The former Deputy Attorney General, Doug Comey, yesterday described a dramatic March 2004 encounter with White House Chief of Staff Andy Card and then-White House lawyer Alberto Gonzales in the hospital room of Attorney General John Ashcroft, in which Ashcroft and Comey stood up to White House pressure to re-approve the President’s program of spying on Americans’ international communications without court orders.

The Comey testimony is significant on many levels, but consider this: As of March 2004, the Attorney General and the Deputy Attorney General had concluded that the President’s Terrorist Surveillance Program was illegal. In essence, John Ashcroft and Doug Comey have weighed in on the side of the plaintiffs in pending cases regarding the legality of the TSP for some period of time prior to the remarkable encounter on March 10, 2004 and for some short period of time thereafter until the program was revised to meet DOJ concerns. (According to Comey, 2-3 weeks after the March 10, 2004 encounter, he approved a revised version of the program.)

Only the courts can decide whether Comey and Ashcroft were correct as to the legality of the program both before March 10, 2004 and when it was approved by DOJ in revised form thereafter, but it is clear from this testimony that the program, from some point in its evolution after September 2001 up until it was revised after the March 10 2004 encounter, was illegal, in the opinion of the Attorney General and the Deputy Attorney General, backed up by an an opinion from the Justice Department’s Office of Legal Counsel, which normally takes a broad view of Presidential power.

Comey’s testimony is also highly relevant to the Administration’s latest request to Congress to radically amend FISA: before going forward with FISA amendments, Congress and the public need to understand how the Administration’s proposed legislative changes relate to the three versions of the warrantless program: before March 2004, after March 2004, and as approved by the FISA court in January 2007. Of course, Congress and the public also deserve to know whether the President will comply with the FISA if it is amended, and whether the President continues to run other surveillance programs outside the statute.

This entry was posted on Wednesday, May 16th, 2007 at 10:35 am and is filed under Security & Freedom. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.