Note: Please see litigatormom's excellent diary from last night, also on the new Gonzales letter. I hope you will indulge this parallel but different analysis spurred by the same source. Whereas litigatormom highlights the collusion between McConnell and Gonzales and analyzes Specter's Role as a collaborator in Gonzales ambiguation, this diary focuses on the next step in investigating the Gonzales perjury, and more importantly, in the cover-up. Cover-ups are meant to hide illegal activity.
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The cover-up of illegal activity is manifest as follows:
- Selective disclosure of a small, non-controversial portion of the NSA-driven Surveillance Program
- Naming a selected, noncontroversial portion of the NSA-driven Surveillance Program as the “Terrorist Surveillance Program”
- Applying the TSP terminology reatroactively to artificially segregate this selective portion of the broader NSA-driven Surveillance Program.
- Testifying, briefing, or otherwise speaking publicly to suggest that the TSP encompassed all of the NSA-driven Surveillance Program.
- Refusing to acknowledge the controversial (and probably illegal) aspects of the program as a part of the original, single NSA-driven Surveillance Program, by repeatedly referencing the TSP.
Picture for Disambiguation:
(for the point of humor in this grim tale, the NSA-driven Surveillance Program in the graph is named "The Program That Shall not Be Named"; H/T Major Danby and kyril)
Pink + Black, pre-March 2004 = The Program That Shall not Be Named
Pink+Blue= The TSP portion of the The Program That Shall not Be Named that the Bush Administration wants you to focus on. Pink is before and Blue is after this narrow portion declassified and leaked.
Black + Grey= the Controversial portion of The Program That Shall not Be Named before (Black) and After (Grey) March 2004 showdown.
Red= Period of time after Comey Challenge when Program continued without DOJ approval (Comey Testimony).
White= Program suspension period described in Risen and Lichtblau article.
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Analysis:
This Cover-up has now been exposed.
Now it is time for action.
The First Step: Investigating Gonzales' Perjury:
I believe the best case for perjury will be Gonzales Denial that legal analysis of purely Domestic Surveillance has been done. In Gonzales’s testimony before the SJC on 2/6/06, 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 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. This possibly was alos raised yesterday in An article by Dan Eggen of the Washington Post, which outlined the concept that the selectively declassified TSP was but a small part of the broader NSA program. Jack Goldsmith, Patrick Philbin, and James Comey all 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, appears to be lying to Congress, a crime.
The Senators calling for a perjury Special Prosecutor include Schumer and 3 members of the Senate Select Committee on Intelligence. Schumer is intricately familiar with Comey's testimony, and Feinstein, Feingold, and Whitehouse, who have presumably been breifed into the entire NSA-driven Surveillance Program. I believe they know the extent of the Program and that "Legal Analysis of Domestic Surveillance" will be the grounds for a perjury count. There may be others as well.
The End-Game: Exposing the Illegal Activities that Initiated the Cover-up
In the end, I do not believe Gonzales should be the only target of this inquiry. He was not alone in engineering the original illegal activity or the cover-up. The Gonzales perjury inquiry will allow HJC, SJC, or a Special Prosecutor to call any witness who has knowledge of the NSA-driven Surveillance Program to ask these questions:
"Are you aware of any inappropriate use of any 'Surveillance Program*'"?
*"Surveillance Program" shall include any surveillance activity performed by this administration that is not subject to judicial oversight. This includes either the controversial activities at issue in March 2004 or the TSP.
The list of people who may have knowledge of these issues includes those who were prepared to resign around March 10, 2004:
James Comey
Jack Goldsmith
Patrick Philbin
Chuck Rosenberg
Daniel Levin
James Baker
David Ayres
David Israelite
Robert Mueller
John Ashcroft should also be subpoenaed.
Finding that the NSA program was used for any political puposes should complete the picture of this scandal being "Watergate Redux", complete with:
Shallow-Throat (the original NSA Program Leaker)
Illegality (Domestic Wiretapping)
Modified Limited Hang Out (TSP)
Cover-up (TSP and Gonzales)
Zeigler-like Press Secretary (*If Snow knew nothing about the Cover-up)
A paranoid President (Cheney)
Principled Administration Members (Comey and Mueller)
Informed "Press" (Risen and Lichtblau, TPM, Greenwald, and diarists at DKos)
Update:
litigatormom has sourced Gonzales' written corrections to his testimony.
Gonzales addresses his claims about domestic legal analysis by characterizing his answer as applying only to the TSP, whereas the questions by Kyl and Biden were unequivocally broad-based when asked. IANAL, but in my opinion he cannot change the intent of the questioner. His redefinition of his answer is unacceptable. He was clearly misleading at best, and lying at worst to cover up his perjury.
Further his written clarification on the question is a nonresponse. At a minimum, the nonresponse almost certainly confirms the suspicion that legal analysis of purely domestic wiretapping was the source of controversy. This should be explored further, as I believe it is a strong indicator of perjury.
I would welcome any real lawyers to weigh in on the issue.
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