The Terror Presidency

The Wiretap Flap
The law, lawyers, and the court.
Sept. 10 2007 7:13 AM

The Terror Presidency

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This week and last, Slate is publishing three exclusive excerpts from The Terror Presidency: Law and Judgment Inside the Bush Administrationby Jack L. Goldsmith. Goldsmith served ashead of the Office of Legal Counsel from October 2003 to July of 2004. It was his job to advise the president on the legal boundaries of executive power. But when Goldsmith began to review the legal work of his predecessors, he became concerned that part of the legal framework limiting the conduct of the military and intelligence agencies in the war on terror was profoundly flawed. Attempts to fix those mistakes led to a legal upheaval in the war on terror, a series of clashes with David Addington, Vice President Dick Cheney's then-legal adviser, and ultimately to Goldsmith's resignation less than 10 months later. Today's selection explores the irony of a Justice Department subpoena of Goldsmith in connection with the NSA's warrantless wiretapping program.

On Friday, April 27, 2007, after a morning spent working on this book, I left my office and walked in the rain to meet FBI Special Agents Ronald Doe and Tim Smith (aliases) in the Au Bon Pain café in Harvard Square in Cambridge, Mass. Doe and Smith looked like archetypal FBI G-men: They had short hair and wore white shirts, dark suits, and black lace-up shoes. As we sat down among the swirl of scruffy Harvard students playing chess and studying for exams, the out-of-place FBI agents cracked uneasy smiles when I joked that if their identities were revealed, the FBI-hating lefties around us would tear them limb from limb. 

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I had met Doe and Smith twice before in a small windowless room in the FBI building in Washington, D.C. They were leading the criminal investigation into the leaks to James Risen and Eric Lichtblau that resulted in stories in the New York Times and a subsequent book about the National Security Agency's secret program of warrantless monitoring of international communications involving people associated with al Qaeda. I had worked on the legal aspects of this program in 2003–2004 while I was at OLC. In prior meetings at the FBI, I had told Doe and Smith about a meeting I had in October 2004, three months after I resigned from OLC, with Lichtblau, the Times reporter who covered the Justice Department. I had never spoken to Lichtblau until he called me out of the blue in my temporary office at the American Enterprise Institute and asked to meet for coffee. I agreed, and at the end of a friendly hourlong chat about his career in journalism and the colorful figures in the Bush administration, he asked me a few questions about what he called a secret NSA program. Panicked inside, I told Lichtblau, untruthfully, that I didn't know what he was talking about. As soon as our meeting ended, I went straight to the Justice Department to tell Jim Comey, the deputy attorney general with whom I had worked intimately on NSA matters, about the conversation. 

I had last spoken with the FBI about six months earlier, and was surprised when Doe called to say that he and Smith wanted to come to Cambridge for a brief meeting. A few moments after I sat down at the table in Au Bon Pain, Doe looked apologetic as he handed me a manila envelope that contained a subpoena. "You are commanded to appear and testify before the Grand Jury of the United States District Court in Alexandria, Virginia"—the same court where al Qaeda operative Zacarias Moussaoui was tried and convicted—in connection with the leak investigation, it read. I was stunned, and Doe seemed embarrassed. "We wanted to serve you in person as a favor because we expected you'd be mad," Doe said. "We believe you told us the truth," he added, assuring me that he did not suspect me as the source of the leak. He said he was not sure why the lawyers at the Justice Department had decided to subpoena me, but he suspected it was because of my contact with Lichtblau. 

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What angered me most about the subpoena I received on that wet day in Cambridge was not the expense of lawyers or a possible perjury trap, but rather the fact that it was Alberto Gonzales' Justice Department that had issued it. As Doe and Smith knew, I had spent hundreds of very difficult hours at OLC, in the face of extraordinary White House resistance, trying to clean up the legal mess that then-White House Counsel Gonzales, David Addington, John Yoo, and others had created in designing the foundations of the Terrorist Surveillance Program. It seemed rich beyond my comprehension for a Gonzales-led Department of Justice to be pursuing me for possibly illegal actions in connection with the Terrorist Surveillance Program, I told the two wide-eyed FBI agents in Harvard Square. They understood what I was talking about. But Doe nervously said that the legality of the foundations of the program was "outside [their] jurisdiction," and the agents quickly changed the subject to tell me about the recent progress they had made on the source of the leak. 

I was not opposed to the leak investigation itself or to vigorous surveillance of terrorists. I agreed with President Bush that the revelations by Risen and Lichtblau had alerted our enemies, put our citizens at risk, and done "great harm" to the nation. I hoped the FBI would find and punish the leakers, and I had spent many hours trying to help them do so. I also shared many of the White House's concerns with the Foreign Intelligence Surveillance Act (FISA), the 1978 domestic wiretapping law that required executive officers, on pain of jail, to get a court warrant before wiretapping suspected enemies in the United States. We were at war with terrorists who were armed with disposable cell phones and encrypted e-mails buried in a global multibillion-communications-per-day system. It seemed crazy to require the commander in chief and his subordinates to get a judge's permission to listen to each communication under a legal regime that was designed before technological revolutions brought us high-speed fiber-optic networks, the public Internet, e-mail, and ten-dollar cell phones.

But I deplored the way the White House went about fixing the problem. "We're one bomb away from getting rid of that obnoxious [FISA] court," Addington had told me in his typically sarcastic style during a tense White House meeting in February of 2004. The vice president's counsel, who was the chief legal architect of the Terrorist Surveillance Program, was singing the White House tune on FISA. He and the vice president had abhorred FISA's intrusion on presidential power ever since its enactment in 1978. After 9/11 they and other top officials in the administration dealt with FISA the way they dealt with other laws they didn't like: They blew through them in secret based on flimsy legal opinions that they guarded closely so no one could question the legal basis for the operations. My first experience of this strict control, in fact, had come in a 2003 meeting when Addington angrily denied the NSA inspector general's request to see a copy of OLC's legal analysis in support of the Terrorist Surveillance Program. Before I arrived in OLC, not even NSA lawyers were allowed to see the Justice Department's legal analysis of what NSA was doing. I am not permitted to say much about how Jim Comey, Patrick Philbin, and I, with the crucial support of former Attorney General John Ashcroft and others, struggled to put the Terrorist Surveillance Program on a proper legal footing. I first encountered the program in 2003–2004, long after it had been integrated into the post-9/11 counterterrorism architecture. Putting it legally aright at that point, without destroying some of the government's most important counterterrorism tools, was by far the hardest challenge I faced in government. And the whole ordeal could have been avoided. On Jan. 17, 2007, Gonzales informed the Congress that the executive branch, under pressure from Congress and the courts following the leak, had worked out an "innovative" arrangement with the Foreign Intelligence Surveillance Court—the secret court that runs the FISA system, and that the administration had originally bypassed—to achieve the government's goals of "speed and agility" in surveillance within the four corners of the FISA law. In 2004, I and others in the Department of Justice had begun the process of working with the FISA court to give the commander in chief much more flexibility in tracking terrorists. From the beginning the administration could have taken these and other steps to ramp up terrorist surveillance in indisputably lawful ways that would have minimized the likelihood of a devastating national security leak. But only if it had been willing to work with the FISA court or Congress. The White House had found it much easier to go it alone, in secret.

Jack Goldsmith, an assistant attorney general during the Bush administration, teaches at Harvard Law School and is a member of the Hoover Institution's Task Force on National Security and Law.