This page can be viewed at http://www.historycommons.org/entity.jsp?entity=patrick_f._philbin
Patrick Philbin joins the Justice Department’s Office of Legal Counsel (OLC). Philbin is an old friend and colleague of the OLC’s John Yoo; both graduated from Yale and both clerked for Judge Laurence Silberman and Supreme Court Justice Clarence Thomas. Philbin has no experience in the legalities surrounding national security issues; he spent the 1990s working for a corporate law firm helping telecommunications companies sue the Federal Communications Commission. Philbin joins the OLC with the expectation of working solely with administrative law. But after the 9/11 attacks, he will be asked to help Yoo handle the unexpected raft of national security issues. His first real work in the area of national security will be his finding (see November 6, 2001) that the president has untrammeled power to order the establishment of military commissions (see Late October 2001 and November 13, 2001). (Savage 2007, pp. 136)
In the weeks following 9/11, government lawyers begin to formulate a legal response to the newly perceived threat of terrorism. Four related issues are at hand: forceful prevention, detention, prosecution, and interrogation. What degree of force can the government employ to prevent acts of terrorism or apprehend suspected terrorists? How and where can it best detain terrorists if captured? How can it best bring them to trial? And how can it best obtain information from them on terrorist organizations and plots? These questions are handled in a new atmosphere that is more tolerant towards flexible interpretations of the law. Bradford Berenson, an associate White House counsel at this time, later recalls: “Legally, the watchword became ‘forward-leaning’ by which everybody meant: ‘We want to be aggressive. We want to take risks.’” (Golden 10/24/2004) This attitude is seemingly in line with the president’s thinking. Counterterrorism “tsar” Richard Clarke will later recall President Bush saying, “I don’t care what the international lawyers say. We are going to kick some ass” (see (9:00 p.m.-10:00 p.m.) September 11, 2001). (Clarke 2004, pp. 23-24) At the center of legal reconstruction work are Alberto R. Gonzales, the White House counsel, his deputy Timothy E. Flanigan, and David S. Addington, legal counsel to Vice President Cheney. (Golden 12/19/2004) They will find a helpful hand in the Justice Department’s Office of Legal Counsel (OLC), most notably its head, Assistant Attorney General Jay S. Bybee (Savage and Schmitt 6/10/2004) and his deputies John C. Yoo (Rosen 8/15/2004) and Patrick F. Philbin. Most of the top government lawyers dwell in fairly conservative circles, with many being a member of the Federalist Society, a conservative legal fraternity. Some have clerked for conservative Supreme Court Justices Antonin Scalia and Clarence Thomas, whose ruling effectively lead to the presidency being awarded to George W. Bush after the 2000 presidential election. (Golden 10/24/2004) Others worked for Judge Lawrence H. Silberman, who set up secret contacts with the Iranian government under President Reagan leading to the Iran-Contra scandal, and who advised on pursuing allegations of sexual misconduct by President Clinton. (Lobe 2/6/2004)
Deputy White House counsel Timothy Flanigan presents his subordinate, associate counsel Bradford Berenson, with a draft presidential order he has written establishing military tribunals for suspected terrorists. The draft order declares that President Bush is invoking his wartime powers as commander in chief to establish a system of military tribunals, sometimes called military commissions.
Commissions More 'Flexible' - In the White House’s view, military tribunals offer several advantages over either civilian court trials or military courts-martial, as is being discussed in the interagency working group on prosecuting terrorists at the State Department (see Shortly Before September 23, 2001). Civilian trials would be subject to public scrutiny and media spectacle, and would pose a problem of security risks. Military courts-martial are quite rigid in their procedures and rules of evidence. Military commissions, as envisioned by Flanigan and the two other White House lawyers who put together the scheme—Berenson and David Addington, the chief counsel for Vice President Cheney—would offer more “flexibility” for the use of evidence gathered either under battlefield conditions or in interrogations, evidence that might not meet the standards of either a court-martial or a civilian trial. And, as author Charlie Savage will later note, “commissions enhanced presidential power by concentrating the process in the executive branch alone.”
A 'Relic' - Savage will explain: “Under normal trials, Congress defines a crime and sets the sentence for it; the executive branch investigates and prosecutes people who are accused of committing the crime; and the judicial branch runs the trial, decides whether to admit evidence, determines whether the defendant is guilty or innocent, and hears any appeal. With a military commission, all these powers were collapsed into the hands of the armed forces and, ultimately, their commander in chief. Although fairly common in nineteenth-century conflicts, military commissions were a relic: They had not been used by the United States since World War II.”
