Let’s pull a thread here and see what it gets us. On February 6, 2006 Attorney General Alberto Gonzales testified about the NSA program before Arlen Specter’s Senate Judiciary Committee. This hearing was most memorable for the acrimonious beginning where Specter refused to have Gonzales take an oath to tell the truth and Sens. Feingold and Leahy threw a fit. Gonzales was called to respond to an article that had appeared on December 16, 2005 in the New York Times, wherein ‘[n]early a dozen current and former officials, who were granted anonymity because of the classified nature of the program’, revealed that the NSA was spying on American citizens without any judicial overview. In Gonzales’ opening statement he said something that made my ears perk up. (Throughout my citations below, all emphasis is mine).
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.
Gonzales, thus, self-limited his testimony to include only the facts that had already been admitted to. And the administration had only admitted to spying on phone calls from known or suspected terrorists abroad (al-Qaeda) to American citizens in the United States. I thought this was fishy for several reasons. But, chief among them was my strong suspicion that ‘[n]early a dozen current and former officials’ at the NSA would never have risked loss of job or liberty to leak about a program that only snooped on known or suspected terrorists. I felt the program must have been far more pernicious and intrusive of everyday Americans to justify such a massive and risky leak. So, I had my ears open.
And a little while into the testimony there was the following exchange between Sen. Kohl (D-WI) and Gonzales. Kohl was wondering why Gonzales had testified that the NSA did not snoop on calls between two suspected al-Qaeda members if both of the callers were in the United States.
KOHL: It seems to me that you need to tell us a little bit more because to those of us who are listening, that’s incomprehensible. If you would go Al Qaida-to-Al Qaida outside the country — domestic- outside the country but you would not intrude into Al Qaida-to-Al Qaida within the country — you are very smart, so are we, and to those of us who are interacting here today, there’s something that unfathomable about that remark.
GONZALES: Well, Senator, we certainly endeavor to try to get that information in other ways if we can. But that is not what the president…
KOHL: No, but isn’t — we need to have some logic, some sense, some clarity to this discussion this morning.
GONZALES: Senator, think about the reaction, the public reaction that has arisen in some quarters about this program. If the president had authorized domestic surveillance, as well, even though we’re talking about Al Qaida-to-Al Qaida, I think the reaction would have been twice as great.
And so there was a judgment made that this was the appropriate line to draw in ensuring the security of our country and the protection of the privacy interests of Americans.
KOHL: I appreciate that.
And before I turn it back to the — but yet the president has said with great justification, he’s going to protect the American people regardless.
KOHL: And if there’s some criticism, he’ll take the criticism.
And yet you’re saying Al Qaida-to-Al Qaida within the country is beyond the bounds?
GONZALES: Sir, it is beyond the bound of the program which I’m testifying about today.
KOHL: Thank you.
Thank you, Mr. Chairman.
SPECTER: Thank you, Senator Kohl.
A little while later it was Sen. Feinstein’s (D-CA) turn to question Gonzales.
FEINSTEIN: Senator Kennedy asked you about first-class mail, has it been opened, and you declined answering.
Let me ask this way: Has any other secret order or directive been issued by the president or any other senior administration official which authorizes conduct which would otherwise be prohibited by law? Yes or no will do.
GONZALES: Senator, the president has not authorized any conduct that I’m aware of that is in contravention of law.
FEINSTEIN: Has the president ever invoked this authority with respect to any activity other than NSA surveillance?
GONZALES: Again, Senator, I’m not sure how to answer that question.
The president has exercised his authority to authorize this very targeted surveillance of international communication of the enemy. So I’m sorry, your question is?
FEINSTEIN: Has the president ever invoked this authority with respect to any activity other than the program we’re discussing, the NSA surveillance program?
GONZALES: Senator, I am not comfortable going down the road of saying yes or no as to what the president has or has not authorized. I’m here to…
FEINSTEIN: OK. That’s fine.
This sounded very much to me like Gonzales was worried about a perjury trap. But if he skirted the trap with Feinstein, he fell right into with Sen. Schumer (D-NY).
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.
