Enemies: A History of the FBI (72 page)

The president told her that it was a matter of national security. She would not hand over the phone. The FBI agents had the presence of mind to alert Ashcroft’s chief of staff that the president’s men were on their way. He called Comey. The acting attorney general called Mueller, asking him to meet him at the hospital and bear witness to the confrontation.

They raced to the intensive care unit. Comey got there first. He walked into the darkened room and saw that Ashcroft was fading: “I immediately began speaking to him … and tried to see if he could focus on what was happening. And it wasn’t clear to me that he could. He seemed pretty bad off.” Comey stepped out into the hallway and called Mueller again. The director said he would be there in a few minutes. He wanted to speak with his agents. He ordered them to make sure that the president’s men did not throw the acting attorney general out of the hospital room.

The FBI agents recorded that Card and Gonzales entered at 7:35
P.M.
Gonzales stood at the head of the bed holding a manila envelope with the presidential authorization inside. He told Ashcroft he wanted his signature.

Ashcroft lifted his head off his pillow. He refused. “In very strong terms,” he said the program was illegal; his argument was “rich in both substance and fact—which stunned me,” Comey said. Then Ashcroft laid down his head and said: “But that doesn’t matter, because I’m not the attorney general. There is the attorney general.” And then he pointed at Comey.

Mueller crossed paths with the president’s empty-handed emissaries as they stalked out. They were about to cross swords.

The president signed the authorization alone in the White House on the morning of March 11. It explicitly asserted that his powers as commander in chief overrode all other laws of the land. Mueller met with White House chief of staff Card at noon. His notes say that he told Card that “the WH was trying to do an end run” around the law.

Mueller drafted a letter of resignation by hand at 1:30
A.M.
on March 12, 2004. “In the absence of clarification of the legality of the program from the Attorney General,” he wrote, “I am forced to withdraw the FBI from participation in the program. Further, should the President order the continuation of the FBI’s participation in the program, and in the absence of
further legal advice from the AG, I would be constrained to resign as Director of the FBI.”

Seven hours later, Mueller went to the morning briefing with the president at the White House. It had been a busy night in the world of counterterrorism. In Madrid, Islamic jihadists claiming inspiration from al-Qaeda had set off ten bombs in four commuter trains. They killed 191 people and wounded 1,800, the worst terrorist attack in Europe since the bombing of Pan Am 103 over Lockerbie in 1988. The FBI was looking for links to the United States.

After the meeting, the president stood alone with Mueller in the Oval Office. Bush now realized that the FBI director, the attorney general, and his deputy were in rebellion. Mueller told Bush face-to-face that he would resign if the FBI was ordered to continue warrantless searches on Americans without an order from the Department of Justice. Mueller said he had an “independent obligation to the FBI and to DOJ to assure the legality of actions we undertook,” according to his recently declassified notes of the meeting. “A presidential order alone could not do that.”

Both men had sworn upon taking office to faithfully execute the laws of the United States. Only one still held to his oath.

The president pleaded ignorance of the law and the facts. He said he hadn’t known there had been legal problems with Stellar Wind. He said he hadn’t known Ashcroft had been in the hospital. He said he hadn’t known Mueller and Comey had been blowing the whistle. He was almost surely deceiving the director, and deliberately.

Without doubt he saw a political disaster at hand. “I had to make a big decision, and fast,” Bush wrote in his memoirs. “I thought about the Saturday Night Massacre in October 1973”—when Nixon defied the Justice Department over his secret tapes, forced the attorney general and his deputy to resign, and destroyed his presidential aura of power. “That was not a historical crisis I was eager to replicate. It wouldn’t give me much satisfaction to know I was right on the legal principles while my administration imploded and our key programs in the war on terror were exposed in the media.”

