Is THIS Why Congress Folded on FISA?!?!?

There’s a DOJ IG report focusing on Alberto Gonzales tomorrow–but it’s not the one we’ve all been anxiously anticipating (the one on the US Attorney firings). Rather, this one arose (I believe) out of the clear evidence that Gonzales discussed classified details about the warrantless wiretap program in front of John Ashcroft’s wife, who was sitting in his ICU hospital room on March 10, 2004 when Gonzales and Andy Card stormed into the room to try to get Ashcroft to sign off on the warrantless wiretap program. From James Comey’s testimony, it appeared that Gonzales may well have divulged details of this program to someone not authorized to hear them, and from that DOJ’s Inspector General investigated whether Gonzales had broken the law when he did so.

But Gonzales’ blabbing in front of Mrs. Ashcroft aren’t the details from the DOJ IG report that got leaked to the WaPo–by all appearances, by Gonzales’ attorney George Terwilliger. Instead, the WaPo focuses on the new revelation that, after January 2005, Gonzales was wandering around DC with notes from the meeting between the Administration and the Gang of Eight that took place on March 10, 2004.

Former attorney general Alberto R. Gonzales improperly handled classified information about some of the government’s most sensitive national security programs, but authorities will not recommend that he face criminal sanctions, according to officials familiar with an investigative report to be released today.


At issue are notes that Gonzales took during a March 2004 meeting between President Bush and congressional leaders in the White House Situation Room, as a program that allowed authorities to secretly monitor communications for evidence of terrorist plots was set to expire.

When Gonzales, then White House counsel, moved to become the Justice Department’s top official in early 2005, he failed to secure the notes in a sensitive compartmentalized facility, the inspector general has concluded. Gonzales kept the notes in a safe in his office and at times took them to and from work in a briefcase — practices that violated protocols for the handling of classified materials, according to people familiar with the report.

In a memo to the inspector general, Gonzales’s advisers characterized the episode as an unintentional mistake and a technical violation of the rules. [my emphasis]

Recall that at that meeting–held after James Comey told the Administration there was no legal basis for the warrantless wiretap program so he couldn’t reapprove it–the Administration asked Congressional leaders whether or not they could pass emergency legislation to legalize the illegal program. The Gang of Eight said no. However, a majority of the members of Congress at the meeting approved going forward with the program in spite of Comey’s concerns about it (Jello Jay, Jane Harman, Nancy Pelosi, Tom Daschle, Pat Roberts, Porter Goss, Denny Hastert, and Bill Frist attended the meeting; of the Democrats, Harman has never denied approving of the program).

Mr. Gonzales said that he and Andrew H. Card Jr., then White House chief of staff, had tried to obtain Mr. Ashcroft’s approval as a last resort, after the lawmakers rejected emergency legislation but recommended that the program should continue despite the Justice Department’s opposition.


Senator John D. Rockefeller IV, who attended the 2004 meeting as the top Democrat on the Senate Intelligence Committee, called Mr. Gonzales’s account “untruthful.” Mr. Rockefeller said he believed Mr. Gonzales was deliberately misleading Congress about the showdown over the N.S.A. program inside the Bush administration.


Other lawmakers who were not at the hearing but who attended the meeting on March 10, 2004 at the White House, also challenged Mr. Gonzales’s account. Mr. Rockefeller and Representative Jane Harman of California, who in 2004 was the top Democrat on the House Intelligence Committee, insisted that there was only one N.S.A. program, making Mr. Gonzales’s assertions inaccurate.

“The program had different parts, but there was only one program,” Ms. Harman said, adding that Mr. Gonzales was “selectively declassifying information to defend his own conduct,” which she called improper.

But another member of the Gang of Eight — the Republican and Democratic leaders of the Senate and House and of the two Intelligence Committees _— supported Mr. Gonzales’s version. Speaking on condition of anonymity, he confirmed the attorney general’s testimony that the group reached a “consensus” that the disputed intelligence activity should continue and that passing emergency legislation would risk revealing secrets.

