Rationalizing the Hospital Visit

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As promised, I wanted to say a few more things about Murray Waas’ articles from yesterday. Murray reports two new details that weren’t in the IG report on Gonzales’ notes or in Barton Gellman’s reporting on the events of March 10, 2004. His first story adds to Gellman’s earlier report that George Bush was the one who called John Ashcroft’s hospital room to alert Mrs. Ashcroft that Gonzales and Andy Card were coming; Murray notes that Gonzales "recently" told federal investigators that Bush was the one who sent him to the hospital. Murray’s second story reveals that DOJ investigators are trying to determine whether, on Bush’s orders, Gonzales created a false record of the March 10, 2004 briefing of the Gang of Eight to justify Bush’s reauthorization of the warrantless wiretap program after Comey and Ashcroft refused to reauthorize it.

The Justice Department is investigating whether former Attorney General Alberto Gonzales created a set of fictitious notes so that President Bush would have a rationale for reauthorizing his warrantless eavesdropping program, according to sources close to the investigation.

[snip]

In reauthorizing the surveillance program over the objections of his own Justice Department, President Bush later claimed to have relied on notes made by Gonzales about a meeting that had taken place the day before (March 10), in which Gonzales and Vice President Cheney had met with eight congressional leaders—also known as the “Gang of Eight”—who receive briefings about covert intelligence programs. According to Gonzales’s notes, the congressional leaders had said in the meeting that they wanted the surveillance program to continue despite the attorney general’s refusal to certify that it was legal.

But four of the congressional leaders present at the meeting say that’s not true; they never encouraged the White House to sidestep the objections of the attorney general and continue the program without his approval.

I have no doubt that Gonzales fictionalized his notes so as to invent a rationale for reauthorizing the program in spite of Comey’s disapproval. But I think something else is going on, as well–a desire to invent a rationale for Gonzales and Card’s March 10 hospital visit itself. Read more →

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The March 10, 2004 Hospital Confrontation, A Timeline

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I’ve had this timeline mostly done sitting in my drafts. Given Murray Waas’ two latest articles, I thought I’d put it out.

One reason I’m posting this today: if Gonzales’ claim that he probably wrote his notes during the weekend immediately after the Hospital confrontation is correct, it suggests he didn’t take his notes until after Bush learned Comey and Mueller might resign. Also, he wrote his notes of the Gang of Eight meeting after Mueller had already first saved his notes on the confrontation.

This timeline is a combination of this timeline of Robert Mueller’s notes (which is, IMVHO, one of my better timelines, so click through and read it for more analysis), this timeline of the OLC opinions pertaining to the program from the time period, details from Comey’s testimony before SJC, as well as other known events. I will add details from Barton Gellman’s book in the next week.

October 3, 2003: Jack Goldsmith confirmed as head of OLC.

Mid-November 2003: Goldsmith writes draft memo for Ashcroft: Review of Legality of the [NSA] Program

December 11, 2003: Comey confirmed Deputy AG.

Monday, March 1, 2004: Mueller meets with Comey in his office.

Thursday, March 3 or 4: Comey and Ashcroft decide not to reauthorize the warrantless wiretap program.

Thursday, March 4: Ashcroft hospitalized with pancreatitis. Comey becomes Acting AG.

Tuesday, March 9

10:00AM: Mueller meets with top FBI officials–several with counter-terrorism focus, Fedarcyk, Pistole, Caproni (and perhaps Wainstein and Gebhardt).

12:00PM: Meeting at Card’s office, VP, CIA Deputy Director John McLaughlin, NSA Director Michael Hayden, Robert Mueller, Alberto Gonzales and others present. (Note, Mueller does not record that Comey was at this meeting.)

4:00PM: Meeting at Card’s office with Mueller, Comey, attorneys from OLC, VP, Card, Gonzales, Hayden and others. (Note, this meeting is basically an extension of the earlier meeting, this time with the lawyers from DOJ present.)

Time unknown: Comey refuses to reauthorize the program.

Wednesday, March 10

Time unknown: Briefing for the Gang of Eight (Denny Hastert, Bill Frist, Porter Goss, Pat Roberts, Nancy Pelosi, Tom Daschle, Jane Harman, and Jello Jay). According to Gonzales, at the briefing "the lawmakers rejected emergency legislation but recommended that the program should continue despite the Justice Department’s opposition." Jello Jay disputes Gonzales’ account; it is unclear how he and Jane Harman responded.. Nancy Pelosi opposed the continuation of the program.