Support from Justice Department Lawyer - Their work will be bolstered when Justice Department lawyer Patrick Philbin issues a secret memo declaring that the president has the inherent authority to order military commissions (see November 6, 2001). Flanigan, Berenson, and Addington never inform the interagency working group of their own work, although they made use of the working group’s research. Flanigan, Berenson, and Addington cite Philbin’s memo as the definitive word on the president’s authority. When President Bush announces the order establishing the commissions (see November 13, 2001), the order abruptly short-circuits the interagency working group and renders its work irrelevant. (Savage 2007, pp. 134-135)
The Geneva Conventions are mentioned in a memo issued the day after the publication of the Heritage Foundation paper (see November 5, 2001), but only to suggest that suspected terrorists should not be entitled to the rights enclosed in them. Patrick F. Philbin, a deputy in the OLC, sends a confidential 35-page memo to the White House legal counsel Gonzales, arguing that the president, as Commander-in-Chief, has “inherent authority” to establish military commissions without authorization from the US Congress. The 9/11 attacks are themselves “plainly sufficient” to justify the application of the laws of war. Furthermore, putting terrorists on trial under the laws of war, “does not mean,” according to Philbin, “that terrorists will receive the protections of the Geneva Conventions or the rights that laws of war accord to lawful combatants.” The Philbin memo will serve as a basis for a Presidential order (see November 13, 2001) establishing the option of military commissions, which will be drafted by Deputy White House Counsel Timothy E. Flanigan and David S. Addington, the legal counsel to Vice President Cheney. (Golden 10/24/2004)
Patrick Philbin, an attorney with the Justice Department’s Office of Legal Counsel, writes a lengthy and detailed memo arguing that the president may establish so-called “military commissions” for the trial and disposition of terror suspects without involvement in the US criminal justice system. Furthermore, Philbin opines, the president may do so without the approval or even the knowledge of Congress. (US Department of Justice 11/6/2001 ; American Civil Liberties Union [PDF] 1/28/2009 ) Philbin’s central argument is that 9/11 was an act of war, not a crime, and therefore the attacks triggered the president’s full array of war powers, including the inherent authority to create military commissions. Philbin cites a 1942 case where then-President Roosevelt created a military commission to try eight Nazi saboteurs captured inside the US during the first year of America’s involvement in World War II (see 1942); even though the Supreme Court backed Roosevelt, he felt unsure of the legality of such commissions, and did not use them in later trials of captured saboteurs. Since World War II, the laws of war have undergone drastic revisions, with Congress enacting the Uniform Code of Military Justice (UCMJ), which said that if military commissions were ever to be used again, they should use, as much as is practical, the same procedures and defendant rights as are found in military courts-martial. The Senate had also ratified the 1949 Geneva Conventions, which granted all wartime prisoners the right to a fair trial. Philbin’s memo ignores everything except the 1942 military commissions, and argues that if the president has the inherent and exclusive right to set up military commissions, as the Supreme Court had found, then Congress has no authority to restrict that right. (Savage 2007, pp. 136-137)
Deputy Assistant Attorney Generals Patrick Philbin and John Yoo send a memorandum to Pentagon General Counsel William J. Haynes offering the legal opinion that US courts do not have jurisdiction to review the detention of foreign prisoners at Guantanamo Bay. Therefore detentions of persons there cannot be challenged in a US court of law. The memo is endorsed by the Department of Defense and White House legal counsel Alberto Gonzales. (Barry, Hirsh, and Isikoff 5/24/2004) The memo addresses “the question whether a federal district court would properly have jurisdiction to entertain a petition for a writ of habeas corpus filed on behalf of an alien detained at the US naval base at Guantanamo Bay, Cuba.” The conclusion of Philbin and Yoo is that it cannot, based primarily on their interpretation of a decision by the US Supreme Court in the 1950 Eisentrager case, in which the Supreme Court determined that no habeas petition should be honored if the prisoners concerned are seized, tried, and held in territory that is outside of the sovereignty of the US and outside the territorial jurisdiction of any court of the US. Both conditions apply to Guantanamo according to Philbin and Yoo. Approvingly, they quote the US Attorney General in 1929, who stated that Guantanamo is “a mere governmental outpost beyond our borders.” A number of cases, quoted by the authors, “demonstrate that the United States has consistently taken the position that [Guantanamo Bay] remains foreign territory, not subject to US sovereignty.” Guantanamo is indeed land leased from the state of Cuba, and therefore in terms of legal possession and formal sovereignty still part of Cuba. But Philbin and Yoo acknowledge a problem with the other condition: namely that the territory is outside the US’s jurisdiction. They claim with certainty that Guantanamo “is also outside the ‘territorial jurisdiction of any court of the United States.’” However, the Supreme Court should not have made a distinction between jurisdiction and sovereignty here; the wording of the decision is really, Philbin and Yoo believe, an inaccurate reflection of its intent: “an arguable imprecision in the Supreme Court’s language.” For that reason, they call for caution. “A non-frivolous argument might be constructed, however, that [Guantanamo Bay], while not be part of sovereign territory of the United States, is within the territorial jurisdiction of a federal court.” (US Department of Justice 12/28/2001 )
