By Dan Froomkin
Special to washingtonpost.com
Thursday, July 26, 2007; 1:18 PM
It's hard to see through the White House obfuscation about its warrantless wiretapping program, but thanks in part to former deputy attorney general James Comey's congressional testimony in May, we think we know this much:
Soon after 9/11, the administration started eavesdropping on Americans. By March 2004, Bush's own Justice Department had decided that the program was clearly illegal, and top department officials couldn't find a way to rationalize it. After a rebellion led by Comey -- and backed by a hospitalized John Ashcroft -- the White House agreed to make some changes. The revised program, still controversial, was described in the New York Times in December 2005. The White House christened it the "Terrorist Surveillance Program." And in January 2007, Bush agreed to put the revised program under court jurisdiction -- although it's not clear exactly what that means.
The talk sweeping Washington today of a possible perjury investigation of Attorney General Alberto Gonzales stems from Gonzales's assertion in a February 2006 Senate Judiciary Committee hearing that "there has not been any serious disagreement about the program that the president has confirmed."
Even after Comey's testimony, Gonzales insisted that he had testified truthfully.
How could that be? It appears that Gonzales is engaged in what one anonymous Justice Department official this week charitably called " linguistic parsing."
Gonzales is trying to make a distinction between the "Terrorist Surveillance Program" that was "publicly confirmed by the President in December 2005" and what he calls "other intelligence activities" that Comey objected to. But he dug himself deeper during his congressional testimony on Tuesday, when he characterized a March 2004 meeting with some members of Congress that was obviously about the Terrorist Surveillance Program as being about -- you guessed it -- "other intelligence activities." Those members of Congress begged to differ.
This is not just a story about Gonzales's relationship to the truth. It's also a story about all the things we still don't know about the White House and illegal wiretapping.
One of the chief unanswered questions, as I wrote in my May 17 column: What was the program like when it was illegal even in the opinion of Bush's own Justice Department? What was the government doing to its citizens for two and a half years -- starting soon after 9/11 through the spring of 2004?Perjury Watch
Dan Eggen writes in The Washington Post: "Senate Judiciary Committee Chairman Patrick J. Leahy threatened yesterday to request a perjury investigation of Attorney General Alberto R. Gonzales, as Democrats said an intelligence official's statement about a classified surveillance program was at odds with Gonzales's sworn testimony.
"The latest dispute involving public remarks by Gonzales concerned the topic of a March 10, 2004, White House briefing for members of Congress. Gonzales, in congressional testimony Tuesday, said the purpose of the briefing was to address what he called 'intelligence activities' that were the subject of a legal dispute inside the administration.
"Gonzales testified that the meeting was not called to discuss a dispute over the National Security Agency's controversial warrantless surveillance program, which he has repeatedly said attracted no serious controversy inside the administration.
"But a letter sent to Congress in May 2006 by then-Director of National Intelligence John D. Negroponte described the congressional meeting as a 'briefing on the Terrorist Surveillance Program,' the name that President Bush has publicly used to describe the warrantless surveillance program."
Eggen notes: "A Justice official conceded during a background briefing for reporters this week that Gonzales's 'linguistic parsing' has caused some confusion, but said that he spoke accurately."
Michael Isikoff and Mark Hosenball write for Newsweek: "The letter by director of national intelligence at the time, John Negroponte, as well as public testimony by CIA Director Michael Hayden, seems to contradict sworn testimony by Gonzales this week about a crucial intelligence briefing for congressional leaders on activities in the White House Situation Room on March 10, 2004. . . .
"Gonzales repeatedly insisted to the Senate Judiciary Committee on Tuesday that the 'emergency' White House briefing on March 10, and his later visit to Ashcroft's hospital room that night, did not involve the president's Terrorist Surveillance Program. . . .
"His claims were met with sharp skepticism from several senators, who claimed the attorney general appeared to be trying to justify his past denials that there had been any internal disputes about the controversial program.
