Report: Wiretaps risked a crisis

WASHINGTON - The Bush White House so strictly controlled access to its warrantless-eavesdropping program that only three Justice Department lawyers were aware of the plan, which nearly ignited mass resignations and a constitutional crisis when a wider circle of administration officials began to question its legality, according to a watchdog report released yesterday.

The unclassified summary by five inspectors general from government intelligence agencies called the arrangements "extraordinary and inappropriate" and said White House secrecy "undermined" the ability of the Justice Department to do its work.

The report is the first public sign of a long-running investigative review of a program that provoked fierce conflict within the highest levels of the Bush administration in 2004.

At the time, Justice's second in command and the FBI director both vowed to resign if President George W. Bush continued with electronic intelligence-gathering that they believed was outside the boundaries of the law.

Yesterday's report was mandated by Congress in legislation last year that updated the Foreign Intelligence Surveillance Act of 1978 to accommodate new technologies. The bulk of the review remains highly classified.

The program, which has been called the Terrorist Surveillance Program, is part of a broader intelligence effort known as the President's Surveillance Program. Much of it is not known to the public.

The TSP authorized the National Security Agency to intercept without warrants international e-mail and other communications believed to involve people with ties to al-Qaeda.

The wiretapping program was brought under the oversight of the special Foreign Intelligence Surveillance court in early 2007, after the New York Times reported its existence and chronicled unrest within the Bush administration about its legality.

The inspectors general from the Justice and Defense Departments, CIA, NSA, and Office of the Director of National Intelligence said they reviewed thousands of documents and interviewed more than 200 people for the report, including Bush officials John Negroponte, director of national intelligence; NSA Director Michael Hayden; Defense Secretary Donald Rumsfeld; and Attorney General Alberto Gonzales.

Other key figures - including Bush chief of staff Andrew Card, former Attorney General John Ashcroft, former CIA Director George Tenet, and John Yoo, former lawyer in Justice's Office of Legal Counsel - declined interview requests, investigators said. (Yoo is now a law professor at the University of California, Berkeley, and writes a monthly column for The Inquirer.)

Bush authorized the program shortly after the Sept. 11, 2001, attacks, and the legal approval for it relied on ongoing threat assessments known among some members of the intelligence community as "scary memos," the report said.

Only three Justice officials - Ashcroft, Yoo, and intelligence-policy lawyer James Baker - were read into the electronic surveillance initiative. Many of their superiors were kept in the dark, the unclassified summary reported for the first time yesterday.

One former department lawyer, Jay Bybee, told investigators he was Yoo's superior but was never read into the program and "could shed no further light" on how Yoo became the point man on memos that confirmed its legality.

The report said Yoo prepared hypothetical documents in September and October 2001 before writing a formal memo in November, after Bush had already authorized the initiative.

In that memo, Yoo concluded that the FISA law could not "restrict the president's ability to engage in warrantless searches that protect the national security" and that "unless Congress made a clear statement in FISA that it sought to restrict presidential authority to conduct warrantless searches in the national security area - which it has not - then the statute must be construed to avoid such a reading," the report said.

When that analysis reached higher-level Justice officials in late 2003 and early 2004, they became troubled about the conclusions and convinced the plan may have run afoul of the law, ignoring important Supreme Court rulings on executive-branch power.

The full outlines of the program remain murky and subject to strict classification, but the inspectors general report said Yoo "did not accurately describe the scope" of other intelligence activities in the President's Surveillance Program, presenting "a serious impediment" to recertifying it.

Former Justice lawyers Patrick Philbin and Jack Goldsmith secured access to the program and began meeting with Gonzales, then the White House counsel, and David Addington, counsel to Vice President Dick Cheney, to voice their concerns after Yoo left the department in 2003.

Disputes over the program prompted meetings in March 2004, including lobbying by the White House, to try to persuade the Justice lawyers to agree to temporarily continuing the surveillance while its legal problems were fixed.

On March 9, 2004, intelligence officials and Cheney met to discuss the issue without inviting Justice leaders. Cheney suggested that Bush "may have to reauthorize without [the] blessing" of the Justice Department, according to notes taken by FBI Director Robert Mueller described in yesterday's report. Mueller told the investigators he would have a problem with that approach.

Later that day, Cheney met with Justice officials and told them that "thousands" of lives could be risked if they did not agree to continue the program, the report said.

The resignation threats came after a dramatic March 10, 2004, hospital visit by Card and Gonzales to Ashcroft's bedside. They visited in an ultimately unsuccessful bid to persuade the attorney general, who was weakened by severe pancreatitis, to sign a document that would reauthorize the program.

Former Deputy Attorney General James Comey said years later that he had sprinted up the hospital stairs in an effort to arrive before the White House advisers and that the episode marked the "most difficult night of my professional life."

Several subordinates at Justice and Mueller stood behind Comey, raising the possibility of a mass departure that would have attracted wide public attention and invited comparisons to the Nixon era's Saturday Night Massacre.

Senior White House officials disdained the legal regime imposed on the program, according to a book by Goldsmith. He reported that Addington said in February 2004 that "we're one bomb away from getting rid of that obnoxious [FISA] court."