Ashcroft refused to reauthorize warrantless wiretapping program

There's now much discussion in the blogosphere about former Deputy Attorney General James B. Comey's testimony before Congress. Comey related that in 2004, the warrantless wiretapping program had come up for reauthorization--the previous authorization was due to expire the following day. Comey, filling in for Attorney General John Ashcroft, who was in the hospital for emergency gall bladder surgery, refused to sign Bush's order for reauthorization. Bush secretly sent his White House Counsel Alberto Gonzales and Chief of Staff Andrew Card to Ashcroft's hospital bedside to get his signature, but an aide to Ashcroft tipped off Comey. Comey rushed to the hospital, and obtained from FBI Director Robert Mueller a directive to Ashcroft's security staff to not remove Comey even if Gonzales and Card insisted upon it.

At the hospital, Ashcroft also refused to sign the reauthorization directive. Comey related that the entire senior staff of the Department of Justice, including himself and FBI Director Mueller, were prepared to resign over the issue. Had that happened--in an election year, no less--perhaps the outcome of that election would have been different.

Bush consulted directly with Comey and Mueller, and gave them assurances that the program would be modified to comply with Department of Justice recommendations, and Comey signed the reauthorization several weeks later. It's not clear whether it continued to operate without authorization for that period of weeks.

A Talking Points Memo reader comments:

When the warrantless wiretap surveillance program came up for review in March of 2004, it had been running for two and a half years. We still don't know precisely what form the program took in that period, although some details have been leaked. But we now know, courtesy of Comey, that the program was so odious, so thoroughly at odds with any conception of constitutional liberties, that not a single senior official in the Bush administration's own Department of Justice was willing to sign off on it. In fact, Comey reveals, the entire top echelon of the Justice Department was prepared to resign rather than see the program reauthorized, even if its approval wasn't required. They just didn't want to be part of an administration that was running such a program.

This wasn't an emergency program; more than two years had elapsed, ample time to correct any initial deficiencies. It wasn’t a last minute crisis; Ashcroft and Comey had both been saying, for weeks, that they would withhold
approval. But at the eleventh hour, the President made one final push, dispatching his most senior aides to try to secure approval for a continuation of the program, unaltered.

...

I think it’s safe to assume that whatever they were fighting over, it was a matter of substance. When John Ashcroft is prepared to resign, and risk bringing down a Republican administration in the process, he’s not doing it for kicks. Similarly, when the President sends his aides to coerce a signature out of a desperately ill man, and only backs down when the senior leadership of a cabinet department threatens to depart en masse, he’s not just being stubborn.

It’s time that the Democrats in Congress blew the lid off of the NSA’s surveillance program. Whatever form it took for those years was blatantly illegal; so egregious that by 2004, not even the administration’s most partisan members could stomach it any longer. We have a right to know what went on then. We publicize the rules under which the government can obtain physical search warrants, and don’t consider revealing those rules to endanger security; there’s no reason we can’t do the same for electronic searches. The late-night drama makes for an interesting news story, but it’s really beside the point. The punchline here is that the President of the United States engaged in a prolonged and willful effort to violate the law, until senior members of his own administration forced him to stop. That’s the Congressional investigation that we ought to be having.

Jacob Sullum at Reason observes that Tony Snow's response to Comey's testimony (quoted in the New York Times) amounts to "the administration's position is that the program was always legal, became a little more legal after the changes demanded by Ashcroft, and is even more legal now."

UPDATE (May 17, 2007): The DOJ says Gonzales has no desire to modify or retract his statement in Congressional testimony that the warrantless wiretap program raised no controversy within the Bush administration, even though that is clearly contradicted by the above account.

FURTHER UPDATE (May 17): TPM Muckraker has gotten to the bottom of why this came to a head on March 10, 2004. The program had to be reauthorized by the Attorney General every 45 days, which Ashcroft had been signing off on. In June 2003, John Yoo left his position as Deputy Director of the Office of Legal Counsel. On October 3, 2003, Jack L. Goldsmith was confirmed by the Senate as the Assistant Attorney General for the OLC, and on December 11, 2003, James Comey was confirmed as Deputy Attorney General. Comey was authorized to have access to information about the warrantless wiretap program, and he put Goldsmith to work reviewing "what [Goldsmith] considered shaky legal reasoning in several crucial opinions, including some drafted by Deputy Assistant Attorney General John Yoo," to quote The New York Times. Comey brought his evidence to Ashcroft a week before the reauthorization date, and they both agreed that it could not continue as it had been. Now that the been reviewed by lawyers in the DOJ for the first time, it was found to be severely problematic, and neither was willing to reauthorize it.

Bush reauthorized it on March 11, 2004 without Attorney General approval, which led to threatened resignations from Ashcroft, Comey, Mueller, and others, at which point parts of the program were suspended and a DOJ audit of the program commenced.

As TPM Muckraker summarizes:

The warantless wiretap surveillance program stank. For two and a half years, Ashcroft signed off on the program every forty-five days without any real knowledge of what it entailed. In his defense, the advisors who were supposed to review such things on his behalf were denied access; to his everlasting shame, he did not press hard enough to have that corrected.

When Comey came on board, he insisted on being granted access, and had Goldsmith review the program. What they found was so repugnant to any notion of constitutional liberties that even Ashcroft, once briefed, was willing to resign rather than sign off again.

So what were they fighting over? Who knows. But there’s certainly evidence to suggest that the underlying issue was was whether constitutional or statutory protections of civil liberties ought to be binding on the president in a time of war. The entire fight, in other words, was driven by the expansive notion of executive power embraced by Cheney and Addington. And here's the kicker - it certainly sounds as if the program was fairly easily adjusted to comply with the law. It wasn't illegal because it had to be; it was illegal because the White House believed itself above the law.