Was the DOJ Kept in the Dark About Key Aspects of the NSA Program?

[updated below] [updated again]

In response to a request from Congress, FBI Director Robert Mueller has turned over his personal notes from the days leading up to and following the showdown in John Ashcroft's hospital room in 2004. Think Progress has a copy.

Despite the many redactions, there are still a few noteworthy items. First, Mueller repeatedly refers simply to "the program," without any additional adjectives or modifiers. For example, on the night of the hospital showdown, he writes:

Called by DAG while at restaurant with wife and daughter. He is at AG's hospital with Goldsmith and Philbin. Tells me Card and J. Gonzales are on the way to hospital to see the AG, but that AG is in no condition to see them, much less make decision to authorize continuation of the program.

Mueller's use of the phrase "the program" (particularly considered alongside his testimony and statements by others in the know) strongly suggests that there was only one NSA program and that the dissent within the DOJ was about that program. In other words, Mueller's notes are further evidence that Alberto Gonzales lied to Congress in his testimony.

Second, Mueller's notes make clear that Ashcroft was in no condition to be imposed upon in this way. After going into Ashcroft's room, Mueller writes:

Saw AG. Janet Ashcroft in room. AG in chair. Is feeble; barely articulate, clearly stressed.

But these items just confirm facts that have already been reported. There's another item in the notes, however, that was news to me. In describing the scene at the hospital, Mueller writes:

At hospital. Card and J. Gonzales have come and gone. Comey tells me that they saw the AG and were told by the AG that he was in no condition to decide issues, and that Comey was the Acting AG. All matters were to be taken to him, but that he supported the Acting AG's position. The AG then reviewed for them the legal concerns relating to the program. The AG also told them that he was barred from obtaining the advice he needed on the program by the strict compartmentalization rules of the WH.

The clear implication here is that John Ashcroft, the man who has supposedly been signing off on this program for two years at this point, felt that crucial information had been withheld from him, information that was necessary to determine whether the program was legal [see update below].

If true, that's a big deal. And it reminded me of a weird exchange Gonzales had with Senator Whitehouse during his testimony last month. Here's the relevant exchange (I've bolded the key statements by Gonzales):

WHITEHOUSE: Mr. Gonzales, just before our little break, you indicated, in describing your reason for visiting the stricken attorney general in his hospital room was to alert him to the change in the Department of Justice view of the program at issue. And you testified that Attorney General Ashcroft -- and these are the words that I wrote down -- quote, "Authorized these activities for over two years."

Is it your testimony, under oath, that Attorney General Ashcroft was read into and authorized the program at issue for two years prior to your visit to him in that hospital?

GONZALES: I want to be very careful here, because it's fairly complicated. What I can say is I'm referring to intelligence activities that existed for a period of over two years and what we were asking the Department of Justice to do was -- which they had approved and what we...

WHITEHOUSE: "They had approved" I guess is the point that I'm getting at.

GONZALES: General Ashcroft, yes.

WHITEHOUSE: You're saying that Attorney General Ashcroft...

GONZALES: Yes.

WHITEHOUSE: ... had authorized this program for over two years prior to that day...

GONZALES: General Ashcroft had authorized these very important intelligence activities for a period of two years. We had gone -- we had gone to the deputy attorney general and asked him to reauthorize these same activities.

But there are facts here, and I want to be fair to everyone involved. They're complicated. And we have had discussions in the Intel Committees about this issue. I'll try to be as forthcoming as we can.

Let me just say I believe everyone acted in good faith here. All the lawyers worked as hard as they could to try to find a way forward, the right solution. But, yes. I mean, the view was is that these activities had been authorized.

GONZALES: We informed...

WHITEHOUSE: By Attorney General Ashcroft?

GONZALES: By Attorney General Ashcroft. But there are additional facts here that -- I want to be fair. And it's complicated, but...

WHITEHOUSE: I'm just trying to nail that one fact down. I'm not trying to...

GONZALES: Well, I'm not sure that I...

(CROSSTALK)

GONZALES: I'm not sure I can give you complete comfort -- I'm not sure I want to give you complete comfort on that point, out of fairness to others involved in what happened here.

I want to be very fair to them. But what I'm -- what we are talking about...

WHITEHOUSE: (inaudible) different question.

LEAHY: Why not just be fair to the truth? Just be fair to the truth and answer the question.

(APPLAUSE)

WHITEHOUSE: Was Attorney General Ashcroft read into, and did he approve the program at issue from its inception?

