james comey was now the acting attorney general. >> comey notifies the white house formally that he's not going to sign, and we're now within 48 hours of expiration of this program. >> narrator: with the deadline looming inside the white house, alberto gonzales, chief of staff andrew card and david addington headed to attorney general ashcroft's hospital room. >> we went to the west wing, picked up david, who had the authorization. we get to the hospital and i tell david to stay back because there was history between david and the attorney general and i didn't want to aggravate the attorney general needlessly. >> janet ashcroft, the attorney general's wife, is very alarmed. she calls up ashcroft's chief of staff and says, "oh my god, they're coming over." ashcroft's chief of staff calls comey, the deputy. comey is in a car

"we're going to pull back our endorsement of the legality of this program." and addington roars at him and says, "if you do that, the blood of 100,000 people killed in the next attack will be on your head." >> narrator: for cheney, addington, gonzales, hayden and others, the personal stakes at this moment were extremely high. >> it was a felony to conduct this kind of surveillance in the united states. and everyone was relying on the shield that they were trying to create of having the president order it explicitly and have the attorney general sign off and say, "it's lawful." and as soon as the justice department starts to say, "we're not so sure this is lawful," there is a great deal of concern and anxiety. >> five separate car bombs blew up in a span of 45 minutes... >> a bomb last night set portions of the old city ablaze... >> narrator: at the justice department, they prepared for conflict with the white house.

the tactics that the administration has used to deflect questioning and also to mislead the public. i was amazed at what he was saying, because it was not truthful; it was misleading. and that was the beginning of the spinning and the lies. >> president bush heads to the nsa as part of his weeklong blitz to defend his controversial wiretapping program... >> white house strategy? fight back on every point... >> yesterday it was the president; today the attorney general speaks out on the matter...

>> narrator: now general hayden wanted the sign-off of his top lawyer, robert deitz. >> i think he was concerned and wanted my view of whether this program was lawful. i spent a kind of sleepless night pondering the legality of it. this was a very hard call. it was a very hard call. >> the nsa has a general counsel and about 100 lawyers. and they were told, "the president has signed it, it's been certified as lawful, and once all the signatures are there, that's it, we salute. we say, 'okay, it's lawful, we're going to go ahead.'" >> in the intel world, if a president says to you, "i need this in order to keep the american people safe," you need to try to figure out where that line is constitutionally and march right up to it. >> narrator: two other nsa lawyers would also sign off

white house, cheney insisted the president should act on his own: reauthorize all of the program even though the justice department said part of it was illegal. >> cheney and david addington draft a new order. and this time, it has one subtle difference. instead of having a signature page for the attorney general, "i certify the lawfulness of this order," there's a new signature for the white house counsel, alberto gonzales, who does not have the same legal authority. >> i satisfied myself that there was sufficient legal authority to move forward. and i felt that the president was not a lawyer, and that it was my job, if i felt comfortable that it was in fact lawful, to provide that signature. i did it because i wanted to protect the president. that's why i signed that document. >> narrator: but the white house wondered, "would general hayden go out on a legal limb and

played his trump card, threatening that the new york times would be responsible for the next attack. >> he said, you know, "listen, if you guys publish this article and there is another 9/11, we're going to be called before congress to explain how we failed to prevent it, and you should be in the chair beside us explaining, because you'll be complicit in allowing damage to our country." he was saying, in effect, "you, arthur sulzberger, will have blood on your hands if there's another attack that could've been prevented by this program." i think anybody would feel goosebumps. >> the new york times broke the story about the national security agency... >> narrator: nevertheless, the times decided to publish the story, revealing the

security agency, consistent with u.s. law and the constitution, to intercept the international communications of people with known links to al qaeda and related terrorist organizations. >> narrator: it was the least controversial and smallest element of the program. there was no reference to the massive gathering of domestic communications data. >> his characterization of the facts was simply wrong. and it was wrong from the beginning. the program wasn't to surveil known suspects, known conspirators. you could easily get a warrant for that. the program was to sift big data. it was to trawl through enormous volumes, literally trillions of telephone calls, trillions of emails, and to look for unknown conspirators. >> narrator: once again, it would be left to general hayden to brief the press. he too minimized the scale of "the program."

performance-- and it was just amazing, one of the most amazing things i've ever seen in my life, because he went from seeming, you know, near death to having this moment, this amazing moment of clarity-- and he just again receded into the bed, and i really worried at that point that he was going to expire. and i mean, it just... it looked like he gave it the last of his energy. >> and so finally, when he repeats again he's no longer the attorney general and is finished talking, andy and i just said, "thank you, we'll raise this with the deputy attorney general," and we left. >> it was an intense, unbelievable scene. and gonzales and card quickly left, and that was the end of it. >> narrator: in the wake of the hospital confrontation, at the white house, cheney insisted the president should act on his own:

>> bush on day two of his tour to defend the patriot act, this time in buffalo, new york... >> in buffalo, he continued his push for an extension of the anti-terror law... >> narrator: that same year, the president hit the campaign trail, publicly arguing there was no warrantless surveillance program. >> nothing has changed, by the way. when we're talking about chasing down terrorists, we're talking about getting a court order before we do so. >> bush got up there several times and said, "when you hear about us wiretapping, that means we're getting a court warrant." well, we knew that wasn't true. he was leaving out this whole other side of the equation in terms of the nsa operation. >> it's important for our fellow citizens to understand, constitutional guarantees are in place when it comes to doing what is necessary to protect our homeland, because we value the constitution. thank you for coming. >> narrator: as the president insisted the government always secured warrants, in...

