A feckless effort to protect Gonzales from perjury charges

July 29, 2007

In lieu of a Sunday Discussion Group, I thought it best to jump right into the big news coming out of the Bush administration. Apparently, in carefully-placed leaks to the NYT and the WaPo, the Bush gang has a new defense to protect Attorney General Alberto Gonzales from perjury charges. Not surprisingly, it’s a weak and wholly unpersuasive defense.

Just to provide the context, remember that Gonzales testified in an open hearing that “there has not been any serious disagreement about the program that the president has confirmed.” At the same time, Robert Mueller and James Comey, among others, have said there was considerable disagreement, which nearly prompted mass resignations. It’s one of several reasons Senate Dems want a special prosecutor to investigate Gonzales on perjury.

According to the new leak(s), the disagreement wasn’t over Bush’s legally-dubious surveillance program; the disagreement was over Bush’s legally-dubious data-mining program.

A 2004 dispute over the National Security Agency’s secret surveillance program that led top Justice Department officials to threaten resignation involved computer searches through massive electronic databases, according to current and former officials briefed on the program. […]

The N.S.A.’s data mining has previously been reported. But the disclosure that concerns about it figured in the March 2004 debate helps to clarify the clash this week between Attorney General Alberto R. Gonzales and senators who accused him of misleading Congress and called for a perjury investigation.

The confrontation in 2004 led to a showdown in the hospital room of then Attorney General John Ashcroft, where Mr. Gonzales, the White House counsel at the time, and Andrew H. Card Jr., then the White House chief of staff, tried to get the ailing Mr. Ashcroft to reauthorize the N.S.A. program.

If the dispute chiefly involved data mining, rather than eavesdropping, Mr. Gonzales’ defenders may maintain that his narrowly crafted answers, while legalistic, were technically correct.

The NYT piece gives the most favorable White House spin imaginable, but the news hardly exonerates the Attorney General. In fact, it’s incredibly weak.

First, because data mining was part of the NSA program, and Gonzales swore there was no “serious disagreement” over the program, it’s a tough sell.

Second, Anonymous Liberal explained that the defense doesn’t even match the controversy particularly well.

For this defense to even arguably work, it has to be true that Comey and Goldsmith’s objections were limited to data-mining activities and in no way pertained to any of the activities the President confirmed in December of 2005. But this graf from the Post piece seems to undercut that claim:

“One source familiar with the NSA program said yesterday that there were widespread concerns inside the intelligence community in 2003 and 2004 over how much Internet and telephone data mining could occur, as well as about the NSA’s direct intercepts of communications without court approval.” (emphasis added)

That last part, the concern over warrantless direct intercepts, certainly seems to relate to the activities the President disclosed. Moreover, if prior reporting is to be believed, Comey and Goldsmith’s concerns had to do with the legal justification for operating outside of FISA. If that’s true, then their concerns were not limited to data-mining, but applied to virtually everything the Bush administration was doing.

And third, Josh Marshall notes that the story seems to be missing pertinent information, as if the White House leaked the part they thought would help Gonzales, but kept the more damaging details secret.

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. […]

[R]emember that the White House has been willing to go to the public and make a positive argument for certain surveillance procedures (notably evasion of the FISA Court strictures) which appear to be illegal on their face. This must be much more serious and apparently something all but the most ravenous Bush authoritarians would never accept. It is supposedly no longer even happening and hasn’t been for a few years. So disclosing it could not jeopardize a program. The only reason that suggests itself is that the political and legal consequences of disclosure are too grave to allow.

Or, to make a long story short, the new leak from the Bush gang doesn’t get anyone off the hook. The A.G. still lied, the White House still engaged in a legally dubious surveillance effort. Today’s news is an important development, but it’s an easily-cleared speed-bump on the road to the truth.

July 29, 2007 at 8:42 am

A few links on the data-mining program:

Mark Klein’s statement: http://www.wired.com/science/discoveries/news/2006/04/70621

Electronic Frontier Foundation lawsuit: http://www.eff.org/legal/cases/att/

Ars Technica did a wonderful, if highly geeky, article on the box that is being used in this program (and its legal uses): http://arstechnica.com/articles/culture/Deep-packet-inspection-meets-net-neutrality.ars

Now, here I put on my tinfoil hat.

It’s technically possible to design a “feature” in a regular telephone or cellular network that could funnel all calls to and from a certain phone number through a central point – where it could be tapped via something like a Naurus box (which has been slightly reprogrammed to “listen” to voice traffic instead of “read” data traffic). Your T-Mobile calls to your wife across town might get routed to Omaha (or Oslo) and back, and you’d never know it.

That single box could be placed on non-carrier premises (like a government building). It’s also possible to give some outside entity – e.g. NSA – the ability to put in telephone numbers at will, without requiring the carrier (AT&T, Verizon Wireless, etc.) to do anything or know the numbers.

