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As the President Plays the Fear Card, Gonzales' Shoe Looks Likelier to Drop

Gabe Rottman,
Legislative Counsel,
ACLU Washington Legislative Office
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August 1, 2007

Between the tussle over subpoenas, the possibility of contempt or perjury charges, and criticism from both parties over no less than three separate scandals, it’s no surprise that the press has begun to tack on “embattled” to Attorney General Alberto Gonzales’ name.

And the Hill’s restlessness over the AG and his programs may also be the reason President Bush is now going on the offensive, trying to preemptively smear Congress as al Qaeda enablers if they don’t gut FISA, the law that for 30 years has balanced the need to spy with the need for judicial oversight.

And, the background of one particular scandal – that involving the National Security Agency’s no-warrant wiretapping – is especially illustrative of just how dangerous, how unexpectedly dangerous, the activity at issue may be to American civil liberties.

Let us review. When The New York Times revealed the NSA warrantless wiretap program (after holding the story for a year under pressure from the White House), the program reportedly involved the recording of actual human telephone conversations and interception of emails.

Later, USA Today reported the existence of a related “data-mining” program, in which the NSA used sophisticated search tools to comb through electronic communications routed through American telecommunications networks. Reading between the lines, it seemed like the program had two prongs: one, human interception, and, two, an automated search.

That distinction is a key part of the recent troubles for the attorney general. In February 2006, Gonzales told the Senate Judiciary Committee: “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.”

Then, earlier this year, former Deputy Attorney General James Comey directly contradicted that testimony. Senior conservative officials in the Justice Department – most notably Jack Goldsmith – had apparently released on official legal opinion that the NSA surveillance was unlawful. Ashcroft, reportedly, concurred.

When Gonzales, as then-White House counsel, attempted to twist a very ill John Ashcroft’s arm to rescind that opinion, the FBI Director Robert Mueller had to post FBI agents at Ashcroft’s hospital with orders to keep anyone from ejecting Comey, then-acting attorney general, from the room – under any circumstances.

Here’s where it gets interesting. Confronted with Comey’s sworn testimony, Gonzales stuck by his earlier statement, saying that the altercation at George Washington University Hospital involved “other intelligence activities.”

But Mueller himself directly contradicted that testimony last week, and confirmed for the first time that he indeed dispatched FBI agents to the hospital to keep Acting Attorney General Comey in the room.

So, what’s going on?

In Monday’s front page Washington Post story, the debate about Gonzales’s actions and motives resolves into two viewpoints. One school says that Gonzales is deliberately dissembling to protect the president. The other says he’s an incompetent manager.

I suspect the truth about the NSA spying may be more complicated. History shows us that the Church Committee report, a Congressional investigation into intelligence abuses during the 1960s and ’70s, revealed a web of abuses among different agencies and programs, sharing some operations, but technically separate in function and management.

If, say, the same were true of the NSA program, the bureaucratic fiction of a “two-part” program could allow Gonzales plausibly, if dishonestly, to split hairs.

One part of the NSA program focuses on actual “real-time” wiretapping. That is, you have human operators actively intercepting and covertly eavesdropping on one-on-one phone conversations. The other is likely something akin to the “Total Information Awareness” data-mining plan. It would use keyword searches, voice recognition and the like to monitor data flowing through America’s telecommunications networks. That passive monitoring likely pulls out communications matching certain profiles, flagging them for later scrutiny.

Under current Fourth Amendment search and seizure law, those two types of surveillance are treated differently. The NSA may have created some sort of operational firewall between the active and passive surveillance. If that is the case, the attorney general is likely blurring the truth and hoping the legal niceties will cover his assertions.

Indeed, a recent letter from Director of National Intelligence Michael McConnell (PDF) in Gonzales’s defense essentially concedes this point. He effectively admitted that there is a dispute over the definition of the surveillance programs and the scope of the so-called “Terrorist Surveillance Program.” Gonzales is relying on that legal schismto avoid ‘fessing up to Congress.

Unfortunately for him, another White House shoe is lifting off the ground this week, and an ever-growing crowd is waiting for it to drop. When Congress gets its hackles up, it can be a formidable champion for our system of checks and balances.

That said, it’s spine isn’t all that visible these days. Despite these clear indications of abuse and official mendacity, Congress could be poised to rubber stamp another round of intelligence “reforms,” designed to give the intelligence community even more unfettered discretion to spy on Americans without due cause.

Republicans, and a surprising number of Democrats, have yet to prove they can keep their resolve in the face of Bush’s “fear offensive.” But if they can, the people will end up seeing documents and testimony that shine some sunlight on the NSA’s program. As our Caroline Fredrickson said over the weekend, this is no time to buckle on oversight. We need to know a lot more from this opaque administration before handing them permission for even greater abuse.

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