Fears about the extent of National Security Agency surveillance–even within government–aren’t a new thing. According to a Washington Post report Saturday, some of the top intelligence and Justice Department officials who served during George W. Bush’s administration, including the man whom President Obama may tap to become the next head of the FBI, threatened to resign in March 2004 in response to learning that then-President Bush had ordered the NSA to begin collecting metadata on emails and Skype calls placed within the U.S.

Believing that that portion of the Bush administration’s sweeping domestic surveillance policy was unlawful, acting Attorney General James Comey and the Office of Legal Counsel’s Jack Goldsmith led the charge to end it. Comey, who is widely believed to be Obama’s nominee to become the next FBI director, ordered that the program be stopped. But when Bush went ahead and renewed it anyway, Comey, Goldsmith, FBI Director Robert Mueller and other administration officials all began drafting their resignation letters.

Their threats ultimately worked as Bush gave in, marking the beginning of the end for the intelligence-gathering program known as Stellar Wind. It was eventually replaced, however, with four others, including the current PRISM one.

The Washington Post:

The legal challenge for the NSA was that its practice of collecting high volumes of data from digital links did not seem to meet even the relatively low requirements of Bush’s authorization, which allowed collection of Internet metadata “for communications with at least one communicant outside the United States or for which no communicant was known to be a citizen of the United States,” the NSA inspector general’s report said.

Lawyers for the agency came up with an interpretation that said the NSA did not “acquire” the communications, a term with formal meaning in surveillance law, until analysts ran searches against it. The NSA could “obtain” metadata in bulk, they argued, without meeting the required standards for acquisition.

Goldsmith and Comey did not buy that argument, and a high-ranking U.S. intelligence official said the NSA does not rely on it today.

…Three months later, on July 15, the secret surveillance court allowed the NSA to resume bulk collection under the court’s own authority. The opinion, which remains highly classified, was based on a provision of electronic surveillance law, known as “pen register, trap and trace,” that was written to allow law enforcement officers to obtain the phone numbers of incoming and outgoing calls from a single telephone line.

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— Posted by Tracy Bloom.

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