By Dan Eggen and Paul Kane
Washington Post Staff Writer and Washingtonpost.com Staff Writer
Friday, July 27, 2007; A08
FBI Director Robert S. Mueller III yesterday contradicted the sworn testimony of his boss, Attorney General Alberto R. Gonzales, by telling Congress that a prominent warrantless surveillance program was the subject of a dramatic legal debate within the Bush administration.
Mueller's testimony appears to mark the first public confirmation from a Bush administration official that the National Security Agency's Terrorist Surveillance Program was at issue in an unusual nighttime visit by Gonzales to the hospital bedside of then-Attorney General John D. Ashcroft, who was under sedation and recovering from surgery.
Mueller's remarks to the House Judiciary Committee differed from testimony earlier in the week from Gonzales, who told a Senate panel that a legal disagreement aired at the hospital did not concern the NSA program. Details of the program, kept secret for four years, were confirmed by President Bush in December 2005, provoking wide controversy on Capitol Hill.
"The discussion was on a national -- an NSA program that has been much discussed, yes," Mueller said in response to a question from Rep. Sheila Jackson Lee (D-Tex.). Mueller told another lawmaker that he had serious reservations about the warrantless wiretapping program.
His testimony presents a new problem for the beleaguered attorney general, whose credibility has come under attack from Democrats and some Republicans. They say Gonzales deceived them on a number of issues, including the NSA program and events surrounding the firing last year of nine U.S. attorneys.
"He tells the half-truth, the partial truth and anything but the truth," said Sen. Charles E. Schumer (N.Y.), as he and three other Democrats on the Judiciary Committee asked the Justice Department yesterday to appoint a special prosecutor to investigate whether Gonzales lied to Congress about the NSA program.
Complicating the administration's predicament, Senate Judiciary Committee Chairman Patrick J. Leahy (D-Vt.) yesterday issued subpoenas to White House adviser Karl Rove and a deputy, demanding their testimony by Thursday as part of the panel's long-running investigation into the prosecutor firings and the alleged politicization of Justice Department career personnel jobs. The White House has refused such requests, prompting House lawmakers to move toward criminal contempt citations against a former Bush legal counsel and his current chief of staff.
Justice Department spokesman Brian Roehrkasse said in a statement that Gonzales's testimony and statements about the NSA program have been accurate, but that "confusion is inevitable when complicated classified activities are discussed in a public forum."
Gonzales is under fire in particular for his testimony in February 2006 that there had been no "serious disagreement" about the NSA wiretapping program. Gonzales and his aides have since said that he was referring to the monitoring of international communications confirmed by Bush and not to other, undisclosed "intelligence activities" that attracted controversy within the administration.
"The disagreement that occurred in March 2004 concerned the legal basis for intelligence activities that have not been publicly disclosed and that remain highly classified," Roehrkasse said.
Other officials, including Mueller and several Democratic lawmakers who were briefed on the NSA's activities, have said that the surveillance, or some part of it, was at the heart of the dispute.
Mueller declined at the hearing to discuss Gonzales's statements on the topic. "I really can't comment on what Judge Gonzales was thinking or saying," he said. "I can tell you what I understood at the time."
Mueller's testimony is particularly striking in light of his opposition to Gonzales's view of the matter at issue during the 2004 legal dispute. Then-Acting Attorney General James B. Comey sought Mueller's help in ensuring that an FBI security detail did not evict Comey from Ashcroft's hospital room during the visit by Gonzales, then White House counsel, and Andrew H. Card Jr., then the White House chief of staff.
Mueller was not present during the hospital visit but testified yesterday that Ashcroft briefed him on the conversation. He repeatedly said he agreed with Comey's version of events, which included testimony that Mueller, Ashcroft, Comey and others were prepared to quit if the program went ahead without changes to render it legal.
Bush agreed to make the changes after he met with Mueller and discussed the objections Mueller shared with Comey, according to Comey's account. Mueller conveyed that promise to Comey.
Signaling that Democrats intend to keep pursuing the issue, House Judiciary Chairman John Conyers Jr. (D-Mich.) wrote to Mueller after yesterday's hearing, requesting notes about the 2004 hospital incident. Mueller testified that he kept records because the episode was "out of the ordinary."
FBI officials declined to comment.
The request by four senators to appoint a special prosecutor was sent to Solicitor General Paul D. Clement. He has taken charge of matters relating to the U.S. attorney firings and related controversies because Gonzales and numerous other aides are recused.
Leahy also raised the possibility this week of asking Justice Inspector General Glenn A. Fine to open a perjury investigation of Gonzales if the attorney general declines to correct testimony that Leahy considers inaccurate.
Besides demanding Rove's testimony on the attorney firings, Leahy sent a subpoena to J. Scott Jennings, the White House's deputy political director. Rove and Jennings appear in Justice Department e-mails discussing steps in the plan to fire the prosecutors.
Research editor Alice Crites contributed to this report.