Presidential Parsing

by emptywheel

Anonymous Liberal has a really important post that shows that--wait for it--Alberto Gonzales is a lying sack of shit. AL shows that, in the same Senate appearance where Gonzales tried to parse the Administration out of trouble for illegally spying on American citizens by claiming the program wasn't the program, Gonzales also admitted that the program was the program. Orwell would be proud.

But AL also points back to the radio address where President Bush famously confirmed the program that both was and wasn't the program, and I see that Gonzales' precarious parsing was built on top of Bush's own precarious parsing. Bush's confirmation consists of confirming certain details about certain activities that have occurred since fall 2001.

In the weeks following the terrorist attacks on our nation, I authorized the National Security Agency, consistent with U.S. law and the Constitution, to intercept the international communications of people with known links to al Qaeda and related terrorist organizations.  Before we intercept these communications, the government must have information that establishes a clear link to these terrorist networks.

Those details include intercepting international communications of people with known links to Al Qaeda. Bush repeats, before such wiretapping occurs, "the government must have information that establishes a clear link to these terrorist networks."

Bush's admission here carefully avoids conceding two details that the program has been reported to include: the tapping of of domestic communications, and the tapping of people whose link to any terrorist networks have only been established through legally-suspect data-mining. In other words, Bush is not admitting to the two aspects of the program that most clearly violate FISA: the tapping of domestic communications, and tapping people for whom probable cause has not been established. These, I'm certain, are the same parsing distinctions that Gonzales has in mind when he refers to the program that is/is not the program.

Following this paragraph of distinctions, Bush makes the only reference to "a program" that appears in the whole address.

This is a highly classified program that is crucial to our national security.  Its purpose is to detect and prevent terrorist attacks against the United States, our friends and allies.  Yesterday the existence of this secret program was revealed in media reports, after being improperly provided to news organizations.  As a result, our enemies have learned information they should not have, and the unauthorized disclosure of this effort damages our national security and puts our citizens at risk. Revealing classified information is illegal, alerts our enemies, and endangers our country.

After having attacked whistleblowers, Bush then waggles 9/11 9/11 9/11 as a way of transition.

As the 9/11 Commission pointed out, it was clear that terrorists inside the United States were communicating with terrorists abroad before the September the 11th attacks, and the commission criticized our nation's inability to uncover links between terrorists here at home and terrorists abroad. Two of the terrorist hijackers who flew a jet into the Pentagon, Nawaf al Hamzi and Khalid al Mihdhar, communicated while they were in the United States to other members of al Qaeda who were overseas. But we didn't know they were here, until it was too late.

Having distracted his listeners with his 9/11 9/11 9/11 screed, Bush then shifts the way he discusses the program so he can give the larger program--presumably including the domestic wiretapping and the lack of probable cause--the illusion of legality. Rather than discussing the "program," though, Bush now speaks of "the authorization" and "the activities" conducted under this authorization.

The authorization I gave the National Security Agency after September the 11th helped address that problem in a way that is fully consistent with my constitutional responsibilities and authorities.  The activities I have authorized make it more likely that killers like these 9/11 hijackers will be identified and located in time.  And the activities conducted under this authorization have helped detect and prevent possible terrorist attacks in the United States and abroad.

The activities I authorized are reviewed approximately every 45 days.  Each review is based on a fresh intelligence assessment of terrorist threats to the continuity of our government and the threat of catastrophic damage to our homeland.  During each assessment, previous activities under the authorization are reviewed.  The review includes approval by our nation's top legal officials, including the Attorney General and the Counsel to the President.  I have reauthorized this program more than 30 times since the September the 11th attacks, and I intend to do so for as long as our nation faces a continuing threat from al Qaeda and related groups.

The NSA's activities under this authorization are thoroughly reviewed by the Justice Department and NSA's top legal officials, including NSA's general counsel and inspector general. Leaders in Congress have been briefed more than a dozen times on this authorization and the activities conducted under it.  Intelligence officials involved in this activity also receive extensive training to ensure they perform their duties consistent with the letter and intent of the authorization.

