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Analysis: Gonzales Testimony Part of Broader Effort to Conceal Surveillance Program

TPM Muckraker.com | July 27, 2007
Spencer Ackerman and Paul Kiel

Alberto Gonzales' testimony that there was "no serious disagreement" within the Bush Administration about the NSA warrantless surveillance program has left senators sputtering and fulminating about the attorney general's apparent prevarications. But a closer examination of Gonzales' testimony and other public statements from the Administration suggest that there may be a method to the madness.

There's a lot of evidence to suggest that Gonzales's careful, repeated phrasing to the Senate that he will only discuss the program that "the president described" was deliberate, part of a concerted administration-wide strategy to conceal from the public the very broad scope of that initial program. When, for the first time, Program X (as we'll call it, for convenience's sake) became known to senior Justice Department officials who were not its original architects, those officials -- James Comey and Jack Goldsmith, principally -- balked at its continuation. They did not back down until the program had undergone as-yet-unspecified but apparently significant revisions. But when President Bush announced what he would call the "Terrorist Surveillance Program' in December 2005, he left the clear impression that the program had always functioned the same way since its 2001 inception.

The administration's consistent refusal to discuss any aspect of the program -- current or former -- aside from what President Bush disclosed in December 2005 appears to be intended, specifically, to gloss over Comey and Goldsmith's objections. If that's the case, it could mean that the public has been presented with an inaccurate picture of the origins and scope of Program X. The Bush administration is currently contesting a Senate Judiciary Committee subpoena for documentation establishing Program X's history -- in essence, trying to ensure that the public never learns more about the program and the internal deliberations over it than what President Bush chooses to reveal.

Alberto Gonzales, on this theory, has found himself enmeshed in the administration's attempt to distinguish the less-troublesome Terrorism Surveillance Program from Program X. And it may mean he perjured himself in doing so. Today, Senate Democrats responded to Gonzales's dubious testimony on Tuesday by calling for a perjury investigation. At issue is whether Gonzales' assertions that there was "no serious disagreement" within the government about the TSP was so misleading as to amount to perjury, or whether his distinction between TSP and Program X was merely a careful parsing -- perhaps misleading but not, to use Sen. Arlen Specter's word, actionable.

In December 2005, James Risen and Eric Lichtblau broke the story of the Terrorist Surveillance Program for the New York Times . Risen's resulting book, State of War , described a surveillance effort where the National Security Agency "monitor(s) and eavesdrop(s) on large volumes of telephone calls, e-mail messages, and other Internet traffic inside the United States to search for potential evidence of terrorist activity, without search warrants or any new laws that would permit such domestic intelligence collection." Previously, the NSA only eavesdropped on foreign communications. Although the scope of that effort remains unclear, Risen estimated that NSA eavesdrops on "as many as five hundred people in the United States at any given time and it has potentially has access to the phone calls and e-mails of millions more."

The New York Times ' publication of those explosive charges prompted President Bush to disclose , on December 19, 2005, what he would later call the Terrorist Surveillance Program:       

      "I authorized the interception of international communications of people with known links to al Qaeda and related terrorist organizations. This program is carefully reviewed approximately every 45 days to ensure it is being used properly. … "(T)he legal authority is derived from the Constitution, as well as the authorization of force by the United States Congress.

… "I want to make clear to the people listening that this program is limited in nature to those that are known al Qaeda ties and/or affiliates. That's important. So it's a program that's limited, and you brought up something that I want to stress, and that is, is that these calls are not intercepted within the country. They are from outside the country to in the country, or vice versa. So in other words, this is not a -- if you're calling from Houston to L.A., that call is not monitored. And if there was ever any need to monitor, there would be a process to do that."

What President Bush described was far more constrained than the surveillance Risen reported.

Immediately thereafter, whenever administration officials discussed the surveillance program, they would decline to use names for it in most cases (even the "Terrorist Surveillance Program") and instead refer back to what President Bush disclosed. A letter one month later from Gonzales to then-Senate Majority Leader Bill Frist (R-TN), referred only to "the NSA activities described by the president." Stumbling for a shorthand, a Justice Department fact sheet issued January 27, 2006 said that "throughout this document, the 'terrorist surveillance program' and 'the NSA program' refer to the activities described by the president.'"

Most significantly, when Gonzales first testified to the Senate on February 6, 2006, about the NSA's domestic surveillance, he at first used the term "terrorist surveillance program" -- the new choice for describing what Bush disclosed. But when Sen. Charles Schumer (D-NY) asked Gonzales about press accounts reporting that Comey and Goldsmith objected to the "terrorist surveillance program," Gonzales abandoned the construction. He said he was "only testifying about what the president has confirmed." And when it came to that, he said, "I do not believe that these DOJ officials that you're identifying had concerns about this program." The disagreement, Gonzales said, was about “other matters regarding operations.”

In a move that may prove crucial, the administration convinced then-committee chairman Arlen Specter (R-PA) not to swear in Gonzales for that hearing.