"'It defies credulity to believe that the discussion with Attorney General Ashcroft or with the group of eight [congressional leaders] . . . was about nothing other than the TSP,' Democratic Sen. Charles Schumer said to Gonzales at one point. 'And if it was about the TSP, you're dissembling to this committee.'
"'The disagreement on the 10th was about other intelligence activities,' Gonzales replied.
"Schumer: 'Not the TSP'?
"Gonzales: 'It was not.'"
And this just in: Laurie Kellman writes for the Associated Press: "Senate Democrats called Thursday for a special counsel to investigate whether Attorney General Alberto Gonzales perjured himself regarding the firings of U.S. attorneys and administration dissent over President Bush's domestic surveillance program.
"'It has become apparent that the attorney general has provided at a minimum half-truths and misleading statements,' four members of the Senate Judiciary Committee wrote in a letter to Solicitor General Paul Clement."Opinion Watch
Glenn Greenwald blogs for Salon: "Beyond Gonzales' long-established chronic lying . . . the critical issue that has to be addressed is this: what did these 'other intelligence activities' entail? How can we not know the answer to that question? After all, even the President's own DOJ appointees -- who are radical enough in their own right to have authorized warrantless eavesdropping even in the face of FISA -- all unanimously and emphatically concluded that it was unlawful. And, by all accounts, it did stop -- more than three years ago.
"What this means is that our own Government was spying on us using methods even more blatantly illegal than the 'Terrorist Surveillance Program' that was revealed. Whatever these 'other programs' entailed shocked the conscience even of the right-wing Bush lawyers in the DOJ. Thus -- as Marty Lederman put it -- 'Can You Even Imagine How Bad it Must Have Been?'
"What arguable excuse is there for continuing to conceal from Americans what our government did? Whatever it was they were doing is unquestionably illegal. It has been abandoned for years now, removing any 'national security' justification for ongoing secrecy. And it entails our government, at the highest levels, spying on us in ways that were so wrong and illegal that the Attorney General and FBI Director and various deputies all threatened to quit."Getting to the Bottom of It
A lot of the mysteries surrounding the program and Gonzales's testimony could be resolved -- if the White House complies with a Senate Judiciary Committee subpoena issued last month, demanding documents related to the administration's warrantless wiretapping program.
As I wrote in my June 28 column, committee chairman Patrick Leahy specifically demanded, among other things, information about what the government was doing before the Comey revolt put an end to it.
Leahy wrote: "This Committee would be abdicating its responsibility if it failed to examine Executive Branch actions simply because we are told they have stopped. We have been given no assurance that these activities, or similar ones, will not resume based on the same or similar legal arguments. This Committee must conduct oversight to consider whether it wishes to act, through legislation or otherwise, to prevent such recurrence."
In contrast to its response to the subpoenas regarding the firing of U.S. attorneys, the White House has not (at least not yet) announced its refusal to comply with the wiretapping subpoena. Indeed, earlier this month, in what must be seen as a promising sign, the White House asked Leahy for more time to respond.Contempt Watch
Dan Eggen and Paul Kane write in The Washington Post: "The House Judiciary Committee voted yesterday to issue contempt citations for two of President Bush's closest aides, moving nearer to a constitutional confrontation with the White House over access to information about the Justice Department's dismissal of nine U.S. attorneys.
"The panel voted 22 to 17, along party lines, to issue citations to Joshua B. Bolten, White House chief of staff, and Harriet E. Miers, former White House counsel. Both refused to comply with committee subpoenas after Bush declared that documents and testimony related to the prosecutor firings are protected by executive privilege."
But a full vote of the House "is unlikely until after Labor Day, giving Congress and White House counsel Fred F. Fielding another month and a half to negotiate a settlement of the legal standoff."
Neil A. Lewis writes in the New York Times: "Representative John Conyers Jr., the Michigan Democrat who is chairman of the committee, said the action was needed 'not only to gain an accurate picture of the facts surrounding the U.S. attorneys controversy, but to protect our constitutional prerogatives as a co-equal branch of government.' . . .
