Parsing Gonzales And Prepping For Greymail

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.

And the NY Times shines a new light on the issue broached by Jane Harman, to wit, when is a program not one program, but two.  I have added emphasis to the greymail puzzle:

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.

Comments

[kim]

I think G figured out S, and that's why B is defending him. They may have S cold. Remember, B talked about 'wrongdoing in the Department of Justice'.
==================================

[Neo]

When I posted last night giving too much credit to the Senate Democrats, it occurred to me later that I might have the shoe on the wrong foot, but Harman lead the way with that crypic quote that said it all.

The unanswered question is ..

did the Judiciary Committee know about this during the hearing and immediately afterward ?

If not, they are fools. If so, they are liars.

Perhaps in the future, the questioners should be sworn to tell the truth as well.

[MikeS]

I would like to be on the jury in a perjury trial where someone is accused of giving technically correct but deceptive testimony.

[Neo]

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.

technically correct .. damn straight.

If I call Feingold an asshat, that is technically correct as well.

[RichatUF]

Neo-

What that this op on AG Gonzales is just another lead up to exposing more surveillance programs...color me shocked!

So datamining is bad when a Republican administration uses it to track potential terrorists both here and abroad but it is ok when a Democrat uses Echelon and Carnivore to spy on political opponents [and for gossip]

[Neo]

So far I haven't seen anything that would make Jason Leopold "technically correct" with any of his stuff involing "Sealed vs Sealed".

[hit and run]

Neo:
If I call Feingold an asshat, that is technically correct as well.

Oh, my love for literalists has been restored!

[Neo]

may maintain that his narrowly crafted answers, while legalistic, were technically correct.

This was the Judiciary Committee afterall. We're supposed to believe that the "best legal minds" in the Senate are members. Is that some kind of indictment, or what ?

Next we will be told that while Gonzales was calling them Homo Sapiens, they thought he was saying they were gay. It's nice to know that they are happy.

[boris]

I believe that his testimony was misleading at best,” said Senator Russ Feingold

Transparently unserious. With a straight face faking their best sincerity they want to claim that drawing a distinction between a data mining program and a wire tapping program is perjury. What they are really doing is (like Plame) covering their own dishonesty with accusation and bluster.

Finkgeld: "Pay no attention to the facts ... WE WERE DECEIVED BY THE TRUTH !!!"

[TerryeL]

So it seems that Gonzales was talking about something different. Semantics.

But then the Democrats know that too. They could go into closed session and get their answers, why don' they?

[Neo]

REDO

Next we will be told that while Gonzales was calling the Senate Democrats Homo Sapiens, the Senate Democrats thought he was saying the Senate Democrats were gay, but the Senate Democrats don't seem very happy, so I guess that means that the Senate Democrats are inhuman.

Now, that seems to be technically correct.

[Neo]

They could go into closed session and get their answers, why don' they?

Gonzales offer to go to closed session to answer the question, but he got turned down.

There is no seeking of truth, only political theater.

[hit and run]

Neo:
There is no seeking of truth, only political theater.

So the natural question, what will the "masses" see? "Lying Gonzales" or political theater?

Doesn't much matter if we see the truth, if the narrative is spread widespreadly...ugh

[anduril]

Neo, they're fools AND liars any way you slice it.

Powerline does a good job:

http://powerlineblog.com/archives/018389.php

[PeterUK]

Under the Schumer Terror the Judiciary Committee has turned into Committee of Public Safety it will devour them all.

[anduril]

Here's what Powerline had to say; the indented paragraphs are from the NYT:

Today the New York Times filled in the blanks on Alberto Gonzales's testimony before the Senate Judiciary Committee. As we discussed in detail here and here, Gonzales testified that he had visited John Ashcroft in the hospital to try to resolve a legal dispute that had developed over an intelligence program, but that the program in question was not the "terrorist surveillance program" that had been confirmed by President Bush, i.e., the interception of international communications where one participant is associated with al Qaeda. About that program, Gonzales said there had been no serious legal question.