This authorization is a vital tool in our war against the terrorists. It is critical to saving American lives. The American people expect me to do everything in my power under our laws and Constitution to protect them and their civil liberties. And that is exactly what I will continue to do, so long as I'm the President of the United States. [my emphasis]

There is no claim that the details described in Bush's first paragraph about "the program" constitute the totality of "the activities" that Bush authorized, which he discusses in the last four paragraphs of his discussion about "the program." In other words, Bush's statement would be perfectly consistent with the possibility that Bush authorized the wiretapping of both international and domestic communications, of people whose ties to Al Qaeda had been clearly demonstrated and of people whose ties were more nebulous. But that when he referred to "the program," he only meant to refer to those with any legal basis under FISA, the international communications of people for whom probable cause could be shown. Yet, all the while, Bush is claiming legal sanction for all these activities, and in so doing claiming a continuity for this program while at the same time pretending that the legal activities are distinct from the illegal ones.

And the most troubling thing about this presidential parsing? Bush's statement remains perfectly consistent with the possibility that the illegal activities were continuing in December 2005, right along with the legal activities.

Update: This basically tracks with the parsing Tony Snow was trying to do in yesterday's briefing.

MR. SNOW: This comes down to conversations in 2004. In 2004 the Department of Justice and the White House all agreed that there was a legal basis for intercepting conversations or communications involving al Qaeda or al Qaeda affiliates in the United States and overseas. There is no dispute about that. That program did not have a name at the time. It was later labeled the terrorist surveillance program, after some press disclosures, and I think the label stuck in 2006. But again, there has never been, at any juncture along the line, any disagreement about the propriety or legality of that program.

Now, when you talk about the terrorist surveillance program, there are many intelligence activities in the American government. We're talking about a very thin slice, limited to exactly what I was telling you about, which is monitoring communications between al Qaeda or suspected al Qaeda affiliates, one in the United States, one overseas. So when the Attorney General talks about TSP, that's precisely what he's discussing.

Q So, okay, what you're saying then is, when the Attorney General and Mueller were talking about -- the consideration of the administration is that they were talking about two different things, because one of is before it was disclosed, and one was after?

MR. SNOW: No, let me just say -- this is where -- look, there are a broad range of intelligence activities that the government is involved in, and from time to time there are going to disputes about some of those intelligence activities. But again, what the Terrorist Surveillance Program, which I've defined very narrowly and carefully, there have been no disputes about that.

Q And the briefing in 2004 was about that program, or about something else?

MR. SNOW: Again, I don't want to go too much into the briefing. The answer to your question is, yes. [my emphasis]

Comments

[Katie Jensen]

I feel so much better to know that he is authorizing that which he authorized. It makes me feel safe.

[the third man]

Please wake me up when it is Jan 21, 2009!

[Tross]

Morning EW,

I noticed this morning that Bush is again asking for FISA to be "modernized". I would think the Administration would want to bring LESS attention to FISA right now given the hyper-focus of everyone on "the program".

Any thoughts on whether Congress is savy enough to blow the NSA domestic wiretapping (we all know that's what they've been doing) open. Do you think Feingold, Feinstein et al are already aware of the domestic portion and are trying to get the info out to the public? Or are they still in the dark and hoping a perjury investigation will allow them to find out something?

[margaret]

Marcy, I don't wish to hijack your blog for OT subjects, but, last night, as I watched C-Span testimony of Meuller, all the way to the end, of which the next to last Congresswoman to speak, was Debbi Wasserman-Schultz, an appalling set of circumstances was presented. She referred to the fact that the FBI had over 2000 investigators involved in white collar crime, and only a little over 200 in online child pornography, which involves nearly 500,000 offenders! Most of the material is generated in this country, from 100,000 sites! Surely, this is a crime, involving terrible sexual acts against small children and babies (!) (which is, to my mind, notwithstanding the seriousness of spying on the whole damn country), that should be highlighted with the purpose of motivating the Justice Department and the public to demand some action. Mueller's reaction to her questions about what the FBI was going to do about going after this kind of crime was not terribly reassuring. She is offering legislation to add resources for it. Mueller seemed tired and overwhlemed with the amount of corruption and incompetence he has to deal with from this Administration.