Speaker Nancy Pelosi of California, who attended the 2004 White House meeting as House Democratic minority leader, said through a spokesman that she did not dispute that the majority of those present supported continuing the intelligence activity. But Ms. Pelosi said she dissented and supported Mr. Comey’s objections at the meeting, said the spokesman, Brendan Daly.

In other words, this was the meeting at which at least five members of Congress–at least one Democrat–agreed that the Administration should continue illegally wiretapping American citizens even after DOJ’s own lawyers warned against doing so. There are disputes about what went on in that meeting. And Alberto Gonzales, sometime after he became Attorney General in 2005, repeatedly took his notes of that meeting out of his safe at DOJ and wandered around DC with them in his briefcase. No word where he went with that briefcase or whom he spoke to.

I have long maintained that that meeting–at which a bunch of members of Congress became complicit in the Administration’s illegal wiretapping program–was the big reason why Congress rallied to give the Administration precisely what it wanted in a reformed FISA bill. And now we learn–in an article that appears to be transparently designed to preemptively get news of Gonzales’ improper treatment of those notes out in the open, in which the only quoted source is Gonzales’ own attorney–that Alberto Gonzales repeatedly took proof of his version of what went down in that meeting out of DOJ.

It sure does raise questions about what he did with those notes, doesn’t it? 

Update: If there’s any doubt that this story is a preemptive leak from Gonzales’ camp, here’s the AP story, which doesn’t even go to the trouble of calling Fine for his no comment.

The story reveals that Bush asked Gonzales to take these notes.

Gonzales took the notes of the meeting at Bush’s request, 

And that he was warned against storing the notes in that particular safe–to which Terwilliger responded that there was no evidence he willfully ignored that advice. 

He apparently was advised that his office safe was not proper storage for the notes or other highly classified material, the memo shows. However, there’s no proof that Gonzales intentionally defied that guidance, the memo states, arguing he acted "without conscious disregard" for the rules.

Apparently he just, um, forgot.

Most stunning, though, is Terwilliger’s legally false claim that Comey was intruding on a high level executive conversation when he showed at the hospital room.

The memo also takes a shot a Comey, who in Senate testimony last year described the hospital visit as an attempt by Gonzales and then-White House Chief of Staff Andy Card "to take advantage of a very sick man."

In the memo, Terwilliger calls such criticism "demonstrably hyper-inflated rhetoric without basis in fact." He says during the hospital visit Comey was "seeking to interpose himself between the president and a high-level official communication to his attorney general on a vital matter of national security."

As Ashcroft himself pointed out in the hospital, Comey was the AG at this point, not Ashcroft. 

You think it’s any indication of how much danger Gonzales is in that Terwilliger is being this aggressive in responding?

  1. Rayne says:

    Blackmail. Got to love it.

    Sure wish there was some way to crack open Rockefeller, particularly since he felt compelled to pen a note dd. 17-JUL-03 to Deadeye documenting his objections to NSA wiretapping.

    Makes me wonder what other documents were in Gonzales’ briefcase in March of 2004 and in 2005.

      • Rayne says:

        I don’t see any indication in the article as to when he took them out of his briefcase or personal control and entered them into an appropriate “sensitive compartmentalized facility” (whatever that actually means). Did he not turn them over until he quit in August 2007?

        And what other documents might not be in a “sensitive compartmentalized facility”, carried around as leverage?

        • FormerFed says:

          Rayne, a SCIF is a specially constructed facility for the storage and use of SCI material. Normally they are relatively small in size but are extremely well protected. Completely shielded and secure, they are as close to impenetrable as can be constructed. At least they used to be, I am not current on this subject.

  2. bmaz says:

    Yeah; raises questions about where exactly the false statements (no reason to specify, pick whichever set you like) charges are against Gonzales too. Jeebus. This group makes sausage making look pretty and artful.

  3. emptywheel says:

    Yeah, you knmow I frequently say that false statements against GOodling, Sampson, and Elston wouldn’t be that easy to prove.

