JUNE 21, 2013
2004 Showdown Shaped Reputation of Pick for F.B.I.
By JAMES RISEN and MICHAEL S. SCHMIDT
WASHINGTON -- If it were not for a now famous scene in a hospital just blocks away from the White House, it is unlikely that James B. Comey would have been standing in the Rose Garden on Friday to be introduced as President Obama's nominee for the director of the F.B.I.
Mr. Comey was serving as acting attorney general in the Bush administration's Justice Department when he became the central figure in the most dramatic constitutional crisis of the nation's 12-year war on terrorism, and his role in the events surrounding that showdown on March 10, 2004, have shaped his public life and reputation.
His confrontation with White House officials that March night in the cramped confines of Attorney General John Ashcroft's room at George Washington University Hospital has since made him widely lionized as a guardian of the Constitution for resisting pressure to rubber-stamp a National Security Agency surveillance program that he and others at the Justice Department believed violated the law.
A senior Obama White House official said on Friday that Mr. Comey's part in the 2004 crisis was "an important factor in the president's decision making" when he selected him to succeed Robert S. Mueller III as director of the Federal Bureau of Investigation.
Mr. Obama alluded to Mr. Comey's role in announcing his choice on Friday, praising Mr. Comey as a man of "fierce independence and deep integrity."
Despite the showdown, in which Mr. Comey refused the request of White House aides to reauthorize a program for eavesdropping without warrants, he was later willing to go along with most of the Bush administration's surveillance operations. He and his allies, including Mr. Mueller, eventually backed down from their threats to resign in protest after the White House made modest adjustments.
Mr. Comey did not object to the key element of the Bush administration's program -- the wiretapping of American citizens inside the United States without warrants. Instead, he focused on trying to curb a large data mining operation inside the United States, similar to the data mining programs at the center of the current controversy over the National Security Agency.
A former senior intelligence official who played a role in surveillance programs during the Bush administration said that Mr. Comey "never expressed any concern" about the warrantless wiretapping program.
"Although he objected to one thing, he didn't object to everything," the former intelligence official added. "He was quite comfortable with a whole bunch of things."
Some former colleagues in the Bush administration said Mr. Comey's actions were not as heroic as they have been portrayed -- particularly by Mr. Comey in his 2007 Congressional testimony recounting the episode.
In an interview, Andrew Card, a chief of staff to President George W. Bush and one of the White House officials who wanted Mr. Ashcroft to sign off on the surveillance program, played down the idea of a hospital confrontation, saying that at the time he had not realized that Mr. Comey had taken over as acting attorney general and that he was not trying to railroad him.
"Politics had nothing to do with it," Mr. Card said. "Some lawyers and policy makers had one perspective, others had another."
But a thorough review of the episode -- included in a 2009 report by the inspectors general from five federal agencies, which was based on interviews with many participants, their contemporaneous notes and official duty logs -- supports Mr. Comey's version of events. The joint inspector general report notes that some senior Bush White House officials, including Mr. Card, refused to be interviewed for their report.
Mr. Comey, 52, a longtime federal prosecutor, was appointed deputy attorney general in December 2003, at a time of growing turmoil over the Bush administration's most contentious policies in the war on terrorism.
For more than two years, White House officials had been creating a counterterrorism infrastructure that stretched the bounds of American law, and they had relied on a junior attorney in the Justice Department's Office of Legal Counsel, John C. Yoo, to provide them with the legal backing needed for their actions. But when Mr. Yoo resigned in May 2003, Mr. Ashcroft put new lawyers in charge of the Justice Department's national security legal portfolio who were unwilling to bend so easily to the demands of the White House.
Jack Goldsmith, who had been a lawyer at the Pentagon, took over the Office of Legal Counsel in October 2003, and decided that Mr. Yoo's opinion supporting the Bush administration's N.S.A. surveillance programs was flawed, and that there were certain aspects that could not be supported under the law.
In January 2004, at Mr. Goldsmith's request, Mr. Comey was given access to the secret N.S.A. surveillance programs, and he agreed with Mr. Goldsmith's legal reasoning.
In early March, Mr. Ashcroft became ill with severe gallstone pancreatitis, and was hospitalized on March 4. Mr. Comey took over as acting attorney general the next day, and Mr. Goldsmith sent a copy of a memo to Alberto R. Gonzales, then the White House counsel, informing him that Mr. Comey was now in charge.
Mr. Comey took over just days before the Justice Department's regular 45-day legal reauthorization of the secret N.S.A. surveillance programs was due on March 11. Mr. Gonzales and David Addington, counsel to Vice President Dick Cheney, began pressing the Justice Department for the reauthorization.
On March 9, Mr. Goldsmith met with Mr. Gonzales and told him he would not recommend the program's reauthorization, and on March 10, Mr. Comey agreed that certain portions of the N.S.A. surveillance program would have to be changed or shut down before he would agree to reauthorize the program.
By the evening of March 10, with the deadline for the program just hours away, the White House was becoming increasingly desperate. In an interview for the joint inspector general report, Mr. Gonzales said Mr. Bush had told him and Mr. Card to go the hospital to talk with Mr. Ashcroft, who was then in intensive care.
After running up the stairs with his security detail, Mr. Comey just barely beat Mr. Card and Mr. Gonzales to Mr. Ashcroft's hospital room, where he was soon joined by Mr. Goldsmith and another aide, Patrick Philbin. According to Mr. Goldsmith's notes about the incident, quoted in the joint inspector general report, Mr. Comey told Mr. Ashcroft "not to sign anything."
When Mr. Card and Mr. Gonzales arrived a few minutes later, Mr. Gonzales was carrying a manila envelope with the documents required for the March 11 reauthorization.
Mr. Comey testified in 2007 that Mr. Ashcroft explained his legal concerns about the N.S.A. surveillance, and then said: "But it doesn't matter because I'm not the attorney general. There is the attorney general," and pointed at Mr. Comey.
The stalemate continued into the next day, when Mr. Card called Mr. Comey to tell him that the president had reauthorized the N.S.A. programs without the Justice Department's approval. Several Justice Department and F.B.I. officials then considered resigning, including Mr. Comey and Mr. Mueller.
But on March 12, they met separately with Mr. Bush at the White House. According to Mr. Mueller's notes, Mr. Bush told him to work with Mr. Comey and other officials to deal with their legal concerns surrounding the program -- effectively defusing the crisis.
On March 17, Mr. Bush decided to modify the program and drop certain elements in order to satisfy Mr. Comey and Mr. Mueller, according to the joint inspector general report. On May 6, Mr. Goldsmith and Mr. Philbin provided a new legal opinion endorsing the modified surveillance operations, according to the inspector general report. The surveillance operations continued in secret until The New York Times disclosed their existence in December 2005.