Comments on The Anonymous Liberal: The Case Against Gonzales

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Maybe someone can explain exactly what the mislead...

2007-07-29T23:03:00.000-05:00

Maybe someone can explain exactly what the misleading impression was from Gonzales's 2004 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.

In UPDATE II, the link is to the NY Times data min...

2007-07-29T13:20:00.000-05:00

In UPDATE II, the link is to the NY Times data mining story, not the new post.

Thanks, Tom. Didn't mean to imply that I wrote that Times article. :)

In UPDATE II, the link is to the NY Times data min...

2007-07-29T11:42:00.000-05:00

In UPDATE II, the link is to the NY Times data mining story, not the new post.

Tom Maguire

Just following up on the comments now. I left a lo...

2007-07-29T03:26:00.000-05:00

Just following up on the comments now. I left a longer one in the newer post above this one. This is about a whole lot more than perjury. Remember when this thing was being investigated internally, the (Justice Inspector general and crew?) were denied security clearance to even find out more about what it does? They had to drop the investigation altogether and then we were distracted ten more times by other bogus shit. Now we've bumped into this thing once again.

Let me state this: I have no "inside information" really. But I learned something very disturbing back in early 2002 in my job in the private sector that tipped me off to this "program." I have been afraid to say much of anything on any telephone since. So I have nbaturally followed every story and/or book that references anything like it since then. Just keep digging. This one is BAD STUFF.

Thanks for the update - I look forward to hearing ...

2007-07-28T23:26:00.000-05:00

Thanks for the update - I look forward to hearing more from you on this topic.

One thing that is getting lost in this, and I don't know if there is a way to get this pushed forward - is a completely different subject.

This is the revelation that the OVP office, was given all access to justice cases.

It is very possible that the OVP had access to Libby's case - I wouldn't put it past him. And then routed information TO Libby's lawyers (or simply worked to undermine the case from the inside).

Probably not - Cheney is cunning enough to avoid that much exposure - but it certainly is possible.

Great analysis. Bush, in his radio address, is on...

2007-07-28T22:04:00.000-05:00

Great analysis.

Bush, in his radio address, is only confirming international (at least one end, I assume) calls with at least one participant they allege has a 'clear link' to a terrorist network.

That's so vague, but still it has Bush only confirming surveillance of international calls. A subset of the program that was ongoing.

No confirmation of data mining.

No confirmation of domestic-to-domestic calls.

[Still even what Bush confirmed was already clearly in criminal violation of FISA if one end of a call is in the US.]

Legal question. Are you allowed to weasel to that degree? If you know what people are asking, and you know your weasel words are essentially, literally, leading the questioner to the wrong conclusion. Isn't that the very definition of the word 'misleading.' It's a LIE.

That's why we define the truth as the "whole truth?" Gonzales did not tell the whole truth. Neither did Bush.

Don't play their game by getting down into the weasel-word trenches with them. 'Is' means is.

Anybody asking about dissent and terrorist surveillance deserved the whole truth.

IMPEACH.

[I am concerned that some visitors to this site will have a hard time reading the black on gray design. Please consider that some readers may be visually challenged or just old.]

In light of what transpired in today's NYT, here's...

2007-07-28T21:17:00.000-05:00

In light of what transpired in today's NYT, here's my take:
they are so afraid that it may come out that even Gonzo, in a move that cannot be viewed as anything else but legal risk management, deliberately perjured himself.

Let's try to piece all the known elements together:

1) Timing: the hospital room showdown took place in March 2004, six months before the elections.

2) All the senior political appointees at Main Justice threatened to resign if the surveillance program was re-authorized. Why then? why not before? what made it unacceptable in March 2004?

3) We know that both political parties made extensive use of sophisticated data mining to pinpoint potential swing voters during the 2004 election cycle. Based on consuming patterns, credit records and various other publicly available data (race, gender, education, employment etc, etc), and a healthy dose of ensemble theory and discrete maths, one can accurately predict the political affiliation of a single person.

4) At the same time Ashcroft refused to sign the reauthorization of the Terrorist Surveillance Program, he seemed pretty cool with TALON, the DoD domestic counter-terrorism snooping program. That particular program seemed to have landed a lot of anti-war activists on various secret threat databases. The fact that most of these activists were of the liberal persuasion was entirely coincidental, and did not really seem to tick off anyone.

So here's my inference: a part of the TSA was used for political advantage - as in, snooping on political opponents. That is the only way I can imagine hard right, torture-happy authoritarians like Ashcroft threatening to resign over it, six months before the elections. That is the only thing that makes any sense, and why they are so desperate to hide it.