"In a letter on Wednesday to Fred F. Fielding, the White House counsel, Mr. Conyers implored officials to seek a compromise with Congress. . . .
"The White House has offered to have Ms. Miers and others answer questions in a closed session that would not be transcribed and would not require those being questioned to do so under oath. Democrats have rejected that proposal as inadequate, but Mr. Conyers told Mr. Fielding that he still hoped 'that we can resolve with you the committee's need for information from the White House in our investigation.'"
Dana Milbank writes in The Washington Post that the White House "left Republicans with little ammunition with which to defend the president. Instead, they opted to attack his predecessor. . . .
"'President Clinton has raised executive privilege five times more than President Bush,' [Rep. Ric Keller (R-Fla.)] said, neglecting to mention that the Clinton administration and Democratic Party received more than 1,000 subpoenas, compared with a couple of dozen sent to the Bush administration and Republican Party."
And here is press secretary Tony Snow's response to the contempt citations: "For our view, this is pathetic. What you have right now is partisanship on Capitol Hill that quite often boils down to insults, insinuations, inquisitions and investigations rather than pursuing the normal business of trying to pass major pieces of legislation, such as appropriations bills, and to try to work in such a way as to demonstrate to the American people that Congress and the White House can work together."
Snow once again insisted that the White House's offer to make some officials available for one-time interviews behind closed doors with no oaths or transcripts was a reasonable accommodation.
And why were those prosecutors fired, anyway?
"MR. SNOW: Actually, the real question is, does the President have the authority to do it? Yes. And was anything improperly done? The answer is, no."White House E-Mail Watch
The House Oversight Committee announced yesterday: "In two separate letters, Chairman [Henry] Waxman asks when the White House Counsel's office learned about White House officials' use of nongovernmental e-mail accounts for official purposes, and what steps, if any, it took to preserve these records and prevent violations of the Presidential Records Act."
For background, see my June 19 column, Casual Lawbreaking at the White House.
In the letter to White House Counsel Fred Fielding, Waxman writes: "It would be a matter of serious concern if Mr. Gonzales or other attorneys in the Office of White House Counsel were aware that White House officials were using RNC e-mail accounts to conduct official White House business, but ignored these apparent violations of the Presidential Records Act. To assist the Committee in investigating this issue, I ask that you provide the Committee copies of any e-mails sent to or from White House officials' nongovernmental e-mail accounts that were provided to the Office of White House Counsel by any White House official in connection with (l) any investigation related to Enron or the Vice President's energy task force, (2) any investigation related to the leak of [Valerie Plame] Wilson's identity, or (3) any other investigation prior to March 26,2007. In addition, I request that you provide the Committee with the names of any current or former White House officials, including those in the Counsel's office, who reviewed or were otherwise aware of the existence of these e-mails."Al-Qaeda Watch
Greg Miller writes in the Los Angeles Times: "Undercutting new assertions by President Bush, a top U.S. intelligence official testified Wednesday that Al Qaeda's organization in Iraq is overwhelmingly composed of fighters from that country, and that the terrorist network's ability to operate in Pakistan poses the greater danger to the United States.
"The testimony came just one day after Bush forcefully argued that Al Qaeda in Iraq is substantially controlled by foreign operatives, and that most of them would be trying to kill Americans if not for the ongoing war there. . . .
"Testifying before the House Armed Services and Intelligence committees, Edward Gistaro, the nation's top analyst for transnational threats, said the U.S. intelligence community's 'primary concern' is Al Qaeda in South Asia, which he said is 'organizing its own plots' against the United States. . . .
"Gistaro, who was the principal author of a recent national intelligence study on threats to America, noted that Al Qaeda in Iraq -- or 'AQI' as the group is known in U.S. intelligence circles -- has 'expressed an interest' in launching attacks against the United States.
