A faithful liberal reader of this site sent me an email asking me to do a post on the charges of perjury being leveled against the Attorney General of the United States. He was extremely worried about the implications such charges had for the country:
As a citizen, the implications of the alleged behavior terrify me. Most Conservatives I personally know don’t defend Mr. Gonzales, but they essentially get off the topic as quickly as possible.
To me, “Rightwing” always had a connotation of Rebellion against Government. If anybody was going to use a shotgun to tell a government official to get off their property, it sure as hell wasn’t a liberal. The very likely extension of the perjury (if true), would have unbelievably damning implications for the W Bush Administration—the type of implications that I would have assumed would have “Rightwing” conservatives stocking up on ammo.
Excellent insight – save the shotgun toting conservative telling the “government” to get off his land. As a metaphor for conservatives wishing to have government take a back seat in people’s lives, it’s fine. However, I’m not sure even a liberal wouldn’t stand up to the government if they felt their private property was threatened.
“Mike” is correct about the right’s relationship with Gonzalez. As with just about anything regarding the Bush Administration these days, he is very difficult to defend. And I don’t think it’s necessarily because of what he’s done as a member of the Administration. One problem is that he may be the most incoherent public official I’ve ever heard. His testimony before Congress on just about anything reveals a man who can’t seem to finish a thought before moving on to the next one. This causes all sorts of problems. It is amazing how many times he is asked to clarify or repeat something simply because it is so difficult to follow his meandering, disjointed responses.
Incoherence is not a criminal offense. Neither is incompetence. But the way the firing of 8 US Attorneys was handled does not reflect well on Gonzalez and his management style. Allowing so much leeway to subordinates in such an important matter and then not being aware of what they were doing (if you believe that) bespeaks a boss without much of a clue as to what was going on in his own office.
The fact is, the Administration has sought to politicize the Department of Justice as they have tried to stamp politics on most every other aspect of government. Of course, few President’s politicized their Justice Department more than Clinton. And given the angry, partisan mood in Congress, this may be the wave of the future for Presidents; taking what used to be a semi-independent cabinet department and turning it in to an adjunct to the White House. In fact, since the Carter Administration, DOJ has progressively become less and less independent with the Clinton Administration going over the top in making Justice just another federal agency.
Anyone remember Johnnie Chung, Charlie Trie and the slew of illegal fundraising cases that the Clinton Justice Department, according to an Inspector General’s audit did not handle correctly? Ties to Chinese intelligence, money laundering at a Buddhist Temple, Commerce Department waivers in exchange for cash – all of these cases were either not pursued or followed up. Clearly, Democrats have extremely short memories about politicizing DOJ actions in the wake of Clinton Administration’s outrageous fundraising activities.
But that’s in the past. What we have today is an Attorney General who can’t seem to explain to Congress the various intelligence activities being carried out by the NSA to catch terrorists before they can strike here in the US. Part of that is certainly the fact that much of it is classified (something the AG offered to clarify in closed session – Democrats refused, wanting their circus to be televised). But beyond that, Gonzalez can’t seem to summon the coherence to differentiate between the already acknowledged “Terrorist Surveillance Program” and “other intelligence activities” being carried out by NSA.
Here is the basis for what the Democrats are calling perjury. They point to Gonzalez testimony in May on the visit to John Ashcroft’s hospital bed to re-authorize the terrorist surveillance program. The story was told by James Comey who, due to Ashcroft’s illness, was Acting AG at the time. He refused to sign off on what appeared to be a routine re-authorization of the program. And other top DOJ officials and career DOJ attorneys threatened to resign if it was given the go ahead without modifying some of its technical aspects.
Ashcroft preferred allowing his deputy Comey to do his duty because he was in no shape physically (as the left likes to paint the picture, Ashcroft was being browbeaten into approving something while on his deathbed). As Comey testified, he and Ashcroft had decided the morning the AG went into the hospital not to re-authorize the program. Not being aware of this, the White House’s Andy Card and Gonzalez went to the hospital hoping the AG would over ride what they thought was Comey’s decision.
Be that as it may, Gonzalez testified in May that what was being sought from the AG was a re-authorization of the already revealed NSA program and that there was no dispute over that “program” (the word “program” is important as we shall soon see), that the dispute was over another related classified program. Gonzalez exact words:
“[t]here has not been any serious disagreement about the program that the president has confirmed. There have been disagreements about other matters regarding operations, which I cannot get into.â€
It turns out today, that the “other matters” involved in the NSA Terrorist Surveillance Program related to a massive, legal, data mining operation:
A fierce dispute within the Bush administration in early 2004 over a National Security Agency warrantless surveillance program was related to concerns about the NSA’s searches of huge computer databases, the New York Times reported today.
The agency’s data mining was also linked to a dramatic chain of events in March 2004, including threats of resignation from senior Justice Department officials and an unusual nighttime visit by White House aides to the hospital bedside of then-Attorney General John D. Ashcroft, the Times reported, citing current and former officials briefed on the program.
Attorney General Alberto R. Gonzales, one of the aides who went to the hospital, was questioned closely about that episode during a contentious Senate hearing on Tuesday. Gonzales characterized the internal debate as centering on “other intelligence activities” than the NSA’s warrantless surveillance program, whose existence President Bush confirmed in December 2005.
Data mining is not illegal as long as the identity of the person whose records are being mined is not captured or revealed – we think. I use that caveat because no one knows exactly how the NSA data mining operation – carried out as a part of the NSA Terrorist Surveillance Program – actually worked. The speculation on why DOJ attorneys balked at re-authorization of the program at that time centers around the idea that although the data mining was legal, what the NSA wanted to do with the results may have crossed the line of legality.
