By Dan Froomkin
Special to washingtonpost.com
Thursday, May 17, 2007; 2:26 PM
In the absence of straight answers from this administration, journalists must resort to triangulation to determine the truth.
Former Deputy Attorney General James Comey testified in gripping detail Tuesday about the 2004 revolt by top Justice Department officials against President Bush's warrantless wiretapping program. In February 2006, however, Attorney General Alberto R. Gonzales testified that "there has not been any serious disagreement about the program that the president has confirmed."
If both officials were testifying honestly -- and the Justice Department yesterday stood by Gonzales's testimony -- there's only one way to reconcile their statements: Prior to Comey's protest, there was much more to the program than the president has thus far confirmed.
The program as confirmed involves the warrantless surveillance of communications in and out of the United States. Critics make a persuasive argument that it violated federal surveillance laws and the Constitution. In a significant turnaround, the White House in January suddenly announced that the program would start to operate under court jurisdiction. (See my January 18 column, A Surrender or a Feint?)
Comey's tale of his late-night hospital-room showdown with White House aides (see yesterday's column, High Drama -- and High Crimes?) ended with Bush agreeing to make unspecified changes to the program that Comey and his colleagues felt made it legal.
So what was the program like before that -- when it was illegal even in the opinion of Bush's own Justice Department? What was the government doing for two and a half years -- starting soon after September 11, 2001, through the spring of 2004?
That is -- or at least should be -- the question of the day in Washington.What Gonzales Said
Here, from the transcript of a Feb. 6, 2006, hearing before the Senate Judiciary Committee, is how Gonzales answered questions from Sen. Charles Schumer (D-N.Y.) regarding earlier reports of Comey's revolt.
"Schumer: Let me ask you about some specific reports. It has been reported by multiple news outlets that the former No. 2 man in the Justice Department, the premier terrorism prosecutor, Jim Comey, expressed grave reservations about the NSA program and at least once refused to give it his blessing. Is that true?"
Gonzales: Senator, here is a response that I feel that I can give with respect to recent speculation or stories about disagreements. There has not been any serious disagreement, including -- and I think this is accurate -- there has not been any serious disagreement about the program that the president has confirmed. There have been disagreements about other matters regarding operations, which I cannot get into. I will also say --
Schumer: But there was some -- I am sorry to cut you off, but there was some dissent within the administration, and Jim Comey did express at some point -- that is all I asked you -- some reservations.
Gonzales: The point I want to make is that, to my knowledge, none of the reservations dealt with the program that we are talking about today. They dealt with operational capabilities that we are not talking about today."
One possibility, of course, is that Gonzales was simply lying. That was the subtext of this letter sent by Senate Democrats to Gonzales yesterday, citing the testimony quoted above, and asking: "In light of Mr. Comey's testimony yesterday, do you stand by your 2006 Senate and House testimony, or do you wish to revise it?"
But as R. Jeffrey Smith writes in The Washington Post today: "The Justice Department said yesterday that it will not retract a sworn statement in 2006 by Attorney General Alberto R. Gonzales that the Terrorist Surveillance Program had aroused no controversy inside the Bush administration, despite congressional testimony Tuesday that senior departmental officials nearly resigned in 2004 to protest such a program."The Questions To Ask
The New York Times editorial board cobbles together the clues in Gonzales's hair-splitting testimony and concludes that "the really big question, an urgent avenue for investigation, is what exactly the National Security Agency was doing before that night, under Mr. Bush's personal orders. Did Mr. Bush start by authorizing the agency to intercept domestic e-mails and telephone calls without first getting a warrant?
"Mr. Bush has acknowledged authorizing surveillance without a court order of communications between people abroad and people in the United States. That alone violates the 1978 Foreign Intelligence Surveillance Act. Domestic spying without a warrant would be an even more grievous offense.
"The question cannot be answered because Mr. Bush is hiding so much about the program. But whatever was going on, it so alarmed Mr. Comey and F.B.I. Director Robert Mueller that they sped to the hospital, roused the barely conscious Mr. Ashcroft and got him ready to fend off the White House chief of staff, Andrew Card, and Mr. Bush's counsel, Alberto Gonzales. There are clues in Mr. Comey's testimony and in earlier testimony by Mr. Gonzales, Mr. Ashcroft's successor, that suggest that Mr. Bush initially ordered broader surveillance than he and his aides have acknowledged. . . .
"With the benefit of Mr. Comey's testimony, we can see how Mr. Gonzales, in his effort to mislead the Congress and confuse the American public about how much their civil liberties were being violated, may have unintentionally given away vital clues that only now are falling into place. . . .
