From October 2003, when he joined the Bush Justice Department as deputy attorney general, until August 2005, when he resigned, James Comey loyally endorsed virtually every controversial and radical Bush policy. From the detention of American citizens without due process to warrantless eavesdropping, rendition, and the use of “enhanced interrogation techniques,” Comey was an integral member of the Bush DOJ team, helping to create unprecedented theories of executive power.
But by March 2004, the Bush administration was engaged in domestic surveillance activities—the nature and scope of which remain unknown—that were so patently illegal that even Comey and his boss, Atty. Gen. John Ashcroft, deemed them intolerable. As Comey revealed in dramatic testimony before the Senate Judiciary Committee in early May, he and Ashcroft resolved to deny legal certification for the surveillance program although the DOJ had periodically certified legality since its inception in October 2001, and notwithstanding the fact that the program’s re-certification was of great personal importance to the president himself.
In his Senate testimony, Comey detailed a series of events arising from his and Ashcroft’s refusal that seemed lifted from a script of “The Sopranos.” Almost immediately after they made the decision not to re-certify, Ashcroft became gravely ill, was in intensive care at George Washington Hospital for a full week, and thus transferred his attorney general powers to Comey.
But when the White House learned from Comey that the DOJ would not certify the program, someone—Comey believes it was President Bush himself—called Mrs. Ashcroft, who had banned all visitors to her sick husband’s hospital room, to tell her that the president’s then Chief of Staff Andy Card and White House Counsel Alberto Gonzales were on their way to speak with Ashcroft about the matter. These frenetic events occurred the night before the program was required to be re-certified.
Upon learning of Card and Gonzales’s intent to “visit with” Ashcroft, Comey instructed his security detail to race to the hospital, sirens blaring, in order to prevent Gonzales and Card from coercing the signature of the gravely ill Ashcroft. Comey arrived to find what he described as a “disoriented” Ashcroft, unsure of time or place. He told U.S. News and World Report that as he waited for Gonzales and Card to arrive, he was thinking, “What am I going to do? What if they get him to sign something? Do I intervene physically?”
Moments later, Gonzales and Card barged in, ignored Comey, and instructed Ashcroft to sign the document they had brought with them. Comey described how Ashcroft “stunned” him by “lifting his head off the pillow and in very strong terms” refusing Gonzales and Card’s instruction, deftly summarizing the reasons he and Comey, the week earlier, had concluded that the program violated the law, and pointedly reminding them that Comey was acting attorney general with all powers of that office.
Moments after he and Gonzales left the hospital, Card telephoned Comey and demanded that he proceed immediately to the White House, something Comey said he was willing to do only after he had secured a trusted witness to meet him there. That night, Comey arrived at the White House and again rebuffed Card’s demands that the DOJ certify the legality of the surveillance program.
That is when Comey learned of a fact that disconcerted him to such an extent that he decided that moment to resign from the DOJ. Card informed him that President Bush, despite the unequivocal conclusion of his own Justice Department that the surveillance program was illegal, ordered the program to continue anyway.
Upon learning this, Comey, along with the rest of the top level of the DOJ— including FBI Director Robert Mueller, Office of Legal Counsel Director Jack Goldsmith, and Ashcroft himself—all agreed to resign en masse. Comey explained that they simply could not be part of an administration that was knowingly violating the law.
The threat of mass resignations eight months before the 2004 election captured the president’s attention in a way that the illegality of the program did not. The day following the hospital drama, Bush met privately with both Comey and Mueller and told them he would be amenable to any changes they wanted to the program in order to enable them to certify its legality. Only with those unknown changes in place did Ashcroft, Comey, and the DOJ thereafter certify.
It was that refashioned program that a federal court last August found to be in violation of both the criminal law and multiple provisions of the U.S. Constitution.
Democrats on the Senate Judiciary Committee had long sought Comey’s testimony. Both the New York Times and Newsweek reported more than a year ago that there was considerable internal dissent at DOJ over the legality of Bush’s warrantless eavesdropping activities, and those accounts specifically identified Ashcroft and Comey as the source of that conflict. As a result, in February 2006, the Judiciary Committee advised DOJ that it intended to question both men about their resistance.
But DOJ—now with Gonzales at the helm—refused to comply with that request and instead blocked the testimony by asserting various privileges that it claimed precluded Comey and Ashcroft from answering questions. To justify that decision, Gonzales told the Washington Post, “You have to wonder what could Messrs. Comey and Ashcroft add to the discussion.”
Self-evidently, Gonzales was well aware of exactly the revelations Comey and Ashcroft’s testimony would produce, since he was at the center of those events. Yet for over a year, he successfully concealed this episode by claiming—falsely, to put it mildly—that neither had pertinent information.
