I was concerned the president would decide to suspend the disputed aspects of the NSA’s surveillance. I worried about disarming ourselves. But I was simply an advisor to the president; he was the leader of the free world upon whose shoulders this heavy decision rode.
President Bush directed Vice President Cheney to summon the congressional leaders to the White House as soon as possible to inform them of our plans. Clearly, if the president was going to suspend the collection of vital intelligence, he wanted to make sure Congress was in agreement with him, but he also hoped the congressional leaders might be able to help us find a legislative solution.
I left the Oval Office believing that OLC and the Justice Department had carried the day. It seemed inevitable; certain aspects of the program would be shut down or altered. Perhaps, with the passage of time, and once Ashcroft was healthy, we could find a way to reconstitute the full collection capability of Stellar Wind so we would be less vulnerable to attacks. I certainly hoped so.
That afternoon, before the congressional leaders arrived at the White House, I reexamined the legal advice given to us by Justice over the past two years. I understood Jack’s and Pat’s concerns, but to me, the previous OLC advice appeared broad enough to cover the entire program, including the disputed operational collection activity. The earlier legal opinions had indeed interpreted FISA to be a “safe harbor” only to avoid difficult constitutional questions related to the president’s power to protect our country. That legal analysis undergirded the entire surveillance program.
Just before 4:30 p.m., I walked from my office down to the Situation Room, where I was soon joined by Mike Hayden, George Tenet, John McLaughlin, and David Addington. The president came to welcome the members of Congress and then left. The meeting was chaired by the vice president, and the congressional leaders in attendance were Senate majority leader Bill Frist, Senate minority leader Tom Daschle, Speaker of the House Denny Hastert, House minority leader Nancy Pelosi, chairman of the House Select Committee on Intelligence Porter Goss, and ranking member Jane Harman, as well as chairman of the Senate Select Committee on Intelligence Pat Roberts, and ranking member Jay Rockefeller. House majority leader Tom DeLay was not present, but was briefed later.
Several of these leaders were already well aware of Stellar Wind and had been periodically briefed about its ongoing operations by Cheney and Hayden. For only a few members was the information brand new.
The vice president opened the meeting by describing Stellar Wind in general terms and disclosing that we had encountered a problem that jeopardized the continuation of one key aspect of the surveillance activities. He also noted the president wanted the congressional leaders’ advice about the way forward, including possible new legislation to support the NSA’s clandestine activities, and especially the disputed operational step necessary to make the program work. Basically he said, “We’ve been doing this. We think it’s very useful. We think it’s lawful. We’re having a problem with one aspect of the program with the deputy attorney general. I want Mike here to explain to you what we’re doing.” And he turned the meeting over to Mike Hayden.
General Hayden and one of his NSA technical experts presented the surveillance program in detail to these top government officials. Mike was very thorough and explained how the activities in Stellar Wind worked, and acknowledged the value of the program to the security of our country. His expert analysis provided detailed descriptions of actual classified operations in which these intelligence activities were currently being used effectively. Mike patiently answered any questions the leaders posed about the program. At no point did I hear Mike Hayden say, “Sorry, I can’t answer that.” He concluded the technical discussion and then took a seat in the back row.
“Well, ladies and gentlemen, that’s where we are,” Vice President Cheney said. “And we’re having some problems with the lawyers.”
“You ought to get some new lawyers,” one of the leaders quipped. And that began the discussion.
Cheney laid out two specific questions to the group. “First,” he said, “we would like to know whether you believe the program should be continued. Second, should we come to Congress for an amendment to the FISA statute so we have additional congressional authority to do what is necessary?”3 Those were the two primary issues discussed that afternoon.
At one point, I was asked specifically by one member, “What is the problem?”
I answered straightforwardly, point-blank, “The deputy attorney general does not believe the president has constitutional authority to do this activity.” I was very clear about that. “Nor does he believe the president’s constitutional power can override the provisions of FISA.”
Months later, a Department of Justice inspector general report examining this meeting questioned why the DOJ had not been included. Although there may have been other reasons, I can easily think of two primary ones: first, the president decides who in the administration he wants to attend high-level national security meetings at the White House, particularly those with congressional leaders. I believe it was arrogant for the DOJ inspector general within the executive branch to second-guess this. Second, there was no purpose in having the DOJ attend. The White House had already accepted their opinion and accurately presented the department’s position. Moreover, the reason for the meeting was not to present both sides of the legal argument and ask the congressional leaders to decide who was right. No, accepting the OLC opinion was a foregone conclusion for President Bush. He wanted to know how Congress could best help us protect our country—given the new legal position—without giving away our spy trade secrets to the enemy.
So we next moved into a discussion about a possible legislative fix to the problem. Before the conversation got very far, Andy Card offered a sober but accurate insight. He said, “If an attack happens, and we could have stopped it if the president had not suspended the disputed technical portion of the surveillance program, it may be hard to explain to the American people why we didn’t use this authority.”
