Yep, He Lied
I am not permitted to say much about how Jim Comey, Patrick Philbin, and I, with the crucial support of former Attorney General John Ashcroft and others, struggled to put the Terrorist Surveillance Program on a proper legal footing. I first encountered the program in 2003–2004, long after it had been integrated into the post-9/11 counterterrorism architecture.Goldsmith is clear that the legal dispute that led to the showdown in John Ashcroft's hospital room was indeed about the Terrorist Surveillance Program.
With that in mind, here's how Gonzales testified (under oath) in July.
And later in the same testimony:SPECTER: Let me move quickly through a series of questions -- there's a lot to cover -- starting with the issue that Mr. Comey raises. You said, quote, "There has not been any serious disagreement about the program." Mr. Comey's testimony was that Mr. Gonzales began to discuss why they were there, to seek approval, and he then says, quote, "I was very upset. I was angry. I thought I had just witnessed an effort to take advantage of a very sick man."
SPECTER: First of all, Mr. Attorney General, what credibility is left for you when you say there's no disagreement and you're party to going to the hospital to see Attorney General Ashcroft under sedation to try to get him to approve the program?
GONZALES: The disagreement that occurred, and the reason for the visit to the hospital, Senator, was about other intelligence activities. It was not about the terrorist surveillance program that the president announced to the American people.
SCHUMER: OK. But you testified to us that you didn't believe there was serious dissent on the program that the president authorized. And now you're saying they knew of the dissent and you didn't?And in case you haven't read my previous posts on this topic, the phrase "that the President confirmed" doesn't get Gonzales off the hook. In his testimony he stated several times that the TSP dated back to 2001, and the President "confirmed" the same in his statements about the program. So Gonzales cannot claim that he was only referring to the post-2004 Goldsmith-blessed version of the program. Gonzales lied to Congress in 2006 (though not under oath) and he perjured himself in 2007 to avoid admitting that he had lied previously.
GONZALES: The dissent related to other intelligence activities. The dissent was not about the terrorist surveillance program that the president confirmed and...
SCHUMER: So if we asked eight who were there, they would say that's the case, either -- would they say that? Would they say it was not about the TSP, that it was about other issues? I thought you just testified that you brought them to talk about that issue because you needed legislation. Now you're saying...
GONZALES: I can't tell you what they would say if you asked them a question, Senator. I'm just telling what I recall.
SCHUMER: Wait, sir. We're going back to the -- we're back in the same conundrum as always, where it just doesn't seem that you're leveling here with the American people or the committee.
GONZALES: I don't see how it could be more clear.
SCHUMER: You said, sir -- sir, you said that they knew that there was dissent. But when you testified before us, you said there has not been any serious disagreement. And it's about the same program. It's about the same exact program. You said the president authorized only one before. And the discussion -- you see, it defies credulity to believe that the discussion with Attorney General Ashcroft or with this group of eight, which we can check on -- and I hope we will, Mr. Chairman; that will be yours and Senator Specter's prerogative -- was about nothing other than the TSP. And if it was about the TSP, you're dissembling to this committee. Now was it about the TSP or not, the discussion on the eighth?
GONZALES: The disagreement on the 10th was about other intelligence activities.
SCHUMER: Not about the TSP, yes or no?
GONZALES: The disagreement and the reason we had to go to the hospital had to do with other intelligence activities.
SCHUMER: Not the TSP? Come on. If you say it's about "other," that implies not. Now say it or not.
(LAUGHTER)
GONZALES: It was not. It was about other intelligence activities.
posted by A.L. at 10:21 AM
18 Comments:
The age-old question. What will Leahy do about it? Or is all this wonderful oversight simply an academic exercise for posterity.
Not faulting your piece or your reasoning AL, just frustrated.
Yeah, as a person that is fairly uneducated in the ways of the legal system, I am wondering why he has not been charged? What would it take to hold him accountable? Can the district attorney for DC bring him up on charges? Can a federal prosecutor? I know I am showing my ignorance here but, knowing that I would be indicted if I had done what he has done, I am wondering why he is not being prosecuted. What can be done with him? Seriously asking.
