The Warrantless Wiretap Program Was Illegal

When Jim Comey testified before the Senate Judiciary Committee, he refused to say the warrantless wiretap program was illegal.

SPECTER: Well, you don’t have to.

If the certification by theDepartment of Justice as to legality is required as a matter of law,and that is not done, and the program goes forward, it’s illegal. Howcan you — how can you contest that, Mr. Comey?

COMEY: Thereason I hesitate is I don’t know that the Department of Justice’scertification was required by statute — in fact, it was not, as far asI know — or by regulation, but that it was the practice in thisparticular program, when it was renewed, that the attorney general signoff as to its legality.

There was a signature line for that.And that was the signature line on which was adopted for me, as theacting attorney general, and that I would not sign.

So itwasn’t going forward in violation of any — so far as I know –statutory requirement that I sign off. But it was going forward eventhough I had communicated, "I cannot approve this as to its legality."

Jack Goldsmith doesn’t say so directly, either. But in this excerpt from his book, he makes it very clear that Alberto Gonzales should have no authority to investigate leaks about FISA–and particularly shouldn’t subpoena Goldsmith–since Gonzales had had to be get bailed out of an illegal program in the first place.