Neither President Bush nor Vice President Cheney knew that Attorney General Ashcroft had turned over the reigns to his deputy. Indeed, in 2010, in his book Decision Points, in discussing when Andy Card informed the president of the change, President Bush states the matter straightforwardly: “I was stunned. Nobody had told me that [Jim] Comey, John Ashcroft’s deputy, had taken over Ashcroft’s responsibilities when he went in for surgery. If I had known that, I never would have sent Andy and Al to John’s hospital room.”2
Certainly, had the vice president, Andy, or I known about the matter, we would have informed the president, and he could have simply summoned the deputy attorney general. But none of us knew until John Ashcroft announced the news to us in his hospital room.
John raised up slightly in his bed and then began laying out the legal issues in a coherent and logical synopsis, using language quite similar to that of Jack Goldsmith and Pat Philbin, as well as the DAG. It sounded as though Ashcroft had been well briefed.
Andy and I stood silently listening to John. As he spoke, I became more and more comfortable that he was fully competent. He seemed as coherent and as competent as any time I had ever heard him during White House briefings.
Ashcroft spoke for a few minutes uninterrupted and then concluded his soliloquy by saying, “I’ve been told it would be improvident for me to sign the presidential authorization, but it doesn’t matter, because I am no longer the attorney general.”
When I heard Ashcroft use the word improvident, I smiled inside. I knew he was okay. Nobody else I knew used such a word in ordinary conversation; only John Ashcroft, the son of a minister.
The attorney general shifted gears slightly, complaining that so few of his people had been read in to the surveillance program. “You’ve got all these FBI agents and all those NSA operators that are read in to the program, but I can’t even get my chief of staff read in.”
Now I felt more comfortable that John was competent. If Ashcroft was complaining about such matters, he must be feeling better. I knew that John’s chief of staff, David Ayres, was his longtime and trusted associate, but David was not a lawyer. “The president decides who gets read in,” I gently reminded him. I looked at him with admiration. He was tough, even following serious surgery.
Ashcroft mentioned some meetings at the White House and questioned why the DOJ had not been invited. I appreciated his concern for defending the institutional prerogatives of the Justice Department, even though was not feeling well. He then repeated that he was no longer the AG, and he was done talking.
I still held the authorization in my hand. “Thank you,” I said. “We’ll raise this with the deputy attorney general. I hope you get better soon.”
Andy echoed my get-well wishes, and with that, he and I left the room.
I had really hoped that we could describe to John the meeting with the congressional leaders and their encouragement for the president to continue the full surveillance program. As a former US senator, Ashcroft would appreciate their responses, I felt sure. But we never got that far. As soon as he emphasized that he was no longer the attorney general, we left without asking him to sign anything. According to the logs of the FBI security detail guarding Ashcroft, the length of our visit in the hospital room was less than ten minutes.
In recent years, press accounts have described this scene as a tense confrontation. That is simply not true. No one spoke on behalf of the Justice Department except Attorney General John Ashcroft, and his tone was civil and respectful. As I said, Andy and I barely spoke, and there were no demands or threats by us. I later testified before the Senate Judiciary Committee, under the threat of perjury, on July 24, 2007, about the events related to this hospital visit. Nobody in Congress had challenged my recollection of those events, and the DOJ inspector general, in a subsequent investigation, found nothing untruthful about my description of these events.
The details later presented by Jim Comey, and facilitated by Senator Schumer’s staffer, Preet Bharara, describing flashing lights, sirens, and dashing up the hospital staircases may or may not be technically true, but they certainly do not accurately depict what happened later in that hospital room. Contrary to Hollywood-style myth, there simply was no confrontation.
Andy and I did not speak until we were back in the Suburban, where we found David waiting. Even in the dimly lit vehicle, the look on David’s face asked, “How did it go?”
“It didn’t go well,” I said. I handed the unsigned authorization back to David.