7:15PM? (Comey says around 8:00, but before the call to Mueller at 7:20): Ashcroft Chief of Staff David Ayres calls Comey as he is on his way home. He says Mrs. Ashcroft has received a call–possibly from the President–and "as a result of that call Mr. Card and Mr. Gonzales were on their way to the hospital to see Mr. Ashcroft."

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Rick Davis and AT&T Shacking Up

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Boy, I thought it’d be hard to imagine an administration cozier with AT&T than George Bush’s–particularly since Bush replaced both Karl Rove and Dan Bartlett with AT&T lobbyist Ed Gillespie. But apparently, Rick Davis’ lobbying firm has been shacking up with AT&T:

So just how close are the ties between the McCain camp and AT&T? Well, AT&T shares a luxury skybox with Davis, Manafort Inc. at Nationals Stadium, which opened earlier this year and is home to the city’s baseball team. I say it “appears” because two sources, including one person who has been in the skybox, told me about the AT&T/Davis, Manafort luxury suite, but none of the relevant parties will comment on the matter. AT&T’s Washington lobbying office has not returned phone calls about the suite, nor has Davis, Manafort. Repeated attempts to seek comment from the McCain campaign have also been unsuccessful. Chartese Burnett, a spokeswoman for the Nationals, said the team does not disclose the holders of the luxury suites because of “privacy concerns.” But she did tell me that there are 66 suites at the stadium, which rent for between $160,000 and $400,000 per year.

There’d be nothing illegal about a shared arrangement. It would simply reflect the seamless web that exists between McCain and the lobbyists and special interests groups that he likes to criticize while out on the trail campaigning as a “maverick” and “change agent.” I just hope they get better iPhone service than I do.

 Now, for the record, Rick Davis thinks it’s "chasing ghosts" to go after the McCain team’s intimacy with big lobbyists.

WALLACE: Well, as a matter of personal privilege, I’m going to give you the opportunity to respond to David Axelrod, who said, you know, for all this talk about wait till we come in and shake the lobbyists, but the campaign team of McCain is filled with lobbyists or, in your case, former lobbyists. How do you respond?

DAVIS: Oh, I think that, you know, it’s just more of the same from David Axelrod. I mean, they’ve been running against ghosts of the past all along. And I think it just shows that they don’t really have anything to talk about.

If they want to run against Rick Davis or our campaign staff, let them. I think it’s hilarious. I think it’s a wonderful distraction from the real issues that we’re trying to debate.

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The Contents of Alberto Gonzales’ Safe Briefcase

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Here’s what Alberto Gonzales thought was so sensitive, he illegally kept it in an unsecure safe and brought it back and forth to work in his briefcase.

The classified materials that are the subject of this investigation consist of notes that Gonzales drafted to memorialize a classified briefing of congressional leaders about the NSA surveillance program when Gonzales was the White House Counsel; draft and final Office of Legal Counsel opinions about both the NSA surveillance program and a detainee interrogation program; correspondence from congressional leaders to the Director of Central Intelligence; and other memoranda describing legal and operational aspects of the two classified programs. 

[snip]

Gonzales told the OIG that President Bush directed him to memorialize the March 10, 2004, meeting. [ed. Note, contrary to one of the press reports, it does not appear that Bush was at the meeting–though Cheney was.] Gonzales stated that he drafted notes about the meeting in a spiral notebook in his White House Counsel’s Office within a few days of the meeting, probably on the weekend immediately following the meeting. Gonzales stated that he wrote the notes in a single sitting except for one line, which he told us he wrote within the next day. Gonzales said that his intent in drafting the notes was to record the reactions of the congressional leaders during the meeting, as opposed to recording any operational details about the program that were discussed. In the notes, Gonzales listed who was present, followed by a general summary of the briefing given to the congressional leaders by intelligence agency officials, and the congressional leaders’ responses to the briefing. However, Gonzales’s summary also referenced TS/SCI operational aspects of the program by his use of specific terms associated with the program. The notes also included the SCI codeword used to identify the program. [my emphasis]

[snip]

The two envelopes contained a total of 17 separate documents. The envelope containing documents related to the NSA surveillance program bore the handwritten markings, "TOP SECRET – EYES ONLY – ARG" followed by an abbreviation for the SCI codeword for the program. The envelope containing the documents relating to a detainee interrogation program bore classification markings related to that program. Each document inside the envelopes had a cover sheet and header-footer markings indicating the document was TS/SCI. Read more →

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Gonzales Resigned 17 Days After This IG Investigation Began

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I’ll be doing running commentary on today’s DOJ Inspector General’s investigation of how Alberto Gonzales improperly handled Top Secret information. But I didn’t even get through the first page before being struck by the circumstances behind this investigation. Most curiously, Gonzales resigned just days after this investigation began.

