Panel told of sickbed face-off over NSA eavesdropping

The Bush administration ran its warrantless eavesdropping program without the Justice Department's approval for up to three weeks in 2004, nearly triggering a mass resignation of the nation's top law enforcement officials, the former No. 2 official disclosed on May 15. In testimony to the Senate Judiciary Committee, former Deputy Attorney General James Comey said that those he believed were prepared to quit included then-Attorney General John Ashcroft and FBI Director Robert Mueller. On Capitol Hill, Comey took pains not to identify what he termed the "classified program" that prompted a race to the hospital where then-Attorney General John Ashcroft had just received emergency surgery. But lawmakers said they believed he was referring to the Terrorist Surveillance Program that the Bush administration secretly launched after the Sept. 11 attacks. The electronic eavesdropping program, administered through the National Security Agency, has swept up international phone and email correspondence of persons in the US, and has been of great importance in anti-terrorism investigations, administration officials have said. But the program also sparked controversy because, at first, it was conducted without the approval of the Foreign Intelligence Surveillance Act (FISA) court–a tribunal created under a 1978 law to monitor domestic spying in the US after Watergate and other abuses. Bending to criticism that the plan was of dubious legality, the Bush administration agreed in January to submit wiretap petitions under the program to the FISA court. Comey said Ashcroft and the Justice Department initially had approved the program but had second thoughts after a new head of its office of legal counsel, Jack Landman Goldsmith, began raising concerns about whether it violated the law. A week before the attorney general fell ill, Comey said, he and Ashcroft decided that there were legal problems with the program and that they would oppose recertifying it. With the program set to expire on March 11, 2004–and with Ashcroft in the hospital–administration officials approached Comey to get the Justice Department's blessing for reauthorization, but he refused to give it. That touched off a flurry of late-night maneuvering that ended up in Ashcroft's hospital room and, later, at the Justice Department and White House. Comey said two top aides to President Bush, then-White House Counsel Alberto Gonzales and former White House Chief of Staff Andrew Card, visited Ashcroft as he lay gravely ill in a hospital bed on March 10, 2004, and pressed him to re-certify the program's legality. Comey, then the acting US Attorney General, was on his way home that night when he got an urgent call from the office on his cellphone. The distraught wife of Atty. Gen. John Ashcroft, who was recovering in the hospital from gallbladder surgery, had called the Justice Department to report that her husband was about to get two uninvited guests. The visitors were Gonzales and Card, and they wanted Ashcroft's signature on a secret national security directive that Comey had rejected only a short time before. Comey was determined to get to the hospital first, which he did. Comey said he stepped out into the hallway and spoke by phone to Mueller, who instructed the FBI agents not to allow Comey to be removed from the room "under any circumstances." Two other senior Justice officials soon joined Comey and the Ashcrofts in the room. Shortly thereafter, Comey said, Gonzales–carrying an envelope apparently containing the presidential spying order–arrived with Card. "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," Comey said. "And Atty. Gen. Ashcroft then stunned me," Comey continued. "He lifted his head off the pillow and, in very strong terms, expressed his view of the matter, rich in both substance and fact … drawn from the hourlong meeting we'd had a week earlier … 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.'" Card and Gonzales then left, he said. According to Comey, Card called later to angrily demand that he meet him at the White House. "I responded that, after the conduct I had just witnessed, I would not meet with him without a witness," Comey said. "He replied, 'What conduct? We were just there to wish him well,'–Comey testified. "And I said again, 'After what I just witnessed, I will not meet with you without a witness." Comey then tracked down Solicitor General Theodore B. Olson at a dinner party, and Olson agreed to be the witness. After meeting with other Justice officials at department headquarters, Comey said he and Olson headed to the White House at about 11pm but that nothing was resolved. Comey said the White House renewed the program the next day without his approval. With the White House disregarding the Justice Department's legal advice, Comey said, he, Ashcroft, Mueller and several other senior Justice officials made plans to resign. They relented only after Bush agreed to restructure the program after meetings with Comey and Mueller the next day. Comey's testimony–at a Senate Judiciary Committee hearing called to scrutinize the firing of eight US attorneys last year–added fuel to the debate about whether Gonzales is fit to run the Justice Department. "I would say what happened in that hospital room crystallized Mr. Gonzales' view about the rule of law: that he holds it in minimum low regard," Sen. Charles E. Schumer (D-NY), a leading Gonzales critic, said at the hearing. "It's hard to understand after hearing this story how Atty. Gen. Gonzales could remain as attorney general, how any president–Democrat, Republican, liberal, conservative–could allow him to continue." Some observers said Comey's testimony reinforced a view of Gonzales as someone who is loyal to Bush and little else. "The picture he painted of department leaders … standing up to pressure from the White House, ready to quit rather than give up their principled view of what the law required, stands in stark contrast to the picture that has emerged from Gonzales' tenure," said Daniel Richman, a Fordham law school professor and former federal prosecutor. Vice President Dick Cheney and his chief counsel, David Addington, also challenged the Justice Department's stand on the legality of the program, which was intended to detect terrorist threats and would have expired on Mar. 11, 2004, if Bush hadn't reauthorized it. The revelations dealt a new blow to Gonzales' efforts to keep his job as Ashcroft's successor amid congressional and Justice Department investigations into whether he's politicized his agency with the pursuit of alleged voter fraud, the screening of job applicants based on their party affiliations, and the firings of eight US attorneys, which Gonzales said were overseen by Comey's successor, Paul McNulty. Comey's testimony also raised new questions about the administration's repeated assurances that the monitoring program has been conducted legally and that US citizens' constitutional right to privacy has been fully respected. Comey declined to declare Bush's decision to reauthorize the program without the Justice Department's certification illegal. He noted, however, that such legal opinions are normally binding across the entire executive branch.