    But if AGAG gets off with no false statements charges, either Terwilliger is superhuman or this thing was fixed.

  4. yellowdog jim says:

    speaking of the fix being in:
    Justice criticize colleagues’ handling of DeLay opinion

    In her dissent, Henson disagreed with her colleagues’ reasoning. She wrote that the panel “oversteps the boundaries of this Court’s authority” in deciding a pretrial matter. She said the justices should have decided the constitutionality of the law — on its face — and not delved into the check-versus-cash argument that was not before them. She dismissed it as an “advisory opinion.”

    Henson rebutted the panel’s conclusion that the law covered cash but not checks in 2002. The law said that “funds” includes cash, without mentioning checks.

    “There is no ambiguity in the legislature’s use of ‘includes’ in the definition of ‘funds.’ By defining ‘funds’ to ‘include’ cash, the legislature plainly did not define ‘funds’ to mean only cash,” Henson wrote.

    Republican judges intervening activist-like?
    “Funds ain’t checks”?

    (sound of me screaming)

    • bmaz says:

      Yeah, I dunno that that is snark. Gonzales is the weak link in the upper echelon of the cabal. Always has been. His only connection is to Bush, who values loyalty to himself, but doesn’t always give it to others. The rest of them would burn Gonzales in a heartbeat without blinking. If I was Gonzales, I would have made some copies as protection. I keep wanting him prosecuted, because I think he will roll if he senses he is going down; in fact, I would place huge bets on it. For this reason, I don’t think Bush would ever let him get so much as indicted before pardoning him; but that would create another clusterfuck. Putting Gonzo in the defendant’s chair is, and always has been, the easiest way to wreak havoc. Just need someone, anyone, to do it.

      • prostratedragon says:

        I think he will roll if he senses he is going down; in fact, I would place huge bets on it.

        If that is his lawyer leaking, then he’s trying to show somebody that he’s stepping back with his shoulders turned already.

        Oh it’s a long, long while from May to December,
        But the days grow short when you reach September …

        Durante, if you’ve got a moment.

      • Quzi says:

        I keep wanting him prosecuted, because I think he will roll if he senses he is going down; in fact, I would place huge bets on it. For this reason, I don’t think Bush would ever let him get so much as indicted before pardoning him; but that would create another clusterfuck.

        I have the same dream

  5. FormerFed says:

    If I had ever put a piece of SCI material in my briefcase and taken it out of a SCIF, I would have been terminated and probably jailed. This material is only to be taken out of a SCIF by a designated courier (I believe to be armed, but I may be wrong on that).

    The casualness and careless way that the Bushies handle classified info is ridiculous. Of course, they don’t have to follow the rules – those rules are only for the peons.

  6. TexasEllen says:

    Part of the reason that the Bush/Cheney administration went sailing off the rails is that neither of them had any background in the law, chose crony lawyers with few credentials to run amok, and demonstrated abject ignorance/contempt for the Constitution. McCain/Palin also suffers that deficit.

    If you’re gonna swear to uphold the law and the Constitution, it really helps if you know what that is.

    • sailmaker says:

      Where does Addington fit? IMO he knows the Constitution, but is smart/stupid enough to use it bully and cajole everyone else into doing what he wants, which is the unitary executive, read dictator without the uniform. IMO he gave uncurious George ‘just a goddam piece of paper’, while he gave Cheney the ‘if the president does it, it is legal’, and so on. Bottom line IMO, the Constitution only works if those in power want it to work.

    • selise says:

      If you’re gonna swear to uphold the law and the Constitution, it really helps if you know what that is.

      the problem with this statement is that everyone from david addington to barak obama are counter examples.

      imo, the issue is not only about knowing the law and the constitution, it’s about accountability and checks and balances – and what happens when we don’t done have any.

  7. plunger says:

    It really is time to focus on the Blackmail. It is rampant within this administration, and serves to explain the otherwise inexplicable. When people make decisions known by you to be against their nature, assume blackmail first.

