Gonzo Gets With The Program
guest post by Mash


Today the New York Times reports on the dispute in 2004 that led Alberto Gonzalies to rush to Attorney General John Ashcroft’s hospital room to intimidate a sedated and sick man. The Times explains Gonzalies’ lies:

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.

Mr. Gonzales insisted before the Senate this week that the 2004 dispute did not involve the Terrorist Surveillance Program “confirmed” by President Bush, who has acknowledged eavesdropping without warrants but has never acknowledged the data mining.

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. [Emphasis added by me.]

The Times is giving Gonzalies too much credit. It is true that Gonzalies tried to parse carefully to try and give the impression that there was no dissent about the so-called "Terrorist Surveillance Program", but he did not parse to separate data mining from eavesdropping. He initially tried to parse to separate the "program" from its "operational aspects", but lost his way last week and may have dug his hole deeper.

To understand this, let’s review Gonzalies’ public statements and testimony on the matter.

On December 17, 2005 George W. Bush publicly acknowledged during his radio address the existence of a NSA program to eavesdrop on calls to and from the United States. The program had previously been leaked to the New York Times. Mr. Bush said:

In the weeks following the terrorist attacks on our nation, I authorized the National Security Agency, consistent with U.S. law and the Constitution, to intercept the international communications of people with known links to al Qaeda and related terrorist organizations. Before we intercept these communications, the government must have information that establishes a clear link to these terrorist networks.

This is a highly classified program that is crucial to our national security. Its purpose is to detect and prevent terrorist attacks against the United States, our friends and allies. Yesterday the existence of this secret program was revealed in media reports, after being improperly provided to news organizations. As a result, our enemies have learned information they should not have, and the unauthorized disclosure of this effort damages our national security and puts our citizens at risk. Revealing classified information is illegal, alerts our enemies, and endangers our country.

The following Monday, on December 19, Alberto Gonzalies and General Michael Hayden briefed reporters at the White House about the NSA program. At the beginning of the briefing Gonzalies made this very important statement about what he was to discuss:

The President confirmed the existence of a highly classified program on Saturday. The program remains highly classified; there are many operational aspects of the program that have still not been disclosed and we want to protect that because those aspects of the program are very, very important to protect the national security of this country. So I’m only going to be talking about the legal underpinnings for what has been disclosed by the President. [Emphasis added by me.]

It is clear from Gonzalies’ statement that operational aspects of the program, such as data mining as described by the New York Times today and earlier revealed by the USA Today, are part of the NSA program, and not part of another program.

During the same briefing, a reporter asked Gonzalies about the Justice Department’s Office of Legal Council’s (OLC) legal rationale for this NSA program. Gonzalies side-stepped the question:

Q Judge Gonzales, will you release then, for the reasons you’re saying now, the declassified versions of the legal rationale for this from OLC? And if not, why not? To assure the American public that this was done with the legal authority that you state.

ATTORNEY GENERAL GONZALES: We’re engaged now in a process of educating the American people, again, and educating the Congress. We’ll make the appropriate evaluation at the appropriate time as to whether or not additional information needs to be provided to the Congress or the American people.

Q You declassified OLC opinions before, after the torture — why not do that here to show, yes, we went through a process?

ATTORNEY GENERAL GONZALES: I’m not confirming the existence of opinions or the non-existence of opinions. I’ve offered up today our legal analysis of the authorities of this President.

We of course learned earlier this year from former Deputy Attorney General James Comey that the OLC had raised serious objections about the NSA program.

Gonzalies was asked specifically about Comey’s and the OLC’s objections to the program by Senator Chuck Schumer during a February 6, 2006 appearance in front of the Senate Judiciary Committee. At this hearing Gonzalies parsed his words very carefully in order to give the impression that no such objections existed about the "program". It is also worth noting that Gonzalies was not under oath at this hearing after Arlen Specter, then Chairman, refused requests by Senators to have Gonzalies under oath. Following is the relevant exchange between Schumer and Gonzalies:

SCHUMER: I concede all those points. Let me ask you about some specific reports.

It’s 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.

SCHUMER: I want to ask you, again, about — we have limited time.

GONZALES: Yes, sir.

SCHUMER: It’s also been reported that the head of the Office of Legal Counsel, Jack Goldsmith, respected lawyer and professor at Harvard Law School, expressed reservations about the program. Is that true?

GONZALES: Senator, rather than going individual by individual, let me just say that I think the differing views that have been the subject of some of these stories did not deal with the program that I’m here testifying about today.

SCHUMER: But you were telling us that none of these people expressed any reservations about the ultimate program, is that right?

GONZALES: Senator, I want to be very careful here, because, of course, I’m here only testifying about what the president has confirmed.

And with respect to what the president has confirmed, I do not believe that these DOJ officials that you’re identifying had concerns about this program. [Emphasis added by me.]

Gonzalies again drew the distinction between "operational capabilities" and the "program". In his opening statement he made clear that his responses would not address "operational details" of the NSA program:

Before going any further, I should make clear what I can discuss today. I am here to explain the department’s assessment that the president’s terrorist surveillance program is consistent with our laws and the Constitution.

I’m not here to discuss the operational details of that program or any other classified activity.

The president has described the terrorist surveillance program in response to certain leaks, and my discussion in this open forum must be limited to those facts the president has publicly confirmed: nothing more.

Many operational details of our intelligence activities remain classified and unknown to our enemy. And it is vital that they remain so. [Emphasis added by me.]

So far, Gonzalies was side-stepping dissent about the NSA program by creating two artificial buckets – one bucket that was the description of the NSA program, and another bucket that was all the operational aspects of the program. By conveniently pushing all dissent into the "operational" bucket he had created the illusion that the "program", that is the description of the program (perhaps just the name), had not been the subject of serious dissent. Mr. Comey, however, in his May 2007 testimony clearly described significant dissent at the Department of Justice, testimony that has since been confirmed by FBI Director Robert Mueller.

Alberto Gonzalies however parsed a little too far last week when he testified that the "dissent related to other intelligence activities" and not the "terrorist surveillance program". Gone is the distinction between "operational aspects" and the "program" – he is now under oath asserting that what Comey testified to, what Director Mueller testified to, and what the Negroponte memo cited, were not about the "terrorist surveillance program" or "operational aspects" of the program, but belonged outside the program altogether. In doing so, he has lost the fine line that he had created and was walking in his earlier public statements and testimony about the NSA program. In last week’s testimony, he failed to stick to the strict parsing that he had maintained for more than a year and a half. In parsing in a different direction, he has undermined his previous parsing.

Alberto Gonzalies may have just parsed himself out of a job. However, to be fair to Alberto Gonzalies, he has only been the Attorney General and not privy to the "operational aspects" of the Attorney General program – or, to be more precise, other attorney general activities. So, although there has been dissent about the "operational aspects" of the attorney general, would it be fair to say that the attorney general should be fired?

 [Note: The image above is from today’s New York Times article. Interestingly, the image file is named "gonzo600.jpg".]