Unclassified Report On The President's Surveillance Program
IV. LEGAL REASSESSMENT OF THE PRESIDENT'S SURVEILLANCE PROGRAM
Chapter Four of the DOJ OIG's report describes the period in late 2003 and early 2004 when DOJ determined that aspects of the PSP were not supported by law and advised the President that the program should be modified.
A. Justice Department Attorneys Become Concerned About the Legality of Some Activities under the PSP
As noted above, John Yoo was the sole OLe attorney who advised Attorney General Ashcroft and White House officials on the PSP from the program's inception in October 2001 through Yoo's resignation from DOJ in May 2003. Upon Yoo's departure, another DOJ official, Patrick Philbin, was selected by the White House to be read into the PSP to assume Yoo's role as advisor to the Attorney General concerning the program. In addition, Jack Goldsmith replaced Jay Bybee as the Assistant Attorney General for OLC on October 6, 2003. Even though Bybee had never been read into the PSP, Philbin persuaded Counsel to the Vice President David Addington to read in Goldsmith, Bybee's replacement.
After being read into the PSP, Goldsmith and Philbin became concerned about the factual and legal basis for Yoo's legal memoranda supporting the program. For example, FISA prohibits persons from intentionally engaging in electronic surveillance "under color of law except as authorized by statute[.]" 50 U.S.C. § 1809(a). Yoo's analysis concluded that this provision did not implicate the legality of the PSP because FISA did not expressly apply to wartime operations. However, Yoo's memoranda omitted any reference to the FISA provision allowing the interception of electronic communications without a warrant for a period of 15 days following a congressional declaration of war. See 50 U.S.C. § 1811. Goldsmith and Philbin were concerned that this provision contradicted Yoo's assertion that Congress did not intend FISA to apply to wartime operations. They also were troubled by other aspects ofYoo's legal analysis and by the lack of an adequate factual description in his memoranda of how the PSP operated.
B. OLC Begins Developing a New Legal Analysis for the PSP
Goldsmith and Philbin began developing an analysis to more fully address the FISA statute with respect to the PSP. This new analysis relied on the legal argument that the Congressional Authorization for Use of Military Force Joint Resolution (AUMF), enacted shortly after the attacks of September 11, 2001, effectively exempted some of the activities under the PSP from FISA. However, Goldsmith and Philbin became concerned that this revised analysis would not be sufficient to support the legality of certain aspects of the Other Intelligence Activities that the President had authorized under the PSP.
Beginning in August 2003, Philbin and later Goldsmith brought their concerns about the OLC legal opinions to Attorney General Ashcroft. With Ashcroft's approval, Philbin began preparing a new OLC memorandum assessing the legality of the PSP. During this period in late 2003, Goldsmith and Philbin advised Ashcroft to continue to certify as to form and legality the Presidential Authorizations for the PSP pending completion of the new legal analysis.
C. DOJ Officials Convey Concerns to the White House
In December 2003, Goldsmith and Philbin met with Counsel to the Vice President Addington and White House Counsel Gonzales at the White House to express their growing concerns about the legal underpinnings of the program. Goldsmith said he told them that OLC was not sure the program could survive in its current form. According to Goldsmith's contemporaneous notes of these events, these discussions did not contemplate an interruption of the program, although the White House officials represented that they would "agree to pull the plug" if the problems with the program were found to be sufficiently serious.
In late January 2004, at Goldsmith's request, the White House agreed to allow Deputy Attorney General James Comey to be read into the PSP following Comey's confirmation as the Deputy Attorney General in December 2003. After being briefed, Comey agreed that the concerns about Yoo's legal analysis were well-founded. 14 Comey told the DOJ OIG that of particular concern to him and Goldsmith was the notion that Yoo's legal analysis entailed ignoring an act of Congress, and doing so without full congressional notification.
