But it's a little light on substance. I've just got finished reading the transcript [PDF format] of former Deputy Attorney General James Comey's testimony before the Senate Judiciary Committee.

I wanted to read the testimony myself because I was suspicious of a New York Times editorial's take on the issue. Needless to say that my suspicions turned out to be correct.

There were many fascinating threads to the testimony on Tuesday by the former deputy attorney general, James Comey, who described the night in March 2004 when two top White House officials tried to pressure an ailing and hospitalized Attorney General John Ashcroft into endorsing President Bush's illegal wiretapping operation.

Program not illegal. Never been shown to be illegal. The weight of the case law (In Re Sealed Case 2002) puts the program in the "very probably legal" realm of legality.

But the really big question, an urgent avenue for investigation, is what exactly the National Security Agency was doing before that night, under Mr. Bush's personal orders. Did Mr. Bush start by authorizing the agency to intercept domestic e-mails and telephone calls without first getting a warrant?

Now this is just the Times editorial writer's wet dream. Seriously. He might have well have asked "Did Mr. Bush start by authorizing the agency to drown puppies?" The supposition comes from the same place -- the writer's wild imagination. There's no evidence anywhere to even suggest that's what was going on.

Mr. Bush has acknowledged authorizing surveillance without a court order of communications between people abroad and people in the United States. That alone violates the 1978 Foreign Intelligence Surveillance Act. Domestic spying without a warrant would be an even more grievous offense.

False. False. False. Surveillance of international communications for national security purposes does not violate FISA. In Re Sealed Case!

The question cannot be answered because Mr. Bush is hiding so much about the program.

We at the New York Times would like to tell you everything about the program -- especially how to avoid it. We think dead New Yorkers help our circulation and our bottom line, which is why we'd like to ruin this program like we ruined the SWIFT program. Really, the terrorists are at such a disadvantage we have to help even the odds.

But whatever was going on, it so alarmed Mr. Comey and F.B.I. Director Robert Mueller that they sped to the hospital, roused the barely conscious Mr. Ashcroft and got him ready to fend off the White House chief of staff, Andrew Card, and Mr. Bush's counsel, Alberto Gonzales. There are clues in Mr. Comey's testimony and in earlier testimony by Mr. Gonzales, Mr. Ashcroft's successor, that suggest that Mr. Bush initially ordered broader surveillance than he and his aides have acknowledged.

Are you scared yet? Bush is listening in on your conversation with your third cousin twice removed in London.

Mr. Comey said the bizarre events in Mr. Ashcroft's hospital room were precipitated by a White House request that the Justice Department sign off on a continuation of the eavesdropping, which started in October 2001.

A rule President Bush had put in place and had been routinely done every 45 days for a year and a half without incidence before this point.

Mr. Comey, who was acting attorney general while Mr. Ashcroft was ill, refused. Mr. Comey said his staff had reviewed the program as it was then being run and believed it was illegal.

He believed it was illegal? Really? That's not what the transcript says [starting on Page 33]:

[Sen. Arlen Specter] If the certification by the Department 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. How can you -- how can you contest that, Mr. Comey?

COMEY: The reason I hesitate is I don't know that the Department of Justice's certification was required by statute -- in fact, it was not, as far as I know -- or by regulation, but that it was the practice in this particular program, when it was renewed, that the attorney general sign off as to its legality. There was a signature line for that. And that was the signature line on which was adopted for me, as the acting attorney general, and that I would not sign. So it wasn't going forward in violation of any -- so far as I know -- statutory requirement that I sign off. But it was going forward even though I had communicated, "I cannot approve this as to its legality." And given that, I just -- I couldn't, in good conscience, stay.

SPECTER: Well, Mr. Comey, on a matter of this importance, didn't you feel it necessary to find out if there was a statute which required your certification or a regulation which required your certification or something more than just a custom?

COMEY: Yes, Senator. And I...

SPECTER: Did you make that determination?

COMEY: Yes, and I may have understated my knowledge. I'm quite certain that there wasn't a statute or regulation that required it, but that it was the way in which this matter had operated since the beginning. I don't -- I think the administration had sought the Department of Justice, the attorney general's certification as to form and legality, but that I didn't know, and still don't know, the source for that required in statute or regulation.

SPECTER: OK. Then it wasn't illegal.

COMEY: That's why I hesitated when you used the word "illegal."

SPECTER: Well, well, OK. Now I want your legal judgment. You are not testifying that it was illegal. Now, as you've explained that there's no statute or regulation, but only a matter of custom, the conclusion is that even though it violated custom, it is not illegal. It's not illegal to violate custom, is it?

COMEY: Not so far as I'm aware.

SPECTER: OK. So what the administration, executive branch of the president, did was not illegal.

COMEY: I'm not saying -- again, that's why I kept avoiding using that term. I had not reached a conclusion that it was. The only conclusion I reached is that I could not, after a whole lot of hard work, find an adequate legal basis for the program.

SPECTER: OK. Well, now I understand why you didn't say it was illegal. What I don't understand is why you now won't say it was legal.

COMEY: Well, I suppose there's an argument -- as I said, I'm not a presidential scholar -- that because the head of the executive branch determined that it was appropriate to do, that that meant for purposes of those in the executive branch it was legal. I disagreed with that conclusion. Our legal analysis was that we couldn't find an adequate legal basis for aspects of this matter. And for that reason, I couldn't certify it to its legality.

There's a lot of lawyerly talk there, but I don't think the Times editorial writer has a foot to stand on by stating simply that Comey believed the program to be illegal.

So someone at the White House (and Americans need to know who) dispatched Mr. Gonzales and Mr. Card to Mr. Ashcroft's hospital bed. Mr. Ashcroft flatly refused to endorse the program, Mr. Comey said. Later, he said, Mr. Bush agreed to change the wiretapping in ways that enabled Justice to provide a legal rationale. Mr. Comey would not say why he opposed the original program - which remains secret - or how it was changed.

I point you to this piece by Paul Mirengoff at Powerline for a less nefarious reading of Comey's testimony on this point. Oh, and for the record the "later" that the Times refers to is "one day later." It should also be noted that the one day that the Justice Department wasn't signed on to the program was the day of the Madrid train bombings. Not a day you want to be shutting down a terrorist surveillance program.

With the benefit of Mr. Comey’s testimony, we can see how Mr. Gonzales, in his effort to mislead the Congress and confuse the American public about how much their civil liberties were being violated, may have unintentionally given away vital clues that only now are falling into place.

While testifying before the Senate Judiciary Committee in February 2006, Mr. Gonzales was asked if Mr. Comey had expressed reservations about the eavesdropping program. Mr. Gonzales replied, “There has not been any serious disagreement about the program that the president has confirmed.” By that, he must have meant the program that included modifications made after the hospital visit and after Mr. Comey’s meeting with Mr. Bush.

This is just more supposition springing from the darkest recesses of the editorial writer's imagination. I don't know and neither does the Times what the modifications were and whether or not they were a big deal. Go back to Comey's testimony and note how careful he was not to say that the program was illegal. Isn't it possible that the change was minor, even perfunctory?

The Republican-controlled Congress did a disservice to the nation by refusing to hold Mr. Bush to account for the illegal wiretapping. The current Congress should resume a vigorous investigation of this egregious abuse of power.

There's far less evidence of illegality in the wiretapping program than there is of illegality on the part of the Times for exposing the program in the first place. The Times can call it illegal all they want -- it doesn't make it so.