Anonymous,
Perjury cases are rarely prosecuted and are quite difficult to win. Based on news reports, the DOJ inspector general is investigating Gonzales testimony. I wouldn't expect that to lead to any charges, though. The DOJ isn't likely to waste its resources going after its former head on such a minor offense. A sternly-worded IG report is likely the worst thing Gonzales will face.
And, to be honest, I'm not sure it's worth attempting to prosecute Gonzales for this stuff. It would just create a political circus. The key thing is that he was forced to resign.
And, to be honest, I'm not sure it's worth attempting to prosecute Gonzales for this stuff. It would just create a political circus. The key thing is that he was forced to resign.
It's not enough for me personally and I don't think it is enough for the United States of America either. This really isn't about his lies only. It is also about his willingness to completely politicize the DOJ. It is also about finding out how far down the rabbit hole all of this bullshit goes. If we don't truly investigate and prosecute these criminals then won't we suffer these same outrages in the future, regardless of party in power? I think the answer is obvious. In fact, I think we are reaping some of what was sewn when Nixon wasn't held accountable. These people simply must be held accountable in real ways... resignations, book deals, speaking tours and "think tank" appointments hardly qualify.
For me, it isn't about my utter contempt for Gonzales (though I do completely despise him), it is about the illegality and corruption and the death of justice in this country. What good is the law if it only applies to the little guy? I don't care what kind of political circus it would turn into. It would be the right thing to do and it might be the only thing that can save us.
Anonymous,
I don't disagree that Gonzales was a disgrace and that it would nice if he were held to account for that. But most of what he did was not criminal. The politicization of the DOJ was largely done by the White House, with Gonzales just being asleep at the switch. He was incompetent and uninvolved.
And while a criminal case probably could be made against him for his statements to Congress, the meaning and merit of such charges would be lost in the media circus. Right-wing pundits would defend him, aggressively disputing the charges, and he would eventually be pardoned anyway.
As things stand, there is essentially a bipartisan consensus that Gonzales was a terrible AG and had to resign in disgrace, leaving behind a very damanged Justice Department. Future AGs will not want to be similarly remembered.
I'm not sure it would be constructive to pursue a course of action that might turn Gonzales into a victim in the minds of many instead of the dishonest failure he is perceived to be now.
I'm all for prosecuting administration officials who commit crimes or obstruct criminal investigations. But I think that when high administration officials mislead Congress, the best remedy is often removal from office and public shaming.
AL,
Leahy has said "rule of law" more times than can be counted. He's talked about the 'dark clouds over the whitehouse" more than a damn weather man.
Going after Gonzo is a "rule of law" issue, imo. Nobody should be allowed to lie to congress like he did, and not be specifically held to account for same. Does great damage to Congress, if nothing else. Congress needs to assert itself, not on grounds of payback, simply for constitutional health.
A.L., I do think your legal training is sort of getting in the way here. It's not worth going after Gonzales because his didn't commit a crime? The man made a mockery of the Constitution and completely did his very best to play silly games with Congress both in his testimonies and in the way he responded to their requests for information. He left humiliated, perhaps. But the DOJ barely functioned under him and is now left in disaray, and the American people were treated with contempt and indifference by the highest ranking law official in the land. Is his resignation enough considering all of that?
It all boils down to this.
OK, we all know you had carnal knowledge of my daughter.
So? No problem.
In order to analyze whether Gonzales lied, one has to make an assumption about the actual facts. The assumption here is that the Comey/Goldsmith objection was to an aspect of the warrantless wiretapping program which at some point became known as the TSP. At the time that Gonzales originally testified in 2004, however, the program had been "fixed" so that it was no longer objectionable (to Comey and Goldsmith, that is).
On that assumption, I do not think that Gonzales's original testimony was untruthful or even misleading, for the reasons that I gave in response to your earlier post (essentially that Gonzales refused to say anything beyond the fact that there was no serious dispute about the "program the President confirmed," which reasonably would be understood, and in fact was understood, to exclude prior versions or aspects of that same program).
