Deep at the bottom of the present-day DOJ scandals lies a hidden secret.
I suspect many of our Senators know the details, and I suspect that this secret explains a lot about the chess-game playing out over the past year and a half.
The investigations into the Prosecutor Purge scandal have all along been about more than firing US Attorneys. At the hidden core of the investigations has been an opportunity to explore the most significant illegality and cover-up our country has seen since Watergate.
The most critical development in the Prosecutor Purge saga has been the call for a Special Prosecutor. It is no coincidence that the 4 Senators calling for a Special Prosecutor are Schumer, Whitehouse, Feingold, and Feinstein.
Follow me below the fold:
In December 2005, The New York Times reported on massive, wide scale warrantless surveillance programs conducted by the NSA. Certainly, surveillance of enemy foreigners on foreign lands is a right and responsibility of waging war.
However, these programs included surveillance of Americans when they communicated abroad with suspected terrorists. The surveillance was initiated without warrant, and usurpation of prevailing law, the Foreign Intelligence Security Act (FISA), was justified by a secret and controversial interpretation of the 9/14/01 Authorization to Use Military Force (AUMF). Indeed, since the Nixon abuses of wiretapping in the 1970s, surveillance of Americans on American soil has required a warrant. This involves judicial oversight of the executive decisions.
In September 2001, The Bush Administration suspended this requirement.
What is more important, it appears that warrantless surveillance of American Citizens, communicating purely within the United States, was also undertaken by the Bush Administration. While there is no direct confirmation of this executive usurpation of established law, recent testimony obtained in the Prosecutor Purge investigation allows an interested observer to connect the dots.
Below is the timeline for my reasoned speculation:
There was ONE and ONLY ONE NSA Surveillance Program
It was authorized shortly after 9/11, and included warrantless wiretapping of foreign-foreign, foreign-domestic, and domestic-domestic communications. (See below, and Yesterday's Diary)
It was solely within the executive, and the legal justification for circumventing FISA law was a loose reading of the Authorization to Use Military Force (AUMF).
AUMF justification
It was subject to internal review every 45 days.
Comey Testimony
It persisted unchecked until early 2004, when its legal justification was assessed.
Patrick Philbin and James Comey objected to the Domestic-Domestic portion of the program.
Comey Testimony
Comey shared his concerns with Ashcroft, who agreed that there was no legal basis for at least the domestic-domestic surveillance conducted under the program, and was prepared to back him up.
Comey Testimony
In early March, 2004, Ashcroft became seriously ill, and Comey became acting AG.
The NSA program was due for reauthorization on 3/11/04.
Comey Testimony
Comey expressed resistance to reauthorization.
Comey Testimony
On 3/10/04, Gonzales and Card attempted to extract reauthorization signature from the critically ill Ashcroft, who had relinquished his Attorney Generalship to Comey.
Comey Testimony
Comey and FBI Director Mueller, along with Janet Ashcroft, General Ashcroft’s Chief of Staff and Ashcroft himself, thwarted Gonzales’ and Card’s plan to get approval from the ill and sedated Ashcroft.
Comey Testimony
On 3/11/04 the program was reauthorized without DOJ approval.
Comey Testimony
Comey, Mueller, and several other high-ranking administration officials (possibly including Ashcroft) were prepared to resign over the incident. The objection of these officials almost certainly concerned warrantless domestic-domestic surveillance by the NSA.
Comey Testimony, Mueller Testimony
On 3/11/04, the President met with Comey and assured him that the program would be changed to respond to his objections.
Comey Testimony
At some point after this episode, the program was suspended temporarily.
NY Times Article
Fast Forward to 12/05
On 12/16/05, James Risen and Eric Lichtblau reporting for the NY Times, disclosed that "President Bush secretly authorized the National Security Agency to eavesdrop on Americans and others inside the United States to search for evidence of terrorist activity without the court-approved warrants ordinarily required for domestic spying, according to government officials."
NY Times Article
On 12/19/05, Attorney General Alberto Gonzales acknowledges warrantless monitoring of Foreign-Domestic communication, which was later confirmed by President Bush.
Gonzales Press Conference
On 1/19/06, a DOJ white paper on the NSA activities "described by the President" outlines legal authority for foreign-domestic warrantless surveillance.
U.S. Department of Justice White Paper
On 1/27/06, A DOJ "Fact Sheet" first uses the term, Terrorist Surveillance Program ("TSP"), to describe the portion of the NSA program dealing with Foreign-Domestic communications. It is the only program that is ever acknowledged by the Administration. All White papers, argumentative legal analysis, press releases/conferences and most testimony by current administration personnel adhere to this narrowly defined program.
Fact Sheet
On 2/6/06, Gonzales testifies in front of the SJC that the "TSP" involves only Foreign-Domestic Communication, was authorized by the President, and was not controversial. He refuses to answer questions about whether there was monitoring of domestic-domestic communication.
In a strange showdown at the start of the hearing, Patrick Leahy and Russ Feingold insist on Gonzales being sworn in, but then SJC chairman, Arlen Specter refuses the demands.
