Partisan Dem Senators kept Gonzalez in another news cycle by raising a frivolous question about his 2006 Senate testimony on the NSA program. From the WaPo:
The Justice Department said yesterday that it will not retract a sworn statement in 2006 by Attorney General Alberto R. Gonzales that the Terrorist Surveillance Program had aroused no controversy inside the Bush administration, despite congressional testimony Tuesday that senior departmental officials nearly resigned in 2004 to protest such a program.
...
Gonzales, testifying for the first time in February 2006 about the Terrorist Surveillance Program, which involved eavesdropping on phone calls between the United States and places overseas, told two congressional committees that the program had not provoked serious disagreement involving Comey or others.
"None of the reservations dealt with the program that we are talking about today," Gonzales said then.
Four Democratic senators sent a letter to Gonzales yesterday asking, "do you stand by your 2006 Senate and House testimony, or do you wish to revise it," prompting the Justice Department's response.
The NY Times gave the Senators' letter one paragraph in a valentine to Comey:
On Wednesday, in a letter to Mr. Gonzales signed by three other Democratic senators, Mr. Schumer reminded Mr. Gonzales that he had testified last year that “there has not been any serious disagreement” about the N.S.A. program and asked about the apparent contradiction.
ThinkProgress has the letter itself; one wonders whether the Senators actually read it, since it seems to be self-refuting:
You testified last year before both the Senate Judiciary Committee and the House Judiciary Committee about this incident. On February 6, 2006, at a Senate Judiciary Committee hearing, you were asked whether Mr. Comey and others at the Justice Department had raised concerns about the NSA wiretapping program. You stated in response that the disagreement that occurred was not related to the wiretapping program confirmed by the President in December 2005, which was the topic of the hearing. …
We ask for your prompt response to the following question: In light of Mr. Comey’s testimony yesterday, do you stand by your 2006 Senate and House testimony, or do you wish to revise it?
I'll bite - to what program was Gonzalez referring when he limited his comments to "the wiretapping program confirmed by the President in December 2005"? Was that the same program that DoJ objected to in March 2004? Or was the objectionable March 2004 version Terrorist Surveillance Program 1.0, supplanted by Terrorist Surveillance Program 2.0 after incorporation of the DoJ objections? Or did DoJ object to a specific operational element of TSP 1.0, which was dropped for 2.0?
It is clear from the testimony transcript that Gonzalez gave a heavily caveatted answer which Sen. Schumer found to be baffling and non-responsive:
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.
SCHUMER: There are other reports, I'm sorry to -- you're not giving me a yes-or-no answer here. I understand that.
Schumer knew he was being smoke-screened, but they got a headline out of it, so whatever.
MORE: This was obvious to the NY Times editors:
While testifying before the Senate Judiciary Committee in February 2006, Mr. Gonzales was asked if Mr. Comey had expressed reservations about the eavesdropping program. Mr. Gonzales replied, “There has not been any serious disagreement about the program that the president has confirmed.” By that, he must have meant the program that included modifications made after the hospital visit and after Mr. Comey’s meeting with Mr. Bush.
IN THE INTERESTS OF ACCURACY: The over-excited Times editors say this about the NSA program and the Gonzalez hospital run:
Mr. Comey said the bizarre events in Mr. Ashcroft’s hospital room were precipitated by a White House request that the Justice Department sign off on a continuation of the eavesdropping, which started in October 2001. Mr. Comey, who was acting attorney general while Mr. Ashcroft was ill, refused. Mr. Comey said his staff had reviewed the program as it was then being run and believed it was illegal.
The WaPo editors offer this:
When the attorney general refused, Mr. Gonzales apparently took part in a plan to go forward with a program that the Justice Department had refused to certify as legal.
...What was the administration doing, and what was it willing to continue to do, that its lawyers concluded was without a legal basis? Without an answer to that fundamental question, the coverup will have succeeded.
Both editorials would be more accurate (if less forceful) if they noted that the Office of Legal Counsel of the DoJ had, for the previous two and a half years, endorsed the NSA program - it was a change in the lawyers (from Yoo to Goldsmith at OLC) that precipitated this mini-drama, not a change in the program.
I will propose two thought experiments:
1. A Wall Street firm has a reasonably complicated financing structure requiring legal opinions; a typical deal takes about two months to come together, and the firm has done twenty such deals with the blessing of their outside counsel.
Now comes the twenty-first deal, and the law firm informs the Wall Street financiers, forty-eight hours before the scheduled close, that they can't sign the legal opinion. Has the relevant law changed? Nooo. Has the financing structure changed? Nooo. But a new partner at the law firm has looked at the structure and wants the deal tweaked slightly before he can sign off on it.
Take my word for it - there would be Hades to pay for this, and serious questions would be raised about the professionalism and timing of the law firm. Bring the problem sooner, or bring it for the twenty-second deal, but being obstructive at the last minute is not acceptable.
Or let's try an example closer to home for the Times and WaPo editors here - suppose their law firms came to them and informed them that, although no laws had changed, a new partner was worried about some privacy issues, so the Times would have to suspend its website in 48 hours or face dire legal risks.
I promise you - blood would flow at the Times, or wherever it was they finally found tracked down the new lawyer with the new problem.
For my money, Comey's behavior was a joke - he was warned on a Thursday a week ahead of time of a problem with DoJ recertifying the NSA program, sat on the bad news for five days, then sprang it on Gonzalez on Tuesday for a recertification expected on Thursday.
OK, I'll grant that Ashcroft's unexpected illness may have muddled the process - Ashcroft may have planned to meet with Gonzalez on Friday and instead woke up in a hospital. However, nothing in Comey's story suggested he alerted Gonzalez over the weekend or on Monday, and there is a mysterious void in the Wednesday timeline - per Comey, nothing happened all day and then that night Gonzalez rushed to the hospital. Puzzling at best, derelict at worst.
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