Andy and I looked at each other. “Yeah, he was competent,” Andy whispered. I nodded. We both agreed that Ashcroft had been competent and understood the intricacies of the disputed surveillance matter. He seemed to have been well briefed by the DAG, Goldsmith, and Philbin. In an ironic twist, it is possible some or all of those briefings occurred while the attorney general was hospitalized and in a weakened condition, thus raising the question of whether his subordinates had taken advantage of him.
I muttered softly, “I did not know Ashcroft was no longer AG.” Andy shook his head. We said little more during the short ride back to the White House.
We went to Andy’s office, from which he called the president and told him what had happened. I could hear only Andy’s side of the conversation, but it was obvious that the president was displeased. He was unhappy that he had not been informed about the change in Ashcroft’s status. He told Andy, “Well, you’ve got to call Comey and tell him about the congressional leaders’ meeting.” At that point, no one at Justice knew about the afternoon meeting with the congressional leaders, and we felt it was important to communicate that information to them.
While I was still in his office, Andy called the deputy attorney general and asked him to come to the White House that night. It was then I first learned it had not been a nurse or a security detail in the hospital room with us. It had been Jim Comey, Jack Goldsmith, and Pat Philbin.
Apparently, as soon as the president had called the hospital room, Janet Ashcroft had contacted the AG’s chief of staff, David Ayres. David had called the DAG, who had been on his way home, but redirected his path toward the hospital. On the way, he called FBI director Bob Mueller, who in turn contacted the security detail guarding the attorney general to allow Comey, Jack, and Pat to enter the hospital room. Comey arrived at the hospital and, according to his account, he literally raced up the stairs to John Ashcroft’s room, just minutes before Andy and I arrived.
Why they didn’t speak up or at least attempt to talk to Andy or me after we left the room is a mystery to me. But they didn’t. And I have to admit, I never allowed my eyes to leave Ashcroft and his wife, so I had no idea they were in the room or I might have said something to them, especially about the congressional leaders’ meeting.
As I listened to Andy on the phone, it sounded as though the DAG wanted to bring someone with him to the White House.
“I really prefer to speak to you alone,” Andy said.
Apparently the DAG insisted on having a witness present.
“You are overreacting, Jim,” Andy said calmly.
Although I could not hear his statement, apparently the DAG told Andy that what he had witnessed at the hospital was the most outrageous thing he had ever seen.
Andy responded, “We barely spoke.”
The call continued, and Andy refused to argue. “Please get here as soon as you can.”
When the call concluded, Andy immediately called the president and gave him the bad news. A series of calls ensued between the president, the vice president, and Andy regarding what to do. More calls between Andy and the DAG ensued. Meanwhile, the clock was ticking on our most valuable intelligence program.
I sat silently in Andy’s office, listening to Andy’s end of the conversations. The more I heard, the sadder and angrier I grew. The very thing that Andy and I had feared—accusations that we had tried to take advantage of the attorney general’s ill health to get what we wanted—were being cast in our direction. Andy and I knew t
hat had not been the case, but we also knew that stories like that took on a life of their own in Washington.
When we finally met with Comey in Andy’s office much later that evening, the mood was cordial but serious. We talked for about fifteen minutes, and it quickly became obvious that we were not going to reach a solution. Given the late hour and the fact that we had been trying in vain to find a way that Jack, Pat, and Jim could support the continuation of the full surveillance program, I suggested that we get some rest and talk in the morning. The others concurred.
It was close to midnight by the time I arrived at home. I was tired but could not sleep. I stepped outside onto our back porch. The cool air revived me as I thought back through the events of a most tumultuous day. Although I understood the DAG’s objection, I could not understand his apparent unwillingness to give us time to find a solution. He had been in office only a few months. Perhaps he was not used to having his legal judgment questioned. Perhaps he was trying to protect the Department of Justice as an institution and ensure its role as chief legal advisor to the White House. Lawyers disagree often. In this case, maybe I was wrong, but perhaps he was wrong. I wondered if he had considered that possibility. Regardless, I worried that our collective failure, whatever the true reasons, threatened our nation’s security. I stepped back inside our home.
