James Comey is the grandson of an Irish cop. But it’s not the policeman in his DNA that makes him the right choice to run the FBI. It’s his deep understanding of the power of secret intelligence.
Comey arrived as the No. 2 man at the Justice Department in December 2003, a time of political and constitutional crisis. President George W. Bush had ordered the FBI “to adopt a wartime mentality” after the Sept. 11 attacks, as Bush described it in his memoir. FBI director Robert Mueller, who had taken office a week before the attacks, had done his best. Now the bureau was going beyond the law in the name of national security.
FBI agents were tracking thousands of phone calls, e-mails and Internet addresses in the U.S. under the eavesdropping aegis of the National Security Agency. The highly secret programs were conducted under the code name Stellar Wind; Bush and Attorney General John Ashcroft had to reauthorize them every 45 days.
The number of people who knew the facts was exceedingly small. But Comey was among them.
Comey thought Stellar Wind violated the Constitution’s protections against warrantless searches and seizures. He convinced Mueller, who saw no evidence that the surveillances had saved a life, stopped an imminent attack or discovered an al-Qaeda member in the United States.
Now the two men had to confront the president in a showdown over secrecy and democracy.
On March 4, 2004, Comey told Ashcroft, his boss, that he couldn’t reauthorize Stellar Wind as it stood. Ashcroft agreed. That night, the attorney general was struck with a potentially fatal case of gallstone pancreatitis, sedated and set for surgery. Comey became the acting attorney general.
On March 10, Bush ordered White House chief of staff Andrew Card and White House counsel Alberto Gonzales to get Ashcroft’s signature for the reauthorization of Stellar Wind. Ashcroft was in intensive care after surgery, drifting in and out of consciousness. The president called and insisted on talking to Ashcroft on a matter of national security. His wife took the call and wouldn’t hand over the phone.
Alerted by FBI agents guarding Ashcroft, Comey raced to the hospital. Card and Gonzales entered holding a manila envelope with the presidential authorization inside and demanded a signature. Ashcroft lifted his head off his pillow and denounced the program as illegal.
Then he sank down and said: “I’m not the attorney general. There is the attorney general.” And then he pointed at Comey — the leader of the rebellion against Stellar Wind and the chief law enforcement officer of the U.S.
The president nevertheless signed the reauthorization alone on the morning of March 11. It explicitly asserted that his powers as commander in chief overrode all other laws of the land.
The president and Mueller met the next day in the Oval Office. Mueller told Bush that he would resign if the FBI was ordered to continue warrantless searches on Americans without an order from the Department of Justice. The president pleaded ignorance of the law and the facts. Without doubt, he saw a political disaster at hand — if Mueller, Ashcroft and Comey resigned over a program both illegal and too secret to describe, Bush conceivably could be impeached.
Bush promised to put the programs on a legal footing. This took years. But based on the president’s promise, Mueller and his allies backed down from their threats to resign. By the time the first facts were revealed in the New York Times 20 months later, both Ashcroft and Comey had left the Bush administration.
Mueller has never discussed the confrontation in public. Comey has. He told a group at the National Security Agency what Mueller had heard at the White House: “If we don’t do this, people will die.”
“It is extraordinarily difficult to be the attorney standing in front of the freight train that is the need for this, ” Comey said.” “It takes far more than a sharp legal mind to say ‘no’ when it matters most. It takes moral character. It takes an ability to see the future. It takes an appreciation of the damage that will flow from an unjustified ‘yes.’ It takes an understanding that, in the long run, intelligence under law is the only sustainable intelligence in this country.”
Comey stood before the train. There will be more coming down the track in years to come.
Tim Weiner, a former reporter for The New York Times, has won the Pulitzer Prize and the National Book Award for writing on national security. He wrote this for Bloomberg News.