Whether the carrier’s legal team would agree is another matter – but a “hold harmless” letter from DOJ would have gone a long way.

I can’t wait to see how far the WHO goes in it’s seemingly futile efforts to prop up AGAG

Good theater if it were not so sadly serious

I can’t wait to see how far the WH goes in it’s seemingly futile efforts to prop up AGAG

Good theater if it were not so sadly serious

I think any explanation has to begin with: Why would a sitting AG so willingly expose himself to perjury charges?
It would be easy to write it as stupidity, but no one that stupid gets out of law school. We learned that he prepared heavily for his earlier testimony. But in terms of providing answers to predictable questions, it’s difficult to see where those preparations were spent. Someone in his office must read newspapers, so he must have known that a number of people thought he was lying. Yet he made no serious effort to clear up his earlier testimony.

He was there as a shield, and he willingly risked perjury in that role. For him to go that route, the other options had to be far worse – and that doesn’t leave very much.

Call Comey and Goldschmit back and, in closed session if need be, ask them to precisely explain what the showdown was over.

***It is supposedly no longer even happening and hasn’t been for a few years.***

And therein lies the crux of the whole sordid deal. We know for a fact that Bu$h, Cheney, and Rove are quite willing to “lie out their asses” to continue empowerment of the unitary executive concept. we also know now that Gonzo is not only willing to do the same, but he’s willing to do it with an indefference that’s both wreckless and felonious in nature.

Given this—why on earth should I ever believe these people when they say something along the lines of the asterisk’d quote above?

They’re withholding, because they cannot aford to have the People know that “the program” is still running at full throttle. It may be even much bigger, more widespread, and more illegal now than it was before….

Josh Marshall wrote:

This must be much more serious and apparently something all but the most ravenous Bush authoritarians would never accept. It is supposedly no longer even happening and hasn’t been for a few years. So disclosing it could not jeopardize a program. The only reason that suggests itself is that the political and legal consequences of disclosure are too grave to allow.

During all these surveillance controversies and scandals, and during Bush scandals more broadly, it’s been my sense that a lot of the people around Bush who are closer to being politically moderate, while being personally opposed to the extent of the surveillance and other secret wrong-doing, are perfectly willing to keep quiet about it and help Bush keep it in the dark just so he and all his people don’t suffer / look bad for it.

Opening sally:

.. the White House still engaged in a legally dubious surveillance effort .. — CB.

No, not ‘legally dubious’. ‘Illegal’ is the correct term here. Even BushCo admit that. They try to justify their illegal conduct on the basis of changed technology since FISA was enacted in 1978.

The procedure, however, is not to circumvent the law, but to change the law. Look how quickly that rogue section of the USA Patriot Act Reauthorization amendment was annulled and the earlier provision (regarding the appointment of interim USAs) reinstated — about two days. That’s why a legislative branch exists : to change the law in response to changing circumstances.

So, Mr CB, first off : Give them no quarter where quarter is not justified.

Putting the opposite spin on what JoeW said at #4, why would they hang on to an AG whose so wounded he’s like a cartoon character who drinks and water springs out of bullet holes all over his body. He’s an albatross around the adminstration’s neck, yet they’re tripping over their tongues to cover for him.

Whatever they’re hiding has to be worse than we’re aware of. I really hope that if a Dem wins it in 2008, that one of the first things s/he does when taking office is to expose the complete laundry list of dirt that this adminsitration tried to get away with over the years. And I hope the new president prosecutes.

So, yeah, I think even a lot of their people who have personal qualms over it would help them keep it secret for personal relationship or political reasons (like a “don’t let Republicans look bad” credo that goes too far, and is followed even when the guys at the steering-wheel become total assholes).

It’s not that Gonzales could be charged with perjury; it’s that perjury’s a *crime*, and when Congress is investigating a crime, you can say goodbye to executive privilege.

If there’s a unifying thread to everything that the Bush regime has done, it’s partisan politicization. There’s nothing new in that. We’ve heard it a million times. So why should we presume his illegal wiretapping is the single anomaly? Bush could survive a program of random warrantless wiretaps. Likewise, he’d survive it if it was massive data-mining – hence the WH’s new line. What he would not survive is if the illegal wiretaps were politically targeted. I ask again, why would a sitting AG be so willing to expose himself to perjury charges?

From the political perspective the AGAG is the Bushbat’s indispensable shield. All executive branch privilege claims and immunity assertions meet their final test in justice. If Bush no longer has his man there bouncing off challenges, he’s up a gum tree. The whole facade collapses and the sandcastle disintegrates. That’s why nailing Gonzo on perjury is such a vital move. Personally, I doubt he’ll slip that noose.

The bit that’s really interesting is this :

Nor would they [anonymous officials] explain what modifications to the surveillance program President Bush authorized to head off the threatened resignations by Justice Department officials.