Not that I am paranoid or anything like that, but one should indeed expect the worst of this administration.

Manu, the concern troll, www.concerntroll.com

Obviously, AnonLib, makes a great point here. The ...

2007-07-28T20:51:00.000-05:00

Obviously, AnonLib, makes a great point here. The problem is that Gonzales can still pull some semantic hudu:

1. 'You've got a program that's existed over four years.' well, what program are we talking about here? I think this is the weakest link, and easily dismissed.

2. The next also has to do with how common the words are: terrorist surveillance program. There could indeed be two seperate "tsp's". A previous terrorist surveillance program on which there was disagreement, was not THE "Terrorist Surveillance Program" contained within the Terrorist Surveillance Act of 2006. One could argue that there was a program referred to as the Terrorist Surveillance Program--indeed 10, 20 or 30 seperate ones-- wholly seperate from the one currently spoken of and documented within the TSA.

The administration and Gonzalez have gotten by on slimmer assertions.

Just to clarify the timeline:Dec 16 NY Times artic...

2007-07-28T20:14:00.000-05:00

Just to clarify the timeline:

Dec 16 NY Times article highlighting warrantless eavesdropping.

Dec 17 Presidential radio address confirming the Times story.

Dec 24 NY Times article highlighting data-mining.

That ties in to the notion put forth in the latest Times article that Gonzo is speaking in terms of two programs.

Bonus baffler - how in the world does a perjury trial make public all this classified info about a presumably ongoing program?

And as we found with Fitzgerald, a special counsel can not have delegated to him the Attorney General's duties under the Classified Information Procedures Act, so Gonzales (or an AAG) would sign off on the acceptability/admissibility of classified info.

I say a Senate impeachment trial can circumvent that.

Tom Maguire

Impeachment is the only possible course because th...

2007-07-28T20:11:00.000-05:00

Impeachment is the only possible course because this would never get into court. The administration would invoke the state secrets defense to get it thrown out.

A.L. I'm with RandyH and JC. I believe that there ...

2007-07-28T18:49:00.000-05:00

A.L. I'm with RandyH and JC. I believe that there is too much insinuation by Tony Snow and others that the "other NSA activities" are still going on. Which leaves Gonzales with the problem of reconciling the statements of the December 2005/January 2006 period when the program was disclosed and they were trying to imply to the nation that it was the only warrentless spying program with the now revelation that there were/are additional NSA spying activities.

Namely in the Dec 19, 2005 Press Briefing by Attorney General Alberto Gonzales and General Michael Hayden, Principal Deputy Director for National Intelligence Gonzales states: "This is a very classified program. It is probably the most classified program that exists in the United States government." Well, clearly if there is another more classified NSA program the TSP wasn't the most classified program, so that's a problem.

Also, on January 2006 the White House issues a press release, Setting the Record Straight: Democrats Continue to Attack Terrorist Surveillance Program in which McClellan says: "It defies common sense for Democrats to now claim the administration is acting outside its authority while their own party leaders have been briefed more than a dozen times." The only way this charge makes any sense is if the Democrat leaders were briefed only on the TSP portion more than a dozen times and not on the "other NSA activities." It certainly seems like the WH is saying that they were briefed on all the activities more than a dozen times, going back much further than 2004. So that's a problem.

I guess that if you are right and they stopped all "other NSA programs" except the TSP after 2004 (which I really can't believe) then the TSP could be both the "most classified program in the United States government in Dec 2005 and the Democratic Congress leaders could have been fully aware that the NSA activities were restricted in 2004 and now is only the TSP. But, Thursday Tony Snow did say: "Let me just say, this is where there are a broad range of intelligence activities that the government is involved in." He used the present tense, "is".

I think that there are now two programs. It was originally just one, but sometime after Dec 2005 (maybe even just last week...ha!)they broke it into two, the TSP, that the President confirmed and the much less limited "other NSA program." And, if there are two, it's a problem for Gonzales for the reasons discussed above.

So here's a question: What if they say: "There were two programs that ran all the way from the start in 2001. The TSP which was finally disclosed by the President in 2005 which noone had any disagreement with, and the "other NSA program" which there was a whole load of objection to and we stopped that in 2004 after the hospital visit. The Democratic leadership was briefed on both." Of course, it is total bull, but how do we blow a hole in that? It won't work that they say the program was narrowed after 2004 to just the TSP for the reasons you cite concerning the testimony about "any serious objections." It had to be "a different program" from the start. What we are looking for is some stated admisssion that it was one program initially. It must be out there.

If, however, we find out that "other NSA program" is still ongoing, which I expect the Democratic leadership would know, then they are toast. His statements don't wash.

