March 10, 2004

The current crop of crooks that is installed in the White House continues to embarrass us, violate our rights, and generally screw up at every turn. So steady is the stream of scandals that older ones are pushed off the screen to make room for new ones.

A case in point is the Department of Justice. The firing of the eight U.S. Attorneys (or is it nine?) reveals the operations of this dysfunctional agency, leading to calls for the resignation of Attorney General Gonzales. It’s hard to take your eyes off this train wreck long enough to gaze back at the last DOJ scandal. Nevertheless, our recollection was refreshed today when former Deputy Attorney General James Comey testified before the Senate Judiciary Committee.

Think back to when it was revealed that the government was engaged in wholesale spying on Americans in violation of the FISA law.

The story is not new. You may recall that the program was initiated at some time soon after 9/11, and that the president and his spokespersons defended it on the basis that it had to be re-certified by the Attorney General every 45 days or so. Back in January of ’06, I indicated that there was a disagreement between constitutional scholars about the validity of the defense that the Bush administration had offered for its domestic spying program. See, Horsefeathers vs. Poppycock: Constitutional Scholars weigh in.

Be that as it may, on March 10, 2004, Attorney General Ashcroft was in the hospital, and so the duty of re-certifying the program fell upon James Comey. He declined to do so.

The White House decided to visit Ashcroft in the hospital and seek his approval for the dubious program. Back in January of ’06, the NY Times reported that it “It is unclear whether the White House ultimately persuaded Mr. Ashcroft to give his approval to the program after the meeting or moved ahead without it.”

It is no longer “unclear.”

Here’s how Firedoglake summarized Comey’s testimony on the matter:

Office of Legal Counsel had told Comey there was no legal justification for parts of the NSA Domestic Spying Program. Comey briefed Ashcroft on it, and they agreed that they could not reauthorize the program in its current form. When Comey told that to Andrew Card, Card got pissed. That night, Comey got a call from his Chief of Staff, saying Mrs. Ashcroft had gotten a call at the hospital, saying Card and Gonzales were on their way over. Comey rushed to the hospital to try to prepare Ashcroft for what was about to occur. And then, in his drug induced state, Ashcroft refused to reauthorize the program, and said he wasn't AG anyway, Comey was acting AG.

The program was "reauthorized" anyway, w/o DOJ's blessing. For two weeks, according to Comey, it operated outside the rule of law (though one day after the hospital visit, Bush told Comey to "do what's right," so they started to put it in line with the law).

That night, Comey and a number of other DOJ staffers prepared their resignation, refusing to stay after they had been overridden.

You may be forgiven for thinking that on March 10th 2004, the Attorney General signed off on the program. After all, it had been in place for over two years, and we are told that it had been reviewed and approved by DOJ every 45 days. Why, you might wonder, did Ashcroft refuse to re-certify it in his hospital bed?

One reason might be that Comey had only recently convinced him that the program was not legal. Not very likely that Ashcroft would sign off on a program for two years, and then Comey would undertake to persuade him that it was illegal.

Another possibility is that Ashcroft felt that Comey was the Acting A.G. and that it was therefore Comey’s call. But Comey testified that in spite of his illness Ashcroft gave a cogent explanation of why he would not certify the program.

A third possibility exists. Could it be that when George W. Bush told us that the program required a sign-off by the Attorney General every 45 to 90 days, he was playing a little fast and loose with the facts? Who woulda thunk?

“… and tell ’em Big Mitch sent ya!”