The following timeline is based on the Unclassified Report on the President’s Surveillance Program, written by the Inspectors General of several agencies, published on July 10, 2009.
PRESIDENTIAL SURVEILLANCE PROGRAM - A TIMELINE
1978 - The FISA law is enacted, permitting electronic surveillance in the United States for foreign intelligence purposes, through the FISA court. The law forbids such electronic surveillance except as authorized by statute.
September 11, 2001 - Terrorists armed with knives and boxcutters hijack four passenger aircraft, and fly three of them into the Twin Towers and the Pentagon. Almost 3,000 people are killed.
Sept. 2001 - Soon after the attacks, Director of the CIA George Tenet, on behalf of the White House, asks NSA Director Michael Hayden whether the NSA could do more to combat terrorism. Hayden tells Tenet that nothing more can be done within his existing legal authority. When asked what he might do with more authority, Hayden proposes what becomes the basis for the President’s Surveillance Program (PSP).
Sept. 2001 - President Bush authorizes the NSA to undertake a number of new, highly classified intelligence activities. All of these activities are authorized in a single document called a “Presidential Authorization.” The programs, still classified as of 2009, involve interception of communications without a court order, a program the White House calls the “Terrorist Surveillance Program,” as well as actions known in IG report as "Other Intelligence Activities." Collectively these activities are known as the PSP.
Sept. 2001 - The Presidential Authorizations are issued at intervals of approximately every 45 days. With each reauthorization the CIA, and later the National Counterterrorism Center, prepare an assessment of current potential terrorist threats and a summary of intelligence gathered through the PSP and other means during the previous authorization period. The Department of Justice's Office of Legal Counsel (OLC) review this information every 45 days to assess whether there is "a sufficient factual basis demonstrating a threat of terrorist attacks in the United States for it to continue to be reasonable under the standards of the Fourth Amendment for the President to [continue] to authorize the warrantless searches involved" in the program. The Office of Legal Counsel then advises the Attorney General as to whether the constitutional standard of reasonableness has been met, and whether the Presidential Authorization could be certified "as to form and and legality."
Each Presidential Authorization includes a finding that an extraordinary emergency continues to exist, and that the circumstances "constitute an urgent and compelling governmental interest" justifying the activities being authorized without a court order.
Because private sector companies and individuals are asked to cooperate in the PSP, the White House feels it is important to be able to say that the Attorney General has approved the program. In addition, for "purely political considerations" the Attorney General's approval of the program is thought to have value "prospectively" in the event of Congressional or Inspector General reviews of the program.
Threat assessments relied on by the DOJ, providing the basis for the PSP, described the danger of a terrorist attack, and are sobering and "scary." The threat assessments are known as the "scary memos."
Sept. 2001 - Deputy Assistant Attorney General John Yoo, who works in the DOJ Office of Legal Counsel, writes the initial legal memos supporting the concepts behind the PSP.
Sept. 2001 - U.S. Attorney General Ashcroft is told about the existence of the program. That same day, he approves Presidential Authorization of the PSP.
Sept. 2001 - Michael Hayden is told the Attorney General has personally approved the PSP as lawful.
October 2001 - John Yoo writes more legal memos supporting potential activities of the PSP.
October 25, 2001 - Unnamed White House officials and Michael Hayden brief Rep. Nancy P. Pelosi, Rep. Porter J. Goss, Sen. Robert Graham and Sen. Richard J. Shelby on aspects of the PSP. Later more briefings take place.
November 2, 2001 - John Yoo writes the first legal directly supporting the legality of the PSP. Yoo concludes that because the FISA law of 1978 did specifically state that is applies in a time of war, it does not apply to the PSP. As the IG Report notes, Yoo ignores a FISA provision allowing the interception of electronic communications without a warrant for a period of 15 days following a congressional declaration of war.
Yoo also concludes the Fourth Amendment does not apply to non-U.S. citizens, and that the government may intercept communications which cross a border. Yoo also concludes that surveillance for military purposes does not fall under the Fourth Amendment. Yoo finds that the government conduct may any surveillance which is reasonable, for example, where there is a great national interest, such as security of the nation. The IG Report notes that Yoo does not discuss the Youngstown case, instead emphasizing that the President has the constitutional power to take action to defend the nation against direct attack.