Thank you for your efforts AL, and commentors also...

2007-07-28T18:27:00.000-05:00

Thank you for your efforts AL, and commentors also. Stating the obvious I know, but this is all so very important. I will look forward to the next post.

Here's where I think Gonzales can weasel by - the ...

2007-07-28T13:57:00.000-05:00

Here's where I think Gonzales can weasel by - the President has never confirmed any spying on americans. Internal spying. He has only ever confirmed the monitoring of foreign-domestic communications, and foreign-foreign communications.

Thus, if Gonzales says there has never been any dispute about what the President confirmed, there never has been dispute about the monitoring of foreign traffic.

And since the dispute about domestic-domestic traffic has never been confirmed (although I don't know how that "becomes" a separate program), Gonzales isn't committing perjury.

Also, see this great timeline by drational over at Daily Kos.

Thoughts?

I think a special prosecutor could help uncover ev...

2007-07-28T12:36:00.000-05:00

I think a special prosecutor could help uncover ever more damaging evidence of Gonzales's lies and perjury, to build support for Gonzales's impeachment, parallel to the criminal indictments that would be expected - though at this point, it would have to be very dramatic new revelations to convince GOP senators that they have no choice politically but to vote for impeaching Gonzales, if they are not already so convinced by what we've already all witnessed.

I can't understand why a bigger wave of outcry hasn't already formed in response to Bush pronouncing that he will command the DoJ to ignore any investigation into this referred to it by Congress (in violation of federal law). This seems effectively equivalent to Nixon ordering Archibald Cox fired for pursuing his investigation of Watergate. Maybe, hopefully, the same kind of public outcry would begin in earnest once Congress has actually instructed Paul Clement to appoint a special prosecutor and Bush actually orders Clement to ignore Congress's instruction.

Any insights into Clement's character, on whether he would be more likely to uphold his statutory obligation to appoint the special prosecutor, or cow to Bush's claim of imperial (er, "executive") privilege? Is he a Comey or an Addington? On the record, I'd have to say that he (unlike Gonzales) is too smart to cave to Bush where there is no legal foundation, as even his old boss Scalia has conceded in cases in which Clement himself had the task of arguing the administration's claim for imperial privilege (e.g. Hamdi).

If you have not yet watched the "highlight" (or "l...

2007-07-28T12:10:00.000-05:00

If you have not yet watched the "highlight" (or "lowlights"?) reel of Alberto Gonzales's testimony this week, as put together by Talking Points Memo, you should watch it right now:

http://talkingpointsmemo.com/archives/015807.php

There is so much you miss if you only read about the testimony or only read a transcript. Gonzales literally starts giggling and laughing like a little schoolgirl at several points, in the midst of spouting his endless stream of evasions, claims of ignorance, and plain old lies. He is really starting to crack up.

Impeaching Gonzales now is a constitutional obligation for Congress just to uphold its dignity and to keep from setting a precedent that such flagrant contempt does not go without consequences. But of course, it also helps that impeaching Gonzales is also politically widely supportable from nearly all sides, if not inexorably in demand; and that it will deprive Bush of one of his most vital retainers and enablers, and ensure that the Department of Justice finally gets the adult supervision it so desperately needs.

I don't have much to add but I am usually quite pl...

2007-07-28T11:09:00.000-05:00

I don't have much to add but I am usually quite pleased when you have another blog entry up. Keep up the good work and let the light shine!

A.L.,One last reaction to your excellent connectin...

2007-07-28T08:16:00.000-05:00

A.L.,

One last reaction to your excellent connecting of the dots:

While impeachment of Gonzales should remain on the table, I do not think it is the preferred course of action immediately. The best immediate action, I think, is to support the request to Paul Clement that a special counsel be appointed. (I would go further and argue, as I have before, that the counsel's mandate should extend to underlying violations of FISA, etc., but few seem to have the stomach for that.)

Notably, Leahy has not yet endorsed the request to Clement, and is waiting for Gonzales to send his written clarifications (due Aug. 1) to his recent Senate testimony. Specter, after a plane ride on Air Force One, opposes a special counsel. Frankly, I don't trust him at all on this one, since he carried the White House water last year on FISA while pretending to be a critic.

It is also notable that much of the documentary evidence about the domestic surveillance program which Senate Judiciary has subpoened -- including, I believe, both the DOJ legal memos and the 45-day authorization docuuments -- is still under discussion with Fred Fielding, who has been granted an extended deadline to reply. Formally, no privilege has yet been asserted on those documents.

One reason I favor the special counsel route is that he would already be in a strong position under the Nixon tapes precedent to overcome an assertion of privilege. Another is that it would be much easier to convince a jury than 67 senators to convict Gonzales.

