The NSA Program Reauthorization Decision Process

Two articles in The Washington Post today describe an effort by Andrew Card, then White House Chief of Staff, and Alberto Gonzales, then White House Counsel, to bypass the Acting Attorney General and obtain a signature from John Ashcroft who was in an intensive care unit recovering from emergency surgery. Ashcroft who held the title of Attorney General had temporarily relinquished to the post to his deputy because of his illness. The two articles are:

* "Gonzales Hospital Episode Detailed: Ailing Ashcroft Pressured on Spy Program, Former Deputy Says" by Dan Eggen and Paul Kane, and

* "Ashcroft and the Night Visitors" by Dana Milbank

There is also a story in today's New York Times:

* "President Intervened in Dispute Over Eavesdropping" by DAVID JOHNSTON

Let me bypass the dramatic bits, which are widely covered.

The Story as I Understand it

The Justice Department staff found a National Security Agency surveillance program might not be legal. The program had to be reauthorized every 45 days. The Acting Attorney General refused to sign off on the authorization memo, causing White House staffers to seek Ashcroft's signature. Ashcroft refused. The reauthorization was then submitted to the President without Department of Justice clearance, and signed. The the Attorney General, the Deputy Attorney General, the Chief of Staff of the Justice Department, and the head of the FBI all started to prepare their resignations. The President met privately with the Acting Attorney General and the Director of the FBI, and then agreed to modify the program. The nature of the modifications has never been disclosed.

Comment: Note that the process and the human factors can have major influence on the decision that is made. The clearance process is designed to raise any important issues for the President's attention, and appeared ultimately to do so in this case. However, it appears that Card and Gonzalez sought first to get a dangerously ill man to sign off on the document from his sick bed, and then when that effort failed, submitted the memo for signature without DoJ clearance. The threat of mass resignations must have changed the political balance, bringing what was a secret process and outcome inevitably to public attention. That threat evidently resulted in a new process, and a change in the decision.

Emotions must have run high! Senior political officials do not resign in protest casually. I suspect it was that emotional energy that fueled the process needed to revise the bad initial decision.

"Knowledge for Development" as a title suggests that knowledge plays a key role in the decision making of government (and other) officials, and so it should. But good decision making also depends on good processes for making those decisions -- processes that identify the important alternatives, raise issues, and alert the decision makers to the pros and cons of each alternative.

Ultimately, however, people make the decisions. It is very hard to tell policy makers things that they don't enjoy hearing, and people have to obtain the emotional resources to do so.

My hat is off to James B. Comey, Robert S. Mueller III, John D. Ashcroft, David Ayres and their colleagues who found the strength to do the right thing in that difficult moment in March 2004. JAD