The 2007 testimony, however, appears different, in that Gonzales seems to be distinguishing between the TSP and "other intelligence activities," which certainly sounds like other types of activities, rather than just an earlier version of the same program. I can't quite understand why the Senators, who at this point have already heard Comey's testimony, wouldnt just ask him directly- was the dispute related to warrantless wiretapping or was the dispute related to an aspect of the TSP that was no longer operative when the President confirmed it? I also can't understand what Gonzales was hoping to achieve by lying, if he was. If his purpose was simply to defend the truthfulness of his earlier testimony by making semantic distinctions (remember, it depends on what the meaning of is is), he could have done this without mischaracterizing the underlying facts. Still, if the facts are as we assume, Gonzales's 2007 testimony appears to be misleading at best.
(essentially that Gonzales refused to say anything beyond the fact that there was no serious dispute about the "program the President confirmed," which reasonably would be understood, and in fact was understood, to exclude prior versions or aspects of that same program).
MLS, did you read my original post, the one I link to in the last paragraph? I too originally thought that Gonzales was relying on a definitional distinction between the original version of the program and the post-2004 modified version of the program. But that defense doesn't hold up because Gonzales himself, in the same February 2006 testimony, stated several times that the President first authorized the Terrorist Surveillance Program began in 2001. And the President himself, in his December 2005 confirmation of the program, the statement to which Gonzales repeatedly refers, stated clearly that the program began in 2001. So Gonzales was NOT relying on this definitional gimmick when he gave his original misleading testimony in 2006.
I havent gone back to the original post so admittedly I am relying on memory of that post and the discussion that we had at the time. But my point (which you didn't agree with) was that Gonzales clearly refused to say anything beyond the fact that the dispute was not about "the program the President confirmed" and that this limited statement could not be taken as a claim that the dispute was unrelated to a version of the program that preceded the President's confirmation. Moreover, I pointed to a statement by Senator Schumer which indicated that he understood this distinction. The fact that one could go to other parts of Gonzales's testimony and find uses of the term "program" that were inconsistent with this distinction does not suggest to me that he was trying to mislead, just that he is not particularly careful in his language (which I think we all know at this point).
My larger point is that it is very easy to scrutinize the statements of any public official and find examples of statements that are false, arguably false, literally true but misleading, or arguably true but inconsistent with other things that he or she has said. This is so because words are often ambiguous and have different meanings in different contexts, because politicians have a tendency to use overblown or exaggerated rhetoric, because they tend to care more about how statements sound and less about what they mean, and because they are concerned about making specific factual statements that could be used against them. It is hardly unusual to hear someone make a statement so broad that it cannot possibly be true ("I have never taken a penny from a special interest") or a statement that sounds very broad but on closer examination means very little.
In the case of Gonzales's original testimony, he was clearly trying to be evasive, but because he emphasized the limited nature of the statement he was making, it does not seem fair to me to characterize it as misleading. As I said, the 2007 testimony appears more problematic.
MLS,
I completely disagree. If you are going to saying something very misleading in your testimony, relying on an implicit definitional distinction that renders what you are saying technically true, than you at least have to be consistent about that definitional distinction elsewhere in that same testimony. Perjury is contextual.
Gonzales said several times in the same testimony in 2006 that the program began in 2001 (at one point he even said that the "Terrorist Surveillance Program" began in 2001). Moreover, his carefully chosen phrase ("the program the president confirmed") is clearly a reference to the president's statement confirming the existence of the TSP. And in that statement, President Bush is clear that the program he's refering to began in 2001 and is the same one revealed by the NY Times (which reported in its original story about the disagreement at the DOJ).
Gonzales was clearly trying to mislead and his statements did not leave him sufficient wiggle room. I'm not saying it would be impossible for Gonzales to beat a perjury/false statements charge for this testimony, but he clearly crossed the line. This is not just being cute. It's lying.