Bush promised to put the programs on a legal footing. This did not happen overnight. It took years. But based on the president’s promise, Mueller and his allies backed down from their threats to resign. Bush kept the secret for twenty more months. The man who first blew the whistle on the warrantless
surveillance was a Justice Department lawyer named Thomas Tamm; his father and his uncle had been two of J. Edgar Hoover’s closest aides at headquarters. By the time the first facts were revealed in
The New York Times
, both Ashcroft and Comey had resigned from the Bush administration.

Mueller’s stand against the president stayed secret far longer. But Comey told a select audience at the National Security Agency what Mueller had heard from Bush and Cheney at the White House:

“If we don’t do
this
, people will die.” You can all supply your own
this:
“If we don’t collect this type of information,” or “If we don’t use this technique,” or “If we don’t extend this authority.” It is extraordinarily difficult to be the attorney standing in front of the freight train that is the need for
this
 … It takes far more than a sharp legal mind to say “no” when it matters most. It takes moral character. It takes an ability to see the future. It takes an appreciation of the damage that will flow from an unjustified “yes.” It takes an understanding that, in the long run, intelligence under law is the only sustainable intelligence in this country.

Mueller testified in public before the 9/11 Commission one month later, on April 14, 2004, and he never breathed a word of what had happened at the White House. He never has.

“T
HE BEGINNINGS OF AN INTELLIGENCE SERVICE
”

The commission and Congress accepted the director’s assurance that the FBI could safeguard both liberty and security. But they asked more from Mueller. They wanted to know that the FBI was using the full powers Congress had granted it under the Patriot Act of 2001.

It was, but not always well. On May 6, 2004, the FBI arrested an Oregon attorney, Brandon Mayfield, on a material witness warrant in connection with the Madrid bombings. He was an American citizen who had converted to Islam. The FBI had used every wiretapping and surveillance tool it had against Mayfield for seven weeks. The case rested on the FBI’s misreading of a fingerprint lifted from a plastic bag in Madrid. Spanish police had told the FBI legal attaché in Madrid that Mayfield was the wrong man. He was
nonetheless arrested after that warning. The arrest led to two weeks of harsh imprisonment in solitary confinement before he was freed; he later won a formal apology and a $2 million settlement from the government.

The Patriot Act, written swiftly, in a state of fear, had greatly expanded the force of national security letters, a tactic rarely used before 9/11. The letters commanded banks, credit bureaus, telephone companies, and Internet service providers to turn over records about their customers to the FBI. They also compelled the recipients to remain silent—they could tell no one, not even a lawyer. They had the combined power of a subpoena and a gag order. The FBI was sending out close to one thousand of these letters a week; more than half the targets were American citizens. FBI agents said they were indispensable investigative tools, the bread and butter of counterterrorism in the United States. But the letters, like warrantless wiretaps, were also a form of breaking and entering. An FBI supervisor could write them without a judge’s order or a prosecutor’s request.

By September 2004, federal judges were starting to find them unconstitutional. The courts struck down the provisions of the Patriot Act that gave the FBI those powers; Congress rewrote the law to preserve them. The Bureau now had to justify the gag order to a judge, but the letters continued.

The FBI’s counterterrorism agents also were abusing their power by creating “exigent letters”—emergency subpoenas for thousands of telephone records—without telling anyone at headquarters. An endless succession of assistant directors, deputies, and special agents in charge did not learn the rules or their roles. Mueller said: “
We did not have a management system in place to assure that we were following the law.” He conceded that the Bureau had misused the Patriot Act to obtain intelligence.

The testimony that the 9/11 Commission heard left many of the commissioners thinking that the Bureau should be rebuilt. They seriously considered creating a new domestic intelligence service to supplant the FBI. Mueller fought a three-front battle with the commission, the Congress, and the White House to keep the Bureau from becoming a house divided, with law enforcement on one side and intelligence on the other. The struggle went on every day through the summer and fall of 2004, and into the next year.

