White House recertified counterterrorism program without DOJ backing
The Hill
By Klaus Marre
May 15, 2007

A former top Department of Justice (DoJ) official on Tuesday provided a firsthand account of how the White House recertified a controversial counterterrorism program without the approval of DoJ — a decision that almost led to the resignation of the department's leadership.

Former Deputy Attorney General James Comey testified before the Senate Judiciary Committee on the firing of several U.S. attorneys and provided his side of a story that Sen. Charles Schumer (D-N.Y.) called both "amazing" and "shocking."

At the heart of the story is what Comey viewed as the White House's efforts to circumvent his refusal to sign off on the recertification of a controversial counterterrorism program.

To achieve that goal, Alberto Gonzales — the former White House chief counsel and current attorney general — and former White House Chief of Staff Andy Card visited the bedside of an ill John Ashcroft, who at the time was attorney general, to get him to overrule Comey's decision. Comey, who was the acting attorney general and was on the same page with Ashcroft regarding the decision, had informed the White House that DoJ would not back recertification of the program.

While Comey refused to say which program was being discussed, Sen. Arlen Specter (R-Pa.) said later in the hearing that the program in question was the administration's controversial warrantless surveillance program run by the National Security Agency (NSA).

But previous testimony by Gonzales suggested that this particular dispute dealt with another counterterrorism program distinct from the NSA effort. In April 2006, Gonzales discussed the same Ashcroft episode before the House Judiciary Committee and asserted that "the disagreement that existed does not relate to the program the president confirmed in December to the American people."

While divulging no further details on that question, Comey testified that he was "angry" at what he viewed as the White House's "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."

When Comey found out that Gonzales and Card would visit Ashcroft, he rushed to the hospital to make sure that they would not take advantage of his condition to get him to overrule the DoJ decision.

"And it was only a matter of minutes that the door opened and in walked Mr. Gonzales, carrying an envelope, and Mr. Card," Comey testified. "They came over and stood by the bed. They greeted the attorney general very briefly. And then Mr. Gonzales began to discuss why they were there — to seek his approval for a matter — and explained what the matter was, which I will not do."

"And Attorney General Ashcroft then stunned me," Comey said. "He lifted his head off the pillow and in very strong terms expressed his view of the matter, rich in both substance and fact, which stunned me — drawn from the hour-long meeting we'd had a week earlier — and in very strong terms expressed himself, and then laid his head back down on the pillow, seemed spent."

Comey added that Ashcroft then said, "‘But that doesn't matter, because I'm not the attorney general. There is the attorney general,' and he pointed to me, and I was just to his left."

According to Comey, Gonzales and Card did not acknowledge him and left the room. On the next day, the White House reauthorized the program "without a signature from the Department of Justice attesting as to its legality," Comey stated.

Under questioning Tuesday, the former acting attorney general stopped short of saying that the program was illegal, stating only that "it went forward without certification from the Department of Justice as to its legality."

As a result of the events, Comey prepared his letter of resignation. "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 also testified that other top DoJ officials were prepared to resign over the issue, including Ashcroft and FBI Director Robert Mueller.

Comey said that in the end, after meetings with the White House, President Bush helped smooth things over by meeting privately with him and Mueller and then directing them to "do the right thing."

Reacting to the testimony, White House spokesman Tony Snow told reporters that the terrorist surveillance program had "multiple layers of review both within the Department of Justice and the National Security Agency."

Said Snow: "Jim Comey can talk about whatever reservations he may have had, but the fact is that there were strong protections in there; this is a program that saved lives, that is vital for national security and, furthermore, has been reformed in a bipartisan way."

Original Text