Surveillance Showdown At Ashcroft’s Sick Bed

Yesterday the Obama Administration released the report of the Intelligence Community Inspectors General. It is an important and interesting story about the Bush Administration’s Presidential Surveillance Program (PSP). Jack Balkin has more here and here and Andy McCarthy here.

The most gripping story in the report is the fight between the White House and the Department of Justice in March 2004 to secure reauthorization of the surveillance program. It reads as if it came from the pages of a Hollywood screenplay. Here’s the key section (from page 21-25):

[O]n March 4, 2004 … Ashcroft was struck with severe gallstone pancreatitis and was admitted to the George Washington University Hospital in Washington, D.C.

On March 5, 2004, Goldsmith advised Comey… that under the circumstances of Ashcroft’s medical condition and hospitalization, … Comey [should] determine that ‘this is a basis for absence or disability of the Attorney General….

Another meeting at the White House was held on March 9, this time with Comey, Goldsmith, and Philbin present. Gonzales told the DOJ OIG [Office of Inspector General] that the meeting was held to make sure that Comey understood what was at stake with the PSP [Presidential Surveillance Program] and to demonstrate the program’s value. Comey said Vice President Cheney stressed that the PSP was ‘critically important’ and warned that Comey would risk ‘thousands’ of lives if Comey did not agree to recertify the program. Comey … stated … that he, as Acting Attorney General, could not support reauthorizing certain intelligence activities unless they were modified.

Philbin said he was leaving work … [on March 10, 2004] when he received a call from Comey, who told Philbin that he needed to get to the hospital right away because Gonzales and Card were on their way there ‘to get Ashcroft to sign something.’…

Comey arrived at the hospital between 7:10 and 7:30 p.m…. Comey … ran up the stairs … to Ashcroft’s floor, and he entered Ashcroft’s room, which he described as darkened, and found Ashcroft lying in bed and his wife standing by his side. Comey said he began speaking to Ashcroft, and that it was not clear that Ashcroft could focus and that he ‘seemed pretty off[.]’

Goldsmith and Philbin arrived at the hospital within a few minutes of each other…. Comey, Goldsmith, and Philbin entered Ashcroft’s room and, according to Goldsmith’s notes, Comey and the others advised Aschroft ‘not to sign anything.’

Gonzales and Card entered Ashcroft’s hospital room at 7:35 p.m…. The two stood across from Mrs. Ashcroft at the head of the bed, with Comey, Goldsmith, and Philbin behind them. Gonzalez told the DOJ OIG that he carried with him in a manila envelope the March 11, 2004, Presidential Authorization for Ashcroft to sign…. Gonzales first asked Ashcroft how he was feeling and Ashcroft replied, ‘Not well.’ Gonzalez then said words to the effect, ‘You know, there’s a reauthorization that has to be renewed….’

… [A]t this point Ashcroft told Gonzales and Card ‘in very strong terms’ about his legal concerns with the PSP, which …Ashcroft drew from his meeting with Comey about the program a week earlier…. Comey testified that Ashcroft next stated: But that doesn’t matter, because I’m not the Attorney General. There is the Attorney General, and he pointed to me [Comey]—I was just to his left. The two men [Gonzales and Card] did not acknowledge me; they turned and walked from the room.