The inquiry into the dismissal of federal prosecutors led on Tues., May 15, 2007, to sworn testimony that may constitute evidence of an impeachable offense on the part of President George W. Bush.  --  The testimony, by James B. Comey, who was the number-two official at the Department of Justice in 2004 and, at the time of the incident he describes, Acting Attorney General of the United States, can be viewed in an eight-minute YouTube clip.[1]  --  The New York Times billed the testimony as its front-page lead story on Wednesday.[2]  --  In an intense confrontation on Mar. 10, 2004, James Comey refused to sign a presidential order reauthorizing the [National Security Agency’s domestic eavesdropping] program, knowledge of which became public only in December 2005.  --  This program involved warrantless monitoring of international telephone calls and e-mail of people inside the United States.  --  Comey and Attorney General John Ashcroft had determined that they would refuse to certify the program's legality after the department’s Office of Legal Counsel concluded that the program did not comply with existing law.  --  It is possible to infer from Comey's testimony that his refusal led to a period of several weeks when President George W. Bush deliberately broke the law, as the New York Times implied by noting that "It was unclear from his testimony what authority existed for the program while the changes were being made."  --  On Friday, commentator Michael Collins argued that the episode provides prima facie evidence of an impeachable offense, namely "conspiracy to commit offense or to defraud United States" under Title 371 of the United States Code.[3]...



May 15, 2007



By David Johnston

** Ex-Justice Official Paints a 48-Hour Drama in '04 over His Balking at Program **

New York Times
May 16, 2007
Page A1

WASHINGTON -- President Bush intervened in March 2004 to avert a crisis over the National Security Agency’s domestic eavesdropping program after Attorney General John Ashcroft, Director Robert S. Mueller III of the F.B.I., and other senior Justice Department aides all threatened to resign, a former deputy attorney general testified Tuesday.

Mr. Bush quelled the revolt over the program’s legality by allowing it to continue without Justice Department approval, also directing department officials to take the necessary steps to bring it into compliance with the law, according to Congressional testimony by the former deputy attorney general, James B. Comey.

Although a conflict over the program had been disclosed in the *New York Times*, Mr. Comey provided a fuller account of the 48-hour drama, including, for the first time, Mr. Bush’s role, the threatened resignations, and a race as Mr. Comey hurried to Mr. Ashcroft’s hospital sickbed to intercept White House officials, who were pushing for approval of the N.S.A. program.

Describing the events as “the most difficult of my professional career,” Mr. Comey appeared before the Senate Judiciary Committee as part of its inquiry into the dismissal of federal prosecutors and the role of Attorney General Alberto R. Gonzales. Several lawmakers wanted to examine Mr. Gonzales’s actions in the N.S.A. matter, when he was White House counsel, and cited them to buttress their case that he should resign.

Mr. Comey, the former No. 2 official in the Justice Department, said the crisis began when he refused to sign a presidential order reauthorizing the program, which allowed monitoring of international telephone calls and e-mail of people inside the United States who were suspected of having terrorist ties. He said he made his decision after the department’s Office of Legal Counsel, based on an extensive review, concluded that the program did not comply with the law. At the time, Mr. Comey was acting attorney general because Mr. Ashcroft had been hospitalized for emergency gall bladder surgery.

Mr. Comey would not describe the rationale for his refusal to approve the eavesdropping program, citing its classified nature. The N.S.A. program, which began soon after the Sept. 11 attacks and did not require court approval to listen in on the communications of Americans and others, provoked an outcry in Congress when it was disclosed in December 2005. [NOTE:  The New York Times had knowledge of this program "for a year" but refrained from publishing it because of a White House request.  At issue is a long-secret 2002 authorization from President George W. Bush, the National Security Agency to monitor the international telephone calls and international e-mail messages of hundreds, perhaps thousands, of people inside the United States without warrants.  —M.L.]

Mr. Comey said that on the evening of March 10, 2004, Mr. Gonzales and Andrew H. Card Jr., then Mr. Bush’s chief of staff, tried to bypass him by secretly visiting Mr. Ashcroft. Mr. Ashcroft was extremely ill and disoriented, Mr. Comey said, and his wife had forbidden any visitors.

Mr. Comey said that when a top aide to Mr. Ashcroft alerted him about the pending visit, he ordered his driver to rush him to George Washington University Hospital with emergency lights flashing and a siren blaring, to intercept the pair. They were seeking his signature because authority for the program was to expire the next day.