The Justice Department’s Patrick Philbin sends a classified memo to Attorney General John Ashcroft. The memo’s contents will not be divulged, but the American Civil Liberties Union (ACLU) will later learn that it regards Ashcroft’s review of the Terrorist Surveillance Program (TSP—see March 2002). (American Civil Liberties Union [PDF] 1/28/2009 ) The memo contains a legal review by Ashcroft of President Bush’s order authorizing the TSP, the Bush administration’s name for its warrantless wiretapping program. The review is requested before one of the 45-day reauthorizations by the president as required by law. (Nguyen and Weaver 4/16/2009)
John Yoo, a neoconservative lawyer in the Justice Department’s Office of Legal Counsel serving as deputy assistant attorney general, writes a classified memo to senior Pentagon counsel William J. Haynes, titled “Application of Treaties and Law to al-Qaeda and Taliban Detainees.” (Lewis 5/21/2004)
Yoo: Geneva Conventions Do Not Apply in War on Terror - Yoo’s memo, written in conjunction with fellow Justice Department lawyer Robert Delahunty, echoes arguments by another Justice Department lawyer, Patrick Philbin, two months earlier (see November 6, 2001). Yoo states that, in his view, the laws of war, including the Geneva Conventions, do not apply to captured Taliban or al-Qaeda prisoners, nor do they apply to the military commissions set up to try such prisoners.
Geneva Superseded by Presidential Authority - Yoo’s memo goes even farther, arguing that no international laws apply to the US whatsoever, because they do not have any status under US federal law. “As a result,” Yoo and Delahunty write, “any customary international law of armed conflict in no way binds, as a legal matter, the president or the US armed forces concerning the detention or trial of members of al-Qaeda and the Taliban.” In essence, Yoo and Delahunty argue that President Bush and the US military have carte blanche to conduct the global war on terrorism in any manner they see fit, without the restrictions of law or treaty. However, the memo says that while the US need not follow the rules of war, it can and should prosecute al-Qaeda and Taliban detainees for violating those same laws—a legal double standard that provokes sharp criticism when the memo comes to light in May 2004 (see May 21, 2004). Yoo and Delahunty write that while this double standard may seem “at first glance, counter-intuitive,” such expansive legal powers are a product of the president’s constitutional authority “to prosecute the war effectively.” The memo continues, “Restricting the president’s plenary power over military operations (including the treatment of prisoners)” would be “constitutionally dubious.” (Mother Jones 1/9/2002; US Department of Justice 6/9/2002 ; Isikoff 5/21/2004; Lewis 5/21/2004)
Overriding International Legal Concerns - Yoo warns in the memo that international law experts may not accept his reasoning, as there is no legal precedent giving any country the right to unilaterally ignore its commitment to Geneva or any other such treaty, but Yoo writes that Bush, by invoking “the president’s commander in chief and chief executive powers to prosecute the war effectively,” can simply override any objections. “Importing customary international law notions concerning armed conflict would represent a direct infringement on the president’s discretion as commander in chief and chief executive to determine how best to conduct the nation’s military affairs.” (Savage 2007, pp. 146) The essence of Yoo’s argument, a Bush official later says, is that the law “applies to them, but it doesn’t apply to us.” (Isikoff 5/21/2004) Navy general counsel Alberto Mora later says of the memo that it “espoused an extreme and virtually unlimited theory of the extent of the president’s commander-in-chief authority.” (Savage 2007, pp. 181)
White House Approval - White House counsel and future Attorney General Alberto Gonzales agrees (see January 25, 2002), saying, “In my judgment, this new paradigm renders obsolete Geneva’s strict limitations on questioning of enemy prisoners and renders quaint some of its provisions.” (Mother Jones 1/9/2002)
Spark for Prisoner Abuses - Many observers believe that Yoo’s memo is the spark for the torture and prisoner abuses later reported from Iraq’s Abu Ghraib prison (see Evening November 7, 2003), Guantanamo Bay (see December 28, 2001), and other clandestine prisoner detention centers (see March 2, 2007). The rationale is that since Afghanistan is what Yoo considers a “failed state,” with no recognizable sovereignity, its militias do not have any status under any international treaties. (Isikoff 5/21/2004; Barry, Hirsh, and Isikoff 5/24/2004)
Resistance from Inside, Outside Government - Within days, the State Department will vehemently protest the memo, but to no practical effect (see January 25, 2002).
