Tuesday May 15, 2007
By Jonathan S. Landay and Marisa Taylor
McClatchy Newspapers
Controversy has followed eavesdropping program
WASHINGTON - 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 Tuesday.
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.
Comey said 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. Ashcroft
refused.
"I was angry. I thought I had just witnessed an effort
to take advantage of a very seriously sick man, who did not
have the powers of the attorney general because they had been
transferred to me," Comey recalled. "I thought it
was improper."
Comey, who'd assumed Ashcroft's powers on an acting basis,
had raced ahead of Gonzales and Card to the George Washington
University Hospital, his car's emergency lights flashing, and
dashed up the stairs to Ashcroft's room, trailed by his security
detail.
"That night was probably the most difficult time of my
professional life," Comey recalled.
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 March 11, 2004, if Bush hadn't reauthorized
it, he said.
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 U.S. attorneys, which Gonzales said Tuesday
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 Americans' 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.
After the Sept. 11, 2001, attacks, the administration began
monitoring without court approval the international telephone
calls and e-mails of Americans whom it suspected of belonging
to or supporting al-Qaida, under the so-called Terrorist Surveillance
Program.
In March 2004, however, a Justice Department review raised
serious concerns that led Ashcroft, Comey and other top officials
to withhold their department's legal certification when the
program came up for a periodic reauthorization.
Gonzales and Card attempted to do a "end-run" around
Comey and other Justice Department officials and reach Ashcroft
on the day he was rushed to the intensive care unit of the
George Washington University Hospital, Comey said.
Comey said that Ashcroft's wife had banned all calls and visitors
to her husband, but that a call from the White House - possibly
from Bush himself - asked that Gonzales and Card be admitted.
Ashcroft's chief of staff then notified Comey of the impending
visit.
The two returned to the White House after Ashcroft refused
to sign off on the program. Comey said he then received a telephone
call from a "very upset" Card summoning him to the
executive mansion.
"I responded that after the conduct I had just witnessed
I would not meet with him without a witness present," Comey
recalled. "He (Card) replied, `What conduct? We were just
there to wish him well.'"
Comey insisted that he be accompanied by Theodore Olson, then-U.S.
solicitor general, the lawyer who represented the government
before the Supreme Court.
Card and Gonzales tried to persuade Comey to sign off on the
program, which was to have expired the following day unless
it was reauthorized, but he declined and decided to resign,
which he did after Ashcroft recovered from his illness.
"The program was reauthorized without us," he said. "I
believed that I couldn't stay if the administration was going
to engage in conduct that the Department of Justice had said
had no legal basis."
Comey said he and Mueller expressed their concerns - which
he declined to disclose - to Bush in separate meetings on March
12, and persuaded him to allow the Justice Department to make
fixes that took up to three weeks to complete.
White House spokesman Tony Snow brushed aside Comey's testimony,
saying the White House wouldn't discuss internal deliberations.
"Jim Comey can talk about whatever reservations he may
have had, but the fact is that there were strong protections
in there," Snow said. "The fact is, you've got somebody
who has splashy testimony on Capitol Hill. Good for him."
Ashcroft, now in private practice, declined to comment.
The Justice Department also refused to discuss Comey's revelations.
"We cannot comment on internal discussions that may or
may have not taken place concerning classified intelligence
activities," said spokesman Dean Boyd. "The Terrorist
Surveillance Program was a vital intelligence program that
helped detect and prevent terrorist attacks. It was always
subject to rigorous oversight and review."
Democratic lawmakers said that they were more determined to
investigate the eavesdropping program and Gonzales' stewardship
of the Justice Department.
Comey's account was "some of the most powerful testimony
I've heard in 25 years as a legislator," said Sen. Russ
Feingold, D-Wis.
The only Republican member at the hearing, Sen. Arlen Specter
of Pennsylvania, who's declared the eavesdropping program illegal,
praised Comey for standing up to the White House.
Comey agreed to testify again before the committee in a closed
session.
The secret eavesdropping program has been engulfed in controversy
since The New York Times disclosed its existence in December
2005.
Some parts of Comey's account have appeared in previous news
reports, attributed to anonymous sources. But his testimony
provided the first in-depth description of the fight between
the White House and the Justice Department over the program.
Democrats, civil rights organizations and some Republican
lawmakers have questioned the program's legality, saying it
violates a 1978 federal law that requires U.S. officials to
obtain warrants from a secret court before they can monitor
U.S. citizens' international communications.
After the program was disclosed, the administration contended
that Bush had the ability to authorize the program because
his constitutional power to protect national security trumped
the federal statute.
In January, however, the administration shifted its position,
saying that it had gone to the secret Foreign Intelligence
Surveillance Court to secure approval of the program and would
no longer eavesdrop without warrants.
McClatchy Newspapers correspondent Margaret Talev contributed
to this report.
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