FISA court: the spies' greatest ally

NARRATOR: That afternoon, President Bush reauthorized the program. At the Justice Department, Jack Goldsmith prepared his resignation letter.

JACK GOLDSMITH: I had drafted my resignation letter and was prepared to resign, and I was sure I was going to resign that day. And it was inconceivable to me, based on what had happened the last two days, that I wouldn’t resign.

NARRATOR: Dozens of top DOJ officials threatened to join him, including FBI Director Mueller and even Acting Attorney General Comey.

COMEY LETTER: “And I would never be part of something that I believe to be fundamentally wrong. With a heavy heart and undiminished love of my country and my department, I resign as deputy attorney general of the United States, effective immediately. Sincerely yours, James B. Comey.”

BARTON GELLMAN: George Bush is on the edge of a cliff. His presidency is at stake. This was going to be something on the order of two dozen, nearly the entire political appointment list at the Justice Department, from the attorney general on down. And no president could survive that in an election year.

NARRATOR: The next morning, the president decided to have a private talk with Acting Attorney General Comey.

BARTON GELLMAN: After the national security briefing, Bush says to Comey, “Stay a minute. Come talk to me.” And Cheney starts to follow, and Bush says, “No, no, this is just the two of us.” And he says, “What’s going on here? How could you possibly do something of this importance at the very last minute?”

Comey suddenly realizes that the president had no idea what had been happening. The president thinks this just began yesterday. He doesn’t know it’s been going on for three months. And so, he says, “Mr. President, if that’s what you’ve been told, you have been very poorly served by your advisers.”

ANDREW CARD: The president certainly did not want a situation where the FBI director and the deputy attorney general would resign, so he was not too happy to learn that this had risen to a level of angst that it had risen to.

NARRATOR: The president then sent for FBI Director Mueller.

BARTON GELLMAN: Mueller’s waiting downstairs a level, outside the Situation Room. Some aide goes and says, “President wants to see you right now, get in there.” And Bush says to Mueller, “Go tell Jim Comey to fix this. I withdraw the order. You go make it right.”

NARRATOR: The warrantless e-mail data collection was shut down. The crisis was averted. But at the White House, they were determined to resume it.

RYAN LIZZA, The New Yorker: And so there— there’s sort of a literally, you know, sort of sifting through the FISA law. They’re sifting through the Patriot Act trying to find existing laws, existing authorities, you might call it loopholes, to justify these programs.

NARRATOR: General Hayden was sent to the secret FISA court to convince a judge to restart it.

MICHAEL HAYDEN: Could we get a court order to authorize this? And so we began a very aggressive program with the chief judge of the FISA court at that time, Judge Kollar-Kotelly, to take that part of the program that had been stopped and present it to her to see if we could get an order to allow that program to go forward.

RYAN LIZZA: Hayden personally meets with Judge Kotelly of the FISA court on two Saturdays to make the pitch, to explain how they’re going to do this. And Kotelly eventually rules that this is legal, that the NSA can indeed collect all of the Internet metadata going to and from the United States. And they use this authority — that previously was used to trace numbers going to and from a single telephone — for everybody.

NARRATOR: Kollar-Kotelly’s secret ruling relied on a controversial interpretation of a 25-year-old Supreme Court case.

BARTON GELLMAN: This was, frankly, a huge stretch. The idea that you could use this to justify the collection of trillions of pieces of Internet metadata surprised a lot of people when it came out in the Snowden archives. But that’s where they went.

NARRATOR: The program was back on line, bigger than ever.

MICHAEL HAYDEN: That part of the program, over which there was a grand dispute in the spring of 2004, was resumed in large measure under a different legal theory by the fall of 2004.