The State of Play on Gonzales' Perjury
Having explained previously why I think it's important to establish whether Alberto Gonzales perjured himself (and with a group of former-prosecutors in Congress introducing articles of impeachment against the Attorney General), allow me to delve once again into the weeds of the perjury case.
This morning the Wall Street Journal published a lengthy op-ed by David Rivkin and Lee Casey--former DOJ officials under Reagan and Bush Sr.--purporting to make the case that Gonzales did not lie to Congress. Here's the meat of their argument:
Tellingly, even the administration seems to realize that this sort of temporal parsing won't render Gonzales testimony truthful. Instead, they appear to be relying on a categorical distinction between the activities the President confirmed--targeted warrantless surveillance of international calls--and "other intelligence activities," i.e., large scale data-mining of telecom records.
In other words, Gonzales' anonymous defenders are asserting that the legal objections raised by James Comey and Jack Goldsmith in 2004 related to data-mining activities and not the targeted warrantless surveillance activities that the President has labeled the "terrorist surveillance program." Therefore, they argue, Gonzales was being technically truthful when he testified that there had "not been any serious disagreement about the program that the president has confirmed."
Given that, by all accounts, the data-mining and warrantless surveillance were part of the same overall program, this defense is highly-legalistic at best.
Unfortunately for Gonzales, there are a number of facts that, if true, would derail even this defense.
Most obviously, in order for this defense to hold up, it has to be true that Comey and Goldsmith's legal objections did not implicate any of the activities that the President admitted to in 2005. If, for instance, Comey and Goldsmith objected to John Yoo's "article II on steroids" theory as the basis for bypassing FISA, which I've previously speculated was the case, then Gonzales has a real problem, because that objection would apply just as much to the "program the President confirmed" as to any data-mining activities.
It is possible, though, that Comey and Goldsmith had no real objection to warrantless surveillance per se, but were instead concerned by some of the statutory or constitutional issues raised by data-mining. In other words, they may have had no problem with bypassing FISA to surveil terrorist suspects, but concluded that the data-mining operation was relying on illegally obtained data or that the pattern-recognition process was too unreliable to serve as the basis for a reasonable search under the Fourth Amendment.
If that's the case, then arguably their objections did not concern the specific activities the President later confirmed. Even if this is true, however, I think Gonzales' testimony can only be considered truthful--even in a highly technical sense--if the NSA Program was in fact compartmentalized in such a way that Comey could refuse to re-certify parts of it while allowing the rest to continue. If Comey's actions effectively shut down the entire operation, including the parts of the program that the President later confirmed, I don't see how it can be considered accurate to say that the Comey/Ashcroft incident did not involve the TSP. Put another way, if Comey's actions resulted in the halting of any of the activities "the president has confirmed," then Alberto Gonzales is lying.
Furthermore, if any of the features of "the program the president confirmed" exist solely because of Comey and Goldsmith's objections, then Gonzales is lying. For instance, we have been repeatedly told that the "terrorist surveillance program" only intercepts communications where 1) one party is out of the country and 2) there is probable cause to believe one or both of the parties is affiliated with al Qaeda. We've also been told that there are extensive internal safeguards and minimization requirements in place and that evidence obtained is used solely for prevention of terrorist attacks and not as evidence to apply for FISA warrants. If any or all of these features were implemented in 2004 as a result of Comey and Goldsmith's objections, then it cannot be true that their disagreements did not relate to this program.
In other words, there are a whole lot of facts which, if true, would sink Gonzales' defense. If I were a betting man, I'd bet that Gonzales' defense would not withstand any real scrutiny.
Finally, as Big Tent Democrat astutely points out, the President himself seems to have indirectly contradicted Gonzales in his own official statement on the matter. The New York Times story that first revealed the existence of the NSA program noted that:
Now I realize that Bush was not necessarily vouching for every fact reported by the Times. But he was the one who chose to explicitly reference the article. He deliberately created the impression that the program he was confirming and the program discussed in the article were one in the same. And Gonzales deliberately chose to incorporate the President's statement by reference in his testimony. That's the context in which Gonzales made his deceptive statements.
It's important to remember that when it comes to perjury, the truth or falsity of the statement in question depends on context. As the Sixth Circuit observed in the oft-cited DeZarn case, "where it can be shown from the context of the question and the state of the testifier's knowledge at the time that the testifier clearly knew what the question meant, the Government must be permitted to present, and the fact-finder to consider, those contextual facts." The witness cannot simply create his own subjective reality. As the DeZarn Court put it, "the question and answer must be examined in the context of the investigation as a whole."