D. Conflict Between DOJ and the White House
Comey told the DOJ OIG that he met with Attorney General Ashcroft on March 4, 2004, to discuss the PSP and that Ashcroft agreed with Comey and the other DOJ officials' assessment of the potential legal problems with the PSP. Later that day, Ashcroft was struck with severe gallstone pancreatitis and was admitted to the George Washington University Hospital in Washington, D.C.15
On March 5, 2004, Goldsmith advised Comey by memorandum that under the circumstances of Ashcroft's medical condition and hospitalization, a "clear basis" existed for Comey to determine that "this is a case of 'absence or disability' of the Attorney General" within the meaning of 28 U.S.C. § 508(a). The "cc" line of Goldsmith's memorandum to Comey indicated that a copy of the memorandum was also sent to White House Counsel Gonzales.
Later on March 5, Gonzales called Goldsmith to request a letter from OLC stating that Yoo's prior OLC opinions "covered the program," meaning the PSP. Philbin told the DOJ OIG that Gonzales was not requesting a new opinion that the program itself was legal, but only that the prior opinions had concluded that it was. As a result of Gonzales's request, Goldsmith, Philbin, and Comey re-examined Yoo's memoranda with a view toward determining whether they adequately described the actual intelligence activities of the NSA under the Authorizations. Goldsmith, Philbin, and Comey concluded that Yoo's memoranda did not accurately describe some of the Other Intelligence Activities that were being conducted under the Presidential Authorizations implementing the PSP, and that the memoranda therefore did not provide a basis for finding that these activities were legal.
On Saturday, March 6, Goldsmith and Philbin, with Comey's concurrence, met with Addington and Gonzales at the White House to convey their conclusions that certain activities in the PSP should cease. According to Goldsmith's notes, Addington and Gonzales "reacted calmly and said they would get back with us."
On Sunday, March 7, 2004, Goldsmith and Philbin met again with Addington and Gonzales at the White House. According to Goldsmith, the White House officials informed Goldsmith and Philbin that they disagreed with their interpretation of Yoo's memoranda and on the need to change any of the NSA's intelligence activities under the PSP.
On March 9 Gonzales called Goldsmith to the White House in an effort to persuade him that his criticisms of Yoo's memoranda were incorrect and that Yoo's analysis provided sufficient legal support for the program. After Goldsmith disagreed, Gonzales next argued for a "30-day bridge" to get past the expiration of the current Presidential Authorization on March 11, 2004. Gonzales reasoned that Ashcroft, who was still hospitalized, was not in any condition to sign a renewal of the Authorization, and that a "30-day bridge" would move the situation to a point where Ashcroft would be well enough to approve the program. Goldsmith told Gonzales he could not agree to recommend an extension because aspects of the program lacked legal support.
At noon that day, another meeting was held in the White House office of Andrew Card, the President's Chief of Staff. According to Director Mueller's notes, Mueller, Card, Vice President Cheney, CIA Deputy Director McLaughlin, Hayden, Gonzales, and other unspecified officials were present. Comey, Goldsmith, and Philbin were not invited to this meeting. After a presentation on the value of the PSP by NSA and CIA officials, it was then explained to the group that Comey "has problems" with some activities authorized under the program. Mueller's notes state that Vice President Cheney suggested that "the President may have to reauthorize without [the] blessing of DOJ," to which Mueller responded, "I could have a problem with that," and that the FBI would "have to review legality of continued participation in the program."
Another meeting at the White House was held on March 9, this time with Comey, Goldsmith, and Philbin present. Gonzales told the DOJ OIG that the meeting was held to make sure that Comey understood what was at stake with the PSP and to demonstrate the program's value. Comey said Vice President Cheney stressed that the PSP was "critically important" and warned that Comey would risk "thousands" of lives if Comey did not agree to recertify the program. Comey said he stated at the meeting that he, as Acting Attorney General, could not support reauthorizing certain intelligence activities unless they were modified. According to Comey, the White House officials said they could not agree to that modification.
Goldsmith, Philbin, and Comey met in the early afternoon of March 10, 2004, to discuss the meeting at the White House the day before and how DOJ should proceed. Goldsmith and Philbin confirmed their position to Comey that some of the Other Intelligence Activities under the PSP could not be legally supported and would have to be changed or shut down.
