The Captain does a good job presenting the White House talking points in defense of embattled AG Gonzales. And as he points out to his critics, he is reporting, not evaluating - attorneys, feel free to chime in.
Mining of Data Prompted Fight Over Spying
By SCOTT SHANE AND DAVID JOHNSTON
WASHINGTON, July 28 — 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 the phone calls and e-mail messages of millions of Americans, and their examination by the government would raise privacy issues.
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.
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.
But members of the Senate Intelligence Committee, who have been briefed on the program, called the testimony deceptive.
“I’ve had the opportunity to review the classified matters at issue here, and I believe that his testimony was misleading at best,” said Senator Russ Feingold, Democrat of Wisconsin, joining three other Democrats in calling Thursday for a perjury investigation of Mr. Gonzales.
“This has gone on long enough,” Mr. Feingold said. “It is time for a special counsel to investigate whether criminal charges should be brought.”
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.
And a bonus complication - as Special Counsel Patrick Fitzgerald eventually realized, there are limits to the power that can be delegated to a special counsel (if we ever reach that point). The Classified Information Procedures Act requires the Attorney General or specific underlings to resolve disputes on what information can be declassified; this does not appear to be a power that could be delegated to a special counsel:
Sec. 14. Functions of Attorney General
The functions and duties of the Attorney General under this Act may be exercised by the Deputy Attorney General, the Associate Attorney General, or by an Assistant Attorney General designated by the Attorney General for such purpose and may not be delegated to any other official.
This would all be deeply problematic if a perjury prosecution of Gonzales on the basis of his characterization of these activities as more than one program were to be attempted. And the possible procedures for a Senate trial under their inherent contempt authority would be even more baffling - would Gonzales still be the one to sign off on the evidence against him?
I don't want to be tagged as defending Gonzales here - even I, a small government guy, had in mind more of a defunding of the NEA than the de facto elimination of the Attorney General as a credible Cabinet officer - but the classified information hurdle looks like a major barrier to a prosecution.
MORE: John Hinderaker of Powerline backs the "two programs" interpretation and claims vindication for Gonzales.
The Anon Lib has extended excerpts from the controversial Gonzales testimony in a Friday post rebutting the notion that Gonzales was aiming for a temporal distinction between one program from 2001 to 2004 and a second program thereafter. However, this post did not fully anticipate the latest data-mining info, so let me tweak the Anon one with this timeline:
Dec 16, 2005 - NY Times breaks story about warrantless eavesdropping
Dec 17 - President confirms program in radio address; this, we are now told, is what Gonzales had in mind when he told the Senate "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."
Dec 24 - NY Times writes about data mining as part of "the program":
WASHINGTON, Dec. 23 - The National Security Agency has traced and analyzed large volumes of telephone and Internet communications flowing into and out of the United States as part of the eavesdropping program that President Bush approved after the Sept. 11, 2001, attacks to hunt for evidence of terrorist activity, according to current and former government officials.
The volume of information harvested from telecommunication data and voice networks, without court-approved warrants, is much larger than the White House has acknowledged, the officials said. It was collected by tapping directly into some of the American telecommunication system's main arteries, they said.
As part of the program approved by President Bush for domestic surveillance without warrants, the N.S.A. has gained the cooperation of American telecommunications companies to obtain backdoor access to streams of domestic and international communications, the officials said.
For folks scoring at home, one might say Gonzales has a point about two programs, since they were revealed separately and the President only confirmed the first. But wait! Here is Gonzales with General Hayden at a Dec 19 press conference following the President's radio address:
ATTORNEY GENERAL GONZALES: Thanks, Scott.
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.
Ouch - it would have been helpful to his current argument if Gonzales had chosen that moment to note the existence of other programs, rather than referring to one over-arching program of which the President had confirmed a part.
Oh, well - an AG can change his mind, right? Hmm... I guess Senators are always the last to know.
ERRATA: This Hayden presser from Jan 2006 may be worth a re-read.
IMPEACH GONZALES: Oddly enough, on Saturday I had double-checked the Constitution to verify that Cabinet officers are subject to impeachment. Now the NY Times is calling for impeachemnt of Gonzales if a special counsel is not appointed, and Josh Marshall is providing a history lesson in Cabinet impeachments.
As discussed above I don't think a special counsel can handle the perjury allegation on this eavesdropping program, but a Senate impeachment trial ought to be a possibility since they can make up their own rules of evidence. From a PR perspective, however, do the Dems want to take evidence in a closed session and then vote to remove Gonzales? Maybe Nancy Pelosi can be one of the House impeachment managers and appear in a red dress, just to play the Red Queen in this Gonzo In Wonderland scenario.
ASHCROFT v. CHENEY: The relationship between Ashcroft and Cheney was, we infer, frosty in late 2003/early 2004:
Attorney General John D. Ashcroft, was astonished to learn that the draft gave the Justice Department no role in choosing which alleged terrorists would be tried in military commissions. Over Veterans Day weekend, on Nov. 10, he took his objections to the White House.
The attorney general found Cheney, not Bush, at the broad conference table in the Roosevelt Room. According to participants, Ashcroft said that he was the president's senior law enforcement officer, supervised the FBI and oversaw terrorism prosecutions nationwide. The Justice Department, he said, had to have a voice in the tribunal process. He was enraged to discover that Yoo, his subordinate, had recommended otherwise -- as part of a strategy to deny jurisdiction to U.S. courts.
Raising his voice, participants said, Ashcroft talked over Addington and brushed aside interjections from Cheney. "The thing I remember about it is how rude, there's no other word for it, the attorney general was to the vice president," said one of those in the room. Asked recently about the confrontation, Ashcroft replied curtly: "I'm just not prepared to comment on that."
According to Yoo and three other officials, Ashcroft did not persuade Cheney and got no audience with Bush. Bolten, in an October 2006 interview after becoming Bush's chief of staff, did not deny that account. He signaled an intention to operate differently in the second term.
Add it up - in that time frame the DoJ was revising their view on detainees and enhanced interrogation, revising their view on warrantless eavesdropping, and Fitzgerald had just been appointed to investigate Libby and (we presume) Cheney.