A now famous showdown over a secret U.S. intelligence program that gathered information on Americans’ communications without warrants has been over-dramatized and apparently told largely from the perspective of one man—the current FBI director, James Comey, who at the time urged the attorney general to break with the White House and not reauthorize the controversial operation.
That’s the conclusion of former National Security Agency Director Michael Hayden, who was the architect of the program known as Stellarwind. In his new memoir, released today, Hayden provides his first detailed account of the creation of the program in the days after the 9/11 attacks, on orders of President George W. Bush, and an internal debate that saw top U.S. law enforcement officials threaten to resign.
Hayden disputes characterizations of key portions of the program as illegal, and says that even though Stellarwind bypassed a special court established to approve individual surveillance orders and wiretap requests, it met with the legal approval of top national security lawyers and was both lawful and useful in his view.
Comey has provided some of the most compelling accounts of the dispute, notably during congressional testimony in 2007 when he recalled how, three years earlier, he raced through the streets of Washington, D.C., to the bedside of his boss, Attorney General John Ashcroft—who lay near death in a hospital bed—and urged him not to approve continuing the program. According to published accounts and documents leaked by Edward Snowden, Comey and other top officials had determined that a key portion of the program, which involved the collection of Americans’ email data, wasn’t lawful.
Hayden portrays Comey as the chief figure on one side of a fairly narrow debate that was ultimately resolved but resulted in “published accounts of high drama and breathless runs up the stairs at George Washington hospital…” Hayden has long defended the program in writing, speeches, and congressional testimony, but his memoir adds a new personal dimension and is filled with behind-the-scenes recollections.
Hayden’s account also comes at a notable time for Comey, who is now leading an increasingly public campaign to force Apple to help the government obtain information from the cellphone used by one of the dead San Bernardino shooters. Apple and civil liberties groups have blasted the FBI director and the Justice Department for what they see as an illegal overreach by government and an attempt to expand surveillance of Americans’ private communications.
In Playing to the Edge: American Intelligence in the Age of Terror, Hayden writes that “the first wheels began to fly off” Stellarwind shortly after December 2003, when Comey became deputy attorney general and was informed of the program’s existence. Hayden went to brief Comey, a meeting that he considered “unexceptional, friendly enough, but in retrospect it looks like Comey had other views.”
Various published accounts of that briefing have portrayed Hayden as cavalier about the program and whether it was lawful. Comey and others, including then-FBI Director Robert Mueller, would later threatened to resign if Stellarwind wasn’t adjusted in ways they thought would bring it under U.S. law.
“There have been several public accounts of the meeting from what has to be Comey’s perspective, since I didn’t talk to any of the authors,” Hayden writes.
Comey began his own legal review of what the NSA was doing. “A storm was brewing over certain aspects of the Stellarwind program, but decidedly not about all (or even most) of it,” Hayden writes.
Hayden portrays the questioned portions of the program as affecting only about 20 percent of the operations that Stellarwind covered. Most famously, the program allowed the NSA to intercept the communications of people inside the U.S., without warrants, if at least one party to the call was located overseas and the NSA determined the call was connected to al Qaeda or terrorist planning. That part of the program, which generated the most public controversy and was exposed in a 2005 New York Times article, apparently met with no resistance at the Justice Department.
On March 9, 2004, a day before Comey went to Ashcroft’s hospital room, Hayden writes that he and a group of NSA technicians and CIA analysts briefed Comey and other senior U.S. officials about the program at the White House.
“Comey was a tough audience,” Hayden writes. “He thought that this was the most aggressive assertion of presidential power in history (really?) and dismissed John Yoo’s legal opinion out of hand.”
Yoo, a lawyer in the Justice Department’s Office of Legal Counsel, had concluded that President Bush had inherent constitutional authorities to order warrantless surveillance for the purposes of collecting foreign intelligence information, an important distinction in Hayden’s mind. The NSA director and his analysts made their case that Stellarwind had provided valuable intelligence about terrorists plotting to attack the U.S.
Comey was unpersuaded, Hayden recalls.
“He angered my analysts by seeming to reject their claims and crediting traditional FBI approaches for what we believed were Stellarwind successes,” Hayden said. “We made no progress. It was a tense session, so Comey surprised me when he seemed to go out of his way to shake my hand as we adjourned.”
Hayden’s memoir, clocking in at more than 400 pages, covers the range of his unique career in the intelligence world. (He is the only person to have served as director of the CIA and the NSA.) But the portions devoted to Stellarwind are the most comprehensive he has given to date.
Hayden also disputes the notion that members of Congress weren’t fully on board with the NSA’s activities. On the afternoon of March 10, 2004, he writes, eight senior congressional leaders joined Hayden and other officials in the White House Situation Room, where he says Vice President Dick Cheney defended Stellarwind “but also candidly [described] the legal crisis we were now in over some aspects of the program.”
The lawmakers gave no indication that they objected to the NSA continuing with all its operations, Hayden writes. “It was a tough briefing, not because of any pushback, but because it was technical and wide ranging and it also had to be short. The Situation Room is small, and that day it was cramped and quite hot. Several members fought the urge to fall asleep.”
That night, Comey persuaded Ashcroft not to give his approval to the program. And the next day, Cheney’s chief counsel, David Addington, asked Hayden “point-blank...whether I would agree to carry out the Stellarwind program if the White House counsel rather than the acting attorney general [Comey] averred to its overall lawfulness,” Hayden writes.
“After a short reflection, I said, ‘Yes, I would,’ thereby giving us another forty-five days to sort this out, get out of crisis mode, and more calmly (and collectively) agree on a way ahead.”
A crisis was ultimately averted, insofar as Comey and other top officials didn’t quit. As for Stellarwind, it was exposed publicly the following year, leading to the most significant debate at the time over the limits of government surveillance in the name of fighting terrorism.
Hayden criticized journalists, including those at the Times, for sensationalizing intelligence operations and exaggerating the debate over whether the program was legal.
But in the end, surveillance operations continued and, years later, were even expanded, Hayden writes.
Through a series of changes to law, “almost all that President Bush had authorized via Stellarwind was codified in law. And—despite the earlier journalistic outrage—a lot more to boot. Go figure.”
