In my two years in the government, I witnessed top officials and bureaucrats in the White House and throughout the administration openly worrying that investigators acting with the benefit of hindsight in a different political environment would impose criminal penalties on heat-of-battle judgment calls. These men and women did not believe they were breaking the law, and indeed they took extraordinary steps to ensure that they didn't. But they worried nonetheless because they would be judged in an atmosphere different from when they acted, because the criminal investigative process is mysterious and scary, because lawyers' fees can cause devastating financial losses, and because an investigation can produce reputation-ruining dishonor and possibly end one's career, even if you emerge "innocent."
Why, then, do they even come close to the legal line? Why risk reputation, fortune, and perhaps liberty? Why not play it safe? Many counterterrorism officials did play it safe before 9/11, when the criminalization of war and intelligence contributed to the paralyzing risk aversion that pervaded the White House and the intelligence community. The 9/11 attacks, however, made playing it safe no longer feasible. . . .
I deplored the way the White House went about fixing the problem. "We're one bomb away form getting rid of that obnoxious [FISA] court," Addington had told me in his typically sarcastic style during a tense White House meeting in February of 2004.
After 9/11 they and other top officials in the administration dealt with FISA they way they dealt with other laws they didn't like: they blew through them in secret based on flimsy legal opinions that they guarded closely so no one could question the legal basis for the operations.