Justice Department lawyer Patrick Philbin sends a classified memo to Daniel Bryant, a lawyer with the Justice Department’s Office of Legal Counsel, concerning the “Swift Justice Authorization Act.” The memo states that Congress has no power to interfere with President Bush’s authority to act as commander in chief to control US actions during wartime, including Bush’s authority to promulgate military commissions to try and sentence suspected terrorists and other detainees taken by the US as part of its “war on terror.” Philbin’s colleague, OLC lawyer John Yoo, will cite this memo in his 2003 memo concerning the military interrogation of so-called enemy combatants (see March 14, 2003). (US Department of Justice 4/8/2002 ; American Civil Liberties Union [PDF] 1/28/2009 ) The memo will be made public in early 2009 (see March 2, 2009).
Jack Goldsmith, the new head of the Justice Department’s Office of Legal Counsel (see October 6, 2003), finds himself embroiled in a huge, if secretive, controversy over Justice Department lawyer John Yoo’s torture memos (see January 9, 2002 and January 25, 2002). Yoo, who wrote the original memos over former OLC chief Jay Bybee’s signature, had placed the OLC in the position of asserting that torture can indeed be used against terror suspects. Goldsmith disagrees, feeling that Yoo’s definitions of torture are far too narrow and give far too much latitude to US interrogators. He also believes that Yoo’s assertions of near-unchecked presidential power to authorize torture—at the direct expense of Congressional and judicial oversight—has no legal basis. And, Goldsmith worries, the opinions could be interpreted as a clumsy, “tendentious” attempt to protect Bush officials from criminal charges. The conflict between Goldsmith and Yoo will cost the two men their friendship. “I was basically taking steps to fix the mistakes of a close friend, who I knew would be mad about it,” Goldsmith will recall in 2007. “We don’t talk anymore, and that’s one of the many sad things about my time in government.” Goldsmith decides to withdraw the follow-up March 2003 torture memo, and tells White House officials they cannot rely on it any longer. Actually doing so proves a tricky business. (Rosen 9/9/2007)
'Serious, Serious Problems' - Goldsmith will say in September 2007: “As soon as I absorbed the opinions I realized… that my reaction to them was a big problem. The Office of Legal Counsel rarely overturns its prior opinions, and even more rarely does so within an administration, and even more rarely than that, in the same administration about something this important. I didn’t find any precedent for it. And I did not want to do anything to affect either the programs or the underlying opinions. But they were serious, serious problems, and I knew if and when I was asked to stand by them that I would have a very hard time doing so.” (Klaidman 9/8/2007)
Pressure from Abu Ghraib Scandal - The legal and bureaucratic niceties of withdrawing the memos become moot when, in April 2004, the Abu Ghraib scandal breaks (see Mid-April 2004), and when in June 2004, the first memo is leaked to the media. “After the leak, there was a lot of pressure on me within the administration to stand by the opinion,” he later says, “and the problem was that I had decided six months earlier that I couldn’t stand by the opinion.” (Rosen 9/9/2007) “I had determined that the analysis was flawed,” he will recall. “But I hadn’t determined the underlying techniques were illegal. After Abu Ghraib, there was enormous pressure for me to stand by the decisions… and I couldn’t do so. I had already made up my mind many months earlier and I wasn’t about to change it. But I struggled for several days with what the consequences might be of withdrawing the opinion, because I wasn’t in the position to make an independent ruling on the other techniques. I certainly didn’t think they were unlawful, but I couldn’t get an opinion that they were lawful either. So I struggled to repudiate the flawed opinion while not causing massive disruption and fright throughout the counterterrorism world related to interrogation. And I ultimately decided that I had to withdraw those and under suspicions, stand by it, because it was so thoroughly flawed.” (Klaidman 9/8/2007)
White House Resists Change - Though Goldsmith has the support of his boss, Attorney General John Ashcroft, Ashcroft’s deputy, James Comey, and his own deputy, Patrick Philbin, he knows the White House will fight the withdrawal. Goldsmith will decide to issue the withdrawal and then resign his position (see June 17, 2004), effectively forcing the administration to either quietly accept the withdrawal, or fight it and make his resignation a media circus. “If the story had come out that the US government decided to stick by the controversial opinions that led the head of the Office of Legal Counsel to resign, that would have looked bad,” he later recalls. “The timing was designed to ensure that the decision stuck.” Vice President Dick Cheney’s chief aide, David Addington, among other White House officials, is furious over the withdrawal of the torture opinion (interestingly, White House counsel and future attorney general Alberto Gonzales will modify his own opposition to the withdrawals later, telling Goldsmith in 2007, “I guess those opinions really were as bad as you said”). (Rosen 9/9/2007)
