The New Republic, May 17. 2007
The scene former Deputy Attorney General James Comey described to the Senate Judiciary Committee on Tuesday was the stuff of Hollywood movies: a frantic race between White House and Justice Department officials to the hospital room of John Ashcroft; a dramatic showdown at the gravely ill man’s bedside, in which the White House tried to get him to overrule Comey’s decision not to reauthorize the National Security Agency’s (NSA) domestic surveillance program. But while the basic contours of this encounter have been public for some time, the full story, as Comey told it as part of the committee’s investigation into the federal prosecutor firings, gives the picture a more sinister sheen. What he described, very simply, was a White House bent on defying the law as the Justice Department understood it. It is, in a city that likes to imagine itself beyond shock, a genuinely shocking story.
Until it was brought under the Foreign Intelligence Surveillance Court earlier this year, the NSA’s warrantless wiretapping program, under President Bush’s order, required reauthorization by the president every 45 days. That reauthorization, in turn, required a certification by the attorney general that the program was lawful. Early in 2004, the Office of Legal Counsel (OLC)—under the new leadership of then-Assistant Attorney General Jack Goldsmith—developed anxieties about the program and determined that “they could not find an adequate legal basis” for it, Comey testified. In response, Comey and Ashcroft discussed the matter, and they too developed “concerns as to our ability to certify [the program’s] legality.” (Comey did not confirm he was talking about the NSA’s program, but he clearly was.) Hours later, Ashcroft became critically ill with pancreatitis and was rushed to the hospital, and Comey became acting attorney general. In the days leading up to the March 11 deadline, he informed the White House that he would not reauthorize the program.
The night of March 10, Ashcroft’s wife called the attorney general’s chief of staff, David Ayers, from her husband’s hospital room to say that she had received a call from the White House and that Alberto Gonzales, then the White House counsel, and White House Chief of Staff Andy Card were on their way there. Comey rushed over, as did Goldsmith and another department official, Patrick Philbin; he called in FBI Director Robert Mueller as well, though Mueller arrived only after the subsequent confrontation had taken place. In the hospital room, Card and Gonzales sought to persuade a barely conscious Ashcroft to sign the authorization, though the powers of the attorney general resided with Comey, not him. Ashcroft, Comey testified, “lifted his head off the pillow and in very strong terms expressed his view of the matter,” standing by the department’s position, and then said, “But that doesn’t matter, because I’m not the attorney general. There is the attorney general.” And he pointed at Comey.
Over the next few days, Comey testified, “The program was reauthorized without us and without a signature from the Department of Justice attesting as to its legality.” Comey prepared to resign, as did Mueller and a bevy of other senior department officials. “Mr. Ashcroft’s chief of staff asked me…not [to] resign until Mr. Ashcroft was well enough to resign with me,” he informed the committee. Only after personal meetings between President Bush and both Comey and Mueller was the crisis averted. In a conversation with the FBI director, Comey related, Bush instructed them 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.” These changes were implemented over the succeeding weeks, and the resignations were shelved.
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