By Dan Eggen and Paul Kane
Washington Post Staff Writers
Wednesday, May 16, 2007; A01
On the night of March 10, 2004, as Attorney General John D. Ashcroft lay ill in an intensive-care unit, his deputy, James B. Comey, received an urgent call.
White House Counsel Alberto R. Gonzales and President Bush's chief of staff, Andrew H. Card Jr., were on their way to the hospital to persuade Ashcroft to reauthorize Bush's domestic surveillance program, which the Justice Department had just determined was illegal.
In vivid testimony to the Senate Judiciary Committee yesterday, Comey said he alerted FBI Director Robert S. Mueller III and raced, sirens blaring, to join Ashcroft in his hospital room, arriving minutes before Gonzales and Card. Ashcroft, summoning the strength to lift his head and speak, refused to sign the papers they had brought. Gonzales and Card, who had never acknowledged Comey's presence in the room, turned and left.
The sickbed visit was the start of a dramatic showdown between the White House and the Justice Department in early 2004 that, according to Comey, was resolved only when Bush overruled Gonzales and Card. But that was not before Ashcroft, Comey, Mueller and their aides prepared a mass resignation, Comey said. The domestic spying by the National Security Agency continued for several weeks without Justice approval, he said.
"I was angry," Comey testified. "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 broad outlines of the hospital-room conflict have been reported previously, but without Comey's gripping detail of efforts by Card, who has left the White House, and Gonzales, now the attorney general. His account appears to present yet another challenge to the embattled Gonzales, who has strongly defended the surveillance program's legality and is embroiled in a battle with Congress over the dismissals of nine U.S. attorneys last year.
It also marks the first public acknowledgment that the Justice Department found the original surveillance program illegal, more than two years after it began.
Gonzales, who has rejected lawmakers' call for his resignation, continued yesterday to play down his own role in the dismissals. He identified his deputy, Paul J. McNulty, who announced his resignation Monday, as the aide most responsible for the firings.
"You have to remember, at the end of the day, the recommendations reflected the views of the deputy attorney general," Gonzales said at the National Press Club. "The deputy attorney general would know best about the qualifications and the experiences of the United States attorneys community, and he signed off on the names," he added.
Those comments appear to differ, at least in emphasis, from earlier remarks by Gonzales, who has previously laid much of the responsibility for the dismissals on his ex-chief of staff, D. Kyle Sampson. They stand in contrast to testimony and statements from McNulty, who has acknowledged signing off on the firings but has told Congress he was surprised when he heard about the effort.
The Justice Department and White House declined to comment in detail on Comey's testimony, citing internal discussions of classified activities.
The warrantless eavesdropping program was approved by Bush after the Sept. 11, 2001, attacks. It allowed the NSA to monitor e-mails and telephone calls between the United States and overseas if one party was believed linked to terrorist groups. The program was revealed in late 2005; Gonzales announced in January that it had been replaced with an effort that would be supervised by a secret intelligence court.
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.
About 8 p.m. on March 10, Comey said that his security detail was driving him home when he received an urgent call from Ashcroft's chief of staff, David Ayres, who had just received an anxious call from Ashcroft's wife, Janet. The White House -- possibly the president -- had called, and Card and Gonzales were on their way.
Furious, Comey said he ordered his security detail to turn the car toward the hospital, careening down Constitution Avenue. Comey said he raced up the stairs of the hospital with his staff, beating Card and Gonzales to Ashcroft's room.
"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.
Later, Card ordered an 11 p.m. meeting at the White House. But Comey said he told Card that he would not go on his own, pulling then-Solicitor General Theodore Olson from a dinner party to serve as witness to anything Card or Gonzales told him. "After the conduct I had just witnessed, I would not meet with him without a witness present," Comey testified. "He replied, 'What conduct? We were just there to wish him well.' "
The next day, as terrorist bombs killed more than 200 commuters on rail lines in Madrid, the White House approved the executive order without any signature from the Justice Department certifying its legality. Comey responded by drafting his letter of resignation, effective the next day, March 12.
"I couldn't stay if the administration was going to engage in conduct that the Department of Justice had said had no legal basis," he said. "I just simply couldn't stay." Comey testified he was going to be joined in a mass resignation by some of the nation's top law enforcement officers: Ashcroft, Mueller, Ayres and Comey's own chief of staff.
Ayres persuaded Comey to delay his resignation, Comey testified. "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," he said.
The threat became moot after an Oval Office meeting March 12 with Bush, Comey said. After meeting separately with Comey and Mueller, Bush gave his support to making changes in the program, Comey testified. The administration has never disclosed what those changes were.
Staff researcher Julie Tate contributed to this report.
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