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MADELEINE BRAND, host:

This is DAY TO DAY. I'm Madeleine Brand.

ALEX CHADWICK, host:

I'm Alex Chadwick.

Coming up, shed a tear for the passing of a TV mom and daughter; the "Gilmore Girls" are cancelled.

BRAND: But first, real-life drama in Washington. A former top Justice Department official, James Comey, testified today before a Senate committee.

CHADWICK: And what he said, it sounded like something out of a John Grisham novel.

BRAND: Or a "Sopranos" episode.

CHADWICK: Because James Comey told the senators a story from three years ago. Now, he was working with John Ashcroft, then the attorney general. And the White House asked for approval for secret wiretaps without a court order. Hours later, Jon Ashcroft came down with acute pancreatitis and was rushed to the hospital.

BRAND: And that made James Comey the acting attorney general. He told then White House counsel Alberto Gonzales and chief of staff Andrew Card his objections to the spying program.

CHADWICK: And then, James Comey said today, the men from the White House were undeterred; they went to see John Ashcroft in the hospital presumably to get the approval that James Comey wouldn't give.

Mr. JAMES COMEY (Former Deputy Attorney General): I was very upset. I was angry. I thought I had just witnessed an effort to take advantage of a very sick man.

BRAND: And that is former deputy attorney general James Comey in testimony today.

Slate magazine legal analyst Dahlia Lithwick is here. She is attending the hearing. Welcome to the program, Dahlia.

Ms. DAHLIA LITHWICK (Slate): Thank you, Madeleine.

BRAND: Okay, remind us, first of all, why James Comey is testifying today.

Ms. LITHWICK: Sure. It's very confusing. We've got a former deputy attorney general, James Comey, talking about his relationship with the then-Attorney General John Ashcroft. And what we thought he would be doing was addressing this very narrow question of the U.S. attorney firings that's roiled the government in the last couple of months. But as you noted, you could have heard a pin drop in the chamber today as he started to just unroll the story about what he said is just very, very improper behavior by then-White House counsel Alberto Gonzales in 2004.

BRAND: And also Chief of Staff Andrew Card. Very, very dramatic story that he recounts about, actually, these three men; he, Andrew Card and Alberto Gonzales, at the bedside of John Ashcroft, who is in and out - seems to be in and out of consciousness, and yet Gonzales and Card want him to, well, it seems extraordinary, sign a letter agreeing to the NSA wiretapping?

Ms. LITHWICK: Right. It really is an extraordinary story. And essentially there was this classified surveillance program. It was up for reauthorization in March of 2004 and it needed a certification of its own legality from the Justice Department. While Ashcroft was still well, he and his deputy, Comey, had discussed it, they had agreed it couldn't be reauthorized. They had legal problems with it. And then suddenly in March 2004, Ashcroft was stricken was some kind of acute pancreatitis and rushed into the ICU. He was in his hospital bed. Comey became the acting attorney general.

And then as he describes, once he refused to authorize the program, he got a phone call late in the night of March 10th, essentially saying that Gonzales and Card was going to show up in Ashcroft's hospital room and get him to sort of override what Comey had decided.

Then he describes his late night drive to the hospital where he arrives in this darkened room. Ashcroft's very distraught wife is standing at the bedside and (unintelligible) Alberto Gonzales and Andy Card with an envelope. And they attempt to get the very, very ill John Ashcroft to sign this document saying that the surveillance program is in fact legal, overriding essentially Comey's judgment.

Mr. COMEY: Attorney General Ashcroft then stunned me. He lifted his head off the pillow and in very strong terms expressed his view of the matter drawn from the hour-long meeting we'd had a week earlier. And then laid his head back down on the pillow, seemed spent.

Senator CHARLES SCHUMER (Democrat, New York): But he expressed his reluctance or he would not sign the statement that they give the authorization that they had asked, is that right?

Mr. COMEY: Yes.

BRAND: And that's New York Senator Charles Schumer questioning James Comey. So I guess they left disappointed because he didn't sign this letter authorizing them to do this NSA wiretapping. What happened next?

Ms. LITHWICK: Oh, it almost gets better, Madeleine. Then the program goes ahead and gets reauthorized without the Justice Department's certification. And Comey is so upset that he prepares his letter of resignation. He says that even Ashcroft was willing to resign over this. He also describes meetings where he refused to literally go into a meeting after that with Andy Card without bringing a witness. At the end of the day, it seems that both he and FBI Director Mueller changed the president's mind and they went ahead and made changes to the program so that it fit with their constitutional vision of what was wrong.

But certainly, the whole sort of arc of the story is a really horrifying display of disregard both for the Justice Department and for a very sick man.

BRAND: And we'll be keeping an eye on this obviously as the story develops. Dahlia Lithwick of Slate.com, thanks for joining us.

Ms. LITHWICK: My pleasure, Madeleine.

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