I had no way of verifying threats of resignation, or knowing whether Pat’s and Jack’s comments were simply an angry response to the president’s actions. “Let’s just get through the weekend and see where things stand on Monday,” I repeated. I looked at them and shook my head. “You know,” I said, “what is amazing is that less than forty-eight hours ago, the president had accepted your positions. He had decided that he was going to go along with Justice regarding the disputed portion of Stellar Wind. You guys had won. But then the congressional leaders met and voiced their support for maintaining the status quo, and then the Madrid train bombings changed the dynamic for the president.”
Jack and Pat looked at me as though they had not even heard about the congressional leaders’ meeting.
“Isn’t that ironic?” I said. “You guys thought it was Andy or me who had changed the president’s mind, but actually it was the congressional leaders that swayed him.”
Jack and Pat didn’t respond.
“Good night, gentlemen,” I said, getting up and walking toward the door. Jack and Pat followed and I closed the door behind them. I turned out the lights and went upstairs to find Becky, still concerned, but relieved that I had not been hurt.
As I lay in bed, I wondered how the lawyers at Justice were feeling. Did they feel disrespected? Did they feel irrelevant now that the president had ignored their advice at the urging of the congressional leadership? Comey and Goldsmith were relatively new in the department. They were not with us during 9/11. I wondered how effective they would be in their jobs after all this died down. How long would it take for people in the White House to trust them? These were important questions, because we needed the Justice Department’s support to continue Stellar Wind and fight the war on terror in allegiance with the Constitution.
I viewed the March 11 authorization as an interim authorization. As far as I was concerned, it was intended to serve two purposes: one, to preserve the president’s position that Stellar Wind, including the activities involving the collection and retention of metadata, were lawful; and two, to protect those who had acted in reliance on the previous authorizations. As I drifted off to sleep, I knew we had a lot of work ahead.
The president called for me the next morning as soon as his morning national security briefings were completed. The deputy attorney general, temporarily holding the position of attorney general, had attended the meeting in place of John Ashcroft.
In his book Decision Points, the president recounts meeting alone with Comey that morning following the larger group session, and after listening to Jim’s concerns about Stellar Wind, saying, “I just don’t understand why you are raising this at the last minute.”2
Comey responded, “Mr. President, your staff has known about this for weeks.”3
The DAG was both right and wrong. He was right that I had known for months that DOJ was conducting a scrub of the program. I had encouraged it. I certainly had known for weeks of concerns and the possible necessity of change to the program. But the DAG was wrong to say we had known about the specific problems that long. It was not until Jack Goldsmith’s “Oh, my God!” moment on March 6, 2004, a mere five days before the authorization’s expiration date, that he admitted their failure to understand the program, and articulated that, for a specific aspect of Stellar Wind, he could not find legal grounds to continue.
Over the years, various commentators and politicians have picked up on Comey’s remark to the president and expanded it to say that President Bush’s staff knew of the specific surveillance problem for months before broaching it with the president. That is absolutely false, and the implication that the president was ill served by individuals attempting to keep information from him about a highly sensitive matter is also disingenuous.
I am confident that had I gone to the president with general concerns, he most likely would have said for me to stay on top of it and keep him informed if a specific problem arose. Once knowing the specific problem, he would have said the same thing that he did: “Find a solution, or at least find a bridge.” Find some way to make things work until we have time to do whatever is necessary to fix the problem.
According to President Bush, Comey had told him that he was not the only one contemplating resignation, but the head of the FBI was too.4 Bob Mueller had been waiting for Comey in the White House lobby. The president called Mueller back to his office, and the FBI director confirmed that if the president continued the Stellar Wind program over the Justice Department’s objection without resolving the collection activity that he had been convinced was without legal grounds, he would no longer serve in the Bush administration.5 That news changed everything.
As soon as I entered the Oval Office, the president told me that Bob Mueller was talking about resigning because of the NSA surveillance flap. Indeed, it was later revealed that both the DAG and the head of the FBI had anticipated resigning that very morning—but hadn’t.
“Yes,” I said. “I just learned about talk of resignations at Justice last night.” I mentioned my two late-night visitors. Apparently, Mueller had hinted that others within the Justice Department might resign too.
President Bush did not wish resignations to raise red flags that might call more attention to the NSA surveillance program. Some resignations are more problematic for a White House than others. The resignation of Bob Mueller, the director of the FBI since September 11, would definitely raise eyebrows. For one thing, Bob was well respected in the White House. Everyone regarded Bob as the square-jawed marine who could be counted on to do his duty, no matter how difficult. He was known as a man of integrity, and I greatly appreciated Bob’s calm, wise manner in running the FBI. For the FBI director to resign over a matter of principle, and especially a concern about the lawfulness of something our own intelligence people were doing, would be big news, and in Washington, it would ignite a firestorm.
