Alberto Gonzales

Alberto Gonzales served as U.S. Attorney General from 2005 to 2007. Prior to joining the Justice Department, he was White House Counsel to President George W. Bush. As the president's top legal aide, Gonzales helped form the administration's legal rationale for turning the NSA's surveillance capabilities on the communications of U.S. citizens. Gonzales spoke to FRONTLINE's Jim Gilmore on March 3, 2014.

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   So, Judge Gonzales, let's start out with 9/11. You get back to the White House late from a speech that you're giving. When you get back to the White House, what's happening?

   Basically what I try to do immediately is just try to locate where key players are on the legal team: my team, the general counsel at various agencies that would have equities in the decisions that are being made here.

   I spend the afternoon sort of running from my office on the second floor of the West Wing down to the PEOC [Presidential Emergency Operations Center], where the vice president is in the East Wing, down to the Situation Room in the basement of the West Wing, back and forth, back and forth, trying to locate people and trying to identify what legal issues we have to start thinking about. I spent my afternoon just going back and forth, back and forth.

2. Ψ ShareThe legal thinking behind "the program"

   The way it's been told, it's been reported on, is that the vice president asked you and Mr. [David] Addington, [Cheney's chief of staff], to develop the legal process for the NSA authorization. What does that mean? What were you doing? What were you concerned about? What were you looking at?

   It really began that weekend at Camp David when the national security team met with the president and we discussed a number of issues. One of the things that the president was told was that we had a number of capabilities to gather information, but because of the laws existing at the time, statutory interpretations within the executive branch at the time, that there were some limits about whether or not we could use these capabilities.

   And so the president asked the lawyers to look at that. What I mean by lawyers, I'm talking primarily beginning with the Department of Justice. [Attorney General] John Ashcroft was there at that meeting as well.

   My recollection also is that [CIA Director] George Tenet was involved in going to [NSA Director] Mike Hayden and trying to get a better understanding of what capabilities the NSA had, and that began a series of discussions where we began looking at what the NSA could do and then looking to see ... what were the legal restrictions? Where did the law allow us to go with this kind of information?

   John Yoo was tasked over at the Department of Justice to be the lead lawyer on terrorism issues because that was sort of his area of expertise. He was within OLC [Office of Legal Counsel].

   We obviously wanted to keep this very close hold. Ultimately what happened, what was authorized by the president, was one of the most secretive activities that the administration engaged in. Very few people at the Department of Justice was aware of this review.

   And shortly, very beginning of October, a decision was made that we had certain capabilities. We had the legal authority to use these capabilities according to the Department of Justice. Therefore, the president authorized that the administration begin the collection of certain information to protect America.

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   You talk about Hayden being involved. There was a meeting at the White House where he sits down with the vice president. I think you're there; I'm not sure. Take us to that meeting. What's the discussion?

   If this is the same meeting that you're referring to, this was a meeting primarily to talk about the legal authorities, that Mike may have been there to talk about, "OK, this is exactly what we can do in terms of capabilities. What can we do under the law?," and that General Ashcroft were there, and other members of his team. I think John Yoo would have been there as well. David Addington was probably there. And there we debated, "OK, what can we do?"

   My job in that situation is to ensure that all the legal bases are covered and then go back and report to the president to make sure he was comfortable with where we were going, because just because the lawyers say, "This is something we can do," doesn't mean that we necessarily should do it as a government.

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   And the vice president and David Addington's role in this?

   ... He was always very vocal, and I'll say this in terms of discussions that occurred in the Situation Room and elsewhere about the war on terrorism issues. But he was also a great patriot in that he understood he was not elected president of the United States, and that while his voice was a very important one in these discussions, at the end of the day, the president made the decision, and the vice president always saluted with respect to that. But it's clear, the vice president had very strong views about the authority of the commander in chief, particularly in a time of war. ...

   David Addington, there's been a lot said about his strong personality. Everybody always has a strong opinion about David Addington. What was his role?

   He was the counselor to the vice president like I was a counselor to the president of the United States. You have a very good relationship, or at least hopefully you have a good relationship. You represent that client in the meetings. But David also understood what his role was.

   I will say David, much like his boss, was a force of nature. I remember during the transition when I was asked to be a counselor to the president, I asked, "Well, who's going to be the vice president's counsel?," and I was told David Addington. And I asked, "Well, what's he like?" And the person I was talking to said, "Well, if you think about a bull confronting a brick wall, instead of going around it, David will go through that brick wall."

