We’ve known for years that the STELLAR WIND surveillance program authorized by President George W. Bush led to a dramatic “Hospital Showdown” at the bedside of then–attorney general John Ashcroft. Now, documents leaked by Edward Snowden have finally given us a clearer idea of what it was really all about.
The infamous showdown took place in March 2004, while Ashcroft was recovering from illness in a hospital bed. Acting attorney general James Comey—now President Obama’s nominee to head the FBI—was refusing to reauthorize one component of the secret surveillance program, having concluded that it was illegal. This prompted White House counsel Alberto Gonzales to rush to Ashcroft’s hospital room in hopes of getting the ailing AG to countermand Comey, who was tipped off about Gonzales’ plan and sped there as well.
In the confrontation that ensued, Ashcroft supported Comey—both formally (because Comey was legally the attorney general while Ashcroft was incapacitated) and on the legal substance. When Bush reauthorized the program anyway, despite the Justice Department’s conclusion that it was unlawful, Comey threatened to resign—with Ashcroft, FBI director Robert Mueller, and other top officials reportedly ready to join him. Bush ultimately backed down, and the troublesome component was briefly suspended until it could be renewed under a different legal authority.
In 2008, we learned that the central bone of contention wasn’t warrantless wiretapping, but rather some form of data mining. And more recently, via reporting in the Washington Post and a classified NSA report leaked by The Guardian, we learned that the controversy specifically involved Internet, not telephone, metadata. That last document in particular makes it fairly clear what the controversy must have been about—at least if you’re steeped in surveillance law. For those who aren’t, this is what probably happened:
STELLAR WIND had four components, each corresponding to types of information that President Bush had authorized the NSA to collect without a court order:
- telephone content (i.e., warrantless wiretapping)
- Internet content
- telephone metadata (i.e., the massive call records database)
- Internet metadata
The administration had originally carried out this surveillance on a radical theory of “inherent presidential authority” spelled out by then–Justice Department lawyer John Yoo, which held that during wartime, the president’s surveillance powers could not be constrained by Congress, or even the Fourth Amendment. After he returned to academia in 2003, however, his successors grew uncomfortable with his leaps of legal logic and stopped relying on his questionable opinions on a broad range of counterterrorism issues. To justify Bush’s surveillance programs, DOJ lawyers switched to the theory, spelled out at length in a January 2006 white paper, that Congress’s Authorization for the Use of Military Force (AUMF) against Al Qaeda and their affiliates had created a tacit exception to the Foreign Intelligence Surveillance Act (FISA). Though FISA is supposed to be the “exclusive means” by which intelligence surveillance is conducted, DOJ attorneys argued that the AUMF authority to use “all necessary and appropriate force” against those who the president “determines planned, authorized, committed or aided” the September 11 attacks necessarily included the power to conduct surveillance, superseding FISA’s judicial review requirements.