Yesterday's testimony in front of the Senate Judicial Committee by former Deputy Attorney Jim Comey was stunning on a number of levels.
The most obvious was the made-for-Hollywood tale of Comey rushing to former Attorney General Ashcroft's bedside to thwart an effort by the White House to get Ashcroft's signature on a reauthorization of the controversial NSA wiretapping program. Salacious in its details, the testimony left many people with their jaws on the floor.
Also obvious, but not as sexy, were the questions raised by senators over the legality of the White House proceeding with the program without a DOJ signature for around two weeks while the program was tweaked to overcome objections raised by the DOJ Office of Legal Counsel. When pressed, Comey would not make an assessment as to the legality of this path taken by the administration.
Due to the classified nature of the program, Comey would not discuss some issues publicly and Senator Schumer called for the committee to have a closed hearing to explore other aspects further. Several threads can be unwound in that venue and all appearances are that the committee under the leadership of Senators Leahy and Schumer will make every effort to do so.
The "you can't make this shit up" drama around Ashcroft's hospital bed dominated most articles that hit the streets after Comey's testimony and understandably so. Further questions about what the administration did or did not do regarding the program in the following weeks also received a good amount of ink suggesting there will be more follow-up.
Not so obvious from yesterday's testimony are some other threads that need to be pulled. A tip of the hat to Glenn Greenwald of Salon for bringing them to our attention.
Under the leadership of Republican Senator Arlen Specter, the Senate Judicial Committee held hearings on the NSA wiretapping program last winter after the New York Times broke the story.
Greenwald reports:
Back in February, 2006 -- a couple months after the New York Times first revealed that the Bush administration was spying on Americans in violation of FISA -- the Senate Judiciary Committee informed the Justice Department that it wanted to question John Ashcroft and his former Deputy, James Comey, regarding the NSA program. In particular, the Committee wanted to question the two DOJ officials about a Newsweek article reporting that both of them, in 2004, refused to certify that the NSA eavesdropping program was legal.
Greenwald draws attention to Gonzales' involvement in blocking testimony by Ashcroft and Comey as reported by Dan Eggen in the Washington Post at the time:
In addition, Attorney General Alberto R. Gonzales signaled in an interview with The Washington Post yesterday that the administration will sharply limit the testimony of former attorney general John D. Ashcroft and former deputy attorney general James B. Comey, both of whom have been asked to appear before the Senate Judiciary Committee regarding the program.
"Clearly, there are privilege issues that have to be considered," Gonzales said. "As a general matter, we would not be disclosing internal deliberations, internal recommendations. That's not something we'd do as a general matter, whether or not you're a current member of the administration or a former member of the administration."
"You have to wonder what could Messrs. Comey and Ashcroft add to the discussion," Gonzales added.
After yesterday's testimony, it goes without saying that Messrs. Comey and Ashcroft had plenty of information to add.
During last year's hearings, the Associated Press obtained a copy of a letter from Assistant Attorney General William Moschella to the Senate Judiciary Committee on the subject of testimony from Ashcroft and Comey:
"In light of their inability to discuss such confidential information, along with the fact that the attorney general has already provided the executive branch position on the legal authority for the program, we do not believe that Messrs. Ashcroft and Comey would be in a position to provide any new information to the committee," Moschella wrote. He was responding to Specter's request that the two men testify this month.
While Moschella indicated their testimony wouldn't be of value, he did not say the committee could not call Ashcroft and Comey to appear.
Another response by the DOJ at the time to the congressional probe into the wiretapping program indicated that an internal investigation by the DOJ Office of Professional Responsibility (OPR) would shed some additional light into actions within the department regarding the program.
Reported in the same Washington Post article:
In a letter to Rep. Maurice D. Hinchey (D-N.Y.), Office of Professional Responsibility counsel H. Marshall Jarrett said that his office has "initiated an investigation" into the Justice Department's role in the NSA surveillance program. The letter, dated Feb. 2 but not received by Hinchey until yesterday, indicates that the probe will include "whether such activities are permissible under existing law."
But Justice Department spokeswoman Tasia Scolinos said the inquiry will be more limited: "They will not be making a determination on the lawfulness of the NSA program but rather will determine whether the department lawyers complied with their professional obligations in connection with that program."
Scolinos also said that "OPR routinely looks into issues of this kind."
Sounds great, but...
Greenwald:
In addition to blocking Comey and Ashcroft's testimony about these matters throughout all of last year, the Bush administration -- led by Bush himself -- single-handedly blocked an investigation into the role played by DOJ lawyers in authorizing the NSA program by extraordinarily refusing to grant security clearances to DOJ investigators in the Office of Professional Responsibility. That investigation -- had it proceeded -- would have encompassed an examination of whether DOJ lawyers acted unethically in authorizing the program.
UPDATED:
AP via the Washington Post
Bush refused to grant security clearances for department investigators who were looking into the role Justice lawyers played in crafting the program, under which the National Security Agency listens in on telephone calls and reads e-mail without court approval, Gonzales told the Senate Judiciary Committee.
Without access to the sensitive program, the department's Office of Professional Responsibility closed its investigation in April.
"It was highly classified, very important and many other lawyers had access. Why not OPR?" Sen. Arlen Specter, R-Pa., the committee chairman, asked Gonzales.
"The president of the United States makes the decision," Gonzales replied.
Yet, according to OPR chief Marshall Jarrett, "a large team" of prosecutors and FBI agents were granted security clearances to pursue an investigation into leaks of information that resulted in the program's disclosure in December. Justice Department inspector general Glenn A. Fine and two of his aides were among other department officials who were granted clearances, Jarrett said in an April memo explaining the end of his probe. That memo was released by the Justice Department Tuesday.
Small wonder Senator Specter was so chagrined during yesterday's testimony. At the time of last year's hearings on DOJ's role in the wiretapping program, the body was under the control of its Republican members. Fortunately that is not the current situation because as Senator Barbara Boxer so succinctly put it, "Elections have consequences."
One of those consequences should be a revisiting of these issues and more around the wiretapping program. Yesterday's jaw dropping testimony was a start.
Keep pulling the threads.
Pulling the threads at DKos today:
TX Freethinker
drational
cici414
UPDATED:
Two more diaries posted today add additional meat to the implications of Comey's testimony. Don't miss them.
Kagro X
MLDB
Keep pulling the threads. As Monica said, "It's starting to unravel."