"The Republican-controlled Congress did a disservice to the nation by refusing to hold Mr. Bush to account for the illegal wiretapping. The current Congress should resume a vigorous investigation of this egregious abuse of power."
On the Thinkprogress blog, Clinton-era White House privacy counsel Peter Swire suggested yesterday: "Perhaps Comey's objections applied to a different domestic spying program. . . . But then we would have senior Justice officials confirming that other 'programs' exist for domestic spying, something the Administration has never previously stated."
Former Clinton administration Justice official Marty Lederman blogs that the "revised" program approved some weeks after the March incident "apparently was narrower in some fundamental respects than the program that had been authorized [previously]. . . .
"If that's the narrow version of the NSA program, just how broad and indiscriminate was the surveillance under the program that Ashcroft, et al. would not approve? . . .
"This is the real heart of the Comey story -- What happened . . . before Comey and [colleague Jack] Goldsmith came aboard? Just how radical were the Administration's legal judgments? How extreme were the programs they implemented? How egregious was the lawbreaking?
"It is imperative now that the Senate do all it can to obtain and investigate the entire paper trail that led up to the events described yesterday."No Excuse for Stonewalling
And a White House Watch reader who prefers to remain anonymous e-mailed me yesterday with an excellent point: "We should be asking EXACTLY what was dropped. The White House can't (probably will, but they have no argument) stonewall on this, citing 'security', because those portions of the program have supposedly been dropped.
"So, if those portions of the program are no longer in use, were likely illegal and therefore not likely to be used in the future, why can't they tell us? It's not like you'd be tipping of the 'terrorists', because you'd be telling the world about extinct practices."What Bush Said
At today's short joint press conference with British Prime Minister Tony Blair -- Blair's last before he steps down next month -- Bush and Blair traded compliments. And Bush ducked the one question he was asked about Comey's testimony.
NBC's Kelly O'Donnell asked Bush if he personally had sent former Chief of Staff Andrew Card and then-White House counsel Gonzales to then-Attorney General John Ashcroft's sickbed to get him to approve the wiretapping program. Bush acknowledged "a lot of speculation" but said: "I'm not going to talk about it." He instead reiterated his support for the program he wouldn't describe, and warned: "No matter how calm it may seem in America, an enemy lurks."
Bush was not asked specifically about what the program was like before he made changes in it.More Opinion
The Washington Post editorial board writes: "Why is it only now that the disturbing story of the Bush administration's willingness to override the legal advice of its own Justice Department is emerging? The chief reason is that the administration, in the person of Attorney General Alberto R. Gonzales, stonewalled congressional inquiries and did its best to ensure that the shameful episode never came to light. . . .
"Mr. Gonzales's lack of candor is no longer surprising. What's critical here is that lawmakers get a full picture of what happened, obtaining whatever documents -- Office of Legal Counsel opinions -- and testimony are necessary, behind closed doors if need be. 'Jim Comey gave his side of what transpired that day,' White House press secretary Tony Snow said yesterday. If there's another side to the story, we'd like to hear it.
"What was the administration doing, and what was it willing to continue to do, that its lawyers concluded was without a legal basis? Without an answer to that fundamental question, the coverup will have succeeded."
The USA Today editorial board writes: "It isn't easy for anyone to say no to the president of the United States. Certainly not for the loyalists who work in his administration. But in rare instances -- Watergate's Saturday Night Massacre being the most famous -- they do, upholding principle in the face of extreme presidential pressure.
"Tuesday, the nation learned of another such incident in detail fit for a Hollywood script, with plotlines about personal liberty, the administration of justice and the way the war on terror is fought. . . .
"Perhaps most compelling is what Comey's testimony says about the danger of White House arrogance. It's easy for a president or his advisers to find the law inconvenient, to dismiss facts that get in their way and to stampede those who disagree."The Plot Widens
Dan Eggen and Amy Goldstein write in The Washington Post: "The Justice Department considered dismissing many more U.S. attorneys than officials have previously acknowledged, with at least 26 prosecutors suggested for termination between February 2005 and December 2006, according to sources familiar with documents withheld from the public. . . .
"When shown the lists of firing candidates late yesterday, Sen. Charles E. Schumer (D-N.Y.), perhaps the most outspoken critic of the way Gonzales handled the prosecutor dismissals, said they 'show how amok this process was.'
"'When you start firing people for invalid reasons, just about anyone can end up on a list,' he said. 'It looks like the process was out of control, and if it hadn't been discovered, more would have been fired.'"
