It is one of the darkly iconic scenes of the Bush Administration. In March 2004, two of the president's most senior advisers rushed to a Washington hospital room where they confronted a bedridden John Ashcroft. White House chief of staff Andy Card and counsel Alberto Gonzales pressured the attorney general to renew a ma**ive domestic-spying program that would lapse in a matter of days. But others hurried to the hospital room, too. Ashcroft's deputy, James Comey, later joined by FBI Director Robert Mueller, stood over Ashcroft's bed to make sure the White House aides didn't coax their drugged and bleary colleague into signing something unwittingly. The attorney general, sick and pain-racked from a rare pancreatic disease, rose up from his bed, gathering what little strength he had, and firmly told the president's emissaries that he would not sign their papers.
Two knowledgeable sources tell NEWSWEEK that the clash erupted over a part of Bush's espionage program that had nothing to do with the wiretapping of individual suspects. Rather, Comey and others threatened to resign because of the vast and indiscriminate collection of communications data. These sources, who asked not to be named discussing intelligence matters, describe a system in which the National Security Agency, with cooperation from some of the country's largest telecommunications companies, was able to vacuum up the records of calls and e-mails of tens of millions of average Americans between September 2001 and March 2004. The program's cla**ified code name was "Stellar Wind," though when officials needed to refer to it on the phone, they called it "SW." (The NSA says it has "no information or comment"; a Justice Department spokesman also declined to comment.)
The secret collection and data-mining program had begun with a blessing by John Yoo, an ultraconservative lawyer in the Justice Department's Office of Legal Counsel. Yoo was a close ally of hard-line lawyers in the White House and worked closely with David Addington, Vice President Dick Cheney's lawyer. (Addington is now Cheney's chief of staff.) But by 2003, Yoo had moved on, and a new head of the OLC, Jack Goldsmith, began reviewing his work. Goldsmith found Yoo's legal opinions justifying the program flawed. His reasons are based on a mind-numbingly complex area of federal law, but the basic an*lysis comes down to this: the systematic collection and digital transmission of huge amounts of telephone and e-mail data by the government constitutes "electronic surveillance" under the Foreign Intelligence Surveillance Act, the exclusive law governing domestic spying in national-security cases. For such activities, FISA requires a court-approved warrant. Therefore, the program was illegal. The White House lawyers countered that the president's constitutional powers as commander in chief trumped FISA. Goldsmith and his colleagues rejected that argument, and won. Days after the hospital clash, Bush shut down the ma**ive data-collection program and stopped searches of the data that had already been stored. (It's unclear whether the administration has since found new legal justification to return to at least some of these activities.)