Gonzales told the DOJ OIG that after President Bush was advised of the results of the March 9, 2004, meeting, the President instructed Vice President Cheney on the morning of Wednesday, March 10, to call a meeting with congressional leaders to advise them of the impasse with DOJ. On the afternoon of March 10, at approximately 4:00 or 5:00 p.m., Gonzales and other White House and intelligence agency officials, including Vice President Cheney, Card, Hayden, McLaughlin, and Tenet, convened an "emergency meeting" with congressional leaders in the White House Situation Room. The congressional leaders in attendance were Senate Majority and Minority Leaders William H. "Bill" Frist and Thomas A. Daschle; Senate Select Committee on Intelligence Chairman Pat Roberts and Vice Chairman Jay Rockefeller; Speaker of the House Dennis Hastert and House Minority Leader Nancy Pelosi; and House Permanent Select Committee on Intelligence Chair Porter Goss and Ranking Member Jane Harman. This congressional group was known informally as the "Gang of Eight." No officials from DOJ were asked to attend the meeting.
According to Gonzales's notes of the meeting, individual congressional leaders expressed thoughts and concerns related to the program. However, Gonzales told the DOJ OIG that the consensus of the congressional leaders was that the program should continue.16
Gonzales told the DOJ OIG that following the meeting with the congressional leaders on March 10, President Bush instructed him and Card to go to the George Washington University Hospital to speak to Ashcroft, who was in the intensive care unit recovering from surgery.
According to notes from Ashcroft's FBI security detail, at 6:20 p.m. that evening Card called the hospital and spoke with an agent in Ashcroft's security detail, advising him that President Bush would be calling shortly to speak with Ashcroft. Ashcroft's wife told the agent that Ashcroft would not accept the call. Ten minutes later, the agent called Ashcroft's Chief of Staff David Ayres at DOJ to request that Ayres speak with Card about the President's intention to call Ashcroft. The agent conveyed to Ayres Mrs. Ashcroft's desire that no calls be made to Ashcroft for another day or two. However, at 6:45 p.m., Card and the President called the hospital and, according to the agent's notes, "insisted on speaking [with Attorney General Ashcroft]." According to the agent's notes, Mrs. Ashcroft took the call from Card and the President and was informed that Gonzales and Card were coming to the hospital to see Ashcroft regarding a matter involving national security.
At approximately 7:00 p.m., after learning that Gonzales and Card were on their way to the hospital, Ayres relayed this information to Comey. According to Comey's May 2007 testimony before the Senate Judiciary Committee, Comey called his Chief of Staff and directed him to "get as many of my people as possible to the hospital immediately." Comey next called FBI Director Mueller and told him that Gonzales and Card were on their way to the hospital to see Ashcroft, and that Ashcroft was in no condition to receive guests, much less make a decision about whether to recertify the PSP. According to Mueller's notes, Comey asked Mueller to come to the hospital to "witness [the] condition of AG." Mueller told Comey he would go to the hospital right away.
Philbin said he was leaving work that evening when he received a call from Comey, who told Philbin that he needed to get to the hospital right away because Gonzales and Card were on their way there "to get Ashcroft to sign something." Comey also directed Philbin to call Goldsmith and tell him what was happening.
Comey arrived at the hospital between 7: 10 and 7:30 p.m. In his congressional testimony, Comey said he ran up the stairs with his security detail to Ashcroft's floor, and he entered Ashcroft's room, which he described as darkened, and found Ashcroft lying in bed and his wife standing by his side. Comey said he began speaking to Ashcroft, and that it was not clear that Ashcroft could focus and that he "seemed pretty bad off[.]"
Goldsmith and Philbin arrived at the hospital within a few minutes of each other. Comey, Goldsmith, and Philbin met briefly in an FBI "command post" that had been set up in a room adjacent to Ashcroft's room. Moments later, the command post was notified that Card and Gonzales had arrived at the hospital and were on their way upstairs to see Ashcroft. Comey, Goldsmith, and Philbin entered Ashcroft's room and, according to Goldsmith's notes, Comey and the others advised Ashcroft "not to sign anything."