Marisa Taylor and Margaret Talev write for McClatchy Newspapers: "The Justice Department last year considered firing two U.S. attorneys in Florida and Colorado, states where allegations of voter fraud and countercharges of voter intimidation have flown in recent years, congressional investigators have learned.
"That brings to nine the number of battleground election states where the Bush administration set out to replace some of the nation's top prosecutors. In at least seven states, it now appears, U.S. attorneys were fired or considered for firing as Republicans in those states urged investigations or prosecutions of alleged Democratic voter fraud."Gonzales Watch
Laurie Kellman writes for the Associated Press: "Attorney General Alberto Gonzales is under new political heat after two more Republicans came out against him. . . .
"Gonzales, who some believed had survived the furor over the firings, came under new pressure Wednesday when Sen. Chuck Hagel, R-Neb., became the fourth Republican senator to urge him to resign. Sen. Pat Roberts, R-Kan., also said the attorney general should consider stepping down."A Letter From Leahy
Klaus Marre writes in The Hill: "Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) Wednesday sent a strongly worded letter to President Bush's counsel Fred Fielding and threatened to issue subpoenas if the White House continues to 'stonewall' an investigation into its involvement in the firing of several U.S. attorneys.
" 'It appears from the evidence gathered by the Committee in five hearings, eight interviews with current and former officials from the Department of Justice and review of the limited documents produced by that Department that White House officials played a significant role in developing and implementing the plan for the dismissals,' Leahy said. 'Indeed, the plan seems to have originated in the White House and was formulated by and with coordination of the White House political operation.' . . .
"The chairman noted that Bush administration officials repeatedly have said that nothing improper took place in connection with the firings of the U.S. attorneys. However, Leahy argued, the White House also has not provided any evidence to support such a claim.
" 'The White House cannot have it both ways -- it cannot withhold the documents and witnesses and thereby stonewall the investigation and, at the same time, claim that it knows of nothing improper,' Leahy said."
From that letter, some news:
"According to documents and testimony, [Sara] Taylor, the head of the White House political operation and deputy of Mr. Rove's, and [Scott] Jennings, another aide to Mr. Rove, were involved in the discussions and planning that led to the removal of Bud Cummins and bypassing the Senate confirmation process to install Tim Griffin, another former aide to Mr. Rove, as U.S. Attorney in the Eastern District of Arkansas. They were part of a group that discussed using the Attorney General's expanded authority under the Patriot Act reauthorization to avoid the opposition of the Arkansas Senators by appointing Mr. Griffin as interim indefinitely. . . .
"Mr. Sampson testified that Ms. Taylor was upset when the Attorney General finally 'rejected' this use of the interim authority -- a month after telling Senator Pryor he was committed to finding a Senate-confirmed U.S. Attorney."Monica Goodling Watch
The House Judiciary Committee announced yesterday that Gonzales's former White House liaison Monica Goodling, who was recently granted limited immunity for her testimony, will fact testify next Wednesday.Rove E-Mails?
Paul Kane writes in The Washington Post: "The Justice Department told Congress yesterday that a search of e-mails sent over 2 1/2 years turned up a single message in which the department's senior officials communicated with White House adviser Karl Rove about the dismissals of nine U.S. attorneys last year.
"In a letter to Senate Judiciary Committee Chairman Patrick J. Leahy (D-Vt.), a senior Justice official said the department scoured its computers in response to a subpoena and found just the single e-mail chain written earlier this year. It already had been released publicly."About Comey
Scott Shane and David Johnston write in the New York Times: "As with other Bush administration moderates, including former Secretary of State Colin L. Powell and his deputy, Richard L. Armitage, Mr. Comey's standing in the White House declined after he challenged some positions championed by Mr. Cheney. But also like them, Mr. Comey ultimately chose not to resign and, while he unquestionably had some influence, he did not fundamentally shift the administration's policies."
Shane and Johnston also offer this vaguely sourced but intriguing report of what Bush did to ease Comey's mind: "Mr. Bush allowed new procedures in the N.S.A. program, which officials have said included Justice Department audits" they write, even while "the eavesdropping continued without the court warrants some legal authorities believe the law requires."More Trouble Ahead?
Robert D. Novak writes in his syndicated opinion column that Susan Ralston is requesting immunity to testify before Democratic Rep. Henry Waxman's oversight committee.
