Comey testified that Bush instructed them to make whatever changes to the program they thought needed to be made in order to convince them that the program was legal:We had the president's direction to do what we believed, what the Justice Department believed was necessary to put this matter on a footing where we could certify to its legality.
And so we then set out to do that. And we did that.
As indicated, it has been assumed for some time that what changed at that point was that the AUMF legal "justification" was concocted, and it was the addition of that argument -- one which at least had the appearance of being grounded in Congressional authorization -- that is what convinced the DOJ to certify the program's legality. In other words, what changed in 2004 was not the eavesdropping program itself, but merely the DOJ's theories about why the program was legal.
But Greenwald cites to another theory put forth by Orin Kerr about what changes might have been made in the program:
Since the AUMF authorized, in essence, the instruments of war to be used against Al Qaeda and other terrorist groups, that would mean that -- in order to make the program appear more legal in the eyes of these DOJ officials -- the warrantless eavesdropping would need, presumably, to be tied to terrorist groups encompassed by the AUMF. That's the only conceivable way that the program could have been "refashioned" in order to make it seem as though it had legal authority.
But if that's the case -- if it was only in 2004 that a requirement was created that the eavesdropping be tied closely to terrorists encompassed by the AUMF -- then that would mean that prior to that time, there was no nexus between the eavesdropping and those terrorist groups. It would mean that prior to this 2004 DOJ rebellion, the scope of the NSA eavesdropping -- the list of those who were subject to warrantless eavesdropping -- was far broader than the Islamic terrorist groups against whom the President was authorized by the AUMF to use military force.
That would necessarily mean that -- contrary to what the administration has repeatedly insisted was true -- it was not merely Al Qaeda and similar groups who were the targets of the eavesdropping conducted in secret, but targets beyond that category.
Which would really only confirm what most of us believed anyway, which was that the program-as initiated and conducted for 2 1/2 years-was overbroad, and that we could never trust President Bush's assurances that it was being limited to Al Qaeda related targets.
I'm not entirely convinced that more than cosmetic changes were necessary to convince Ashcroft, Comey and Co. that the program was legal. And yet, the fact that they were willing to resign en masse to protest the program, means they had very real problems with it. And the program that they had very real problems with and were willing to quit over went on from 2001 to 2004 before any serious changes were made. So what was going on during that time? Wouldn't you like to know?