I'd submit that, based on the context of the proceedings in which Gonzales was testifying, it was abundantly clear what his questioners were asking him. And he chose to respond in a responsive but deliberately deceptive manner. That's perjury.
UPDATE: I think Ruth Marcus needs to read this post.
UPDATE II: Apparently Arlen Specter, having been briefed on the program today, gave the Bush administration 18 hours to clarify Gonzales' testimony. It's unclear from the story whether Specter expects them to be able to do this to his desire. We'll see I guess.
This morning the Wall Street Journal published a lengthy op-ed by David Rivkin and Lee Casey--former DOJ officials under Reagan and Bush Sr.--purporting to make the case that Gonzales did not lie to Congress. Here's the meat of their argument:
What now seems equally indisputable is that Mr. Gonzales did not lie to Congress--top Justice Department officials had all approved the 2005 TSP to which he was referring. The disagreement described by Mr. Comey involved the original TSP, in place from 2001-2004. This also explains Mr. Gonzales's statement Tuesday, which prompted calls for the appointment of a special counsel to investigate him for perjury, that the White House meeting with congressional leaders was devoted to discussion of "other intelligence activities." In the language of congressional intelligence oversight, even minimal differences between one program and another can constitute "other" distinct intelligence activities. In this context, Mr. Gonzales was clearly referring to the original TSP, the details of which remain classified, and not the 2005 TSP. Although it is impossible to know for sure, it is a good bet that the original TSP--to which Mr. Comey objected--was broader than the 2005 program and that it permitted interception of al Qaeda communications entirely within the United States (and may also be connected in some manner to datamining efforts, as suggested in Sunday's New York Times).Clearly Rivkin and Casey don't read this blog. If they did, they'd know that this kind of temporal defense won't hold up. As I laid out in this post on Saturday, Gonzales conceded several times in his testimony that the "terrorist surveillance program" he was discussing began in 2001, not 2004. Moreover, by repeatedly referring to the "program the President has confirmed," Gonzales was incorporating by reference the President's December 17, 2005 statement confirming the existence of the program, a program that by the President's own admission began "within weeks" of 9/11 and had been reauthorized 30 times over 4 years.
Tellingly, even the administration seems to realize that this sort of temporal parsing won't render Gonzales testimony truthful. Instead, they appear to be relying on a categorical distinction between the activities the President confirmed--targeted warrantless surveillance of international calls--and "other intelligence activities," i.e., large scale data-mining of telecom records.
In other words, Gonzales' anonymous defenders are asserting that the legal objections raised by James Comey and Jack Goldsmith in 2004 related to data-mining activities and not the targeted warrantless surveillance activities that the President has labeled the "terrorist surveillance program." Therefore, they argue, Gonzales was being technically truthful when he testified that there had "not been any serious disagreement about the program that the president has confirmed."
Given that, by all accounts, the data-mining and warrantless surveillance were part of the same overall program, this defense is highly-legalistic at best.
Unfortunately for Gonzales, there are a number of facts that, if true, would derail even this defense.
Most obviously, in order for this defense to hold up, it has to be true that Comey and Goldsmith's legal objections did not implicate any of the activities that the President admitted to in 2005. If, for instance, Comey and Goldsmith objected to John Yoo's "article II on steroids" theory as the basis for bypassing FISA, which I've previously speculated was the case, then Gonzales has a real problem, because that objection would apply just as much to the "program the President confirmed" as to any data-mining activities.
It is possible, though, that Comey and Goldsmith had no real objection to warrantless surveillance per se, but were instead concerned by some of the statutory or constitutional issues raised by data-mining. In other words, they may have had no problem with bypassing FISA to surveil terrorist suspects, but concluded that the data-mining operation was relying on illegally obtained data or that the pattern-recognition process was too unreliable to serve as the basis for a reasonable search under the Fourth Amendment.
If that's the case, then arguably their objections did not concern the specific activities the President later confirmed. Even if this is true, however, I think Gonzales' testimony can only be considered truthful--even in a highly technical sense--if the NSA Program was in fact compartmentalized in such a way that Comey could refuse to re-certify parts of it while allowing the rest to continue. If Comey's actions effectively shut down the entire operation, including the parts of the program that the President later confirmed, I don't see how it can be considered accurate to say that the Comey/Ashcroft incident did not involve the TSP. Put another way, if Comey's actions resulted in the halting of any of the activities "the president has confirmed," then Alberto Gonzales is lying.
