Ailing Ashcroft Pressured on Spy Program,
Former Deputy Says:
By Dan Eggen and Paul Kane
Washington Post Staff Writers
Wednesday, May 16, 2007; A01
On the night of March 10, 2004, as Attorney General John D.
Ashcroft lay ill in an intensive-care unit, his deputy, James
B. Comey, received an urgent call.
White House Counsel Alberto R. Gonzales and President Bush's
chief of staff, Andrew H. Card Jr., were on their way to the
hospital to persuade Ashcroft to reauthorize Bush's domestic
surveillance program, which the Justice Department had just
determined was illegal.
In vivid testimony to the Senate Judiciary Committee yesterday,
Comey said he alerted FBI Director Robert S. Mueller III and
raced, sirens blaring, to join Ashcroft in his hospital room,
arriving minutes before Gonzales and Card. Ashcroft, summoning
the strength to lift his head and speak, refused to sign the
papers they had brought. Gonzales and Card, who had never acknowledged
Comey's presence in the room, turned and left.
The sickbed visit was the start of a dramatic showdown between
the White House and the Justice Department in early 2004 that,
according to Comey, was resolved only when Bush overruled Gonzales
and Card. But that was not before Ashcroft, Comey, Mueller
and their aides prepared a mass resignation, Comey said. The
domestic spying by the National Security Agency continued for
several weeks without Justice approval, he said.
"I was angry," Comey testified. "I thought
I just witnessed an effort to take advantage of a very sick
man, who did not have the powers of the attorney general because
they had been transferred to me."
The broad outlines of the hospital-room conflict have been
reported previously, but without Comey's gripping detail of
efforts by Card, who has left the White House, and Gonzales,
now the attorney general. His account appears to present yet
another challenge to the embattled Gonzales, who has strongly
defended the surveillance program's legality and is embroiled
in a battle with Congress over the dismissals of nine U.S.
attorneys last year.
It also marks the first public acknowledgment that the Justice
Department found the original surveillance program illegal,
more than two years after it began.
Gonzales, who has rejected lawmakers' call for his resignation,
continued yesterday to play down his own role in the dismissals.
He identified his deputy, Paul J. McNulty, who announced his
resignation Monday, as the aide most responsible for the firings.
"You have to remember, at the end of the day, the recommendations
reflected the views of the deputy attorney general," Gonzales
said at the National Press Club. "The deputy attorney
general would know best about the qualifications and the experiences
of the United States attorneys community, and he signed off
on the names," he added.
Those comments appear to differ, at least in emphasis, from
earlier remarks by Gonzales, who has previously laid much of
the responsibility for the dismissals on his ex-chief of staff,
D. Kyle Sampson. They stand in contrast to testimony and statements
from McNulty, who has acknowledged signing off on the firings
but has told Congress he was surprised when he heard about
the effort.
The Justice Department and White House declined to comment
in detail on Comey's testimony, citing internal discussions
of classified activities.
The warrantless eavesdropping program was approved by Bush
after the Sept. 11, 2001, attacks. It allowed the NSA to monitor
e-mails and telephone calls between the United States and overseas
if one party was believed linked to terrorist groups. The program
was revealed in late 2005; Gonzales announced in January that
it had been replaced with an effort that would be supervised
by a secret intelligence court.
The crisis in March 2004 stemmed from a review of the program
by the Justice Department's Office of Legal Counsel, which
raised "concerns as to our ability to certify its legality," according
to Comey's testimony. Ashcroft was briefed on the findings
on March 4 and agreed that changes needed to be made, Comey
said.
That afternoon, Ashcroft was rushed to George Washington University
Hospital with a severe case of gallstone pancreatitis; on March
9, his gallbladder was removed. The standoff between Justice
and White House officials came the next night, after Comey
had refused to certify the surveillance program on the eve
of its 45-day reauthorization deadline, he testified.
About 8 p.m. on March 10, Comey said that his security detail
was driving him home when he received an urgent call from Ashcroft's
chief of staff, David Ayres, who had just received an anxious
call from Ashcroft's wife, Janet. The White House -- possibly
the president -- had called, and Card and Gonzales were on
their way.
Furious, Comey said he ordered his security detail to turn
the car toward the hospital, careening down Constitution Avenue.
Comey said he raced up the stairs of the hospital with his
staff, beating Card and Gonzales to Ashcroft's room.
"I was concerned that, given how ill I knew the attorney
general was, that there might be an effort to ask him to overrule
me when he was in no condition to do that," Comey said,
saying that Ashcroft "seemed pretty bad off."
Mueller, who also was rushing to the hospital, spoke by phone
to the security detail protecting Ashcroft, ordering them not
to allow Card or Gonzales to eject Comey from the hospital
room.
Card and Gonzales arrived a few minutes later, with Gonzales
holding an envelope that contained the executive order for
the program. Comey said that, after listening to their entreaties,
Ashcroft rebuffed the White House aides.
"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," Comey said. Then, he said,
Ashcroft added: "But that doesn't matter, because I'm
not the attorney general. There is the attorney general," and
pointed at Comey, who was appointed acting attorney general
when Ashcroft fell ill.
Later, Card ordered an 11 p.m. meeting at the White House.
But Comey said he told Card that he would not go on his own,
pulling then-Solicitor General Theodore Olson from a dinner
party to serve as witness to anything Card or Gonzales told
him. "After the conduct I had just witnessed, I would
not meet with him without a witness present," Comey testified. "He
replied, 'What conduct? We were just there to wish him well.' "
The next day, as terrorist bombs killed more than 200 commuters
on rail lines in Madrid, the White House approved the executive
order without any signature from the Justice Department certifying
its legality. Comey responded by drafting his letter of resignation,
effective the next day, March 12.
"I couldn't stay if the administration was going to engage
in conduct that the Department of Justice had said had no legal
basis," he said. "I just simply couldn't stay." Comey
testified he was going to be joined in a mass resignation by
some of the nation's top law enforcement officers: Ashcroft,
Mueller, Ayres and Comey's own chief of staff.
Ayres persuaded Comey to delay his resignation, Comey testified. "Mr.
Ashcroft's chief of staff asked me something that meant a great
deal to him, and that is that I not resign until Mr. Ashcroft
was well enough to resign with me," he said.
The threat became moot after an Oval Office meeting March
12 with Bush, Comey said. After meeting separately with Comey
and Mueller, Bush gave his support to making changes in the
program, Comey testified. The administration has never disclosed
what those changes were.
Staff researcher Julie Tate contributed to this report.
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