Alberto Gonzales used to justify the president’s warrantless wiretapping program by arguing that even the “monitor first and get a warrant later” procedures allowed by the Foreign Intelligence Surveillance Act somewhere weren’t quick enough.
Dick Cheney Chief of Staff David Addington had an idea for getting around all of that. As Jack Goldsmith, the former head of the Justice Department’s Office of Legal Counsel, tells the New York Times, Addington once observed that the White House was just “one bomb away from getting rid of that obnoxious [FISA] court.”
Translation: Just one more terrorist attack on America would persuade Congress to free the Bush administration of the requirements of the Foreign Intelligence Surveillance Act.
Of course, as it turned out, the White House didn’t really need another attack; when the Democratic-controlled Congress adopted changes to FISA earlier this year, it gave the Bush administration broad new surveillance powers, free in some instances of the check that the FISA court once provided.
Goldsmith, who resigned from the OLC in June 2004, says he once suggested to Gonzales and to Addington, who was then Cheney’s legal counsel, that the administration simply seek Congress’ approval for broader surveillance powers under FISA. Goldsmith says Addington rejected the idea out of hand. In Goldsmith’s accounting, the White House didn’t want to seek congressional approval because doing so would acknowledge that Congress had some role to play. “They embraced this vision,” Goldsmith says, “because they wanted to leave the presidency stronger than when they assumed office, but the approach they took achieved exactly the opposite effect. The central irony is that people whose explicit goal was to expand presidential power have diminished it.”
One more irony: John Ashcroft, a man once vilified for his attacks on our civil liberties, emerges in Goldmith’s account — as he did in James Comey’s — as some sort of latter-day Patrick Henry.
Here’s Jeffrey Rosen, recounting Goldsmith’s version of the 2004 incident in which Gonzales and Andy Card turned up at Ashcroft’s hospital room to get his approval for the president’s secret surveillance program:
“Ashcroft lay with a bright light shining on him and tubes and wires coming out of his body. Suddenly, Gonzales and Card came in the room and announced that they were there in connection with the classified program. ‘Ashcroft, who looked like he was near death, sort of puffed up his chest,’ Goldsmith recalls. ‘All of a sudden, energy and color came into his face, and he said that he didn’t appreciate them coming to visit him under those circumstances, that he had concerns about the matter they were asking about and that, in any event, he wasn’t the attorney general at the moment; Jim Comey was. He actually gave a two-minute speech, and I was sure at the end of it he was going to die. It was the most amazing scene I’ve ever witnessed.’”
As Gonzales and Card left the room, Ashcroft’s wife stuck her tongue out at them. Says Goldsmith: “It captured the feeling in the room perfectly.”