The matter was referred to the OIG by Kenneth Wainstein, former Assistant Attorney General for the National Security Division, on August 10, 2007. The White House Counsel’s Office had initially notified the Department of Justice (Department) about the matter, and Wainstein, after consultation with other senior Department officials, referred the matter to the OIG for investigation.

That is, at a time when Alberto Gonzales was weighing down the Bush Administration, Fred Fielding informed Ken Wainstein that Alberto Gonzales was running around town with a briefcase full of TS/SCI documents. Fielding did so just 20 days after the Administration used Pixie Dust to give Cheney carte blanche to make up his own rules about how to treat classified information. And, more interesting still, it happened just 17 days before a weepy Gonzales resigned on August 27.

Gosh. You’d almost think the Administration, after Bush asked Gonzales specially to take notes of a meeting at which members of Congress collaborated with the Administration in breaking the law, then used those notes against Gonzales, to push him out of the Administration.

And if you’re wondering, Ken Wainstein has since been named Bush’s Homeland Security Advisor. 

Update: typo fixed per bobschacht.

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

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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.

[snip]

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]

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Bush Re-Ups War, Obstructs Accountability As Nation Twitters Over Palin

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The country and the progressive blogosphere have long been suckers for Cheney/Rovian shiny object distractions. I am afraid that is happening as we speak. First off (and i will come back to this later in a separate post) all of the heat, passion an unity that was generated and consolidated by Los Dos Clintonos, Al Gore and then, mightily and masterfully, Barack Obama, is being dissipated by the wind of fixation on Sarah Palin.

But more importantly, critical and substantive things are going on that we need to be paying attention to. Eric Lichtblau in the NYT reminds us of a huge one this morning:

Tucked deep into a recent proposal from the Bush administration is a provision that has received almost no public attention, yet in many ways captures one of President Bush’s defining legacies: an affirmation that the United States is still at war with Al Qaeda.
…
The language, part of a proposal for hearing legal appeals from detainees at the United States naval base at Guantánamo Bay, Cuba, goes beyond political symbolism. Echoing a measure that Congress passed just days after the Sept. 11 attacks, it carries significant legal and public policy implications for Mr. Bush, and potentially his successor, to claim the imprimatur of Congress to use the tools of war, including detention, interrogation and surveillance, against the enemy, legal and political analysts say.
…
The proposal is also the latest step that the administration, in its waning months, has taken to make permanent important aspects of its “long war” against terrorism. From a new wiretapping law approved by Congress to a rewriting of intelligence procedures and F.B.I. investigative techniques, the administration is moving to institutionalize by law, regulation or order a wide variety of antiterrorism tactics. (Emphasis added)

In all the flurry and bustle of the conventions and Palin, not to mention back to school and Labor Day weekend for the nation, this could be lost in the flow. It must not be. This provision has all the potential implications, problems, Read more →

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FISA Redux Again: The Slippery Slope Leads Down A Rabbit Hole

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Five days ago, in the post "FISA Redux: The Slippery Slope Becomes A Mine Shaft", we discussed the new set of domestic spying protocols that the Bush Administration is determined to entrench into law and practice before leaving office. The measures would:

…make it easier for state and local police to collect intelligence about Americans, share the sensitive data with federal agencies and retain it for at least 10 years. … would apply to any of the nation’s 18,000 state and local police agencies.

Criminal intelligence data starts with sources as basic as public records and the Internet, but also includes law enforcement databases, confidential and undercover sources, and active surveillance.

…also would allow criminal intelligence assessments to be shared outside designated channels … It turns police officers into spies on behalf of the federal government.

As if that wasn’t enough fun for one post, we also learned that Attorney General Mukasey

…would release new guidelines within weeks to streamline and unify FBI investigations of criminal law enforcement matters and national security threats.

Well, that didn’t take long. Guess what; they’re here. It is amazing how when it comes to protecting the rights and privacy of American citizens, the health and stability of the environment, the education of our children, and the care and compassion to military veterans, the Bush Administration produces nothing but bad faith delay, obstruction and, often, outright refusal to act. They are imminently capable, however, of moving with breathtaking alacrity when they sense the opportunity to seize unheard of domestic police state powers that undercut the Constitution, solely by Administrative fiat, and that fundamentally alter the way the American public exists in relation to it’s government in terms of their privacy and, in an existential sense, if not physical, their right to liberty and the pursuit of happiness.