Mr. Comey said he phoned Mr. Mueller, who agreed to meet him at the hospital. Once there, Mr. Comey said he “literally ran up the stairs.” At his request, Mr. Mueller ordered the F.B.I. agents on Mr. Ashcroft’s security detail not to evict Mr. Comey from the room if Mr. Gonzales and Mr. Card objected to his presence.

Mr. Comey said he arrived first in the darkened room, in time to brief Mr. Ashcroft, who he said seemed barely conscious. Before Mr. Ashcroft became ill, Mr. Comey said the two men had talked and agreed that the program should not be renewed.

When the White House officials appeared minutes later, Mr. Gonzales began to explain to Mr. Ashcroft why they were there. Mr. Comey said Mr. Ashcroft rose weakly from his hospital bed, but in strong and unequivocal terms, refused to approve the eavesdropping program.

“I was angry,” Mr. Comey told the committee. “I had just witnessed an effort to take advantage of a very sick man, who did not have the powers of the attorney general because they had been transferred to me. I thought he had conducted himself in a way that demonstrated a strength I had never seen before, but still I thought it was improper.”

Mr. Gonzales and Mr. Card quickly departed, but Mr. Comey said he soon got an angry phone call from Mr. Card, demanding that he come to the White House. Mr. Comey said he replied: “After what I just witnessed, I will not meet with you without a witness, and I intend that witness to be the solicitor general of the United States.”

Mr. Comey said he reached Theodore B. Olson, the solicitor general, at a dinner party. At the White House session, which included Mr. Olson, Mr. Gonzales, Mr. Comey and Mr. Card, the four officials discussed the impasse. Mr. Comey knew that other top officials, including Vice President Dick Cheney, wanted to continue the program.

Mr. Card expressed concern about mass resignations at the Justice Department, Mr. Comey said. He told the Senate panel that he prepared a letter of resignation and that David Ayres, Mr. Ashcroft’s chief of staff, asked him to delay delivering it so that Mr. Ashcroft could join him. Mr. Comey said Mr. Mueller was also prepared to quit.

The next morning, March 11, Mr. Comey went to the White House for a terrorism briefing. Afterward, he said Mr. Bush took him aside for a private 15-minute meeting in the president’s study, which Mr. Comey described as a “full exchange.”

At Mr. Comey’s urging, Mr. Bush also met with Mr. Mueller, who emerged to inform Mr. Comey that the president had authorized the changes in the program sought by the Justice Department.

“We had the president’s direction to do what we believed, what the Justice Department believed, was necessary to put this on a footing where we could certify to its legality,” Mr. Comey said. “And so we set out to do that and we did that.”

Mr. Comey said he signed the reauthorization in “two or three weeks.” It was unclear from his testimony what authority existed for the program while the changes were being made. Mr. Comey said he shelved his resignation plans that day when terrorists set off bombs on commuter trains in Madrid.

Mr. Comey left the Justice Department in August 2006, saying publicly that he had never intended to serve through the end of Mr. Bush’s second term. Privately, he has told friends that he grew weary of what he felt was increasing White House influence on the agency.

Tony Snow, the White House spokesman, deflected questions about Mr. Comey’s testimony, but defended the N.S.A. program. Mr. Snow also noted that the Justice Department placed the program under the supervision of a special intelligence court earlier this year, which department officials said placed the program on an even firmer legal footing.

“Jim Comey can talk about whatever reservations he may have had, but the fact is that there were strong protections in there,” Mr. Snow said. “This is a program that saved lives, that is vital for national security, and furthermore has been reformed in a bipartisan way that is in keeping with everybody.”

Spokesmen for Mr. Ashcroft, Mr. Mueller, and the Justice Department declined to comment. Mr. Card did not respond to a reporter’s inquiries.


By Michael Collins

** Bush, Gonzales, Card Clearly Implicated **

Scoop Independent News
May 18, 2007

Tuesday was a remarkable day at the U.S. Senate Judiciary Committee hearings. The exchange between Sen. Charles Schumer (R-NY) and former Deputy Attorney General James Comey provides clear evidence pointing to criminal activity by the president, U.S Attorney General Alberto Gonzales, and former presidential advisor, Andrew Card. If Comey’s testimony is supported by other reliable witnesses, the Bush, Gonzales, and Card crew have some serious questions to answer.