"She was an assistant to Jack Abramoff, Washington super-lobbyist and Republican fundraiser, in 2001 when he recommended her for the top job with Rove as he entered the White House. As Rove's gatekeeper, Susan Bonzon Ralston became special assistant to the president and the highest-ranking Filipino American in the administration. For Waxman, she is a link between the disgraced, imprisoned Abramoff and Rove, a principal political target of the Democratic-controlled Congress."Wolfowitz Watch
Bush virtually delivered Paul Wolfowitz's political eulogy this morning in the Rose Garden. "I believe all parties in this matter have acted in good faith. I regret that it's come to this," he said. "I admire Paul Wolfowitz. . . . There is a board meeting going on as we speak."
Peter S. Goodman wrote in this morning's Washington Post: "The Bush administration spent much of yesterday trying to broker a graceful end to the ethics controversy consuming the World Bank, offering the resignation of embattled president Paul D. Wolfowitz, senior administration and bank officials said. But Wolfowitz said he would not leave, insisting on a measure of vindication. . . .
"Seeking to break the logjam, the Bush administration pressed a compromise: The [bank's executive] board could issue a statement that Wolfowitz had erred in handling the raise for his longtime companion, Shaha Riza, but apportion some of the blame to a bank committee that Wolfowitz believes gave him murky ethics advice. Wolfowitz would then resign, said senior bank and administration officials, speaking on condition of anonymity because of the sensitive nature of the talks.
" 'Not that Paul would resign eight minutes later,' a senior White House aide said, but perhaps after a few months. . . .
"The board rejected that formulation, however . . . . Some board members feared that Wolfowitz might accept a statement exonerating him, then stay in the job, the White House aide said."
Edward Luce writes in the Financial Times: "For the past few weeks the Bush administration has been bitterly divided over the best way to respond to growing calls for Paul Wolfowitz's resignation as World Bank president, according to people who have attended the White House meetings. . . .
"The Bush administration is divided into three camps, which have very rarely seen eye to eye."
One of them, "led by Dick Cheney, the vice-president, and Karl Rove, who is George W. Bush's senior strategist, say[s] the president should remain loyal to Mr Wolfowitz in the teeth of what they see as a European campaign to take revenge for the World Bank president's pivotal role in pushing for the 2003 invasion of Iraq. They have scant interest in the health of 'multilateral institutions like the World Bank', said the insider."
Luce also notes: "The situation has been complicated by the fact that few people within the Bush administration understand what the World Bank does, says another official."Barred From the White House
Nicholas D. Kristof writes in his New York Times opinion column (subscription required): "As Paul Wolfowitz is to the World Bank, the U.S. is becoming to the world.
"We should look at the battle unfolding at the World Bank not as the story of one man falling to earth, but as a moral tale of the risks the U.S. faces unless the Bush administration spends more time rebuilding bridges it has burned all over the world."
Kristof writes that Bush "has genuinely scored some major accomplishments as a humanitarian. . . .
"So why doesn't Mr. Bush get any credit for these achievements? Partly, I think, because he never seems very interested in them himself. And partly because, like Mr. Wolfowitz, Mr. Bush's approach to governing is to circle the wagons rather than build coalitions; they both antagonize fence-sitters by coming across as unilateralist, sanctimonious, arrogant and incompetent.
"In December, the White House held an event to call attention to malaria. But Mr. Bush's staff barred me from attending: They apparently didn't want coverage of malaria if it came from a columnist they didn't like."The Torture Legacy
Here's a product of the Bush years: Torture -- once universally abhorred and internationally condemned -- has practically become a plank in the Republican Party platform.
The Washington Post editorial board writes: "The Republican presidential candidates were asked at their debate in South Carolina on Tuesday about 'a million-to-one scenario' involving the interrogation of suspected foreign terrorists. Only one in 10 got it right.
"That one would be Sen. John McCain (Ariz.), the only presidential candidate who has experienced torture. . . .
"Rudy Giuliani said he would tell interrogators to use 'every method they could think of,' including waterboarding. . . .
"[M]ost of the other GOP candidates are calculating that they can curry favor with voters by promising that torture will be a tool of their presidential administrations. Let's hope they are wrong. As Mr. McCain put it, 'It's not about the terrorists, it's about us. It's about what kind of country we are.' "
I wrote earlier this week on NiemanWatchdog.org (where I am deputy editor) about former CIA director George Tenet's startling but underreported near-admission of torture and suggested that the press shouldn't let the matter drop.
