I was previously a constitutional law and civil rights litigator and am now a journalist. I am the author of three New York Times bestselling books -- "How Would a Patriot Act" (a critique of Bush executive power theories), "Tragic Legacy" (documenting the Bush legacy), and With Liberty and Justice for Some (critiquing America's two-tiered justice system and the collapse of the rule of law for its political and financial elites). My fifth book - No Place to Hide: Edward Snowden, the NSA and the US Surveillance State - will be released on April 29, 2014 by Holt/Metropolitan.

Tuesday, March 07, 2006

Moving into the cover-up phase

One of the bizarre rules of Washington scandals is that severe wrongdoing, including law-breaking, is insufficient to sustain interest or to warrant real accountability. The wrongdoing has to be accompanied by subsequent deceit designed to conceal the wrongdoing, and then everyone gets excited. Put another way, a Washington scandal has not arrived until there is a cover-up component to it.

That is why I thought the letter from Alberto Gonazles to the Senate Judiciary Committee last week was so significant. Gonazles had many weeks to prepare for his testimony and, unlike most witnesses who testify in judicial proceedings, was free to speak for as long as he wanted without ever being interrupted or cut off by his questioners. The fact that he had to issue a 6-page single-spaced letter "clarifying" his testimony only a couple of weeks after he testified -- in which he literally retracted some of the most significant answers he gave and provided brand new, conflicting ones -- makes clear that Gonazles arrived at the Committee prepared to mislead it by concealing the Administration's actions.

This AP article from yesterday (h/t Edward Copeland) reports on a very interesting development in this regard:

Attorney General Alberto Gonzales' written answers to questions about the Bush administration's eavesdropping program may require him to testify a second time before the Senate Judiciary Committee, the panel's Republican chairman said Monday.

"There is a suggestion in his letter there are other classified intelligence programs that are currently under way," Senate Judiciary Committee Chairman Arlen Specter, R-Pa., told reporters. . . .

In all of my testimony at the hearing I addressed — with limited exceptions — only the legal underpinnings of the Terrorist Surveillance Program," Gonzales wrote. "I did not and could not address operational aspects of the program or any other classified intelligence activities" . . . .

Vermont Sen. Patrick Leahy, the Judiciary Committee's top Democrat, said Monday that Gonzales should come back before the panel to "clear up the confusion he created first by ducking our questions, and later by further clouding the issues with a 'clarifying' letter that substantially revised his unsworn testimony."

Specter's comments suggest he too has concerns about Gonzales' letter. "We may have to have him back before the Judiciary Committee," Specter said.

Having Gonzales called back before the Committee in order to explain the glaring discrepancies between his testimony and his subsequent "on-second-thought" letter can endow the scandal with an even greater whiff of deceit and cover-up. And the fact that one of the topics in which the Judiciary Committee members are interested is the issue of whether there are other warrantless eavesdropping programs in existence greatly heightens the potential danger for the Administration.

This is the same reason I believe that Senate Intelligence Committee hearings will be so helpful in fueling this scandal. It's not because the Committee will engage in any sort of vigilant effort to uncover what happened here. They won't.

It's because it seems extremely clear that the warrantless eavesdropping activities engaged in by the Administration extend far beyond the limitations to which the President repeatedly assured Americans it was confined - namely, only international calls where Al Qaeda agents or affiliates are a party. And if it's the case that the Administration's eavesdropping activities extend beyond those limitations -- and at this point, for anyone following these events, it is hard to believe that it doesn't (even the gullible, trusting Arlen Specter now seems to realize this) -- that fact will necessarily emerge as part of these hearings.

Even for those people who have not been following this scandal closely, the one thing they know, and that they remember, is that the President repeatedly assured them that the warrantless surveillance on Americans was for international calls only, involving Al Qaeda ("If somebody from al Qaeda is calling you, we'd like to know why"). If it turns out that this assurance was false -- that the Administration has been eavesdropping on purely domestic calls, or without knowing that someone on the call was from Al Qaeda -- then it will be a clear falsehood repeatedly issued by the Administration which people will be able to understand. Even the media will have no trouble understanding that such assurances can only be described as false.

Thus, even if the "independent Republicans" on the Intelligence Committee today demonstrate (again) just what an oxymoron that phrase is by preventing the Committee from holding hearings, it seems that the Judiciary Committee is prepared to demand answers from Gonazles as to whether there are other warrantless eavesdropping programs aimed at Americans besides the program disclosed by the Times.

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