His resignation would raise questions about the reasons for the departure, which would inevitably lead to the existence of Stellar Wind, revealing it to terrorists, and thus jeopardizing the national security of our country. The intelligence activities would likely be compromised, the tools would be less effective, and Americans would be less safe. Undoubtedly, this would lead to congressional hearings and political grandstanding—all further compromising the program. At the very least, a resignation brouhaha would cause the telecom companies to be reticent about providing assistance to the government. The president and I talked about the likelihood that the carriers would discontinue their cooperation without the DOJ assurances that their revelations were lawful. Without their help, we would have to curtail the surveillance activities, regardless.
The president shook his head and spoke slowly. “Okay, I said this was a bridge. It may be a shorter bridge than we anticipated. Talk with Mueller. Work with him to come up with a solution to this.”
“Yes, sir.” I left the president’s office and immediately contacted Bob. He agreed to lead an effort at Justice to help find a solution.
I found it remarkable that the president would bestow this responsibility on the FBI director, the head of an investigative agency, to find a solution to a legal issue—a constitutional question—rather than with the acting attorney general, the person charged by statute to provide legal advice to the executive branch. It was an indication of the faith and confidence the president had in the maturity and judgment of Bob Mueller.
Throughout that weekend and into the following week, I communicated directly with Mueller, and along with the lawyers at the Justice Department, we tried to develop the legal theory that would allow us to bring the collection of US person information to a level acceptable to the DOJ. By midweek, relying on their existing legal interpretations of what the law required and their assessment of the scope of presidential power, DOJ concluded that there was simply no way to do it under our current laws. We also concluded that if Congress attempted to pass a law that might somehow grant permission for the activity, the enemy would learn they could no lo
nger operate as freely in that realm, and the program would be much less effective.
Ultimately, to accommodate the concerns of the Justice Department, the president authorized modifications to the program in an order signed on March 19.
Within weeks after the tumultuous events surrounding the March 11 authorization, I was glad to hear that John Ashcroft had recovered and returned to work. The first time he came to the White House, we had a meeting in my office, and afterward, I asked, “General, may I talk to you privately for a second?”
I ushered out the other folks in the room, and I said to him, “Listen, in terms of the hospital visit, I can’t apologize for having gone there, because I was directed to go there by the president, but I wish it had never happened.”
Ashcroft seemed to understand my predicament; I hoped he understood the unusual, extraordinary circumstances surrounding Andy’s and my visit to his hospital room, given everything that was happening at that time.
Neither John nor I have spoken publicly a great deal about that incident. We came close once, after we were no longer serving in the Bush administration, when we were both on stage together at an event in California and the moderator asked about the “infamous” hospital visit. John declined to comment, so I did too.
Nevertheless, over the years, descriptions in the media and other books about that private visit have been voluminous, and virtually all have been inaccurate or skewed. I know it is something that both John Ashcroft and I wish had never occurred. He may have his own reasons for that. Perhaps he was embarrassed that DOJ lawyers had missed or misunderstood the collection activities that NSA was carrying out pursuant to Stellar Wind. Perhaps he was embarrassed that the White House and congressional leaders had ignored the Department of Justice.
For my part, after Andy and I got back to the White House from the hospital and everything blew up, I knew that eventually he and I would be accused of having tried—on our own and without direction from anyone—to take advantage of a sick man. I knew it would hurt us, and it did.
I was particularly saddened and offended for Andy. I was already a pariah to many of the Washington elite, especially in some of the most conservative circles. But Andy’s reputation as a dedicated public servant was impeccable. Nobody spoke ill of Andy Card, and a kinder and more caring person would be difficult to find. But if one believes the scuttlebutt, the impression might be that Andy was a mean-spirited manipulator, trying to force the will of his boss on a sick man. Nothing could be further from the truth.
As for John Ashcroft, the incident did nothing to lessen my opinion of him. He’s a great patriot, and I admire his service to our country. He took numerous arrows for the Bush administration, but even more for his efforts to do what he believed was right.
Later that fall, I was made aware of an unlawful leak in October 2004 to the New York Times, providing information regarding Basket I of Stellar Wind—the interception and content collection of international calls. Reporters James Risen and Eric Lichtblau were preparing to publish a story that would alert our enemies that they were at risk within the US telephone systems. Condi Rice and Mike Hayden convinced the reporters and the Times to hold the story.
In a rare face-to-face meeting, President Bush also met personally in the Oval Office with the New York Times publisher, Arthur Sulzberger Jr., and editor Bill Keller. The president had Mike Hayden explain the importance of the classified information for our country’s safety, as well as the safeguards in place to guard against abuse of the surveillance, and provided some illustrations of the program’s effectiveness. The president strongly urged the newspaper to hold the story for national security reasons.