   And that really is the way David is. He really is a force of nature, one of the most brilliant lawyers I've ever met, and always not shy about giving his views about what the law allows, what the law prevents. But he was just one of many, many voices in terms of providing input, in terms of what the United States government could do in protecting America.

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   ... So what authorities are decided upon? There's a discussion that takes place. Take us into sort of what eventually the decision is before the Oct. 4 authorization is sent out. What are the authorizations that are given to Hayden, and how do you guys arrive at it?

   Well, of course the president authorized a series of collection activities which have now been declassified by the DNI, the director of national intelligence. I can talk about that. Basically, the information related to three kinds of baskets of information. One was a collection of content, a content collection, where we would collect international calls where we had reasonable grounds to believe that one person on the call was a member of Al Qaeda or an affiliate of Al Qaeda. That was the only content collection authorized by the president in this authorization.

   Then there was a collection of telephone metadata which is not content collection, but in essence to and from and the duration of the call. And then the third basket was email metadata collection, and that again, to and from and the duration of the communication. So those are the three baskets of activity or collection that the president authorized in October, beginning in October 2001.

   And how is Hayden told: "OK, here's the green light. This is what's allowable; this is what you do"? Was that a meeting? Is that a telephone call?

   You know, I don't exactly know how he was exactly told. But what the president signed was an authorization order, presidential order. Each order, which was renewed every 45 days or so, begins with an analysis by the CIA of the continuing need to continue these activities. And that was a very important part of the legal analysis. What was the need for the government to engage in this kind of activity? Then you slap on top of that the presidential order, which authorized these three activities.

   And then as each order was signed, of course, by the president. It was also a signature from the attorney general as to formal legality, and I believe also the director of the CIA signed the authorization, as well as the secretary of defense, because the NSA was, of course, within DoD.

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   The role that the vice president and David Addington, that were both for years big proponents of executive supremacy over Congress in certain situations, how you would define that?

   I would disagree with that characterization.

   Explain it the way it --

   I think that David Addington, principally the vice president, was interested in ensuring that the president's constitutional authority was used to its fullest, not that the executive branch would infringe upon the authority of the congressional branch, but to the extent the Constitution allowed the president as commander in chief to exercise certain authority that the president should be allowed to do that, that you would look at three sources of authority for the president of the United States. One is express constitutional authority; the second would be statutory authority delegated by Congress; and the third would be inherent authority from the Constitution, that the president would rely upon those sources of authority and rely upon them fully in ensuring he could protect this country.

   And the role that that philosophy played in the final decisions in regard to this program?

   Well, I think with respect to the authorization to use military force was a very key component of the authority to move forward with these collection activities. So you had the statutory authority granted by Congress, and then, of course, you had the express authority as commander in chief, plus any inherent authority you might have as a commander in chief under the Constitution.

   Let me just complete that thought. In every instance, we had a signature from the attorney general of the United States as to formal legality of the order. But also we relied upon multiple legal opinions from the Office of Legal Counsel that in fact the president had the constitutional authority to move forward with these activities.

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   ... Did you have any doubts about the legality of this program at any point in the early days?

   No. Given the fact that we had been attacked in the manner that we had, given the fact that presidents in previous conflicts -- you look at what President Wilson did, what President Roosevelt did during World War I and World War II [respectively] in terms of massive collection of content, not just metadata, but just massive collection of information.

   Now, in terms of commander-in-chief authority out of the Constitution, I have very little doubt. Of course, buttress that with the opinion from the attorney general and the Department of Justice, I felt comfortable in advising the president that what he was authorizing was, in fact, lawful. …

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   January or February of 2004, [U.S. Assistant Attorney General] Jack [Goldsmith] is talking about in some White House meetings that they're having some problems and that impossibly Ashcroft will not be able to sign the certification. When do you first hear about it? What's the thoughts at the White House?

   Well, you know, Jack, when he came onboard, obviously had to be read into the program, and he did express -- he had questions about the authorities. And I said: "Fine, get comfortable. We want to make sure that what we're doing here is lawful." So Jack would go back and looked at the program some more, looked at the law some more, and we did have numerous conversations.

   I welcomed that kind of review, because again, it was important for the president to ensure that what we were doing here was, in fact, lawful.

   We had tweaked the program from time to time. In certain cases, we narrowed it when necessary. It wouldn't have been the first time that lawyers in the Department of Justice were telling us we've got to change the program in certain ways. That had had happened before, so I wasn't overly concerned. In fact, I was happy that Jack was looking at it and was making sure that we were doing the right thing.

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   And David Addington's point of view?