Furthermore, if any of the features of "the program the president confirmed" exist solely because of Comey and Goldsmith's objections, then Gonzales is lying. For instance, we have been repeatedly told that the "terrorist surveillance program" only intercepts communications where 1) one party is out of the country and 2) there is probable cause to believe one or both of the parties is affiliated with al Qaeda. We've also been told that there are extensive internal safeguards and minimization requirements in place and that evidence obtained is used solely for prevention of terrorist attacks and not as evidence to apply for FISA warrants. If any or all of these features were implemented in 2004 as a result of Comey and Goldsmith's objections, then it cannot be true that their disagreements did not relate to this program.
In other words, there are a whole lot of facts which, if true, would sink Gonzales' defense. If I were a betting man, I'd bet that Gonzales' defense would not withstand any real scrutiny.
Finally, as Big Tent Democrat astutely points out, the President himself seems to have indirectly contradicted Gonzales in his own official statement on the matter. The New York Times story that first revealed the existence of the NSA program noted that:
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.The next day, the president confirmed the existence of the NSA program, observing that "yesterday the existence of this secret program was revealed in media reports." So the "program the President confirmed" was, by his own admission, the one reported by the Times. And the Times reported that the program was suspended in 2004 in response to legal objections.
Now I realize that Bush was not necessarily vouching for every fact reported by the Times. But he was the one who chose to explicitly reference the article. He deliberately created the impression that the program he was confirming and the program discussed in the article were one in the same. And Gonzales deliberately chose to incorporate the President's statement by reference in his testimony. That's the context in which Gonzales made his deceptive statements.
It's important to remember that when it comes to perjury, the truth or falsity of the statement in question depends on context. As the Sixth Circuit observed in the oft-cited DeZarn case, "where it can be shown from the context of the question and the state of the testifier's knowledge at the time that the testifier clearly knew what the question meant, the Government must be permitted to present, and the fact-finder to consider, those contextual facts." The witness cannot simply create his own subjective reality. As the DeZarn Court put it, "the question and answer must be examined in the context of the investigation as a whole."
I'd submit that, based on the context of the proceedings in which Gonzales was testifying, it was abundantly clear what his questioners were asking him. And he chose to respond in a responsive but deliberately deceptive manner. That's perjury.
UPDATE: I think Ruth Marcus needs to read this post.
UPDATE II: Apparently Arlen Specter, having been briefed on the program today, gave the Bush administration 18 hours to clarify Gonzales' testimony. It's unclear from the story whether Specter expects them to be able to do this to his desire. We'll see I guess.
posted by A.L. at 12:36 AM
13 Comments:
Perjury is something that people can easily understand.
That's why continued pressure on the perjury charge is important.
It is certainly impossible to disagree that in the scope of Gonzales crimes against our nation, perjury is one of the lesser ones. Al Capone's worst crime was certainly not tax evasion, but that's what stopped him.
This bugger needs to be stopped, and perjury is where we have him now by the short an curlies. Let's press on.
He lied to congress. Under oath.
He said that the hospital visit did not involve the TSP.
The TSP is a specific program with a specific classified name.
The purpose of Administration's data-mining "leak" to the NYT is to give credence to Gonzales testimony that it was a different "program" than the TSP to escape the perjury rap. Of course everyone suspects this is bull. So, let's continue to pursue if there were really two programs or just one!
In reviewing some of the answers by Comey to Shumer's questions concerning his May testimony I think there is a critical line of questioning to pursue.
Here's the testimony:
****************
You testified that during the visit to Attorney General Ashcroft’s hospital room on the evening of March 10, 2004, Mrs. Ashcroft was present when you first arrived and also later when Messrs. Gonzales and Card arrived.
Did you reveal classified information in Mrs. Ashcroft’s presence?
>>No.
Did either Mr. Gonzales or Mr. Card reveal classified information in Mrs. Ashcroft’s presence?
>>Mr. Card did not. I do not recall whether Mr. Gonzales mentioned any aspects of the matter that would be considered classified, including the name of the program – which was itself classified, as I recall – when addressing Mr. Ashcroft.
**************
So, there was a classified name of the program.
Did that program of that classified name include both the data mining and eavsdropping activities?
I bet it did.
There was only one program with one classified name. For Gonzales to try to split hairs with this foolish "that the President authorized" nonsense simply will not fly.
The hospital visit certainly DID involve the TSP, whatever its classified name was.
The man is lying and that is a crime. He has done much much more wrong, but that is something that is simple to understand and simple to prove. I say, get him. Nail him to the wall.
I'm a member of the right, and even I think Gonzales should be impeached.
It is time Conservatives stop defending him.
I wrote about it at Copious Dissent - Your Daily Dose of Liberty.
Prediction --> Arlen Specter {aka Lucy} will once again play the roll of faux moderate at which he is so accomplished. The football is all teed up. How does he do it time and time again?