>> the program was an example of the administration going it alone in secret based on inadequate legal reasoning and flawed legal opinions. >> narrator: goldsmith discovered that as part of the program, the government had been tracking data about the emails of tens of millions of americans. >> he said, "you can't justify the email collection. it is, on its face, a clear violation of the 4th amendment and perhaps the 1st amendment as well." >> narrator: addington was furious that goldsmith would raise questions about "the program," and he let him know. >> he was very tough in making his arguments. he was very sarcastic and aggressive against people with whom he disagreed, and dismissive oftentimes. and he acted with the implicit blessing of the vice president. so all of these things made him a very, very forceful presence. >> you know, david pushed, he pushed everybody. he pushed me. even when i was the attorney general, he would push me. so that was just david's nature, and i think...

attorney general james comey, delivered the news to john ashcroft: parts of the program appeared to be illegal. >> they go to the attorney general, john ashcroft. they say, "we don't think this is legal. we think we need to get this changed. we need to stop what's going on because we don't have a solid foundation to go on." >> narrator: ashcroft was supposed to sign a reauthorization of the entire program every 45 days, and for two and a half years, he had. but now he balked. >> ashcroft gives comey his verbal assurance that he is not going to go along with this program and that he is going to demand changes or he won't sign. >> narrator: then just hours later, attorney general ashcroft collapsed, suffering from severe pancreatitis. james comey was now the acting attorney general. >> comey notifies the white

sent for fbi director mueller. >> mueller is waiting downstairs a level, outside the situation room. some aide goes and says, "the president wants to see you right now, get in there." and bush says to mueller, "go tell jim comey to fix this. i withdraw the order. you go make it right." >> narrator: the warrantless email data collection was shut down. the crisis was averted. but at the white house, they were determined to resume it. >> and so they're sort of sifting through the fisa law, they're sifting through the patriot act trying to find existing laws, existing authorities, you might call it loopholes, to justify these programs. >> narrator: general hayden was sent to the secret fisa court to convince a judge to restart it. >> could we get a court order

advisors: condoleezza rice, general hayden, alberto gonzales and others, who insisted to keller that revealing the existence of the program would endanger national security. >> i had a consensus of everybody that we had contact with in the administration that this would be an extremely dangerous thing to do. these were serious people, a consensus across the board of those who talked to us that it was going to be dangerous, a level of stridency that was quite impressive. and after much discussion, decided that we weren't ready to go with it. >> narrator: keller spiked the story. the white house had prevailed. the program would remain a well-kept secret. >> the president has ordered a major shake-up of america's spy operations... >> the nuts and bolts of intelligence will fall to lieutenant general michael hayden, who now heads up the once super secret...

the nsa would not spy on u.s. citizens, binney and the other analysts had built in privacy protections. >> it anonymizes who it's listening in on, unless there's a court warrant that makes the identity of that person clear. >> if you knew that it was u.s. person-related, it would be automatically encrypted. that was part of the design of thinthread. >> it had a data privacy section. that was working very well, protecting citizens and innocent people by encrypting the data and not allowing analysts to look at it even. >> narrator: drake was ecstatic. the experimental program could monitor massive amounts of data, but the encryption would protect the privacy of individual americans. he took it upstairs to the top deck. >> in those short days and weeks after 9/11, i put together a two-page classified implementation plan to put

"sorry you're feeling bad." and judge gonzales said, "we have brought the document. here is the document." >> attorney general ashcroft kind of lifted himself. he arose from the bed, lifted himself up and gave about a two- or three-minute speech or talk addressed to gonzales and card, in which he basically... i can't get into the details, but he showed enormous, unbelievable clarity about what the issues were and what was going on. and he explained why he also would not approve the program. and he read them a bit of the riot act, and then he said... at the end of all this, he said, "in any event, i'm not the attorney general now. jim comey is," because jim comey was the acting attorney general. and with that extraordinary performance-- and it was just amazing, one of the most amazing things i've ever seen in my life, because he went from seeming, you know, near death to having this moment, this amazing moment of clarity-- and he just

appointment list at the justice department, from the attorney general on down. and no president could survive that in an election year. >> narrator: the next morning, the president decided to have a private talk with acting attorney general comey. >> after the national security briefing, bush says to comey, "stay a minute. come talk to me." and cheney starts to follow, and bush says, "no, no, this is just the two of us." and he says, "what's going on here? how could you possibly do something of this importance at the very last minute?" comey suddenly realizes that the president had no idea what had been happening. the president thinks this just began yesterday. he doesn't know it's been going on for three months. and so he says, "mr. president, if that's what you've been told, you have been very poorly served by your advisors." >> the president certainly did not want a situation where the fbi director and the deputy attorney general would resign,

