Now that we had been fighting in Afghanistan for three years and Iraq for a year, I worried that some people in the White House would think these new lawyers at Justice—with nothing vested from the beginning of the war on terror—were backing away from controversial stands. I also worried that the DOJ lawyers were now—even if unintended—hanging out to dry the agents and operators who had relied on the guidance.
After Jack and Pat left my office, David and I remained behind for quite a while, earnestly discussing what we could do. Stellar Wind was important to our country’s safety. The disputed aspects of the program depended on the telecom carriers, and absent DOJ approval, they were unlikely to cooperate. Without that collection, at least one aspect of the program would become virtually useless over time, and the entire Stellar Wind program would be far less effective.
Worse yet, the threat level during this time was high, especially the overseas threat reports. We feared that another terrorist attack was coming somewhere in the world—soon. And now we had to go to the president of the United States, whose primary concern was the protection of the American people, and tell him that NSA must discontinue one of our primary means of intelligence gathering—all amidst an ominous gathering storm of terrorist chatter and other intelligence warnings.
This was not good—stomach-wrenching, in fact. I was irritated and disappointed, but most of all, concerned that the actions Jack and Pat were recommending could jeopardize our nation’s security. I wondered how Attorney General Ashcroft felt about all this, and whether he even knew. Moreover, this put me in a difficult position. After all, I was the person charged with ensuring the legal advice provided to the White House by our various agencies was solid and consistent. And now I was going to have to tell the president he had been receiving wrong legal advice for more than two and half years. Certainly, I could explain to him that Jack was the new guy on our team, and he saw things differently than others, and he was in a key position. Maybe he was smarter than everyone else around us; maybe he would perceive the problems differently after more experience on the job; or maybe he was right.
I suspected the president would not be happy with the news. He was not a lawyer, and although he did not enjoy running a war from the legal department, he was always respectful of the legal process and the courts. Even when court decisions went against us, his attitude was always, “Well, that’s what the courts are for, to make sure we are doing things right.”
Nevertheless, I worried that when we presented this new legal opinion to him on an activity we had been doing for more than thirty months, his response might also be, “You lawyers don’t know what in the world you are doing!”
But this matter went well beyond professional pride or reputation. This was a matter of national security. Although OLC and the Justice Department would agree that the other aspects of the president’s surveillance program could continue, one key element that led to our ability to obtain information important to preventing possible attacks would be curtailed.
Before talking with the president, I called Andy Card. Andy was in Florida on a personal trip, but as soon as I explained the problem, he agreed to return to Washington early the next day. I also spoke with George Tenet and Mike Hayden. We arranged for a meeting in Andy’s office on Sunday afternoon at 3:30 p.m. The vice president was attending a function Saturday evening, but David Addington left a message for him to call.
I called Jack and asked him to meet with David and me at 1:30 p.m., prior to the larger group meeting. I wanted to make sure that I fully understood his concerns, and I also wanted to test how strongly he and Pat felt about their position after another day of reflection on the larger issues. I intended to urge Jack to consider maintaining the status quo, at least until we had additional time to conduct a more thorough legal analysis now that we were aware of the specific problem.
I was also hoping to buy a little time to allow Attorney General John Ashcroft to sufficiently recover from his illness to engage in the discussion. The thought of stopping a part of the program while John was in the hospital did not seem right to me, especially since he had signed off on the program more than twenty times. As a cabinet official who had blessed these activities, Ashcroft’s views and voice were valuable, and he had a vested interest in the decision. I felt it was important to hear from him personally about the legality of the surveillance program, and I felt sure the president would want to hear from his attorney general on this matter as well. It seemed wise to maintain the program at least until then—assuming we could find a way to do so.
As Jack and Pat sat down with David and me in my office that Sunday afternoon, I still had high hopes that the concerns about the program could be resolved in a way that would allow our country to be as protected as possible, yet in a manner consistent with the Constitution and with the support of the Justice Department. My hopes were soon dashed.
We met for an hour, but saw no solution. We were at an impasse. Jack and Pat seemed more entrenched in their positions and unwilling to compromise. In their opinions, a needed aspect of collection, necessary to make Stellar Wind effective, was not specifically included in the president’s authorizations; therefore, while the previous OLC opinions supported all analytic aspects of Stellar Wind, they did not cover all particular aspects of collection.
Jack suggested again that the omission from previous presidential authorizations could be fixed easily, simply by having the president sign a new document that specifically authorized the operational step of collection, and that ratified such collection from the beginning of the program. That problem was solvable, but Jack could not find a legal basis for all of the ongoing collection. In fact, Jack and Pat both said that prior to probing into the program more deeply, they had been unaware of certain operational details of the program. That surprised me, and raised a number of red flags. How could they possibly have been unaware? The AUMF scope concerns identified by Jack and Pat created downstream operational concerns.