"But he said that 90% of its members are Iraqis who joined Al Qaeda's organization there following the U.S. invasion. He estimated the group's strength at 'several thousand' members and said 'the bulk of AQI's resources are focused on the battle inside of Iraq.'"
Bryan Bender writes in the Boston Globe: "Gistaro testified that Al Qaeda followers in Iraq -- who number in the 'several thousands' -- have little support among the local population. . . .
"Abraham Wagner, a senior researcher at the Center for Advanced Studies on Terrorism at Columbia University, called Bush's speech about the Al Qaeda threat in Iraq a 'spin job.'
"'In the Cold War it was called 'threat lumping,' ' Wagner said."Poll Watch
Jon Cohen and Jennifer Agiesta write in The Washington Post: "Seven in 10 Americans believe that al-Qaeda is as strong as or stronger than it was before Sept. 11, 2001, and a majority of those with that view blamed President Bush for the terrorist network's continued resilience."Touching a Nerve
Tuesday's CBS Evening News apparently touched a nerve at the White House press office, sparking another one of its Setting the Record Straight memos.
Here's video of the offending report.
Katie Couric: "President Bush appealed again today for more time for his Iraq strategy to work, but this time with a new rationale."
Jim Axelrod: "With Congress and the public expressing growing skepticism about long-term US troop deployments in Iraq, President Bush's rationale is clearly shifting from policing sectarian violence to targeting al-Qaeda. . . .
"But this is a clear contradiction of [his] January speech setting limits on U.S. involvement."
The White House responded with examples of Bush discussing al-Qaeda in Iraq in that January speech and in more than 40 public appearances since then.
But while it's true that Bush has consistently blamed al-Qaeda for some of the violence in Iraq, he hasn't before done so nearly to the exclusion of all other forces at play, as he did on Tuesday.The Armchair Generals
Bush frequently claims that he changed his Iraq strategy in Iraq and opted for a troop surge after listening to his commanders. He says this notwithstanding the fact that his commanders in Iraq -- as well as the entire Joint Chiefs of Staff-- opposed the surge.
So where did the idea come from?
Now Rowan Scarborough writes in the Examiner: "A group of military experts at the American Enterprise Institute, concerned that the U.S. was on the verge of a calamitous failure in Iraq, almost single handedly convinced the White House to change its strategy.
"They banded together at AEI headquarters in downtown Washington early last December and hammered out the surge plan during a weekend session. . . . Then came trips to the White House by AEI military historian Frederick Kagan, retired Army Gen. John Keane and other surge proponents.
"More and more officials began attending the sessions. Even Vice President Dick Cheney came. 'We took the results of our planning session immediately to people in the administration,' said AEI analyst Thomas Donnelly, a surge planner. 'It became sort of a magnet for movers and shakers in the White House.' Donnelly said the AEI approach won out over plans from the Pentagon and U.S. Central Command."Wounded Soldiers Watch
Steve Vogel writes in The Washington Post: "A presidential commission examining the care given to wounded U.S. service members yesterday recommended 'fundamental changes' aimed at simplifying the military's convoluted health-care bureaucracy and overhauling the veterans disability system for the first time in more than half a century.
"The commission, led by former senator Robert J. Dole (R-Kan.) and former Health and Human Services secretary Donna E. Shalala, met with President Bush at the White House yesterday morning to brief him on their findings and to press him for quick action. 'We left there feeling the ball's in their court now,' Dole said. . . .
"Bush established the President's Commission on Care for America's Returning Wounded Warriors in March after disclosures in The Washington Post of poor living conditions at Walter Reed Army Medical Center for some wounded soldiers returning from Iraq and Afghanistan. The articles also detailed the bureaucratic maze that many soldiers experienced during their long recoveries. . . .
"White House press secretary Tony Snow initially told reporters yesterday that Bush would not act immediately on the panel's advice. 'He's not going to be making recommendations; he's not going to be issuing calls for actions,' Snow said.