Schumer got right to the point when he asked that Comey confirm “media reports of a dramatic visit by Alberto Gonzales and Chief of Staff Andrew Card” to the hospital room of an ailing and stricken John Ashcroft in early March, 2004

Why were they visiting Ashcroft in the hospital? Ashcroft, then the U.S. Attorney General, was gravely ill and had designated his deputy James Comey as acting attorney general. Previously, they had reviewed and rejected modifications to an unspecified federal program requiring a Department of Justice (DOJ) signature “. . .&nbps;attesting as to its legality,” Comey testified.

Shortly before the deadline for DOJ approval, Comey and the Attorney General met concerning strategy to deal with the legal problems included in the White House program. Just hours later, Ashcroft was admitted to the George Washington Hospital in Washington, D.C. due to of complications from “a severe case of gallstone pancreatitis.” At that point, Comey became Acting U.S. Attorney General.

The White House was very displeased with the acting Attorney General Comey’s rejection of its pet project. This program was just identified as “an extension of the secret NSA warrantless eavesdropping program.” The White House representatives were at the hospital to get the ailing Ashcroft to overrule the man he’d named Acting Attorney General.

The Schumer-Comey exchange is densely packed with material that will appall just about everyone from average citizens to legal experts.

--Forced call to a very ill man. Ashcroft’s wife ordered that no calls come through to the sick and disoriented Ashcroft. Only one caller was able to override her instructions. Comey testified, “I have some recollection that the call was from the president . . .” The White House call was reported to Comey by David Ayers, Ashcroft’s chief of staff. Mrs. Ashcroft told Ayers that the caller indicated that then presidential counsel Alberto Gonzalez and Bush advisor Andrew Card were on their way to the hospital.
--Don’t throw him out! Before the White House duo arrived, the tipped-off Comey diverted a trip home to rush to Ashcroft’s hospital room. He reported a phone exchange with FBI Director William Mueller: “Director Mueller instructed the FBI agents present not to allow me to be removed from the room under any circumstances.” Comey, Mueller, or both anticipated a danger that Comey would be physically barred from Ashcroft’s hospital room. Mueller’s order to agents showed that he wanted Comey present at any meeting with Gonzales and Card in the hospital.
--We know you’re very ill but . . . Gonzales and Card arrived with an envelope and immediately pressed Ashcroft to give DOJ authorization for the program. A stricken Ashcroft sat up briefly and dispatched the White House representatives with dramatic flair saying “I’m not the attorney general.” The implication was clear. The White House had to deal with Comey. “I thought I just witnessed an effort to take advantage of a very sick man.”

The courtly Comey went as far as his sense of restraint would allow. Nothing much more needs be said of Gonzalez, Card, and White House caller who announced their impending arrival. Taking advantage of “a very sick man” is about as low as it gets on the ethics scale.

After all this, Comey was ready to resign in protest. There was a follow-up call to Comey from Andrew Card following the hospital visit where he and Gonzales totally ignored Comey. There were also meetings at Justice. Comey and other senior attorneys were planning a group resignation as a result of the affair. We were headed for replay of the Nixon *Saturday Night Massacre*.

In what should be the most studied exchange, Comey indicates that the surveillance law was implemented without DOJ approval.

Schumer: Right. And you stated that the next day, Thursday, was the deadline for reauthorization of the program, is that right?
Comey: Yes, sir.
Schumer: OK. Can you tell us what happened the next day?
Comey: The program was reauthorized without us and without a signature from the Department of Justice attesting as to its legality. And I prepared a letter of resignation, intending to resign the next day, Friday, March the 12th.

Let’s focus on two critical issues that argue strongly that there were illegal acts committed in this affair. This requires confirmation of Comey’s testimony by the witnesses mentioned. In the meantime, it is a vital part of the process of deciding just how soon impeachment proceedings begin.

Oriented to time and place and “taking advantage of a very sick man.”

Comely used very specific words when he described Ashcroft’s condition. He said, “I immediately began speaking to him, trying to orient him as to time and place, and try to see if he could focus on what was happening, and it wasn't clear to me that he could.” A bit later in the testimony, he uses the term orientation again, attributing the assessment to Ashcroft chief of staff Ayers: "He was very concerned that Mr. Ashcroft was not well enough to understand fully what was going on. And he begged me to wait until -- this was Thursday that I was making this decision -- to wait till Monday to give him the weekend to get oriented enough so that I wouldn't leave him behind, was his concern."