Gonzales and Card entered Ashcroft's hospital room at 7:35 p.m., according to the FBI agent's notes. The two stood across from Mrs. Ashcroft at the head of the bed, with Comey, Goldsmith, and Philbin behind them. Gonzales told the DOJ OIG that he carried with him in a manila envelope the March 11, 2004, Presidential Authorization for Ashcroft to sign; According to Philbin, Gonzales first asked Ashcroft how he was feeling and Ashcroft replied, "Not well." Gonzales then said words to the effect, "You know, there's a reauthorization that has to be renewed ...." Gonzales told us that he may also have told Ashcroft that White House officials had met with congressional leaders "to pursue a legislative fix."
Comey testified to the Senate Judiciary Committee that at this point Ashcroft told Gonzales and Card "in very strong terms" about his legal concerns with the PSP, which Comey testified Ashcroft drew from his meeting with Comey about the program a week earlier. Comey testified that Ashcroft next stated:
"But that doesn't matter, because I'm not the Attorney General. There is the Attorney General," and he pointed to me - I was just to his left. The two men [Gonzales and Card] did not acknowledge me; they turned and walked from the room.
Records kept by the Attorney General's security detail indicate that Gonzales and Card left Ashcroft's room at 7:40 p.m. Moments after Gonzales and Card departed, Mueller arrived at the hospital. At approximately 8:00 p.m., Mueller went into Ashcroft's room for 5 to 10 minutes. Mueller wrote in his notes: "AG in chair; is feeble, barely articulate, clearly stressed."
Before leaving the hospital, Comey received a call from White House Chief of Staff Card. Comey testified that Card was very upset and demanded that Comey come to the White House immediately. Comey told Card that he would meet with him, but not without a witness, and that he intended that witness to be DOJ Solicitor General Ted Olson. Comey and Olson subsequently went to the White House at about 11 :00 p.m. that evening and met with Gonzales and Card. Gonzales told the DOJ OIG that little more was achieved at this meeting other than a general acknowledgement that a "situation" continued to exist because of the disagreement between DOJ and the White House regarding legal authorization for the program.
E. White House Counsel Certifies Presidential Authorization Without Department of Justice Concurrence
On the morning of March 11, 2004, with the Presidential Authorization set to expire, President Bush signed a new Authorization for the PSP. In a departure from the past practice of having the Attorney General certify the Authorization as to form and legality, the March 11 Authorization was certified by White House Counsel Gonzales. The March 11 Authorization also differed markedly from prior Authorizations in three other respects. It explicitly asserted that the President's exercise of his Article II Commander-in-Chief authority displaced any contrary provisions of law, including FISA. It clarified the description of certain Other Intelligence Activities being conducted under the PSP to address questions regarding whether such activities had actually been authorized explicitly in prior Authorizations. It also stated that in approving the prior Presidential Authorizations as to form and legality, the Attorney General previously had authorized the same activities now being approved under the March 11 Authorization.17
White House Chief of Staff Card informed Comey by telephone on the morning of March 11, 2004, that the President had signed the new Authorization that morning. At approximately noon, ,Gonzales called Goldsmith to inform him that the President, in issuing the Authorization, had made an interpretation of law concerning his authorities and that DOJ should not act in contradiction of the President's determinations.
Also at noon on March 11, Director Mueller met with Card at the White House. According to Mueller's notes, Card told Mueller that if no "legislative fix" could be found by May 6, 2004, when the March 11 Authorization was set to expire, the program would be discontinued. Mueller wrote that he told Card that the failure to have DOJ representation at the congressional briefing and the attempt to have Ashcroft certify the Authorization without going through Comey "gave the strong perception that the [White House] was trying to do an end run around the Acting [Attorney General] whom they knew to have serious concerns as to the legality of portions of the program." Card responded that he and Gonzales were unaware at the time of the hospital visit that Comey was the Acting Attorney General, and that they had only been following the directions of the President.
F. Department of Justice and FBI Officials Consider Resigning
Several senior DOJ and FBI officials considered resigning after the Presidential Authorization was signed without DOJ's concurrence. Comey told the DOJ OIG that he drafted a letter of resignation because he believed it was impossible for him to remain with DOJ if the President would do something DOJ said was not legally supportable. Comey also testified that Ashcroft's Chief of Staff David Ayres believed Ashcroft also was likely to resign and thus Ayres urged Comey to wait until Ashcroft was well enough to resign with him.18
Goldsmith told the DOJ OIG he drafted a resignation letter at around the same time as Comey. According to his contemporaneous notes, Goldsmith cited the "shoddiness" of the prior OLC legal review, the "over-secrecy" of the PSP, and the "shameful" incident at the hospital as among his grievances.
