January 13, 2013
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July 30, 2007

Alberto Gonzales Agonistes

By Clarice Feldman
Democrats are playing political games with national security and mongering phony scandal. It amounts to a program of harassment of the Bush Administration's efforts to defend us against attack by uncovering terror plots using intelligence agencies.

It has been nothing short of a miracle that we have been spared another attack after 9/11; this has occurred through the Administration's use of various techniques almost all of which were leaked to the press. National security secrets were disclosed with no punishment to the leakers or publishers at all.

I'm talking about leaks of real national security significance -- the terrorist surveillance program and the operation of the "Swift" consortium to track and block terrorist financing, for example -- not the revelation of the identity of a non-covert CIA employee. Through it all, the President has labored to protect us from our enemies. And he has done so despite the media and Democrat efforts to make each and every useful program ineffective, by pinched readings of the law and selective damaging disclosures.

Now, the very Democrats who fought the programs and demanded a narrow reading of the law governing them are refusing to make the changes necessary to allow the programs to utilize our technological advantage in this sphere of an unconventional war. As the Wall Street Journal notes:
At least a few Democrats realize they may be setting themselves up for trouble if there's another terrorist attack. House Intelligence Chairman Silvestre Reyes wrote to Mr. Bush last week saying he was "very concerned" about the program and urging the Administration to "devote all the resources necessary to ensure that we are conducting maximum surveillance of the terrorist target abroad."

Mr. Reyes went on to note that "FISA does not require a warrant for communications between two individuals outside the United States. If clarifications to the law are necessary, we are prepared to deal with this." That'll serve Mr. Reyes well as political cover if the next 9/11 Commission asks who ruined the terrorist surveillance program. But if he's serious about national security, he should send his next letter to Senate Democrats.
But the very Senators who are in a position to fashion the necessary legal changes to make the surveillance programs work better are the same Senators who have been trying to force the Administration to publicly reveal the very last bit of the program which has not yet been leaked. They have been unsuccessful at it, and have used the straw horse issue of the firing of some US attorneys as a means of forcing the Attorney General to publicly divulge the information.

And since that has proved unsuccessful, they accused him of committing perjury when he explained what he could publicly about it. He's been vindicated, but the media and Democrats are doing their best not to mention it.

It's beyond serious dispute that, as Executive Branch appointments, the President can fire any US attorney he wishes to for any reason. Certainly it would be inappropriate if there were evidence-which despite countless hearings there is not-that the action was designed to interfere with a legitimate legal proceeding or inquiry. But the Democrats have failed to come close to establishing that there was a single thing inappropriate in these firings.  That hasn't stopped Senate Judiciary Committee's Leahy and Schumer from harassing the Attorney General and his staff and, worse, suggesting that he lied to the Committee.

Once again, as in the Libby case, the principle players include Senator Charles Schumer and former Deputy Attorney General James B. Comey, two dramatis personae who regularly eat the scenery on the set. And once again the story is more glitter than gold.

I described the incident which has so obsessed Senator Schumer some time ago:

The President delegated to the Attorney General the right to recertify every 45 days the legality of the NSA program monitoring international terrorist contacts with persons in the U.S. On 29 occasions since September 2001 Ashcroft had done so. In the spring of 2004, new counsel was engaged at the Department who found some problem in some detail of the program and on March 4, 2004 (a week after learning of the problem) Comey briefed Ashcroft about this. That very day Ashcroft has hospitalized and underwent emergency surgery. Another 5 days passed before Comey, then serving as Acting Attorney General, mentioned the problem to the White House. And when he got around to telling them, he did not say it was about a detail in the program, but rather he said they would refuse to recertify the legality of this important program at all.

Andrew Card and then-White House Counsel Alberto Gonzales went to the hospital to clarify this with Ashcroft, and Comey dramatically recounted to the Committee how he rushed there to be certain that they would not persuade Ashcroft to change his mind. In his view, he was a champion of civil liberties against the overreaching, unseemly efforts of others. The President became personally involved, reauthorized the program himself pending NSA's reworking of the program to Comey's satisfaction - which it did in one week's time. To my mind Comey should have spent less time turf protecting and a great deal more time on timely communications and teamwork to resolve the issue without the need for his eleventh hour dash to the hospital with sirens blaring.
We know now a few more details, most particularly that before seeking an audience with Ashcroft, Gonzales had met with Congressional leaders of both parties, the majority of  whom supported continuing the intelligence activity which Comey had decided in the most dramatic and unhelpful way to suspend because of some still undisclosed problem. Whatever the problem was, it was resolved within days of the President's taking over and authorizing its continuance sans the imprimatur of the Department of Justice then under Comey's temporary control.  That the problem was resolved so quickly suggests that the drama queen means of Comey's dealing with it were utterly unnecessary.
hear noe evil
Speaker Pelosi, in fact, has not disputed Gonzales' report that the majority of the Congressional leaders in attendance did support continuing the program despite Comey's objections-the fact that Gonzales wanted to convey to the sick Ashcroft.

The Gonzales-Schumer exchange on the subject of the Comey objections was, as Tom Maguire noted, heavily caveatted, as it must be to protect national security:
It is clear from the testimony transcript that Gonzalez gave a heavily caveatted answer which Sen. Schumer found to be baffling and non-responsive:

SCHUMER: I concede all those points. Let me ask you about some specific reports.