   Well, I think by that time, of course, one of the things we got concerned about -- I don't want to speak about David Addington's point of view. I will say that when this became an issue in March and April a few months later, I had concerns about the fact that the lawyers might be -- the lawyers at the Department of Justice -- might be viewed by some in the White House as backtracking from opinions they had given previously because of the fact that things were getting controversial in the media and that there was criticism about some of the Bush policies.

   And I worried about that, and I worried about walking into the Oval Office and telling the president of the United States, "Mr. President, the lawyers have flipped on this issue," and the president thinking, "You guys don't know what you're doing." And I worried about that. Again, I felt it important for Jack to look at these issues. We wanted to be right in the law, but I also wanted their advice to be based on the law, not based upon their personal opinion about what was right or wrong.

   And the relationship between Addington and Goldsmith was what?

   I would say that David pushed; he pushed everybody. He pushed me. Even when I was the attorney general, he would push me. So that was just David's nature, and I think Jack didn't appreciate being pushed sometimes. I have a great deal of respect for Jack. I think he did the very best he could in a very difficult situation. And, you know, I think he got uncomfortable, though, with some of the pushing that he may have felt from David, although I hope that in no way affected his legal judgment.

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    What were some of the concerns that he had? I mean, was there worry, really basically, that if the program was illegal --

    No.

    -- they could be possibly liable to eventual prosecution, or some of the folks at DOJ could be?

    I cannot speak to what it was that Jack was concerned about other than I'd given him the directive, "Make sure that what we're doing is lawful." And the ramifications that would flow from that, you'd have to ask Jack about that.

    But, you know, I think Jack understood what his mission, his charge was from the White House, which is to tell us where we can draw the box in terms of what is lawful and that we need to stay within that box. And he had to be very, very clear, very, very precise about where the boundaries of that box was.

    So what was his problem then? ...

    My recollection is that during those early months, beginning in January or February of 2004, it was a very general concern that maybe we needed to narrow the activities and tie them more closely to the authorization to use military force. I think Jack had a somewhat different perception of the scope of the president's constitutional authority, because John had a pretty expansive view. And because of that, I think Jack wanted to get as close as we could in the authorization to use military force.

    But in terms of specifics, what exactly we needed to do to narrow the program, Jack never got into the specifics. I can't recall him getting into the specifics with me. He would just express some concerns that they were looking at the program, they were looking at the authorities, and I'd say: "Well, fine, keep looking. Make sure we're doing the right thing." And it wasn't until March that he came to me and said specifically, "This is the problem that we have." ...

    And can you tell us what the specific problem was?

    No, I can't.

    Because?

    I don't believe that the U.S. government has confirmed what the specific problem was.

11. Ψ ShareA key meeting with congressional leadership

    On March 10, there's a briefing with the Gang of Eight where it's discussed. And there's been a lot back and forth about this, so I'd like to get your opinion about this, about what was said. The vice president afterward, and I think you to some extent afterward, said that there was unanimity to continue and that the Congress did not have to, or should not, adjust the laws, make a new law, or whatever --

    No, that's incorrect.

    Well, explain what took place at that meeting and whether, in fact, there was unanimity, because as you know, people like [Senate Minority Leader Tom] Daschle (D-S.D.), I guess, came out afterward saying that they felt uncomfortable because the legalities of the issues were not defined well enough.

    Let me put that March 10 meeting in a little bit of context. [White House Chief of Staff] Andy Card and I had had a couple of conversations already with the president about where we were with respect to the Department of Justice. That morning, the president at a meeting told the vice president we were going to discontinue the disputed activity. He told the vice president that. So the Department of Justice had prevailed in the advice that they had given to us, and I've testified to this. I've testified about this, I think, in July 2007.

    He told the vice president, "I can't go forward with this activity without the Department of Justice's concurrence, and I want you to set up a meeting with the congressional leadership so that they know about it and see if they can help us." So that's the context of the meeting, to meet with the leadership to say: "We have this problem. This is our legal position as told to us by the Department of Justice. Can you help us? Can we pass legislation?"

    I was asked specifically -- I can't remember by which member -- I was asked specifically, "What is the problem?" And I said point blank, "The deputy attorney general does not believe that the president has constitutional authority to do this activity." I was very clear about that.

    And we talked about this, and we talked about was it possible to get legislation passed. I think the prevailing view was, the unanimous view was, there was no way to do that without compromising what we're doing.

    And yes, I think it is fair to say that there was unanimity about going forward. Andy Card at one point says, "It may be hard to explain now if an attack happens why we didn't use this authority," and everyone agreed. The vice president did say that "What I'm hearing is that we should all move forward, that we'll continue this activity, and we'll continue to work to try to find a legislative fix." That was key. "We need to find the legislative fix for this. But for right now, let's just move forward."

