Parsing Gonzales' Testimony

A number of bloggers are pointing to this AP story as evidence that Alberto Gonzales committed perjury in his Senate testimony yesterday. The AP reports:

Documents indicate eight congressional leaders were briefed about the Bush administration's terrorist surveillance program on the eve of its expiration in 2004, contradicting sworn Senate testimony this week by Attorney General Alberto Gonzales. . . .

A four-page memo from the national intelligence director's office says the White House briefing with the eight lawmakers on March 10, 2004, was about the terror surveillance program, or TSP.

The memo, dated May 17, 2006, and addressed to then-House Speaker Dennis Hastert, details "the classification of the dates, locations, and names of members of Congress who attended briefings on the Terrorist Surveillance Program," wrote then-Director of National Intelligence John Negroponte.

It shows that the briefing in March 2004 was attended by the Republican and Democratic House and Senate leaders and leading members of both chambers' intelligence committees, as Gonzales testified.

Schumer called the memo evidence that Gonzales was not truthful in his testimony.

What's going on here? Well, as I wrote yesterday, the most likely explanation is that Gonzales is choosing his language very carefully and making an unspoken definitional distinction between the 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 the DOJ refused to recertify it.

As James Comey testified, the NSA program underwent significant changes in 2004 following the Ashcroft hospital showdown. Eventually Comey and Ashcroft signed off on a new scaled-down version of the program. I believe that when Gonzales refers to the "Terrorist Surveillance Program" or "the program the president has confirmed," he is referring only to the post-2004 incarnation of the program, i.e., the program minus whatever features Comey and others found objectionable.

I take this graf from Dan Eggen's latest Washington Post article as more or less confirming my hypothesis:

Gonzales has repeatedly stood by his original testimony, in which he said the disagreement was not about "the program that the president has confirmed." A Justice official conceded during a background briefing for reporters this week that Gonzales's "linguistic parsing" has caused some confusion, but said that he spoke accurately.

In other words, Gonzales is being too cute by half. But why? Why not just come out and say straightforwardly that Comey and Ashcroft's objections related to a prior version of the program and that those concerns were resolved three years ago?

Well, this appears to be a classic example of backing oneself into a corner. Back when the NSA story first broke in December 2005, the Bush administration was fighting very hard to convince the media and Congress that the program was legal (which, by the way, it isn't). At the time, various press reports hinted that there had been a major dust up within the administration over the legality of the program. James Comey's name was floated around by anonymous sources.

It was in this context that Alberto Gonzales went to testify (not under oath) before the Republican-controlled Senate in February 2006. The White House was undoubtedly anxious to downplay the suggestion that there had been significant internal dissent over the program and wave Congress and the media away from the Comey angle of the story. So, I suspect, some clever White House official seized upon a semantic distinction between "the program the president confirmed" and its predecessor. Only the program as currently constituted would be called the Terrorist Surveillance Program. Any features that had been dropped in 2004 would be considered "other intelligence activities."

Relying on this unstated and hyper-legalistic distinction, Gonzales then testified that there had been no internal dissent over "the program that the president has confirmed." He even went to the trouble of clarifying this point following his testimony:

Using the administration's term for the recently disclosed operation, he continued, "I was confining my remarks to the Terrorist Surveillance Program as described by the President, the legality of which was the subject" of the Feb. 6 hearing.

And this tactic worked, at least for a while. What Gonzales and the White House didn't count on was that the Democrats would take over both chambers of Congress and eventually call on Comey to testify.

Now Gonzales is trapped by his original, highly misleading testimony. If he concedes that Comey's objections involved the same program (which he did in a June press conference before realizing his error), he'll essentially be admitting to having misled Congress. So instead he's clinging to his original "linguistic parsing."

Compounding the problem for Gonzales, though, is the fact that other members of the Bush administration, including Bush himself, haven't been very good about observing the definitional distinction that Gonzales is relying upon. The President has repeatedly referred to the Terrorist Surveillance Program as extending back to 2001, and the letter unearthed by the AP demonstrates that the DNI's office wasn't observing this distinction in its responses to Congressional inquiries.

Gonzales is in a real bind here. Even assuming his semantic parsing is a sufficient defense against perjury charges, it seems pretty clear that he intentionally misled Congress. And this is a clear enough case that I don't imagine the press or the Democrats in Congress will just let it slide. Not this time.

UPDATE: I see Marty Lederman agrees:

It's really not hard at all to see what was happening here. Beginning in late 2001, there was an NSA program of electronic surveillance outside (that is, in violation of) FISA. OLC said it was illegal in early 2004. The NSA and others changed the program in certain unknown respects to allow it to pass OLC muster. (My guess?: The earlier version included surveillance of communications that did not involve any persons who even arguably were covered by the persons and entities described in the September 2001 Authorization to Use Military Force. And/or that the pre-2004 program also included surveillance of purely domestic communications. But who knows?)

Thus, the post-3/04 "program" involves "intelligence activities" that are in certain respects distinct from the actitivies that occurred before March 2004 -- and, whadda ya know?, there is no longer any dispute within the Administration.

So what? It's the same activity -- a form of electronic surveillance -- but tweaked in certain respects to allow at least a figleaf of a legal argument that DOJ could live with.

Therefore, the Attorney General certainly deceived the Congress when he testified that there was no internal disagreement over the legality of "the program." What he meant, apparently, was that there was no disagreement after the profound disagreement was remedied by a change in the program!