It's been reported by multiple news outlets that the former number two man in the Justice Department, the premier terrorism prosecutor, Jim Comey, expressed grave reservations about the NSA program and at least once refused to give it his blessing. Is that true?

GONZALES: Senator, here's the response that I feel that I can give with respect to recent speculation or stories about disagreements.

There has not been any serious disagreement -- and I think this is accurate -- there has not been any serious disagreement about the program that the president has confirmed. There have been disagreements about other matters regarding operations which I cannot get into.

I will also say...

SCHUMER: But there was some -- I'm sorry to cut you off -- but there was some dissent within the administration. And Jim Comey did express, at some point -- that's all I asked you -- some reservations.

GONZALES: the point I want to make is that, to my knowledge, none of the reservations dealt with the program that we're talking about today. They dealt with operational capabilities that we're not talking about today.

SCHUMER: I want to ask you, again, about -- we have limited time.

GONZALES: Yes, sir.

SCHUMER: It's also been reported that the head of the Office of Legal Counsel, Jack Goldsmith, respected lawyer and professor at Harvard Law School, expressed reservations about the program. Is that true?

GONZALES: Senator, rather than going individual by individual, let me just say that I think the differing views that have been the subject of some of these stories did not deal with the program that I'm here testifying about today.

SCHUMER: But you were telling us that none of these people expressed any reservations about the ultimate program, is that right?

GONZALES: Senator, I want to be very careful here, because, of course, I'm here only testifying about what the president has confirmed.

And with respect to what the president has confirmed, I do not believe that these DOJ officials that you're identifying had concerns about this program.

SCHUMER: There are other reports, I'm sorry to -- you're not giving me a yes-or-no answer here. I understand that.
Was the race to the bedside to continue a program Congressional leaders decided was significant and the Office of Legal Counsel of the DoJ had endorsed for 2½ years prior to a change in lawyers somehow untoward?  When the issue first arose, Tom Maguire offered up an analogy that drives home the preposterous nature of Comey's behavior and the perfectly reasonable behavior of Gonzales:
I will propose two thought experiments:

A Wall Street firm has a reasonably complicated financing structure requiring legal opinions; a typical deal takes about two months to come together, and the firm has done twenty such deals with the blessing of their outside counsel.

Now comes the twenty-first deal, and the law firm informs the Wall Street financiers, forty-eight hours before the scheduled close, that they can't sign the legal opinion.  Has the relevant law changed?  Nooo.  Has the financing structure changed?  Nooo.  But a new partner at the law firm has looked at the structure and wants the deal tweaked slightly before he can sign off on it.

Take my word for it - there would be Hades to pay for this, and serious questions would be raised about the professionalism and timing of the law firm.  Bring the problem sooner, or bring it for the twenty-second deal, but being obstructive at the last minute is not acceptable.

Or let's try an example closer to home for the Times and WaPo editors here - suppose their law firms came to them and informed them that, although no laws had changed, a new partner was worried about some privacy issues, so the Times would have to suspend its website in 48 hours or face dire legal risks.

I promise you - blood would flow at the Times, or wherever it was they finally found tracked down the new lawyer with the new problem
Schumer has exploited this non-story so much that he surely is eligible for a milk producer subsidy. First he suggested there was something improper about continuing the program after one new lawyer in the Department perceived a problem that no one else had seen for 2½ years and one the Congressional leadership did not find persuasive enough to deprive us of its benefit. But then he suggested some ghoulish plot over the hospital bed  to twist the arm of an ailing Attorney General . And now he claims the heavily caveatted testimony was deliberate perjury which required the appointment of another special prosecutor.

He ignores that the testimony as I've shown was carefully and admittedly circumscribed for good reason, that  Senator Leahy of this Committee declined an opportunity to get more detail in an executive session (not public).Leahy, in effect, was trying to force Gonzales to blow what is probably the last still secret aspect of the surveillance program and when he didn't succeed , he and Schumer hint at perjury. And the press, twisting the words of FBI Director Mueller piled on. As NRO observes correctly:
Thursday afternoon, the press and the Democrats started to play up testimony by FBI director Robert Mueller about the hospital-room meeting, testimony that supposedly contradicts Gonzales. But all Mueller said was that the meeting concerned a legal disagreement over the NSA's surveillance. If our account of the chronology of the program is correct, there is no contradiction here [/quote]
Because this outrageous behavior is so clearly turning off the voters, I'm loathe to give these bullies a hint-but the truth is, if the Committee really wants to know more about this insignificant DoJ dispute it can hold an executive session, or it can publicly call former Attorney General Ashcroft, Former Deputy Attorney General Comey, FBI Director Mueller and Congresswoman Pelosi to testify.

Some Democrats and their media allies long to re-live the glory days of Watergate, when the Democrats had a President in office who was engaged in wrongdoing. They managed to bring him down and cut off funding for an unpopular war back then.

Or they can move on and concede what we all know-for all the noise generated by manipulating a willing-to-be-gulled media, there is no pony in there.

Clarice Feldman is an attorney in Washington, DC and a frequent contributor to American Thinker.
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