By Paul Rosenzweig, The George Washington University Law School
On the evening of March 10, 2004, Attorney General John Ashcroft was resting in a hospital bed at George Washington University. Present in that room were White House Chief of Staff Andrew Card, FBI Director Robert Mueller, Deputy Attorney General, James Comey, and others. The events in that hospital room still resonate today.
The Meeting That Changed History
These men were gathered in that room to answer a simple and yet exceptionally important question: Is an effective global counter-terrorism surveillance program compatible with US law? Or are they irreconcilably in conflict?
The meeting was about a program known as the President’s Surveillance Program authorized for the past several years by John Ashcroft. The program collected internet metadata, data describing other data. The gathered data included web searches made by individuals, websites they visited, and hyperlinks they clicked on. It was initiated to help US intelligence agencies track terrorist activities.
This is a transcript from the video series The Surveillance State: Big Data, Freedom, and You. Watch it now, on Wondrium.
The Background of Surveillance Program
This program was authorized by the Office of Legal Counsel or OLC in the aftermath of the September 11 attacks. It was based on the opinion that the President had the inherent authority to order this type of activity, even if no existing formal law expressly permits it.
Later, a new OLC attorney—a Harvard Law professor—named Jack Goldsmith concluded that without Congressional authorization, the President had no such authority. Consequently, he advised the Department of Justice to refuse to reauthorize the program and shut it down.
At that time, though, Attorney General Ashcroft was recuperating in the hospital after emergency surgery. Accordingly, Goldsmith took his analysis to Deputy Attorney General James Comey and convinced him the program in its current form was not lawful. Comey, in turn, informed the White House that unless the program accommodated the legal objections, the Department of Justice would not reauthorize it.
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The Clash of Institutions
This news disturbed White House Chief of Staff Andrew Card to such an extent that he rushed to the hospital to urge Attorney General Ashcroft to reauthorize the program. But since Comey was the acting attorney general, he held the legal authority. The White House wanted the ailing cabinet member to override his subordinate, Comey.
In a countermove, Comey, along with Goldsmith and Mueller rushed to the hospital to convince Ashcroft not to reauthorize. Ashcroft told Andrew Card that he also doubted the legality of the program, but at the moment, his opinion didn’t matter. And pointing at Comey, he said, “I’m not the attorney general. There is the attorney general.”
President as Commander in Chief
As a consequence, Comey refused to reauthorize the program. And the next day, President Bush told Comey that he intended to reauthorize the program anyway, without his approval, on his own authority, as commander in chief.
True to his word, a new directive was circulated under President Bush’s name the very next day, making the explicit assertion that his authority displaced the existing limits entailed in the Foreign Intelligence Surveillance Act under the rationale that the law, “cannot be read to infringe upon the president’s constitutional role as commander in chief.”
The reauthorization also stated that the NSA could obtain and retain metadata, but that the agency would not be deemed to have acquired those records until the analysts specifically searched for and retrieved them from the larger database.
The Second Saturday Night Massacre
This almost led to a new version of Nixon’s infamous Saturday Night Massacre as Comey, Goldsmith, and others threatened to resign. The most prominent resignation threat came from Robert Mueller, the FBI Director. While many in the administration, including the Vice President, believed that this surveillance program was vital for national security, Mueller strongly denounced it.
For Mueller, the critical component of American security was the rule of law. As he put it in a subsequent speech, “The rule of law, civil liberties, and civil rights—these are not our burdens. They are what makes all of us safer and stronger.” Hence, he told President Bush he would resign if the program, which went by the code name Stellar Wind, continues.
The Triumph of the Rule of Law
Faced with opposition, President Bush was forced to reconsider. The program was modified to accommodate the legal objections raised by Goldsmith and Comey. It was also narrowed down to apply only to al-Qaeda and other terrorist groups in armed conflict with the United States. The President also retracted his claim that presidential authority allowed him to overrule the law. Some other aspects of the program not publicly announced were also discontinued. And in turn, Mueller, Goldsmith and Comey signed off on the reauthorization.
This entire account is a perfect example of how institutional conflicts shape surveillance laws and policies. In this instance, the conflict was within the executive branch and based on two competing ideas regarding the legality of the surveillance program.
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The Program Couldn’t win the Rule of the Law
This event was a watershed moment marking a significant shift toward the restriction of the surveillance state. Still, since the program was reauthorized by Congress in the ensuing years, many argue that the changes were superficial and the substance remained the same.
This account demonstrates the remarkable means by which legal conflicts are resolved and the uniquely American approach toward the rule of law.
At this point in history, surveillance law, public policy, and technology are among America’s most salient concerns. We need to reach a reasonable balance between surveillance and privacy. Conducting surveillance within the bounds of law defines our democracy, the bounds of policy, and even the bounds of ethics.
Common Questions about the Turning Point in the Surveillance Program
The President’s surveillance program was initiated by the Bush Administration following 9/11 to help US intelligence agencies track terrorist activity. The program collected internet metadata.
In the aftermath of the September 11 attacks, the Office of Legal Counsel authorized this surveillance program. It was based on the erroneous belief that the President has the inherent authority to order this type of activity, even if no existing formal law expressly permitted it.
President Bush told Comey that as the commander in chief, he had the authority to reauthorize the surveillance program without his approval.
