What Does Comey's Testimony Tell Us about the NSA Program?

05/17/2007 12:35 am ET | Updated May 25, 2011

The astonishing story of Alberto Gonzales' March 2004 bedside visit with John Ashcroft (then in intensive care after having his gall bladder removed during a bout with pancreatitis) in order to force him to reauthorize the NSA warrantless surveillance program has been all over the news today after former Deputy Attorney General James Comey's riveting testimony before the Senate Judiciary Committee yesterday. (The whole video is here and the transcript is here. The New York Times' account of the testimony is here, and Dahlia Lithwick's is here, but, good as those summaries are, the whole thing is worth watching/reading.)

Here's my 10-cent summary: Comey had taken over Ashcroft's powers while the Attorney General was in the hospital. But Comey --an outstanding career prosecutor, not a "Bushie," who'd joined the AG's staff in 2003-- had serious misgivings about the legality of the NSA program, doubts shared by other non-partisan-hack lawyers who'd come to DOJ in 2003 and 2004. The program was then being periodically reauthorized by the president, with DOJ officials signing off as well, every 45 days. As Acting Attorney General, Comey decided he wouldn't reauthorize it. So, despite Mrs. Ashcroft's orders that no one was to visit her husband in the hospital, the President himself calls her to tell her that Gonzales (then White House counsel) and Andrew Card were headed over to see Ashcroft. She calls Comey. He races over to the hospital, his security detail running the emergency lights, and, arriving first, waits for Gonzales and Card in the darkened room. Meanwhile, Comey has called FBI Director Mueller, who orders the security detail not to allow Comey to be removed from the room under any circumstances. Gonzales and Card arrive, and, after very terse formalities, ask Ashcroft to sign the authorization they are carrying. And Ashcroft slowly pulls his head up from the pillow, upbraids them, refusing to sign it, and then says that his opinion doesn't matter anyway, "because I'm not the attorney general, there" --pointing the icy finger of death at Comey-- "is the Attorney General." Having said his peace, his head sinks back to the pillow. Afterwards, Card (who says he was only visiting Ashcroft (quoting here) "to wish him well") orders Comey over to the White House; Comey refuses unless Solicitor General Ted Olsen is present as a witness. Olson is dragged out of a dinner party and heads to the White House with Comey. Card voices concern that mass resignations are afoot at DOJ over the program. Eventually the President reauthorized the program without the signature of anyone from DOJ attesting to its legality. The program is suspended briefly and retooled in still-unknown ways. Comey later reveals that he, Ashcroft, their top deputies and Mueller all were prepared to resign if the illegal program went on over their objections.

There's been a ton of fascinating speculation (here, here, and here) about what this dispute was about on the merits (Comey, of course, can't speak about that). A number of commentators point out that in late 2003 a new set of DOJ and Office of Legal Council lawyers was replacing the group (Yoo, Bybee, Delahunty) that authored the torture memos and other documents setting forth a theory of uncheckable Presidential power. Comey's testimony referred to DOJ "factually and legally" reevaluating the program prior to March 2004. The legal blogosphere's speculative consensus seems to be that DOJ decided in 2004 that John Yoo et al.'s justifications for the program, predicated on the absolute power of the President to act without regard for any Congressional legislation limiting his surveillance powers, could not hold water. (As Marty Lederman points out, given how infrequently OLC repudiates its own legal advice, "just try to imagine how legally dubious the Yoo justification must have been that John Ashcroft was so profoundly committed to its repudiation. It's staggering, really -- almost unimaginable that anything such as this could have happened, especially where the stakes were so high. ... [particularly coming from people like Ashcroft and Jack Goldsmith] hardly officials who were unwilling to push the legal envelope, or who were disdainful of the objectives or need for the NSA program.") Surveillance in wartime was not the absolute prerogative of the executive branch, Comey and his new colleagues thought; the President had to follow whatever rules Congress had laid out to limit that discretion by forcing him to go to courts for warrants.

If this speculation is right,* then the Administration's main defense against our lawsuit early last year --that the NSA program had in fact been implicitly authorized by Congress when it passed an Authorization to Use Military Force (AUMF) against al Qaeda after 9/11-- was in fact a more limited sort of legal defense than had been initially conceived by Yoo. If the program continued after the 2004 incident--after a brief suspension --in revised form more acceptable to DOJ, then presumably it had been narrowed to fit the contours of the AUMF, which authorized force against only "against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored" them --basically, al Qaeda and (close) friends.

That raises the really interesting question: how broadly was the pre-2004 NSA program spreading its net? When the administration admitted that it was carrying out the program in December 2005, Gonzales said the NSA was listening to calls where one party was "a member of al Qaeda, affiliated with al Qaeda, or a member of an organization affiliated with al Qaeda, or working in support of al Qaeda." Was this description of an at-least-somewhat-circumscribed program actually a much narrower program than the original NSA program that had been underway since 2001? And if so, who was the NSA listening to between 2001 and March 2004, when the hospital incident took place?

