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Battles on wiretaps fought in secret

By WASHINGTON POST
Published May 16, 2007


WASHINGTON - On the night of March 10, 2004, as Attorney General John Ashcroft lay ill in an intensive care unit, his deputy, James Comey, received an urgent call.

White House counsel Alberto Gonzales and President Bush's chief of staff, Andrew Card Jr., were on their way to the hospital to persuade Ashcroft to reauthorize Bush's domestic surveillance program, which the Justice Department had just determined was illegal.

In testimony to a Senate panel Tuesday, Comey said he alerted FBI director Robert Mueller and raced to the hospital, arriving minutes before Gonzales and Card. Ashcroft lifted his head off his pillow and refused to sign the papers they had brought. Gonzales and Card turned and left.

The sickbed visit was the start of a dramatic showdown between the White House and the Justice Department in early 2004.

"I was angry. I thought I had just witnessed an effort to take advantage of a very sick man, " testified Comey, who said both he and Ashcroft doubted the program's legality. He said he, Ashcroft and Mueller considered resigning before Bush ordered changes in the program.

The domestic spying by the National Security Agency continued for several weeks without Justice approval, he said.

The broad outlines of the hospital room conflict have been reported previously, but without Comey's gripping detail of efforts by Card, who has left the White House, and Gonzales, now the attorney general.

His account appears to present yet another challenge to the embattled Gonzales, who has strongly defended the surveillance program's legality and is embroiled in a battle with Congress over the dismissals of nine U.S. attorneys last year.

It also marks the first public acknowledgment that the Justice Department found the original surveillance program illegal, more than two years after it began.

Gonzales, who has rejected lawmakers' call for his resignation, continued Tuesday to downplay his own role in the dismissals. He identified his deputy, Paul McNulty, who announced his resignation Monday, as the aide most responsible for the firings.

"You have to remember, at the end of the day, the recommendations reflected the views of the deputy attorney general, " Gonzales said.

The Justice Department and the White House declined to comment in detail on Comey's testimony, citing internal discussions of classified activities.

The warrantless eavesdropping program was approved by Bush after the Sept. 11, 2001, attacks. It allowed the National Security Agency to monitor e-mails and telephone calls between the United States and overseas if one party was believed linked to terrorism.

The program was revealed in late 2005, and Gonzales announced in January that it had been replaced with a new effort that would be supervised by a secret intelligence court.

The crisis in March 2004 stemmed from a review of the program by the Justice Department's Office of Legal Counsel, which raised "concerns as to our ability to certify its legality, " according to Comey's testimony. Ashcroft was briefed on the findings on March 4 and agreed that changes needed to be made.

That afternoon, Ashcroft was rushed to George Washington University Hospital with a severe case of gallstone pancreatitis. On March 9, his gallbladder was removed. The standoff between Justice and White House officials came the next night, after Comey refused to certify the program on the eve of its 45-day reauthorization deadline, he testified.

About 8 p.m. on March 10, Comey said, he got an urgent call from Ashcroft's chief of staff, who had just received a call from Ashcroft's wife. The White House had called, and Card and Gonzales were on their way.

Comey went to the hospital, raced up the stairs and beat Card and Gonzales to Ashcroft's room.

"I was concerned that, given how ill I knew the attorney general was, that there might be an effort to ask him to overrule me when he was in no condition to do that, " Comey said.

Card and Gonzales arrived a few minutes later, with Gonzales holding an envelope that contained the executive order for the program. Comey said Ashcroft rebuffed the White House aides.

The next day, the White House approved the executive order without any signature from the Justice Department certifying its legality. Later, after meeting with Comey and Mueller, Bush gave his support to making changes in the program, Comey testified. The administration has never disclosed what those changes were.

Information from the Associated Press was used in this report.

Time line

The wiretap program: years of secrecy

Post-2001: President Bush authorizes the eavesdropping program after the 9/11 terrorist attacks to monitor telephone and Internet communications in and out of the United States when officials have "reasonable grounds to believe" that one party is a member of al-Qaida or an affiliated terrorist organization. Administration officials argue that the program, which for years operated secretly, didn't need explicit approval from the secret Foreign Intelligence Surveillance Court. Instead, administration officials review the program every 45 or 90 days.

2005: The New York Times reveals the existence of the program, and members of Congress and civil libertarians raise questions about its legality.

2006: U.S. District Judge Anna Diggs Taylor finds the program violates the U.S. Constitution's provisions on separation of powers and the right to free speech and privacy. The Bush administration is appealing.

January 2007: In a major retreat, the Bush administration announces that it has obtained approval for the program from the secret court and says it would no longer resort to conducting warrantless telephone taps to search for terrorists.