I understand that you disagree, but your point is not responsive to my point. I am not saying that it is ok to make broad and apparently categorical statements and later defend their truthfulness based on undisclosed caveats or semantic distinctions. I am saying that Gonzales's initial testimony was not couched as a broad statement, but a very narrow one which reasonably would be interpreted, and was in fact interpreted, to contain a temporal element. In other words, Gonzales could have said "there has never been a dispute about warrantless wiretapping" at DOJ but he didn't. He said there has been no dispute about the "program the President has confirmed." What is the difference between those two statements? The latter suggests that the "program the President has confirmed" is a term of art, and it is hardly unreasonable to think that it would be defined as the activities being conducted at the time the President confirmed it.
Suppose Gonzales had testified that the "program the President confirmed" has been thorougly reviewed by OLC and found to be ok. Suppose that what he meant, however, was that an earlier version of the program had been thoroughly reviewed and cleared by OLC, but he failed to disclose that significant changes (unreviewed by OLC) had been made prior to the time that the President confirmed it. Wouldn't you say in that case that the testimony was false and misleading because the natural understanding of his statement was that the program as it existed at the time the President confirmed had been properly vetted? Sure, in that case, one might use the semantics of the word "program" to argue that his statement was literally true, but it would still be misleading. Here, I think the opposite is the case- you can make an argument that his statement is literally false, but it does not appear that it was designed to, or did in fact, mislead.
I disagree. I think Gonzales testimony was designed to and did in fact mislead. In fact, I can see no reason why Gonzales would testify the way he did unless he was trying to mislead. Why be so cute if your intent was not to make people think there was no disagreement? He easily could have said that there was no dissent regarding the program in its current form, but that prior versions of the program had created dissent. But he didn't. Why do you think that is?
Remember, this was February 2006. At the time, the administration was trying to convince the public and Congress that this program was perfectly legal and there had never been any real disagreement about it. Gonzales used his too-cute-by-half phrasing because he was trying to keep Congress and the media off of the trail of the Comey/Goldsmith/Ashcroft episode. There had been sketchy reports of internal disagreements and Gonzales wanted Congress to think those disagreements had nothing to do with the warrantless surveillance program. He was trying to waive Congress and the media off that particular trail.
He was testifying before a Republican congress (not knowing it would change hands later that year) and was clearly hoping that this would be the end of it and that details of Comey's story would never be the subject of Congressional hearings.
He could have said that the disagreement involved prior versions of the program, and this would certainly have been more forthcoming than what he said. He also could have confirmed that there was a disagreement, which he declined to do. For that matter, he could have told the Senate exactly what the disagreement was about. I assume that he didn't do those things because he didn't want to provide any additional information that could fuel the story. No doubt he hoped that in the absence of additional information, the story would die.
I dont agree, however, that Gonzales could have reasonably believed that what he said would cause the Congress to believe that the "disagreements had nothing to do with the warrantless surveillance program." It also doesn't appear to me that anyone in the Congress did believe that. Are you aware of anyone on the panel who was misled?
MLS,
I can't read the minds of the Senators on that panel, but I can tell you that I watched that testimony intently and I was misled. I assumed that the reports had been off and that the 2004 disagreement had been about some other intelligence program, not the NSA program. I assumed that his "the program the president confirmed" language was chosen because there were other programs out there that the administration hadn't yet confirmed, not that he was making some sort of too-cute-by-half temporal distinction between the program as it existed at the time and the original program.
And I think that if the Senators on the panel had understood him to mean that, they would have pressed him much harder on this point and accused him of misleading the panel (as they later did when they found out the 2004 disagreement was indeed about the NSA program). The fact that Gonzales initial testimony did not create such an outcry is strong evidence that the Senators were in fact misled on this point. They would never have allowed him to get away with such cagey testimony had they known it was so cagey.
OK, I didn't watch the testimony and will defer to you on how it came across live. I am still skeptical that Gonzales was trying to mislead in the way you suggest. If I were Gonzales, the last thing that I would want the Congress to think was that there was yet another legally controversial program that it should be investigating. But I can't read his mind either. And if I could, I expect it wouldn't take long.
Fucking lawyers... jeebus.
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