Tomorrow was certain to be another eventful day.
CHAPTER 29
RESIGNATION THREATS
People in the United States awakened the next morning, March 11, 2004, to another tragic reminder of the importance of the president’s surveillance programs. Ten bombs packed with dynamite and nails exploded on trains in Madrid, Spain, killing 191 people, wounding nearly 1,800 others. The explosives were strategically placed on four trains in three busy Madrid train stations during rush hour. The devices were carried on board trains in backpacks and detonated simultaneously by using mobile phones. Three other bombs had failed to detonate or the death toll might have been even higher.
When I arrived in my office at 6:00 a.m., the first crisis I encountered was the news of the Madrid train bombings. As soon as I heard that, I knew immediately what the president would do regarding our surveillance. He would go forward. The congressional leaders’ positive response that prior evening had encouraged him to stay the course. Now, with nearly 200 dead bodies and nearly 1,800 wounded, he was not about to leave our nation vulnerable to attack. There would be no compromise.
Jack Goldsmith called me shortly after six. He wanted to bring over the deputy attorney general’s final offer.
Final offer? Are you kidding? I thought, but didn’t say. Instead, I benignly responded, “Sure, Jack. Come on over.”
Jack soon arrived with what was not really an offer at all, but sort of a more conciliatory, compassionate order of surrender. The DAG would allow the full surveillance program to continue under certain conditions for ten days as part of a wind-down order for the disputed collection activities.
I was irritated at the offer. I discussed Jack’s message with Vice President Cheney, who did not receive it well. Then around 7:00 a.m., I went to the Oval Office to explain the offer to the president and Andy. The president expressed irritation at having to negotiate with a subordinate, and then despite our shared concerns about the telecom companies likely backing away, he said he was ready to sign the authorization.
Meanwhile, David Addington had contacted Mike Hayden at NSA and said, “I couldn’t get the signature. Are you willing to do this without the signature of the attorney general, but with the signature of Al Gonzales and authorization from the president?”
Hayden thought for a few moments and said, “Yes.”
Despite his relatively quick response, Mike later said he had at least five strong reasons behind his answer: “Number one, I had a safe-drawer full of orders signed off by the attorney general saying what we had been doing was lawful. I don’t know what had happened to change that. Again, I wasn’t privy to some of these other discussions. That was one thing. Number two, my lawyers said it was lawful. Number three, we had gotten what I thought was broad political support from the members of Congress that preceding afternoon in the Situation Room. Number four, this looks like it was being done in haste. And I felt that another forty-five-day cycle, while we sorted this out, was probably the right thing to do, given the balancing act, legal, political, operational security we were trying to do. So let’s take the next forty-five days to get to the final answer.
“The fifth reason was pretty straightforward: 200 dead Spaniards that were killed overnight between the afternoon meeting in the Situation Room and David Addington’s phone call to me that morning, right . . . given that starkness of the al-Qaeda threat, and given the ambiguity of the situation, I thought the correct operational, legal, and ethical decision was: ‘All right, we’ll do this one more time on a somewhat different framework. We’ve got to sort this out.’ ”1
Because the presidential authorization relies on legal determinations, and the president was not a lawyer, I signed the authorization, certifying it as to form and legality. I sighed as I signed the document, knowing that this would further alienate the conservatives at the Justice Department. My signature would be Exhibit A to support their accusations that I wanted to be attorney general so badly that I would try to take advantage of a sick man. I knew my signature would not likely be sufficient to ease the concerns of the telecom carriers regarding the program’s continued legality. From my perspective, at best, this was an interim authorization. More importantly, I signed the document because I believed, at that moment, with the spilled blood in Spain and growing chatter about another attack, the president had constitutional authority to protect America. Although the bombings were not within the United States, they were against one of our closest allies in the war on terror. If Madrid could be targeted, could New York or Washington be hit again?
