Quotes of the Day

When then-White House counsel Alberto Gonzales went to John Ashcroft's hospital room on the evening of March 10, 2004 to ask the ailing Attorney General to override Justice Department officials and reauthorize a secret domestic wiretapping program, he was acting inappropriately, Ashcroft's deputy at the time, James Comey, testified before Congress earlier this week. But the question some lawyers, national security experts and Congressional investigators are now asking is: Was Gonzales in fact acting illegally?

In dramatic testimony Tuesday, Comey told the Senate Judiciary Committee that he raced to the intensive care unit of George Washington University Hospital that evening to intercept Gonzales and White House chief of staff Andrew Card and prevent them from convincing Ashcroft to reauthorize the program after Justice Department lawyers had concluded that it was illegal. Comey, who during Ashcroft's stay in the hospital was acting Attorney General, has told Congressional investigators that when he arrived at the room and began explaining to Ashcroft why he was there, he was intentionally "very circumspect" so as not to disclose classified information in an unsecure setting and in front of Ashcroft's wife, Janet, who was at his bedside and was apparently not authorized to know about the program.

Comey described what happened next: "The door opened and in walked Mr. Gonzales, carrying an envelope, and Mr. Card. They came over and stood by the bed. They greeted the Attorney General very briefly. And then Mr. Gonzales began to discuss why they were there — to seek his approval for a matter, and explained what the matter was — which I will not do." Ashcroft bluntly rebuffed Gonzales, but Comey's unwillingness publicly to say what Gonzales said in the hospital room has raised questions about whether Gonzales may have violated executive branch rules regarding the handling of highly classified information, and possibly the law preventing intentional disclosure of national secrets.

"Executive branch rules require sensitive classified information to be discussed in specialized facilities that are designed to guard against the possibility that officials are being targeted for surveillance outside of the workplace," says Georgetown Law Professor Neal Katyal, who was National Security Advisor to the Deputy Attorney General under Bill Clinton. "The hospital room of a cabinet official is exactly the type of target ripe for surveillance by a foreign power," Katyal says. This particular information could have been highly sensitive. Says one government official familiar with the Terrorist Surveillance Program: "Since it's that program, it may involve cryptographic information," some of the most highly protected information in the intelligence community.

The law controlling the unwarranted disclosure of classified information that has been gained through electronic surveillance is particularly strict. In the past, everyone from low-level officers in the armed forces to sitting Senators have been investigated by the Justice Department for the intentional disclosure of such information. The penalty for "knowingly and willfully" disclosing information "concerning the communication intelligence activities of the United States" carries a penalty up to 10 years in prison under U.S. law. "It's the one you worry about," says the government official familiar with the program.

In response to questions on the legality of Gonzales' hospital room conversation, Dean Boyd, a spokesman for the National Security Division of the Justice Department, said, "I am not going to speculate on discussions that may or may not have taken place, much less attempt to render a legal judgment on any such discussions." A Senate investigator says the Judiciary Committee is weighing whether to investigate the matter formally. One consideration will be whether the Justice Department itself decides it should be investigated. Gonzales, as head of the department, would be conflicted in the matter. "The fact that you have a potential case against the Attorney General himself calls for the most scrupulous and independent of investigations," says Georgetown's Katyal.

For all the questions concerning any potential violation the conversation may represent, others are more disturbed by the apparent contradiction between the Administration's unusual secrecy about the program and Gonzales' and Card's apparent willingness to discuss it in the open. Initially only eight members of Congress were informed of the program's existence, a strict legal requirement, and after it came to light the Administration refused repeated demands from both Republicans and Democrats for a closed briefing on the program for the entire intelligence committees of the House and Senate.

Weeks after the program was revealed in the New York Times in December of 2005, President Bush held a news conference to address it and said, "It's important for people to understand that this program is so sensitive and so important, that if information gets out [on] how we do it, or how we operate, it will help the enemy." Asked about the hospital visit at a press conference today, President Bush declined to provide specifics, saying that the program was "highly classified." Bush also declined to say whether he himself had authorized Gonzales to have the conversation with Ashcroft, as Comey suggested during his testimony may have been the case.

John Martin, who for 26 years oversaw the Justice Department's counterintelligence division, says he's less worried about the possible divulgence of classified information than he is about Gonzales' and Card's attempt to override Comey, who was acting Attorney General at the time. "That's part of the bad judgment," Martin says of the potential disclosure, but more troubling is that "horrible judgment was demonstrated on the part of Gonzales and Card because they both knew or should have known that the Attorney General while he was so incapacitated had delegated his power to his deputy Jim Comey. Comey's actions were heroic under the circumstances."

To determine whether Gonzales broke the law or not, "You have to know the exact facts," says Elizabeth Parker, Dean of the University of the Pacific Law School and former General Counsel of the National Security Agency. "Obviously things can be discussed in ways that don't divulge highly classified information. The real issue is what is it about this program that is so classified that can't allow it to be discussed in a Congressional setting, even a closed Congressional hearing. In order to have confidence in what this program is all about, one needs to understand better what the approach is and how it affects the rights of American citizens."

Whatever was discussed in that hospital room, one thing is clear — Comey's disclosure of that emergency visit to Ashcroft has further weakened Gonzales' already weak support on Capitol Hill. In the last couple of days, Republican Senator Chuck Hagel has joined the call for the Attorney General's resignation. And Thursday Senators Charles Schumer of New York and Diane Feinstein of California announced they intend to introduce a no-confidence motion against Gonzales in the Senate. Senate majority leader Harry Reid supports the motion and his staff say it could come to the floor as soon as next week.

• Massimo Calabresi/Washington
• Questions are raised about whether he violated the law by discussing classified information in Ashcroft's hospital room