Originally Published: 8/1/2007
IS GONZALES LYING?
By The Issue Wonk
Testimony of Attorney General Alberto Gonzales last week has led everyone to believe that he has been lying about the Terrorist Surveillance Program (TSP). In fact, Senator Patrick Leahy (D, VT) has said he may ask the Justice Department’s inspector general to investigate possible perjury charges1 and some Senators are calling for the United States Solicitor General to appoint a special prosecutor to investigate the matter.2 However, a careful look at the many testimonies of Gonzales, as well as other players in the matter, indicate that he may not be lying, but that he is dissembling in order to hide a more insidious program.
That Gonzales has been covering for President George W. Bush for more than a decade is not in question.3 That he is covering for him regarding illegal surveillance of U.S. residents is the issue of main concern. During his confirmation hearings for his appointment as Attorney General (he had been serving as Bush’s White House counsel), he was asked “whether the Bush administration would ever allow wiretapping of U.S. citizens without warrants.” He dismissed the question as a “hypothetical situation,” but was pressed by Senator Russell Feingold (D, WI) and finally said, “It is not the policy or the agenda of this president to authorize actions that would be in contravention of our criminal statutes.”3
By the time of these hearings, however, the Bush administration had been conducting a secret wiretapping program for more than three years, without court oversight.4 (See Foreign Intelligence Surveillance Act.) (NOTE: Some reports say that wiretapping was being done months before the 9/11 attacks. See Andrew Harris, “Spy Agency Sought U.S. Call Records Before 9/11, Lawyers Say.” Bloomberg.com.) After the surveillance program came to light, Gonzales was brought before the Senate Judiciary Committee. When asked why the administration chose to conduct “warrantless spying outside current law” rather than follow the law or seek changes to the law, Gonzales stated:
Well, Senator, I agree with you: We are a nation of laws. And we do believe we are following the law. And we do believe that the Constitution allows the president of the United States to engage in this kind of surveillance.
We also believe the authorization to use military force represents a supplemental grant of authority by the Congress to engage in this kind of surveillance totally consistent with FISA.
If you study carefully the white paper that we’ve submitted, we’re not arguing that somehow FISA was amended or that we’re somehow overriding FISA. That’s not what we’re talking about here. We are acting in a manner consistent with FISA. FISA contemplates another statute. The Congress provided additional supplemental statutory grant of authority through the authorization to use military force.5 [Emphasis added.]
So, there’s the original argument for the TSP – that the Authorization to Use Military Force gave the president the authority to conduct any kind of surveillance he wants. (For more information on Bush’s use of the Authorization to Use Military Force as justification for spying within the United States, see the Congressional Research Service report.4)
The alleged lies of Gonzales that are currently under investigation pertain to his testimony in February 2006 when he said that everyone was in agreement on the program. Here is his exchange with Senator Schumer (D, NY):
SCHUMER: There was dissent; is that right?
GONZALES: Of course, Senator. As I indicated, this program implicates some very difficult issues. The war on terror has generated several issues that are very, very complicated.
GONZALES: Lawyers disagree.
SCHUMER: I concede all those points. Let me ask you about some specific reports.
It has been reported by multiple news outlets that the former number two man in the Justice Department, the premier terrorism prosecutor, Jim Comey, expressed grave reservations about the NSA program and at least once refused to give it his blessing. Is that true?
GONZALES: Senator, here’s the response that I feel that I can give with respect to recent speculation or stories about disagreements. There has not been any serious disagreement – and I think this is accurate – there 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. I will also say . . .
SCHUMER: But there was some – I’m sorry to cut you off – but there was some dissent within the administration. And Jim Comey did express, at some point – that’s all I asked you – some reservations.
GONZALES: The point I want to make is that, to my knowledge, none of the reservations dealt with the program that we’re talking about today. They dealt with operational capabilities that we’re not talking about today. [Emphasis added.]5
But, according to James Comey, then Deputy Attorney General, there was considerable disagreement about the program, so much so that several high-level administration employees threatened to quit.6 In his May 15, 2007 testimony, he described the March scenario where the Justice Department refused to sign off on the program and an unbelievable scene in which, on March 10, 2004, Alberto Gonzales (then-White House Counsel) and Andrew Card (then-Bush’s Chief of Staff) rushed to the hospital room of then-Attorney General John Ashcroft to attempt to get him to sign off on a “surveillance program” which Comey, acting as Attorney General during Ashcroft’s illness, refused to sign.6 Earlier that day, congressional leaders, the so-called “Gang of Eight,” were called to the White House for a briefing that many lawmakers have described as being only about one program – the TSP.7 (For more information on the Gang of Eight, see Wikipedia.)
These testimonies suggests two possibilities. Either Gonzales is lying and, according to Jim Comey’s testimony,6 there was considerable dissent about the program. Or, Comey’s and others’ objections applied to a different domestic spying program, or a facet of the TSP, that is still not currently known and, therefore, was not the object of the testimony. In this case, the briefing given to the Gang of Eight withheld important information.
