The inspector generals' report on Bush administration surveillance programs released Friday sheds some new light on the conflict between the White House and the Department of Justice over the legality of what was being done -- and shows just how dismissive one of former President Bush's closest aides was of the DOJ's opinion.
The battle between the Bush White House and the Bush DOJ over wiretapping was already public. In 2007, former Deputy Attorney General James Comey confirmed to the Senate that the fight had at one point become truly nasty. In March of 2004, with then Attorney General John Ashcroft severely ill and in the hospital, Comey was serving as acting attorney general. In that role, he was called upon to recertify the program, but due to concerns within DOJ about its legality, he refused.
That refusal culminated in an argument with then White House Chief of Staff Andrew Card and White House Counsel Alberto Gonzales, who came to Ashcroft's hospital room in an unsuccessful attempt to get him to do the recertification. The dispute continued for about a week after that, and ended only when the White House agreed to certain changes insisted upon by the DOJ -- after Ashcroft, Comey, their top deputies and FBI Director Robert Mueller had all prepared to resign.
In the meantime, the president recertified the program himself, with Gonzales' signature going where Ashcroft or Comey's would have. And Comey sent a memorandum to the White House counsel in order to provide advice to Bush. The IGs' report contains an excerpt of Gonzales' response, which appears not to have been public before this, in which he essentially told Comey and the DOJ to go do something anatomically impossible:
Your memorandum appears to have been based on a misunderstanding of the President's expectations regarding the conduct of the Department of Justice. While the President was, and remains, interested in any thoughts the Department of Justice may have on alternative ways to achieve effectively the goals of the activities authorized by the Presidential Authorization of March 11, 2004, the President has addressed definitively for the Executive Branch in the Presidential Authorization the interpretation of the law.
For what it's worth, Comey and Jack Goldsmith, then head of the DOJ's Office of Legal Counsel, appear to have agreed that the president's interpretation of the law dictated the Executive Branch's interpretation generally. But Comey still believed the DOJ couldn't certify the program as it was designed at the time -- and, of course, the language of Gonzales' letter is still pretty striking.