Ruth Marcus makes much of the high standards for proving a charge of perjury. So long as as Gonzales did not literally tell a lie, she believes, he must escape a perjury charge. She freely concedes, however, "In his Senate testimony last week, Gonzales once again dissembled and misled."
Unfortunately for Gonzales, perjury is not the only crime with which he can be charged. (In fact, he was not even under oath for his Feb. 6, 2006, testimony.) Lying to and intentionally misleading Congress is also a serious crime, and by Marcus' own characterization, Gonzales apparently has stepped into it.
The criminal-code section in question is 18 USC 1505, "Obstruction of proceedings before departments, agencies, and committees." It says in relevant part:
"Whoever corruptly, or by threats or force, or by any threatening letter or communication influences, obstructs, or impedes or endeavors to influence, obstruct, or impede ... any committee of either House or any joint committee of the Congress —
"Shall be fined under this title, imprisoned not more than 5 years ... or both."
Importantly, the definition of "corruptly" above is stated broadly in 18 USC 1515:
"As used in section 1505, the term 'corruptly' means acting with an improper purpose, personally or by influencing another, including making a false or misleading statement, or withholding, concealing, altering, or destroying a document or other information."
It seems clear that an annoying percentage of the political media are going to comply with the intentions of the half-dozen instant leakers who suddenly emerged. The valiant media are reluctantly having to back down on Gonzales. "Ah, so frustrating", they say.
Maybe someone can explain exactly what the misleading impression was from Gonzales's original testimony. It was clear, was it not, that Gonzales was acknowledging, or at least not disputing, that there had been a substantial disagreement within the Justice Department about something, just not the "program that the president has confirmed." But I dont see how you can take from Gonzales's vague testimony that he was denying (or confirming) that this "something" involved warrantless wiretapping and thus could have been part of the TSP at an earlier point in time. Indeed, Schumer seems to have understood that Gonzales was (or might have been) making this very distinction when he asks:"But you were telling us that none of these people expressed any reservations about the ultimate program, is that right?"
Of course, I understand that Gonzales and Bush may have used the term "TSP" or "program" in a way that allows one to argue that Gonzales's statement was literally untrue (assuming, as is perhaps not the case, that the objection actually was to warrantless wiretapping). But surely those inconsistencies of usage were not part of an attempt to mislead anyone into thinking that Gonzales was indirectly denying what he never denied directly.
Moreover, if it is true (as it appears to be) that the Justice Department informed the Gang of Eight about the Comey/Goldsmith objections at the time that they were made, it seems particularly unlikely that Gonzales would have sought to deceive the committee about the subject of the objections.
It may very well be that Gonzales was being as vague as possible in order to avoid giving the Democrats any public ammunition that they could use to say that the DOJ had objected to the legality of the TSP at one point. It could also be that the reason Gonzales failed to make the point that the objections had been resolved (which would seem to be the most advantage point from his perspective) was because he did not want to get into a public discussion of what the objections were in the first place. But I just don't see how one can reasonably conclude that he was intending to deceive in what he actually said.
MLS,
Are you related to Gonzales? I'm not sure how else to explain the lengths you're willing to go to defend him. You write:
Moreover, if it is true (as it appears to be) that the Justice Department informed the Gang of Eight about the Comey/Goldsmith objections at the time that they were made, it seems particularly unlikely that Gonzales would have sought to deceive the committee about the subject of the objections.
I think some context is helpful here. At the time of Gonzales February 2006 testimony, the Republicans still controlled Congress and the Bush administration's primary goal was to convince the judiciary committee (and the media and public) that the program was legal. The intelligence committee, run by partisan tool Pat Roberts, was not interested in investigating. The only committee that cared was the judiciary and that's only because Arlen Specter, to his credit, isn't a reliable partisan. But the folks on the judiciary committee (Specter, Schumer, Leahy, Feingold), they had never been briefed on the program and only knew what they'd read in news reporters.
Gonzales was clearly trying to assure them (falsely) that there had never been any significant disagreement about the NSA program. He wanted the investigation to stop. He wanted to waive them away from the Comey story. And he figured that the best way to do that was to intentionally obscure the fact that there had been significant internal dissent about the program.
And had the Democrats not managed to take over Congress, this might well have worked.
But I don't see how you can say that he wasn't trying to mislead anyone. Even in the light most favorable to Gonzales, he parsed his testimony in such a way as to be misleading, even if literally true.
It is just so comforting to me that the best that anybody has been able to say about AG Gonzales for the last six months is that we can't prove he actually broke the law.
Talk about lowering the bar. Speaking for myself, the man is so obviously lying I can't stand to watch him anymore.
