It's not every day a former deputy attorney general testifies that the White House violated the law--and did so knowingly. But that seemed to happen this morning when former Deputy Attorney General James Comey testified before the Senate judiciary committee about the once-secret NSA warrantless wiretapping program that targeted citizens and residents in the United States.
Comey's testimony [transcript (pdf)] to the committee was dramatic--mainly because he recounted a night in 2004 when then-White House chief of staff Andrew Card and then-White House counsel Alberto Gonzales barged into a hospital room where a very sick John Ashcroft, then the attorney general, was in bed, suffering from pacreatitis. The two had come to obtain Ashcroft's approval of this wiretapping program (which had to be reauthorized on a regular basis by the attorney general).
But Comey and Ashcroft a week earlier had concluded that there were legal problems with the program and that they could not recertify it unless there were changes to the program. At this moment, though, time was running out for the White House. The authorization for the program was due to expire.
Let's pick up the rest of the story with the testimony:
COMEY: The door opened and in walked Mr. Gonzales, carrying an envelope, and Mr. Card. They came over and stood by the bed. They greeted the attorney general very briefly. And then Mr. Gonzales began to discuss why they were there -- to seek his approval for a matter, and explained what the matter was -- which I will not do. [Editor's note: Comey refused to ID the program as the NSA warrantless wiretapping program--but that's what it was.]
And Attorney General Ashcroft then stunned me. He lifted his head off the pillow and in very strong terms expressed his view of the matter, rich in both substance and fact, which stunned me -- drawn from the hour-long meeting we'd had a week earlier -- and in very strong terms expressed himself, and then laid his head back down on the pillow, seemed spent, and said to them, "But that doesn't matter, because I'm not the attorney general."
SENATOR CHUCK SCHUMER: But he expressed his reluctance or he would not sign the statement that they -- give the authorization that they had asked, is that right?
COMEY: Yes. And as he laid back down, he said, "But that doesn't matter, because I'm not the attorney general. There is the attorney general," and he pointed to me, and I was just to his left. The two men did not acknowledge me. They turned and walked from the room.
What Ashcroft meant was that because he was sick in the hospital Comey was the acting attorney general--and only Comey could renew the authorization for the wiretapping program. Yet Comey would not.
What happened next? According to Comey, "The program was reauthorized without us and without a signature from the Department of Justice attesting as to its legality." That is, the White House continued a program that required the authorization of the attorney general without the attorney general's authorization. It was at that point conducting a surveillance program that the Justice Department considered unlawful. Shortly after this--once Ashcroft was back on the job--Comey resigned.
My friend Marty Lederman, a legal scholar, explains all this further here. "It's just about the most dramatic testimony I can recall in a congressional committee since John Dean," Lederman says. He may be right. This deserves attention.
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2009.07.10 TPM:
The report goes into some detail about that famous visit made by Andy Card and Alberto Gonzales to then-AG John Ashcroft, when Ashcroft was in the hospital, and essentially incapacitated .... The White House needed the Attorney General's sign-off to continue its warrantless wiretapping program.
For years, there's been a mystery about who called the hospital and informed Ashcroft's wife, over her objections, that Card and Gonzo would be coming to see the AG. And it looks like the answer is the president himself.
From the report:
According to notes from Ashcroft's FBI security detail, at 6:20 p.m. that evening Card called the hospital and spoke with an agent in Ashcroft's security detail, advising him that President Bush would be calling shortly to speak with Ashcroft. Ashcroft's wife told the agent that Ashcroft would not accept the call. Ten minutes later, the agent called Ashcroft's Chief of Staff David Ayres at DOJ to request that Ayres speak with Card about the President's intention to call Ashcroft. The agent conveyed to Ayres Mrs. Ashcroft's desire that no calls be made to Ashcroft for another day or two. However, at 6:45 p.m., Card and the President called the hospital and, according to the agent's notes, "insisted on speaking [with Attorney General Ashcroft]." According to the agent's notes, Mrs. Ashcroft took the call from Card and the President and was informed that Gonzales and Card were coming to the hospital to see Ashcroft regarding a matter involving national security. (our itals)In other words, President Bush, apparently knowing that Ashcroft's wife did not want him seeing visitors or even speaking on the phone, nonetheless informed her that his staff would be coming to the hospital to get the sign-off they needed.
The passage essentially confirms a report from last year by Murray Waas in The Atlantic that Gonzo had told investigators that it was indeed President Bush who directed him to Ashcroft's bedside. And the president's call itself was first reported by Barton Gellman in his 2008 book Angler: The Cheney Vice Presidency.
Of course, in Ashcroft's finest moment, Card and Gonzales were unsuccessful. But they would soon find ways to get around the problem.
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