This testimony was met with incredulity by the Senators. "Do you expect us to believe that?" Arlen Spector asked. Committee members Schumer and Leahy flatly accused Gonzales of lying, and called for a special prosecutor to carry out a perjury investigation. One thing I could never understand was why anyone cares: what difference would it make if Gonzales's hospital visit related to the "terrorist surveillance program," or to some other intelligence activity? And what reason would Gonzales have to lie about that fact?

Today the Times confirms that Gonzales told the truth. The legal dispute that broke out in 2004 was about the NSA's "data mining" project, in which databases of telephone records were reviewed for patterns suggestive of terrorist cells:

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.

What's comical about the Times' reporting is that the paper can't bring itself to acknowledge that this means Gonzales has been vindicated:

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.

First, this paragraph of "analysis" is contradicted by the reporting contained in the same article, which doesn't say that the dispute was "chiefly" about data mining. It says it was about data mining, period. Further, there is nothing "narrowly crafted," "legalistic" or "technically correct" about Gonzales's testimony. It was truthful and fully accurate. He said that the legal controversy did not involve the program that was confirmed by President Bush, in which international communications where one party was associated with al Qaeda were intercepted. That is exactly what the Times reported today. The controversy involved a completely different program, which has been rumored but which the administration has never publicly confirmed. Yet the Times cannot bring itself to admit that Gonzales has been vindicated, and the Senators who called for a perjury investigation have been made to look foolish.

The Times adds to the anti-Gonzales tone of its article by mixing in a little false reporting. The paper says:

Mr. Gonzales defended the surveillance in an appearance before the Senate Judiciary Committee in February 2006, saying there had been no internal dispute about its legality. He told the senators: “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.”

Mr. Gonzales’s 2006 testimony went unchallenged publicly until May of this year, when James B. Comey, the former deputy attorney general, described the March 2004 confrontation to the Senate Judiciary Committee.

Mr. Comey had refused to sign a reauthorization for the N.S.A. program when he was standing in for Mr. Ashcroft, who was hospitalized for gall bladder surgery.

In fact, James Comey's testimony did not contradict Gonzales's. As we have pointed out repeatedly, Comey refused to identify the program over which there was a legal disagreement that led to the hospital visit. He did not, contrary to the Times's assertion, challenge or contradict Gonzales's testimony that "[t]here 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.”

The fact is that the Senators who ridiculed Gonzales, questioned his credibility and called for a perjury investigation were wrong. They owe the Attorney General an apology.

[Neo]

anduril: Thanks for the link.

so this leaves us with ..

why were the members of the Senate Judiciary Committee unwilling to go to closed session when Gonzoles offered to do so ?

So I guess this is another one of those cases of the narrative was right, but the facts were wrong. Hardly, the Senators were fooled only because they couldn't recognize the truth. The narrative was utterly and completely wrong.

So let's have an apology .. Cm'on, it's the honorable thing to do .. thought so. No honor among "lollipop" theives.

[anduril]

The apology, no doubt, is in the mail.

[TerryeL]

At least it seems the White House is fighting back. I think the Democrats might go too far this time. But then again, considering how far gone they are, how can they go too far?

[maryerose]

These senators are risking re-election when they waste an entire day on nonsense like this. The House is moving toward some sort of resolution in accordance with FISA but didn't realize the urgency until I believe McConnell offered testimony. Our taxpayer money is paying these congressmen's salary and they are sitting around at partisan luncheons instead of protecting us with programs to fight terrorism. If they don't believe there is a war on terrorism they should resign their seat and let someone prepared to defend take their place. I'm tired of the posturing and primping{Edwards} do your darn job!

[MikeS]

The thing is nobody really misunderstood the Gonz. Some senators 'pretended' to misunderstand. But what can be done about that?

As Senator Reid might say, "The American people already know this is the worst Congress we've ever had.

[maryerose]

I can't wait for them all to go on their August break- they're not accomplishing anything anyway. Right now The Iraqi government is looking a lot more productive than they are.

