IT DOESN'T much matter whether President Bush was the one who phoned Attorney General John D. Ashcroft's hospital room before the Wednesday Night Ambush in 2004. It matters enormously, however, whether the president was willing to have his White House aides try to strong-arm the gravely ill attorney general into overruling the Justice Department's legal views. It matters enormously whether the president, once that mission failed, was willing nonetheless to proceed with a program whose legality had been called into question by the Justice Department. That is why Mr. Bush's response to questions about the program yesterday was so inadequate.
"I'm not going to talk about it," Mr. Bush told reporters at a news conference with departing British Prime Minister Tony Blair. "It's a very sensitive program. I will tell you that, one, the program is necessary to protect the American people, and it's still necessary because there's still an enemy that wants to do us harm."
No one is asking Mr. Bush to talk about classified information, and no one is discounting the terrorist threat. But there is a serious question here about how far Mr. Bush went to pressure his lawyers to implement his view of the law. There is an even more serious question about the president's willingness, that effort having failed, to go beyond the bounds of what his own Justice Department found permissible.
Yes, Mr. Bush backed down in the face of the threat of mass resignations, Mr. Ashcroft's included, and he apparently agreed to whatever more limited program the department was willing to approve. In the interim, however, the president authorized the program the Justice lawyers had refused to certify as legally permissible, and it continued for a few weeks more, according to former deputy attorney general James B. Comey's careful testimony before the Senate Judiciary Committee. Under the Constitution, the president has the final authority in the executive branch to say what the law is. But as a matter of presidential practice, this is breathtaking.
These are important topics for public discussion, and if anyone doubts that they can safely be discussed in public, they need look no further than Mr. Comey's testimony. Instead of doing so, Mr. Bush wants to short-circuit that discussion by invoking the continuing danger of al-Qaeda.
"And so we will put in place programs to protect the American people that honor the civil liberties of our people, and programs that we constantly brief to Congress," Mr. Bush assured the country yesterday, as he brushed off requests for a more detailed account. But this is exactly the point of contention. The administration, it appears from Mr. Comey's testimony, was willing to go forward, against legal advice, with a program that the Justice Department had concluded did not "honor the civil liberties of our people." Nor is it clear that Congress was adequately informed. The president would like to make this unpleasant controversy disappear behind the national security curtain. That cannot be allowed to happen.