Later that year, the paper threatened to run the story again.6 I met with the editor as well as the reporters in two separate meetings, hoping to persuade them to hold the story because of the classified information it exposed. Our second meeting occurred close to the 2004 presidential election. At the conclusion of the second meeting, along with Deputy Attorney General Jim Comey and his chief of staff, Chuck Rosenberg, the newsmen asked me two telling questions. One: “What do you plan to do when you leave here?” subtly implying that I would not be employable as a result of this incident becoming public. The second question was even more ironic, considering the reason for our meeting in the first place. The newsman asked me, “Do you have any problems sleeping at night?” implying that our actions were morally wrong.
My answer was simple. “Our morals are reflected in our laws, and as long we are complying with the law, I can sleep perfectly well.”
In December 2005, with one of the reporters set to publish a book about the surveillance, the New York Times chose to ignore the president’s request and disclosed the classified information about Basket I, alerting terrorists to our surveillance and potentially putting millions of American lives at risk. The disclosure of the classified information seemed suspiciously timed to affect the reauthorization of the PATRIOT Act. It did not prevent the PATRIOT Act’s renewal, but it did ruffle the sails (and probably the sales) of the tell-all book describing only a portion of Stellar Wind.
Despite his disappointment in the Times and his anger at whoever had betrayed our country by leaking the information, the president decided to diffuse the situation by addressing it head-on in his radio address that weekend.7 To his great credit, he did not want Americans to think their government was acting unlawfully, and he certainly did not want to lend credence to people suggesting the NSA was a rogue agency, operating on its own, or that agents within the NSA were acting on their own, spying on American citizens—or even, for that matter, unilaterally spying on al-Qaeda. The president acknowledged the existence of the Basket I surveillance; he discreetly said nothing about Basket II or Basket III.
The Justice Department launched a criminal investigation to discover who had disclosed the highly classified information. According to widespread reporting, Thomas M. Tamm, a DOJ employee, leaked some of the information. In 2011, according to subsequent media reports, an investigation into Tamm was dropped by the Obama DOJ.
When I had been confirmed as attorney general and had to defend the president’s surveillance program, I discussed the 2004 dispute with the DOJ in hearings before Congress. I was repeatedly asked questions that related to classified information regarding top secret activities of our nation’s intelligence agencies. They grilled me again and again about the same issues, but they were not privy to the information that other people in the intelligence community knew, and that I knew as well. Not a single person on the Senate Judiciary Committee before whom I testified had been read in to the Stellar Wind program, so trying to explain it to them without compromising classified information was difficult and frustrating, both for the inquisitors and for me. I refused to give away our nation’s vital, classified information in a public hearing simply to placate a senator or congressman. In truth, I could not have revealed the classified information to legislators even in a secure, private session if they had not been read in to the program, and that permission could only come from the president himself. Consequently, I was excoriated by various members of Congress and whispers of perjury ensued.
Although the president’s surveillance program had taken a hit, it was not dead. And because the program was valuable, administration lawyers began considering whether the more problematic portions of the program could be moved to a more permanent status under supervision of the FISA Court. Beginning shortly after the president’s modified order on March 19, we took our case to the chief judge of the FISA Court, Judge Colleen Kollar-Kotelly, and asked her to look at the program, including the disputed portions. The FISA Court was briefed on all aspects of Stellar Wind, to include the disputed ones. DOJ focused on changes to decrease the collection of US person information. Sometime thereafter, DOJ filed an application with the FISA Court seeking authority to collect bulk e-mail metadata.
In the summer of 2004, Judge Kollar-Kotelly reviewed one basket of collection activities conducted under Stella
r Wind and concluded that the collection of bulk e-mail metadata was indispensible to the lawful targeted searches.
Moreover, the FISA Amendment Act of 2008 in essence codified the surveillance activities authorized by the president and greatly expanded them. When Stellar Wind was first designed and implemented, it was not directed broadly at worldwide terrorism. It was initially authorized to combat al-Qaeda and its affiliates. As such, other terrorist groups were not intended to be monitored by this program. Now the FISA Amendment Act of 2008 allows some of the things we were doing against al-Qaeda under the president’s authority, and it allows them to be used against all legitimate foreign intelligence targets. So in a sense, the FISA amendments not only validate Stellar Wind, they expand it.
Ironically, President Barack Obama, who, as a US senator and during his campaigns to be elected president, gave the impression that if he were in the Oval Office, he would discontinue or greatly restructure the surveillance program, has continued the programs and even expanded them. I understand that. It is one thing to talk about stifling our intelligence programs when you either don’t know or don’t have the full picture of the terrorist efforts aligned against us. It is quite another when you see the reality.
If ever a president might have said, “That program is over; I’m not George Bush, and I won’t have it,” Barack Obama would have been inclined to do that. But he didn’t. That may actually be one of the strongest arguments with regard to both the lawfulness and the effectiveness of the Bush-authorized Stellar Wind program. If our forty-fourth president believed that he needed, in good conscience, to end the program, he could have done so. He did not.
True Faith and Allegiance Page 37