We all knew that collection was essential to all three baskets of Stellar Wind. For example, how can you analyze information if you do not have it and cannot first collect it? How can you search for the needle if there is no haystack? I was perplexed—given Philbin’s knowledge of technology and communications—that he had not previously appreciated that the value of the program hinged on the collection of certain metadata. Could they have been so careless? I wondered.
I viewed the collection as an indespensible part of analysis; indeed, a part of the same activity. That is why I was not troubled by the language in the presidential authorizations.
In this meeting, Jack went one step further than he had in previous conversations. He said definitively that he could not give the president and NSA an opinion from OLC to support all aspects of collection, even if it were explicitly authorized by the president.
David and I listened intently; we asked questions and probed the OLC lawyers’ positions. The conversation was cordial, but futile.
After Pat and Jack left the office, David and I discussed what we had heard. David was skeptical. Granted, this sort of surveillance program had never been done before, but the technology and its potential for good or evil had not existed. Now it did. The legal team and the operators at NSA believed that the president’s authorizations by necessity included all aspects of the collection. It had to; otherwise, the targeted searches that the Justice Department had said were lawful could not have been accomplished. Mike Hayden’s team of lawyers were experts in the fields of privacy, intelligence, and surveillance matters; nobody knew that business better than they did, and they believed NSA was on solid legal ground.1
While the views of the NSA lawyers were significant, I deferred to the Justice Department on all major legal positions because Congress has charged the attorney general to provide legal advice to the executive branch and because when one of our policies is challenged in the courts, the Justice Department is responsible to defend us. Nevertheless, I was troubled. This was not an obvious
call. Reasonable minds could differ, and when the national security of our country hung in the balance, I could not help but wonder whether maintaining the status quo until Ashcroft’s return wasn’t the most prudent course.
At 3:30 p.m., David and I walked from my second-floor office down to Andy Card’s office on the first floor of the West Wing of the White House. We joined him at his conference table along with Dick Cheney, George Tenet, and Mike Hayden. I explained the situation to the group and described David’s and my most recent conversation with Jack and Pat.
Everyone in the room understood what was at stake. I think we all felt that the ambiguous legality could be resolved in such a way that the program could continue, as long as the Justice Department supported it. And Jack had told me that if there were a real threat to the national security of our country, then the president’s constitutional authority would be at its apex, and arguably would allow the disputed aspects of the program. Especially with the increased threat level, and the attorney general in the hospital, and another authorization approaching, we decided it would be wise for our assembled group to set up a conversation with the deputy attorney general to better explain why the collection was so important to the security of our nation.
At that point, I did not know if John Ashcroft had been told about the dispute and whether he agreed. I was also unaware of the seriousness of his medical condition. Additionally, as far as I knew, nobody had yet informed the president about the problem. That wasn’t unusual. I knew the president well enough to realize that he did not micromanage his subordinates; you did not bring him a problem unless you had a solution or had exhausted all efforts to find one.
Besides, on that Sunday evening, I think we all believed this legal problem with the surveillance program could be resolved without the president’s direct involvement. Even if we had informed the president, I was quite confident he would have advised us to keep trying to find a solution—the very course of action we were pursuing.
The following day, we set up a meeting with the deputy attorney general, James Comey. I wondered, however, if these efforts might be in vain. After all, it was John Ashcroft’s insight we needed. As a former governor and senator from Missouri, Ashcroft had great political instincts and good judgment to do what was practical. I knew his deputy was an experienced attorney, but he had been in that position for only a short time, and he had not signed his name to the presidential authorization every forty-five days as Ashcroft had done. Nevertheless, we set up the meeting with the DAG.
On Tuesday, March 9, at about 7:15 a.m., Andy and I spoke to the president in the Oval Office about the concerns over Stellar Wind. Whether Andy or the vice president had mentioned it previously, I didn’t know, but that was my first time to broach the subject with him. We explained that we would be meeting later in the day with the deputy attorney general, and hopefully we’d find a solution.
President Bush did not seem overly concerned at that point, even though we told him that an important intelligence tool was in jeopardy. This matter needed to be resolved by Thursday. Nevertheless, the president did not pick up the telephone to call the attorney general, who was still in the hospital; nor did he call the DAG. As he often did when we encountered obstacles, and as I had anticipated, he simply told us, “Find a bridge”—which meant find a temporary solution until Ashcroft gets out of the hospital. I think we all recognized that even after Ashcroft was well, we’d have to address the issues Jack had raised, but hopefully we could do so without the added pressures of an approaching reauthorization deadline in the midst of increased terrorist threat reports.
Later that day, our group reassembled in Andy’s office, led by Dick Cheney, and included George Tenet, Mike Hayden, David, Andy, and me. Also at the meeting were James Comey, Jack Goldsmith, and his deputy, Pat Philbin. Earlier that day, the vice president had met with Bob Mueller, Andy, and Mike, as well as Tenet’s deputy, John McLaughlin, about these same matters.
