The Case Against Gonzales

(update below)

I've opined previously that I think Alberto Gonzales' technical defense to a perjury charge would be that he was relying on an implicit definitional distinction between the NSA program as it existed in December 2005 (when the president first confirmed its existence) and the program that existed from 2001 to early 2004 (when James Comey and others refused to re-certify it).

In other words, Gonzales is defining the "Terrorist Surveillance Program" as being the scaled-down program that existed at the time the New York Times first reported it in 2005. Because of this definitional gimmick, he can state truthfully that there was no disagreement about the TSP and that the Ashcroft hospital incident involved "other intelligence activities," i.e., a prior incarnation of the program.

The Editors of the National Review make exactly this defense in an editorial today:

As best as we can tell, here is how events unfolded. After September 11, the NSA began running wiretaps on suspected al Qaeda operatives. The surveillance program was reauthorized every 45 days. In 2004, however, Justice Department officials, for the first time, raised legal objections to the scope of the program. The resulting dispute within the administration led to the famous hospital scene, after which President Bush sided with the Justice Department officials and narrowed the program. Many months later, the New York Times revealed the existence of this now-narrowed program; President Bush then confirmed its existence and named it the “Terrorist Surveillance Program”; and Gonzales defended it.

When Gonzales said that “there has not been any serious disagreement about the program that the president has confirmed,” then, he was referring to the later, narrowed version of terrorist surveillance, and as far as we know he was correct. Other disputed Gonzales comments appear to follow the same basic pattern. . . .

The Democrats say that to defend Gonzales on these terms is to play games with words. But what was Gonzales supposed to say? The controversy about which he was testifying was the existing surveillance program.

What was he supposed to say? How about what you just said. Was it really that hard?

But that's beside the point, because even this highly-technical perjury defense doesn't withstand close scrutiny. I've reviewed the entire transcript of Gonzales' February 6, 2006 testimony before the Senate Judiciary Committee, and a strong prima facie case can be made that Gonzales perjured himself lied to Congress [commenter JaO reminds me that Gonzales wasn't under oath; good call, Senator Specter]. Gonzales then repeated this lie under oath this week.

Here's the key passage that many have quoted from Gonzales' February 6, 2006 testimony:

SCHUMER: 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.

As you can see, Gonzales states not once, but four separate times that the objections James Comey and others within the DOJ raised did not relate to the program Gonzales was testifying about. He even states that he is being "very careful here." If you were to look just at this passage, the National Review defense might hold up (although it would still be very weaselly).

But unfortunately for Gonzales, he said a lot of other things at the hearing as well. For instance, the following exchange took place between Gonzales and Senator Leahy:

LEAHY: So I'm sure you've had time to check for the answer during the lunch hour. So I come to you again with it: When did the Bush administration come to the conclusion that the congressional resolution authorizing the use of military force against Al Qaida also authorized warrantless wiretapping of Americans inside the United States?

GONZALES: Sir, the authorization of this program began...

LEAHY: I can't hear you. Can you pull your mike a little bit...

GONZALES: Pardon me. The authorization regarding the terrorist surveillance program occurred subsequent to the authorization to use military force and prior to the Patriot Act.

Whoops. The Patriot Act was enacted in October 2001. So Gonzales has conceded here that the "terrorist surveillance program" was authorized all the way back in 2001.

At another point in the testimony Gonzales said:

GONZALES: Of course, there were debates, Senator. If I may just finish this thought, think about the issues that are implicated here: a very complicated Foreign Intelligence Surveillance Act -- it's extremely complicated -- the president's inherent authority under the Constitution as commander in chief, the Fourth Amendment, the interpretation of the authorization to use military force.

You've got a program that's existed over four years. You have multiple lawyers looking at the legal analysis. Of course, there's -- I mean, this is what lawyers do. We disagree, we debate, we argue.

Here again, Gonzales concedes that "the program" has existed for over four years. So he can't now claim that he was only referring to the program that existed from mid-2004 onward.

And here's the final nail in the coffin. Gonzales testified that "there has not been any serious disagreement about the program that the president has confirmed." He has repeatedly used this construction to hedge his statements.