At approximately 1:30 a.m. on March 12, 2004, FBI Director Mueller drafted by hand a letter stating, in part: "[A]fter reviewing the plain language of the FISA statute, and the order issued yesterday by the President ... and in the absence of further clarification of the legality of the program from the Attorney General, I am forced to withdraw the FBI from participation in the program. Further, should the President order the continuation of the FBI's participation in the program, and in the absence of further legal advice from the AG, I would be constrained to resign as Director of the FBI." Mueller told the DOJ OIG that he planned on having the letter typed and then tendering it, but that based on subsequent events his resignation was not necessary.
On the morning of March 12, 2004, Comey and Mueller attended the regular daily threat briefing with the President in the Oval Office. Comey said that following the briefing President Bush called him into the President's private study for an "unscheduled meeting." Comey told the President of DOJ's legal concerns regarding the PSP. According to Comey, the President's response indicated that he had not been fully informed of these concerns. Comey told the President that the President's staff had been advised of these issues "for weeks." According to Comey, the President said that he just needed until May 6 (the date of the next Authorization), and that if he could not get Congress to fix FISA by then he would shut down the program. The President emphasized the importance of the program and that it "saves lives."
The President next met with Mueller. According to Mueller's notes, Mueller told the President of his concerns regarding the FBI's continued participation in the program without an opinion from the Attorney General as to its legality, and that he was considering resigning if the FBI were directed to continue to participate without the concurrence of the Attorney General. Mueller wrote that he explained to the President that he had an "independent obligation to the FBI and to DOJ to assure the legality of actions we undertook, and that a presidential order alone could not do that." According to Mueller's notes, the President then directed Mueller to. meet with Comey and other PSP principals to address the legal concerns so that the FBI could continue participating in the program "as appropriate under the law."
On the morning of March 12, 2004, Comey decided not to direct the FBI to cease cooperating with the NSA in conjunction with the program. Comey's decision is documented in a one-page memorandum from Goldsmith to Comey in which Goldsmith explained that the President, as Commander in Chief and Chief Executive with the constitutional duty to "take care that the laws are faithfully executed," made a determination that the PSP, as practiced, was lawful. Goldsmith concluded that this determination was binding on the entire Executive Branch, including Comey in his exercise of the powers of the Attorney General.
On March 12, 2004 an interagency working group led by OLC was convened to continue reanalyzing the legality of the PSP. In the days that followed, Goldsmith continued to express doubt that a viable legal rationale could be found for some of the Other Intelligence Activities being conducted under the PSP.
On March 16, 2004 Comey drafted a memorandum to White House Counsel Gonzales setting out his advice to the President. According to the memorandum, Comey advised that DOJ remained unable to find a legal basis to support certain Other Intelligence Activities that had been authorized as part of the program and that such activities should be discontinued immediately. Comey cautioned that he believed some ongoing activities under the program raised "serious issues" about congressional notification, "particularly where the legal basis for the program is the President's decision to assert his authority to override an otherwise applicable Act of Congress."
Gonzales replied by letter on the evening of March 16. The letter stated, in part:
Your memorandum appears to have been based on a misunderstanding of the President's expectations regarding the conduct of the Department of Justice. While the President was, and remains, interested in any thoughts the Department of Justice may have on alternative ways to achieve effectively the goals of the activities authorized by the Presidential Authorization of March 11, 2004, the President has addressed definitively for the Executive Branch in the Presidential Authorization the interpretation of the law.
G. White House Agrees to Modify the PSP
Notwithstanding Gonzales's letter, on March 17, 2004 the President decided to modify certain PSP intelligence-gathering activities and to discontinue certain Other Intelligence Activities that DOJ believed were legally unsupported. The President's directive was expressed in two modifications to the March 11, 2004 Presidential Authorization.