    Every conversation is tapped, and not just by the NSA, but by foreign intelligence agencies. This includes the conversations of Senators, Congressmen, the entire Administrative branch, Justice – EVERYONE. The entire system is fully compromised, and as a result, this nation has been totally infiltrated, and compromised.

    Blackmail is in fact RAMPANT. I’m not speculating. It is a fact.

    These idiots fancied themselves above the law, and therefore did things that put themselves and our nation’s security at risk.

    District of Columbia blackmail statute. D.C. Code § 22-3852 provides that:

    a) A person commits the offense of blackmail, if, with intent to obtain property of another or to cause another to do or refrain from doing any act, that person threatens:

    1) To accuse any person of a crime;

    2) To expose a secret or publicize an asserted fact, whether true or false, tending to subject any person to hatred, contempt, or ridicule; or

    3) To impair the reputation of any person, including a deceased person.

    When men of low moral character are elected to high public office, BLACKMAIL is the eventual result.

    It turns out that Israel has had a potential wiretap on every phone in America for years, along with the ability to monitor and record who any person is calling, anywhere in America; information of great value even if one does not listen to the calls themselves. Amdocs, Inc., the company which subcontracts billing and directory services for phone companies around the world, including 90 percent of American phone companies, is owned by Israeli interests. Yet another company, Comverse Infosys, is suspected of having built a “back door” into the equipment permanently installed into the phone system that allows instant eavesdropping by law enforcement agencies on any phone in America. This includes yours.

    Israeli Sexpionage : The McGreevey, Condit and Clinton Affairs

    So who’s really in charge of US Foreign policy? Remember the poker parties with hookers? GOT BLACKMAIL?

  8. plunger says:

    “At Church one day [Tom DeLay, House Majority Leader] listened as the pastor declared that ‘the war between America and Iraq is the gateway to the Apocalypse.’ DeLay rose to speak, not only to the congregation but to 225 Christian TV and radio stations. ‘Ladies and gentlemen,’ he said, ‘what has been spoken here tonight is the truth of God.’”

    Secretary of State Rice’s response to the disaster in New Orleans was: “The Lord Jesus Christ is going to come on time.” She added: “If we just wait.” “On time”? How does Rice know the exact time Armageddon starts? “If we just wait”? That means in her, that is our, lifetime!

    “The Crazies” as Colin Powell referred to the Neo-Zionists, have won – and he personally enabled it.

    “President Bush said to all of us: ‘I’m driven with a mission from God. ‘God would tell me, ‘George, go and fight those terrorists in Afghanistan’.” “And I did, and then God would tell me, ‘George, go and end the tyranny in Iraq…’ And I did.


  9. plunger says:

    The license to install antennas for cellular and wireless telephones in House office buildings was awarded in 2002 to MobileAccess, formerly known as Foxcom Wireless, which was based in Israel.

    House Suspends Hill Telecom License
    Va. Firm’s Award Linked to Abramoff

    By James V. Grimaldi
    Washington Post Staff Writer
    Thursday, September 28, 2006; Page D03

    House leaders have suspended a multimillion-dollar wireless communications license that federal prosecutors say was corruptly awarded to a Dulles telecommunications firm by Rep. Robert W. Ney (R-Ohio) in exchange for gifts from lobbyist Jack Abramoff.

    The award of the license was one of a series of acts that Ney said he performed for Abramoff in exchange for campaign contributions, expensive meals, luxury travel and sports tickets. Ney agreed this month to plead guilty to corruption charges and is set to enter his plea Oct. 13.

    The license to install antennas for cellular and wireless telephones in House office buildings was awarded in 2002 to MobileAccess, formerly known as Foxcom Wireless, which was based in Israel. The company, now based in Vienna, Va., later paid Abramoff $280,000 in lobbying fees and donated $50,000 to a charity operated by Abramoff that paid for a golf junket to Scotland for Ney.