    This was at a time of very high-threat activity. We were very worried about another attack somewhere. And sure enough the next morning, the Madrid train bombings happened. So we were correct in being worried [that] something was about to happen. We left that meeting -- I began that meeting thinking, OK, we're going to discontinue this disputed activity, and we leave the meeting with the full concurrence of the congressional leadership to continue these activities.

    After that meeting, myself, Andy Card, the vice president, we walked over to the residence and reported to the president what had happened at that meeting.

    And what is your take on claims afterward by Daschle and others that there wasn't unanimity?

    ... Unfortunately, that's the kind of posturing that occurs when someone is, I guess, maybe embarrassed, worried about being in a position that makes them uncomfortable.

    But we gave them every opportunity in terms of what we were doing. Mike Hayden was there. There were, I think, three or four NSA briefers there, providing a very clear briefing of what we were doing. Four of the members there had received briefings before. The chair and ranking members of the House and Senate intel committees. The others had not, I don't believe. Maybe they had with Vice President Cheney. But several of them had had multiple briefings. So we had the NSA briefers there. They provided a full briefing about what we were doing.

    And in terms of the legality, "I don't know if I could have been more clear than to say the Department of Justice does not believe the president has constitutional authority to do this." And they said, "Go forward."

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    And the claim of some people on the other side, when you listen to Goldsmith or [Deputy Attorney General James] Comey's testimony -- it wasn't only Comey, that it was Ashcroft as well, that they had already discussed this with Ashcroft. Did that come up in the meeting and [FBI Director Robert] Mueller eventually was also sort of agreed to these tenets. Was it sort of defined as one gentleman, the new acting attorney general, or was it a place that there is some discontent at the DOJ that we're trying to deal with here?

    No, no. I think at the time, Gen. Ashcroft is in the hospital, so now Jim Comey will be the one that's going to sign the authorization. What I was presenting was the position of the deputy attorney general.

    And whether or not Ashcroft had been -- I don't recall knowing that this was Ashcroft's position as well. You have to remember that Ashcroft, I think, was sick and went in the hospital March 5, and I wasn't told until March 6, "This is a specific problem that we have." I met with Jack Goldsmith on March 5 in my office, and he said he was going to really think about narrowing the program. And I said, "Well, whatever you do, make sure that whatever we're doing is covered by the opinion."

    So then Jack thinks about it overnight, and the next day, Saturday, March 6, is the first time he has this "Oh, my God" moment and says: "You know what? I don't think this is covered by the opinions that we're giving you." So when and where Ashcroft was informed of what was going on here, I don't know. I don't know.

    Their opinion, of course, is that the White House was well aware for months that there was a real problem here.

    Well, what we were aware of is that they were reviewing, and there were concerns about the scope of the activity. But it wasn't until that Saturday when Jack and Pat came over to meet with me and David, we sat down in my office for about two hours, and they explained to us specifically what the issue was. It wasn't until March 6 that they told us there was a serious problem.

13. Ψ ShareThe infamous hospital room visit to Attorney General Ashcroft

    So take us to the famous hospital meeting, which you probably talked about quite a bit, you and Andy Card and Addington? Or just you and Andy Card?

    Well, let me just say that after we spoke with the president in the residence about what had happened with congressional leadership, I can't remember who, someone suggested, "Well, it would still be helpful to have the attorney general sign off on this program if he was able." That's when the president called Ashcroft's room and told him that Andy and I were going to come visit. I don't know for sure who the president spoke with, whether it was Mrs. Ashcroft or John, I don't remember. I don't know for sure. But the president directed that we go there because it would still be important to have the attorney general's signature on that authorization.

    I remember on the way over there, and I testified about this to the Senate, as we walked through the Rose Garden Andy and I talked about the fact, "What if John wasn't competent?" We were worried about the fact that we would be accused of taking advantage of a sick man, and we both agreed that we knew John so well that we would be able to tell whether or not there was an issue. And if one of us was uncomfortable, we would just say, "We have to go."

    We went to the West Wing, picked up David, who had the authorization. The program was going to expire the next day, March 11. On the way to the hospital, Andy and I again talked about the fact that we were worried about John's condition and we again worried about, "We need to make sure that he's competent."

    So we get to the hospital, and I tell David to stay back, because there was history between David and the attorney general, and I didn't want to aggravate the attorney general needlessly. David didn't need to be in the hospital room anyway. But David did accompany us to the hospital, but I told him to stay back and not go in the hospital room.

