Dramatic Testimony: Did White House Break the Law with the NSA Wiretapping Program?

It's not every day a former deputy attorney general testifies that the White House violated the law--and did so knowingly. But that seemed to happen this morning when former Deputy Attorney General James Comey testified before the Senate judiciary committee about the once-secret NSA warrantless wiretapping program that targeted citizens and residents in the United States. Comey's testimony to the committee was dramatic--mainly because he recounted a night in 2004 when then-White House chief of staff Andrew Card and then-White House counsel Alberto Gonzales barged into a hospital room where a very sick John Ashcroft, then the attorney general, was in bed, suffering from pacreatitis. The two had come to obtain Ashcroft's approval of this wiretapping program (which had to be reauthorized on a regular basis by the attorney general). But Comey and Ashcroft a week earlier had concluded that there were legal problems with the program and that they could not recertify it unless there were changes to the program. At this moment, though, time was running out for the White House. The authorization for the program was due to expire.

Let's pick up the rest of the story with the testimony:

COMEY: The door opened and in walked Mr. Gonzales, carrying an envelope, and Mr. Card. 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. [Editor's note: Comey refused to ID the program as the NSA warrantless wiretapping program--but that's what it was.]

And Attorney General Ashcroft then stunned me. He lifted his head off the pillow and in very strong terms expressed his view of thematter, 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, and said to them, "But that doesn't matter, because I'm not the attorney general."

SENATOR CHUCK SCHUMER: But he expressed his reluctance or he would not sign the statement that they -- give the authorization that they had asked, is that right?

COMEY: Yes. And as he laid back down, he 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. The two men did not acknowledge me. They turned and walked from the room.

What Ashcroft meant was that because he was sick in the hospital Comey was the acting attorney general--and only Comey could renew the authorization for the wiretapping program. Yet Comey would not.

What happened next? According to Comey, "The program was reauthorized without us and without a signature from the Department of Justice attesting as to its legality." That is, the White House continued a program that required the authorization of the attorney general without the attorney general's authorization. It was at that point conducting a surveillance program that the Justice Department considered unlawful. Shortly after this--once Ashcroft was back on the job--Comey resigned.

My friend Marty Lederman, a legal scholar, explains all this further here. "It's just about the most dramatic testimony I can recall in a congressional committee since John Dean," Lederman says. He may be right. This deserves attention.

Posted by David Corn at May 15, 2007 06:07 PM