After the Bush administration’s warrantless-search program came to light, one of the early talking points used to defend the program’s legality emphasized Justice Department support. As Condoleezza Rice explained on Meet the Press, the initiative “has been reviewed not just by the White House counsel but by the lawyers of the Justice Department.”
On its face, this wasn’t exactly a persuasive defense. To hear Rice and others tell it, the warrantless spying was permissible because Harriet Miers, John Ashcroft, and Alberto Gonzales told him the president he could get away with it. But as it turns out, there’s a lot more to the Justice Department’s “approval” of the program than the White House talking points let on.
A top Justice Department official objected in 2004 to aspects of the National Security Agency’s domestic surveillance program and refused to sign on to its continued use amid concerns about its legality and oversight, according to officials with knowledge of the tense internal debate. The concerns appear to have played a part in the temporary suspension of the secret program.
The concerns prompted two of President Bush’s most senior aides – Andrew H. Card Jr., his chief of staff, and Alberto R. Gonzales, then White House counsel and now attorney general – to make an emergency visit to a Washington hospital in March 2004 to discuss the program’s future and try to win the needed approval from Attorney General John Ashcroft, who was hospitalized for gallbladder surgery, the officials said.
The unusual meeting was prompted because Mr. Ashcroft’s top deputy, James B. Comey, who was acting as attorney general in his absence, had indicated he was unwilling to give his approval to certifying central aspects of the program, as required under the White House procedures set up to oversee it.
When Comey balked, Card and Gonzales literally had to go to Ashcroft’s sickbed to ask him to sign off on the warrantless-search program. What’s more, according to the article, even Ashcroft was reluctant to go along, fearful that there was inadequate oversight and limited legal justifications for such sweeping presidential authority. So what happened? According to the New York Times, “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.”
The article suggests, however, that Ashcroft may not have been convinced.
What is known is that in early 2004, about the time of the hospital visit, the White House suspended parts of the program for several months and moved ahead with more stringent requirements on the security agency on how the program was used, in part to guard against abuses.
The concerns within the Justice Department appear to have led, at least in part, to the decision to suspend and revamp the program, officials said. The Justice Department then oversaw a secret audit of the surveillance program.
What did the audit conclude? It’s hard to say; the Times doesn’t report on whether abuses were discovered during the review or not.
As for the story behind the story, it appears that there’s something of a revolt underway at the Department of Justice. There’s no way the NYT could get this story, with these details, unless several in-the-know Justice officials decided it was time to start talking.
Indeed, it may be part of a trend. DoJ officials recently leaked word, for example, that attorneys in the in the Civil Rights Division concluded that Georgia’s poll-tax law was discriminatory against minority voters and should be blocked from implementation, but they were quickly overruled by Bush-appointed higher-ups. Moreover, the lead attorney in the government’s landmark lawsuit against the tobacco industry recently told reporters that her politically appointed bosses undermined her team’s work on the case. And earlier this month, the Washington Post reported on leaked memos showing that DoJ officials concluded, unanimously, that Tom DeLay’s re-redistricting scheme in Texas violated the Voting Rights Act — but once again they were overruled by Bush’s political appointees.
When the Justice Department starts leaking like a sieve, and all the news embarrasses the White House, you know Bush has a problem.