Legal Affairs May 2007

Another Gonzales Horror Story

Every day that Attorney General Alberto Gonzales is allowed to remain in office is corrosive to constitutional governance.
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Every day that Attorney General Alberto Gonzales is allowed to remain in office is corrosive to constitutional governance and an invitation to further politicization of the Justice Department.

That is the main lesson of former Deputy Attorney General James Comey's astonishing revelations on May 15 about Gonzales's sinister involvement in a March 2004 effort to continue a then-secret warrantless eavesdropping program after it had been declared unlawful by then-Attorney General John Ashcroft and his subordinates.

Meanwhile, the May 14 resignation of Paul McNulty, Comey's successor as deputy attorney general, further depleted the ranks of principled professionals in the demoralized department, which Gonzales has been filling with inexperienced political hacks. In the words of Arlen Specter, the Senate Judiciary Committee's senior Republican, as long as Gonzales is in charge, "it's embarrassing for a professional to work for the Department of Justice."

Comey, testifying to the Senate Judiciary Committee, described an extraordinary scene the night of March 10, 2004, in George Washington University Hospital's intensive care unit. Ashcroft, so sick with pancreatitis that he had designated Comey as acting attorney general, was drugged with painkillers after the removal of his gallbladder the day before.

Comey was tipped off at 8 p.m. by Ashcroft's chief of staff (who had been alerted by Ashcroft's wife) that then-White House Counsel Gonzales and then-White House Chief of Staff Andrew Card were on their way to see Ashcroft. Comey said he had "some recollection" (but was not sure) that President Bush himself had called Ashcroft's wife—who had banned all visitors and phone calls—to pave the way for the Gonzales-Card visit. Comey correctly surmised that the White House was trying to "do an end run" around him, and to reverse Ashcroft's own decision of a week before, by getting the ailing attorney general to sign a recertification (due the next day) that the eavesdropping program was lawful.

Comey rushed to get to the hospital first, with sirens blaring and lights flashing. "[I] literally ran up the stairs with my security detail." While en route with his FBI bodyguards, Comey found it necessary to call for reinforcements by asking FBI Director Robert Mueller and other top Justice Department officials to join him at the hospital. And Mueller found it necessary (Comey recalled) to order Comey's FBI bodyguards by phone "not to allow me to be removed from the room under any circumstances." Wow.

When Gonzales arrived in the darkened room with Card, Comey was already there, along with Justice Department colleagues Jack Goldsmith and Patrick Philbin. Gonzales asked Ashcroft to sign the recertification. The patient, who had seemed "pretty bad off" to Comey, roused himself long enough to reject the White House emissaries' request "in very strong terms" and to remind them that Comey was acting attorney general. Gonzales and Card left without acknowledging Comey.

"I was angry," Comey recalled in his testimony. "I thought, I 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."

The next day, Comey continued, Bush reauthorized the surveillance program despite the Justice Department's firm position that it was unlawful. The president apparently did this at the urging of Gonzales, Card, Vice President Cheney, and Cheney's then-counsel (and now chief of staff), David Addington.

Bush backed down the morning after that—but only when threatened with mass resignations by top Justice Department officials. The key discussions came after a routine daily Oval Office briefing on terrorism. Bush took Comey alone into his study, where they had what Comey called "a very full exchange." Then, at Comey's urging, Bush met alone with Mueller. Both men evidently made it clear that they were about to resign, along with (probably) Ashcroft and others.

It was then that Bush—faced with a Watergate-like exodus that would surely have spurred demands for impeachment—yielded. He told Mueller to tell Comey to put the program on a sound legal footing. This took two or three weeks, Comey said. (He declined to discuss the nature of the program or the legal problems.)

Comey's testimony shows an especially ugly side to what I (and many others) have long seen as Gonzales's cloddish rubber-stamping of any and all of the bloated claims of power made by Bush, Cheney, and Addington, a legendary infighter with an extreme view of the president's war powers as virtually absolute.

These claims include the infamous, now-sort-of-withdrawn, August 2002 Justice Department memo arguing that the president could authorize, and thereby legalize, the congressionally banned torture—as well as the indefinite, incommunicado incarceration—of any and all persons he branded as "unlawful enemy combatants."

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Stuart Taylor Jr., a contributing editor for National Journal, is teaching a course on the news media and the law at Stanford Law School.

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