    Rep. Zoe Lofgren (D-Calif.) said the license “has been suspended pending review,” which could affect the wireless contract for the congressional visitors center now under construction.

    “I think a company should not profit from corrupt actions,” said Lofgren, who is on the House Administration Committee. “Obviously, what happened in awarding the contract was wrong, illegal, corrupt. The question is what role did the company have? Was the company a knowing participant?”

    Salley Collins, a spokeswoman for the committee, said the review was underway but provided no more information. Congressional sources who spoke on condition on anonymity because the issue is under consideration said a review was prompted by the Abramoff corruption investigation.

    MobileAccess employees “have cooperated fully in the investigation,” said MobileAccess attorney Douglas A. Fellman, of Hogan & Hartson. “There has never been a suggestion of wrongdoing or improper conduct on the part of MobileAccess or its personnel, and after a very thorough investigation, that continues to be the case.”

    Abramoff and Neil G. Volz, who went to work for Abramoff as a lobbyist after serving as Ney’s top aide, admitted in plea agreements this year that the wireless license was a favor for Abramoff in exchange for gifts.

    Prosecutors said in charging papers that Ney took a variety of official actions for Foxcom, “including meeting with representatives of the client on or about May 10, 2001, leaking to Abramoff a copy of a letter from the client’s competitor complaining about the selection process in or about September 2002, and issuing a license to Abramoff’s client.”

    “Given that it is public record that the House wireless job was awarded to Foxcom/MobileAccess due to Jack Abramoff’s improper influence, and MobileAccess has subsequently been the recipient of follow-on business on the Hill in large part due to that initial award, we feel that it is appropriate that the license be reviewed,” LGC spokesman John Spindler said. “Only in this way can competitiveness and fairness in any future government awards be ensured.”…..01859.html

  10. Quzi says:

    a technical violation of the rules = breaking the law

    More incompetency and law breaking by our ex-AG…

    And what other documents might not be in a “sensitive compartmentalized facility”, carried around as leverage?

    Very good question Rayne.

  11. wavpeac says:

    I have fought in my mind, conspiracy theories, despite the emotional and intuitive ”feeling” that things are more messed up than the facts show us.

    Watching the tape of Amy Goodman being arrested, was such an important reminder of the capabilities of those in power. We don’t have all the facts, but current facts about this administrations behaviors, proven behaviors (pre-eminate war with Iraq based on faulty intel, torturing people with inhumane methods without a trial, torturing of innocent people who were mistakenly identified as dangerous, violating our 4th ammendment rights, changing laws in retrospect to legalize violations of the laws at the time, the absolute neglect of the poverty stricken and hurricane wounded during Katrina that resulted in the deaths of innocent human beings and pets, an increase in opium production in afghanistan only after u.s presence, a strengthening of the Taliban since the arrival of the u.s in afghanistan, and the outing of a covert spy that leads straight back to the most powerful individuals of the bush administration) suggests that this adminsistration is capable of almost anything.

    This list contains the truth. It’s not made up hyperbole. It’s the reality of this administration. Given these truths, what behavior is beyond them? What behavior could you safely state ”they wouldn’t do that”?

    I can’t think of anything.

  12. Rayne says:

    There is no line which they will not cross. The bottleneck to stopping this is the continued cognitive dissonance on the part of the American public; they hide behind their own mental illusion of American exceptionalism, telling themselves, “It can’t happen here! They wouldn’t do that! They’re Americans, we’re Americans!”

    But they would, they have, and very little separates them from the Chinese or the Russians at this point if you look at the handling of political dissent outside the RNC Convention, let alone the Iraq and Afghanistan occupations/wars and torture. We have no moral authority, no limits to our lawlessness and the vast majority of Americans are still clueless about this.

    In a very real way, Palin’s selection for the veep slot is only another manifestation of the problem; everything damaging about her has been rationalized away, in the same way that we’ve rationalized away everything that’s screaming of fascism.