Beyond the extraordinary revelation that the president’s top officials thuggishly attempted, in Comey’s words, “to take advantage of a very sick man,” and even beyond the startling news that the president ordered the continuation of a surveillance program that he knew to be against the law, there is the towering, still unresolved question of what exactly the Bush administration was doing that prompted such profound resistance from its own highly loyal Justice Department.
It is worth underscoring here that Ashcroft and Comey are about as far away from being ACLU activists as one can be. As but one illustrative example, Comey himself led the battle to block Jose Padilla, an American citizen detained on U.S. soil and imprisoned for years without charges, from even having access to lawyers. And it was Ashcroft and Comey who embraced extremely dubious legal theories in order to endorse the legality of the NSA eavesdropping program in the face of a long-standing criminal statute making it a felony, punishable by up to five years in prison, to eavesdrop on Americans without warrants. If Bush officials this radical and this loyal found the administration’s activities to be so illegal as to compel their resignations, then, as former Office of Legal Counsel official Marty Lederman put it, “Can you imagine how bad it must have been?”
There has been much controversy over the NSA warrantless eavesdropping program ever since it was first revealed in December 2005. But the controversy has yielded very little knowledge concerning how the administration exercised these powers. On whom did they eavesdrop? For what purposes? How were the targets selected? What was done with the information obtained?
Throughout last year, a compliant Republican Congress blocked every effort to investigate those questions, while a bewilderingly meek Democratic Congress has, thus far, been content to be stonewalled. While we know that the administration eavesdropped on Americans in secret and in violation of the law, we know virtually nothing about the scope of that surveillance.
Comey’s testimony, by providing new and dramatic information, not only serves to inject the NSA scandal with new blood, it also provides clues as to the possible nature of the secret surveillance, and further, it highlights several new questions that urgently demand answers.
Note that nowhere in Comey’s story are NSA officials mentioned. But FBI Director Robert Mueller was a central player in the drama. He even met personally with President Bush. Mueller also threatened resignation. This indicates that, whatever was going on before the program was modified in order to satisfy the DOJ, those activities were being conducted by the FBI—the agency responsible for domestic surveillance—not just the NSA. That strongly suggests that the surveillance in question included purely domestic activities or exchanges, and not, as the administration has long insisted, solely communication between someone on U.S. soil and someone outside of the country.
There is one other aspect of Comey’s testimony worth highlighting. When describing the events at the hospital, Comey included the following narrative:
I tried to see if I could help him get oriented. As I said, it wasn’t clear that I had succeeded. I went out in the hallway. Spoke to Director Mueller by phone. He was on his way. I handed the phone to the head of the security detail and Director Mueller instructed the FBI agents present not to allow me to be removed from the room under any circumstances.
Consider what that says about this administration and how it operates. Not only did Comey think that he had to rush to the hospital room to protect Ashcroft from having a conniving Card and Gonzales manipulate his severe illness and confusion by coercing his signature on a document—behavior that is seen only in the worst cases of deceitful relatives pressuring a sick and confused person to sign a new will—but the administration’s own FBI Director thought it was necessary to instruct his FBI agents not to allow Comey to be removed from the room.
Comey and Mueller were clearly both operating on the premise that Card and Gonzales were basically thugs. These are the most trusted intimates of the White House—the ones who are politically sympathetic to them and know them best—and they had to prepare for and defend themselves against extreme acts of corruption from the president’s chief of staff and his then legal counsel (and current attorney general).
But the still more important issue here is that we should not have to speculate in this way about how the illegal eavesdropping powers were used. Americans en-acted a law 30 years ago making it a felony for the government to eavesdrop on us without warrants, precisely because that power had been so severely and continuously abused. The president deliberately violated that law by eavesdropping in secret. Why do we still not know—a year and a half after this lawbreaking was revealed—whether these eavesdropping powers were abused? Is anyone in Congress investigating that question?
Given the deliberate lawbreaking Comey described, how is this not a major scandal? Even the Washington Post editorial board—long tepid, at best, concerning the NSA scandal—recognized that Comey has offered “an account of Bush administration lawlessness so shocking it would have been unbelievable coming from a less reputable source.”
There is simply no excuse for anything other than the immediate commencement of a criminal investigation by a special prosecutor. This is not a one-day or one-week scandal. Comey’s revelations suggest transparent and deliberate felonies by our top government officials, not with regard to private and personal matters, but with regard to how our government spies on us.
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Glenn Greenwald is the author of How Would a Patriot Act? Defending American Values From the Bush Administration.