I believe that randyh and a.l are absolutely corre...

2007-07-28T07:33:00.000-05:00

I believe that randyh and a.l are absolutely correct. During the Gonzales testimony, I was struck by the number of times that Gonzales made statements referring to "this program". The obvious inference was that there was another program where domestic spying was continuing! I was also struck by the fact that not one legislator followed up on this line of questioning!

To play devil's advocate, he would rejoin that the...

2007-07-27T22:44:00.000-05:00

To play devil's advocate, he would rejoin that there also was another qualifier attached to his definition -- the requirement that the surveilled calls be international and that one party be deemed to be affiliated with al Qaeda.

I agree, though I don't think that will work either. They just weren't consistent enough in what they were referring to as "the program." And I'd bet that things like the DOJ authorizations weren't limited to their post hoc definition of the program. There should be plenty of historical comments and documentation that contradict this narrowed post-hoc definition.

One last quibble: Gonzales was not under oath on F...

2007-07-27T22:41:00.000-05:00

One last quibble: Gonzales was not under oath on Feb 6, 2006, so perjury is not actually what would be charged. It is also a crime to lie to Congress, but I am not familiar with what comprises the elements of this offense.

Good point. Though he did essentially repeat this testimony under oath this week.

Well done, A.L.Tying in Bush's radio address as ev...

2007-07-27T20:03:00.000-05:00

Well done, A.L.

Tying in Bush's radio address as evidence of what program "the President has confirmed" is quite damaging to Gonzales.

To play devil's advocate, he would rejoin that there also was another qualifier attached to his definition -- the requirement that the surveilled calls be international and that one party be deemed to be affiliated with al Qaeda. He would cite his follow-up letter of clarification regarding his Feb. 6 testimony, which purported to define (or redefine) almost all his oral responses at the hearing.

I would add that there is additional evidence we don't have, but which a special counsel properly would -- the paper trail of the sequential, 45-day reauthorizations. We know there was, contemporaneously, no such thing as a "Terrorist Surveillance Program." But there was some description of a program written down within the four corners of those documents.

One last quibble: Gonzales was not under oath on Feb 6, 2006, so perjury is not actually what would be charged. It is also a crime to lie to Congress, but I am not familiar with what comprises the elements of this offense.

A.L.-I am really enjoying your analysis of AG's n...

2007-07-27T18:35:00.000-05:00

A.L.-

I am really enjoying your analysis of AG's nuanced testimony and I think you're right on most points. But I think many are overlooking something. When the cover was blown in 2005 and Bush admitted to certain capabilities of "The Program" it seems that the PR folks created a new name "Terrorist Surveillance Program" to define just that specific subset of capabilities admitted to publicly as a unique program for purposes of public discussion and to confuse the discourse. The original, referred to by James Risen in his NYT pieces and his book was only called "The Program" and does much more than Bush admitted to.

Over at Booman Tribune, he's been discussing this as well to try to figure it all out and I'm going to just copy one comment I made there because I'm too lazy to re-word it all here in a comment. But I encourage you to read the two posts on the subject there - along with the comments. It may help refine some of the nuances.

Here is the bulk of my comment to his post:

Prior to the public disclosure in the NYT, this NSA surveillance program was simply known within the tiny circle of people allowed access as "The Program."

After Bush confirmed the existence of certain limited aspects of what "The Program" was capable of, they assigned a politically attractive name to just that limited subset of capabilities/activities of "The Program" as though they were actually a unique program. The name they chose was "Terrorist Surveillance Program" for this limited set of capabilities and briefed the PR crew that these were the only activities involved in that program. Such as: It's only terrorism suspects and it's only foreign-to-domestic calls.

Now, the original program with the full set of capabilities that Comey objected to still exists, but since the president has not disclosed those parts, they continue to compartmentalize those capabilities as "other intelligence activities." And keep in mind, they may well have been using those additional capabilities all along, but they limited what the AG has to sign off on to what they've defined as "Terrorist Surveillance Program."

Additional capabilities that they have not admitted to include domestic-to-domestic calls, storage and data-mining ("combing" in the NYT piece) of collected calls/emails to look for trends and automatic expansion of the web or net of "suspects" based on ever having contact with any existing "suspect" in the system. This web would have expanded exponentially and covered all communications (of potentially millions) of totally unrelated innocent citizens without any probable cause.

From a purely technical point of view, this is an excellent way to find needles in haystacks if you have the computer power and data-storage capacity to do it (NSA does) but it certainly is not something that should even be contemplated in a democracy that values personal privacy in any way.