[bmaz]

I spent a career sandpapering witness testimony (for my clients and their witnesses) to remove rough edges so as to just barely slide in under the threshold of perjury. I have represented clients on perjury charges. I would not want to have to argue that "the program the President has acknowledged" is not the entirety of all the things that can be taken away from the whole of the speech you cite from the radio address. To bring up here something I touched on in the last thread, what we are doing is gleaning the line between fraud and perjury; not between legality and illegality.

[Katie Jensen]

Margaret...this is off topic so I will make this short. Follow the link between the neo con shadow government and child porn. In 1988, there was a big scandal in omaha nebraska called the Franklin Case. I am trying to publish a blog about it on dkos but there is a technical problem hanging me up. Google "the Franklin Case". Some of it was debunked but only because the children involved were not believed. Let's just say that I worked in a mental hospital during the early nineties and I am a counselor who works with survivors of child sexual abuse. The children involved all acted out just like you would expect them to. This was used against them. Several have disappeared and two are serving jail sentences for petty crimes. Two had sibs who committed suicide during the case.

There were at least 4 suicides connected to this case which included Hunter Thompson. There was a plane crash that killed the top investigator and supposedly his research went down with the plane. There are links to the missing paper boy from des moines IA. Johnny Gosch. Michael Jackson made a special stop to the King mansion in the the late 1980's just to visit for several hours in Omaha NE. Long before we knew about his predilection for children. When Gannon was uncovered as a male prostitute in the White house, pictures showed up at Johnny Gosch's house that were later supposedly not him. Mom does not agree and swears it is her son.

Anyway, the way the page situation was handled, the several pedaphiles in high places in the administration, the fact that Bush Sr was named as a perp in the Franklin Case, the fact that it included banking and finance scams, the overly hysterical views about homosexuality, the religious cover, and the resources NOT being alotted to such a HUGE problem makes me really wonder about about a link.

Read the stories. It's at the very least fascinating.

[Katie Jensen]

http://www.franklincase.org/

[earlofhuntingdon]

Given this administration's track record, what's the likelihood that the illegal portions, presumably the ones the DOJ's whole management team objected to by threatening to resign, are not continuing, perhaps diffused under different names and offices?

Even the purportedly legal portions of "the program" have been compromised because the president "reserved the right" not to obtain the requisite FISA court reviews and has apparently refused to do so notwithstanding his earlier promises - given, by the way, only to temporarily quiet an earlier controversy.

These guys don't revise their route because the law closes some intersections; they just change the street names.

[andhowe]

With these criminals, always assume the worst; it has the highest probability.

[andhowe]

With these criminals, always assume the worst; it has the highest probability.

[andhowe]

With these criminals, always assume the worst; it has the highest probability.

[andhowe]

With these criminals, always assume the worst; it has the highest probability.

[andhowe]

With these criminals, always assume the worst; it has the highest probability.

[...]

i know it is a bit off topic, but from the bush quote above >>Revealing classified information is illegal, alerts our enemies, and endangers our country.<< it isn't lost of many of just what he thinks about revealing classified info as the libby trail lays it bare..nothing like having a president who is so full of shit it isn't funny.

[...]

impeachment needs to take place. thanks for the work you do ew.

[Jan Rooth]

Heh.

Q And the briefing in 2004 was about that program, or about something else?

MR. SNOW: Again, I don't want to go too much into the briefing. The answer to your question is, yes.

Yes, it "was about that program, or about something else."

Snowjob lives up to his name.

[phred]

I have a legal question for anyone who cares to tackle it...

If a member of the Gang of 8 received a briefing that that member felt was illegal (either under the National Security Act because the briefing should have been made to the full intelligence committees, or because the nature of the program itself was illegal) to whom could that member complain? A FISA court judge? Someone else? No one at all, due to the classified nature of the program in question? In other words which is trump the illegal activity or the classified information?

