Something I should've read first

Before you read the below post, read, as I should have, this article by Spackerman and Kiel. What you'll learn is it seems quite likely that, until Comey stepped in, there had been a bigger, meaner version of the domestic surveillance program, which had been in effect for years. It's impossible to say (yet!) how much bigger and meaner, but certainly somewhat. Gonzales' testimony creates, then, an epistemological nightmare. Though he doesn't or can't actually say anything, his implicit take (or spin) is that the pre-Comey version of the program (Program X) was different enough from the post-Comey verson (TSP) that it's fair to say that one metamorphosed into the other and that the two are categorically different. Others, including Jane Harman, seem to be suggesting that TSP is a shrunken version of Program X, but that they are essentially two versions of the same thing. Anyhow, read the article. It's the best primer out there on Gonzales, perjury, and the wiretapping program (or programs).

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.

Comments

[JimPortlandOR]

In thinking more about program X v. TSP, here's an interesting question?

Let's assume program X was a broader (more illegal and unconstitutional) version of the 'final' TSP that Bush publicly announced - as TPM suggests may be the case.

Further, let's assume program X was in existence for some longish period of time - say from the 9/11 time period - with no one having knowledge of it on the gang of 8, or on the FISA court.

And finally, let's assume that Ashcroft knew of this but his team was not involved (Comey et al), but didn't realize the significance of the illegalities.

Then: why did Ashcroft not tell Comey et al? Was he instructed not to tell anyone of what he approved? Since Comey and Goldsmith? made a fuss when they learned of it at renewal time and refused to approve it, we must assume this was their first contact with the details. Who asked Ashcroft to originally approve this program X? Gonzales? the NSA Director? Bush? Cheney? Did Mueller in the FBI know?

Somebody asked for Ashcroft original approval and that somebody knew this program wouldn't pass legal scrutiny in DoJ. This is a criminal conspiracy to violate the FISA law.

Get out the bloodhounds! Woof!

[Anonymous Liberal]

Jim,

It's actually less sinister than that. The DOJ did approve of the original NSA program. People like John Yoo, Jay Bybee, and others signed off on it. Comey was appointed DAG in late 2003. Jack Goldsmith replaced Bybee as head of the OLC around the same time. Soon after they arrived, they began an audit of existing OLC opinions and current programs and determined that a number of them were legally indefensible. They disavowed Yoo's torture memo and surveillance memo and refused to sign off on the NSA program. That's what prompted the hospital showdown.

In other words, it's not that Comey and Goldsmith were kept out of the loop, it's that they weren't even in the DOJ in until late 2003.