In the continuing saga that is the New York Times parceling of information about President Bush’s warrantless wiretap program, Eric Lichtblau and James Risen report that top Justice Department officials may have refused to certify the domestic surveillance program in 2004. The report claims that Bush’s chief of staff, Andrew Card, and then-White House counsel Alberto R. Gonzales visited then-attorney general John Ashcroft in the intensive care unit of George Washington University Hospital to obtain the attorney general’s certification of the probably illegal surveillance program.
Ashcroft was hospitalized for gallblader surgery and his top deputy, James B. Comey “had indicated he was unwilling to give his approval to certifying central aspects of the program, as required under the White House procedures set up to oversee it,” according to the Times article. Some accounts indicate that Ashcroft was also reluctant to certify the domestic surveillance program “in light of concerns among some senior government officials about whether the proper oversight was in place at the security agency and whether the president had the legal and constitutional authority to conduct such an operation.”
“It is unclear whether the White House ultimately persuaded Mr. Ashcroft to give his approval to the program after the meeting or moved ahead without it.”
The Bush administration maintained that the “intelligence activities… have been approved at the highest levels of the Justice Department.” Certain readings of Lichtblau’s and Risen’s account would indicate that may not be true:
“What is known is that in early 2004, about the time of the hospital visit, the White House suspended parts of the program for several months and moved ahead with more stringent requirements on the security agency on how the program was used, in part to guard against abuses.”
The Justice Department subsequently conducted a secret audit of the program. The audit is said to have looked specifically at the question of probable cause surrounding the warrantless domestic surveillance. According to Lichtblau and Risen, “that review is not known to have found any instances of abuses.”
That the nation’s top two law enforcement officers had reservations about the legality of warrantless surveillance should be enough to get this resolved quickly. But it’s almost surely not.
The Times held the story for a year at the request of the Bush administration.
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