The scene at the hospital marked a turning point for the data collection program but did so in a way that may well have hastened the day that Congress would officially deem it sound and legitimate. Immediately after he became attorney general in early 2005, Alberto Gonzales asked the new head of the OLC, Steve Bradbury, to reexamine whether there might be a different legal approach to the NSA activities authorized by the president -- one that would put those activities on a stronger legal footing. So, Bradbury crafted a novel legal analysis that, if approved by the FISA court, would permit much of the NSA program to be based on section 702 of the FISA statute, which allowed the NSA to acquire communications on foreign entities that happened to use U.S.-based content providers. In essence, the FBI would take a first pass at the data collection to make sure it did not contain information about U.S. persons. Then, and only then, would it be provided to the NSA. The attorney general would have to certify to the FISA court that the data was needed for foreign intelligence purposes.
Bradbury presented his new approach to the White House in the late spring of 2005, and the White House approved it without hesitation, provided that the director of national intelligence and the NSA were confident that the new approach would not materially compromise the value and effectiveness of the program. The DNI and the NSA expressed support, and over the next several months, the OLC, working with the Office of Intelligence Policy and Review at the Justice Department, developed a detailed analysis and proposal intended to be submitted to the FISA court in late 2005 or early 2006.
But in December 2005, the New York Times scuttled the effort to build a new legal basis for the metadata program by reporting on the OLC's attempt to draft a new justification under FISA. Bradbury and others in DOJ spent much of their time and attention in 2006 explaining to the public (and to Congress) the legal basis for the NSA activities, which were now publicly acknowledged by the president following the Times article, as well as addressing other alleged activities and rumors swirling around those charges. As a consequence of the distraction, it wasn't until January 2007 that Gonzales told Congress that DOJ had succeeded in obtaining a court order authorizing foreign collection using bulk data under a novel interpretation of FISA. What he did not say in open session was that bulk data collection had resumed under the Patriot Act's business-records provision. The main difference: The FISA court was reviewing and certifying all of the government's data requests.
Then, just as quickly, that legal authorization was taken away. A FISA judge found problems with the collection. (We don't know exactly what the issues were.) It was then, and only then, that those in Congress read in to the program felt compelled to act. Congress passed stopgap legislation in 2007 and, in 2008, a permanent and fundamental restructuring of FISA.
In essence, the new FISA laws legalized bulk data collection for foreign intelligence gathered from wires passing through the United States, prohibited the collection of any content (audio of telephone calls, the body text of e-mails) on U.S. persons anywhere in the world without a warrant, and allowed the government to use FISA for collecting information to fight terrorism, proliferation, and espionage.
Today, the NSA's special programs are larger than they were when they first existed as a presidentially authorized intelligence collection tool. Inside the government there is a consensus that the NSA's intelligence-gathering activities -- both those recently revealed and those still classified -- are critical to national security. This consensus did not come easily, and from a civil libertarian standpoint the checks and balances are insufficient. It could be that the Justice Department, the courts, and Congress previously objected to the program only because they weren't let in on the secret. Now that they're in on it, they're willing participants in its perpetuation and expansion, one fully sanctioned by the law.
Congress has reauthorized the Patriot Act and rewritten FISA to allow for all of the activities that Comey found objectionable, although they are subject to a significantly higher level of oversight and auditing. But the legal interpretation and operational realities of what these reauthorizations meant were secret to all but a very small number of members.
That is, until just a few days ago.