News Release

Did Comey’s “Stand-Off” with Bush Lead to Legal Rationale for Monitoring Americans?


The Senate Judiciary Committee held a hearing yesterday to examine the nomination of former U.S. Deputy Attorney General James Comey to be Director of the FBI.

COLEEN ROWLEY, rowleyclan at
Rowley is a former FBI special agent and division counsel whose May 2002 memo described some of the FBI’s pre-9/11 failures and was named one of Time magazine’s “Persons of the Year” in 2002. She wrote an op-ed titled “Questions for the Nominee” that was published yesterday in the New York Times suggesting some hard questions for Senators to ask James B. Comey during his confirmation hearing to become the next FBI Director.

Said Rowley: “Although Comey has refused to actually disclose the details of his meeting with George Bush the morning after his famous hospital room stand-off in March of 2004 which resulted in a very sick Attorney General Ashcroft refusing to certify the Bush Administration’s illegal warrantless monitoring program, it can be deduced that the issue mostly revolved around the John Yoo-Jack Goldsmith difference of opinion as to the legal footing for Bush’s warrantless monitoring, and not the actual extent or conduct of the non-FISA approved electronic interceptions. John Yoo’s legal theories were totally problematic, as was the process after 9-11 by which the Department of Justice (possibly at the insistence of the Bush/Cheney White House) had compartmentalized Yoo so that he did not have peer review within the Office of Legal Counsel [which, among other things, provides legal advice to the President and all other Executive Branch agencies]. And then later, the White House refused to even ‘read in’ other high level DOJ officials like Patrick Philbin into the ‘President’s Surveillance Program.’

“John Yoo tended to base his legal theories on unbridled inherent executive power, even to override courts and Congress. When new OLC Chief Goldsmith came on and finally balked at that, resulting in the Ashcroft-Comey-Mueller-Goldsmith standoff with Bush [officials], Bush did not concede — at least initially. That’s when, I think, Goldsmith hit upon using the Authorization to Use Military Force (AUMF) as the legal basis for ‘amending’ the FISA law — even though Congress was in the dark that, by voting for the AUMF in October 2001, they were also voting to substantially repeal the FISA law.

“The Inspector General Report by Glenn Fine and other information shows it was ‘the legal footing’ of the ‘President’s Surveillance Program’ or ‘PSP’ (which Bush later called the ‘Terrorist Surveillance Program’) to which Comey, Mueller, Goldsmith and others who threatened resignation objected. It seems John Yoo had been the sole source of the legal theory that Bush had inherent executive power to override Congress and the 1978 FISA law, which makes warrantless monitoring a crime. My best assessment—which is difficult because Comey has constantly refused to talk about it and refused again in this morning’s hearing — is that Goldsmith et al. eventually changed the legal footing from ‘inherent executive authority’ to the authority based on the AUMF, which they felt was a stronger rationale for warrantless monitoring than simply overriding Congress. Whatever substantive details, if any, however, changed in how the PCP conducted warrantless monitoring are not known. That would be the real $64 question.

“Admittedly serious issues regarding executive versus congressional power were involved in the hospital room stand-off and the ensuing days when Bush continued the illegal monitoring without his AG’s legal certification, but most people believe the hospital room stand-off dealt with more substance than a mere objection to legal rationale. Nor do we have answers to our questions about stretching the AUMF to cover the warrantless monitoring. No one in Congress, when they voted for war on Afghanistan, would have recognized that they were also authorizing Bush to launch warrantless monitoring of Americans.”

Rowley advised that it’s her understanding that senators may submit further questions for Comey until Friday, July 12, so it may not be too late to have this important question asked and answered.