The only part of the commission’s report on the FBI that was written into law was an order commanding the creation of “
an institutional culture with substantial expertise in, and commitment to, the intelligence mission.” Mueller had been trying to do that for years. His progress was slow and
uneven, but he soon achieved his goal of doubling the number of intelligence analysts at the FBI. There were now two thousand of them, and they were no longer assigned to answer phones and empty the trash.

Mueller had confidently reported to the commission that he was making great strides, “
turning to the next stage of transforming the Bureau into an intelligence agency.” But the FBI was at least five years away from that goal.

The president had been compelled to create his own intelligence commission after conceding that the weapons of mass destruction in Iraq were a mirage. Federal appeals court judge Laurence Silberman led it. He was Cheney’s choice; the two were of one mind about the Bureau. They had been for thirty years, ever since Silberman was deputy attorney general and Cheney President Ford’s chief of staff. Back then, after Nixon fell, the White House had sent Silberman to search the secret files of J. Edgar Hoover. The judge had had a barb out for the Bureau ever since.

“
It was the single worst experience of my long governmental service,” Judge Silberman told his fellow judges. “Hoover had indeed tasked his agents with reporting privately to him any bits of dirt on figures such as Martin Luther King, or their families. Hoover sometimes used that information for subtle blackmail to ensure his and the Bureau’s power … I think it would be appropriate to introduce all new recruits to the nature of the secret and confidential files of J. Edgar Hoover. And in that connection this country—and the Bureau—would be well served if his name were removed from the Bureau’s building.”

Silberman’s report on the FBI, in the works throughout the winter of 2004 and sent to the White House on March 31, 2005, was a steel-wire scrubbing. “
It has now been three and a half years since the September 11 attacks,” the report’s chapter on the Bureau began. “Three and a half years after December 7, 1941, the United States had built and equipped an army and a navy that had crossed two oceans, the English Channel, and the Rhine; it had already won Germany’s surrender and was two months from vanquishing Japan. The FBI has spent the past three and a half years building the beginnings of an intelligence service.” The report warned that it would take until 2010 to accomplish that task.

The report bore down hard on the FBI’s intelligence directorate, created by Mueller two years before. It concluded that the directorate had great responsibility but no authority. It did not run intelligence investigations or operations. It performed no analysis. It had little sway over the fifty-six
field groups it had created. No one but the director himself had power over any of these fiefs.

“We asked whether the Directorate of Intelligence can ensure that intelligence collection priorities are met,” the report said. “It cannot. We asked whether the directorate directly supervises most of the Bureau’s analysts. It does not.” It did not control the money or the people over whom it appeared to preside. “Can the FBI’s latest effort to build an intelligence capability overcome the resistance that has scuppered past reforms?” the report asked. “The outcome is still in doubt.” These were harsh judgments, all the more stinging because they were true.

If the FBI could not command and control its agents and its authorities, the report concluded, the United States should break up the Bureau and start anew, building a new domestic intelligence agency from the ground up.

With gritted teeth, Mueller began to institute the biggest changes in the command structure of the Bureau since Hoover’s death. A single National Security Service within the FBI would now rule over intelligence, counterintelligence, and counterterrorism. The change was imposed effective in September 2005. As the judge had predicted, it would take the better part of five years before it showed results.

“W
HO IS CALLING SHOTS?
”

The war in Iraq was throwing sand into the FBI’s gears. Hundreds of agents had rotated through Iraq, and hundreds more labored at the FBI’s crime lab in Quantico, Virginia, taking part in a battle that seemed to have no end. They analyzed tens of thousands of fingerprints and biometric data from prisoners, looking for leads on al-Qaeda. They worked to capture, analyze, and reverse-engineer tens of thousands of fragments of the improvised explosive devices that were killing American soldiers.

Members of the FBI’s vaunted hostage rescue team, trained in commando tactics, were in high demand in both Iraq and Afghanistan. Some had been through four tours of duty in battle, more than any soldier in the war, by the summer of 2005.