Former DOJ Official: Gonzales and Cheney Staff Subverted Warrantless Wiretapping Program
Raw Story
Michael Roston
May 15, 2007

The former second-in-command at the Justice Department from 2003 through 2005 on Tuesday detailed a March 2004 incident in which top members of the Bush administration, including Alberto Gonzales and members of Vice President Dick Cheney's staff, worked to subvert a legal certification process for the National Security Agency's warrantless wiretapping program. One Republican senator compared the episode to President Richard Nixon's efforts to disrupt the Watergate investigation.

James Comey was the Deputy Attorney General first under Attorney General John Ashcroft, and briefly under Alberto Gonzales. He testified before the Senate Judiciary Committee Tuesday as part of continuing oversight pertaining to the firing of US Attorneys by the Bush administration.

However, most of the hearing focused on a March 2004 incident concerning a deadline for an internal authorization at the Justice Department of the legality of the warrantless domestic spying program of the National Security Agency. The deadline for the legal certification of the domestic spying program, called the 'Terrorist Surveillance Program' by the Bush administration, was approaching, and Comey as Acting Attorney General refused to approve it.

"[The program] went forward without certification from the Department of Justice as to its legality," Comey told Senator Arlen Specter (R-PA) in explaining his threat to resign over the incident in 2004.

"I can understand why you would feel compelled to resign in that context, once a decision had been made by the executive branch, presumably by the President...something was going forward that was illegal," Specter, the Ranking Judiciary Committee Republican, said in response.

Specter remarked earlier that the incident reminded him of Nixon's style of governance.

"It has some of the characteristics of the 'Saturday night massacre,'" the Pennsylvania Republican said, referring to President Nixon's purge of investigators of the Watergate break-in in 1973, which ultimately led to Nixon's near impeachment and eventual resignation from office.

"The story is a shocking one. It makes you almost gulp," Senator Charles Schumer (D-NY) had said after Comey recounted his experience. "When we have a situation where the laws of this country...are not respected because somebody thinks there's a higher goal, we run askew of the very purpose of what democracy and rule of law are about."

In early March 2004, Ashcroft had been incapacitated, and was in the hospital, resulting in Comey serving as Acting Attorney General until Ashcroft was able to return to office.

Subsequently, Gonzales, serving then as White House Counsel, and Andrew Card, former White House Chief of Staff, arrived at Ashcroft's hospital bed, and asked the sick Attorney General to give his approval for the program. Ashcroft stated his strong opposition to the re-authorization. But then he added that his opinion was not important.

"But that doesn't matter, because I'm not the Attorney General, there's the Attorney General," Comey claimed Ashcroft said, with Ashcroft pointing at the Deputy Attorney General who was in the hospital room at the time. "The two men did not acknowledge me, they turned and walked from the room."

Comey was called to the White House by Card almost immediately thereafter, but said he would not meet Card without Solicitor General Theodore Olson as a witness because the Acting Attorney General was concerned with the conduct of the top White House officials.

"I was angry, I thought I had 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," he explained.

Comey further explained that a "large number" of officials within the Justice Department were threatening to resign as a consequence of the incident, including Comey.

Specter asked Comey who disagreed with his refusal to authorize the spying program other than Gonzales and Card. The former Deputy Attorney General said that Vice President Dick Cheney and his Chief of Staff, David Addington both made their opposition known to him. He said neither explicitly threatened him.

On Thursday, March 11, 2004, the same day as the Madrid train bombings by al Qaida-linked terrorists, the legality of the spying program was reauthorized by the White House without Justice Department approval, and Comey prepared a letter of resignation. However, he served through 2005.

In response to questioning from Senator Dianne Feinstein (D-CA), Comey also said the program operated for two to three weeks without Justice Department authorization.

Comey's account confirmed some details of a 2006 New York Times story. Lichtblau and Risen's 2006 account of the episode, which Comey did not confirm at the time, is available at this link. Lichtblau and Risen won the Pulizer Prize in 2006 for earlier reporting on the NSA's warrantless wiretapping program.

During questioning with Senator Schumer, Comey said he had only earlier discussed this incident in the course of an FBI investigation into a leak. He did not say if the leak dealt with Lichtblau and Risen's reporting on the warrantless wiretapping programs, or if he was the source of the leaks that brought it into the open.

Throughout the hearing, Comey also refused to confirm that the warrantless wiretapping program was the subject of the March 2004 incident in question, though the senators in the hearing referred to it on a number of occasions. Senator Specter suggested that closed hearings might be needed to further delve into the matter.

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