I am going to admit up front that I do not know the answer to the question I am about to ask. But it is a question that needs to be asked and answered, and I welcome any good ideas....
Why was House Majority Leader Tom Delay briefed alone on the NSA-driven surveillance program for the first and only time on March 11, 2004, the day after the Comey-Gonzales Hospital Showdown?
According to James Comey's May 15, 2007 SJC testimony, on Thursday, March 4, 2004, Comey told Ashcroft that the NSA-driven Surveillance Program (which we now know included the spying activities later declassified and named the "Terrorist Surveillance Program", TSP) had no legal basis. The program was due for reauthorization on March 11, 2004, but Ashcroft was prepared to support the legal analysis and refuse to give the required DOJ authorization to the program. Shortly after the conversation with Comey, Ashcroft became severely ill with gallstone pancreatitis, and Comey Became Acting Attorney General.
On March 10, 2004, the "Gang of Eight" was briefed together (for the first time as a group) on the NSA-driven Surveillance Program. It is unclear whether they were told that the James Comey would not sign off on the program as acting Attorney General, nor is it known whether the Gang of Eight knew what the Administration was prepared to do to circumvent Comey's stance. Nonetheless, with Comey as acting AG, the program was not going to be authorized by the DOJ. After the March 10, 2004 Gang of Eight Briefing, Card and Gonzales initiated their infamous Hospital Signature Mission, attempting to get approval for the program from the ill and sedated John Ashcroft. This effort failed.
The failed Hospital Signature Mission was an incredible attempt to end-around the existing governmental hierarchy. Because of the Mission and the attempt to surreptitiously authorize an illegal program, Comey and numerous other high-ranking Bush Administration personnel were prepared to resign. It is not an understatement to suggest that this was a crisis of monumental proportions in our Government.
The day after this crisis, March 11, 2004, Tom Delay was briefed on the NSA-driven Surveillance Program. According to records released by the NSA, Tom DeLay had never been briefed on the program in it's 2 1/2 year history, nor was he briefed again thereafter. Interestingly, unlike any prior congressional briefing on the program, he was briefed alone.
What was Tom DeLay's "need to know" on this program, on March 11, 2004?
In March 2004, Tom Delay was the House Majority Leader, a partisan political position within the House of Representatives. He was not a member of the "Gang of Eight" congressional heavyweights required to be briefed on covert executive action, nor was he a member of the judiciary or intelligence committees.
DeLay's role in the House was that of the enforcer of party discipline; he was an expert at using parliamentary tactics to control the House. He was "The Hammer". Literally, the speaker's hammer in hallowed chambers of Congress is used to command attention, and often to silence the chamber.
There is no indication of who else attended the DeLay Briefing (Cheney, Addington, Gonzales, Card?), nor where it was held (VP office, WHO?).
Was this briefing aimed at suppressing discussion of the program on the House Floor in the event that Comey or others disclosed the Hospital Visit? Was it to get The Hammer on board to "muster the troops" for any fallout from the episode?
I don't know. But I do know that Democrats control HJC and SJC investigations, and Tom Delay may be an important witness to what happened in the aftermath of the Failed Hospital Signature Mission.
The investigations must continue.
Update:
For those suggesting DeLay had a statutory right to be informed about classified Covert operations:
The President of the United States is required by 50 U.S.C. § 413(a)(1) to "ensure that the congressional intelligence committees are kept fully and currently informed of the intelligence activities of the United States." However, the President may elect to report instead to the Gang of Eight when he feels "it is essential to limit access" to information about a covert action.
The Gang of Eight includes:
Speaker of the United States House of Representatives
House Minority Leader
Senate Majority Leader
Senate Minority Leader
Chair of the House Permanent Select Committee on Intelligence
Ranking Member of the House Permanent Select Committee on Intelligence
Chair of the Senate Select Committee on Intelligence
Ranking Member of the Senate Select Committee on Intelligence
All of the Gang of Eight, and just the gang of eight, were briefed, en mass, on March 10, 2004.
Tom Delay was the #2 Republican in the House, not a member of the Gang of Eight. The Speaker (Hastert) was briefed on March 10th as a member of the Gang of Eight, along with his Democratic counterpart, House Minority Leader Nancy Pelosi.
As far as I can tell, there was no statutory or precedential reason for DeLay to have been briefed on the NSA-driven Surveillance Program, and given that he was in a principally Political Position as House Majority Leader, it is reasonable to assume this was another Bush Administration selective declassification for political purposes.
Update #2
I was remiss in not citing excellent analysis on this issue in the first drafts of the diary.
Emptywheel at The Next Hurrah (also here) provides an excellent analysis and timeline of the briefings of the NSA-driven Surveillance Program and its possible predecessor, the Pentagon's "Total Information Awareness (TIA)".
She notes on the congressional briefings:
We know they asked whether it'd be possible to pass legislation to make the program legal, so it's likely they finally included Congressional leadership in the briefings because they wanted legislation passed. Were they trying to legislate a work-around of the Appropriations Act? That might explain why the Gang of 8 told them it wouldn't happen, there was no way Congress would permit the program legislatively.
In the comments below, she notes that DeLay was the "go to" guy if you wanted legislation passed, so if the Gang of Eight had told the Administration that legislation was unlikely, they might have briefed him into the program to get a second opinion.
Emptywheel's analysis is valid and certainly less tinfoilly than my take above. I failed as a blogger to address this prior work before posting my diary, and I apologize to empthywheel and the readers for this error.
My analysis remains a possibility, but in my opinion, emptywheel's is more likely.
Final Thoughts
Interestingly, the Administration knew that the program authorization would expire on March 11, 2004. It is difficult to believe they expected legislation to be passed to legalize the program one day before it expired, but they may have indeed been seeking alternative pathways to keeping the program alive if it was blocked by the DOJ.
Here are a few questions that still remain:
Did they inform the Gang of 8 that the program was about to be blocked? Or that they were going to try to extract a reauthorization signature from the ill Ashcroft? Did the Administration tell them it would keep the program going regardless of DOJ approval or the law?
If the March 10 and 11 briefings were simply to garner legislative support for legalizing the program, it is unclear to me why there were no further briefings for another 11 months thereafter.