  13. BayStateLibrul says:

    McCain should have selected Bobby Jindal…

    Boy, is he a fast-talker.
    It was refreshing to listen to his briefing.
    Sarah is a game-ender, not a game changer.

  14. rincewind says:

    From the WaPo article:

    March 2004 meeting between President Bush and congressional leaders in the White House Situation Room

    Is this “new” news — did we know for sure that Bush himself was in the Mar 10 meeting?

    And as drational points out @16, we can’t forget about Not-Gang-of-Eight-Delay’s briefing on Mar 11 — in fact, I still think Delay is how they got to a nominal “majority” (not to let Harman off the hook, but….)

    • emptywheel says:

      I’m fairly certain they didn’t need Delay to get to a majority. If Harman had opposed it, she would have said so (and frankly, Jello Jay has never strongly said he opposed going forward–only Pelosi and Daschle).

      But I think you’re right–this suggests Bush was in the meeting (and that Cheney may not have been). I’d wait until we see Terwilliger’s letter directly to make anything of that (sometimes it’s easy to confuse Cheney’s presence for Bush’s). But that is intersting.

  15. klynn says:

    However, there’s no proof that Gonzales intentionally defied that guidance, the memo states, arguing he acted “without conscious disregard” for the rules.

    I wonder, if any of us can use that line “acted without conscious disregard,” the next time we might find ourselves pulled over for a traffic ticket or failing to pay taxes?

  16. Leen says:

    thanks EW.

    Really like to think about the moment Mrs. Ashcroft stuck out her tongue as Ashcroft and Card left the hospital room with their tails between their legs.

    “Suddenly, Gonzales and Card came in the room and announced that they were there in connection with the classified program. “Ashcroft, who looked like he was near death, sort of puffed up his chest,” Goldsmith recalls. “All of a sudden, energy and color came into his face, and he said that he didn’t appreciate them coming to visit him under those circumstances, that he had concerns about the matter they were asking about and that, in any event, he wasn’t the attorney general at the moment; Jim Comey was. He actually gave a two-minute speech, and I was sure at the end of it he was going to die. It was the most amazing scene I’ve ever witnessed.”

    After a bit of silence, Goldsmith told me, Gonzales thanked Ashcroft, and he and Card walked out of the room. “At that moment,” Goldsmith recalled, “Mrs. Ashcroft, who obviously couldn’t believe what she saw happening to her sick husband, looked at Gonzales and Card as they walked out of the room and stuck her tongue out at them. She had no idea what we were discussing, but this sweet-looking woman sticking out her tongue was the ultimate expression of disapproval. It captured the feeling in the room perfectly.”


    So if this is true Pelosi was concerned about the legality of the program. What a position to be in when you can not talk about the classified issues. What is the procedure if a Senator or Congress person becomes deeply concerned about the legality of the program, yet can not talk about it. How do they object within the process?

    Comey made me believe in our system just a bit during his testimony.

  17. danps says:

    Hi Marcy. What purpose does it serve Gonzales to leak that he illegaly transported classified documents? To make others think he could have made copies & has the goods on them? It seems like you could demolish that argument pretty quickly since he could have doctored them or swapped out an entirely different set of notes in to the dossier. The fact that they left the building means nothing in them has the slightest credibilty right?

  18. orionATL says:

    to me, this is a very murky story so far.

    some questions come to mind:

    1) the first thing that comes to mind when someone keeps important docs close to their person is that these docs are viewed as extremely important to that individual –

    kind of like not leaving your winning lottery ticket lying on your bureau when you go to work the next morning.

    were these docs protection for gonzales?

    2) might gonzales have acted out of loyalty to bush (keeping the info very close to home) or out of an attorney’s sense of obligation to a client (the prez)?

    3)how can a white house and an admin that has been so cavalier about proper handling of classified docs suddenly become so concerned about what seems a rather trivial violation by a very high level admin official – so doing does suggest that gonzales was being pushed out, maybe framed.

    but why? just to get rid of him?

    and why did gonzales so adamantly refuse to resign as AG for so long?

    something’s missing from this picture.