Orientation is a term used in psychiatry to indicate a patient’s awareness level of himself and his surroundings: Where are you? Do you know why you’re here? Etc. If you’re not oriented, you lack the ability to make decisions that range from How do I get home? to Should I sign this agreement? An individual absent full orientation can have periods of temporary lucidity. However, these are brief and do not negate the overall condition of disorientation.

Without orientation to time and place Ashcroft would have lacked testamentary capacity, a legal term indicating one has the capacity to sign a contract or, in this case, approve of warrantless spying on millions of citizens of the United States. Comey makes a strong case that there was no such capacity, other than the moment of lucidity when Ashcroft arose from his bed to admonish the two White House representatives and send them on their way.

Those seeking a signed legal agreement are required to recognize observable limitations to testamentary capacity. Comey makes clear that both he and Ayers had serious questions about Ashcroft’s lucidity. Gonzales, a lawyer, and Card should have had serious questions also. Yet they proceeded. This reported perseverance to gain approval indicates that they violated this basic principle of contract law. The person signing the agreement needs to know what he or she is doing.

The visit to the hospital and attempt to “take advantage of a very sick man” was not only ill-mannered in the worst way; it was an act of deception against the Department of Justice and citizens. As Comey says and Ayers reportedly supports, Ashcroft was not sufficiently oriented to sign an agreement, let alone a complex legal approval.


Before the hospital drama, it was clear that the White House knew that Comey wouldn’t sign off on the reauthorization of the surveillance law. The willingness to go around Comey, the official Acting Attorney General, and seek Ashcroft’s approval is just the opening act of this incident.

The approval was not obtained. Yet as Comey pointed out, “The program was reauthorized without us and without a signature from the Department of Justice attesting as to its legality.”

There are at least two major problems facing the participants in this affair.

First, the White House attempted to obtain approval for a program that they knew the acting Attorney General would not approve. Second, they sought this approval from someone without authority, Ashcroft. He stepped down due to his illness and passed authority to Comey.

Of great significance, however, is the fact that the program was implemented. It doesn’t matter if it was for an hour, a day, or a week. Comey tells us warrantless surveillance on U.S. citizens was implemented without the required DOJ approval due to Comey’s unwillingness to attest “as to its legality.”

If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined under this title or imprisoned not more than five years, or both. (18 USC 371) U.S. Code as of: 01/19/04

If those who continued the warrantless surveillance program did so knowing that the highest and final level of legal authority in the executive branch refused to “attest to its legality,” this was “an offense against the United States” and an “agency thereof” (DOJ). The several responsible were fully oriented and aware of their decisions.

Earlier this year, Cong. Maurice Hinchey (D-NY) and Cong. Henry Waxman (D-CA) pressed the Department of Justice to explain the approval, process for this warrantless surveillance program. Their letter mentions that DOJ staffers investigating this concern were denied security clearances effectively ending the investigation for a period in January 2006. Cong. Hinchey notes that Attorney General Gonzales said that president Bush had personally denied the clearances.

What does the White House have to hide regarding the approval process?

Why did Gonzales and Card see to “take advantage of a very sick man” in order to get the approval denied by Comey, the acting U.S. Attorney General?

Why was the law implemented without DOJ clearance?

Does the attempt to have an ailing and reportedly disoriented Ashcroft sign the agreement represent a Conspiracy to commit offense or to defraud United States (Title 371)?

Does the implementation of a surveillance law represent a Conspiracy to commit offense or to defraud United States (Title 371)?

Why did the President personally deny clearances to DOJ staff investigating the DOJ approval of the warrantless surveillance program?

How many citizens had their rights violated by these programs?

How much longer will we be subject to an administration with the very loosest appreciation for the rule of law and the traditions established over centuries to protect the rights of individuals and the collective body of citizens?

It’s time for a much more aggressive stance on this issue and the larger allegations of illegal and unethical behavior. The gravity of these charges, the history of broken promises and deceptions, and the daily deterioration of our constitutional rights all argue that the appropriate forum is impeachment hearings.

Once Congress acts on impeachment, it may be sufficiently emboldened to restore habeas corpus, a most precious right that the 109th Congress and this administration remove just seven months ago.

--Michael Collins is a writer who focuses on clean elections and voting rights. He is the publisher of the voting rights web site, His recent articles include: "Coalition Paper Ballot Call Spares Vote Villains"; "Paper for President: The Time is NOW"; "A Formula for Catching Election Fraud"; and "Teardown: The Mainstream Media Turns on Bush." A complete list of articles is available here