[anduril]

Here's Lowry at The Corner re FISA:

From a Republican on Capitol Hill:

Late last night, Democrats began emergency internal discussions on updating the Foreign Intelligence Surveillance Act. Republican Congressmen have been criticizing the Democratic leadership for refusing to reform FISA to serious address gaps that are hurting the ability of US intelligence to intercept terrorist communications. Republican criticism of the Dems for planning to take off the month of August without fixing this serious problem seems to be having an effect.

The Dems are looking for some kind of minor fix so they can say they addressed this issue before they recess on or about August 3rd. There's been talk of shortening the recess by a week or so because of the lack of accomplishments by this Congress, but that's another story. Congress returns on September 4th.

The Dems were negotiating for meetings with the WH to discuss a fix to FISA last night. Dem leadership wanted meetings without Republican congressional reps. Fortunately, the WH did not agree to this.

The meetings were held this morning. Dems discussed some minor fixes that House and Senate Republicans rejected. No word on when or if these meetings will reconvene.

So, after all this nonsense (and that's being very kind) the Dems want the Reps to help pull their asses out of the fire. Rove should know enough to extract the max.

[hit and run]

Rove the proctologist?

[hit and run]

maryerose:
I can't wait for them all to go on their August break- they're not accomplishing anything anyway.

I don't know...how much would it take, you reckon, for me to have a post office re-named "hit and run".

That would be kewl.

[Seixon]

I already speculated that Gonzo was talking about the NSA mining program. But of course the Dems keep pretending that the NSA only had one program so they can call him a liar.

Mueller said "a program". The AP said, "Oh, a program, Gonzo lied!" BS. Just like they did with Rove, the Dems and their friends in the media are indicting and convicting Gonzo in the newspapers. The truth doesn't matter anymore, it's the impression they can give the most people they can that counts.

Again, the reason why I have stopped voting for the Dems although I share most of their values - they have become complete douche bags.

[BobS]

MikeS:

Your "The Gonz" is just perfect!

[BobS]

Seixon:

Amen.

[kim]

anduril, hasn't Reyes been quoted as saying Bush should just use his powers in the meantime. What a clown show.
=============================

[BobS]

Kim: You are correct. But as you and everyone else here know, Senate Dems and the NY Times have wanted to impeach the President for doing what Ryes suggested he do. The left's lunacy continues to amaze.

[Pofarmer]

it is not known precisely why searching the databases, or data mining, raised such a furious legal debate.

Getting a little close to home would be my guess. Ya think Pelosi and Co. had been talking to Assad and others in the time period leading up to their little overseas trips?

[Sara]

OT - Russ Vaughn nails it.

Not Even a Contest

[PeterUK]

"I can't wait for them all to go on their August break- they're not accomplishing anything anyway."

Oh they have,I haven't had as much fun since the Muppets.

[hit and run]

Pofarmer:
Ya think Pelosi and Co. had been talking to Assad and others in the time period leading up to their little overseas trips?

Well, we know Jay Rockefeller was:

SEN. ROCKEFELLER: No. The – I mean, this question is asked a thousand times and I’ll be happy to answer it a thousand times. I took a trip by myself in January of 2002 to Saudi Arabia, Jordan and Syria, and I told each of the heads of state that it was my view that George Bush had already made up his mind to go to war against Iraq – that that was a predetermined set course which had taken shape shortly after 9/11.

[Seixon]

Now the NY Times and the Left are starting to realize that Gonzales was in fact probably talking about data mining when he said there was another program that was the deal-breaker.

Yet they still call Gonzo a liar. I guess they are not persuaded by things like facts.

[BarbaraS]

I wonder if all the hoopla that came up when the people who data mined during the Clinton administration started fussing about Clinton shuting down Able Danger was because these people betrayed a new ongoing NSA program?

Some people have made the comment that Gonzales is stupid. I doubt this. It takes an alert and agile mind to walk through the minefields of the dems. And to say he should resign is quite presumptious of the dems. They have no say in how the executive is run.

