Initial Warrantless Eavesdropping Program Deemed Illegal by the Justice Department

By Jonathan S. Landay and Marisa Taylor
McClatchy Newspapers

Tuesday 15 May 2007

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.