Wiretap: The Comey testimony

It's clear that Bush authorized the warrantless wiretapping which was at the heart of former Assistant Attorney General James Comey's striking testimony, although the New York Times likes to pretend that there is still some question. It's also pretty clear to me that the wiretaps target Democrats and administration enemies. This ain't about Al Qaeda: This administration let Al Qaeda escape when Afghanistan was invaded.

This important piece reveals the role played by Jack Goldsmith, a lawyer who led the DOJ's Office of Legal Counsel. Goldsmith's refusal to certify the extra-legal program brought matters to a head. (Part of me wonders whether Ashcroft was secretly glad not to be the acting Attorney General during this brief moment of crisis.)

Here's what Michael Collins has to say...

* * *

Tuesday was a remarkable day at the U.S. Senate Judiciary Committee hearings. The exchange between Sen. Charles Schumer, R, NY and former Deputy Attorney General James Comey provides clear evidence pointing to criminal activity by the president, U.S Attorney General Alberto Gonzales, and former presidential advisor, Andrew Card. If Comey’s testimony is supported by other reliable witnesses, the Bush, Gonzales, and Card crew have some serious questions to answer.

Schumer got right to the point when he asked that Comey confirm “media reports of a dramatic visit by Alberto Gonzales and Chief of Staff Andrew Card” to the hospital room of an ailing and stricken John Ashcroft in early March, 2004

Why were they visiting Ashcroft in the hospital? Ashcroft, then the U.S. Attorney General, was gravely ill and had designated his deputy James Comey as acting attorney general. Previously, they had reviewed and rejected modifications to an unspecified federal program requiring a Department of Justice (DOJ) signature “…attesting as to its legality” Comey testified.

Shortly before the deadline for DOJ approval, Comey and the Attorney General met concerning strategy to deal with the legal problems included in the White House program. Just hours later, Ashcroft was admitted to the George Washington Hospital in Washington, D.C. due to of complications from “a severe case of Gallstone Pancreatitis.” At that point, Comey became Acting U.S. Attorney General.

The White House was very displeased with the acting Attorney General Comey’s rejection of its pet project. This program was just identified as “an extension of the secret NSA warrantless eavesdropping program.” The White House representatives were at the hospital to get the ailing Ashcroft to overrule the man he’d named Acting Attorney General.

The Schumer-Comey exchange is densely packed with material that will appall just about everyone from average citizens to legal experts.

(To read the rest, click "Permalink" below)

• Forced call to a very ill man. Ashcroft’s wife ordered that no calls come through to the sick and disoriented Ashcroft. Only one caller was able to override her instructions. Comey testified, “I have some recollection that the call was from the president…” The White House call was reported to Comey by David Ayers, Ashcroft’s chief of staff. Mrs. Ashcroft told Ayers that the caller indicated that then presidential counsel Alberto Gonzalez and Bush advisor Andrew Card were on their way to the hospital.

• Don’t throw him out! Before the White House duo arrived, the tipped off Comey diverted a trip home to rush to Ashcroft’s hospital room. He reported a phone exchange with FBI Director William Mueller: “Director Mueller instructed the FBI agents present not to allow me to be removed from the room under any circumstances.” Comey, Mueller or both anticipated a danger that Comey would be physically barred from Ashcroft’s hospital room. Mueller’s order to agents showed that he wanted Comey present at any meeting with Gonzales and Card in the hospital.

• We know you’re very ill but… Gonzales and Card arrived with an envelope and immediately pressed Ashcroft to give DOJ authorization for the program.. A stricken Ashcroft sat up briefly and dispatched the White House representatives with dramatic flair saying “I’m not the attorney general.” The implication was clear. The White House had to deal with Comey.

• “I thought I just witnessed an effort to take advantage of a very sick man.”
The courtly Comey went as far as his sense of restraint would allow. Nothing much more needs be said of Gonzalez, Card, and White House caller who announced their impending arrival. Taking advantage of “a very sick man” is about as low as it gets on the ethics scale.

After all this, Comey was ready to resign in protest. There was a follow up call to Comey from Andrew Card following the hospital visit where he and Gonzales totally ignored Comey. There were also meetings at Justice. Comey and other senior attorneys were planning a group resignation as a result of the affair. We were headed for replay of the Nixon Saturday Night Massacre.

In what should be the most studied exchange, Comey indicates that the surveillance law was implemented without DOJ approval.

Schumer: Right. And you stated that the next day, Thursday, was the deadline for reauthorization of the program, is that right?
Comey: Yes, sir.
Schumer: OK. Can you tell us what happened the next day?
Comey: The program was reauthorized without us and without a signature from the Department of Justice attesting as to its legality. And I prepared a letter of resignation, intending to resign the next day, Friday, March the 12th.

Let’s focus on two critical issues that argue strongly that there were illegal acts committed in this affair. This requires confirmation of Comey’s testimony by the witnesses mentioned. In the meantime, it is a vital part of the process of deciding just how soon impeachment proceedings begin.