Everyone in the room seemed to agree. Several members said they even felt an obligation to continue the program, including the disputed operational step. That seemed to be the prevailing opinion among the leaders, that we must go forward with the surveillance program, even without the Justice Department, for a period of time while we pursued a legislative fix. One member stated that if the DAG would not sign the authorization, he should be fired. Before continuing, Andy asked, “Does anyone have any reservations?” No one voiced an objection. As such, it is fair to say that there was unanimity about going forward.
We turned our attention to what could be done legislatively. The challenge was twofold: first, to actually develop and pass legislation that allowed the NSA to have the authority necessary for collection purposes, to include building the haystack; and second, to pass that legislation “secretly” in the open Senate and House of Representative chambers without providing key information to the enemy.
We talked about whether it was possible to get legislation passed. The prevailing view, which soon became the unanimous view, was that there was no way to do that without compromising our intelligence efforts. Even a secret session of Congress was mentioned but considered too risky.
The meeting lasted until about 6:00 p.m. Before we left the Situation Room, the vice president summed up the discussion: “What I’m hearing is that we should all move forward, that we’ll continue this activity, and we’ll continue to work to try to find a legislative fix.”
That was key. “We need to find the legislative fix for this. But for right now, let’s just move forward.”
Some of the leaders cautioned that Congress should remain involved in the solution, as well as the oversight of the program going forward. None of the congressional leaders, however, could honestly say they were unaware of, or had expressed misgivings about, continuing the program—although several of them later did. West Virginia senator Jay Rockefeller later said that he did not even recall attending su
ch a meeting. There were plenty of witnesses in the room—not to mention White House logs—that could help refresh his memory.
I was surprised by the outcome of the meeting. I had fully expected the congressional leaders to accept the Department of Justice’s position without question, and to tell the president he must find other ways to protect our country. Instead, they had all stepped up and agreed to do what was necessary to ensure our nation’s safety and security. It was a remarkable display of courage, and . . . dare I say it? Leadership. We left the meeting with the full concurrence of the congressional leaders to continue even the disputed surveillance activities. I had not expected that sort of reaction, and it encouraged me greatly.
Mike Hayden also felt inspired by the reaction of the congressional leaders. He later said, “I left the meeting and I actually went back and had dinner with my wife that night. During our dinner conversation, I said, ‘I had a big meeting in the White House today. It was really kind of interesting. And you know what? I was proud to be an American, because no one took a political stance in that meeting, and people were trying to do the patriotic, right thing. They opted for patriotism and defense and support of the program rather than political advantage.’ ”4
Sometime afterward, when rumors of the surveillance program were leaked to the press, Tom Daschle and Nancy Pelosi attempted to distance themselves from the president, claiming they were unaware of certain aspects of the program or there was not unanimity about moving forward. That is simply disingenuous posturing. We gave them a full briefing about the surveillance programs and every opportunity to ask questions and voice their opinions.
In terms of the legality, I could not have been clearer in saying, “The Department of Justice does not believe the president has constitutional authority to do this.”
And the congressional leaders said, “Go forward.”
CHAPTER 28
THE INFAMOUS HOSPITAL VISIT
Following the meeting with the congressional leadership, the vice president, Andy Card, and I walked from the Situation Room over to the president’s residence in the White House to debrief him. The president was working out, so we waited for a few minutes in the hallway by the elevator while he completed his exercise regimen. We were in a good mood. The meeting could not have gone better. We met President Bush in his private study on the second floor of the residence, where he was sitting at his desk and appeared relaxed as he munched on some nuts while chewing a cigar. We informed him of the meeting, and he seemed pleasantly surprised and quite happy about the outcome.1
We talked for a while, and either the president or the vice president reminded us it would still be helpful to have John Ashcroft’s signature on the authorization since the telecom companies knew him and were accustomed to Ashcroft signing off. They would likely have reservations about cooperating without assurances from the Justice Department—even with congressional concurrence.
I agreed. Ashcroft had been a mighty warrior in the fight against terrorism and had ardently advocated taking measures to prevent another strike against our homeland. He was a patriot who had already endured numerous heavy blows from critics about the Justice Department’s more aggressive efforts. Ashcroft well understood what was at stake. I also believed that as a former US senator, John Ashcroft would appreciate the significance of the meeting we had just concluded with the congressional leaders and would be reassured by their bipartisan support for the president to continue the program necessary to protect our country during a time of heightened danger.
We knew that Ashcroft had undergone major surgery for pancreatitis only the day before, but we had heard that he had been up and walking earlier in the day. While we were still at the residence, the president picked up the phone and directed the White House operator, “Get John Ashcroft on the phone.”
