Comey's Answers to Written Questions

Marty Lederman

Here are James Comey's written answers to questions from Senators Feingold, Leahy and Schumer. (Previously, Talking Points had posted Comey's answers to questions from Rep. Linda Sanchez of the House Judiciary Committee.)

Comey states that "I believe the following individuals were prepared to resign: Jack Goldsmith, Patrick Philbin, Chuck Rosenberg, Daniel Levin, James Baker, David Ayres, David Israelite, Robert Mueller, [and, although they were] not involved with the matter, I believe a large portion of my staff would have resigned were I to depart."

(Jim Baker, by the way, was a career employee, not a political appointee. As Counsel for Intelligence Policy, he ran the Office of Intelligence Policy and Review that prepares and presents all applications for electronic surveillance under FISA to the FISA Court. He was an extremely valued and trusted figure, within DOJ, the intelligence community, and the FISA court, on all FISA matters. His intention to resign is therefore very telling, I think.)

Comey also explains that the review of the NSA program was initiated by Jack Goldsmith and Pat Philbin in OLC in the late Fall of 2003. Philbin, it should be noted, is a conservative Republican, who clerked for Judge Silberman and Justice Thomas, and who worked very closely with John Yoo on many war- and terrorism-related matters at OLC. The fact that he presumably encouraged Goldsmith to review so many of Yoo's legal conclusions, on interrogation and the Geneva Conventions as well as electronic surveillance (and who knows what else?), is very revealing. In this respect, I should note that although Pat and I obviously disagree on, and have publicly debated, many substantive legal questions, I can vouch that Pat is an extremely skilled, hard-working, conscientious and careful attorney. Comey's new testimony confirms that after this series of OLC repudiations, the Vice President's Office nixed Pat's appointment to be Principal Deputy Solicitor General. That is a real shame, because Pat would have been a superlative Deputy SG (as the eventual appointee, Greg Garre, has been).

Comey also notes that Goldsmith and Philbin had been speaking to the White House for months before the meeting on March 9th and the fateful hospital visit the next evening. In other words, it's not as if the White House was blind-sided with the bad news just hours before they decided to shake down the ailing Attorney General.

The White House's objections to DOJ's new views had been conveyed orally up to that point, but shortly after March 10th, White House Counsel Gonzales issued a memo, presumably drafted by David Addington and presumably adopting a view opposite that of OLC. That should be interesting reading, if it's ever released (in redacted form, of course).

Finally, in the category of Uncomfortable Conversations, there's this:

Q. In your presence, did Mr. Gonzales or Mr. Card ask Mr. Ashcroft questions to elicit his state of mind and/or medical condition prior to discussing their request for authorization of the classified program?

A. I believe Mr. Gonzales began the conversation by asking, "How are you, General?", to which the Attorney General replied, "Not well."

Posted 5:58 AM by Marty Lederman [link]