Here is a nice story in today’s

New York Times which really shows us some internal debate at the Justice
Department over warantless taps.

A top Justice Department official objected in 2004 to aspects of the
National Security Agency’s domestic surveillance program and refused to sign
on to its continued use amid concerns about its legality and oversight,
according to officials with knowledge of the tense internal debate. The
concerns appear to have played a part in the temporary suspension of the
secret program.

The concerns prompted two of President Bush’s most senior aides – Andrew
H. Card Jr., his chief of staff, and Alberto R. Gonzales, then White House
counsel and now attorney general – to make an emergency visit to a
Washington hospital in March 2004 to discuss the program’s future and try to
win the needed approval from Attorney General John Ashcroft, who was
hospitalized for gallbladder surgery, the officials said.

The unusual meeting was prompted because Mr. Ashcroft’s top deputy, James
B. Comey, who was acting as attorney general in his absence, had indicated
he was unwilling to give his approval to certifying central aspects of the
program, as required under the White House procedures set up to oversee it.

With Mr. Comey unwilling to sign off on the program, the White House went
to Mr. Ashcroft – who had been in the intensive care unit at George
Washington University Hospital with pancreatitis and was housed under
unusually tight security – because “they needed him for certification,”
according to an official briefed on the episode. The official, like others
who discussed the issue, spoke on the condition of anonymity because of the
classified nature of the program.

Article continues

here.

So the second in command at the Justice Department didn’t think the President
had the power to authorize warrentless taps against U.S. citizens, even in a
time of terrorism. Comey seems to know something about prosecuting terrorism.
You can just read his biography on the
White House
website to know that:

As United States Attorney, Mr. Comey oversaw numerous terrorism cases and
supervised prosecutions of executives of WorldCom, Adelphia, and Imclone on
fraud and securities-related charges. Mr. Comey also created a specialized
unit devoted to prosecuting international drug cartels.

As an Assistant United States Attorney in the Eastern District of
Virginia, he handled the Khobar Towers terrorist bombing case, arising out
of the June 1996 attack on a U.S. military facility in Saudi Arabia in which
19 Airmen were killed. He has personally investigated and prosecuted a wide
variety of cases, including firearms, narcotics, major frauds, violent
crime, public corruption, terrorism, and organized crime. In the Southern
District of New York, he served as lead prosecutor in United States v. John
Gambino et al., a six-month mafia racketeering and murder trial in 1993.

Perhaps Comey knew that by allowing these warantless taps it could also
destroy a prosecutions case against suspects. Its more apparent now that Bush
was going after taps that he knew the FISA court would not approve. Instead of
even attempting it, he decided it more important to send people to visit the
Attorney General who was in ICU and just finished a major surgery. Talk about
not being able to get away from the office.

As Armando
at the Daily
Kos has pointed out, it also seems that Ashcroft may have committed perjury.
On June 8, 2004 he testified to the Senate Judiciary Committee that warrants
were obtained in all cases. Check out
Armando’s entry
for more on that.