There were many fascinating threads to the testimony on Tuesday by the former deputy attorney general, James Comey, who described the night in March 2004 when two top White House officials tried to pressure an ailing and hospitalized Attorney General John Ashcroft into endorsing President Bush’s illegal wiretapping operation.
But the really big question, an urgent avenue for investigation, is what exactly the National Security Agency was doing before that night, under Mr. Bush’s personal orders. Did Mr. Bush start by authorizing the agency to intercept domestic e-mails and telephone calls without first getting a warrant?
Mr. Bush has acknowledged authorizing surveillance without a court order of communications between people abroad and people in the United States. That alone violates the 1978 Foreign Intelligence Surveillance Act. Domestic spying without a warrant would be an even more grievous offense.
The question cannot be answered because Mr. Bush is hiding so much about the program. But whatever was going on, it so alarmed Mr. Comey and F.B.I. Director Robert Mueller that they sped to the hospital, roused the barely conscious Mr. Ashcroft and got him ready to fend off the White House chief of staff, Andrew Card, and Mr. Bush’s counsel, Alberto Gonzales. There are clues in Mr. Comey’s testimony and in earlier testimony by Mr. Gonzales, Mr. Ashcroft’s successor, that suggest that Mr. Bush initially ordered broader surveillance than he and his aides have acknowledged.
Mr. Comey said the bizarre events in Mr. Ashcroft’s hospital room were precipitated by a White House request that the Justice Department sign off on a continuation of the eavesdropping, which started in October 2001. Mr. Comey, who was acting attorney general while Mr. Ashcroft was ill, refused. Mr. Comey said his staff had reviewed the program as it was then being run and believed it was illegal.
So someone at the White House (and Americans need to know who) dispatched Mr. Gonzales and Mr. Card to Mr. Ashcroft’s hospital bed. Mr. Ashcroft flatly refused to endorse the program, Mr. Comey said. Later, he said, Mr. Bush agreed to change the wiretapping in ways that enabled Justice to provide a legal rationale. Mr. Comey would not say why he opposed the original program — which remains secret — or how it was changed.
With the benefit of Mr. Comey’s testimony, we can see how Mr. Gonzales, in his effort to mislead the Congress and confuse the American public about how much their civil liberties were being violated, may have unintentionally given away vital clues that only now are falling into place.
While testifying before the Senate Judiciary Committee in February 2006, Mr. Gonzales was asked if Mr. Comey had expressed reservations about the eavesdropping program. Mr. Gonzales replied, “There has not been any serious disagreement about the program that the president has confirmed.” By that, he must have meant the program that included modifications made after the hospital visit and after Mr. Comey’s meeting with Mr. Bush.
Pressed by Senator Charles Schumer, Democrat of New York, Mr. Gonzales said Mr. Comey’s concerns “dealt with operational capabilities” that were not part of the program Mr. Bush has acknowledged. Mr. Gonzales would not describe those capabilities, of course. Yesterday, Mr. Schumer wrote Mr. Gonzales and asked him to reconcile Mr. Comey’s account with his own.
The Republican-controlled Congress did a disservice to the nation by refusing to hold Mr. Bush to account for the illegal wiretapping. The current Congress should resume a vigorous investigation of this egregious abuse of power.
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