Former Deputy Attorney General James Comey told the Senate Judiciary Committee that he refused to recertify the program because Attorney General John Ashcroft had reservations about its legality just before falling ill with pancreatitis in March 2004.
The White House, Comey said, recertified the program without the Justice Department's signoff, allowing it to operate for about three weeks without concurrence on whether it was legal. Comey, Ashcroft, FBI Director Robert Mueller and other Justice Department officials at one point considered resigning, Comey said.
"I couldn't stay, if the administration was going to engage in conduct that the Department of Justice had said had no legal basis," Comey told the panel.
A day after the March 10, 2004, incident at Ashcroft's hospital bedside, President Bush ordered changes to the program to accommodate the department's concerns. Ashcroft signed the presidential order to recertify the program about three weeks later.
The dramatic hospital confrontation involved Comey, the acting attorney general during Ashcroft's absence, and a White House team that included Bush's then-counsel, Alberto Gonzales, and White House Chief of Staff Andy Card, Comey said. Gonzales later succeeded Ashcroft as attorney general.
Comey said after one of Ashcroft's top aides told him about the pending visit, he rushed to the hospital with emergency lights flashing and a siren blaring, to intercept Gonzales and Card, the New York Times reported.
Comey said he called Mueller, who agreed to meet him at the hospital. Comey said he "literally ran up the stairs" once he arrived. Mueller then ordered FBI agents guarding Ashcroft not to make Comey leave the room if Gonzales and Card asked for his removal, the Times reported.
Senior government officials had expressed concerns about whether the National Security Agency, which administered the warrantless eavesdropping program, had the proper oversight in place. Other concerns included whether any president possessed the legal and constitutional authority to authorize the program as it operated at the time.
Comey testified Tuesday that when he refused to certify the program, Gonzales and Card headed to Ashcroft's sick bed in the intensive care unit at George Washington University Hospital.
When Gonzales appealed to Ashcroft, the ailing attorney general lifted his head off the pillow and in straightforward terms described his views of the program, Comey said. Then he pointed out that Comey, not Ashcroft, held the powers of the attorney general at that moment.
Gonzales and Card then left the hospital room, Comey said.
"I was angry," Comey told the panel. "I thought I had just witnessed an effort to take advantage of a very sick man who did not have the powers of the attorney general."