Expansion of Presidential Power - Addington asks Goldsmith incredulously, “Why are you trying to give away the president’s power?” Like Cheney, Addington believes, in Goldsmith’s words, “that the very act of asking for Congress’s help would imply, contrary to the White House line, that the president needed legislative approval and could not act on his own. The president’s power would diminish, Addington thought, if Congress declined its support once asked, especially if it tried to restrict presidential power in some way. Congress had balked, during the month after 9/11, at giving the president everything he had asked for in the Congressional authorization to use force and the Patriot Act. Things would only be worse in 2004 and beyond, Addington believed.” Addington’s two questions are always, Goldsmith writes, “‘Do we have the legal power to do it ourselves?’ (meaning on the president’s sole authority), and ‘Might Congress limit our options in ways that jeopardize American lives?’” While Goldsmith and his colleagues agree that the president has the power, and that seeking Congressional approval might tie the White House’s hands more so than the administration is willing to accept, Goldsmith worries that an unfavorable Supreme Court decision would undercut Bush’s authority much more so than any restrictions passed by a compliant, Republican-led Congress. Addington sees things in very simple terms: ”“We’re going to push and push and push until some larger force makes us stop,” Addington says on several occasions. Addington tells Goldsmith, “Now that you’ve withdrawn legal opinions that the president of the United States has been relying on, I need you to go through all of [the OLC terror memos] and let me know which ones you still stand by.” Goldsmith will do just that, further angering Addington. (Savage 2007, pp. 184; Goldsmith 9/11/2007)
Absolute Power Required to Defend Nation - Goldsmith later writes: “He and, I presumed, his boss viewed power as the absence of constraint. These men believed that the president would be best equipped to identify and defeat the uncertain, shifting, and lethal new enemy by eliminating all hurdles to the exercise of his power. They had no sense of trading constraint for power. It seemed never to occur to them that it might be possible to increase the president’s strength and effectiveness by accepting small limits on his prerogatives in order to secure more significant support from Congress, the courts, or allies. They believed cooperation and compromise signaled weakness and emboldened the enemies of America and the executive branch. When it came to terrorism, they viewed every encounter outside the innermost core of most trusted advisers as a zero-sum game that if they didn’t win they would necessarily lose.” (Goldsmith 9/11/2007)
In an apparent act of political retaliation, Vice President Dick Cheney blocks the promotion of a Justice Department official who raised concerns about the legality of the Bush/NSA domestic wiretapping program (see Early 2002). Patrick Philbin, a senior Justice Department counsel, provided much of the research used by Deputy Attorney General James Comey in Comey’s own refusal to approve the wiretapping program (see March 9, 2004 and March 10-12, 2004). Former White House counsel Alberto Gonzales had replaced Ashcroft as attorney general when Philbin’s name came up for promotion. After Cheney warns Gonzales that he will oppose Philbin’s promotion, Gonzales decides not to promote Philbin to the position of deputy solicitor general. In May 2007, Comey will testify before Congress, “I understood that someone at the White House communicated to Attorney General Gonzales that the vice president would oppose the appointment if the attorney general pursued the matter. The attorney general chose not to pursue it.…It was my understanding that the vice president’s office blocked that appointment” (see May 15, 2007). Senate Judiciary Committee member Charles Schumer (D-NY) says in 2007 of Cheney’s opposition to Philbin’s promotion, and Cheney’s attempts to pressure Justice Department officials to back the wiretapping program, “…White House hands guided Justice Department business. The vice president’s fingerprints are all over the effort to strong-arm Justice on the NSA program.” (Kellman 6/7/2007) Comey will resign in 2005 and give a farewell speech in which he will say that some Justice Department officials paid a price for their commitment to doing what’s right. When asked in his 2007 testimony what he referred to, Comey will answer, “I had in mind one particular senior staffer of mine who had been in the hospital room with me and had been blocked from promotion, I believed as a result of this particular matter.” Comey is speaking of Philbin, who would have likely been promoted to solicitor general in Bush’s second term. Instead, Philbin resigns from the Justice Department and enters private practice. (Shapiro 5/15/2007)
Attorney General John Ashcroft is visited by a squad of top White House and Justice Department officials just hours after Ashcroft underwent emergency surgery for severe, acute pancreatis, and is still recuperating in intensive care. The White House officials attempt to persuade the barely lucid Ashcroft to give his formal approval for the secret National Security Agency warrantless wiretapping surveillance program (see Early 2002), which requires the Justice Department to periodically review and approve it. (Shapiro 5/15/2007; Eggen and Kane 5/16/2007; Eggen 6/7/2007; Kellman 6/7/2007)
