Making Ashcroft look like an ACLU member by comparison

As part of the NSA’s warrantless-search program, which allowed domestic surveillance without court approval, the Justice Department had to sign off on the program every 45 days. Over a year ago, the NYT reported on a fascinating development that occurred in early 2004 — then-Attorney General John Ashcroft was in the hospital with pancreatitis and his power had been transferred to his deputy, James Comey. When it came time to sign off on the warrantless searches, Comey balked, insisting that they were illegal.

Andy Card, then-WH Chief of Staff, and Alberto Gonzales, then-WH Counsel, literally went to Ashcroft’s hospital room, shortly after his surgery, to get him to approve the program and override Comey’s decision. As Paul Kiel explained, we learned some stunning details about what transpired this morning, when Comey testified before the Senate Judiciary Committee.

The deadline for the Justice Department’s providing its sign-off of the program was March 11th (the program required reauthorization every 45 days). On that day, Comey, then the acting AG, informed the White House that he “would not certify the legality” of the program.

According to Comey, he was on his way home when he got a call from Ashcroft’s wife that Alberto Gonzales and Andrew Card were on their way to the hospital [according to Comey, the call to Ashcroft’s wife that Gonzales and Card were on their way to the hospital came from the president himself]. Comey then rushed to the hospital (sirens blaring) to beat them there and thwart “an effort to overrule me.”

After Comey arrived at the hospital with a group of senior Justice Department officials, Gonzales and Card arrived and walked up to Ashcroft, who was lying barely conscious on his hospital bed. “Gonzales began to explain why he was there, to seek his approval for a matter,” Comey testified.

Ashcroft, still weak from surgery, rebuffed Card and Gonzales, saying they’d have to deal with Comey because, at that moment, he had all the power of the Attorney General.

Card then called Comey to the principal’s office the White House.

After meeting with Justice Department officials at the Justice Department, Comey went to the White House with Ted Olson, then the Solicitor General to the White House. He brought Olson along, Comey said, because he wanted a witness for the meeting.

But Card didn’t let Olson enter and Comey had a private discussion with Card. This discussion, Comey testified, was much “calmer.” According to Comey, Card was concerned about reports that there were to be large numbers of resignations at Justice Department. Gonzales entered with Olson and the four had an apparently not very fruitful discussion.

The program was reauthorized without the signature of the attorney general. Because of that, Comey said, he prepared a letter of resignation. “I believed that I couldn’t stay if the administration was going to engage in conduct that Justice Department said had no legal basis.”

Got that? The surveillance was already underway without court approval, and then the White House decided it didn’t need the Justice Department either. The NSA program, at that point, was operating purely because the president said it could, despite the objections of the acting Attorney General.

Two other thoughts to consider:

1. I never thought I’d say it, but Gonzales has managed to make Ashcroft look like a man of integrity and principle.

2. Sen. Chuck Schumer (D-N.Y.) responded to Comey’s story by asking again how how Gonzales could remain as the AG, since he evidently had so little respect for the rule of law.