Gonzales' yearlong effort to block Comey's testimony

The attorney general previously sought to bar James Comey from testifying about the NSA program by claiming that he had nothing meaningful to contribute.

Published May 15, 2007 6:19PM (EDT)

(updated below)

Back in February, 2006 -- a couple months after the New York Times first revealed that the Bush administration was spying on Americans in violation of FISA -- the Senate Judiciary Committee informed the Justice Department that it wanted to question John Ashcroft and his former Deputy, James Comey, regarding the NSA program. In particular, the Committee wanted to question the two DOJ officials about a Newsweek article reporting that both of them, in 2004, refused to certify that the NSA eavesdropping program was legal.

In response, Alberto Gonzales refused to allow Ashcroft or Comey to testify about any such matters, and in doing so, this is what he said:

In addition, Attorney General Alberto R. Gonzales signaled in an interview with The Washington Post yesterday that the administration will sharply limit the testimony of former attorney general John D. Ashcroft and former deputy attorney general James B. Comey, both of whom have been asked to appear before the Senate Judiciary Committee regarding the program.

"Clearly, there are privilege issues that have to be considered," Gonzales said. "As a general matter, we would not be disclosing internal deliberations, internal recommendations. That's not something we'd do as a general matter, whether or not you're a current member of the administration or a former member of the administration."

"You have to wonder what could Messrs. Comey and Ashcroft add to the discussion," Gonzales added.

Similarly, Assistant Attorney General William Moschella claimed: "we do not believe that Messrs. Ashcroft and Comey would be in a position to provide any new information to the committee."

Today, Comey testified before the Committee and it became clear exactly what they could "add to the discussion," and it became equally clear why Gonzales sought to suppress their testimony:

In testimony before the Senate Judiciary Committee this morning, former Deputy Attorney General James Comey detailed the desperate late night efforts by then-White House counsel Alberto Gonzales and White House chief of staff Andrew Card to get the Justice Department to approve a secret program -- the warrantless wiretapping program.

According to Comey's testimony this morning, only when faced with resignations by a number of Justice Department officials including Comey, his chief of staff, Ashcroft's chief of staff, Ashcroft himself and possibly Robert Mueller, the director of the FBI, did the White House agree to make changes to the program that would satisfy the requirements of the Justice Department to sign off on it. . .

The events took place in March of 2004, when the program was in need of renewal by the Justice Department. When then-Attorney General John Ashcroft fell ill and was hospitalized, Comey became the acting-Attorney General.

The deadline for the Justice Department's providing its sign-off of the program was March 11th (the program required reauthorization every 45 days). On that day, Comey, then the acting AG, informed the White House that he "would not certify the legality" of the program.

The transcript of part of Comey's testimony is here. In particular, Comey detailed the attempt by Andy Card and Gonzales to manipulate Ashcroft's approval while Ashcroft was in the hospital so sick from a gall bladder condition that he named Comey Acting Attorney General pending his recovery. Comey's recollection is that the hospital visit by Gonzales and Card was arranged as a result of a telephone call from the President himself to Ashcroft's wife.

Comey testified that upon learning of this intended visit, he literally ran up the stairs to Ashcroft's hospital room, and his reason for the rush tells you all you need to know about this administration: "I was worried about him, frankly. I was concerned that this was an effort to do an end-run around the acting attorney general and to get a very sick man to approve something that the Department of Justice had already concluded -- the department as a whole -- was unable to be certified as to its legality." According to Comey, once he arrived in Ashcroft's hospital room, this is what occurred:

And it was only a matter of minutes that 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.

And Attorney General Ashcroft then stunned me. 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, and said to them, But that doesn't matter, because I'm not the attorney general.

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?


In addition to blocking Comey and Ashcroft's testimony about these matters throughout all of last year, the Bush administration -- led by Bush himself -- single-handedly blocked an investigation into the role played by DOJ lawyers in authorizing the NSA program by extraordinarily refusing to grant security clearances to DOJ investigators in the Office of Professional Responsibility. That investigation -- had it proceeded -- would have encompassed an examination of whether DOJ lawyers acted unethically in authorizing the program.

As always, the contempt which the Bush administration has for the rule of law is illustrated not only by their serial and conscious lawbreaking, but also by their extreme efforts to conceal those actions and shield them from any scrutiny or oversight of any kind. Knowing about these events in Aschcroft's hospital room (because he was a key participant in them), Gonzales, with a straight face, insisted in February, 2006 that he would not allow Ashcroft or Comey to testify because "you have to wonder what could Messrs. Comey and Ashcroft add to the discussion." It is impossible to express how free they are of even the most minimal constraints to tell the truth.

