Another controversy for Alberto Gonzales
The US attorney general remains in hot water as questions resurface about his role in a wiretapping program.
First came revelations about the firing of US attorneys. Now Attorney General Alberto Gonzales is taking criticism from Congress for a second controversial subject: warrantless eavesdropping.
Specifically, key lawmakers want to know about Mr. Gonzales's possible role in an alleged fierce battle within the Bush administration itself in 2004 over the wiretapping.
Gonzales has denied that such a fight took place. Yet on May 15, Deputy Attorney General James Comey riveted a Senate hearing with his tale of a race to the hospital room of then-Attorney General John Ashcroft, where White House officials – including Gonzales – tried to pressure an ailing Mr. Ashcroft to overrule his own department and reauthorize the program.
"That night was probably the most difficult night of my professional life, so it's not something that I'd forget," Mr. Comey told the Senate Judiciary Committee.
In March 2004, Ashcroft was hospitalized with a medical condition serious enough to have him sign over control of the Justice Department to his second-in-command, James Comey.
At the time, the National Security Agency's warrantless eavesdropping program, which allowed the monitoring of the international electronic communications of people within the US suspected of links to terrorism, was up for renewal by the president. But the Justice Department's Office of Legal Counsel had decided that the program as it stood was illegal.
Comey was a Bush appointee and by all accounts a staunch Republican. But as a career prosecutor he decided to stand by the Justice Department's interpretation.
So the White House tried to go over his head, he said. Late in the day on March 10, 2004, a team of White House officials that included counsel Gonzales and chief of staff Andy Card raced to Ashcroft's room at George Washington University hospital. Comey beat them there, and shortly was joined by FBI Director Robert Mueller.
Gonzales entered the room and began to appeal to Ashcroft. Ashcroft then lifted his head from the pillow and pointed out in a strong voice that Comey, not he, was acting as the head of the Justice Department, and that the White House would have to deal with that fact.
"I was angry. I thought I had just witnessed an effort to take advantage of a very sick man who did not have the powers of the attorney general," Comey testified.
Eventually, Comey met with President Bush himself and engineered a compromise. The program proceeded for some weeks without Justice Department approval, but changes were then put in place to accommodate the department's concerns.
In his congressional testimony, Comey did not mention warrantless eavesdropping by name, referring instead to a "particular classified program." But the context, plus previous news reports about the hospital dispute, indicated his likely subject.
The dispute could have centered on whether the National Security Agency had proper legal oversight of the program in place, according to outside experts. It may have included the basic question of whether the president had the legal and constitutional authority to authorize such wiretaps in the first place.
"That's the backdrop of this, it seems to me. And remember, the timing of this approach to Ashcroft at the hospital was before any of this became public," says University of Richmond law professor Carl Tobias.
Comey's testimony revived the issue of one of the Bush administration's most controversial programs at a moment when Attorney General Gonzales is trying to put disputes about the firing of US attorneys behind him.
Previously, Gonzales has given carefully worded denials that an internal struggle over wiretapping took place.
In February 2006, Gonzales told the Senate Judiciary Committee that "there has not been any serious disagreement about the program that the President has confirmed. There have been disagreements about other matters regarding operations, which I cannot get into."
On May 16, four Democratic senators sent Gonzales a letter asking whether he wished to revise this testimony, in light of Comey's revelations.
Gonzales's testimony "was and remains accurate," said Justice Department spokesman Dean Boyd.
"While the attorney general provided this testimony in an unclassified setting, it is important to consider that the fact and nature of such disagreements have been briefed to the intelligence committees," Mr. Boyd said.
The next few weeks do not promise to get much easier for the embattled attorney general. Next week, his former White House liaison, Monica Goodling, is scheduled to testify before Congress under a grant of immunity.
Prior to obtaining immunity, Ms. Goodling had refused to testify on grounds of possible self-incrimination. The testimony of other officials and e-mails and other documentary evidence released by the Justice Department appear to place her at the heart of the effort to dismiss US attorneys.
• Wire services contributed to this report.