The law-making behind “lawful intercepts”

There’s a truly astonishing piece by Mark Danner in the New York Review of Books about how the ‘legal’ basis for bulk collection and warrantless wiretapping was laid. The program was originally code-named Stellar Wind. Here’s an excerpt that gives the general flavour; the date is March 10, 2004:

John Ashcroft has been in intensive care for nearly a week. Though Ashcroft is the chief law enforcement officer of the United States—and though it is the attorney general’s signature that is required to recertify Stellar Wind—no one seems to have thought it relevant to tell the commander in chief. No matter; Bush telephones intensive care, insists on speaking to the heavily sedated Ashcroft, and tells him he is sending over his chief of staff and White House counsel “to talk to him about an urgent matter.” What follows is the famous Hospital Room Showdown, the great melodramatic set piece of the Bush administration, which features, as Barton Gellman describes it in the superb Angler: The Cheney Vice Presidency, “men in their forties and fifties, stamping on the brakes, abandoning double-parked vehicles, and running up a hospital stairwell as fast as their legs could pump.”

The White House men were clutching the paper they were determined to persuade the attorney general to sign, and the Justice Department lawyers, led by James Comey, Ashcroft’s deputy, were determined to prevent him from signing it. They converged in a hospital room around the IV-festooned body of the ailing attorney general, who “looked half dead.” Nonetheless, Gellman tells us, in the midst of this coven of lawyers, like some unvanquishable horror movie character, Ashcroft “raised himself up stiffly” off the bed.

He glared at his visitors and said they had no business coming. He gave a lucid account of the reasons that Justice had decided to withhold support. And then he went beyond that. Ashcroft said he never should have certified the program.

…If it were up to him now, he would refuse to approve. But it was not up to him. Gesturing at his deputy, Ashcroft said, “There is the attorney general.” Spent and pale, Ashcroft sank back down.

In the face of this defiance, the White House chief of staff and counsel ignore Comey and stride from the room and then race back to the White House where, Bush informs us rather laconically, “they told me Ashcroft hadn’t signed.” Why not? Apparently they didn’t say and the president doesn’t ask. Instead, he decides to overrule the objections of the Department of Justice and sign “an order keeping the TSP alive based on my authority as head of the executive branch.”

It is, as will soon become clear, a momentous decision, though there is no sign he realizes quite how momentous. Still, the president isn’t happy. “I went to bed irritated,” Bush tells us, “and had a feeling I didn’t know the full story.”

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