UPDATE: Michael Scherer highlights some additional details of the hospital room scene and its aftermath.

And then there is this rather amazing exchange from the White House Press gaggle with Tony Snow this afternoon:

Q. Tony, following on that. Whenever the President has received criticism about the terrorist surveillance program, he has said, look, top Justice Department officials are monitoring this for abuses.

Okay, very dramatic testimony on Capitol Hill today -- James Comey, who in 2004 was the Acting Attorney general, testified that when he raised objections to the terrorist surveillance program, that Alberto Gonzales, as White House Counsel, and the White House Chief of Staff, Andy Card, took this extraordinary measure -- they went to the hospital room of John Ashcroft to try to get him to override what Jim Comey was saying, about how this needs proper legal footing.

So wasn't that an end run by the White House to try to get John Ashcroft to overrule James Comey?

MR. SNOW: Well, number one, you've got a representation of internal White House deliberations, and we simply don't talk about that and are not going to.

Q. But he's testified on Capitol Hill. I mean, he --

MR. SNOW: I understand that, but --

Q. All that "you have to tell the truth to the American people" -- he's testified about this now, it's public.

MR. SNOW: Let me give you a couple of things. Also, what had always been noted is the terrorist surveillance program was, in fact, something that was constantly reviewed by the Department of Justice at either 45- or 90-day periods, and furthermore was reviewed by the Inspectors General at the Department of Justice and at the National Security Agency. In addition, there was review by the FISA Court. The terrorist surveillance program saved lives, period.

Number two, those who had questions about the FISA Court sat down and worked with the administration last year, and we worked out legislation that I think has met any questions that anybody had. But the fact is, you've got reforms, and I'm not going to talk about old conversations.

Q. But you had the Acting Attorney General at the time saying, in regards to what Inspectors General -- the acting -- chief law enforcement officer in the country is saying in 2004, I've got problems with this, and then you've got the Chief of Staff and the Counsel, Alberto Gonzales at the time, going -- and according to James Comey, they were trying to take advantage of a sick man who was in intensive care.

MR. SNOW: Trying to take advantage of a sick man -- because he had an appendectomy, his brain didn't work?

Q. Yes, "I was very upset, I was angry." He was in intensive care at GW. "I thought I had just witnessed an effort" --

MR. SNOW: I --

Q. -- let me just tell you -- "I thought I had just witnessed an effort to take advantage of a very sick man." Okay? Did any White House officials come and try to take advantage of you -- I mean, that's really not applicable in terms of this.

MR. SNOW: You know what, Ed --

Q. They were trying to take advantage of him, according to James Comey.

MR. SNOW: Ed, I'm just telling you, I don't know anything about the conversations. I've also told you the relevant thing, which is, you wanted to ask from a substantive point of view, were there protections in terms of the terrorist surveillance program -- the answer is yes.

It had multiple layers of review, both within the Department of Justice and the National Security Agency. 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 that is in keeping with everybody. And you can go -- frankly, ask him. I'm not talking about --

Q. Last question. The Republican, Arlen Specter, not James Comey, reacted to this by comparing it to the Saturday night massacre during Watergate. Are you concerned about Republicans now comparing this White House to the Nixon White House?

MR. SNOW: What I'm concerned about is -- I'm not even going to get there. That's too tempting and probably not responsible on my part. I think what you really want to do is --

Q. Oh, go ahead. (Laughter.)

MR. SNOW: That's my way of counting to 10. (Laughter.)

The fact is, you've got somebody who has splashy testimony on Capitol Hill. Good for him. We're not talking about internal deliberations.

As always: it's irrelevant if the program was illegal, according even to the President's two top DOJ officials. It was a good program "that is vital for national security," and that's all that matters.

Also, does anyone know what Snow is talking about when he says that "those who had questions about the FISA Court sat down and worked with the administration last year, and we worked out legislation that I think has met any questions that anybody had" and "has been reformed in a bipartisan way that is in keeping with everybody"?

Tony Snow seems to be under the impression that new FISA legislation has passed or something which "reformed" the old law. Someone should tell him that this has not happened, that the old law is still in place, and that it is still a felony to eavesdrop on Americans without judicial warrants from the FISA court.

By Glenn Greenwald

Follow Glenn Greenwald on Twitter: @ggreenwald.

MORE FROM Glenn Greenwald

Related Topics ------------------------------------------