From what I've read about the Rockefeller letter, I am left to speculate that even if a member believed the program to be illegal, that it would be illegal for them to reveal what they knew to anyone. Seems like a serious flaw in the laws regulating classified information.

[pol]

I was just reading about Tony Snow on Wikipedia. Did you know that he used to guest-host for The Rush Limbaugh Show or that he was chief speechwriter and Deputy Assistant of Media Affairs for George H.W. Bush?

[phred]

EW, even though I have never bought the idiot hick that W plays on TV, I still thought his grasp of the English language was too tenuous for him to be capable of careful parsing. Who knew? Thanks for the analysis, yet another layer of deceit revealed for all to see...

[Nell]

Much as I've appreciated this site's willingness to get in the weeds on many issues, the warrantless spying is a matter that repays keeping a focus on the big question while trying to unravel the many lies that have been told avoiding it:

What was the spying program that went on between fall 2001 and March 2004? Whose communications were being intercepted, how, and how many? And then, what did the revised program involve?

Both were illegal; both are impeachable offenses; but the first is what will show people why impeachment is the only remedy to protect our system of government.

This Marty Lederman post is a beacon. It should be op-ed-ized, turned into letters to Congress and calls to talk shows, etc. Yes, it's the coverup and not the crime that often gets the criminals, but in this case the country needs to know just exactly what the hell happened, not just who lied about it when.

[margaret]

Thank you, Katie Jensen, for the link, but I can't stand to read about such things, not wanting to have the images in my head, even in wrting, but I am intrigued by what you say about a link to the Administration....maybe, that explains Meuller's reticence in the face of Wasserman Schultz's questioning...and the expression on his face.

[pol]

Kate, so you are familiar with the Franklin Case? I have wondered if the story was an urban legend or if the news articles I've seen online are actual or fabricated. After all, there weren't many people using the Internet back in the '80s. I have lived in the DC area since the late 80's and I don't remember hearing reports about it back then. That does not mean it did not happen, and my bet is that it did. Too many closeted Republicans around here.

[phred]

Well, that's the brass ring Nell. But, given the restrictions on classified information, finding out the details is going to be a real trick, because everyone who knows what they are can't talk about them. Mighty convenient, that. This is why some of us here have been very critical of classification. Too often it is used simply to hide things for political cover. Yes, there are times when keeping things secret is necessary, but such times are rare. Classification has grown exponentially and it is only getting worse. We need to find a way to limit its use. This is what led to my legal question above... Reporting illegal activity (or at least suspected illegal activity), even if such a report initially goes to a FISA judge, ought to prevail over restrictions about not disclosing classified information.

[bmaz]

Phred - That is a fascinating question, and there is not a good answer for it. Actually, there is one decent answer and you hit it exactly; take a complaint to the FISA panel. I pondered this very question long and hard back when the the Rockefeller conundrum was first brought to light. As EW has eloquently discussed, Rockefeller is a wimp. There certainly were things he could have done. For instance, he could have made a solid record, on the record and in public, that he had become aware of certain actions and policies on the part of the Administration that he felt were clearly illegal and unconstitutional, and demanded that an avenue and/or forum for addressing the matters be found. There were plenty of modalities that could have been used to bring the issues out into the open without disclosing classified material.

On another front, there exists under the law the defense to criminal activity known as justification. shooting and killing another is a crime, but it may be justified in order to protect yourself and/or others from harm. If I had to defend somebody on this, I would argue this theory through two prongs: 1) the conduct in disclosing classified material is justified in order to prevent the bigger crime of patently unconstitutional and illegal mass violation of fundamental rights and subversion of the constitutional government; and 2) That there is no crime in the first place when that which is disclosed, irrespective of classification status, is itself criminal conduct.

[Mimikatz]

How about the undisclosed parts of the program "just happened" to intercept communications among people, where at least one of whom was a member of Congress or political leader, and Comey et al thought this went a little far?

Cheney probably authorized even more than Bush did. There must be programs that "the VP authorized" that aren't on anyone's radar. Cheney and Rummy go back to Nixon, remember, as does Rove. Could explain a great deal.