WASHINGTON — Only four top officials at the Justice Department were given access to details about a warrantless surveillance program that Justice lawyers ultimately determined was partially illegal, a former department lawyer testified Tuesday.
Jack Goldsmith concluded that he “could not find a legal basis for some aspects of the program,” which allowed the government to monitor, without a warrant, communications between the United States and overseas if one of the parties was believed linked to al-Qaida or a related group.
But White House officials were pushing to have it reauthorized anyway, according to testimony from Goldsmith and others.
Goldsmith, former head of the Justice Department’s Office of Legal Counsel, told the Senate Judiciary Committee that access to the surveillance program was so tightly controlled that even the attorney general did not know all the details.
Goldsmith also testified that the White House initially resisted allowing then-Deputy Attorney General James Comey to be briefed on the program at a time when the Justice Department was undertaking a legal review of the effort.
“There was a little bit of struggle getting Jim Comey read into the program,” Goldsmith said, adding that the stated reason by the White House was the “importance of secrecy.”
The testimony by Goldsmith provides further details about a fierce legal debate within the Bush administration in early 2004 about the surveillance program, which culminated in a threat by Goldsmith, Comey and other senior Justice Department and FBI officials to resign en masse if the program were allowed to continue without changes.
The effort included an unusual attempt by two White House aides to gain approval from an ailing John Ashcroft, then the attorney general, during a nighttime visit to his hospital bedside.
Goldsmith, who rushed to the hospital room along with Comey, said the March 2004 visit by then-White House Counsel Alberto Gonzales and then-White House Chief of Staff Andrew Card “seemed inappropriate and baffling.” Goldsmith said Ashcroft told Card and Gonzales that “he didn’t appreciate being visited in the hospital under these circumstances.”
Goldsmith, now a law professor at Harvard Law School, served as the head of the Office of Legal Counsel from 2003 to 2004 and concluded that crucial Justice Department legal opinions on torture and other issues were fundamentally flawed.
Goldsmith also appeared to contradict previous testimony from Gonzales, who repeatedly told lawmakers that there had been no serious disagreement within the administration over the Terrorist Surveillance Program, the public name for the National Security Agency’s warrantless surveillance efforts. Gonzales resigned as attorney general last month.
“There were enormous disagreements throughout the administration about many aspects of the Terrorist Surveillance Program,” Goldsmith said.
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