Here, courtesy of the New York Times, is the new joy the Attorney General is announcing to "protect yer freedums":

A Justice Department plan would loosen restrictions on the Federal Bureau of Investigation to allow agents to open a national security or criminal investigation against someone without any clear basis for suspicion, Democratic lawmakers briefed on the details said Wednesday.
…
The senators said the new guidelines would allow the F.B.I. to open an investigation of an American, conduct surveillance, pry into private records and take other investigative steps “without any basis for suspicion.” The plan “might permit an innocent American Read more →

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FISA Redux: The Slippery Slope Becomes A Mine Shaft

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(photo h/t Pointed Words)

Those who would give up essential liberty, to purchase a little temporary safety, deserve neither liberty nor safety.

With the utterance of those words and placement of quill to paper, by Founding Father Benjamin Franklin, so began the half life decay of his wisdom. The surveillance state we occupy today is the festering, mature result of the acts of cloying politicians and barons of power to serve their own political and financial goals by declaring themselves the protectors of law and order. The daddy state. They spread fear of isolated, and ultimately inconsequential, yet publically hyped acts of crime and terror in order to supplicate the nation at large.

It has been a singularly effective scheme.

So it began with characterization of hideous and substantive Fourth Amendment violations of fundamental search and seizure law as "mere technicalities". Soon judges and prosecutors, being elected or politically appointed officials themselves, started shading their duties, principles and morals under the law to find creative ways around Constitutional protections in order to avoid results that would be unpopular. Then the officials ran again for reelection proudly proclaiming how they protected the "law and order for the citizens" by "clamping down on criminals" and "elimianting the criminal’s use of technicalities". The more they talked the talk, the more they walked the walk. Down the slippery slope.

And that is where we find ourselves today. From Spencer S. Hsu and Carrie Johnson in today’s Washington Post:

The Justice Department has proposed a new domestic spying measure that would make it easier for state and local police to collect intelligence about Americans, share the sensitive data with federal agencies and retain it for at least 10 years.

The proposed changes would revise the federal government’s rules for police intelligence-gathering for the first time since 1993 and would apply to any of the nation’s 18,000 state and local police agencies that receive roughly $1.6 billion each year in federal grants.

Quietly unveiled late last month, the proposal is part of a flurry of domestic intelligence changes issued and planned by the Bush administration in its waning months. They include a recent executive order that guides the reorganization of federal spy agencies and a pending Justice Department overhaul of FBI procedures for gathering intelligence and investigating terrorism cases within U.S. borders. (Emphasis added)

This is sick. Quite frankly, the contours of this have been quite obvious, and even partially stated, as being on the way for a while now if you were paying attention. This is why I was foaming at the mouth when the Protect America Act (PAA) was passed a year ago, and especially when Congress voted "just to extend (renew) it for a period". Read more →

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The FISA Loss: Recommendations for the Future

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Selise’s superb diary on FISA has finally persuaded me to write a post that I’ve been thinking about for some time: a recap of the FISA fight with thoughts on what we could have done differently.

Before I talk about what we could improve though, let me say this. Everyone involved, Republican, Democrat, House and Senate, attributes the unexpectedly tough battle over FISA to the work of the Netroots: bloggers, MoveOn, and most importantly their readers, partnering with the civil liberties groups and a few leaders in Congress to push back against a legislative tidal wave. Aside from Josh Marshall’s resoundingly successful campaign to save social security–in which public opinion and Democratic leadership always supported the same goals as the Netroots–this was the first real sustained legislative campaign waged by the Netroots. We were fighting against a telecom and intelligence contracting industry that, in addition to being rich, has been fighting these battles for years. Looked at from that perspective, we had remarkable success. And if we replicate this effort on other topics, we will have more success in the future. In fact, I rather think the news that Chris Dodd is one of the few people confirmed to have made the vetting stage of the VP search (though I highly doubt Obama will choose him–I think it’s political theater), when Hillary and Jim Webb and Joe Biden and others have not, suggests Obama recognizes that he took our efforts too cavalierly. We did a lot right in this fight; if we learn the right lessons from it, we will be more powerful and effective in the future.

That said, here are some things we should do in the future:

  • Improve intelligence oversight
  • Admit we’re dealing with legislators
  • Identify the real terms of debate
  • Recognize when leadership begins to negotiate
  • Profile all the key players

Improve intelligence oversight

As Selise points out in her diary, we were fighting against a leadership that–because they were among the only ones briefed on the President’s illegal program–had an incentive to support telecom immunity because they had, at least by virtue of not mounting an effective opposition to the program, bought off on it. The still-serving Democrats who had been briefed on the program before it became public in 2005 are: Pelosi (from the very first briefing on October 25, 2001 as HPSCI ranking member, and continuing as House Minority leader), Reid (in his role as Minority Read more →

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