Former Deputy Attorney General James Comey apparently provided dramatic testimony to the Senate today about events surrounding the formulation of the NSA surveillance intercept program. According to Comey (if I understand this correctly), the drama arose because lawyers in the White House wanted an intercept program that lawyers at the Department of Justice did not want to approve. Ultimately, it seems that Comey and Jack Goldsmith, the head of DOJ’s office of legal counsel, took the dispute to Attorney Generral Ashcroft, who was ill and hospitalized. Soon thereafter, Alberto Gonzales (then White House cousnel) and Andrew Card (then White House chief of staff) arrived and started arguing their side to Ashcroft. Ashcroft apparently sided with his people on the merits and also declared that, since Comey was the acting AG, the call was his. Thus, the White House did not get DOJ’s approval. According to Comey, he later was able to pursuade President Bush, in a one-on-one meeting, not to proceed with the plan DOJ had declined to sign-off on. It sounds like resignation threats were also in the picture.
I’m basing this account on a post by Orin Kerr at the Volokh Conspiracy. Here is the transcript of the hearing, which I have not had time to review.
UPDATE: I’ve read the transcript, and my initial account is a little off. According to Comey, Ashcroft had already resolved the issue in favor of what Comey and Goldsmith were recommending before he became ill and went into the hospital, though it’s not clear to me whether Gonzales knew this. Thus, it was Gonzales and Card who brought the matter to the hospital. Comey was there, he testified, because he rushed over to the hospital after receiving a concerned call from Ashcroft’s wife alerting him that Gonzales would be coming.
A few preliminary observations. It’s not clear (at least to me) what version of an NSA intercept program Gonzales wanted, so I can’t opine on the merits of his dispute with the Justice Department. I’m a fan of Jack Goldsmith’s work, so if he thought the White House proposal violated the law there must at least have been a substantial concern, but that’s about all I can say.
Regardless of the merits, this story casts John Ashcroft in a heroic light and I hope he gets credit for being so principled. Before opining on Gonzales’ role, I’d like to hear his version of the facts. But let’s take Comey’s version to be completely true for now.
It seems to me that Gonzales had the right, as a general matter, to raise this matter with Ashcroft. However, it would have been wrong for Gonzales to try to get Ashcroft’s approval if he knew or should have known that, due to illness, Ashcroft was unable properly to consider the matter. This is what Comey feared was going to happen when he rushed to the hospital, and it seems to be what Comey came to think was happening after Gonzales arrived (I don’t understand, though, how Gonzales could have gotten Ashcroft to reverse the DOJ’s position if he was no longer the AG — did Gonzales not realize this?). However, nothing in Comey’s account (which, admittedly, I read quickly) convinces me that Comey’s impresssion is correct. Ashcroft was able to address the matter very cogently, although in Comey’s plausible account he would rather not have had to.
Bureaucratic in-fighting is a Washington art form. Even Washington outsiders like me can tell plenty of tales on the subject. Gonzales may have crossed the line that separates zealous advocacy on a matter crucial to national security from unconscionable behavior, but I don’t conclcude from Comey’s account that he did.
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