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Talking Points: Wanton Warrantless Wiretapping

June 8, 2007

Last month's dramatic testimony by former Deputy Attorney General James Comey has prompted renewed attention and focus on the administration's warrantless domestic spying efforts. Describing the shocking lengths that the White House went to in order to gain legal sanction for its surveillance program, Comey revealed that President Bush called then-Attorney General John Ashcroft's wife to seek permission for former chief of staff Andrew Card and then-White House counsel Alberto Gonzales to visit a debilitated and hospitalized Ashcroft at his bedside. The White House orchestrated the hospital visit in March 2004, one day after a meeting between Vice President Dick Cheney and acting Attorney General Comey in which Justice Department officials announced their staunch opposition to certifying the program. Cheney tried to skirt Comey's authority by seeking Ashcroft's approval, but he demurred as well. The White House then reauthorized the spying program "without a signature from the Department of Justice attesting as to its legality," prompting at least eight top Justice officials to threaten their resignation. Bush finally backed down, altering the program in order to get the Justice Department's sign-off. The saga over the White House's trevails to get legal approval underscores the serious questions that surround the program -- questions that remain largely unresolved to this day.

• Attorney General Gonzales must reconcile his conflicting public statements on the warrantless wiretapping program. Testifying before Congress in January 2006, Alberto Gonzales claimed, "There has not been any serious disagreement about the program that the president has confirmed." In light of Comey's dramatic retelling of a showdown that almost led to a mass resignation at the Justice Department in 2004, Gonzales' claim appears extremely difficult to square with the facts. Center for American Progress senior fellow Peter Swire explained that there are two possibilities that stem from the differing accounts. Either Comey and Gonzales were referring to the same program, in which case Gonzales lied under oath about the legal disagreements that surrounded the spying program. Or, Comey's objections applied to a different domestic wiretapping program, suggesting that the administration's spying efforts are broader than the public has been made aware. Gonzales appeared to resolve this dilemma, stating this week that he and Comey were referring to the same program. "Comey's testimony related to a highly classified program which the president confirmed to the American people sometime ago," he said. If Gonzales is telling the truth now, that can only mean he failed to tell the truth in 2006.
  

• It is time for the Justice Department to turn over documents on the warrantless wiretapping program. In order to better understand the legal nature of the administration's warrantless spying program, Jameel Jaffer, a national security analyst at the ACLU, urged Congress yesterday to subpoena documents relating to the program, including court orders and opinions by the Foreign Intelligence Surveillance Court. Members of a House Judiciary subcommittee yesterday threatened to take issue such subpoenas after Steven Bradbury, a principal deputy assistant attorney general and head of the Justice Department’s office of legal counsel, told the panel that the department would not turn over the documents because of their confidential nature.
  

• The administration has lost the confidence of the people to carry out this kind of surveilance. Citing a policy announced by President Bush in Jan. 2007, Bradbury said yesterday that the warrantless wiretapping program hasn't been reauthorized for "several months," and "any electronic surveillance that was occurring as part of the program is now subject to the approval" of the Foreign Intelligence Surveillance Court. But Bradbury's comments contradict Bush's explanation of his own policy. In January, Bush said, "Nothing has changed in the program except the court has said we’ve analyzed it and it’s a legitimate way to protect the country."  Indeed, Bush has lost the public's trust. Prior to the revelation of the NSA spying program, Bush had assured the public in 2004 that "a wiretap requires a court order. Nothing has changed."