On May 6, 2004 Goldsmith and Philbin completed an OLC legal memorandum assessing the legality of the PSP as it was operating at that time. The lOB-page memorandum traced the history of the program and analyzed the legality of all of the intelligence activities conducted under the program in light of applicable statutes, Executive Orders, cases, and constitutional provisions. Much of the legal reasoning in the May 6, 2004 OLC memorandum was publicly released by DOJ in a "White Paper" issued after one aspect of the program was revealed in The New York Times and publicly confirmed by the President in December 2005 as the Terrorist Surveillance Program. The OLC memorandum stated that the Authorization for Use of Military Force (AUMF) passed by Congress shortly after the attacks of September 11, 2001 gave the President authority to use both domestically and abroad "all necessary and appropriate force," including signals intelligence capabilities, to prevent future acts of international terrorism against the United States. According to the memorandum, the AUMF was properly read as an express authorization to conduct targeted electronic surveillance against al-Qa'ida and its affiliates, the entities responsible for attacking the United States, thereby supporting the President's directives to conduct these activities under the PSP.
H. Department of Justice OIG Conclusions
The DOJ OIG concluded that it was extraordinary and inappropriate that a single DOJ attorney, John Yoo, was relied upon to conduct the initial legal assessment of the PSP, and that the lack of oversight and review of Yoo's work, as customarily is the practice of OLC, contributed to a legal analysis of the PSP that at a minimum was factually flawed. Deficiencies in the legal memoranda became apparent once additional DOJ attorneys were read into the program in 2003 and when those attorneys sought a greater understanding of the PSP's operation. The DOJ OIG concluded that the White House's strict controls over DOJ access to the PSP undermined DOJ's ability to perform its critical legal function during the PSP's early phase of operation.
The DOJ OIG also concluded that the circumstances plainly called for additional DOJ resources to be applied to the legal review of the program and that it was the Attorney General's responsibility to be aware of this need and to take steps to address it. Ashcroft's request during this period that his chief of staff David Ayres and Deputy Attorney General Larry Thompson be read into the program was not approved. However, the DOJ OIG could not determine whether Attorney General Ashcroft aggressively sought additional read-ins to assist with DOJ's legal review of the program during this period because Ashcroft did not agree to be interviewed.
14 Comey also discussed DOJ's concerns about the legality of the program with FBI Director Mueller on March 1,2004. Mueller told the DOJ OIG that this was the first time he had been made aware of DOJ's concerns.
15 Ashcroft's doctors did not clear Ashcroft to resume his duties as Attorney General until March 31, 2004.
16 When Gonzales testified before the Senate Judiciary Committee on July 24, 2007, he essentially described the congressional leaders' reactions to the March 10, 2004, "Gang of Eight" briefing as he did in his handwritten notes of the briefing, stating, "The consensus in the room from the congressional leadership is that we should continue the activities, at least for now." However, after Gonzales testified Representative Pelosi, Senator Rockefeller, and Senator Daschle issued statements sharply disputing Gonzales's characterization of their statements at the March 10, 2004, meeting, stating that there was no consensus at the meeting that the program should proceed. Pelosi's office also issued a statement that she "made clear my disagreement with what the White House was asking" concernipg the program. The DOJ OIG did not attempt to interview the congressional leaders and obtain their recollections as to what was said at this meeting because this was beyond the scope of its review.
17 The DOJ OIG determined that this statement subsequently was removed from future Authorizations after Ashcroft complained to Gonzales that the statement was "inappropriate." In a May 20, 2004 memorandum, Ashcroft wrote that it was not until Philbin and later Goldsmith explained to him that aspects of the NSA's Other Intelligence Activities were not accurately described in the prior Authorizations that he realized that he had been certifying the Authorizations prior to March 2004 based on a misimpression of those activities.
18 In written responses to Senator Charles Schumer following his testimony, Comey wrote that he believed that several senior DOJ officials, including Chuck Rosenberg, Daniel Levin, James Baker, David Ayres, and Deputy Chief of Staff to the Attorney General David Israelite, were also prepared to resign. Comey wrote that he believed that "a large portion" of his staff also would have resigned if he had.
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