    Then we went in the hospital room, and as I testified under oath, we were there probably about five minutes. I think Director Mueller's logs indicate that we were there five to 10 minutes, something like that. We said hello, and then basically the attorney general did most of the talking. He began, as I recall, by saying, "I was told this morning I'm no longer the attorney general." That was news to us. That was news to us.

    And then he started laying out the legal issues, so I was quite comfortable that he understood what was happening, that he was competent.

    He talked for a while and then he said something like, "But I've been told it would be improvident for me to sign, but it doesn't matter, because I'm no longer the attorney general." And then he goes on and complains about the fact that only a few of his people are read into the program. You've got all these FBI agents, all these NSA operators that are read into the program, but he can't get his chief of staff read in. That's when I really knew John was OK, because he's complaining about staffing issues.

    Finally when he repeats again he's no longer the attorney general and has finished talking, Andy and I just said, "Thank you; we'll raise this with the deputy attorney general," and we left. The primary purpose of that meeting was to inform John of what the congressional leadership had told us. We felt that as a former senator, he would appreciate the value of knowing where the congressional leadership was and that that might make a difference to him.

    The fact that he had authorized this activity for two and a half years -- but we never got that far. As soon as he said, "You know," when he said, "I'm no longer the attorney general," Andy and I left. We didn't ask him to do anything.

    The complaint that he was making, what was his point? ...

    I don't know what he was complaining about exactly. But I do remember thinking he was complaining about his chief of staff not being read in. His chief of staff wasn't even a lawyer, so the thought that I had was that, "Well, how is that going to help you in terms of legal analysis? Your chief of staff is not even a lawyer."

    Now, let me just say this about John Ashcroft. I think he's a great patriot, and I admire his service. And the fact that he took arrows for this administration, I have a great deal of admiration for him.

    And the first time when he came back to work and he came to the White House, and we had a meeting in the office, in my office, and I said, "John, can I talk to you privately for a second?," and we ushered out the other folks in the room, and I told him, I said, "Listen, in terms of the hospital visit," I said, "I can't apologize for having gone there, because I was directed to go there by the president, but I wish it had never happened."

    And that visit was unusual, extraordinary, but so were the conditions in which we went there, given the fact that everything that was happening at that time. You know, it's just in my judgment something that I wish had never occurred, because I knew -- as soon as we got back to the White House and this thing sort of blew up, I knew that for me and Andy, we would be characterized as two people who on a lark had gone over to try and take advantage of a sick man. I knew it would hurt us, and it did.

    On the drive back with you and Andy Card and Addington, what was the discussion like? You now know you're up against a bit of a brick wall?

    I think the first thing we said as we got back in the Suburban was, "It didn't go well," and Andy and I both looked at each other and said, "Yeah, he was competent." We both agreed he was clearly competent. We didn't say much more than that.

    Then, of course, when we got back to the White House, Andy called the president, and the president immediately said something like, "Well, you've got to call Comey and tell him about the congressional visit." Again, no one at the department knew about what the congressional leaders had said, and we felt that that was an important fact that had to be communicated.

    So Andy spent some time trying to persuade James Comey to come over, the deputy attorney general to come over and to talk about this.

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    When do you first understand that there's talk of mass resignations that are taking place? As you're going back to the White House, there are people gathering from DOJ, over at the DOJ building, sort of talking about resignations. Jack is writing out a resignation, and Comey is talking about a resignation and others, up to 20 people or whatever. When do you first hear that this is taking place?

    Not until the next night, quite frankly. You have to remember, though, if I'd been told about that I would have said: "Well, nothing's happened. All we've done is at the direction of the president of the United States, we've gone to visit his attorney general. We've asked him nothing; nothing has happened." So I don't know why people would be talking about resignation. From my perspective, I would view it as, I would find it very curious.

    Now, talks of resignation after the president authorizes it on March 11, that might be a different story. Then I could understand why some people might be upset or concerned about what's happening. But up to then, I don't know why people would be talking about resignation.

    Of course they may not have known that Andy and I had been sent there by the president. Now obviously they didn't know about the meeting with the congressional leadership. They didn't know that their arguments had carried the day that morning. The president said, "We're going to go with the Department of Justice."

    So take me to that point. Now that's changed. How does that change? The president had set up that point that, "OK, we're going to go with what DOJ is saying." But now after this hospital meeting, you're to the point where there's an agreement that is come to by the president that, in fact, that you will go forward without the signature of the attorney general?

    But that decision doesn't occur until the next morning. When I arrive in my office, what I am confronted with is the Madrid train bombing. As soon as I heard that, I knew what the president was going to do. He would have to go forward. He would have to go forward because he had the congressional leadership with him before the Madrid train bombing. They would certainly be with him after the Madrid train bombings.

