On one day in the spring of 2004, White House chief of staff Andy Card and the then White House Counsel Alberto Gonzales made a bedside visit to John Ashcroft, attorney general at the time, who was stricken with a rare and painful pancreatic disease, to try —"without success" to get him to reverse his deputy, Acting Attorney General James Comey, who was balking at the warrantless eavesdropping. Miffed that Comey, a straitlaced, by-the-book former U.S. attorney from New York, was not a "team player" on this and other issues, President George W. Bush dubbed him with a derisive nickname, "Cuomo," after Mario Cuomo, the New York governor who vacillated over running for president in the 1980s. (The White House denies this; Comey declined to comment.)
While the New York Times story didn't give a final answer of what decision Ashcroft gave to Card and Gonzales in that hospital room meeting, the Times did say that Ashcroft was "reluctant" to give his approval. Newsweek is saying that Ashcroft refused to give his approval on the NSA wiretaps. What is more, Ashcroft refused to reverse the decision of his deputy, James Comey, on the issue. Now, Ashcroft may have been one of the wing-nuttiest of the hard-lined conservatives in the Bush administration, but Ashcroft is also a lawyer. He has some understanding of constitutional law, and the issue of "checks and balances." Ashcroft may have seen this as an over-stepping of presidential authority, and probably realized that the White House was circumventing the FISA courts (considering that the federal investigators could still get FISA warrants up to 72 hours after initiating a wiretap on a suspect). So Ashcroft refused to play ball. Granted, this is all speculation, since Ashcroft has refused to comment on the New York Times story, and I would imagine also on the Newsweek story as well.
I also find it interesting that President Bush called James Comey, "Cumo," after the New York Governor Mario Cumo. While the White House denies this, the idea that Bush linked the name of this by-the-book Justice Department official, with the name of a liberal governor, and a top Democratic Party leader is still interesting. If Bush was angry at Comey, he didn't refer to Comey in the usual, vulgur, slang terms, but rather to link Comey's name to a highly-placed, Democratic Party, political leader, with very liberal views, that Bush and the neocons would certainly despise. We've heard other unsubstantiated references of Bush calling the constitution a "god-damned piece of paper." So while the White House denies this, I also wonder if this reference to Comey is also true.
The rest of the Newsweek article is a summary of the illegal wiretapping events, and a history of presidents pushing for more executive powers during war. But there are other interesting nuggets of information. Consider this:
The legal justification, in addition to the commander in chief's warmaking power under the Constitution, was a congressional resolution that was shouted through in September 2001, three days after the attacks. Most members of Congress seem to have assumed they were voting to authorize an attack on Al Qaeda and the Taliban in Afghanistan. But a former White House official involved in the drafting, who did not wish to be identified discussing internal matters, said the understanding in the administration was that the president was seeking "an express grant of authority from Congress to maximize the power that could be used" —meaning all kinds of power to seek out, detain and kill terrorists.
While Congress believed the September 2001 resolution was to militarily attack terrorists on foreign soil, the Bush White House believed the resolution was 'carte blanche,' to do whatever they pleased in the name of fighting terrorism. What is more, you can bet the White House never really told Congress that this resolution was a complete blank check to fight terrorism in any way the White House pleased, while pumping up the rhetoric of "taking the fight to the terrorists," or "you're either with us, or you're with the terrorists." And Congress never thoughtfully questioned specifically what powers the president should have in this war on terrorism, fearing that if they objected to the Bush White House, they would be called "unpatriotic," or "traitors." Of course, Congress was also swept up on the "Great War on Terrorism" bandwagon. In fact, Newsweek comments on this, saying:
The White House official involved in the September 2001 resolution authorizing force against terrorism recalls very little push back from the Hill. Senate Judiciary Committee chairman Arlen Specter wanted to limit the scope of the measure, but he was successfully rolled.
Given Congress's pliability, several commentators have wondered why the White House did not ask Congress to amend FISA to allow the sort of warrantless data mining and eavesdropping that has set off the current flap. A White House official who declined to be identified discussing internal deliberations says that the administration feared a congressional debate would have tipped off the terrorists to secret "sources and methods" used by the NSA and other spy services.
Two things strike me, regarding this quote. First, the Bush administration was worried that if they went to Congress to amend the FISA court to approve search warrants for data mining, such a request would bring up a congressional debate of which the White House feared. What would such a debate entail? This unnamed White House official says that the congressional debate would tip off the terrorists that the NSA was monitoring phone and email conversations. I beg to differ on that comment. Any smart terrorist would probably have to assume that with the U.S. military and intelligence community's advanced electronic eavesdropping capabilities, that their calls and emails may be intercepted and monitored by computers. That is not to say that every cell phone call or email message is actually reviewed by an intelligence officer, but rather that there are ways for intelligence officers to collect this information, and search for patterns which may suggest terrorist-type activities. Such a terrorist could easily adapt his communications in response to this monitoring--a perfect way is instead of communicating through phone or email, send letters through regular mail or FedEx. I would say that the Bush administration was more worried that a congressional debate on the NSA data-mining would bring up the issues of illegal searches and seizures, and basic Fourth Amendment rights of Americans. That's the second point. Such a congressional debate pitting Americans Fourth Amendment rights against warrantless searches, verses the government's right to use new intelligence gathering technologies, was a debate that the Bush White House did not want to engage in. Congress would have debated on this issue, and if Congress would have approved of the NSA data-mining techniques, such an approval could have included safeguards against warrantless searches--an example would be Justice Department, or even NSA lawyers would have to get FISA approved warrants for NSA data-mining, rather than allowing NSA sift-supervisors to have the final say on who will be data-mined or wire-tapped. Instead, we get this White House flappy story about how the White House can't tell Congress of the NSA wiretaps, because it might help the terrorists. Thus, the White House kept the NSA wiretappings secret, circumvented the FISA courts, and hoped that this issue would stay hidden from both Congress and the American public.
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