Oriented to time and place and “taking advantage of a very sick man.”

Comely used very specific words when he described Ashcroft’s condition. He said, “I immediately began speaking to him, trying to orient him as to time and place, and try to see if he could focus on what was happening, and it wasn't clear to me that he could.” A bit later in the testimony, he uses the term orientation again, attributing the assessment to Ashcroft chief of staff Ayers:

He was very concerned that Mr. Ashcroft was not well enough to understand fully what was going on. And he begged me to wait until -- this was Thursday that I was making this decision -- to wait til Monday to give him the weekend to get oriented enough so that I wouldn't leave him behind, was his concern.

Orientation is a term used in psychiatry to indicate a patient’s awareness level of himself and his surroundings: Where are you? Do you know why you’re here? Etc. If you’re not oriented, you lack the ability to make decisions that range from How do I get home? to Should I sign this agreement? An individual absent full orientation can have periods of temporary lucidity. However, these are brief and do not negate the overall condition of disorientation.

Without orientation to time and place Ashcroft would have lacked testamentary capacity, a legal term indicating one has the capacity to sign a contract or, in this case, approve of warrantless spying on millions of citizens of the United States. Comey makes a strong case that there was no such capacity, other than the moment of lucidity when Ashcroft arose from his bed to admonish the two White House representatives and send them on their way.

Those seeking a signed legal agreement are required to recognize observable limitations to testamentary capacity. Comey makes clear that both he and Ayers had serious questions about Ashcroft’s lucidity. Gonzales, a lawyer, and Card should have had serious questions also. Yet they proceeded. This reported perseverance to gain approval indicates that they violated this basic principle of contract law. The person signing the agreement needs to know what he or she is doing.

The visit to the hospital and attempt to “take advantage of a very sick man” was not only ill mannered in the worst way; it was an act of deception against the Department of Justice and citizens. As Comey says and Ayers reportedly supports, Ashcroft was not sufficiently oriented to sign an agreement, let alone a complex legal approval.

Seeking approval of an illegal law then implementing the illegal law.

Before the hospital drama, it was clear that the White House knew that Comey wouldn’t sign off on the reauthorization of the surveillance law. The willingness to go around Comey, the official Acting Attorney General, and seek Ashcroft’s approval is just the opening act of this incident.

The approval was not obtained. Yet as Comey pointed out, “The program was reauthorized without us and without a signature from the Department of Justice attesting as to its legality.”

There are at least two major problems facing the participants in this affair.

First, the White House attempted to obtain approval for a program that they knew the acting Attorney General would not approve. Second, they sought this approval from someone without authority, Ashcroft. He stepped down due to his illness and passed authority to Comey.

Of great significance, however, is the fact that the program was implemented. It doesn’t matter if it was for an hour, a day or a week. Comey tells us warrantless surveillance on U.S. citizens was implemented without the required DOJ approval due to Comey’s unwillingness to attest “as to its legality.”

Section 371. Conspiracy to commit offense or to defraud United States

If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined under this title or imprisoned not more than five years, or both. (18USC371) U.S. Code as of: 01/19/04

If those who continued the warrantless surveillance program did so knowing that the highest and final level of legal authority in the executive branch refused to “attest to it’s legality,” this was “an offense against the United States…” and an “…agency thereof” (DOJ). The several responsible were fully oriented and aware of their decisions.

Earlier this year, Cong. Maurice Hinchey (D-NY) and Cong. Henry Waxman (D-CA) pressed the Department of Justice to explain the approval, process for this warrantless surveillance program. Their letter mentions that DOJ staffers investigating this concern were denied security clearances effectively ending the investigation for a period in January 2006. Cong. Hinchey notes that Attorney General Gonzales said that president Bush had personally denied the clearances.

What does the White House have to hide regarding the approval process?

Why did Gonzales and Card see to “take advantage of a very sick man” in order to get the approval denied by Comey, the acting U.S. Attorney General?

Why was the law implemented without DOJ clearance?

Does the attempt to have an ailing and reportedly disoriented Ashcroft sign the agreement represent a Conspiracy to commit offense or to defraud United States (Title 371)?

Does the implementation of a surveillance law represent a Conspiracy to commit offense or to defraud United States (Title 371)?

Why did the President personally deny clearances to DOJ staff investigating the DOJ approval of the warrantless surveillance program?

How many citizens had their rights violated by these programs?

How much longer will we be subject to an administration with the very loosest appreciation for the rule of law and the traditions established over centuries to protect the rights of individuals and the collective body of citizens?

It’s time for a much more aggressive stance on this issue and the larger allegations of illegal and unethical behavior. The gravity of these charges, the history of broken promises and deceptions, and the daily deterioration of our constitutional rights all argue that the appropriate forum is impeachment hearings.

Once Congress acts on impeachment, it may be sufficiently emboldened to restore habeas corpus, a most precious right that the 109th Congress and this administration removed just seven months ago.