"But late yesterday afternoon, after Dole and Shalala's comments and criticism from a veterans group, Bush -- appearing on the White House South Lawn after going running with two soldiers who had lost legs in combat -- announced that he will move quickly."War Crimes Watch
Two Reagan appointees, P.X. Kelley and Robert F. Turner, write in a Washington Post op-ed that Bush's new interrogation policy could subject him to prosecution for war crimes.
"It is clear to us that the language in the executive order cannot even arguably be reconciled with America's clear duty under Common Article 3 to treat all detainees humanely and to avoid any acts of violence against their person. . . .
"[A]s long as the intent of the abuse is to gather intelligence or to prevent future attacks, and the abuse is not 'done for the purpose of humiliating or degrading the individual' -- even if that is an inevitable consequence -- the president has given the CIA carte blanche to engage in 'willful and outrageous acts of personal abuse.' . . .
"[W]e cannot in good conscience defend a decision that we believe has compromised our national honor and that may well promote the commission of war crimes by Americans and place at risk the welfare of captured American military forces for generations to come. . . .
"The Geneva Conventions provide important protections to our own military forces when we send them into harm's way. Our troops deserve those protections, and we betray their interests when we gratuitously 'interpret' key provisions of the conventions in a manner likely to undermine their effectiveness. Policymakers should also keep in mind that violations of Common Article 3 are 'war crimes' for which everyone involved -- potentially up to and including the president of the United States -- may be tried in any of the other 193 countries that are parties to the conventions."
The Los Angeles Times editorial board writes that Congress should "insist on a single standard for interrogation that will remove the 'but' from [Bush's] 'we do not torture.'"Where's the Compassion?
John J. DiIulio Jr., the first director of the White House Office of Faith-Based and Community Initiatives in 2001, writes in a Philadelphia Inquirer op-ed: "Eight years ago this week, on July 22, 1999, George W. Bush delivered his first presidential campaign speech, titled 'The Duty of Hope.' Speaking in Indianapolis, he rejected as 'destructive' the idea that 'if only government would get out of the way, all our problems would be solved.' Rather, 'from North Central Philadelphia to South Central Los Angeles,' government 'must act in the common good, and that good is not common until it is shared by those in need.' There are 'some things the government should be doing, like Medicaid for poor children.'"
So what's happened since then? "[P]overty rates have risen in many cities. In 2005, Washington fiddled while New Orleans flooded, and the White House has vacillated in its support for the region's recovery and rebuilding process. Most urban religious nonprofit organizations that provide social services in low-income communities still get no public support whatsoever. Several recent administration positions on social policy contradict the compassion vision Bush articulated in 1999."
DiIulio implores Bush not to veto the bipartisan Senate plan that would add $35 billion over five years to the State Children's Health Insurance Program.Impeachment Idea
A conservative and a liberal, Cal Thomas and Bob Beckel, argue over impeachment in their joint USA Today column. Thomas is against it, citing the ongoing "world war." Beckel thinks it's worth holding hearings to determine if the "misrepresentation of the intelligence that got us into this madness is an impeachable offense."
But then they agree on a possible alternative:
Cal: "I would be more comfortable with an investigation if responsible Republicans and Democrats who no longer hold office conducted it. It could be modeled on the Iraq Study Group, or the base closings commission. Such a non-partisan approach might produce results more acceptable to both parties.
"Bob: So they investigate. And then what?
"Cal: The panel would then present its findings to the House of Representatives, which could then proceed with impeachment -- or not -- based on the evidence rather than political posturing. Would you agree?
"Bob: That's reasonable with the understanding that those investigations begin without delay."Cartoon Watch
Tom Toles on Bush's next big idea.Late Night Humor
Jon Stewart, talking to author Robert Pallitto about presidential secrecy: "You make it seem like they're doing this to hide something. Isn't it possible sir, and I put this to you, that they're just incredibly humble? And don't want everyone talking about how great they're doing?"