In that late-afternoon meeting, we discussed all the major issues surrounding Stellar Wind, aided by Mike Hayden’s charts, emphasizing how critical the surveillance program was to our national security—especially with increased threats looming. The deputy attorney general seemed to understand the importance of our intelligence efforts and did not express a problem with most of Stellar Wind; it was simply that one sticky issue that Jack, Pat, David, and I had been discussing for several days that seemed to cause his consternation. He said straightforwardly he couldn’t find a legal basis for the collection of certain metadata, so he believed it should be discontinued. Undoubtedly, he—and everyone else at that table—realized this would render at least one aspect of the program virtually useless.
The conversation with the DAG confirmed my concerns. For some prosecutors, there is no gray area, only black and white. While I appreciated his standing on principle—I had done so myself on several contentious issues over my career—I wondered what it would take, what kind of threat to the United States would be necessary, to persuade the DAG to approve the full spectrum of collection. His refusal to defer to Ashcroft’s previous judgments puzzled me. He said he supported most aspects of Stellar Wind, including content collection, but there was one aspect of collection that acquired too much US person information for him to support. He signed off on interrogation techniques to get vital intelligence information from the enemy. So the DAG understood the importance of gathering information and taking bold steps to do so. Why oppose giving the US government another forty-five days to calmly think through the issues and find a substitute for the disputed operational activity or develop a legal strategy to maintain it? Why not defer to the attorney general who had repeatedly supported all of the Stellar Wind collection activities? Why put the entire nation at risk when the NSA had been tracking leads to terrorists in the exact same manner for more than two years, and their best privacy experts had expressly stated that these efforts were within the president’s constitutional powers to authorize them? I had repeatedly assured DOJ lawyers that we would abide by their judgment. But in the face of these circumstances, I wondered then, and still wonder to this day, Why?
Regardless of the reason, the DAG had staked out his position, and it seemed unlikely that he might change his mind over the next thirty-six hours.
Around 6:30 p.m., Andy and I called the president from Andy’s office. We informed him that we had been unsuccessful at persuading the DAG to extend the program until General Ashcroft returned to work, or to give the lawyers more time to find a solution.2 I knew the danger of going forward without DOJ support. “There are serious risks in moving forward,” I told the president, “and I would find it hard to recommend you do so without the Department of Justice. But, of course, it is your decision. You’ll have to decide if it is worth it to go forward.”
“It doesn’t sound like it is,” he responded in a curt tone.
I could tell the president was uncomfortable continuing the disputed collection activities. Worse yet, I think we all knew that if we pushed this further, disagreements such as the one we had encountered don’t stay secret for long. Despite the number of people who had been read into the Stellar Wind program, it had remained undercover for more than two years. As far as we knew, al-Qaeda was unaware of our surveillance ability to track them or circumvent their efforts because of the collection of information.
But disputes such as this produced stories that inevitably leaked, and that would lead to more intense media scrutiny, and most likely calls for congressional investigations, and all or portions of the president’s surveillance program would be compromised. Our avowed enemies would know precisely how we had been locating them and they would change their tactics, making it harder for US intelligence agencies to find them, and making all of us less safe every moment of every day.
I suspected the president realized, as did Andy and I, that without the support of the Justice Department, the telecom companies who had assisted our country’s efforts to prevent another attack would discontinue the
ir cooperation. It wasn’t as though they enjoyed the government’s nose in their records every day anyhow, but they had been good corporate citizens and had cooperated well up till now. But without the attorney general’s signature, some of the telecom companies probably would not be willing to risk the enormously costly and time-consuming lawsuits that would likely follow if their cooperation were to become known.
The president directed Andy to notify the vice president that we needed to meet early the next morning. As I left the Oval Office that evening, I believed the president was leaning toward discontinuing the collection of certain metadata under Stellar Wind, although he probably guessed the vice president would strongly object to doing so, simply because some lawyers had changed their minds. I shook my head and thought, Tomorrow’s meeting will certainly be a lively one.
CHAPTER 27
JOINING FORCES WITH CONGRESS
By 7:30 a.m. on March 10, 2004, the vice president, Andy Card, and I were in the president’s office, talking with him about the Stellar Wind predicament. Cheney reminded the president the program would expire the next day.
“How can it possibly end?” President Bush asked. “It’s vital to protecting the country.”1 Andy briefly updated the president on the situation.
“What are my options?” The president addressed this question to me.
“There are three,” I replied. “First, you could discontinue the entire program. Second, you could reauthorize all of it. Finally, you could reauthorize those portions, including the Terrorist Surveillance Program, that we know the deputy attorney general will support, but omit the part in question.”
Later, when Andy informed the president that John Ashcroft was still in the hospital, the president seemed surprised.2 After a period of discussion, the president told Cheney that it would be difficult to go forward without Ashcroft. He would have no OLC cover, no Justice Department cover, and the telecom companies would likely balk without the DOJ’s involvement.
True Faith and Allegiance Page 34