IMAGE: Former Deputy Attorney General James Comey
Susan Walsh  /  AP
Former Deputy Attorney General James Comey prepares to testify Tuesday before the Senate Judiciary Committee hearing regarding the fired prosecutors.
updated 5/15/2007 4:37:51 PM ET 2007-05-15T20:37:51

President Bush's warrantless wiretapping program was so questionable that a top Justice Department official refused for a time to reauthorize it, sparking a standoff with top White House officials that culminated at the bedside of an ailing attorney general, a Senate panel was told Tuesday.

Former Deputy Attorney General James Comey told the Senate Judiciary Committee that he refused to recertify the program because Attorney General John Ashcroft had reservations about its legality just before falling ill with pancreatitis in March 2004.

The White House, Comey said, recertified the program without the Justice Department's signoff, allowing it to operate for about three weeks without concurrence on whether it was legal. Comey, Ashcroft, FBI Director Robert Mueller and other Justice Department officials at one point considered resigning, Comey said.

"I couldn't stay, if the administration was going to engage in conduct that the Department of Justice had said had no legal basis," Comey told the panel.

Questions of oversight, presidential authority
A day after the March 10, 2004 incident at Ashcroft's hospital bedside, President Bush ordered changes to the program to accommodate the Justice Department's concerns. Ashcroft signed the presidential order to recertify the program about three weeks later.

But that resolution came after a dramatic confrontation between Comey, the acting attorney general during Ashcroft's absence, and a White House team that included Bush's then-counsel, Alberto Gonzales, and former White House Chief of Staff Andy Card, Comey said. Gonzales later succeeded Ashcroft as attorney general.

Senior government officials had expressed concerns about whether the National Security Agency, which administered the warrantless eavesdropping program, had the proper oversight in place. Other concerns included whether any president possessed the legal and constitutional authority to authorize the program as it operated at the time.

Comey testified Tuesday that when he refused to certify the program, Gonzales and Card headed to Ashcroft's sick bed in the intensive care unit at George Washington University Hospital.

When Gonzales appealed to Ashcroft, the ailing attorney general lifted his head off the pillow and in straightforward terms described his views of the program, Comey said. Then he pointed out that Comey, not Ashcroft, held the powers of the attorney general at that moment.

Video: Questions surround Bush, spying Gonzales and Card then left the hospital room, Comey said.

"I was angry," Comey told the panel. "I thought I had just witnessed an effort to take advantage of a very sick man who did not have the powers of the attorney general."

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White House defends program
Comey's testimony revived one of the Bush administration's most bitter internal fights just as Gonzales appeared less under siege about the firings of several U.S. attorneys last year. As Bush has stood solidly by his longtime counselor's side; calls for Gonzales' resignation have waned in recent weeks.

Asked about Comey's testimony, White House press secretary Tony Snow said he didn't know anything about the conversation at Ashcroft's bedside. But he defended the program.

"Because he had an appendectomy, his brain didn't work?" Snow said of Ashcroft. "Jim Comey can talk about whatever reservations he may have had. But the fact is that there were strong protections in there, this program has saved lives and it's vital for national security and furthermore has been reformed in a bipartisan way."

Dean Boyd, a Justice Department spokesman, said he couldn't comment on "internal discussions that may or may have not taken place concerning classified intelligence activities." But he said the program succeeded in helping detect and prevent terrorist attacks and was always subject to rigorous oversight and review.

More attacks on Gonzales
Democrats pounced on Comey's testimony as evidence of what they say is Gonzales' tendency to put loyalty to Bush ahead of most everything — including Justice's tradition of independence from the politics of the White House.

"What happened in that hospital room crystallized Mr. Gonzales' view about the rule of law: that he holds it in minimum low regard," said Sen. Chuck Schumer, D-N.Y.

Under questioning by Sen. Arlen Specter, R-Pa., Comey said he was not threatened by Vice President Dick Cheney or other White House officials who disagreed with him on the legality of the eavesdropping program.

Comey recalled that after the bedside incident he started to offer his resignation and was persuaded to wait a few days until Ashcroft could resign with him. "Mr. Ashcroft's chief of staff asked me something that meant a great deal to him, and that is that I not resign until Mr. Ashcroft was well enough to resign with me," Comey said.

On March 12 at their daily briefing of the president, Bush asked Comey and Mueller for separate private conversations on Justice's concerns about the eavesdropping program. There, Comey said, Bush agreed to do "the right thing."

"We had the president's direction to do what we believed, what the Justice Department believed, was necessary to put this matter on a footing where we could certify to its legality," Comey said of the period after those private meetings. "We did that."

Through a spokeswoman, Ashcroft refused to comment. Mueller did not immediately respond to requests for comment.

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