It was March 10, 2004. President Bush's chief of staff was Andrew Card. The White House counsel was Alberto Gonzales, now U.S. attorney general. The patient was then-Attorney General John Ashcroft.
Ashcroft had been rushed to the hospital six days earlier after suffering an attack of acute gallstone pancreatitis and had transferred his authority to Deputy Attorney General James Comey. On the night of March 10, Ashcroft was recovering from the previous day's surgery to remove his gall bladder.
Last week, in sworn testimony before the Senate Judiciary Committee, Comey described the events he witnessed that night in Ashcroft's darkened room at George Washington University Hospital. Neither the White House nor any of the other participants has disputed the facts of his account.
But as fascinating as the story is, and as revealing as it is of the character of its participants, its significance lies elsewhere. The bigger issue is why Gonzales and Card wanted Ashcroft's signature, what the Bush administration did after he wouldn't give it to them and how, in the process, the administration demonstrated that it cannot be trusted to police itself.
That is something that should give very serious pause to three federal appeals judges of the 6th U.S. Circuit in Cincinnati who are deliberating over a case that strikes to the heart of the matter: whether it's legal for the American government to spy on its own citizens without first getting a warrant from a court.
Shortly after 9/11, Bush issued a secret order freeing the National Security Agency from the obligation to obtain court warrants before spying on Americans' phone calls, e-mails and other electronic communications that seemed to have some connection to terrorism. A 1978 law, the Foreign Intelligence Surveillance Act, required such warrants from a special court created to consider them, but Bush accepted the theories of administration lawyers who said he could ignore the law.
When the existence of the secret NSA spying program later was revealed, Bush explained that he had set up his own process of oversight for it, including mandatory review and reauthorization every 45 days. One of the requirements for reauthorization was certification of the program's legality by the attorney general. Ashcroft did so every 45 days from 2002 until March 2004.
By then, some things had changed at the Justice Department's Office of Legal Counsel. Two senior officials had left - Jay Bybee, the head of the office, and his deputy John Yoo - and Jack Landman Goldsmith had taken over. Yoo - who has been credited with having written the infamous torture memo claiming it was legal for U.S. interrogators to treat prisoners inhumanely - was among the administration's most aggressive advocates of unrestrained presidential power.
The Office of Legal Counsel is responsible for reviewing all legal and constitutional matters for every administration, and, as Comey testified last week, "Its opinions are binding throughout the executive branch."
As Newsweek reported last year, one of Goldsmith's first acts was to suspend Yoo's torture memo while he and his OLC staff reviewed its legality. They eventually withdrew it.
Early in 2004, Goldsmith's department began re-evaluating the facts and legality of the NSA spying program. With the results of that review in hand, Comey testified, he and Ashcroft met, discussed the matter at length and decided they could not certify the program's legality. Comey informed the White House.
Gonzales and Card staged their nighttime visit to the hospital on March 10, one day before the NSA program needed to be reauthorized. Ashcroft held his ground and refused to sign the paper Gonzales and Card had brought to his hospital bedside. But on March 11, Comey testified last week, "the program was reauthorized without us, without a signature from the Department of Justice attesting as to its legality."
And there it is: Bush had assured the public he had put in place rules to make sure the NSA program operated properly, including a required review and reapproval every 45 days. But when one of those rules got in his way in March 2004, he ignored it and reauthorized the program anyway.
Bush also blocked a 2006 Justice Department investigation into the role of its lawyers in the NSA program and the FISA law by refusing to grant the necessary security clearances to investigators with the Office of Professional Responsibility. In an April 21, 2006, memo to his superior, the head of that office, H. Marshall Garrett, wrote that "Since its creation some 31 years ago ... OPR has never been prevented from initiating or pursuing an investigation."
On Aug. 17, 2006, a federal district judge in Detroit ruled in a civil lawsuit that the NSA program violated the First and Fourth amendments to the U.S. Constitution and the 1978 FISA law. The Bush administration appealed the ruling to a three-judge panel of the 6th U.S. Circuit appeals court in Cincinnati, which heard oral arguments on Jan. 31 of this year. Among its contentions is that it could not establish the legality of the NSA program without revealing classified information, so the court should dismiss the case.
The president claims he can ignore laws enacted by Congress. He claims that the courts must not judge the legality of executive orders he issues and secret programs he establishes. He prevents the Justice Department from investigating the actions of its own staff. And when he cannot meet review standards that he himself establishes, he disregards them.
It's the responsibility of Congress and the courts to rein him in.
Eric Mink is commentary editor for the St. Louis Post-Dispatch. Readers may write to him at emink@post-dispatch.com.