So is the data mining operation a different “program?” If so, that would seem to put Gonzalez in the clear as far as perjury charges are concerned:
The report of a data mining component to the dispute suggests that Gonzales’s testimony could be correct. A group of Senate Democrats, including two who have been privy to classified briefings about the NSA program, called last week for a special prosecutor to consider perjury charges against Gonzales.
The report also provides further evidence that the NSA surveillance operation was far more extensive than has been acknowledged by the Bush administration, which has consistently sought to describe the program in narrow terms and to emphasize that the effort was legal.
Again, this goes back to Mr. Gonzalez incoherence in trying to differentiate between the NSA efforts at terrorist surveillance (where one party in the communication was overseas and the other here in America) and the massive collection of data which all took place in the US with the cooperation of phone giants like AT&T and Sprint. They allowed NSA to tap into their “switching stations” in order to feed the monster computers who were chewing on trillions of bits of information in order to discern patterns of communication that could have led to a terrorist cell in this country.
But if the data mining were a part of the NSA Terrorist Surveillance Program, how can they be two separate programs?
I think the most logical explanation is that they were separately reauthorized by DOJ, although probably at the same time. Separate paperwork could mean a separate program to many bureaucrats even though on the surface, it would appear to a lay person that both were part of the same program.
Another logical but unprovable explanation is that the technical aspects of the data mining operation were handled by a different entity than NSA. ABLE DANGER’s data mining was done in Florida out of the headquarters for Special Operations. Whether such a distinction would legally constitute a separate “program,” I haven’t a clue.
Marty Lederman has another explanation:
There was some sort of data mining program going on. Probably not of content, almost certainly not content reviewed by humans. That is to say, it involved computers searching through “meta-data” related to calls and e-mails, looking for certain patterns that might suggest connections to Al Qaeda or to suspicious activity that might be terrorism-related. (I have my theories as to what the programs might have been looking for, but don’t want to get into such speculation in this forum. And in any case, my theories are probably way off.)
This data-mining indicated that it might be valuable to do more targeted searches of particular communications “pipelines” (John Yoo’s phrase), looking for more specific information. But that’s where FISA came in. In order to target a particular U.S. person, or to wiretap a particular “facility,” FISA requires that the NSA demonstrate to the FISA court probable cause to believe (i) that the target of the electronic surveillance is a foreign power or an agent of a foreign power, and (ii) that each of the facilities or places at which the electronic surveillance is directed is being used, or is about to be used, by a foreign power or an agent of a foreign power. 50 U.S.C. 1805(a)(3).
Perhaps, as John Yoo suggests in his book, FISA would have prohibited following up on the leads revealed by the data mining with more targeted wiretaps of suspicious “channels” or “pipelines,” “because we would have no specific al Qaeda suspects, and thus no probable cause.”
Besides all of this, Tom McGuire points out that it would be virtually impossible to make any perjury charges against Gonzalez stick for the simple reason that to do so would expose massive amounts of classified details about our intelligence gather efforts:
Let me ask an obvious question that seems to have eluded some of our Senators and is not broached by the Times – how in the world is a perjury prosecution going to proceed without a massive declassification of these classified and presumably ongoing programs? Will the jury and the public see what Sen. Feingold saw?
The greymail issue was reported by the Times in the context of the Libby trial, so let’s use their definition (if not their spelling):
Graymail is the practice of discouraging a prosecution from proceeding by contending that a defendant may need to disclose classified or sensitive information as part of a full defense. Such an approach can force the government to choose between dropping the prosecution or allowing the information to be disclosed at a trial.
In the Libby case the classified issues were somewhat tangential to the question of whether Libby lied about his interaction with various reporters, but in the Gonzales situation, I can’t imagine how a jury could rule on whether this reasonably be characterized as more than one program without a fair amount of information about the underlying activities.
God knows what a determined Democratic Congress would be willing to do in order to get Gonzalez. But I think McGuire has a good point; the downside in revealing classified data would probably prevent even the Democrats from trying to make the case.
Josh Marshall is unconvinced and believes there’s much more lurking beneath the surface that the White House is desperate to cover up:
As you can see, we now have the first hint of what was at the center of the Ashcroft hospital room showdown. According to the New York Times, what the White House calls the ‘terrorist surveillance [i.e., warrantless wiretap] program’ originally included some sort of largescale data mining.
I don’t doubt that this is true as far as it goes. But this must only scratch the surface because, frankly, at least as presented, this just doesn’t account for the depth of the controversy or the fact that so many law-and-order DOJ types were willing to resign over what was happening. Something’s missing.
Marshall is speculating based on his take of the Bush Administration’s past “illegal” activities (quotes are necessary because no one has proven anything the Bushies done is “illegal”). But to be honest, how such speculation can be considered valid when there is so much we don’t know about the warrantless surveillance and why those same attorneys who were willing to resign over these “other matters” relating to the NSA Terrorist Surveillance Program had no problem with Ashcroft re-authorizing the program 20 times previously. Marshall is right. Something doesn’t fit. But whether it involves a “cover up” of other, more intrusive or illegal intelligence programs or a simple desire to hold close the most important secrets vital to our national security cannot be said with anything approaching certainty or even intelligently be guessed at.
Gonzalez should have been allowed to resign months ago over the US Attorney firings. Not because of anything illegal he did but because of the incompetent way it was handled. But Bush stuck with him and now must weather another storm of controversy that weakens him politically (if he could get any weaker). Some might admire the President’s steadfastness (I call it stubbornness) in standing behind his Attorney General. But there must come a point when doing so harms the office of the President as well as the country. That time has long passed. It’s time for Gonzo to go.