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.

Thursday, March 02, 2006

The NSA scandal now clearly includes interception of domestic communications, perjury and presidential lying

Alberto Gonzales sent a letter (.pdf) to the Senate Judiciary Committee yesterday which contained what Gonzales called numerous "clarifications" of the testimony he gave on February 6 regarding the NSA program. What Gonzales actually did in this letter is identify numerous unambiguous statements to which he testified that were clearly false, and he "corrected" them in order to render them "true" in the narrowest, most legalistic, most misleading sense. In doing so, he left no doubt that the Administration has been engaged in a series of false and misleading statements about their conduct as part of this scandal.

There are many people who are eager to proclaim this scandal dead. But every week brings new revelations of impropriety, deceit, and most importantly, an ever-expanding scope of still-concealed eavesdropping activities on the American people. It is just absurd even to suggest that this scandal is anywhere near a resolution because the level of knowledge we have about what actually happened here – and by "we" I mean both the American people and even the Senate – is minuscule, even especially as to the question of the scope of the government’s warrantless eavesdropping on Americans.

Beyond that, it is becoming increasingly clear that Administration officials, including the President, have been make patently false statements to the public and to the Congress about their conduct here. The Gonzales letter is truly extraordinary for several reasons. Both Orin Kerr and Anonymous Liberal have posted some excellent analysis on the Gonazles letter, both of which I highly recommend reading. To their observations, I want to add a few points.

(1) As was discussed yesterday and reported by The Washington Post, all evidence points to the fact that the Administration – contrary to the clear and unambiguous assurances given by the President to the country – has been engaged in warrantless eavesdropping beyond merely "international calls" -- i.e., they are intercepting purely domestic calls as well, just as part of a "different program." As Reagan Administration Justice official Bruce Fein put it at yesterday's hearings:

At least one constitutional scholar who testified before the committee yesterday said in an interview that Gonzales appeared to be hinting that the operation disclosed by the New York Times in mid-December is not the full extent of eavesdropping on U.S. residents conducted without court warrants.

"It seems to me he is conceding that there are other NSA surveillance programs ongoing that the president hasn't told anyone about," said Bruce Fein . . . .

One of the principal purposes of Gonzales’ letter was to insist that assurances he gave while testifying about the scope of the Administration’s eavesdropping activities were confined only to what he called the "Terrorist Surveillance Program," and not other warrantless eavesdropping programs. As always, Administration officials conspicuously go to great lengths to confine statements they make about warrantless eavesdropping activities only to this eavesdropping program, because there are unquestionably others to which those assurances do not apply.

That the Administration is confining its statements only to the "Terrorist Surveillance Program" is not a new revelation, but what is critically important here is how Gonzales in his letter defines the scope of the "Terrorist Surveillance Program." He defines it as follows:

"interception by the NSA of the contents of the communications in which one party is outside of the United States where there are reasonable grounds to believe that at least one party to the communications is a member or agent of Al Qaeda or an affiliated terrorist organization ("the Terrorist Surveillance Program")."

Thus, any eavesdropping of communications which: (a) are between a person in the U.S. and someone in another country and (b) involve someone for which there is reasonable grounds to believe they are an Al Qaeda agent, are, by definition, part of "the Terrorist Surveillance Program." That means that any warrantless eavesdropping outside of this Program involves intercepting communications that either (a) are entirely domestic, and/or (b) do not require reasonable grounds for believing a party to the call is an Al Qaeda agent.

One cannot even count the number of times since this scandal began that Bush himself and the Administration assured the American public that warrantless eavesdropping is confined to international calls involving Al Qaeda agents. That has been their principal defense all along: "Don’t worry - we only eavesdrop on international calls and calls involving Al Qaeda. So if you only talk domestically, and don’t talk to terrorists, you have nothing to worry about."

But warrantless eavesdropping is plainly occurring beyond the "Terrorist Surveillance Program," which means that there is eavesdropping on domestic calls and/or calls not involving Al Qeada (since international calls involving Al Qaeda are, by definition, part of that Program). That means that the assurances repeatedly given by the President and his officials are just false.

Undoubtedly, the same excuse which the Administration used to justify the President’s prior false statements about eavesdropping (i.e., his false re-election claims that all eavesdropping on Americans is conducted with judicial oversight) will be used to defend the false statements here – namely, that when Bush assured the public that the only calls that were intercepted were international calls involving Al Qaeda, he was talking only about the Terrorist Surveillance Program, not other programs.

As a logical matter, that distinction is nothing short of idiotic. It is tantamount to telling the public: "Don’t worry, we only eavesdrop on your communications with judicial oversight," while leaving unstated the fact that renders the whole sentence false: "except for the eavesdropping we do on your communications without judicial oversight."

That lie-defending formula would translate here as: "Don’t worry, we only eavesdrop on your international communications when you talk to Al Qaeda," while leaving unstated the fact that renders the whole sentence false: "except for the eavesdropping we do on your domestic communications."

But beyond the logical absurdity is what would clearly be the political disaster for the White House if it is revealed that the eavesdropping extends beyond the limitations repeatedly described by the President. Nobody paid much attention to the President’s false re-elections assurances that the Government only eavesdrops with a warrant, because that did not appear to be a controversial statement at the time. After all, the 30-year-old law governing eavesdropping made it a criminal offense to eavesdrop without warrants, so it was hardly a noteworthy event that the President claimed (falsely) that the Government was eavesdropping only with warrants.

