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May 17, 2007 - It read like a dime novel. Former Deputy Attorney General Jim Comey shocked Washington this week with his testimony on Capitol Hill about a turning point in the Bush administration’s controversial domestic eavesdropping program. The program was about to expire, Comey testified, and then-Attorney General John Ashcroft lay incapacitated in a Washington hospital bed. Comey’s Justice Department colleagues had persuaded him that the program was constitutionally unsound. But emissaries from the White House were rushing to Ashcroft’s hospital bed, Comey said—determined to convince the ailing Ashcroft to reauthorize the program as the deadline for its expiration approached. Comey enlisted FBI Director Robert Mueller as an ally, and raced to beat the White House team (then Chief of Staff Andrew Card and then White House Counselor Alberto Gonzales) to Ashcroft’s room. Comey threatened to resign if the program was reauthorized without changes. Ultimately, the president intervened, and the program was revised to meet Comey’s concerns.

Newsweek’s Daniel Klaidman and Michael Isikoff, who covered the program for the magazine, discussed the developments—and what comes next. Introducing Listening In, a periodic online conversation among Newsweek reporters and editors.

Klaidman: Jim Comey's testimony this week about his confrontation with the White House at John Ashcroft's hospital bedside over the NSA's domestic spying program was riveting. It was the kind of made-for-TV drama you rarely get in Washington. But I think what really struck a chord is something even more surprising—that Republican loyalists inside the Bush administration secretly, and at great risk to their careers, waged an intense rebellion against their superiors at the White House over nothing less than the constitutionality of the war on terror. Newsweek has been following this story closely ever since we, together with The New York Times, uncovered the hospital showdown in January 2006 and then followed up with long investigative piece on the Comey-led rebellion within the Bush administration. What do you think the larger meaning is behind the Comey testimony?

Isikoff: It shows the depth of the drama that was going on behind the scenes—something the public had no clue about. It also raises some rather new serious questions about Gonzales. He had told the Senate Judiciary Committee there were no major disputes between him and Comey about the NSA wiretapping program. That’s pretty hard to square with Comey's account—and one the Senate Democrats are sure to follow up on. There is a sense on the Hill that this could be the tipping point for Gonzales (although we thought that before and he survived.)

One other big question is why didn't Comey (along with other top Justice lawyers, like Jack Goldsmith and Patrick Philbin, who worked at the department’s Office of Legal Counsel) resign?  

Klaidman: Here's Gonzales' carefully worded answer to a question from Sen. Chuck Schumer at his Feb 6, 2006 grilling: "Senator, here's a response that I feel that I can give with respect to recent speculation or stories about disagreements. There has not been any serious disagreement, including—and I think this is accurate—there's not been any serious disagreement about the program that the president has confirmed." To me, it's a classic Clintonesque response, and seems misleading. When he refers to the program that the "president has confirmed,"  that's a reference to the revised program brought back within the law after Comey et al threatened resignation. The dispute, of course, was about the program as it existed before the showdown. As far as whether Comey, Goldsmith and the others should have quit at the time—the thing you have to remember is that these were not your classic whistleblowers. They were all conservative Republicans who believed in the War on Terror and were conflicted about being in the role of dissenters. And in the end, Comey, I suspect, believes he achieved what he wanted without having to publicly embarrass the administration he worked for.

Isikoff: True enough, but it's hard to judge since we simply don’t know for sure what precisely Comey was objecting to—and what precisely Bush did to assuage Comey’s concerns. And let's remember, there has to be a significant paper trial here—the original Office of Legal Counsel memo that justified the program, the Goldsmith memos raising objections to the original memo, and presumably memos to Ashcroft and Gonzales outlining the Justice Department's concerns. So far, the White House and Justice Department have essentially refused to turn anything over. But my guess is that the Senate Judiciary Committee now has the hook it needs to force the issue. It needs to resolve whether or not Gonzales told them the truth. This could shape up as a major constitutional confrontation.