Comey, Goldsmith Rush to Head Off Aides - Deputy Attorney General James Comey testifies to the incident before the Senate Judiciary Committee over three years later (see May 15, 2007). Comey will recall that he and Ashcroft had decided not to recertify the surveillance program due to their concerns over its legality and its lack of oversight. On March 9, Ashcroft was rushed to the hospital with severe pancreatis. As per Justice Department procedures, Comey became acting attorney general for the duration of Ashcroft’s incapacity. The next night, just hours after Ashcroft underwent emergency surgery for the removal of his gallbladder, Comey receives an urgent phone call from Ashcroft’s aide, David Ayres, who himself has just spoken with Ashcroft’s wife Janet. Ayres tells Comey that White House counsel Alberto Gonzales and White House chief of staff Andrew Card are en route to Ashcroft’s hospital room to pressure Ashcroft to sign off on the program recertification. A furious Comey telephones FBI director Robert Mueller, and the two, accompanied by aides, race separately through the Washington, DC streets with sirens wailing to reach Ashcroft’s hospital room; they beat Gonzales and Card to the room by a matter of minutes. “I was concerned that, given how ill I knew the attorney general was, that there might be an effort to ask him to overrule me when he was in no condition to do that,” Comey will testify, and will add that to him, Ashcroft appears “pretty bad off.” En route, Mueller instructs the security detail protecting Ashcroft not to allow Card or Gonzales to eject Comey from the hospital room. Card and Gonzales enter just minutes later. (Eggen and Kane 5/16/2007; PBS 5/16/2007) “And it was only a matter of minutes that the door opened and in walked Mr. Gonzales, carrying an envelope, and Mr. Card,” Comey will testify. “They came over and stood by the bed, greeted the attorney general very briefly, and then Mr. Gonzales began to discuss why they were there—to seek his approval for a matter.” (Shapiro 5/15/2007) Gonzales is holding an envelope containing an executive order from Bush. He tells Ashcroft that he needs to sign off on the order, thereby giving the wiretapping program Justice Department authorization to continue unabated. Comey will testify that Ashcroft “lifted his head off the pillow and in very strong terms expressed his view of the matter, rich in both substance and fact, which stunned me. [Ashcroft then adds] ‘But that doesn’t matter, because I’m not the attorney general. There is the attorney general,’” pointing at Comey. Gonzales and Card leave the room without ever acknowledging Comey’s presence. “I was angry,” Comey will recall. “I thought I just witnessed an effort to take advantage of a very sick man, who did not have the powers of the attorney general because they had been transferred to me.” (Eggen and Kane 5/16/2007; Eggen 6/7/2007) “That night was probably the most difficult night of my professional life, so it’s not something I forget,” Comey will testify. (PBS 5/16/2007) Goldsmith is also in the room; like Comey, Goldsmith receives a phone call alerting him to Gonzales’s and Card’s visit, and like Comey, Goldsmith races through the Washington streets to arrive at Ashcroft’s room minutes before Gonzales and Card arrive. He, too, is astonished at the brazen, callous approach taken by the two White House officials against Ashcroft, who he describes as laying in his darkened hospital room, with a bright light shining on him and tubes and wires protruding from his body. “Ashcroft, who looked like he was near death, sort of puffed up his chest,” Goldsmith later recalls. “All of a sudden, energy and color came into his face, and he said that he didn’t appreciate them coming to visit him under those circumstances, that he had concerns about the matter they were asking about and that, in any event, he wasn’t the attorney general at the moment; Jim Comey was. He actually gave a two-minute speech, and I was sure at the end of it he was going to die. It was the most amazing scene I’ve ever witnessed.” As Gonzales and Card leave the room, Goldsmith will recall, “Mrs. Ashcroft, who obviously couldn’t believe what she saw happening to her sick husband, looked at Gonzales and Card as they walked out of the room and stuck her tongue out at them. She had no idea what we were discussing, but this sweet-looking woman sticking out her tongue was the ultimate expression of disapproval. It captured the feeling in the room perfectly.” (Rosen 9/9/2007) After Gonzales and Card leave the room, Comey asks Mueller to instruct the security detail not to let any more visitors into the room, except for family, without Mueller’s approval, apparently in order to keep Gonzales and Card from attempting to return. (US Department of Justice 8/14/2007)
Cheney or Bush Behind Visit? - The hospital visit is sparked by at least two events: a meeting of White House officials a day earlier, where Vice President Dick Cheney attempted to push reluctant Justice Department officials to approve the surveillance program (see March 9, 2004), and Comey’s own refusal to certify the legality of the surveillance, as noted above. (Eggen 6/7/2007) Some believe that the timing of the incident shows that Cheney is the one who ordered Gonzales and Card to go to Ashcroft’s hospital room; Comey personally informed Cheney of his decision not to give his approval to the program. Speculation about Cheney’s ordering of the visit cannot be confirmed, (Roh 7/7/2007; Roh 8/16/2007) though the New York Times states flatly in an op-ed that “Vice President Dick Cheney sent Mr. Gonzales and [Card] to Mr. Ashcroft’s hospital room to get him to approve the wiretapping.” (New York Times 7/29/2007) Three years later, Goldsmith will tell Congress that he believes Bush himself authorized the visit (see October 2, 2007).