After Jim Comey’s remarkable testimony on May 15, 2007, the Senate wrote to Mr. Gonzales and asked him if he wished to revise his statements.8 He declined. But on June 5, 2007 Gonzales held a press conference wherein he said the following:
QUESTION: Mr. Attorney General, last month, Jim Comey testified about a visit you and Andy Card made to John Ashcroft’s hospital bed. Can you tell us your side of the story? Why were you there? And did Mr. Comey testify truthfully about it? Did he remember it correctly?
GONZALES: Mr. Comey’s testimony related to a highly classified program which the president confirmed to the American people sometime ago. And, because it’s a highly classified program, I’m not going to comment on his testimony.9 (Emphasis added.]
This statement would seem to indicate that he and Comey were referring to the same NSA warrantless wiretapping program, the TSP, which Bush “confirmed to the American people.” If so, this would indicate that Gonzales was lying when he made the claim that there was no “serious disagreement” about the program. However, in his July 24, 2007 testimony, he said that they had informed the Gang of Eight about the pending expiration of the unidentified program and the Justice Department’s objections to renewing it, but emphasized that this was not the TSP, a statement called “deceptive” by members of the Senate Intelligence Committee who had been briefed on the program.10 He said:
The disagreement that occurred was about other intelligence activities and the reason for the visit to the hospital was about other intelligence activities. It was not about the terrorist surveillance program that the president announced to the American people.11
There appears to be evidence that, indeed, the program that raised so much dissention was NOT the TSP but a data mining program. According to The New York Times:
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.
It is not known precisely why searching the databases, or data mining, raised such a furious legal debate. But such databases contain records of phone calls and e-mail messages of millions of Americans, and their examination by the government would raise privacy issues. 10
The New York Times added: “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.”10 But, according to National Review Online, the program that DOJ officials objected to was a previous version of what would become the TSP. After the DOJ objections, the president narrowed the program’s scope and, therefore, Gonzales was truthful when he stated that the DOJ had no objections to the TSP program because they agreed to it once the revisions were made.12
Mike McConnell, the Director of National Intelligence, has confirmed that this is probably true. He said that, shortly after the 9/11 attacks (please note that the spying started before that) Bush authorized “a series of secret surveillance activities under a single executive order” and that the controversial program “was part of a much broader operation than the president previously described.” He said that the title “Terrorist Surveillance Program” applied only to “one particular aspect of these activities, and nothing more.”13
Representative John Conyers (D, MI), Chair of the House Judiciary Committee, has “suggested the Bush administration may have leaked classified information” on the data mining program “in order to rescue embattled Attorney General Alberto Gonzales from perjury charges.”14 Clearly, the investigation will be going on for a long time. But Bush seems determined to stand by Gonzales. After all, he knows where all the bodies are buried.
1 Eggen, Dan. Senator May Seek Gonzales Perjury Probe, Washington Post, July 26, 2007.
2 Kellman, Laurie. Democrats Urge Perjury Probe of Gonzales. Associated Press, July 26, 2007.
3 Eggen, Dan & Goldstein, Amy. Gonzales’s Truthfulness Long Disputed, Washington Post, July 30, 2007.
4 Bazan, Elizabeth B. & Elsea, Jennifer K. Presidential Authority to Conduct Warrantless Electronic Surveillance to Gather Foreign Intelligence Information. Congressional Research Service, January 5, 2006.
5 CQ Transcriptions. U.S. Senate Judiciary Committee Holds a Hearing on Wartime Executive Power and the National Security Agency’s Surveillance Authority. Part II of IV. Washington Post, February 6, 2006.
6 Lithwick, Dahlia. Pulling the Plug. Slate, May 15, 2007.
7 Johnston, David & Shane, Scott. F.B.I. Chief Gives Account at Odds With Gonzales’s. The New York Times, July 27, 2007.
8 Letter from Russell Feingold, Charles Schumer, Edward Kennedy, and Richard Durbin to Alberto Gonzales, May 16, 2007.
9 Grieve, Tim. What Alberto Gonzales Said. Salon.com, June 5, 2007.
10 Shane, Scott & Johnston, David. Mining of Data Prompted Fight Over U. S. Spying. The New York Times, July 29, 2007.
11 Schmitt, Richard B. Gonzales Loses Ground on the Hill. Los Angeles Times, July 25, 2007.
12 The Editors. Perjury Trap. National Review Online, July 27, 2007.
13 Eggen, Dan. NSA Spying Part of Broader Effort. Washington Post, August 1, 2007.
14 Roston, Michael. Conyers Hints at Bush Leak on Spying to Save Gonzales. The Raw Story, July 30, 2007.
© The Issue Wonk, 2007