The call was connected to John’s hospital room. Although I could not hear the person on the other end of the line, I assumed it was General Ashcroft. Only later did I learn that, in fact, it was Janet Ashcroft, who was at her husband’s bedside in the hospital. Nevertheless, the president briefly mentioned the meeting with the congressional leaders and his need for help regarding the program. He did not say anything specific about the program, but asked if it would be okay for Andy and me to come to the hospital to discuss something.
When the president hung up the phone, he looked at Andy and me and directed us to go to Ashcroft’s room at the hospital to see if he was willing to sign off on the authorization, despite the flap with some of the others at the Justice Department.
We left the residence immediately. As Andy and I walked along the White House colonnade past the Rose Garden, heading back to our offices, we talked about the possibility that if Ashcroft’s condition was not stable or if he was still on postoperative pain medications, he might not be in any shape to understand and evaluate the legal issues in question, nor the significance of the congressional meeting. The last thing we wanted was to be accused of trying to take advantage of the AG if he was legally incompetent or not aware—even if he had ascribed his signature to the authorizations on numerous previous occasions. Andy and I agreed that we knew John well enough that we would be able to tell whether or not there was an issue. If John did not sound or appear competent, we would not ask him to sign the authorization.
Once back in my office, I talked with David Addington and asked him to prepare a new authorization. No doubt, David had already been working on the revised authorization with the language corrections Jack Goldsmith had suggested, stating that among other things, the president was authorizing the collection, acquisition, and retention of telephony and e-mail metadata, and it ratified what had been done previously; in other words, that his previous authorizations had covered these same types of collection activities as well. The changes were intended simply to preserve the president’s position that the prior program was lawful and to protect those who had acted while relying on those authorizations. By 7:15 p.m., David had the authorization ready to go.
Granted, everything about these events was unusual, but this was an unusual situation; the current authorization for Stellar Wind would expire in a matter of hours. If we once flew to California to get the president’s signature to keep the program intact, surely we could travel a few city blocks from the White House to George Washington University Hospital to get Ashcroft’s signature affirming the legality of the program.
Andy, David, and I piled into Andy’s Suburban and headed for the hospital. On the way, we again discussed our concern about Ashcroft’s competence and having a signal if one of us felt Ashcroft was unable to fully comprehend the purpose for our visit. We agreed that if either of us was uncomfortable, we would simply say, “We have to go.”
When we arrived at the hospital, we were met by the attorney general’s security detail. I suggested to David that he should not come to John’s room with us. I thought it best to minimize the number of visitors, but more importantly, I knew that Addington and Ashcroft had clashed in the past over legal interpretations. Now was not the time for further friction. David handed the classified document pouch to me, and Ashcroft’s security officers escorted Andy and me to the attorney general’s room.
The hospital room was large, with the lighting turned down low. As I walked through the door and my eyes adjusted, I immediately focused my complete attention on John Ashcroft, who was lying in the hospital bed with his wife, Janet, to his right side, near the head of the bed. A lovely, charming woman with a keen intellect, Janet Ashcroft was a lawyer who had taught law at Washington’s Howard University. She had weathered many firestorms with her husband during his tenure as governor of Missouri, and later as the state’s US senator, and especially during his confirmation hearings for the job of US attorney general. She was a strong woman. Although she must have felt fatigued, and was probably not happy about all the commotion, she well understood the pressures under which we were all operating. No doubt, though, her primary concern was for her husband’s well-being.
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br /> Standing with Andy at the foot of John’s bed, I sensed that other people were in the room, perhaps a nurse, an aide, or part of John’s security detail, but I kept my gaze on the attorney general. Most of us who spent a great deal of time in the White House were accustomed to having security officers around us. The officers purposely did their best to blend into the background, and after a while, even the most sensitive person grew comfortable with their presence.
I was concerned immediately because Ashcroft did not look well. Indeed, he looked pale and weak, and was unshaven. Andy greeted him first, as Janet stroked her husband’s arm. Then I said hello and asked him how he was doing.
“Not well,” John replied.
“We’re here to discuss the matter the president called about,” I said discreetly. That’s all it took; it was as though I had pressed the On button and Ashcroft took over from there. He began by saying, “I was told this morning that I’m no longer the attorney general.”
What? That was news to us.
Later, I became aware of a fax that my office apparently received from the DOJ informing us that the attorney general was temporarily relinquishing his authority to his deputy, so I accept full responsibility that my office had constructive notice of the transfer of power (I later testified to that effect). But standing there in that hospital room, I had no previous knowledge of the transfer of power. To this day, it remains a mystery to me that with respect to the health of the chief law enforcement officer in the country, why, in a time of war, our office would receive a faxed notification and not a phone call. Moreover, why was notification not supplied to the president’s chief of staff or to cabinet affairs?
True Faith and Allegiance Page 35