So, to recap, Gonzales set out in his opening statement that he was only going to testify about elements of a program that had been leaked and that the President had confirmed. Then he repeatedly fell back on that self-limiting definition of the scope of the hearings to avoid answering questions or revealing more about the program (or other programs). Meanwhile (and thereby) he strongly hinted that there was much more surveillance that had not been leaked or acknowledged. And, now we have to return to his testimony from this week.
The predicate here is Gonzales’ testimony before Sen. Schumer where he insisted that any disagreement that he had with James Comey and John Ashcroft was not about the ‘program [he was there] testifying about [that day]’. Therefore, Gonzales found himself in a trap when he had to testify this week. Either he stood by his prior testimony and admitted that the program in question was not limited to phone calls from known or suspected terrorists (the ‘program [he was there] testifying about [that day]’] or he admitted that he perjured himself in his prior testimony. Don Eggen and Paul Kane report on what happened:
Much of yesterday’s to-and-fro involved a controversial episode on the evening of March 10, 2004, when Gonzales and then-White House chief of staff Andrew H. Card Jr. visited the hospital bed of then-attorney general John Ashcroft, who was recovering from gallbladder surgery.
Gonzales, providing his first detailed public account of the incident, testified that it followed an emergency meeting that afternoon with the “Gang of Eight,” consisting of the bipartisan leaders of the House, the Senate, and both intelligence committees. Gonzales said the congressional leaders had agreed that a classified surveillance program aimed at terrorists should continue despite objections by James Comey, the acting attorney general during Ashcroft’s illness.
“Mr. Comey had informed us that he would not approve the continuation of a very important intelligence activity, despite the fact the department had repeatedly approved those activities over a period of over two years,” Gonzales said. “The consensus in the room from the congressional leadership is that we should continue the activities, at least for now. . . . We felt it important that the attorney general knew about the views and the recommendations of the congressional leadership.”
The Gang of Eight was then composed of the Senate’s Majority Leader (Frist), Minority Leader (Daschle), and Intelligence Committee chairman (Roberts) and ranking member (Rockefeller), and the House’s Speaker (Hastert), Minority Leader (Pelosi), and chairman (Hoekstra) and ranking member (Harman) of the Intelligence Committee.
Gonzales was asserting that these 8 had been briefed about the NSA program and about James Comey’s refusal to reauthorize it. Further, Gonzales was asserting that the Gang of Eight wanted him to override Comey’s objections. The problem for Gonzales’ is that Rockefeller, Harman, Pelosi, and Daschle all deny his version of events. But the more important issue was seized upon, again, by Sen. Schumer. Was the program limited to calls from known or suspected terrorists…or…was there more to the NSA program than what the President acknowledged in the wake of the New York Times bombshell?
For this week’s Gonzales testimony:
SCHUMER: I’d like to just pick up where Senator Specter left off, about the TSP program. Just a few preliminaries. First, I take it that there was just one program that the president confirmed in 2005. There was not more than one?
GONZALES: He confirmed one, yes, intelligence activity. Yes, one program.
SCHUMER: Thank you. OK. Now, you — and you’ve repeatedly referred to the, quote “program,” that the president confirmed in December 2005. Let me just — I’m going to put up a chart here. Here’s what you said before this committee on February 6th of 2006. You said, quote, “There has not been any serious disagreement about the program the president has confirmed. With respect to what the president has confirmed, I do not believe that these DOJ officials that you were identifying had concerns about this program.” This was in reference to a question I asked you, “Was there any dissent here?”
This was before Comey came to testify. It was in February. But we had some thoughts that maybe that happened. And now, of course, we know from Jim Comey that virtually the entire leadership of the Justice Department was prepared to resign over concerns about a classified program. Disagreement doesn’t get more serious than that. And what program was the ruckus all about? And this is the important point here. At your press conference on June the 5th, it was precisely the program that you testified had caused no serious dissent. You said, “Mr. Comey’s testimony” — and he only testified once — “related to a highly classified program which the president confirmed to the American people some time ago.”
SCHUMER: These are your words, right? You don’t deny that these are your words. This was a public press conference.
GONZALES: I’m told that in fact here in the press conference I did misspeak, but I also went back and clarified it with the reporter.
