Making Sense of Comey

One of today’s news stories was the testimony of former Deputy Attorney General James Comey before the Senate Judiciary Committee. The committee purported to be calling Comey to testify on the matter of the fired U.S. Attorneys, but that wasn’t what took up the bulk of his testimony, nor was it what garnered headlines, for example, in the New York Times: “Gonzales Pressed Ailing Ashcroft on Spy Plan, Aide Says.”
The main substance of Comey’s testimony related to the memorable evening of March 10, 2004, when Andy Card and Alberto Gonzales went to the hospital to try to get Attorney General John Ashcroft to sign a reauthorization of the NSA’s international terrorist surveillance program. Paul describes this rather sensational testimony below.
But what does it all mean? You can piece the story together if you read Comey’s testimony carefully. The program in question, while Comey declined to identify it, was obviously the NSA surveillance program, which required reauthorization, pursuant to President Bush’s order, every 45 days. The NSA’s international terrorist surveillance started almost immediately after September 11, 2001. Attorney General Ashcroft had certified its legality every 45 days thereafter, a total of approximately 19 or 20 times.
By March 2004, when the events described by Comey occurred, the NSA program had been in operation for 2 1/2 years, continuously certified as legal by the Department of Justice. It’s no wonder that President Bush and his staff thought the program was legal. So why did DOJ raise a legal problem so long after the fact? In an exchange that has not been widely reported, Comey answered that question:

It was simply the pace at which the work went on in the Office of Legal Counsel. We had a new assistant attorney general as of, I think, October of 2003. *** And the work got done in the beginning part of 2004. *** Concerns had reached the ears of the new assistant attorney general. And he undertook an examination–with my approval and with Attorney General Ashcroft’s approval–of this matter.

The problem apparently–based on an exchange between Chuck Schumer and Comey–had to do with the way in which the NSA program was being administered or overseen at that time.
The timing here is important. Comey explained that it was immediately before Ashcroft was stricken with pancreatitis that he and Ashcroft came to the conclusion that they could not certify the legality of the NSA program, given the conclusions of the Department’s recent review. Comey described his conversation with Ashcroft, in which that conclusion was reached, and continued:

The Attorney General was taken that very afternoon to George Washington Hospital, where he went into intensive care and remained there for over a week. And I became the acting attorney general.
And over the next week–particularly the following week, on Tuesday–we communicated to the relevant parties at the White House and elsewhere our decision that as acting attorney general I would not certify the program as to its legality and explained our reasoning in detail….
That was Tuesday that we communicated that. The next day was Wednesday, March the 10th, the night of the hospital incident.

This strikes me as the information that is vital to understand what likely happened. Attorney General John Ashcroft had certified, over and over, that the NSA program was legal. Suddenly, Ashcroft was taken ill. The next thing that happened, according to Comey, was that Comey notified the White House that he would not sign the certification that Ashcroft had signed some 20 times. Comey did not say–amazingly, no one asked him–whether he ever told the White House that Ashcroft had agreed with this conclusion on the very day when he was taken to the hospital.
So it is hardly surprising if, confronted with sudden intransigence from a brand-new, acting attorney general, Alberto Gonzales and Andy Card thought that the problem lay with Comey’s staging a sort of palace coup. It may well have been reasonable for them to go to see Ashcroft to get the same certification they had gotten many times before.
When they got to the hospital, they found that Ashcroft seconded Comey’s legal concerns, based on the review that had just been completed. That caused some confusion, no doubt, but it led to the White House meeting between Comey and President Bush, followed by a meeting between Bush and FBI Director Robert Mueller. The upshot of those meetings was that Bush, apprised of the results of DOJ’s legal review, told Comey to do what he thought was right.
Bush reauthorized the NSA program, but immediately thereafter, Comey says, the program was revised in some unspecified way to satisfy the DOJ’s new concerns. Subsequently, the program continued to be reauthorized and recertified by DOJ every 45 days.
So if you put the whole sequence together, it may well be that no actor in this admittedly lurid drama did anything wrong. Ashcroft and Comey apparently decided to go along with the conclusions of the Office of Legal Counsel and insist on changes in the program. Nothing wrong with that. Gonzales and Card may well not have known of Ashcroft’s changed opinion, arrived at on the same day he went to the hospital–this is a key fact we don’t know–and thought that Comey was trying to reverse his boss’s judgment. So they went to see Ashcroft personally. Nothing wrong with that, as far as we know. Ashcroft set them straight; nothing wrong with that. (It’s worth noting that Comey described Ashcroft’s performance as a demonstration of physical and moral strength that was unprecedented in his experience.) President Bush then got into the act, learned the facts, and told Comey to do whatever he thought was right as acting Attorney General. Nothing wrong with that; on the contrary. The NSA program was revised to satisfy DOJ’s concerns, and continued in effect, protecting Americans from terrorist attack, to the present time. Nothing wrong with that, to say the least.
This is not, of course, the story you will get from the fragmentary and incoherent accounts that are appearing in the press.
One more point: Senator Schumer made a prolonged attempt to get Comey to say that it was illegal for the administration to continue, briefly, the NSA program without DOJ certification of legality. Democrats and others on the left will undoubtedly claim that they now have proof of the program’s “illegality.” But Comey refused to go along with this theory. He pointed out that DOJ certification was not a legal requirement. Rather, the DOJ process was part of the procedure that President Bush established by executive order. Thus, it was perfectly legal for the program to continue in the brief absence of DOJ certification, pursuant to the order of that same executive.
It’s an interesting story. But, based on what we know, it is not clear that there is anything discreditable anywhere in it.

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