    So the president reauthorized the program. I called the deputy attorney general, informed him of that, and we moved forward.

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    How does it come to that point, that your signature will now replace the attorney general's?

    Because I'm going to present this document to the president of the United States. There was a place for an attorney to sign as to formal legality. Overnight, what I did is I went back and looked at the old legal opinions from the Department of Justice, and I satisfied myself that certainly some of the earlier opinions were broad enough to cover the disputed activity, because they talk about a hypothetical program that's much broader than what we're talking about in reality. And given that fact, I satisfied myself that there was sufficient legal authority to move forward.

    I felt that the president was not a lawyer, and it was my job, if I felt comfortable that it was, in fact, lawful, to provide that signature. It wasn't intended to supplant the attorney general's authority in any way. The truth of the matter is, some of these activities relied upon the cooperation of third-party carriers, and we felt it important to have the signature of some lawyer on the authorization.

    But is there a problem in your mind? I mean, you're now signing this. When the attorney general, and there are others at DOJ, including Comey and Goldsmith and Mueller at this point, has sort of made it clear -- well, he, a little bit later --

    No, Bob Mueller has not made it clear.

    He will in the meeting.

    And also, we don't know where the attorney general really is, and we don't know whether or not the attorney general, even if he were there before the previous night, whether or not the congressional leadership meeting might have made a difference in his thinking. We don't know that. We don't know any of that.

    But Comey's testimony is such that -- and Goldsmith agrees with him -- that that night when he sat up in bed and he sort of laid out the rule, he laid out the legalities behind it and he defined very clearly why they thought it was illegal, I mean, is that not true?

    I don't know whether or not he was parroting what he had been told or whether or not he truly believed that. It seemed somewhat odd that at the same time he would be giving us a legal argument that Comey and Jack are relying upon, that at the same time they're saying, "Well, he's incompetent and doesn't have any authority as the attorney general." So I don't know.

    You're in a very difficult situation here, though?

    Extremely difficult.

    You're putting your signature on this document, and you know that there are major elements of the leadership of the DOJ that says this is illegal?

    No, they never said that it was illegal. And Jack was always very careful in saying: "We're not saying what the government has done is illegal. We're just saying we can't find any legal basis for this." And there's a difference. There is a difference.

    I did it because I wanted to protect the president. That's why I signed that document. And I felt that there was a legal basis to sign that document. I thought it was necessary to provide that signature.

    And the truth of the matter is I also knew, though, and the president knew this as well, is this would only be a bridge, a temporary thing, because of the necessity of having the cooperation of the carriers, we would have to work out some kind of something with the Department of Justice. That was absolutely essential. We knew that going forward.

    But at this point, you're signing something that you know that the DOJ is wanting to stop at this point, and you're allowing it to move forward. Does that put you in a bind?

    No, because again, the president doesn't need this authorization to move forward. He has the authority on his own to do this. I don't have to sign it; the attorney general doesn't have to sign it. The signature of the attorney general, the signature of the lawyer is important for the carriers. It's not important in terms of the legality. The president signing it makes it legal, not the attorney general signing it making it legal.

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    Let me also clarify one other point. With the Comey meeting with the president, are you in on that meeting with him?

    No. This is on Friday. This is two days later, the day after the authorization is signed.

    What he says happened, and I'd like to get your clarification of it -- and if you've already made that point, I think, but I'd like to get it in this context -- what he says is the president at some point says, "I wish you had come to me before, Jim, instead of two days before this thing needs to be signed." And Comey then says that he felt that the president basically felt gobsmacked, because when he told him that, "Listen, the DOJ has been having a problem with this for months, and you have been ill served by your advisers; you should have been briefed on this," what is your take on that and what you believe is the truth behind that?

    Well, what I believe is that if at any time I'd gone to the president and said, "The lawyers are looking at this thing," he would have said: "Good. Have them keep looking at it, and if we have a problem, let's fix it."

    And obviously I couldn't tell the president what the problem was until that Saturday, a few days beforehand. If I had told him immediately, I could have told you what he would have said. He would have said, "Let's get a bridge. Let's get through this until Ashcroft is back. Let's just find a way to continue the activity until Ashcroft is back," because what he really wanted was John Ashcroft's opinion about this issue.

    Sure enough, the first time I spoke to the president about this, Andy and I spoke to him, I believe it was Monday night -- this would have been, what, the 9th? That's the thing that he said when we told him about this problem, and now we had the specifics of the problem. He said, "Well, let's work through this until John's ready and John can come back, because he's authorized this for two and a half years." So there was nothing I could tell the president.

