President Bush had signed did not specifically authorize the full scope of the collection, nor was it covered by the language of the previous OLC opinions. And two, in Jack’s legal opinion, the president’s constitutional commander in chief authority was not broad enough to authorize all aspects of the collection program currently being implemented by the NSA. Specifically, certain aspects of the program involved the collection of too much US person information. Further, Jack felt the AUMF would not provide the necessary legal authority.
Lawyers frequently disagree about the scope of the president’s constitutional authorities, particularly during a time of war; that was not new. The original author of the OLC opinion, John Yoo, and the previous head of OLC, Jay Bybee, both believed that the president’s constitutional authority was, indeed, broad enough. The lawyers at NSA believed the same. Jack, however, did not. And Jack was now the head of the OLC.
I was surprised at Jack’s unwavering reliance on the AUMF because a previous OLC opinion considered FISA as a safe harbor that could not impinge on the constitutional powers of the commander in chief during a time of war. Jack, however, continued to hold firm.
As we discussed the situation, Jack felt confident that we could fix his first concern relatively easily, simply by having David Addington write a new authorization with President Bush expressly authorizing the collection of all three baskets and ratifying the collections under previous authorizations. David, Pat, and I agreed that Jack’s proposed solution made sense to us.
The second concern was much more complicated. Jack and Pat could not find legal authority to support one particular aspect of Stellar Wind collection, which was an indispensable step in the targeted search and analysis—the very activity that Jack believed was lawful. Ironically, the OLC had no qualms about finding lawful the remainder of Stellar Wind.
As I mentioned earlier, because the detailed mechanics—how things are actually done—and the steps followed are still classified, the US government places limits on what can be said about it. To better understand what the concerns were in 2004, recall the old saying, “Trying to find a needle in a haystack.”
At times, attempting to identify a threat to our country or gather intelligence to prevent another attack was like trying to find a needle in a haystack. Now imagine that you do not even have the haystack!
That gives you some idea of the situation in which we found ourselves when the Department of Justice lawyers shifted their position. We no longer even had the haystack in which we wanted to search for the needle. We could do targeted searches for the al-Qaeda “needle,” but the department lawyers now contended that we had no legal grounds on which to gather hay or even to add hay to an existing stack.
Jack told me he and Pat had already consulted with James Comey, Ashcroft’s new deputy attorney general who had joined the Justice Department in December 2003 after serving as the US attorney in the Southern District of New York, a district painfully aware of the consequences of our inability to connect the dots prior to 9/11. Comey’s Manhattan office had been just a few blocks from Ground Zero.
Standing six foot eight inches, Jim would have been extremely intimidating had it not been for his quick smile. But his ready smile did not diminish his serious, black-and-white approach to the law as a prosecutor. Shortly after he had been confirmed by the US Senate and had moved his wife and five children to the Washington area, Comey was read in to the Stellar Wind program by Mike Hayden on February 19, 2004, just a few weeks before Jack Goldsmith first reported to me that he had concerns. When Jack revealed his concerns to Jim, the new DAG concurred: the president’s constitutional authority as commander in chief at a time when there was no direct threat of danger to the United States was insufficient to overcome the congressional prohibition under FISA to order the collection of metadata records that unavoidably included the records of millions of innocent Americans.
It was during that Saturday-afternoon meeting with David Addington and me that Jack fully articulated the
specific concerns he had related to one particular aspect of Stellar Wind and suggested to us that he could not, as head of OLC, recommend going forward with that part of Stellar Wind. Jack emphasized that there was no finding of past illegality, but he also felt that we could not continue certain other aspects of the collection, based on the existing, previous legal guidance from OLC.
This was serious. Here we were only five days before the expiration of the president’s previous authorization, and Jack was telling us we had a problem with a key component of it—with no apparent solution.
Exacerbating matters still further, the 9/11 Commission had been exploring the reasons for 9/11, including all the efforts that should have been made to prevent the attacks. They had already teed up nationally televised hearings and wanted everyone from Condoleezza Rice and John Ashcroft, to Bob Mueller and George Tenet—and even the president and vice president—to testify or be interviewed about what went wrong. The commission’s not-so-subtle implication was that we would be held accountable by the American people should we fail to stop another major terrorist attack. Even Congress agreed with the commission that we needed to be forward-leaning in our efforts against terrorism, certainly more aggressive, and more creative as well. Clearly, this was not a time to be cutting back or impeding one of our key intelligence programs.
Jack understood this well, and perhaps that was why I sensed that he struggled with the message he presented to us. He might even have been embarrassed to tell the White House that we had to stop doing something that the Department of Justice had been approving for more than two years. Regardless of the bad news, I never questioned Jack’s commitment or his willingness to work toward a solution. Pat’s agreement with Jack buttressed his boss’s position, and made the situation even more untenable, since Pat was considered one of OLC’s best communications law experts.
True Faith and Allegiance Page 33