During this testimony, Chuck Schumer asks several questions about the 2004 dissent of James Comey.
Feingold and Feinstein (also members of the Senate Select Committee on Intelligence), ask the most pointed questions over the legality of the program and intimate that Gonzales may not be fully candid. Interestingly, they ask no questions about domestic-domestic surveillance.
Senators Biden and Kohl ask questions about domestic-domestic surveillance. They are not also members the Senate Select Committee on Intelligence.
2/6/06 SJC Hearing
Fast Forward to 12/7/06
7 US Attorneys are fired en masse. The Prosecutor Purge investigations begin.
Excellent TPM Coverage
On 5/15/07, James Comey testifies about the 3/10/04 hospital visit and acknowledges that he had concerns that a portion of the NSA surveillance program was without legal basis, and he refused to reauthorize the program. Based on the Gonzales/Card visit and Program reauthorization without AG signature, he states he was prepared to resign.
Comey Testimony
On 7/24/07, Gonzales testifies before SJC under oath, and despite questions that indicate several Senators know the full extent of NSA surveillance programs, Gonzales adheres to the narrowly defined TSP, and seems to contradict the testimony of James Comey.
Excellent TPM Coverage
On 7/26/07, FBI director Robert Mueller testifies before the HJC and acknowledges that the 3/10/04 confrontation was about the National Security Agency’s counterterrorist eavesdropping program, describing it as "an N.S.A. program that has been much discussed." Asked whether he was referring to the Terrorist Surveillance Program, or T.S.P., he replied, "The discussion was on a national N.S.A. program that has been much discussed, yes." He never used the words TSP or terrorist surveillance program, but made it clear that the controversy was over the NSA program.
Mueller Testimony
Analysis:
In the end, I think there was no "TSP" until it was defined out of necessity on 1/27/06; The Administration was compelled to address the NSA leak, so split the all-encompassing NSA program into TSP and all else, and issued marching orders to everyone in the administration "in the know" that the TSP would be the only part of the NSA program acknowledged, discussed and analyzed. This was a cover-up.
Comey, et al were likely objecting to the single existing "NSA program" that almost certainly included domestic-domestic and foreign-domestic (later known as the TSP) surveillance, bundled together into a single authorization package. I argue that Comey, et al. would not consider resigning over anything less egregiously unlawful than domestic-domestic warrantless surveillance.
The Bush Administration (Including Gonzales) has refused to answer questions about other (controversial) aspects of the NSA warrantless wiretap program as it existed in March 2004 under the grounds of mission-critical secrecy. The secrecy however is almost certainly to cover-up the controversial portion of the program that existed prior to Comey’s issues with it.
Mueller did not use the TSP terminology because he knows the "TSP" did not exist in 2004- it was a made up term to dissemble the December 2005 leak. Mueller was being honest and refusing to become entangled in the administration ambiguation, knowing full well that "TSP" is an artificial construct in which the administration has invested heavily, but which is not the full truth. He knows the extent of the NSA-surveillance programs and why they were controversial, and is not getting dragged into the cover-up.
More observations on the call for a Special Prosecutor:
On 2/6/06 in Gonzales SJC appearance to discuss NSA surveillance, Schumer raised the issue of Comey’s objection to the program. Schumer needed to wait for the November, 2006 Democratic electoral victory and the Prosecutor Purge scandal to finally have the opportunity to lead Comey through his May 15, 2007 SJC testimony. This was a monumental date.
The other 3 Senators calling for a Special Prosecutor- Whitehouse, Feingold, and Feinstein- are all on the Select Intelligence Committee, and have likely been most fully apprised of the NSA programs (and understand the lies) at this point. Make no mistake: The Special Prosecutor will not be targeting only Gonzales, but also the architects of the NSA surveillance programs and the massive cover-up of probably illegal surveillance of American Citizens, communicating exclusively on American soil.
I suspect the architects of the NSA surveillance program, and those blatantly disregarding law in the "interests of National Security", were Dick Cheney and David Addington. Their analagous views on torture have been documented elsewhere. I will point out that the career of Patrick Philbin, a conscientious objector to the torture and wiretapping intentions of the Administration, was ruined by Cheney and Addington in retribution for his ethical stances. I submit that his name was not mentioned by Comey in his 5/15/07 SJC testimony by accident.
In retrospect, it is easy to see why Alberto Gonzales was the ONLY candidate the Bush administration would ever consider for replacing John Ashcroft. He is at the heart of the cover-up and is now in control of the usual reins of Justice. It is also why Bush is committed to defending him and keeping him as Attorney General. I suspect they will go down together. A Special Prosecutor is the ONLY way to resolve this crisis.
It is tragically ironic that another Republican Administration will become embroiled, and probably destroyed, by illegal "wiretapping" and the idiotic cover-up that they elected to undertake. Many in the Bush Administration were involved in the Nixon administration, and it is obvious they learned nothing.
I don't think it hyperbolic to suggest that you should be prepared to observe massive political fallout in the coming months.