Why Justice Lawyers Defied President Bush

It is one of the darkly iconic scenes of the Bush Administration. In March 2004, two of the president's most senior advisers rushed to a Washington hospital room where they confronted a bedridden John Ashcroft. White House chief of staff Andy Card and counsel Alberto Gonzales pressured the attorney general to renew a massive domestic-spying program that would lapse in a matter of days. But others hurried to the hospital room, too. Ashcroft's deputy, James Comey, later joined by FBI Director Robert Mueller, stood over Ashcroft's bed to make sure the White House aides didn't coax their drugged and bleary colleague into signing something unwittingly. The attorney general, sick and pain-racked from a rare pancreatic disease, rose up from his bed, gathering what little strength he had, and firmly told the president's emissaries that he would not sign their papers.

White House hard-liners would make one more effort—getting the president to recertify the program on his own, relying on his powers as commander in chief. But in the end, with an election looming and the entire political leadership of the Justice Department poised to resign rather than carry out orders they thought to be illegal, Bush backed down. The rebels prevailed.

But that is only part of the story—because Bush, even though he made concessions to the rebels, kept other aspects of the program intact. Even after The New York Times revealed the existence of the secret surveillance two years later—and despite outrage in Congress and among civil libertarians—monitoring of calls and e-mails between the United States and overseas without court approval continues. Much has been written about the Justice Department rebellion, including, most recently, the account in Barton Gellman's groundbreaking book "Angler." But a mystery remains: What did the Justice Department rebels object to, and what concessions did Bush make to appease them? What, precisely, was canceled?

Two knowledgeable sources tell NEWSWEEK that the clash erupted over a part of Bush's espionage program that had nothing to do with the wiretapping of individual suspects. Rather, Comey and others threatened to resign because of the vast and indiscriminate collection of communications data. These sources, who asked not to be named discussing intelligence matters, describe a system in which the National Security Agency, with cooperation from some of the country's largest telecommunications companies, was able to vacuum up the records of calls and e-mails of tens of millions of average Americans between September 2001 and March 2004. The program's classified code name was "Stellar Wind," though when officials needed to refer to it on the phone, they called it "SW." (The NSA says it has "no information or comment"; a Justice Department spokesman also declined to comment.)

The NSA's powerful computers became vast storehouses of "metadata." They collected the telephone numbers of callers and recipients in the United States, and the time and duration of the calls. They also collected and stored the subject lines of e-mails, the times they were sent, and the addresses of both senders and recipients. By one estimate, the amount of data the NSA could suck up in close to real time was equivalent to one quarter of the entire Encyclopaedia Britannica per second. (The actual content of calls and e-mails was not being monitored as part of this aspect of the program, the sources say.) All this metadata was then sifted by the NSA, using complex algorithms to detect patterns and links that might indicate terrorist activity.

The secret collection and data-mining program had begun with a blessing by John Yoo, an ultraconservative lawyer in the Justice Department's Office of Legal Counsel. Yoo was a close ally of hard-line lawyers in the White House and worked closely with David Addington, Vice President Dick Cheney's lawyer. (Addington is now Cheney's chief of staff.) But by 2003, Yoo had moved on, and a new head of the OLC, Jack Goldsmith, began reviewing his work. Goldsmith found Yoo's legal opinions justifying the program flawed. His reasons are based on a mind-numbingly complex area of federal law, but the basic analysis comes down to this: the systematic collection and digital transmission of huge amounts of telephone and e-mail data by the government constitutes "electronic surveillance" under the Foreign Intelligence Surveillance Act, the exclusive law governing domestic spying in national-security cases. For such activities, FISA requires a court-approved warrant. Therefore, the program was illegal. The White House lawyers countered that the president's constitutional powers as commander in chief trumped FISA. Goldsmith and his colleagues rejected that argument, and won. Days after the hospital clash, Bush shut down the massive data-collection program and stopped searches of the data that had already been stored. (It's unclear whether the administration has since found new legal justification to return to at least some of these activities.)

This updated version of events helps explain exactly what motivated stalwart Republican lawyers like Comey to defy their Republican president. The Justice lawyers were not fuming about an Orwellian invasion of the privacy of American citizens. Though all the rebellious lawyers agreed that the program was illegal, some favored its goals while others questioned its efficacy. "At the end of the day, the dispute was a legal one, not a policy one," says one participant. "It was about upholding the rule of law, not about what was appropriate from a civil-libertarian standpoint or any other standpoint."

One of the most consequential government rebellions in memory may be regarded as an act of heroism by civil libertarians. But the rebels were conservatives who might have been willing to—and in some cases did—approve policies that would not sit well with many Americans. They just weren't willing to break the law. Which is how the president's men ended up in John Ashcroft's hospital room on a cool March evening.