Yesterday, I went and dug up the relevant testimony from 2006 to explain the bind that Alberto Gonzales finds himself in today. At the heart of it was a decision, made by Gonzales during his February 2006 testimony before the Senate Judiciary Committee, to self-limit his testimony about the NSA to only matters that the President had publicly acknowledged.
GONZALES: 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.
In an exchange with Sen. Schumer (D-NY), Gonzales repeatedly asserted that any dispute he had had with Attorney General John Ashcroft and [Acting] Attorney General James Comey, was about ‘capabilities that we’re not talking about today.’
It was a crafty decision. The President had confirmed some warrantless surveillance, but had insisted that it was only for calls originating from known or suspected terrorists outside the country to numbers inside the United States. Here’s how James Risen and Eric Lichtblau put it in a Christmas Eve 2005 article:
Since the disclosure last week of the NSA’s domestic surveillance program, Bush and his senior aides have stressed that his executive order allowing eavesdropping without warrants was limited to the monitoring of international phone and e-mail communications involving people with known links to al-Qaida.
Then they added a key graf.
What has not been publicly acknowledged is that NSA technicians, besides eavesdropping on specific conversations, combed through large volumes of phone and Internet traffic in search of patterns that might point to terrorism suspects.
Gonzales refused to talk about the latter and stuck doggedly to the former talking point. At the time of Gonzales’ February 2006 testimony, Sen. Schumer already had some information about the controversy that later came out…that Andrew Card and Alberto Gonzales had visited John Ashcroft on his post-operative hospital bed and tried to get him to overrule a decision by Acting AG James Comey not to reauthorize the Terrorist Surveillance Program [TSP].
That hospital visit occurred on March 10, 2004. In trying to explain this week why he and Card went to visit Ashcroft in the hospital that day, Gonzales made reference to a meeting that had occurred earlier in the day at the White House. It was a meeting of the Gang of 8 (the Congressional leaders and intelligence chairmen and ranking members). Gonzales testified that congressional leaders wanted to continue intelligence activities that Comey was refusing to authorize. (He is going to face perjury-related problems on this testimony). But he told Schumer that the confrontation at the hospital [and the congressional concern] was not about the TSP:
GONZALES:…Mr. Comey was talking about a disagreement that existed with respect to other intelligence activities [than the TSP].
I know this is confusing, but I believe it is a natural result of Gonzales’ decision, in February 2006, to self-limit his testimony to only those aspects of the TSP that the President had publicly acknowledged. I hope to make this clear as we go along. Right here, let me state that what Gonzales really meant above is:
GONZALES:…Mr. Comey was talking about a disagreement that existed with respect to other intelligence activities [than the elements of the TSP that we have publicly acknowledged].
In this morning’s TPM Muckraker, Spencer Ackerman says:
If Gonzales concedes that the March 10, 2004 meeting [with the Gang of 8] was about the TSP, he’ll be conceding that Comey’s objections were indeed about the TSP — and that means that his February 6, 2006 testimony misled the Senate. In other words, unless Gonzales can prove that the March 10, 2004 meeting wasn’t about the TSP, he’s going to be hounded by perjury charges for the rest of his tenure.
But Gonzales has a serious problem. The Associated Press has obtained a memo sent from then Director of National Intelligence John Negroponte to then Speaker of the House Dennis Hastert, that makes it clear that the Gang of 8 meeting was a briefing on the TSP (see page 2).
But…and it is a big but…the briefing on the TSP that occurred on March 10, 2004 was not necessarily about the ‘those facts the president ha[d] publicly confirmed’ in December 2005. In fact, Ashcroft and Comey never approved the operational activities that were in dispute in March 2004, and they were presumably discontinued.
Proving Gonzales lied then could come down to determining what the meaning of ‘is’ is. For Gonzales, when he testified that Comey was not objecting to the TSP he might have meant that Comey did not object to the TSP as it existed in December 2005-February 2006. In other words, Comey only objected to parts of the TSA that were discontinued as a result of Comey’s objections. Yes, I know, that is quite parsed out…but it appears to be the legal strategy the Bushies pursued in the aftermath of the New York Times bombshell article of December 16, 2005. In that article, Risen and Lichtblau reported:
In mid-2004, concerns about the program expressed by national security officials, government lawyers and a judge prompted the Bush administration to suspend elements of the program and revamp it.
Let’s put it this way: in February 2006, Schumer asked Gonzales if there had been any dispute about the TSP and Gonzales replied that there had not been any dispute about ‘those facts the president ha[d] publicly confirmed’. It was a classic non-answer. In order to sustain the fiction that he was not trying to mislead Congress, Gonzales has had to stick to the story that the dispute was not about the program to monitor al-Qaeda calls. And I am sure that is true.
Were Gonzales to tell the truth he would admit that the NSA leaks had nothing to do with a program to monitor calls from al-Qaeda to people in the United States, but rather about much greater invasions of privacy.
To avoid making that admission, Gonzales may have to face perjury charges and face them unable to launch the only defense he has: the President made me do it.