>> narrator: on october 4, in a secret signing with cheney, the president officially authorized "the program." >> that order is written by david addington, the vice president's lawyer. it's not written by the president's lawyer. and this is not only unusual but probably unique in the history of major u.s. intelligence operations: it's written by the vice president's lawyer and stored in his own safe. >> narrator: addington worked out of a small office next to the white house in the old executive office building. >> this order is one of the most closely kept secrets of the bush/cheney administration for four years. it's kept so secret that many people involved in national security inside the white house and the government don't know about it. >> narrator: addington personally hand-carried a copy of the secret document out to fort meade.

president bush reauthorized the program. at the justice department, jack goldsmith prepared his resignation letter. >> i had drafted my resignation letter and was prepared to resign, and i was sure i was going to resign that day. it was inconceivable to me, based on what had happened the last two days, that i wouldn't resign. >> narrator: dozens of top doj officials threatened to join him, including fbi director mueller and even acting attorney general comey. >> "and i would never be part of something that i believe to be fundamentally wrong. with a heavy heart and undiminished love of my country and my department, i resign as deputy attorney general of the united states, effective immediately. sincerely yours, james b. comey." >> george bush is on the edge of a cliff. his presidency is at stake. this was going to be something on the order of two dozen,

that he was calling him, but also that he got hayden on the line. >> i read him, like, two paragraphs of the draft of the story. >> "months after the september 11 attacks, president bush secretly authorized the national security agency to eavesdrop on americans and others..." >> and you could hear, like, a sharp intake of breath, like... (gasps) you know, it was almost like he was... he didn't want to say it, but he was like, "i can't believe you got that story." >> i think this is a very bad thing. there is a reason we keep intelligence sources and methods secret. it's the same reason journalists try to keep their sources and methods secret. you know, you can't survive unless you keep them secret. >> i'd caught him off guard, and he had started to confirm it, and then realized what he was doing, and hung up. >> narrator: hayden sounded the alarm: the new york times was preparing to expose the existence of "the program" in

>> narrator: but according to the rules drake thought he had to follow, whatever he found had to safeguard americans' privacy. he started by digging around inside the deepest reaches of the nsa's secret r&d programs. >> and he stumbles into sort of a skunkworks, and he discovers that there was actually a program before 9/11 that could have, as they said, eavesdropped on the entire world. it's called thinthread. >> narrator: thinthread, a program that could capture and sort massive amounts of phone and email data, was the brainchild of veteran crypto-mathematician bill binney. >> the whole idea was to build networks around the world of everybody and who they communicate with. then you could isolate all the groups of terrorists. once you could do that, you could use that metadata to select the information from all those tens of terabytes going by. >> narrator: but to make sure the nsa would not spy on u.s.

wondered, "would general hayden go out on a legal limb and continue the program?" >> david addington calls me and says, "are you willing to do this without the signature of the attorney general? with the signature of white house counsel al gonzales and authorization from the president?" and i thought and i said, "yes." >> narrator: hayden and gonzales say their willingness was informed by something that happened just before the addington call. (explosions) >> in madrid this morning, more than 190 people were killed... >> after at least ten simultaneous bomb blasts... >> narrator: it was one of the worst terrorist attacks since september 11. >> series of bomb attacks at three train stations during... >> given that starkness of the al qaeda threat and given the ambiguity of the situation, i thought the correct operational, legal and ethical decision was, "all right, we'll do this one more time on a somewhat different framework." >> so that was a point where he

convince a judge to restart it. >> could we get a court order to authorize this? and so we began a very aggressive program with the chief judge of the fisa court at that time, judge kollar-kotelly, to take that part of the program that had been stopped and present it to her to see if we could get an order to allow that program to go forward. >> hayden personally meets with judge kotelly of the fisa court on two saturdays to make the pitch, to explain how they are going to do this. and kotelly eventually rules that this is legal: that the nsa can indeed collect all of the internet metadata going to and from the united states. and they used this authority that previously was used to trace numbers going to and from a single telephone... for everybody. >> narrator: kollar-kotelly's secret ruling relied on a controversial interpretation of

>> narrator: it had been nearly one year since the new york times had refused to publish the investigation into the nsa. during that year, "the program" had grown dramatically. terabytes-- huge amounts of information about americans' telephone calls and emails-- had been clandestinely captured. finally, reporter james risen from the new york times had had enough. he decided to strike out on his own. >> the story was dead now, twice dead, and i thought the only way to ever get this story out was to put it in a book. >> narrator: risen had a surprise for eric lichtblau. he invited him to drive over to his house to read a draft chapter of the book: the story the new york times had refused to print. >> the chapter was just called "the program." and in it, he basically made known the existence of this program and the fact that the