Meeting in the White House - Minutes after the incident in Ashcroft’s hospital room, Card orders Comey to appear at a late-night meeting at the White House; Comey refuses to go alone, and pulls Solicitor General Theodore Olson from a dinner party to act as a witness to the meeting. “Mr. Card was very upset and demanded that I come to the White House immediately. After the conduct I had just witnessed, I would not meet with him without a witness present,” Comey will testify. “[Card] replied, ‘What conduct? We were just there to wish him well.’ And I said again, ‘After what I just witnessed, I will not meet with you without a witness. And I intend that witness to be the solicitor general of the United States.’” On March 11, after an al-Qaeda bombing in Madrid kills over 200 people (see 7:37-7:42 a.m., March 11, 2004, Bush recertifies the program without the approval of the Justice Department. Comey responds by drafting a letter of resignation, effective March 12. “I couldn’t stay if the administration was going to engage in conduct that the Department of Justice had said had no legal basis,” he will testify. “I just simply couldn’t stay.” Comey is not the only one threatening to resign; he is joined by Ashcroft, Mueller, Ayres, Goldsmith, Justice Department official Patrick Philbin, and others, who all intend to resign en masse if Bush signs off on the surveillance program without Justice Department support. But Ayres persuades Comey to delay his resignation; in Comey’s words, Ayres “asked me something that meant a great deal to him, and that is that I not resign until Mr. Ashcroft was well enough to resign with me.” Instead of resigning on March 12, Bush meets separately with Comey and Mueller, and promises to make changes in the program (see March 12-Mid-2004). Those changes have never been disclosed, though some changes are later found to be the creation of a secret review court to oversee the surveillance court, and the clarification of what exactly constitutes “probable cause” for surveillance. Comey will testify,…“Director Mueller came to me and said that, ‘The president told me that the Department of Justice should get this where it wants to be—to do what the department thinks is right.’ And I took that mandate and set about to do that, and I accomplished that.” (Thomas and Klaidman 1/9/2006; Shapiro 5/15/2007; Nizza 5/15/2007; Eggen and Kane 5/16/2007; PBS 5/16/2007; Kellman 6/7/2007) Goldsmith recalls his surprise when Congress later approves the program and brings it somewhat under the supervision of the FISA court. “I was sure the government was going to melt down,” Goldsmith says in 2007. “No one anticipated they were going to reverse themselves.” (Rosen 9/9/2007)
Did Gonzales Break the Law? - It is also possible that Gonzales and Card may have broken the law in discussing classified information in a public venue. “Executive branch rules require sensitive classified information to be discussed in specialized facilities that are designed to guard against the possibility that officials are being targeted for surveillance outside of the workplace,” says law professor Neal Katyal, a national security adviser under Bill Clinton. “The hospital room of a cabinet official is exactly the type of target ripe for surveillance by a foreign power. And the NSA program is particularly sensitive. One government official familiar with the program notes, “Since it’s that program, it may involve cryptographic information,” some of the most highly protected information in the intelligence community. The law governing disclosure of classified information is quite strict, and numerous government and military officials have been investigated for potential violations in the past. “It’s the one you worry about,” says the government official. Katyal says that if Gonzales did indeed break the law, the Justice Department cannot run any investigation into the matter: “The fact that you have a potential case against the Attorney General himself calls for the most scrupulous and independent of investigations.” Many others are dismayed and confused by the contradictions between the absolute secrecy surrounding the program, and Gonzales’s and Card’s willingness to openly discuss it in such an insecure location, and in front of witnesses not cleared to hear details about the program—including Ashcroft’s wife, who is present in the room while the officials seek her husband’s signature. Former NSA general counsel Elizabeth Parker says not enough is known about the meeting to be sure whether or not the law was broken. “Obviously things can be discussed in ways that don’t divulge highly classified information,” she says. “The real issue is what is it about this program that is so classified that can’t allow it to be discussed in a Congressional setting, even a closed Congressional hearing. In order to have confidence in what this program is all about, one needs to understand better what the approach is and how it affects the rights of American citizens.”