November 2001 - John Yoo is only person in the Office of Legal Counsel who knows about the PSP, and becomes the principal legal authority approving the PSP, bypassing the peer review process of the DOJ, including his own supervisor, Assistant Attorney General Jay Bybee, who is never told about the existence of the PSP. No one else in the OLC is aware Yoo is working with the White House on the program. He deals only with the White House and remains the principal authority until he leaves in May of 2003.
January 2002 - FISA Court Presiding Judge Royce Lamberth is told about the PSP. Presiding Judge Colleen Kollar-Kotelly is later informed.
October 2002 - At the request of AG Ashcroft, Yoo writes another memo supporting the PSP.
May 2003 - John Yoo leaves government.
May 2003 - After Yoo leaves, another DOJ official, Patrick Philbin, is selected by the White House to be given knowledge of the PSP, and to assume Yoo's role as advisor to the Attorney General concerning the program.
August, 2003 - Philbin expresses his concern to U.S. Attorney General Ashcroft that John Yoo's OLC legal opinions might lack a proper legal foundation.
October 6, 2003 - Jack Goldsmith replaces Jay Bybee as Assistant Attorney General for the OLC. Although Bybee was never told about the PSP, Patrick Philbin persuades the Counsel to the Vice President Dick Cheney, David Addington, to inform Goldsmith about the existence of the surveillance program.
October, 2003 - Philbin tells Goldsmith about his concern that John Yoo's analysis of the legality of the PSP was incorrect, and that certain ongoing practices of the U.S. government are in violation of the law.
November, 2003 - Goldsmith and Philbin re-analyze the PSP and the FISA statute. They develop an argument that the Congressional Authorization for Use of Military Force Joint Resolution (AUMF) exempted some of the activities under the PSP from FISA. Even so, Goldsmith and Philbin remain concerned that this revised analysis is still not enough to support the legality of certain actions the President authorized under the PSP.
December, 2003 - Goldsmith and Philbin met with the Counsel to the Vice President, David Addington, and White House Counsel Alberto Gonzales, at the White House to express their growing concerns about the legality of certain activites of the PSP. Goldsmith tells them he thinks the PSP, in its current form, is illegal. Gonzales agrees to terminate the program if it is found to be illegal.
December, 2003 - James Comey becomes Deputy Attorney General.
January, 2004 - Bush agrees to inform James Comey about the PSP.
January 2004 - Jack Goldsmith tell James Comey about his belief that PSP may be illegal. After studying the issues, Comey agrees that John Yoo's legal opinions were flawed, and that PSP may be illegal. He is particularly concerned by Yoo's opinion that the President may unilaterally, and in secret, decide to ignore an act of Congress.
Monday, March 1, 2004 - James Corney tells FBI Director Mueller that he thinks the PSP may be illegal. This is the first time Mueller has been told there are any doubts about the legality of the program.
Thursday, March 4, morning - Comey meets with U.S. Attorney General John Ashcroft. He tells Ashcroft about his belief that certain practices of the PSP are probably illegal. Ashcroft agrees with the opinions of Comey, Goldsmith and Philbin that the PSP is illegal.
Thursday, March 4, afternoon - Ashcroft is struck with severe gallstone pancreatitis and admitted to the The George Washington University Hospital, which is a few minutes away from the Dept. of Justice and a few blocks from the White House.
Friday, March 5, morning - Jack Goldsmith advises James Comey by memorandum that because of Ashcroft's medical condition and hospitalization, a "clear basis" exists for Comey to determine that "this is a case of 'absence or disability' of the Attorney General," allowing Comey to become Acting Attorney General of the United States. Goldsmith sends a copy of the memo to White House Counsel Alberto Gonzales.
Friday, Thursday, March 5, afternoon - Gonzales calls Goldsmith, asking for a letter stating that John Yoo's opinions "covered" the PSP. Goldsmith and Philbin confirm that Gonzales only wants a letter stating that Yoo said the PSP was legal, not that, in the opinion of the DOJ, it actually was.
Friday, Thursday, March 5, evening - Goldsmith, Philbin, and Comey re-examine all of Jon Yoo's memoranda, with a view toward determining whether they adequately described the actual intelligence activities of the NSA under the Authorizations.
Goldsmith, Philbin, and Corney conclude that Yoo's memoranda did not accurately describe all of activities that were being conducted by the government under orders from President Bush, and that the Yoo's opinions therefore did not provide a basis for finding that these activities were legal.
Saturday, March 6 - With Comey's approval, Goldsmith and Philbin meet with Addington and Gonzales at the White House to convey their conclusions that certain activities in the PSP are illegal and should stop. Addington and Gonzales tell Goldsmith they will get back to them.
Sunday, March 7 - Goldsmith and Philbin met again with Addington and Gonzales at the White House. Addington and Gonzales tell Goldsmith and Philbin they disagree with their interpretation of Yoo's memoranda, that they believe the PSP is legal, and that in their opinion there do not need to be any changes to NSA surveillance under the PSP.
Tuesday, March 9, Morning - Alberto Gonzales calls Goldsmith and tries to persuade him that his criticisms of Yoo's memoranda are incorrect, and that Yoo's analysis showed the PSP is legal. Goldsmith tells him disagrees. Gonzales tells him that Presidential Authorization for the PSP expires in three days, and that Attorney General John Ashcroft must agree for it to be renewed. Gonzales is concerned that Ashcroft is too sick to sign the authorization, and the Comey will not agree to it. Gonzales asks for a "30-day bridge" to get past the deadline. Goldsmith tells Gonzales they can't do that, because the PSP is, in their opinion, illegal.
Tuesday, March 9, 12:00 p.m. - A meeting is at the White House. Present are the President's Chief of Staff Andrew Card, FBI Director Mueller, Vice President Cheney, CIA Deputy Director John McLaughlin, Hayden, Gonzales, and other unspecified officials. Comey, Goldsmith, and Philbin are not invited.
NSA and CIA officials brief everyone on the PSP, and the group is then told that James Comey believes some PSP activities are illegal. Vice President Cheney suggests that "the President may have to reauthorize without the blessing of DOJ." Mueller tells Cheney "I could have a problem with that," and tells him that the FBI is going to have to independently "review legality of continued participation in the program."
Tuesday, March 9, afternoon - Gonzales and Vice President Cheney summon Comey, Goldsmith and Philbin to the White House to persuade them that the PSP is important to national security and should be allowed to continue. Vice President Cheney tells Comey that the PSP is "critically important" and warns that Corney is risking "thousands" of lives if Corney does not agree to recertify the PSP. Corney tells Cheney that as the Acting Attorney General he will refuses to reauthorize the PSP unless it is modified. Cheney refuses.
Wednesday March 10, morning - President George W. Bush is told that Comey will not reauthorize the PSP because he thinks it is illegal. Bush tells Cheney to call meeting of Congressional leaders to inform them of the problem. The PSP will expire the next day.
March 10, afternoon - Goldsmith, Philbin, and Corney met in to discuss the meeting at the White House the day before and how DOJ should proceed. Goldsmith and Philbin confirmed their position to Corney that some of the "Other Intelligence Activities" under the PSP are not legal and must be changed or shut down.
March 10, 2004, 4:30 p.m.- Cheney, Gonzales, Card, Hayden, McLaughlin, and Tenet, convene an emergency meeting with congressional leaders in the White House Situation Room. Present are Senate Majority and Minority Leaders Bill Frist and Thomas A. Daschle; Senate Select Committee on Intelligence Chairman Pat Roberts and Vice Chairman Jay Rockefeller; Speaker of the House Dennis Hastert and House Minority Leader Nancy Pelosi; and House Permanent Select Committee on Intelligence Chair Porter Goss and Ranking Member Jane Harman. This group is known informally as the "Gang of Eight." No one from Dept. of Justice is invited to attend the meeting.
Gonzales later tells Comey that Congressional leaders agreed that the PSP was legal and should continue, he testifies to this later under oath. Pelosi, Rockefeller, and Daschle later issue statements sharply disputing Gonzales's characterization of their statements at the March 10, meeting, stating that there was no consensus at the meeting that the program should proceed. Pelosi later states that at that meeting she "made clear my disagreement with what the White House was asking" concerning the program.
March 10, 6:00 p.m. - President George Bush tells Gonzales and Card to go to the hospital and speak to Ashcroft, who is intensive care, recovering from surgery.
March 10, 6:20 p.m. - Andrew Card calls the hospital and tells an agent in Ashcroft's security detail that President Bush will be calling to speak with Ashcroft. Ashcroft's wife told the agent to tell Card that Ashcroft will not accept the call.
March 10, 6:30 p.m. - The agent calls Ashcroft's Chief of Staff David Ayres to request that Ayres speak with Card, and tell the President about Mrs. Ashcroft's desire that no calls be made to John Ashcroft.
March 10, 6:45 p.m. - Andrew Card and President Bush call the hospital and insist on speaking with John Ashcroft. Mrs. Ashcroft takes the call from Card and the President. President Bush tells her that Gonzales and Card are on their way to the hospital to see Ashcroft regarding a matter involving national security.
March 10, 7:00 p.m. - At the DOJ, Chief of Staff Ayres tells James Comey that Gonzales and Card are on their way to the hospital to try to get Ashcroft to reauthorize the PSP.
March 10, 7:03 p.m. - Comey calls his own Chief of Staff and tells him to "get as many of my people as possible to the hospital immediately."
March 10, 7:05 p.m - Comey then calls Mueller and tells him that Gonzales and Card are on their way to the hospital and that John Ashcroft was in no condition to receive guests, much less make a decision about whether to recertify the PSP. Comey wants Mueller to witness Ashcroft's condition. Mueller tells Corney he will go to the hospital right away.
March 10, 7:10 p.m. - Comey calls Philbin tells him to get to the hospital right away because Gonzales and Card were on their way there "to get Ashcroft to sign something" reauthorizing the PSP. Comey also tells Philbin to call Goldsmith and tell him what is happening.
March 10, 7:25 p.m. - Comey arrives at GW hospital, and with his own security detail, runs up the stairs to Ashcroft's floor, and enters Ashcroft's room, where he finds Ashcroft lying in bed and his wife standing by the side. Comey finds Ashcroft unfocused and later says that he "seemed pretty bad off."
March 10, 7:30 p.m. - Goldsmith arrives at the hospital.
March 10, 7:32 p.m.- Philbin arrives at the hospital.
March 10, 7:33 p.m. - Comey, Goldsmith, and Philbin met briefly in an FBI "command post" in a room next to Ashcroft's room.
March 10, 7:34 p.m. - Comey, Goldsmith, and Philbin are informed that Card and Gonzales have arrived at the hospital and are on their way upstairs to see Ashcroft.
March 10, 7:35 p.m.- Comey, Goldsmith, and Philbin enter Ashcroft's room tell Ashcroft "not to sign anything."
March 10, 7:35 p.m. - Gonzales and Card enter Ashcroft's hospital room.
March 10, 7:35 p.m. - Mrs. Ashcroft is at the head of Ashcroft's bed. Comey, Goldsmith, and Philbin stand behind Gonzales and Card. Gonzales is carrying a manila envelope. Inside the envelope is a Presidential Authorization for the PSP, requiring Ashcroft's signature.
March 10, 7:36 p.m. - Gonzales asks Ashcroft how he is feeling. Ashcroft replies, "Not well." Gonzales says, "You know, there's a reauthorization that has to be renewed ...."
March 10, 7:36 p.m. - Ashcroft tells Gonzales, in very strong terms, that he thinks the PSP is illegal. He then states, "But that doesn't matter, because I'm not the Attorney General. There is the Attorney General," and he points to Comey.
March 10, 7:40 p.m. Gonzales and Card, without acknowledging Comey, turn and walk out of the room.
March 10, 7:41 p.m. Mueller arrives at the hospital.
March 10, 8:00 p.m., Mueller goes into Ashcroft's room for 10 minutes. Mueller notes: "AG in chair; is feeble, barely articulate, clearly stressed."
March 10, 8:15 p.m. - White House Chief of Staff Card calls Comey at the hospital. Card is very upset and demands that Corney come to the White House immediately. Comey tells Card that he will meet with him, but not without DOJ Solicitor General Ted Olson as a witness.
March 10, 11:00 p.m. - Comey and Olson arrive at the White House and meet with Gonzales and Card. Comey again informs them he will not approve legal authorization of the surveillance program.
March 11, midnight - Final day until authorization for the PSP expires.
March 11, morning - President Bush signs a new Authorization for the PSP.
In a departure from the past practice of having the Attorney General certify the Authorization as to form and legality, the March 11 Authorization is certified by the White House Counsel, Alberto Gonzales.
The March 11 Authorization also differs from prior Authorizations in three other respects. It explicitly asserts that the President's exercise of his Article II Commander-in-Chief authority displaces any contrary provisions of law, including FISA. It also describes certain “Other Intelligence Activities” being conducted under the PSP to address questions regarding whether such activities had actually been authorized explicitly in prior Authorizations.
It also states that in approving the prior Presidential Authorizations as to form and legality, the Attorney General previously had authorized the same activities now being approved under the March 11 Authorization. This statement is subsequently was removed from future Authorizations after John Ashcroft complained to Gonzales that the statement was "inappropriate."
March 11, morning - White House Chief of Staff Card calls Comey and tells him that that the President has just signed a new Authorization for the PSP.
March 11, 12:00 p.m. - Gonzales calls Goldsmith and tells him that the President, in issuing the Authorization, had made an interpretation of law concerning his authority and that DOJ should not act in contradiction of the President's determinations.
March 11, 12:10 p.m. - Director Mueller meets with Card at the White House. Card tells Mueller that if no "legislative fix" can be found by May 6, 2004, when the March 11 Authorization is set to expire, the program will be discontinued. Mueller tell Card that the failure to have DOJ representation at the congressional briefing and the attempt to have Ashcroft certify the Authorization without going through Comey "gave the strong perception that the [White House] was trying to do an end run around the Acting [Attorney General] whom they knew to have serious concerns as to the legality of portions of the program." Card responds that he and Gonzales were unaware at the time of the hospital visit that Comey was the Acting Attorney General, and that they had only been following the directions of the President.
March 11 - Comey drafts a letter of resignation. Ashcroft's Chief of Staff David Ayres urges Comey to wait until Ashcroft was well enough to resign with him.
Goldsmith also drafts a resignation letter, citing the "shoddiness" of the prior legal review of the PSP, the "over-secrecy" of the PSP, and the "shameful" incident at the hospital. Comey believes several senior DOJ officials, including Chuck Rosenberg, Daniel Levin, James Baker, David Ayres, and Deputy Chief of Staff to the Attorney General David Israelite, are also prepared to resign. Comey believes that "a large portion" of his staff will resign if he does.
March 12, 1:30 a.m. - FBI Director Mueller drafts a letter by hand, stating in part: "After reviewing the plain language of the FISA statute, and the order issued yesterday by the President ... and in the absence of further clarification of the legality of the program from the Attorney General, 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." Mueller plans on having the letter typed and then tendering it later, but he does not.
March 12 - Comey and Mueller attended the regular daily threat briefing with the President in the Oval Office. After the briefing President Bush calls Comey into his private study for an "unscheduled meeting." Comey tells the President about the DOJ's legal concerns regarding the PSP. The President's response indicates that he had not been fully informed of these concerns. Comey tells the President that the President's staff had been advised of these issues "for weeks." The President tells Comey that he just needs until May 6, and that if he could not get Congress to fix FISA by then he would shut down the program. The President emphasizes the importance of the program and that it "saves lives."
March 12 - The President meets with Mueller. Mueller tells the President of his concerns regarding the FBI's continued participation in the program without an opinion from the Attorney General as to its legality, and that he was considering resigning if the FBI were directed to continue to participate without the concurrence of the Attorney General. Mueller explains to the President that he has an "independent obligation to the FBI and to DOJ to assure the legality of actions", the FBI undertakes and that a presidential order alone cannot do that. The President directs Mueller to meet with Comey and other PSP principals to address the legal concerns so that the FBI could continue participating in the program "as appropriate under the law."
March 12 - Comey decides not to direct the FBI to cease cooperating with the NSA in conjunction with the PSP. Comey’s decision is documented in a one-page memorandum from Goldsmith to Comey, in which Goldsmith explains that the President, as Commander in Chief and Chief Executive with the constitutional duty to "take care that the laws are faithfully executed," made a determination that the PSP, as practiced, was lawful. Goldsmith concludes that this determination was binding on the entire Executive Branch, including Comey in his exercise of the powers of the Attorney General.
On March 12 - An interagency working group led by OLC is convened to continue reanalyzing the legality of the PSP. Goldsmith expresses doubt that a viable legal rationale can be found for the PSP.
March 16 - Comey officially advises the White House that that the DOJ remained is unable to find a legal basis to support certain activities and recommends they be discontinued immediately. Comey advises the White House that the PSP raises serious issues, including Presidential authority to override an act of Congress.
March 16 - Alberto Gonzales replies in writing to Comey, to tell him that the President, not the DOJ, has the final say in interpretation of the law.
March 17 - The President orders modifications to certain PSP intelligence-gathering activities and orders the NSA to discontinue certain Other Intelligence Activities that DOJ believed were legally unsupported.
May 6 - Goldsmith and Philbin completed a legal memorandum assessing the legality of the modified PSP. They trace the history of the program and analyze the legality of all of the intelligence activities conducted under the program in light of applicable statutes, Executive Orders, cases, and constitutional provisions. They conclude the AUMF authorized the President to conduct most activities under the PSP.
May 20, 2004 - Ashcroft writes a memorandum stating that it was not until Philbin and Goldsmith explained to him that aspects of the NSA's “Other Intelligence Activities” were not accurately described in the prior Authorizations that he realized that he had been certifying the Authorizations prior to March 2004 based on a misimpression of those activities.
December 16, 2005 - The New York Times reveals the extent and potential illegality of the PSP. The Times delayed the story for a year at the request of the White House.
December, 2005 - In response to the Times story, Bush defends the program, noting he his, and previous administrations were criticized for not "connecting the dots" prior to the attacks of September 11, 2001. He says that the USA PATRIOT Act and the PSP are helping to connect the dots as best as his administration possibly can.
February and July 2006 - In testimony before the Senate Judiciary Committee, Gonzales states that the dispute at issue between DOJ and the White House did not relate to the Terrorist Surveillance Program that the President had confirmed, but rather pertained to other intelligence activities. In 2009 the DOJ Inspector General concludes that this was misleading.
Gonzales's testifies that DOJ attorneys did not have "reservations" or "concerns" about the program the "President has confirmed" (the Terrorist Surveillance Program) was incomplete and confusing. In July of 2009 the DOJ Inspector General concludes that this testimony was confusing, inaccurate, and had the effect of misleading those who were not knowledgeable about the program.
May 2006 - During the May 2006 Senate hearing on his nomination to be CIA Director, Hayden said that, had the PSP been in place before the September 2001 attacks, hijackers Khalid Almihdhar and Nawaf Alhazmi almost certainly would have been identified and located.
February 1, 2007 - The final Presidential Authorization for the PSP expires.
August, 2007 - The Protect America Act is enacted, which amends FISA to expand the government's ability to conduct electronic surveillance in the United States of people located outside the United States.
July, 2008 - The FISA Amendments Act of 2008 are enacted, authorizing the government to intercept, inside the United States any communications of non-U.S. persons reasonably believed to be located outside the United States. This legislation gives the government even broader authority to intercept international communications than did the provisions of the original Presidential Authorizations.
July 16, 2009 - In an essay in The Wall Street Journal, John Yoo, now a professor at the University of California, directly responds to the Inspector Generals' report. Addressing what he calls the
media-stoked politics of recrimination,” and the report's implication that Yoo supported violations of FISA, Yoo calls FISA an "obsolete law," which was "not written with live war with an international terrorist organization in mind." Yoo writes that the "Founders designed the presidency," as an office to respond "such emergency circumstances" as a time when Executive might determine which laws are suddenly obsolete. In his essay, Yoo argues that function of the presidency is to protect the nation from attack, and that, no law, even if passed by Congress and signed by a previous President, can limit the power of the President to conduct foreign affairs and national security policy, particularly in a time of war. The powers of the President to protect the nation, Yoo writes, ought to exist “without limitation."
“Antedent, standing, positive laws" - Yoo suggests, are useless when the nation can be attacked, nor can legislatures, which act too slowly, be trusted to protect the nation. Only a chief executive with few limits on his power, Yoo writes, can protect the interests of the public.
Because it is impossible to foresee or even define every national emergency, or how it should be addressed, the President's power should be unlimited, writes Yoo. Indeed, to limit the president's constitutional power to protect the nation from foreign threats, he writes, "is simply foolhardy."