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 Federal Bureau of Investigation. 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 telephones calls, emails 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 U.S.
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. She 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 United States.
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.
Mueller drafted a letter of resignation by hand: “I am forced to withdraw the FBI from participation in the program,” he wrote. “Further, should the president order the continuation of the FBI’s participation in the program, and in the absence of further legal advice from the AG, I would be constrained to resign as Director of the FBI.”