Someone’s definitely going to have to explain that one of these days.

The general trend of comments, and I strongly agree, is that any public airing of the controversy is good. It is hardly going to strengthen Gonzales’ position, and even if they find there’s not enough hard evidence to impeach him, his office will never do anything else important while he’s there. He couldn’t send the photocopy boy out for sandwiches without a crowd of reporters demanding to know what Gonzalez wants to eat, and why.

Besides, he doesn’t have to hang on much longer. A couple more weeks, and he can step down to “spend more time with his family”, and the Monkey Emperor can fill the vacancy with a recess appointment without any Congressional review.

The WH and the DoJ got the FOIA changed in such a way as to never release information about their activities. I’ve known all along that if Ashcroft wouldn’t sign off on it then it’s beyond belief in its legality. What is there that Ashcroft would not sign off on? Why was it so important to get Gonzales and card into a SICU at night desperately seeking a signature?
I agree with Josh Marshall that something is missing. Wire tapping, data mining, eaves dropping, Ashcroft would have signed off on these as a general rule.
Since the WH people believe the real enemy is not al qaeda but Democrats, and since most of their actions have been toward ensuring single party rule, especially back then, I wonder if it had something to do with tapping congress.

But once again, why are Bush and Gonzales and friends so desperate to keep whatever the issue was, secret, especially if the WH is no longer operating the “program”?
Comey has already met with the committee behind closed doors. I’d be surprised if the questions of what “program” was being signed off on didn’t come up. So the committee must know already what the program was, right? So, why are they acting like they don’t know? Something’s missing.

Recall that this is the administration that tapped Hans Blix while he was at the U.N., to try to get a feel for how damaging his testimony might be, and perhaps stumble across some personal secret that could be used to make him shut up. It was likely this same administration that circulated the rumor he was a homosexual, as if it would make any difference at his age. This administration is obsessed with knowing personal information that might be used for political advantage, and I would not be at all surprised if bjobotts is on to something. Still, it’s a stretch to imagine they would seek the Attorney General’s imprimatur to do something like wiretap members of Congress. They’d be more likely to just do it, and then use any damaging information they learned without revealing its source.

So, the Bushies try to explain the difference in testimony as discussing different subjects: electronic eavesdropping vs. the data mining of database (propriety or not), when the real issue of discomfort for the Justice Dept. officials was “going around” or subverting the FISA law.

And the real reason the FISA was subverted was to avoid a terrorist attack in the lead up to the 2004 election. Bush-Cheney wanted to maintain power at all costs–and damn the Constitution.

bjobotts-

Russ Feingold and Sheldon Whitehouse are also on the intelligence committee and are aware of the classified details of the program. If you watch (not read, but watch) their questioning of AG, they are alot more confident in what they know – and they know he’s lying. But because of the classified details, they can’t call him out on it publicly. Another piece to watch is the press conference held by Schumer, Feinstein, Feingold and Whitehouse after the hearing, announcing that they were going to persue a special prosecutor. Note the words and actions (or lack thereof) of Feingold and Whitehouse in that event. Schumer doesn’t know all of the details and was blathering on about what he thought he knew. He’s a good one to do this public speculation of “what is he hiding?” Feinstein has a good idea and was a bit more focused. Feingold and Whitehouse know alot and were overly careful not to disclose too much or verify whether Schumer’s speculation was even on track but they want the special prosecutor to be able to go wherever the investigation leads and not limit it to perjury.

NYTimes’ article barely touches on the subject, but I think there’s one more possible reason for the conflict here. NSA isn’t supposed to be doing *domestic* spying, on US citizens; that’s FBI’s bailwick (and, probably, why Mueller was there in the hospital as well as the others). NSA is supposed to monitor foreigners. The officially disclosed program admits only to monitoring contacts between foreign terror suspects and US.

But if the data mining was as “massive” as described, it had to be fishing expeditions on US citizens *in the main*; we just don’t have that many foreign terror suspects holed up here. And, if so, FBI would have been livid. They’d been breaking the law themselves (holding onto the info longer than they’re supposed to, among other things, even when it proved useless) but they wouldn’t have looked kindly NSA treading on their ground.

What I would like to know is what that unmentioned program that Ashcroft and all the other DOJ and FBI personnel were willing to resign over was intended to do. That program that was at the heart of the discussion between Ashcroft, Comey, and Gonzales at the hospital with Mueller subsequently visiting and talking to Ashcroft about it. It seems to be a given that this was domestic surveillance. Who were the targets? Domestic terrorists, suspected terrorists, or, potential terrorists, which may or may not have included possible political opponents? Did that cross a line somewhere. I’d like an answer to those questions because I suspect that the answer(s) are at the root of Gonzales’ perjury and the White House stonewalling.

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