Interestingly, Sen. Arlen Specter-the ranking Republican on Senate Judiciary—just said Thursday afternoon that Gonzales has lost the credibility to head the Justice Department. That's the furthest he's gone yet.

Klaidman: It's hard to imagine how Gonzales could sustain that position in the wake of Comey's barrage. And I'm sure the Democrats on the Hill are loaded for bear. Remember, Congress was under Republican control when news broke of the NSA surveillance program.  Other than Gonzales, few of the participants were compelled to testify. They will likely be now. After Comey, the most intriguing figure in this story is Jack Goldsmith. As head of the Justice's Department's Office of Legal Counsel, which advises the government on the constitutionality of its policies and actions, it was Goldsmith who began challenging many of the administration's anti-terror tactics, from torture to domestic spying. Goldsmith was essentially driven out of government by his opponents in the White House and Vice President Dick Cheney's office. He's now comfortably ensconced at Harvard Law School—but boy, does he have a story to tell if he ever chooses to do so. As for Gonzales, the pressure continues to build. This is becoming a classic test of wills between a fired-up Democratic Congress and a fairly unmovable president.

Isikoff: So Schumer and [Sen. Dianne] Feinstein are having a press conference announcing they will press for a vote of "no confidence" in Gonzales on the Senate floor. A source just told me there have been talks with [Senate Majority Leader Harry] Reid's office about pressing for a quick vote—maybe before the Memorial Day break.  Pretty amazing. Unless the Republicans can think of a parliamentary maneuver to block it, it will almost certainly pass. The question is how many Republicans vote for it? John Sununu, Tom Coburn, John McCain, and Chuck Hagel have all called for Gonzales's resignation. Specter and Jeff Sessions practically have. I suspect there may be quite a few others who might vote for it.

Klaidman: Support for Gonzales is collapsing quickly and the Dems clearly want to seize the momentum—even turning to parliamentary tactics that are not typical here. Real votes of no confidence trigger new elections, right? Not the case under our system. In any event, it's all about getting a few Republicans to sign on. Otherwise it will be dismissed as partisan game-playing.  What's interesting is that a lot of this theater, while both fascinating and substantively important, has obscured the critical question. What was what it about the NSA domestic spying program that sparked the revolt in the first place? The New York Times, in an editorial Thursday morning, raises the possibility that President Bush authorized the NSA to "intercept domestic e-mails and phone calls without first getting a warrant." The administration has acknowledged authorizing interceptions of coimmunications between people overseas and people in the United States. That would be a huge development, if true. In my reporting, I was never able to get anyone to confirm that. What our sources said was that the program did not impose sufficient legal standards required by the constitution and statutory law. The reformed program essentially required government officials to come up with probable cause before they could start spying. With every new development, it seems a better likelihood that the facts will come out.  Fascinating and important stuff.

Isikoff: Indeed. As for what precisely was going on here, look at the wording of the statement the Justice Department released Wednesday night:

“In response to questions about press accounts of internal dissent within the Justice Department over intelligence programs, the Attorney General, in his testimony to Congress, relayed that there had not been serious disagreement about the Terrorist Surveillance Program—that is, the NSA surveillance activities publicly confirmed by the President that targeted for collection international communications into or out of the United States where there is probable cause to believe that one of the communicants is a member or agent of al Qaeda or an associated terrorist organization.

“At the same time, the Attorney General acknowledged that there have been disagreements about other intelligence activities, as one would expect. The Attorney General’s testimony on these points was and remains accurate. While the Attorney General provided this testimony in an unclassified setting, it is important to consider that the fact and nature of such disagreements have been briefed to the Intelligence Committees.”

So again, note the wording here. There may have been disagreements about "other intelligence activities." Maybe it's purely domestic interceptions or some variations thereof. But until we know the answer, the debate over what is arguably the biggest single legal issue of the Bush presidency—whether the president engaged in large scale domestic spying outside the orbit of the law—is taking place entirely in the dark.

Editor's Note: An earlier version of this report incorrectly stated that Congress was under Democratic control when news broke of the NSA surveillance program.