Impeach him. Find someone reasonably honest. It's not like we need to take a lantern and walk the streets, unless maybe we restrict ourselves to Washington, DC. I wish impeachment weren't necessary, but it's pretty obvious that the country is not being served by the status quo, and Bush will not ask him to step down.
AL
Nope, not related to Gonzales. Also, not particularly interested in defending him. I don't think that he is competent or qualified to be AG. Moreover, I have no reason to assume that he is honest or credible, certainly no more so than many other public officials (a low standard). I just don't see a reason to conclude from the testimony that we are talking about that he was trying to deceive the committee as to whether or not the objections in question related to an earlier version of the NSA program or something else entirely. Instead, he wasn't saying one way or the other. Schumer's reference to the "ultimate program" indicates, I think, that he understood exactly what Gonzales wasn't saying.
I don't doubt that you are right about why Gonzales was being vague. He didnt want to say something that would lead to more questions. I assume that this is why he didn't say something along the following lines: "There were objections to matters related to the program in the past, but changes were made to resolve all of those objections." If that statement would be true (and as far as we know it is), it would seem that it would have been in Gonzales's interest to say it that way. I would assume, however, that he didn't want to say anything at all about the objections because it would only lead to more questions. So he made the narrowest statement that he (truthfully) could, or at least it seems fairly obvious to me that this is what he was trying to do.
If you think that he was trying to deliberately deceive Congress, why wouldn't he have just flatly denied the news reports of a significant internal DOJ disagreement? I suppose that you would say that it is because he knew this wouldn't be a sustainable lie. But the same is true if he were trying to lie about the nature of the disagreement since there were a lot of people (Comey, the Gang of Eight, etc) in a position to contradict him if he did so.
That is all I am saying. Think about it. Remember "The essence of the Liberal outlook lies not in what opinions are held, but in how they are held: instead of being held dogmatically, they are held tentatively, and with a consciousness that new evidence may at any moment lead to their abandonment."
If you think that he was trying to deliberately deceive Congress, why wouldn't he have just flatly denied the news reports of a significant internal DOJ disagreement?
Look I don't think Gonzales wanted to commit blatant perjury. That's way too risky. What he wanted to do was be very cute, he wanted to parse his answers in such a way that he misled the committee (and public and media) while preserving a semantic defense that he was being truthful. But I think he ended up being too cute and that neither he nor the president were consistent enough in their parsing. As a result, I think he ended up lying.
But the same is true if he were trying to lie about the nature of the disagreement since there were a lot of people (Comey, the Gang of Eight, etc) in a position to contradict him if he did so.
Yes, but I think Gonzales was hoping that these people would never be called upon to testify (or that if they were, they would refuse ala Harriet Myers). Keep in mind, it was a Republican controlled Congress at the time. They were hoping this investigation would just die and be forgotten once Senator Specter had some questions answered. Moreover, like I said, I think that, going in, Gonzales intention was to give a highly-legalist but true answer. But he didn't execute very well and ended up just lying.
Ok, then I think the difference between our positions is rather narrower than it first appeared. We both agree that Gonzales was trying to be literally truthful when he stated the objections were not to the "program that the president confirmed." You think that he was trying to create a misimpression on the part of the committee that the objections did not to an earlier version of the program. I don't claim to know what was in his mind, but it seems to me that a reasonable person hearing the words he used would not leap to that conclusion, and based on Schumer's language it appears to me that the committee did not in fact leap to that conclusion.
Surely, though, you would have to agree that nothing prevented the committee from asking simple follow up questions, such as, are you denying that the objections related in any way to warrantless wiretapping (or to an earlier version of the TSP)? And if Gonzales had been asked such questions, it would be much easier to determine whether he was trying to mislead the committee, or simply refusing to answer anything beyond the narrow statement that he made.
Surely, though, you would have to agree that nothing prevented the committee from asking simple follow up questions, such as, are you denying that the objections related in any way to warrantless wiretapping (or to an earlier version of the TSP)? And if Gonzales had been asked such questions, it would be much easier to determine whether he was trying to mislead the committee, or simply refusing to answer anything beyond the narrow statement that he made.
But if you read the transcript, Gonzales was asked variations of this question four or five times. And he kept repeating the same thing. They kept pressing him. He wasn't going to say anymore. And the answers he did give appear to be, in retrospect, totally misleading at best.
I have not read the whole transcript, just the parts that you quoted. But your description seems more consistent with my theory, namely that he just wasn't going to say anymore than the narrow statement that he made. So if the Senators asked questions like the ones I suggested and Gonzales refused to answer them, they could not have been misled. Uninformed, yes, misled, no.
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