By Dan Eggen
Washington Post Staff Writer
Friday, August 17, 2007
Then-Attorney General John D. Ashcroft was "feeble," "barely articulate" and "stressed" moments after a hospital room confrontation in March 2004 with Alberto R. Gonzales, who wanted Ashcroft to approve a warrantless wiretapping program over Justice Department objections, according to notes from FBI Director Robert S. Mueller III that were released yesterday.
One of Mueller's entries in five pages of a daily log pertaining to the dispute also indicated that Ashcroft's deputy was so concerned about undue pressure by Gonzales and other White House aides for the attorney general to back the wiretapping program that the deputy asked Mueller to bar anyone other than relatives from later entering Ashcroft's hospital room.
Mueller's description of Ashcroft's physical condition that night contrasts with testimony last month from Gonzales, who told the Senate Judiciary Committee that Ashcroft was "lucid" and "did most of the talking" during the brief visit. It also confirms an account of the episode by former deputy attorney general James B. Comey, who said Ashcroft told the two men he was not well enough to make decisions in the hospital.
"Saw AG," Mueller writes in his notes for 8:10 p.m. on March 10, 2004, only minutes after Gonzales and White House chief of staff Andrew H. Card Jr. had visited Ashcroft. "Janet Ashcroft in the room. AG in chair; is feeble, barely articulate, clearly stressed."
The typewritten notes, heavily censored before being turned over to the House Judiciary Committee, provide further insight into a tumultuous but secret legal battle that gripped the Justice Department and the White House in March 2004, after Justice lawyers determined that parts of the warrantless wiretapping program run by the National Security Agency were illegal.
Although Mueller did not directly witness the exchange between Ashcroft, Gonzales and Card, his notes recounted Comey's personal statement that Ashcroft at the outset said that "he was in no condition to decide issues." Ashcroft also told the two men he supported his deputy's position on the secret program, Mueller said Comey told him.
Comey had precipitated the confrontation by informing the White House days earlier that the Justice Department would not approve the wiretapping program's continuation in its present form. Gonzales and Card then decided to see if they could get Ashcroft to sign a certification that it was legal.
After the meeting concluded without success, the Bush administration decided to proceed with the program anyway. But Comey, Mueller and half a dozen or so other Justice Department officials threatened to resign if it was not changed. The standoff was averted after President Bush agreed to make changes, Mueller and others have testified, but the changes have never been described.
In his notes, Mueller recounts Comey's statement that Ashcroft complained to Gonzales and Card at the hospital about being "barred" from obtaining "the advice he needed" about the NSA program because of "strict compartmentalization rules" set by the White House. Although Ashcroft, as attorney general, had been fully briefed about the program, many of his senior legal advisers were not allowed to know about it, officials said.
Gonzales was White House counsel at the time of the hospital visit and replaced Ashcroft as attorney general in 2005. "We never had any intent to ask anything of him if we did not feel that he was competent," Gonzales testified, adding later: "Mr. Ashcroft talked about the legal issues in a lucid form, as I've heard him talk about legal issues in the White House."
But Rep. John Conyers Jr. (D-Mich.), chairman of the House Judiciary Committee, said in a statement that Mueller's notes "confirm an attempt to goad a sick and heavily medicated Ashcroft to approve the warrantless surveillance program. Particularly disconcerting is the new revelation that the White House sought Mr. Ashcroft's authorization for the surveillance program, yet refused to let him seek the advice he needed on the program."
The White House and Justice officials declined to comment. Neither Ashcroft nor his former staffers have commented publicly on the episode.
Although the broad outlines of the hospital visit have been reported in media accounts dating to early 2006, the episode attracted fresh attention after Comey's Senate testimony in May. Comey described his rush to Ashcroft's bedside before the visit by Gonzales and Card, and said Ashcroft, who was under sedation after gallbladder surgery, was initially disoriented and "pretty bad off," though he did speak coherently to Gonzales and Card.
Mueller, who had been dining with his wife and daughter that evening, wrote that Comey told him Ashcroft had reviewed for Gonzales and Card "the legal concerns relating to the program." Throughout his notes, he makes consistent references to a single "program" as the object of the dispute. Gonzales, in congressional testimony that he later clarified, said the dispute was about "other intelligence activities," rather than the warrantless wiretapping effort that Bush described as his "Terrorist Surveillance Program."
The notes list a series of high-level meetings about the spying program before and after the hospital visit, including meetings with Card, Gonzales and Michael V. Hayden, then the NSA director. The notes confirm a previously disclosed meeting on March 12 between Mueller and Bush, but the page of text describing the meeting is almost entirely blacked out.
The records show that Mueller met with Vice President Cheney in connection with the dispute later in the month, on March 23. A paragraph describing that meeting is also censored.
Sen. Patrick J. Leahy (D-Vt.) asked the Justice Department's inspector general yesterday to investigate whether Gonzales has misled lawmakers in those and other statements, including some related to last year's controversial firings of nine U.S. attorneys. Other Democrats have asked for a full perjury investigation.