The Comey conundrum

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Former Acting Attorney General James Comey threatened to resign on March 11, 2004, over the lawlessness of the White House in collecting foreign intelligence. He withheld his resignation and continued serving. Why remains a conundrum after Mr. Comey's startling May 15 testimony before the Senate Judiciary Committee.

In the aftermath of September 11, 2001, President Bush instructed the National Security Agency (NSA) to target the e-mails and phone calls of U.S. citizens on American soil for interception on his say-so alone. The instruction flouted the Foreign Intelligence Surveillance Act of 1978 (FISA). Generally speaking, it requires a judicial warrant based on probable cause to believe the NSA's spying target is implicated in international terrorism or activity on behalf of a foreign nation. Exceptions to the warrant rule are crafted for emergencies or during a 15-day window in wartime.

FISA was the child of extensive congressional committee hearings in 1975-76 which revealed persistent spying abuses by an unchecked executive from President Franklin D. Roosevelt to President Richard M. Nixon. The unifying motive was to cripple or embarrass the president's political opponents.

FISA declared that the statute was the "exclusive" means for gathering foreign intelligence by spying on American citizens via electronic surveillance. Intentional violations were made felonies.

FISA's regulation of the president foreign intelligence authority is exceptionally modest. It generally applies only when American citizens in the United States with a reasonable expectation of privacy are the NSA's targets. But the spying agency ordinarily targets noncitizens abroad for electronic surveillance or physical searches where FISA has no application. In operation, the FISA has been untroublesome to the president's collection of foreign intelligence. Only a handful of warrant requests have been denied in approximately 20,000 cases. On July 31, 2002, the Justice Department applauded FISA before the Senate Intelligence Committee as wonderfully nimble and flexible and in no need of amendment to lower the threshold for the NSA's spying.

FISA's constitutional credentials are thus impeccable. The Founding Fathers empowered Congress to enact "necessary and proper" laws for the execution of presidential authorities that stopped short of exerting a "controlling influence" over the chief executive. Accordingly, the United States Supreme Court has sustained mild congressional regulation of the president's law enforcement functions in creating independent counsels or independent agencies in Morrison v. Olson and Humphrey's Executor, respectively. FISA similarly eschews handcuffing the president's ability to collect foreign intelligence. Its scope is narrow. Its hurdles are readily surmounted. And since its enactment 29 years ago, no president has demonstrated FISA had prevented the collection of important foreign intelligence. It speaks volumes that the September 11 Commission did not recommend amending or relaxing FISA as a strategy for defeating international terrorism.

President Bush's flouting of FISA raised concerns at the Justice Department at some point. The NSA's domestic warrantless surveillance program had been periodically submitted to the attorney general for certification of its legality to authorize its renewal. As Mr. Comey testified to the Judiciary Committee, as acting attorney general because of Attorney General John Ashcroft's acute illness, he refused certification when renewal was required on March 11, 2004: "And a week before that March 11 deadline, I had a private meeting with the attorney general for an hour... and I laid out for him what we had learned and what our analysis was in this particular matter. ... And over the next week... we communicated to the relevant parties at the White House and elsewhere our decision that, as acting attorney general, I would not certify the program as to its legality, and explained our reasoning in detail."

President Bush, Vice President Dick Cheney, and the vice president's counsel, David Addington, were apparently aghast. Then White House counsel Alberto Gonzales and chief of staff Andrew Card were dispatched to persuade a disoriented and critically ill Mr. Ashcroft from his hospital bed to overrule Mr. Comey. They failed. Mr. Bush reauthorized the spying program without the department's certification. Mr. Comey then prepared a letter of resignation, and explained to the committee: "I believed I couldn't stay if the administration was going to engage in conduct that the Department of Justice had said had no legal basis."

On March 12, 2004, however, Mr. Bush reversed course and directed the department to do what it "thinks is right to get this [NSA spying program] to where the department thinks it ought to be." The department revised the program to the satisfaction of Mr. Comey, and his resignation letter was withdrawn. But Mr. Comey withheld both a description of the revisions and the legal rationale for the revised program. How could he have been satisfied?

The revision was published by the New York Times in December 2005. The program still entailed NSA spying on the president's say-so alone contrary to FISA. The legal justification for evading FISA expounded by Attorney General Gonzales in a 42-page white paper before the Senate Judiciary Committee in February 2006 was laughably amateurish. A federal district court in Michigan has held the Comey-revised program illegal. The department later sought and received some type of FISA warrant that has yet to be disclosed.

More explanation should be demanded about Mr. Comey's decision to stay.

Bruce Fein is a constitutional lawyer at Bruce Fein & Associates and chairman of the American Freedom Agenda, an organization devoted to restoring checks and balances and protections against government abuses.