Ruth Marcus pens an opinion piece at the Washington Post today considering a perjury charge against Alberto Gonzales. Although she finds Gonzales' intricately crafted testimony reprehensible, she offers a defense of Alberto Gonzales, noting that his finely parsed and legalistic language may be technically correct, and hence non-perjurous.
She restricted her analysis to statements that Gonzales made regarding the controversy over the President’s NSA surveillance program. As I and others have noted, the selectively declassified portion of the NSA surveillance program, dubbed the “Terrorist Surveillance Program” (TSP), has been defined to include only to foreign-domestic warrantless surveillance.
This convenient construct (selective declassification of only a portion of the NSA Program) allows the administration and Gonzales to talk around questions and mislead the public and congress. However, the focus on this portion of Gonzales testimony is too narrow.
Ignoring the perjury issue over the controversy of the NSA program, there is at least one segment of Gonzales’s testimony before the SJC on 2/6/06 that may be perjurous. In an exchange with Senator Biden, Gonzales was asked whether monitoring of purely domestic communication was done.
BIDEN: ...As I understand your reasoning, I don't understand why you would limit your eavesdropping only to foreign conversations -- in other words, Al Qaida communicating from Algeria -- I'm making it up -- or from France or Germany, wherever, to the United States.
That's the assertion. It's only emanating from a foreign country, correct?
GONZALES: Yes, sir: authorization of the program I'm talking about.
BIDEN: Why limit it to that?
GONZALES: Well, of course, that's a presidential decision.
And I believe, Senator -- and now I'm purporting to speak for the president, but I believe it's because of trying to balance concerns that might arise that, in fact, the NSA was engaged in electronic surveillance with respect to domestic calls.
And so there was a decision made that this is the appropriate balance.
There may be some in America -- I suspect there are some in America who are saying, "Well, why aren't you -- you know, if you've got reason to believe that you've got two members of Al Qaida talking to each in America, my God, why aren't you listening to their conversations?"
Again, this was a judgment made that this was the right balance between the security of our country and protecting the privacy interests of Americans.
BIDEN: Well, the president said he'd do everything under the law to prevent another 9/11. The communications that occurred within this country, not outside this country, which, in fact, brought about 9/11 would not be captured by the president's efforts here.
BIDEN: Is he refusing to do it for public relations reasons, for purist (ph) reasons or because he thinks he doesn't have the constitutional authority to do it?
GONZALES: I don't believe that it's a question of constitutional authority. That analysis, quite frankly, has not been conducted.
Later in his testimony, Gonzales was asked again by Senator Kyl whether the legality of domestic-domestic surveillance had been analyzed:
KYL: And finally, you noted that this was as interpreted by the NSA professionals.
Now, I thought there were two particularly interesting lines of inquiry. And one was Senator Biden's question about whether or not, if this program is really necessary, we shouldn't try to evaluate whether it should also be applied to calls from Al Qaida terrorist A to Al Qaida terrorist B, although they happen to be in the United States.
And it was my understanding you said that the analysis of that had not been conducted. Is that correct?
GONZALES: The legal analysis as to whether or not that kind of surveillance -- we haven't done that kind of analysis, because, of course, the president -- that's not what the president has authorized.
Thus, despite the fact that word parsing and narrow definition of TSP may have has allowed Gonzales to dance around perjury in discussing the controversial aspect of the NSA program, Gonzales is on the record saying that no legal analysis of purely domestic surveillance has been done. So what was the March 2004 controversy about?
I and others, such as Glen Greenwald at Salon, have argued that purely domestic surveillance is almost certainly the source of the March 2004 controversy. Jack Goldsmith, Patrick Philbin, James Comey raised questions about the legality of some aspect of the NSA-surveillance programs. That Comey was prepared to resign along with the FBI director, Robert Mueller, suggests domestic surveillance was the issue. There is no question that Gonzales knew Comey’s legal analysis and stance. As such, denial that the legal analysis of domestic-domestic surveillance had been done at the DOJ may be a lie.
Unfortunately, Arlen Specter blocked Leahy and Feingold’s requests to have Gonzales sworn-in at this 2/6/07 SJC hearing. Nonetheless, there is certainly clear intent to mislead congress, and if shown to be a lie, then Gonzales' testimony at that time is certainly contempt of congress. The Senate thus has options (contempt of congress) besides perjury to initiate proceedings against Gonzales.
Summary:
Regardless of Gonzales’ perjury issues, the most important question is what was the program that nearly caused the resignations of several high-ranking members of the administration in March, 2004. To her credit, Ruth Marcus did emphasize this point in her closing, but I wish she would have considered more examples of Gonzales' apparent lies. I have presented one Gonzales statement that is likely perjurous. I am sure others poring over his prior testimony can cite other examples. By focusing on one example and pointing out how careful a word-dancer Gonzales has been, Marcus gives ammunition to the Bush Administration to spin Gonzales' defense. Regardless, I believe that the Senate is fully prepared to investigate this question, and assigning a special prosecutor to investigate Gonzales’ perjury is a legitimate starting point.
Final Note: Jack Goldsmith is scheduled to testify before the SJC on Thursday, 8/2/07. I am unsure whether his testimony will be public, but he is certain to have insight into the nature of the March 10, 2004 dispute.