Revisiting A Famous Hospital Confrontation

AUSTIN, TEXAS -- Just what was it that, in 2004,  nearly caused the director of the FBI and the deputy attorney general to resign, and which culminated in a dramatic (and now dramatized) hospital-room confrontation between senior Justice Department officials and then-White House counsel Alberto Gonzales?

The crisis in March 2004 stemmed from a review of the program by the Justice Department's Office of Legal Counsel, which raised "concerns as to our ability to certify its legality," according to Comey's testimony. Ashcroft was briefed on the findings on March 4 and agreed that changes needed to be made, Comey said.

That afternoon, Ashcroft was rushed to George Washington University Hospital with a severe case of gallstone pancreatitis; on March 9, his gallbladder was removed. The standoff between Justice and White House officials came the next night, after Comey had refused to certify the surveillance program on the eve of its 45-day reauthorization deadline, he testified.

"I was concerned that, given how ill I knew the attorney general was, that there might be an effort to ask him to overrule me when he was in no condition to do that," Comey said, saying that Ashcroft "seemed pretty bad off."

Mueller, who also was rushing to the hospital, spoke by phone to the security detail protecting Ashcroft, ordering them not to allow Card or Gonzales to eject Comey from the hospital room.

Card and Gonzales arrived a few minutes later, with Gonzales holding an envelope that contained the executive order for the program. Comey said that, after listening to their entreaties, Ashcroft rebuffed the White House aides.

"He lifted his head off the pillow and in very strong terms expressed his view of the matter, rich in both substance and fact, which stunned me," Comey said. Then, he said, Ashcroft added: "But that doesn't matter, because I'm not the attorney general. There is the attorney general," and pointed at Comey, who was appointed acting attorney general when Ashcroft fell ill.

It has been widely reported that  Comey objected to the White House's desire to have the attorney general -- seriously ill -- reauthorize an NSA collection program -- codenamed (we think) Stellar Wind -- that swept in massive amount of meta-data emanating to or from an overseas source to a U.S. person with at least some tangential connection to terrorism. The meta-data would include -- or could include -- troves of e-mail messages, internet protocol addresses, phone logs of friends.

But there appears to be more to the story.

After Shane Harris, my National Journal colleague, finished giving a talk on his great new book, a former intelligence community official eased his way into a conversation that Harris, Orin Kerr of George Washington University and I were having about the incident. (Newsweek's Michael Isikoff had asked Harris about his theory during a Q an A.)

"What you think isn't what happened," the official told us, unprompted. "Not about the meta-data?" one of us asked.  "No, not about the meta-data. It was about something else. I can't tell you what it was. I don't think it's been in the public domain yet. If you show me a TOP SECRET clearance, I could go out in the woods somewhere and tell you, but I can't."

Now -- as we were wondering why a former intelligence official would volunteer this information to us, we also got to thinking about what the conflict might actually have been about.

If it wasn't about the collection of data, and it wasn't about how the data was used and it wasn't a question of statutory question  -- the official also offered those nuggets -- that what was left?

Our guess: the retention of the data and how it could be used down the line, subject to minimization procedures.  This data was probably contained in the form of CDRs -- customer data records from telecoms -- and was destined to be indefinitely stored for future use in government databases. (Under current law, telecoms have to retain the information in the event that the FBI or a domestic law enforcement agency subpoenas them.)

Or -- some sort of classified change to the definition of what type of information the NSA could legally retain -- an expansion of what "foreign intelligence information" actually meant.