    The other thing is, you don't tell the president of a problem unless you know what the problem is, and hopefully you have a solution to that problem. …

    So why does he make the statements that he makes about that meeting, that moment, and why he was so surprised?

    You'll have to ask him. You'll have to ask him that. I don't know why.

    The New York Times article comes out in 2005, December 2005.

    Let me just make a follow-up point about that conversation. Of course, in that same meeting, or right after that meeting, the president has a conversation with Bob Mueller. That's when Mueller hints, or says, about resignations. And that's when the president calls me and says: "OK, I said this was a bridge. It's a shorter bridge than we anticipated. Work with Bob Mueller." What's interesting is the president is not asking me to work with Jim Comey; he asked me to work with Bob Mueller to try to find a solution to this.

    And so throughout that weekend, I'm communicating with Bob Mueller as we're trying to find a way to continue to do this program. And we work and work and work and finally sometime in the middle of the following week, we concluded that no, there's just no way to get this -- no way to get there. And that's when the president, I think a week later, discontinued this specific activity that had been the dispute.

    And this 180-degree turn took place why?

    180 degree?

    From going forward with it and already signing it?

    Well, because, again, in going forward with it, we knew it was a bridge and that we knew because of the carriers' involvement, we would need something from the Department of Justice to reassure the carriers that they're not going to be prosecuted for doing something they shouldn't be doing. So we knew it was a bridge, and because we couldn't cross that bridge, that was a reason why we discontinued the program.

    ... A lot of people continue to talk about these events because they're so dramatic in such a way that when you have that many people in the government leadership saying that they're going to resign over an issue, this really would have had a huge effect on the administration?

    Well, that's one of the reasons the president felt that he had to discontinue the program, because at that point, it would jeopardize everything that we were doing, and the president felt that that would have been terrible for the national security of our country, quite honestly. And I think he made the right decision.

17. Ψ Share

    So The New York Times article comes out. There's a series of meetings. We don't have to go into the whole thing. But were you at any of the meetings with them at the final decision? I know the president meets with the publisher, and [Times executive editor] Bill Keller is there as well, and I think one of the reporters is there. Sort of the final argument that this is a really bad idea to publish this -- were you there at that meeting?

    I wasn't there at the meeting with the president. I was present at two meetings, one in Condi's office with [New York Times Washington bureau chief Philip] Taubman and Keller. Then there was another meeting at Jim Comey's office two days after the election with Taubman and the reporters. I was present at those two meetings. And of course Andy Card filled me in on every conversation that began with Mike Hayden had a conversation and then progressed up to Mclaughlin. The deputy at the CIA had a conversation and meeting, and then Condi had a conversation and we had that meeting with Condi, so it was a series of progression of conversations that occurred. And then I was at the meeting that occurred in Condi's office with Taubman, the bureau chief, and the editor and then there was this meeting at Jim Comey's office two days after the election.

    Why was the argument being made so forcefully?

    Oh, because a couple -- well, the main reason is because we were worried that this would compromise a very important, very significant intelligence activity, one that had been very successful.

    The other thing we worried about was the fact that the story was just incomplete, and it painted an inaccurate picture. That often happens when you're talking about classified activities that's leaked. Often the information is incomplete and inaccurate, and we worried about that and the misinformation, the picture it would paint for the American public and for the Congress. So we worried about that.

    And there was a debate within the administration about what to do. Should we try to get an injunction? Well, we decided that's too hard, too heavy to lift and just not the right thing to do. So should we provide more information? A little bit more information? If we did that, that might reassure The New York Times not to move forward. And if it did move forward at least the story would be a little bit more accurate if we gave them more information. So that's why we met with them; that's why we spoke with them about what we were doing.

    And again, though, what The New York Times had was only the content part of it. I want to emphasize again that the deputy attorney general was OK with listening in on conversations. That's not what the issue was about in the hospital. It was about something else.

    It's been defined as the email metadata program.

    I can't confirm what it was about. What I can say is what The New York Times had was only the content portion of what the president authorized. ...

    Critics will say that the president afterward made some statements; Hayden made a lot of statements about it after the articles were --

    Well, when the article came out on Friday, Dec. 15, I think, or was it the 16th? But the next day, the president went on the radio to confirm that he had authorized this program, and he did so for a number of reasons. One is he wanted to reassure the American people we didn't have a rogue agency. And he also wanted to tell the folks at NSA: "I'm not going to let you hang out to dry here. I'm going to confirm that I authorized this." And then the following Monday, Mike Hayden and I, we gave a press briefing at the White House about what the government was doing.