Alberto Gonzales, asked in April 2006 about the hospital incident, testified that "the disagreement that existed does not relate to the program the President confirmed in December to the American people." (See today's letter from Schumer quoting him.) This only reinforces the notion that that there were two radically different programs here: one post-hospital-incident Program, roughly limited to international calls and emails, and to suspected terrorists of some stripe (as owned up to and described by the President in December 2005), and a radically-different pre-March 2004 program, of vast scope, with no limits set by the AUMF (or publicly acknowledged by the administration). What was it that Comey wanted to reevaluate --"factually" as well as "legally"-- about this earlier program? Did it target purely domestic calls? (Is that why FBI chief Mueller was so closely involved?) Could the White House choose targets as well as NSA professionals? Did those targets include lawyers and journalists as well as people with some plausible link to terrorism?

Today we at the Center for Constitutional Rights are filing our second lawsuit related to the NSA program, in part to try to answer these kinds of questions. The first, our challenge to the legality of the program, has been passed around the federal courts like a hot potato since we filed it in January 2006 and is currently awaiting oral argument later this summer in San Francisco. The second is today's Freedom of Information Act lawsuit, seeking records of whether lawyers for Guantánamo detainees were subject to the program. Since Congress passed the Foreign Intelligence Surveillance Act in 1978, the FISA Court has only rejected five out of the government's 19,000-plus wiretap requests. We have always believed that the primary reason administration officials decided not to use the FISA statute to get warrants for the NSA program is because they wanted to target conversations even the FISA court wouldn't have approved of -- attorneys speaking to their clients, journalists speaking to their sources. The government asserts - -generally without a shred of evidence -- that many of our clients are linked to terrorism. They've said the NSA program targets calls between Americans and foreigners linked to terrorism, and they've told Congress that they won't rule out listening to lawyers. All that means there is a grave risk that our privileged conversations were eavesdropped on. We owe it to our clients to find out if that happened.

Speculations about the program to one side, Professor Lederman highlights perhaps the most important part of all of this: that the President approved continuing a program "even though DOJ had concluded that it was legally indefensible, i.e., that it violated a criminal statute"--FISA--that made this warrantless surveillance, in whatever precise form it took, a felony.

--May 17, 2007

(* One cautionary footnote: of course, all the speculation above could be wrong. First, Comey hasn't confirmed that the Program at the heart of the hospital-room dispute was the same "limited" one Gonzales and Bush told the nation about in December 2005. (There may be many "programs.") Second, James Risen's book (State of War (January 2005), p. 55) reports the brief suspension of the program in 2004 happened on Judge Colleen Kollar-Kotelly's complaints. She was briefed on the program when she ascended to the position of Chief Judge of the FIS Court, which happened in May 2002 (just as the judge she succeeded, Royce Lamberth, had been briefed when the program began). Both the Times and the Post had reported months ago that what prompted the suspension Comey described yesterday was the fact that a filtering system set up to block NSA program results from being used to obtain FISA warrants had failed in at least one instance. This was reported to Judge Kollar-Kotelly, and her reaction --one imagines it was as strong as Andrew Card's-- led to the reevaluation. That might imply that general concerns about the use of the data gathered by NSA motivated the reevaluation, and that in 2004 changes were made not in what calls and emails were swept up, but rather in the way they were used. But this has never been a terribly convincing account to me.)


UPDATE!: Taking a cue from Comey, Lanny Davis heroically resigned as token Democrat on Bush's Privacy and Civil Liberties Oversight Board. Way to go, Lanny! You're slightly less pathetic today than you were yesterday.

UPDATE 2: Here's a great post over at Anonymous Liberal.... maybe it was simply the looming election that caused the about-face?:

I went back and reread the article that started it all, James Risen and Eric Lichtblau's December 16, 2005 New York Times front page story. It's remarkable how much information is contained in that one story. Here's what Risen and Lichtblau had to say about the 2004 DOJ rebellion:

Several senior government officials say that when the special operation began, there were few controls on it and little formal oversight outside the N.S.A. The agency can choose its eavesdropping targets and does not have to seek approval from Justice Department or other Bush administration officials. Some agency officials wanted nothing to do with the program, apparently fearful of participating in an illegal operation, a former senior Bush administration official said. Before the 2004 election, the official said, some N.S.A. personnel worried that the program might come under scrutiny by Congressional or criminal investigators if Senator John Kerry, the Democratic nominee, was elected president.

In mid-2004, concerns about the program expressed by national security officials, government lawyers and a judge prompted the Bush administration to suspend elements of the program and revamp it.

For the first time, the Justice Department audited the N.S.A. program, several officials said. And to provide more guidance, the Justice Department and the agency expanded and refined a checklist to follow in deciding whether probable cause existed to start monitoring someone's communications, several officials said.

My guess is that, up until 2004, the NSA was conducting this program with very little in the way of guidelines or supervision. As Risen and Lichtblau put it:

The C.I.A. seized the terrorists' computers, cellphones and personal phone directories, said the officials familiar with the program. The N.S.A. surveillance was intended to exploit those numbers and addresses as quickly as possible, they said.

In addition to eavesdropping on those numbers and reading e-mail messages to and from the Qaeda figures, the N.S.A. began monitoring others linked to them, creating an expanding chain.