Fine then, let's look at what the President actually confirmed. President Bush first revealed the existence of the NSA program in his weekly radio address on December 17, 2005. Here's what he said:

In the weeks following the terrorist attacks on our nation, I authorized the National Security Agency, consistent with U.S. law and the Constitution, to intercept the international communications of people with known links to al Qaeda and related terrorist organizations. Before we intercept these communications, the government must have information that establishes a clear link to these terrorist networks.

This is a highly classified program that is crucial to our national security. Its purpose is to detect and prevent terrorist attacks against the United States, our friends and allies. Yesterday the existence of this secret program was revealed in media reports, after being improperly provided to news organizations. . . .

The activities I authorized are reviewed approximately every 45 days. Each review is based on a fresh intelligence assessment of terrorist threats to the continuity of our government and the threat of catastrophic damage to our homeland. During each assessment, previous activities under the authorization are reviewed. The review includes approval by our nation's top legal officials, including the Attorney General and the Counsel to the President. I have reauthorized this program more than 30 times since the September the 11th attacks, and I intend to do so for as long as our nation faces a continuing threat from al Qaeda and related groups.

For those of you who don't want to do the math, 30 times 45 equals almost four years worth of authorizations. Obviously, the "program the president confirmed" was a program that had been in existence since well before 2004. Indeed, according to the president himself, the program began "within weeks" of 9/11.

So Gonzales can't now claim that he was only testifying about the post-2004 version of the program. Both he and the President made it abundantly clear that they were talking about a program that had been in existence since shortly after 9/11. And by all accounts, it is that very program that the entire upper echelon of the Justice Department was prepared to resign over in March 2004. So when Gonzales testified that there had "not been any serious disagreement" about the program and that Comey and Goldsmith's objections related to "other activities," it seems pretty clear that he committed perjury lied to Congress [again, he wasn't under oath]. If you are going to rely on implicit definitional distinctions, you have to at least be consistent with them. When Gonzales' statements are put in the context of his overall testimony and the President's statement (which he incorporated by reference), it's pretty clear that Gonzales intentionally misled Congress. And about a highly relevant fact, i.e., that there had been massive internal dissent over the legality of the program.

The House Judiciary Committee should begin drafting a bill of impeachment immediately.

BONUS: Thought I'd throw in this excellent bit of Gonzales testimony for everyone's amusement:

FEINSTEIN: Let me ask you this: If the president determined that a truthful answer to questions posed by the Congress to you, including the questions I ask here today, would hinder his ability to function as commander in chief, does the authorization for use of military force or his asserted plenary powers authorize you to provide false or misleading answers to such questions?

GONZALES: Absolutely not, Senator. Of course not.

FEINSTEIN: Thank you. I just asked the question. A yes or no...

GONZALES: Nothing would excuse false statements before the Congress.

UPDATE: Commenters RandyH and JC both make the same excellent point, which I'll try to paraphrase. Essentially, they suggest that instead of relying on a temporal definition of the Terrorist Surveillance Program (i.e. the post-2004 revised program), perhaps Gonzales is just defining the TSP as a certain subset of activities that have gone on since 2001. In other words, he's claiming that there has been no dissent over this specific subset of activities that the president has confirmed, i.e., warrantless interception of calls in which one party is overseas.

Recent comments by Tony Snow seem to back up this theory. Here's the problem, as I see it, with this variation of the technical defense. By all accounts, Comey and Goldsmith's objections had to do not just with the various operational aspects of the NSA program, but with the legal theory that served as the basis for all of these activities, including the narrow set described by the president as the TSP. I'd bet that the authorization that Comey refused to sign applied to all activities that took place outside of the FISA framework. Which is why Jack Goldsmith eventually had to write a new authorizing opinion in 2004.

Therefore, the only way to truthfully say that there was no disagreement about the TSP is to temporally define the TSP as only being the post-2004 program. As soon as you acknowledge that the program began in 2001, that definitional trick no longer works.

I hope to write more on this when I get a chance.

UPDATE II: Regarding the new data mining revelations, see my more recent post.