SCHUMER: You did misspeak?
GONZALES: Yes. But I went back and clarified it with the reporter…
SCHUMER: When was that? And which — what was the reporter’s name?
GONZALES: At The Washington Post two days later.
(CROSSTALK)
GONZALES: Dan Eggen was the reporter.
SCHUMER: OK. Well, we’ll want to go follow up with him. But the bottom line is this: You just admitted there was just one program that the president confirmed in December…
GONZALES: The president…
SCHUMER: … just one. Is that correct, sir?
GONZALES: The president talked about a set of activities…
SCHUMER: No, I am just asking you a yes-or-no simple question, just as Senator Specter has. And just like Senator Specter and others here, I’d like to get an answer to that question. You just said there was one program. Are you backing off that now?
GONZALES: The president…
SCHUMER: Was there one program or was there not that the president confirmed?
GONZALES: The president confirmed the existence of one set of intelligence activities.
SCHUMER: Fine. Now let’s go over it again, sir, because I think this shows clear as could be that you’re not being straightforward with this committee; that you’re deceiving us. You then — then you said in testimony to this committee in response to a question that I asked, “There has not been any disagreement about the program the president confirmed.” Then Jim Comey comes and talks about not just mild dissent, but dissent that shook the Justice Department to the rafters. And here, on June 5th, you say that Comey was testifying about the program the president confirmed. You, sir…
GONZALES: And I’ve already said…
SCHUMER: Sir.
GONZALES: … I have clarified my statement on June 5th. Mr. Comey was talking about a disagreement that existed with respect to other intelligence activities.
SCHUMER: How can we — this is constant, sir, in all due respect with you. You constantly make statements that are clear on their face that you’re deceiving the committee. And then you go back and say, “Well, I corrected the record two days later.” How can we trust your leadership when the basic facts about serious questions that have been in the spotlight, you just constantly change the story, seemingly to fit your needs to wiggle out of being caught, frankly, telling mistruths? It’s clear here. It’s clear. One program. That’s what you just said to me. That’s what locks this in. Because before that, you were, sort of, alluding — in your letter to me on May 17th, you said, “Well, there was one program,” — you said there was the program, TSP, and then there were other intelligence activities.
GONZALES: That’s correct.
SCHUMER: You wanted us to go away and say, “Well, maybe it was other” — wait a second, sir. Wait a second.
GONZALES: And the disagreements related to other intelligence activities.
SCHUMER: I’ll let you speak in a minute, but this is serious, because you’re getting right close to the edge right here.
You just said there was just one program — just one. So the letter, which was, sort of, intended to deceive, but doesn’t directly do so, because there are other intelligence activities, gets you off the hook, but you just put yourself right back on here.
GONZALES: I clarified my statement two days later with the reporter.
SCHUMER: What did you say to the reporter?
GONZALES: I did not speak directly to the reporter.
SCHUMER: Oh, wait a second — you did not.
(LAUGHTER)
OK. What did your spokesperson say to the reporter?
GONZALES: I don’t know. But I told the spokesperson to go back and clarify my statement…
SCHUMER: Well, wait a minute, sir. Sir, with all due respect — and if I could have some order here, Mr. Chairman — in all due respect, you’re just saying, “Well, it was clarified with the reporter,” and you don’t even know what he said. You don’t even know what the clarification is. Sir, how can you say that you should stay on as attorney general when we go through exercise like this, where you’re bobbing and weaving and ducking to avoid admitting that you deceived the committee? And now you don’t even know. I’ll give you another chance: You’re hanging your hat on the fact that you clarified the statement two days later. You’re now telling us that is was a spokesperson who did it. What did that spokesperson say? Tell me now, how do you clarify this?
GONZALES: I don’t know, but I’ll find out and get back to you.
But here is the main point. The disagreement about the so-called terrorist surveillance program MUST NOT HAVE BEEN ABOUT WHAT THE PRESIDENT ADMITTED TO DOING. As I said at the time, the disagreement must have been about much more than monitoring phone calls from known or suspected terrorists. And in that context, Gonzales was not lying. But it means the President should be impeached.