General John Ashcroft was in the hospital recovering from serious gallbladder surgery. Before entering the hospital, he had transferred the powers of attorney general to his deputy. Comey’s refusal to certify the legality of the NSA program thus left the Bush administration without legal cover. After all, the second-highest ranking DOJ official was insisting that their actions broke the law, and had told White House officials that Ashcroft—who had previously signed off on the program—now agreed with his assessment.
The aspect of Comey’s testimony that received the most media attention was his dramatic tale—later confirmed by all parties—of how President Bush sent Gonzales and Chief of Staff Andrew Card to Ashcroft’s hospital room, where Ashcroft was barely lucid, in order to induce him to sign off on the program. Upon hearing that the president had dispatched his two aides on this mission, Comey rushed to the hospital, explaining that he did not trust Gonzales and Card to be alone in the room with Ashcroft. Indeed, so distrustful were Comey and FBI director Robert Mueller of the lengths to which Gonzales and Card might go in order to extract Ashcroft’s signature that, Comey explained, “Director Mueller instructed the FBI agents present not to allow me to be removed from the room under any circumstances.”
Comey arrived at the hospital immediately before Gonzales and Card. When the two White House officials entered the room and demanded that Ashcroft certify the legality of the NSA program, the attorney general lifted his head from his pillow and announced that he refused to override Comey’s judgment. Though he was clearly mentally and physically impaired—Comey said he had “witnessed an effort to take advantage of a very sick man”—Ashcroft informed Gonzales and Card that he agreed with Comey that the spying program was illegal, and that, in any event, it was Comey’s call to make.
The media’s fixation on this hospital melodrama obscured the substance of Comey’s monumentally important revelations. Hearing from his own Justice Department that his spying program was in violation of criminal law did not faze Bush. Instead, vividly demonstrating his complete indifference to the rule of law and his confidence that he was free to violate it at will, Bush ordered the NSA spying program to go on even in the face of the emphatic conclusion of his own top DOJ appointees that it was illegal.
In response, Comey and the entire top level of Bush’s Justice Department team—including Ashcroft, FBI director Mueller, and Jack Goldsmith, the newly appointed chief of the Office of Legal Counsel—threatened to resign en masse unless Bush immediately put an end to the unlawful spying. This was in March of 2004, the year Bush was running for reelection, and he concluded that he could not afford to suffer a public scandal of that magnitude. As a result, though he refused to terminate the program completely, Bush agreed to “refashion” it so as to pacify Comey, Ashcroft, and the others.
A month later, these rebelling DOJ officials signed off on Bush’s newly “refashioned” program. And it was this “modified” approach that the New York Times exposed in December 2005 to such great controversy.
To date, we still don’t know what the original program entailed. In 2007, Marty Lederman, then a Georgetown law professor, asked in a piece titled “Can You Even Imagine How Bad It Must Have Been?”: “Just how radical were the Administration’s legal judgments? How extreme were the programs they implemented? How egregious was the lawbreaking?” Given that the DOJ protesters were eventually willing to endorse the spying program that the New York Times reported on, the activities that almost prompted their resignation must have been illegal in the extreme.
Such shocking revelations made even the most cynical civil libertarians doubtful that McConnell’s mid-2007 demands for a new FISA law that would
The aspect of Comey’s testimony that received the most media attention was his dramatic tale—later confirmed by all parties—of how President Bush sent Gonzales and Chief of Staff Andrew Card to Ashcroft’s hospital room, where Ashcroft was barely lucid, in order to induce him to sign off on the program. Upon hearing that the president had dispatched his two aides on this mission, Comey rushed to the hospital, explaining that he did not trust Gonzales and Card to be alone in the room with Ashcroft. Indeed, so distrustful were Comey and FBI director Robert Mueller of the lengths to which Gonzales and Card might go in order to extract Ashcroft’s signature that, Comey explained, “Director Mueller instructed the FBI agents present not to allow me to be removed from the room under any circumstances.”
Comey arrived at the hospital immediately before Gonzales and Card. When the two White House officials entered the room and demanded that Ashcroft certify the legality of the NSA program, the attorney general lifted his head from his pillow and announced that he refused to override Comey’s judgment. Though he was clearly mentally and physically impaired—Comey said he had “witnessed an effort to take advantage of a very sick man”—Ashcroft informed Gonzales and Card that he agreed with Comey that the spying program was illegal, and that, in any event, it was Comey’s call to make.
The media’s fixation on this hospital melodrama obscured the substance of Comey’s monumentally important revelations. Hearing from his own Justice Department that his spying program was in violation of criminal law did not faze Bush. Instead, vividly demonstrating his complete indifference to the rule of law and his confidence that he was free to violate it at will, Bush ordered the NSA spying program to go on even in the face of the emphatic conclusion of his own top DOJ appointees that it was illegal.
In response, Comey and the entire top level of Bush’s Justice Department team—including Ashcroft, FBI director Mueller, and Jack Goldsmith, the newly appointed chief of the Office of Legal Counsel—threatened to resign en masse unless Bush immediately put an end to the unlawful spying. This was in March of 2004, the year Bush was running for reelection, and he concluded that he could not afford to suffer a public scandal of that magnitude. As a result, though he refused to terminate the program completely, Bush agreed to “refashion” it so as to pacify Comey, Ashcroft, and the others.
A month later, these rebelling DOJ officials signed off on Bush’s newly “refashioned” program. And it was this “modified” approach that the New York Times exposed in December 2005 to such great controversy.
To date, we still don’t know what the original program entailed. In 2007, Marty Lederman, then a Georgetown law professor, asked in a piece titled “Can You Even Imagine How Bad It Must Have Been?”: “Just how radical were the Administration’s legal judgments? How extreme were the programs they implemented? How egregious was the lawbreaking?” Given that the DOJ protesters were eventually willing to endorse the spying program that the New York Times reported on, the activities that almost prompted their resignation must have been illegal in the extreme.
Such shocking revelations made even the most cynical civil libertarians doubtful that McConnell’s mid-2007 demands for a new FISA law that would
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