But his assurances to the American people since this scandal began that the Administration was eavesdropping only on international calls and only where Al Qaeda was a party to the conversation is something which was noticed by anyone paying even a small amount of attention to this scandal. Everyone remembers those assurances. That has been the White House’s primary response all along, the only one upon which they have consistently relied from the beginning.

If it turns out that those assurances were false – and, at this point, can anyone doubt that they are? -- it will be as plain as day that Bush misled the country when seeking to assure them of the limited scope of warrantless, lawless eavesdropping.

(2) Several weeks ago, I noted that Gonazles -- in response to questions from several Senators about whether the Administration has the power to engage in warrantless eavesdropping on purely domestic communications -- testified that the Department of Justice had never conducted a legal analysis of the legality of warrantless eavesdropping on strictly domestic communications. He made that claim several times:

"That analysis, quite frankly, has not been conducted."

"I have said I do not believe we have done the analysis on that."

"The legal analysis as to whether or not that kind of [domestic] surveillance – we haven’t done that kind of analysis . . "

Because of how unambiguous that denial was, and because Gonazles specifically said that such a program would entail a different legal analysis than the analysis for international communications, I concluded at the time that the DoJ was clearly claiming that there was no warrantless eavesdropping on domestic communications -- and I even said I thought that Gonazles' testimony on this topic made it highly unlikely that there ever was a program to eavesdrop on domestic communications.

After all, if a domestic eavesdropping program did exist, Gonzales would never go before the Senate (as he did) and testify that domestic eavesdropping requires a different legal analysis but the DoJ had never conducted that analysis. I reasoned at the time that he would deny having analyzed the legality of domestic surveillance only if there was no domestic eavesdropping, because otherwise, it would mean that the Administration was engaged in domestic eavesdropping while the Attorney General is expressly stating that nobody knows if doing so was legal (since the DoJ never analyzed that question).

In his letter yesterday, Gonzales backed away – completely – from what was his unambiguous (and now clearly false) claim that the DoJ had never analyzed the legality of warrantless eavesdropping for domestic communications. Clearly, the DoJ has analyzed the legality of warrantless domestic surveillance:

Since I was testifying only as to the legal basis of the activity confirmed by the President, I was referring only to the legal analysis of the Department set out in the January 19th paper, which addressed that activity and therefore, of course, does not address the interception of purely domestic communications. However, I did not mean to suggest that no analysis beyond the January 19th paper had ever been conducted by the Department.

I say this advisedly: the Administration is now in full-blown shameless lying mode. Gonzales repeatedly told the Committee that the DoJ had not analyzed the legality of domestic surveillance -- because he wanted to leave the impression that there is no domestic surveillance. In fact, the DoJ clearly has engaged in exactly the analysis Gonazles categorically denied.

His "clarification" rests on precisely the same "rationale" for making false statements as the excuses given for the President’s claims – "Yes, I told you that the DoJ had never conducted a legal analysis of eavesdropping on domestic communications. What I meant, of course, was that we did not do that analysis as part of this letter which addressed international communications – not that we never did that analysis (even though neither your question nor my answer was not confined to the January 19 paper)."

Or, to put it another way, Gonzales said: "Don’t worry, we never even conducted an analysis of the legality of eavesdropping on domestic communications," while leaving unstated the fact that renders the whole sentence false: "I mean, of course, as part of the January 19 letter- when I say we never analyzed the legality of domestic surveillance, I am silently excluding from my answer those times when we did exactly that."

Is this why the Republicans on the Committee voted unanimously against putting Gonazles under oath when he testified? Gonzales had weeks to prepare for this testimony. He is a trained lawyer. Unlike most witnesses in a lawsuit, he was never cut off by the questioner. He was free to speak at will in response to every question for as long as he wanted, and to say whatever he wanted. Why is it necessary for him to issue a 6-page single-spaced letter, the bulk of which is devoted to "clarifying" what was his unambiguous (false) testimony to the Committee just a few weeks ago?

Is the Senate Judiciary Committee going to tolerate being lied to and misled for eight hours by an Administration that, beginning with the President on down, has misled the Congress for four years about its law-breaking? Are Americans?

What possible excuse exists for the Administration refusing to answer these two questions:

Does the Administration engage in warrantless eavesdropping on purely domestic communications?

Does the Administration engage in warrantless eavesdropping on the communications of Americans where this is no reasonable basis for believing that one of the parties to the call is an agent or affiliate of Al Qaeda?

How can the Senate -- and the media -- possibly allow this matter to be resolved if we don't know whether there is warrantless eavesdropping beyond the limits that the President claimed exist?

As I’ve said before, all Presidential law-breaking scandals have two components: the wrongdoing itself, followed by the schemes of concealment and lying to cover up the wrongdoing. The testimony from Gonzales was full-on, unambiguous deceit, as was, it seems increasingly clear, the assurances of the President as to the limitations of this warrantless eavesdropping.

The question as to whether there are consequences for our highest government officials to break the law blatantly and repeatedly is one that we have asked many times. Added to that as part of this scandal is now this question: Are there consequences for lying about it, including as part of testimony to the Senate which is investigating that law-breaking?

And is it even remotely possible to sweep this scandal under the rug without now digging into the question which is begging and screaming to be answered. That is: are there other programs which entail warrantless eavesdropping on Americans beyond the parameters of what the President repeatedly claimed, including purely domestic communications? If that is the case (and every sign points to the fact that it is), how could it possible for the President -- even with our sleep-walking media and our country’s heightened tolerance for governmental deceit -- to politically survive such blatantly false statements to the country?

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