GONZALES: General Ashcroft was read into these activities, and did approve these activities...

WHITEHOUSE: Beginning when?

GONZALES: From the very beginning. I believe, from the very beginning.

WHITEHOUSE: All right.

GONZALES: But, well...

WHITEHOUSE: I'm sorry? My question...

(CROSSTALK)

GONZALES: Again, it's very complicated. And I want to be fair to General Ashcroft and others involved in this. And it's hard to describe this in this open setting. We've tried to be -- we've tried to discuss -- we have discussed in the Intel Committees, in terms of exactly what happened here.

But I can't get into the fine details, quite frankly, because I want to be fair to General Ashcroft.

WHITEHOUSE: And I think it's also important that people know whether or not a program was run with or without the approval of the Department of Justice but without the knowledge and approval of the attorney general of the United States, if that was ever the case.

GONZALES: We believe we had the approval of the attorney general of the United States for a period of two years.

WHITEHOUSE: For a period of two years?

GONZALES: That is what...

(CROSSTALK)

WHITEHOUSE: Also from the inception of the program?

GONZALES: From the very -- from the inception, we believed that we had the approval of the attorney general of the United States for these activities, these particular activities.

This is some very cagey testimony. Gonzales repeatedly qualifies his statement by saying that the White House "believed" that it had the approval of the Attorney General for "these activities." He says that it "was the view" of the White House that the Attorney General had authorized this program. And he keeps saying that "it's complicated" and that he "wants to be fair" to Ashcroft and others at the DOJ.

Putting Mueller's notes and Gonzales' testimony together, it seems likely that Ashcroft believed that key information about the NSA program had not been provided to the Justice Department. He may even have felt that his prior authorizations of the program were based on an incomplete understanding of what the program actually entailed. That would explain why Gonzales' qualified his testimony by saying that the White House "believed" that it had the Justice Department's blessing.

It seems likely that the dispute in 2004 was prompted not just by a disagreement over the legal basis for the NSA program, but by the discovery by Justice Department officials that the program included aspects that had not been sufficiently disclosed to them previously. If that's true, it would be highly significant. It would mean that at least some of the activities the Bush administration was engaged in from 2001 to 2004 had, at least in the view of the Justice Department, never been authorized. It might also mean that the DOJ had given (unintentionally) false certifications to third parties, like the telecoms, that the activities they were engaged in did not require court orders, when in fact they did.

Congress needs to explore this angle a little more with witnesses like Mueller, Goldsmith, Philbin, and Ashcroft. We deserve to know what the dispute in 2004 was about.

UPDATE: Above I wrote that the clear implication from Mueller's notes is that Ashcroft felt key information was withheld from him. After rereading the notes, though, I think it's possible that Ashcroft meant only that security clearances had not been given to his staff, thereby preventing him from getting informed advice regarding the legality of the program. That interpretation is supported by the clarification Gonzales provided the committee after his testimony. Via Emptywheel, here's what Gonzales wrote:

I also recall that, prior to the time I departed, General Ashcroft briefly mentioned a concern about security clearances for members of his staff regarding the NSA activities that were the subject of the presidential order.

So it may well be that Ashcroft himself was fully read into the program, but that the White House didn't grant the necessary security clearance to some or all of his key subordinates, thereby preventing him from discussing the legality of various activities with his staff. This is similar to complaints voiced by Jay Rockefeller and other Democratic lawmakers who were briefed on the program.

If this is right, then perhaps key information was not withheld from the DOJ entirely. Ashcroft's complaint still strikes me as a big deal, though. The subtext of Gonzales exchange with Senator Whitehouse is that Ashcroft might well object to any assertion that he "authorized" the activity in question. While he almost surely signed the authorizing documents, Ashcroft may well have come to the conclusion that he had been misled or that his prior authorizations were not sufficiently informed because he lacked necessary advice from people more expert than he in this area of the law.

Whatever the case, this is definitely an angle of this story that needs to be pursued.

UPDATE II: Dan Eggen of the Post seems to confirm the latter interpretation (via anonymous officials):

In his notes, Mueller recounts Comey's statement that Ashcroft complained to Gonzales and Card at the hospital about being "barred" from obtaining "the advice he needed" about the NSA program because of "strict compartmentalization rules" set by the White House. Although Ashcroft, as attorney general, had been fully briefed about the program, many of his senior legal advisers were not allowed to know about it, officials said.

Also see Spencer Ackerman's follow up.