[boris]

I guess they are not persuaded by things like facts.

Alternate explanation: Caught red-handed the best they can hope for is convince the gullible that they actually believe their own lies. "Duh, we are SO STUPID we STILL don't unnerstan the difference !!! See, not craven lying asshats, just really really dim witted, blind and stubborn."

[bio mom]

Once again: Where the heck is John Ashcroft? In some undisclosed location?

[Neo]

What the "Terry Schiavo" incident did for the Republicans, the Alberto Gonzales fishing expedition is going for the Democrats.

The only perjury on Capitol Hill was when the current crop of asshat Senators were shorn to "preserve, protect and defend the Constitution of the United States".

They should relish their 14% rating, cause it ain't gonna last long.

[Topsecretk9]

Ya think Pelosi and Co. had been talking to Assad and others in the time period leading up to their little overseas trips?---

According to the prowler (AM) she is planning some undermining trips back to the middle east for August - don't be surprised when Pelosi puts more troops at great risk again - you know because she cares.

[Neo]

Up until this past week, I didn't feel that I had a dog in this fight, but now, if only to piss the hell out of Democrats and other wobbly Republicans, I want Alberto Gonzales to stay the US Attorney General till the day that Bush leaves office.

I plan to donate against anyone who demands, asks or mentions that Gonzales should leave.

[maryerose]

I also like the term the Gonz. He's going to have to be tough like the Fonz. And he will have to learn how to turn on a jukebox with a slap of his hand and say "Ayyy".

[lurker]

Neo, please email WH and VP that you want Gonz to stay.

Ed Morrissey still thinks that Gonz should leave.

I see that Patterico may be having second thoughts after expressing that Gonz screwed up.

[sylvia]

I don't know, it's probably wrong but I am just so bored about this whole Gonzales thing.

[hit and run]

Neo:
if only to piss the hell out of Democrats and other wobbly Republicans

I would really like to see, even though if pressed I will admit that it may not be the best idea, Gonzales testifying in front of whatever committee, stand up, start pointing his finger and shouting, "You are being completely dishonest, Senator. I have told the truth. I continue to tell the truth. I have offered to go into more detail in closed session and expand on my testimony to your satisfaction in order to protect national security secrets that are vital to protecting this country. Any more time spent on this issue, in this manner is not only a magnificent waste of time, it endangers this country. I will submit to any and all questions that are in the legitimate purview of congressional oversight. I welcome the opportunity for the Department of Justice and the Executive branch to work together with Congress to ensure that the job of protecting the United States is being done in the most effect manner possible. You let me know when you are ready to do the same."

He then gathers up his papers and just before turning to leave, he loudly exclaims, "I bid you good day, sir!"

[hit and run]

Rivkin and Casey in the WSJ...A good (and long read), but at this point, I focus on one sentence...

What has gotten lost in all of this increasingly sordid game of political gotcha is the viability of a critical program in the war on terror.

[clarice]

Gonzales:

http://www.americanthinker.com/2007/07/alberto_gonzales_agonistes.html>Gonzales

JCom
http://www.americanthinker.com/2007/07/judiciary_committee_clown_show.html>Breyer

[Neo]

I understand that Alberto Gonzales hasn’t delivered a letter to the Senate Judiciary Committee today by the promised noon deadline.

Seems Alberto is stuck on the salutation of the letter.

He started with "Dear gentlemen," but Gonzales said that really sounded like perjury.

[SunnyDay]

Gonzales should take lessons from Rumsfeld - I watched him today. He made Kucinich look like an idiot.

[Neo]

I find it incredible that the members of the Senate Judiciary Committee seem unable to think "outside the box".

These guys are supposed to be the best and brightest legal minds in the Senate, but it appeared repeatedly that they just could grasp that a discussion about intelligence may include a secret component.

The offer by Gonzales to discuss the matter further, in closed session, should have been a tipoff, but that was denied.

This make the committee members either stupid or liars, or both.

[sophy]

Welcome to our game world, my friend asks me to buy some 12sky gold .