I certainly wasn’t trying to usurp the authority of the Justice Department or supplant the attorney general by signing. I knew, and the president knew as well, that this authorization was only a bridge, a temporary thing, because of the necessity of having the cooperation of the telecom carriers. We would have to work out something with the Department of Justice as soon as John Ashcroft was well enough to be back on the job.
The president showed no hesitation as he picked up his pen and signed his name to the authorization with a flourish, as though making a point. As head of the executive branch of government, the president could accept the previous OLC determinations or he could decide the appropriate legal standard. With the president signing the authorization, we now had another forty-five days to figure things out, and meanwhile, our intelligence agencies would not be impaired in their efforts to protect Americans.
Later that morning, I stopped by Andy’s office. He was calling the congressional members who had been involved in the meeting the previous evening in the Situation Room. Andy informed the members that because of the Madrid train bombings, the president had decided to continue Stellar Wind, including the collection of certain metadata. Andy asked if anyone had any reservations about this course of action or second thoughts about continuing the program. No one expressed an objection. Indeed, some felt that in light of the bombings, they were obligated to go forward.
I talked to Jack Goldsmith by phone to inform him that because of the circumstances in Spain, the president had determined he had the power to authorize all aspects of Stellar Wind. I reminded Jack that the president’s determination was binding on the executive branch, and for now, there was no need to continue searching for a solution to our disagreement. Goldsmith agreed without equivocation. He sent a memo to the interested parties within the Justice Department to reinforce the point.
Later Jack called to tell me he had a document he wanted to deliver. I was fatigued and asked that he wait until the following day.
That night, I received another phone call from Jack Goldsmith. He said he needed to see me immediately.
“Jack, it�
�s been a long couple of days. Won’t this wait till morning?”
“No, I must bring you a package right now.”
“No, don’t come here,” I said. “I don’t want you coming to my home.” I tried again to wave him off, but Jack insisted. I acquiesced, and around 10:00 p.m., Jack Goldsmith and Pat Philbin showed up at my front door.
My wife, Becky, had heard me talking with Jack on the phone. She had no idea what this was all about, but she was worried that whomever I had been talking with and warning away from our home wanted to hurt me. Although I didn’t know it, when Jack and Pat came to the door, Becky sat at the top of the stairs, listening, just in case of trouble, and worrying about whom to call. Our boys were already in bed.
I let Jack and Pat inside and we sat down in our dimly lit living room. Jack handed a letter to me. I opened it and read Jack’s confirmation of my instructions to him and the Department of Justice that I had given earlier, after the president had made his decision and signed the authorization. I’d said the continuation of the program was lawful, and basically told him he could stop working on the OLC opinion until we wrangled out the direction we were going to go concerning the technical point in dispute. It was basically a cover-your-butt letter, and I had no clue why it could not have waited until morning. Jack had already given that same guidance to the DOJ leaders, indicating that the president’s determination was binding upon the entire executive branch.
Jack and Pat seemed tense and unsure about what might happen next. I told them, “I don’t know either. I just want to get through the weekend and let emotions cool down and heads clear before we go back to work on Monday.”
“There’s talk of resignations at the department over all this,” Pat said soberly. Jack agreed.
What? I thought. I thought momentarily about the infamous 1973 “Saturday Night Massacre” when the attorney general and deputy attorney general both resigned rather than fire the independent counsel investigating Richard Nixon for wrongdoing. But this was nothing like that. President Bush had not taken action for personal or political gain. He had acted in what he thought were the best interests of the country based on previous advice from his attorney general. And he hadn’t acted in secret to hide wrongdoing. He had informed the congressional leadership of his actions. This was nothing like that sordid chapter in American history. This is ridiculous, I thought.
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