More Gonzales

Spencer Ackerman has the goods on a surprise from today's Gonzales thrashing that seems to have gone mostly unnoticed. The takeaway comes from these four paragraphs:

The Senate Judiciary Committee will review Alberto Gonzales' past statements to determine whether Gonzales lied to the committee in 2006 by saying there had been no internal Justice Department dissent over the legality of the president's Terrorist Surveillance Program (otherwise known as the NSA's warrantless wiretapping program). When confronted by the senators, Gonzales today offered a surprising explanation of his consistency and veracity: he repeatedly suggested there's a different intelligence program, other than the TSP, that Justice Department officials found legally dubious in 2004. If Gonzales is telling the truth, he just disclosed the existence of a previously unknown intelligence program. If not, the embattled attorney general could be in some serious legal jeopardy.

Gonzales's "no-dissent" testimony sought to assure outraged Senators that the Justice Department had complete confidence in the controversial warrantless surveillance program known as the TSP, which was first disclosed by the New York Times in December 2005. But that line was cast into serious doubt by ex-Deputy Attorney General James Comey's May testimony that he thought the TSP was illegal during a stint as acting attorney general in March 2004. Indeed, the top echelon of Justice Department leadership was prepared to resign over the president's decision to continue a surveillance program without Department authorization.

Sen. Chuck Schumer (D-NY) battered Gonzales about the distinction between the TSP and the "other intelligence activities" Gonzales alleges existed. Schumer pointed out that in a June press conference, Gonzales confirmed that Comey was in fact talking about the "highly classified program which the president confirmed to the American people sometime ago" -- that is, the TSP. But Gonzales said at the hearing that shortly thereafter, he contacted Washington Post reporter Dan Eggen to retract the statement -- and then he stuck to his line about there being "other intelligence activities" that were at issue in March, 2004....

Then it was Sen. Russ Feingold (D-WI)'s turn. Feingold, a member of the Senate intelligence committee, has received briefings on the TSP, and he came away from listening to Gonzales believing that the attorney general's 2006 testimony was "misleading at best."

There's an awful lot to unpack here. First off, whether or not there is or was a second intelligence program, if--two days after the June press conference--the Justice department told a reporter that Comey was not, in fact, referring to the TSP, you'd think that reporter might mention the existence of other controversial intelligence operations in an article. To my knowledge that never happened.

But it would be hard to think that even a mediocrity like Gonzales--on the word of the adviser who whispered the name "Dan Eggen" into his ear--would provide under oath the name of anybody who could easily testify that the Attorney General had perjured himself. I think we have to assume that that conversation happened, right? So first off, why was the record not corrected in print?

But the exchange between Feingold and Gonzales raises yet more questions.   

Specifically, there are three possibilities:

1). There was a second intelligence program that Comey and Gonzales have been dancing around for months now, and which, to Gonzales' surprise, Russ Feingold just learned about yesterday.

2). There was a second intelligence program that Feingold has known about all along, in which case Gonzales might not have technically perjured himself when he said there was no dissent about the TSP. He just left out the fact that there was wide dissent about "other issues".

3). There is no second intelligence program.

The chance that number one is true seems extraordinarily low to me. It would imply either that Senate Intel briefings left the committee members in the dark about another surveillance program, or that Russel Feingold didn't understand the briefing when he saw it. Likewise, the chance that number three is true also seems incredibly low to me. It would mean that Gonzales perjured himself in an extremely blatant way with the hope, perhaps, that it would be difficult to disprove the existence of a second program (though Comey could certainly do this). Have I missed something? Am I in completely over my head?

If not, then, for now at least, I'm going with number two. Which, if I'm right, means that there is, in fact, a second domestic intelligence program. Not only that, but that the undisclosed program is somehow more controversial within the DOJ than is legally dubious warrantless wiretapping. The mind reels. 

Comments

[A.L.]

I think you leave out a possibility (the one I think is most likely), i.e., that Gonzales was just being hyper-legalistic here. When he refers to the "Terrorist Surveillance Program," he's referring to its current incarnation, not the pre-2004 version of the program that James Comey refused to sign off on.

When Comey and the DOJ objected, the program underwent serious revisions. Thus, "the program the president confirmed" in 2005 is actually the new and improved program, not the program that everyone objected to in 2004.

As for the "clarification" that Gonzales supposedly communicated to Dan Eggen, I think I found it. It's buried toward the end of Eggen's June 7th article:

Justice Department spokesman Brian Roehrkasse said the surveillance program "was always subject to rigorous oversight and review. . . . We have acknowledged that there have been disagreements about other intelligence activities, as one would expect."

It's pretty clear from the article that Eggen had no idea what that was supposed to mean, but included it anyway. As the rest of the article makes clear, Eggen was still operating under the assumption that the program Comey was talking about was the TSP.