Today, former military commanders Charles C. Krulak and Joseph P. Hoar write in a Washington Post op-ed: "Fear is the justification offered for this policy by former CIA director George Tenet as he promotes his new book. Tenet oversaw the secret CIA interrogation program in which torture techniques euphemistically called 'waterboarding,' 'sensory deprivation,' 'sleep deprivation' and 'stress positions' -- conduct we used to call war crimes -- were used. In defending these abuses, Tenet revealed: 'Everybody forgets one central context of what we lived through: the palpable fear that we felt on the basis of the fact that there was so much we did not know.' . . .
"The American people are understandably fearful about another attack like the one we sustained on Sept. 11, 2001. But it is the duty of the commander in chief to lead the country away from the grip of fear, not into its grasp."
They add: "As has happened with every other nation that has tried to engage in a little bit of torture -- only for the toughest cases, only when nothing else works -- the abuse spread like wildfire, and every captured prisoner became the key to defusing a potential ticking time bomb. . . .
"The torture methods that Tenet defends have nurtured the recuperative power of the enemy. This war will be won or lost not on the battlefield but in the minds of potential supporters who have not yet thrown in their lot with the enemy. If we forfeit our values by signaling that they are negotiable in situations of grave or imminent danger, we drive those undecideds into the arms of the enemy. This way lies defeat, and we are well down the road to it."Another Bad Meeting
Lois Romano writes in The Washington Post: "Even as the capital buzzed with word of the tense meeting last week between President Bush and a group of House Republicans who worry that his handling of the war will damage the GOP's future, there was another White House meeting the same day that slipped by largely unnoticed.
"Bush reached out to about 15 moderate and conservative Democrats seeking support for a war spending bill with few restrictions on the administration's Iraq strategy.
"But the president made little progress at the May 8 meeting. The Democrats expressed concern to Bush about the course of the war and urged scaling back U.S. involvement. They found Bush cordial but not particularly receptive, said three members who were in the meeting.
" 'He believes what he's saying, and I respect him for that,' said Rep. Mike Ross (D-Ark.). 'But I found it also scary. . . . He has tunnel vision.'"Czar Watch
Peter Baker and Robin Wright write in The Washington Post: "In selecting Lt. Gen. Douglas E. Lute to manage the war in Iraq, President Bush has chosen a soldier who believes there is no purely military solution to the conflict and wants to forge a political accommodation among Iraqi factions that may fall short of full reconciliation but could lead to an exit strategy, according to friends and colleagues.
"Lute's appointment shifts the balance within Bush's war council by adding a powerful voice who resisted sending more U.S. troops to Iraq and plans to pressure civilian agencies to take on a greater role. Lute promised Bush that he will do everything he can to make the buildup succeed despite his reservations, but he may be more open to arguments for a withdrawal should it fail, the colleagues said. . . .
"The choice encouraged some Bush policy critics who hope that Lute will eventually shift direction in Iraq, and triggered complaints among some supporters of the war who fear the same thing. Many leading advocates of the current buildup, inside and outside the administration, exchanged anxious e-mails and telephone calls yesterday, expressing irritation that the president was undercutting his own strategy by tapping someone who had been on the other side during internal debates."
Frank James, blogging for the Chicago Tribune, summarizes the major points in an analysis of Lute's appointment by Anthony Cordesman of the Center for Strategic and International Studies. Among them: "It's too late for Lute to make much of a difference."
At yesterday's briefing, Snow was unable to answer this question:
"Q: Why did it take so long, now into the fifth year of the war, to come up with somebody of his seniority and stature?
"MR. SNOW: I don't know. . . .
"Q: So you think this is a new need and you did not need someone to do this for the previous four years?
"MR. SNOW: Well, again, I'm not going to try -- I don't know. I don't have an answer for you. I'm telling you that's what he's here to do now."Valerie Plame Watch
Matt Apuzzo writes for the Associated Press: "The legal fallout from the 2003 CIA leak scandal continues as lawyers seek dismissal of a lawsuit against members of the Bush administration.
"Former CIA operative Valerie Plame contends the administration violated her constitutional rights by leaking her identity to reporters in 2003. She is demanding compensation from Vice President Dick Cheney; one of his former aides, I. Lewis 'Scooter' Libby; White House political adviser Karl Rove; and former State Department Deputy Secretary Richard Armitage.
"Their lawyers were scheduled to argue Thursday that a judge should throw out the case."Late Night Humor
David Letterman, via U.S. News: "Apparently there are rumors coming out of Washington that Vice President Dick Cheney, when he was the CEO of Halliburton, he used to go visit prostitutes. This could explain why one girl was paid $2 billion."Cartoon Watch
Tom Toles on the options on the table; Mike Luckovich on the pledge of allegiance; Rex Babin and John Sherffius on the hospital visit.
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