Susan Etheridge for The New York TimesRobert S. Mueller III, the F.B.I. director; Mike McConnell, director of national intelligence; and Gen. Michael V. Hayden, director of the Central Intelligence Agency, at a February hearing.
By ERIC LICHTBLAU Published: March 30, 2008
This article is adapted from the book “Bush’s Law: The Remaking of American Justice,” by Eric Lichtblau, which is being released Tuesday by Pantheon Books.
WASHINGTON — The National Security Agency’s eavesdropping program sparked heated legal concerns and silent protests inside the Bush administration within hours of its adoption in October 2001, according to current and former government officials.
In making its case to Congress for broadened spy powers, the White House has emphasized the firm legal foundations of the program conducted after the Sept. 11 attacks. It has even taken the unusual step of giving lawmakers access to classified presidential orders from 2001 and early legal opinions to try to show that the program was on sound legal footing from the start.
But many of the tensions that were roiling the administration at the start of the program have never become public.
In one previously undisclosed episode, Deputy Attorney General Larry Thompson refused to sign off on any of the secret wiretapping requests that grew out of the program because of the secrecy and legal uncertainties surrounding it, the officials said. With the veil of secrecy around the program, Mr. Thompson was not given access to details of the N.S.A. operation, and he was so uncomfortable with the idea of approving this new breed of wiretap applications that he had a top adviser write a memorandum assessing the legal ramifications. The adviser warned him not to sign the warrant applications because it was unclear where the wiretaps were coming from.
Inside the Federal Bureau of Investigation, meanwhile, technicians stumbled onto the N.S.A.’s program accidentally within 12 hours of its inception, setting off what officials described as a brief firestorm of anxiety among senior officials. Some who had not been told about the program were concerned that the agency was violating laws that required a court order for the singling out of Americans in wiretaps, and they immediately alerted higher-ups to what they had discovered. “What’s going on here? Is this legal?” one F.B.I. official asked after learning of the N.S.A. operation on American soil.
Robert S. Mueller III, the F.B.I. director, assured nervous officials that the program had been approved by President Bush, several officials said. But the presidential approval, one former intelligence official disclosed, came without a formal legal opinion endorsing the program by the Office of Legal Counsel at the Justice Department.
At the outset of the program in October 2001, John Ashcroft, the attorney general, signed off on the surveillance program at the direction of the White House with little in the way of a formal legal review, the official said. Mr. Ashcroft complained to associates at the time that the White House, in getting his signature for the surveillance program, “just shoved it in front of me and told me to sign it.”
Aides to Mr. Ashcroft were worried, however, that in approving a surveillance program that appeared to test the limits of presidential authority, Mr. Ashcroft was left legally exposed without a formal opinion from the Office of Legal Counsel, which acts as the legal adviser for the entire executive branch.
At that time, the office had already issued a broad, classified opinion declaring the president’s surveillance powers in the abstract in wartime, but it had not weighed in on the legality or the specifics of the N.S.A. operation, officials said.
The nervousness among Justice Department officials led the administration to secure a formal opinion from John Yoo, a deputy in the Office of Legal Counsel, declaring that the president’s wartime powers allowed him to order the N.S.A. to intercept international communication of terror suspects without a standard court warrant.
The opinion itself remains classified and has not been made public. It was apparently written in late 2001 or early 2002, but it was revised in 2004 by a new cast of senior lawyers at the Justice Department, who found the earlier opinion incomplete and somewhat shoddy, leaving out important case law on presidential powers. Mr. Yoo declined to discuss the issue. Even after the final legal opinions were written, lawyers at the National Security Agency were not allowed to see them, officials said.
Justice Department officials declined to comment for this article, saying that they would not discuss internal deliberations on a classified program. The White House also declined to comment. The White House is now at an impasse with the House of Representatives over Mr. Bush’s efforts to secure broader spy powers for the N.S.A. as well as retroactive immunity for the phone companies that helped in the warrantless wiretapping program. The Senate has agreed to give immunity, but the House has refused. Talks will begin anew this week when Congress returns from a two-week break.
In the past, the White House has said there was widespread agreement among administration officials about the president’s authority to order warrantless surveillance inside the United States. Former Attorney General Alberto R. Gonzales told Congress that there was never any disagreement within the administration over the issue. After it was disclosed that senior Justice Department officials had threatened to resign over aspects of the program in 2004, lawmakers attacked the truthfulness of Mr. Gonzales’s remarks, and the inspector general’s office is now reviewing his remarks as well.
In public comments of his own in 2006, Gen. Michael Hayden, who ran the N.S.A. at the start of the surveillance program and now heads the Central Intelligence Agency, recounted going to three lawyers at the security agency separately at the start of the eavesdropping program to get their legal opinions about it. All agreed that the president was within his powers to authorize the program, Mr. Hayden said. N.S.A. was “good to go,” he said he concluded.
At the insistence of Vice President Dick Cheney, knowledge of the program was restricted to a tight circle of top officials and Congressional briefings were unusually limited. But several current and former officials involved in the program said they believed the intense secrecy was to blame for much of the early nervousness among other senior officials who had integral roles in intelligence operations yet were not allowed to know the full details of what was happening.
At the Justice Department, for instance, the fact that Mr. Thompson, the second-ranking official, was not given access to the program led to problems in getting court-approved wiretap applications signed for those surveillance operations that started as warrantless N.S.A. operations. With Mr. Thompson refusing to sign off on the new applications, the Justice Department had to adopt the cumbersome process of segregating the applications that grew out of the N.S.A. program, routing them around Mr. Thompson for Mr. Ashcroft’s signature.
At the F.B.I., the secrecy and questions surrounding the program bred suspicion among officials. “It was a huge mistake,” said one official. “They were too secretive.”
Source: http://www.nytimes.com/2008/03/30/washington/30nsa.html?_r=1&th&emc=th&oref=slogin
