High Drama at the DOJ

I didn't get a chance to watch it, but from what I've read, James Comey's testimony today in front of the Senate Judiciary Committee was riveting. He finally recounted, under oath, the story of what happened in March 2004 when Andrew Card and Alberto Gonzales made a late night trip to John Ashcroft's hospital room to try to convince the groggy, post-operative Attorney General to overrule his Deputy, Comey. The scene was apparently far more dramatic than anyone knew.

Apparently Comey and Jack Goldsmith, the then-head of the OLC , had determined by March 2004 that there was no legal basis for the NSA warrantless wiretapping program and were in the process of recommending that the Justice Department withhold its approval of the program when John Ashcroft fell ill and Comey was named Acting Attorney General. Comey refused to sign off on the program when it came up for renewal, which infuriated the White House and prompted them to dispatch Andrew Card and Alberto Gonzales to visit Ashcroft in the hospital.

According to Paul Kiel and TPM, Comey testified that Ashcroft's wife called him and warned him that Card and Gonzales were coming to the hospital. Comey, suspecting what was happening, immediately headed over to the hospital and called a number of other officials at the DOJ to act as witnesses. Apparently Comey, Goldsmith, and a few others managed to get to the hospital before Card and Gonzales and were waiting in the room when they arrived.

Gonzales had papers in his hand for Ashcroft to sign, but Ashcroft wouldn't have any of it. He said that he agreed with Comey and Goldsmith and that his opinion was irrelevant anyway because Comey was the acting Attorney General. Gonzales and Card then stormed out, and apparently Card placed a very angry call to Comey demanding that he come to the White House at 11 p.m. that night. Comey said he would only show up if he could bring a witness. He showed up with Ted Olson, the Solicitor General. Though Comey is somewhat cryptic about what happened next, he seemed to indicate that a number of high level DOJ officials, including himself, Ashcroft, and FBI Director Robert Mueller, made it clear that they were all prepared to resign if the White House went ahead and authorized a program that the DOJ had determined was illegal.

Comey met with Card alone briefly and later with Gonzales and Olson as well. Though the meeting was "civil" according to Comey, he prepared a letter of resignation afterward. The next day the President called Comey in and talked to him one-on-one. Comey told him to talk to Mueller. Apparently he did and later Comey heard, via Mueller, that the President wanted the DOJ to make whatever changes were necessary to make the program legal.

Though Comey did not say what steps were eventually taken, it's actually pretty clear. I've written about this before:

Goldsmith and Deputy Attorney General James Comey began to question the administration's theories of executive power in late 2003 to early 2004. In late 2003, Goldsmith took the unprecedented step of withdrawing the OLC's support for the March 2003 Yoo memorandum. When Yoo's 2002 torture memo leaked in 2004, Goldsmith and Comey publicly disavowed it. Both of these moves greatly angered others in the Administration, particularly in the Office of the Vice President. I suspect that Yoo's opinion supporting the legality of the NSA spying program relied on virtually identical arguments to those contained in his March 2003 memo. When the OLC withdrew its support for that memo, it likely did the same thing for the surveillance memo. That would explain why Comey refused to sign off on the program when it came time to reauthorize it. The legal opinion supporting it had been withdrawn.

We know that the program was eventually reauthorized, but only after the Justice Department imposed a number of procedural changes and, apparently, issued a new legal opinion (authored by Goldsmith himself). I suspect that the AUMF argument made its first appearance in this 2004 memorandum. The AUMF argument may have represented a compromise between the Justice Department and the White House. From a legal standpoint, the AUMF argument is just as weak as the Article II argument, but at least it implies that Congress is the ultimate source of authority and is therefore more benign and less threatening to the very concept of the rule of law. Given the circumstances--with all the pressure of the White House bearing down on them--this was probably the best Goldsmith and Comey could do.

I stand by that. I think that, following Comey's meeting with the President, he and Jack Goldsmith and various other people at the OLC sat down and brainstormed ways of changing the program to make it at least arguably legal. That's when they came up with the AUMF argument, which though seriously flawed, was consistent with arguments the government was making in the Hamdi case at about that time.

I suspect that the scope of the program was also narrowed somewhat to make it more consistent with the scope of the 2001 AUMF.

Though Comey didn't admit this today, at least from what I heard, I suspect that both he and Jack Goldsmith remained uncomfortable about the NSA program even after it was eventually reauthorized. As I've noted before, both left the DOJ shortly thereafter and Goldsmith actually co-authored a long journal article discussing the AUMF. Notably, the co-author of that article signed on to this letter written by 14 academics and former government officials arguing that the NSA program is illegal.

UPDATE: For more on this issue, see this post from former OLC attorney Marty Lederman. Marty also has excerpts from the testimony.