The different phases of the program's implementation did not become clear until Comey's testimony before the Senate Judiciary Committee in May of this year. Comey did not identify the program, only calling it “a particular classified program.” We won't rehash his story in full here. But during his brief reign as acting attorney general, Comey refused to reauthorize Program X in March of 2004 ( here's an explanation as to why it took two years for this to happen). Comey's refusal was based on the concerns of Jack Goldsmith, the head of the Department's Office of Legal Counsel, but the precise nature of Goldsmith's concern isn't publicly known. Goldsmith declined to comment for this story.

It all came to a head on March 10, 2004, with the deadline for reauthorizing Program X looming. That afternoon, the White House called a meeting with the so-called "Gang of Eight" -- those congressional leaders briefed about Program X -- and Gonzales and Andrew Card made their infamous visit to Ashcroft's hospital bed that night. The President initially opted to continue the program despite Ashcroft's refusal to overrule Comey. But the next day, March 11, when faced with the possible resignation of the top echelon of Department of Justice leadership, the President personally told Comey to recommend what changes needed to be made to Program X in order for the Department of Justice to sign off on its legality.

As Comey told the committee, the Department took “two or three weeks” to “get the analysis done and make the changes that need to be made.” Comey (or Ashcroft; Comey couldn't remember) subsequently signed off on the revised program. Given the depths of Comey's objections and the amount of time needed to overcome them, what must have emerged was a substantially different program.

Another significant revision to Program X occurred around the same time as Comey's objections, according to Risen's book. The Administration had been briefing the chief judge of the FISA court about the program, but in the spring of 2004, a new FISA chief, Judge Colleen Kollar-Kotelly, came onto the bench. She raised concerns about NSA-collected intelligence being used, ultimately, for terrorism prosecutions, which could result in suspected terrorists walking free if the evidence that formed the basis for their prosecutions had been collected illegally. Risen reported that "top administration officials suggested that they abandoned some of the most aggressive techniques used in the NSA surveillance operation after the judge complained."

The sparse record suggests that substantial changes were made to Program X after March of 2004. Precisely what they were, we don't know. The initial reports, which drew no distinction between the program before and after that crucial month, described a program that surveilled the communications of Americans, including some purely domestic communications, without the issuance of warrants by a court. Prior to 9/11, such surveillance had to be approved by a FISA judge so as not to violate the 4th Amendment.

Perhaps the Administration's position is that those elements of Program X that were jettisoned in March of 2004 were so substantial that what remained -- the program that Bush announced in December of 2005 -- was a new and entirely different program. Again, we don't know. But several members of Congress feel misled, though principally those objections are confined to Democrats, who have an obvious political interest in bringing down Gonzales. Both Jay Rockefeller and Jane Harman, members of the Gang of Eight, have stated that there has only ever been one surveillance program.

Unfortunately for Gonzales, not even he has been able to keep the distinction between the Terrorist Surveillance Program and Program X straight. During a June 5th press conference this year, he said that Comey's dispute “related to a highly classified program which the president confirmed to the American people sometime ago” – precisely the opposite of what he'd testified before. By way of explanation, Gonzales testified Tuesday that his spokesman had subsequently contacted the reporter who'd asked the question, Dan Eggen of The Washington Post , to retract that statement.

Despite that embarrassing admission, Gonzales hewed to the same line this Tuesday he'd taken in the hearing the previous February, saying that Comey's disagreement was “not about the terrorist surveillance program that the president announced to the American people.” He maintained that line under blistering questioning – including the questions of senators, such as Sen. Russ Feingold (D-WI), who also sit on the Senate intelligence committee and have been briefed on the program.

Following Gonzales' testimony, Democrats' contention that there was only one warrantless surveillance program was bolstered by the release of a May 2006 letter from John Negroponte, then the director of national intelligence, specifying that the March 10, 2004 meeting was, indeed, a TSP meeting. In response, an anonymous DOJ official told the Washington Post that in his testimony on Tuesday Gonzales "did not say that the TSP was not discussed at the meeting" -- underscoring the absurdity of the distinction that the administration is still trying to draw. Similarly, FBI Director Robert Mueller told Rep. Sheila Jackson Lee today that he and Comey had objections to the "much discussed" NSA program, a reference clear in context to the TSP.

In essence, the issue is this: if Gonzales succeeds in convincing the committee that there really is a material distinction between the program as it existed before and after Comey's intervention, he won't just save himself from perjury. He will perhaps have preserved an administration strategy of concealing the scope of Program X from the public and most of Congress -- making it appear that the program that Bush disclosed in December 2005, incorporating Comey's objections, is the same program that existed since October 2001, long before Comey put the brakes on at least some aspects of it. That may be at the heart of the White House's claim of executive privilege to prevent the Senate Judiciary Committee from seeing documents detailing the genesis of Program X.

We may be about to learn whether a perjury investigation will pierce the obfuscations and begin to explore the extent of Program X -- a program the American public was never supposed to know about.


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