    And critics will say that what you were all doing was misleading by only focusing on one part of the program and denying others, basically. Was there an intent to mislead in order to protect the secrecy of the program?

    We wanted to protect that which was classified, that which was important in protecting our country, and we wanted to clarify that which was public. That was the intent.

    But was it misleading?

    I don't believe it was misleading. I don't believe it was misleading. And the other thing you have to understand, of course, is congressional leaders knew exactly what we were doing. ...

18. Ψ Share"There is no expectation of privacy in metadata"

    It comes down to the an argument that's still happening now with the Obama administration, which is the fact that if you ignore the metadata program, when you're out there saying that when we were spying on people, when there's surveillance, it's only done on them domestically when there are warrants. There is nobody reading your emails; there is nobody listening to your telephone calls. But what is being ignored, of course, is the fact that there are 300 million people that the metadata from is being taken constantly. So therefore, some people say, "That's the crux of the issue that Snowden, I suppose, is complaining about," is that this other program was taking place where people's information is being taken constantly.

    Where is the constitutional issue there? Where is the constitutional issue? Because the Supreme Court has already said there is no expectation of privacy in metadata. Information in the hands of third parties, you have no reasonable expectation of privacy, and there's no constitutional issue.

    Now, there may be a statutory issue of privacy if the Congress passes a statute protecting that kind of information. But people throw out the Constitution all the time. Yet if you're talking about metadata, I'm not sure there's a constitutional issue there. There may be a statutory right of privacy that we have to worry about, but no constitutional issue, at least as of this moment.

    Now, the court may revisit that given the fact that we have changing technologies and the ability of the government to gather so much information so quickly, so maybe those expectations of privacy are much different today than they were 30 years ago.

    ... It brings about a lot of anger out there, and it's a big part of the debate, that the government -- this is where the Orwellian sort of 1984 issues come up, that the government is too powerful when it has the access to information like this. What's your take on that debate?

    My take is that the collection of information is important if we want to keep our country safe. Now, because the government is so good and so efficient at it, it really is necessary to ensure that Congress is doing its job of oversight. It really is important to ensure that the inspector general, the general counsel of the NSA and these other agencies are doing their job in oversight. It's important that people get the appropriate training. It's appropriate that there are reporting requirements to the Congress that can show when discrepancies or mistakes happen. And when they do, it's important that there be accountability.

    So what I would say is these programs are very, very important. I don't think they should be discontinued unless there was rampant abuse to the extent that abuses occur, mistakes occur. I do think it's important to make sure that we minimize those as much as possible. And I think that can be done, and I think Congress has gone a long way in minimizing the potential harm that may arise from potential abuse.

    But I understand the concern; I really do. I certainly appreciate it. But I think this notion that we would discontinue activities that are vitally important to the national security of our country, I don't agree with that.

19. Ψ Share

    And just finally, really the last area I want to cover, is so this attempt after the whole DOJ, the events at DOJ and then the reporting in The New York Times, there's in 2006, basically, there's a move to make it legal, I guess, to sort of clarify the issues, to make this bridge just sort of solve the problems that the DOJ originally had. Just take us into that a little bit, of what the thinking was, of how it eventually leads to the 2008 amendment and why that's important to understand the evolution of the program and what the administration was thinking?

    What I would just say is when I became attorney general, as I said earlier, is that I asked Steve Bradbury, who was in at OLC, to scrub down the program, to make sure the program was on the best legal footing we could have it on.

    And obviously there were certain authorities that had been discontinued, and we looked to see whether or not could we have them continued under FISA [Foreign Intelligence Surveillance Act]? And we were able, working with Judge [Colleen] Kollar-Kotelly, to continue certain programs, to do certain activities which are very, very important. So we did what we could to make sure that everything that we were doing was consistent with the law, and -- well, I don't know how else to answer that question. …

    There's a lot of people that are very surprised that when President Obama took over -- and Obama was pretty vocal when he was a senator about problems he saw with the surveillance program; he was very proactive in saying the importance of whistle-blower protections, and such -- and yet a lot of people that were supporters of Obama see his actions in basically going forward with all of the programs as surprising. Surprising to you, I mean?

    No. I think when you put your hand on the Bible, you swear to preserve, protect and defend the Constitution, that's implicit in that, is to protect the health, safety and welfare of every American citizen. And I think you look at these authorities, you see that they're affected. If the lawyers are saying, "Yes, we do have the authority to engage in these kinds of activities," you're going to do that as president of the United States. So I'm not surprised at all. …