'Horrible' Judgment - John Martin, who oversaw Justice’s counterintelligence division for 26 years, calls Gonzales’s and Card’s attempt to override Comey’s authority as acting attorney general as more than just “bad judgment.” Martin calls their judgement “horrible…they both knew or should have known that the Attorney General while he was so incapacitated had delegated his power to his deputy Jim Comey. Comey’s actions were heroic under the circumstances.” (Calabresi 5/17/2007)
Snow Dismisses Concerns - In May 2007, after Comey’s testimony to the Senate hits the media, White House press secretary Tony Snow dismisses any concerns about the inappropriateness of Gonzales’s and Card’s pressuring of Ashcroft in his hospital room, and skips over the fact that Comey, not Ashcroft, had the final authority of the Attorney General at the time. “Because he had an appendectomy, his brain didn’t work?” Snow will say of Ashcroft. “Jim Comey can talk about whatever reservations he may have had. But the fact is that there were strong protections in there, this program has saved lives and it’s vital for national security and furthermore has been reformed in a bipartisan way.” Judiciary Committee member Charles Schumer (D-NY) has a different take on the incident: “What happened in that hospital room crystallized Mr. Gonzales’ view about the rule of law: that he holds it in minimum low regard.” (Kellman 6/7/2007) Senate Democrats are preparing to introduce a resolution of no-confidence against Gonzales. (Calabresi 5/17/2007)
The head of the Justice Department’s Office of Legal Counsel (OLC), Jack Goldsmith (see June 17, 2004), Deputy Attorney General Jack Comey, and Justice Department lawyer Patrick Philbin brief reporters on the OLC’s decision to withdraw the department’s memos authorizing torture (see June 22, 2004). Comey explains that the statements about potential defenses against war crimes charges, and the commander in chief’s power to ignore anti-torture laws and treaties, are nothing more than “broad academic theories” that had never actually been relied upon to formulate policy. The “golden shield” memo (see August 1, 2002) is “under review and will be replaced with analysis limited to the legality of actual al-Qaeda interrogation practices and the torture statutes and other applicable laws.” Goldsmith’s decision to withdraw the memos causes what author and reporter Charlie Savage will later term “a final burst of apoplexy among the hard-liners on the Bush-Cheney legal team.” OLC lawyer John Yoo, who authored many of the withdrawn memos, will later write that Goldsmith’s decision set “a terrible precedent” and rendered “Justice Department judgments on the law… just one more political target open to political attack and political negotiations.” Yoo will accuse Goldsmith and Comey of being “too worried about public perceptions” of the department’s work. (Savage 2007, pp. 190-191)
Deputy Attorney General James Comey, who has already tendered his resignation, gives his farewell speech to an assemblage in the Justice Department. Comey makes what author and reporter Charlie Savage will later call “a cryptic reference to the fights over warrantless surveillance and torture issues that he had fought alongside [former Office of Legal Counsel chief Jack] Goldsmith and the other non-team players” (see Late 2003-2005 and June 17, 2004). Comey tells the assembled employees that, during his tenure, he had dealt with issues that “although of consequence almost beyond my imagination, were invisible because the subject matter demanded it.” In these disputes, he says he worked with people whose loyalty “to the law… would shock people who are cynical about Washington.” Those people, he says, “came to my office, or my home, or called my cell phone late at night, to quietly tell me when I was about to make a mistake; they were people committed to getting it right—and to doing the right thing—whatever the price. These people know who they are. Some of them did pay a price for their commitment to [do] right, but they wouldn’t have it any other way.” (US Department of Justice 8/15/2005; Parry 2/8/2006; Savage 2007, pp. 199) Comey will later testify that one of the people he is referring to is former Justice Department lawyer Patrick Philbin. (Savage 2007, pp. 199)
Justice Department official Patrick Philbin testifies in a closed session of the House Intelligence Committee on the subject of interrogation tactics. Philbin testifies that each of the 24 approved interrogation tactics used by US personnel to interrogate terrorist suspects are “plainly lawful.” He notes that laws such as the Military Extraterritorial Jurisdiction Act and the Uniform Code of Military Justice define, to an extent, what is and is not torture, and prohibit excessive interrogation methods that might come under that rubric. He also notes that the US is a signatory to the Convention Against Torture (see October 21, 1994), which defines torture broadly as the intentional infliction of “severe pain or suffering” by anyone acting in an official capacity. He insists the US has done nothing to violate this treaty, nor the War Crimes Act, the Geneva Conventions, or Fifth and the Eighth Amendments to the US Constitution. Although terrorist organizations such as al-Qaeda and “extragovernmental” organizations such as the Taliban do not fall under the protection of the Geneva Conventions, Philbin argues that the US continues to follow its guidelines in its treatment of prisoners from those groups “to the extent consistent with military necessity…” (House Intelligence Committee 7/14/2007 ) However, in 2004, a classified report by the CIA’s Inspector General concluded that some of the interrogation techniques used by the CIA probably did violate the Convention Against Torture (see May 7, 2004).
Except where otherwise noted, the textual content of each timeline is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike