Anonymous Liberal is trying to sort through something I've been looking at for a while: to what degree was Ashcroft fully read into the warrantless wiretap program? I think there's a two-part answer to this question. As I'll show below, I think BushCo had Ashcroft approve the multiple aspects of "the program" in isolation from each other, giving him an incomplete picture of how the parts worked together. Furthermore, as they did with Congress, they made sure that no one who could offer any real advice on the program every got read into it, forcing Ashcroft to make his determinations from a position of ignorance. And all of this likely fits into a larger process, whereby Cheney and Addington worked directly with John Yoo to obtain the substantive approvals from DOJ, thereby bypassing Ashcroft on the larger issues. All of which might explain why Ashcroft raised the issue after Gonzales and Card tried to manhandle him while he was recuperating the ICU ward.
Contrary to what Spencer Ackerman claims, this is not "the first time" the allegation that Ashcroft wasn't adequately read into this program has been made. Aside from Whitehouse's questioning of Gonzales in his last SJC appearance and the correction Gonzales submitted after that appearance, a number of reports have laid out the Cheney-Addington approach to shredding the Constitution more generally.
Cheney and Addington's MO
Take this article from December 2005, laying out how John Yoo bypassed normal review processes when writing opinions that justified these expansive policies (including the warrantless wiretapping program):
Within weeks [of 9/11], Mr. Yoo had begun to establish himself as a critical player in the Bush administration's legal response to the terrorist threat, and an influential advocate for the expansive claims of presidential authority that have been a hallmark of that response.
While a mere deputy assistant attorney general in the legal counsel office, Mr. Yoo was a primary author of a series of legal opinions on the fight against terrorism, including one that said the Geneva Conventions did not apply and at least two others that countenanced the use of highly coercive interrogation techniques on terror suspects. Recently, current and former officials said he also wrote a still-secret 2002 memorandum that gave legal backing to the administration's secret program to eavesdrop on the international communications of Americans and others inside the United States without federal warrants.
A genial, soft-spoken man with what friends say is a fiercely competitive streak, Mr. Yoo built particularly strong working relationships with several key legal officials in the White House and the Pentagon. Some current and former government officials contend that those relationships were in fact so close that Mr. Yoo was able to operate with a degree of autonomy that rankled senior Justice Department officials, including John Ashcroft , then the attorney general.
Mr. Yoo's belief in the wide inherent powers of the president as commander in chief was strongly shared by one of the most influential legal voices in the administration's policy debates on terrorism, David S. Addington, then the counsel to Vice President Dick Cheney. Documents and interviews suggest that those views have been part of the legal arguments underpinning not only coercive interrogation and the prosecution of terrorism suspects before military tribunals but also the eavesdropping program.
Some current and former officials said the urgency of events after Sept. 11 and the close ties that Mr. Yoo developed with Mr. Addington (who is now Mr. Cheney's chief of staff), Mr. Gonzales, Mr. Flanigan and the general counsel of the Defense Department, William J. Haynes II, had sometimes led him to bypass the elaborate clearance process to which opinions from the legal counsel office were normally subjected.
"They were not getting enough critical feedback from within O.L.C., or from within the Justice Department, or from other agencies," one former official said of Mr. Yoo's opinions. Officials said senior aides to Attorney General Ashcroft also complained that they were not adequately informed about some of the Mr. Yoo's frequent discussions with the White House.
Mr. Yoo said he had always duly notified Justice Department officials or other agencies about the opinions he provided except when "I was told by people very high in the government not to for classification reasons."
So, we know Yoo wrote the opinion justifying the warrantless wiretapping program. We know Yoo sometimes bypassed normal clearance processes. And we know he did this when
Dick Cheney "people very high in the government" told him not to share the opinions with others "for classification reasons." This method has been mapped in a number of articles since then, including the WaPo's Angler series (though that article specifically maps what happened with military commissions). So we've known for some time that Cheney and Addington worked directly with John Yoo in an effort to bypass normal vetting processes and John Ashcroft himself.
Whitehouse Quizzes Gonzales
Reports like this are, I think, what lay behind Senator Whitehouse's questioning of Gonzales in the Attorney General's last appearance before the Senate Judiciary Committee. Here's the long passage Anonymous Liberal extracted:
WHITEHOUSE: Thank you, Mr. Chairman.
Mr. Gonzales, just before our little break, you indicated, in describing your reason for visiting the stricken attorney general in his hospital room was to alert him to the change in the Department of Justice view of the program at issue.
And you testified that Attorney General Ashcroft -- and these are the words that I wrote down -- quote, "Authorized these activities for over two years."
Is it your testimony, under oath, that Attorney General Ashcroft was read into and authorized the program at issue for two years prior to your visit to him in that hospital?
GONZALES: I want to be very careful here, because it's fairly complicated.
What I can say is I'm referring to intelligence activities that existed for a period of over two years and what we were asking the Department of Justice to do was -- which they had approved and what we...
WHITEHOUSE: "They had approved" I guess is the point that I'm getting at.
GONZALES: General Ashcroft, yes.
WHITEHOUSE: You're saying that Attorney General Ashcroft...
WHITEHOUSE: ... had authorized this program for over two years prior to that day...
GONZALES: General Ashcroft had authorized these very important intelligence activities for a period of two years. We had gone -- we had gone to the deputy attorney general and asked him to reauthorize these same activities.
But there are facts here, and I want to be fair to everyone involved. They're complicated. And we have had discussions in the Intel Committees about this issue. I'll try to be as forthcoming as we can.
Let me just say I believe everyone acted in good faith here. All the lawyers worked as hard as they could to try to find a way forward, the right solution.
But, yes. I mean, the view was is that these activities had been authorized.
GONZALES: We informed...
WHITEHOUSE: By Attorney General Ashcroft?
GONZALES: By Attorney General Ashcroft. But there are additional facts here that -- I want to be fair. And it's complicated, but...
WHITEHOUSE: I'm just trying to nail that one fact down. I'm not trying to...
GONZALES: Well, I'm not sure that I...
GONZALES: I'm not sure I can give you complete comfort -- I'm not sure I want to give you complete comfort on that point, out of fairness to others involved in what happened here.
I want to be very fair to them. But what I'm -- what we are talking about...
WHITEHOUSE: (inaudible) different question.
LEAHY: Why not just be fair to the truth?
Just be fair to the truth and answer the question.
WHITEHOUSE: Was Attorney General Ashcroft read into, and did he approve the program at issue from its inception?
GONZALES: General Ashcroft was read into these activities, and did approve these activities...
WHITEHOUSE: Beginning when?
GONZALES: From the very beginning. I believe, from the very beginning.
WHITEHOUSE: All right.
GONZALES: But, well...
WHITEHOUSE: I'm sorry? My question...
GONZALES: Again, it's very complicated. And I want to be fair to General Ashcroft and others involved in this. And it's hard to describe this in this open setting. We've tried to be -- we've tried to discuss -- we have discussed in the Intel Committees, in terms of exactly what happened here.
But I can't get into the fine details, quite frankly, because I want to be fair to General Ashcroft.
WHITEHOUSE: And I think it's also important that people know whether or not a program was run with or without the approval of the Department of Justice but without the knowledge and approval of the attorney general of the United States, if that was ever the case.
GONZALES: We believe we had the approval of the attorney general of the United States for a period of two years.
WHITEHOUSE: For a period of two years?
GONZALES: That is what...
WHITEHOUSE: Also from the inception of the program?
GONZALES: From the very -- from the inception, we believed that we had the approval of the attorney general of the United States for these activities, these particular activities. [my emphasis]
Whitehouse's questions directly address the question of whether Cheney and Addington bypassed Ashcroft on this program in particular. But Whitehouse doesn't really get a straight answer here (go figure!).
Activities, Not Program
Note Gonzales' parsing strategy here (and he got away with it, too--usually Whitehouse catches Gonzales in this shit). Whitehouse repeatedly asks Gonzales if Ashcroft was read into and approved of the program. And Gonzales responds, seven times, that Ashcroft was read into and approved of the activities. This is very closely related to Gonzales' more famous dodge, claiming he was referring to the post-2004 "TSP" when he told Congress that there had been no disagreement about the program, pretending that that program was different from the one instituted in 2001 because its constituent parts had changed.
But there is a very significant difference. We know "the program" consists of several types of activities. There's the collection of data from US telecommunication switches. There's the data mining of that data to identify potential targets for wiretapping. And there's the wiretapping of those targets, which has been alternately described as exclusively US to foreign with ties to Al Qaeda, or US to probably foreign with some foreign intelligence function.
Aside from the questions underlying wiretapping in the US of targets believed to be foreign, there is nothing about the activities--taken independently and presuming they're targeting only foreigners--that would be highly objectionable. In other words, if you wanted to get "a program" approved, you might be better off getting its constituent parts approved, without telling the guy approving those activities that they all worked together as one program, and that they didn't bracket off the data of American citizens.
No Technical Advice
Which brings us to the objections Ashcroft raised from his hospital room. For ease of understanding, I'm going to put both versions of that event next to Jay Rockefeller's objections raised one year earlier, after the last briefing Congress got before the March 10 crisis briefing.
Mueller's version of what Comey told him:
The AG also told [Card and Gonzales] that he was barred from obtaining the advice he needed on the program by the strict compartmentalization rules of the WH. [my emphasis]
Gonzales' correction of his testimony:
I also recall that, prior to the time I departed, General Ashcroft briefly mentioned a concern about security clearances for members of his staff regarding the NSA activities that were the subject of the presidential order.[my emphasis]
Clearly the activities we discussed raise profound oversight issues. As you know, I am neither a technician nor an attorney. Given the security restrictions associated with this information, and my inability to consult staff or counsel on my own, I feel unable to fully evaluate, much less endorse these activities.
As I reflected on the meeting today, and the future we face, John Poindexter’s TIA project sprung to mind, exacerbating my concern regarding the direction the Administration is moving with regard to security, technology, and surveillance.
Without more information and the ability to draw on any independent legal or technical expertise, I simply cannot satisfy lingering concerns raised by the briefing we received. [my emphasis]
I love how they even got Rockefeller using the "activities" label!
Regardless, Rockefeller's and Ashcroft's concern appear to be the same--because they couldn't read their staffers into the program, they couldn't really assess the program. Also note Mueller's presumed repetition of Comey's mention of compartmentalization--precisely the kind of classification game that might cause John Yoo to refuse to share parts of an opinion with John Ashcroft or others at DOJ.
Of course, that doesn't completely answer questions about how much Ashcroft knew of the program. I kind of imagine his hospital question to derive from the anger of being fooled, as if he was complaining that, by preventing Ashcroft from really understanding the program, Cheney and Addington had tricked Ashcroft into approving it over those two years. Which would be consistent with Gonzales' concerns about "be[ing] fair to General Ashcroft"--if Gonzales knows that that approval was only gained by keeping Ashcroft ignorant of how all the pieces work together, then he may well be reluctant to make grandiose statements about that approval under oath. Which also might explain why Gonzales felt the need to make the correction regard Ashcroft's concerns about security clearances.
Update: Via email, bmaz reminds me that Ashcroft had a date with the Intelligence Committees, though it's not clear whether he kept the date with the Senate Intelligence Committee. From an old post:
After all, "they" (SSCI) also had plans to call an equally critical witness, John Ashcroft, a while back. And that seems to have fizzled into extended negotiations with DOJ over his testimony. And "they" (HPSCI) actually did interview Ashcroft, to little fanfare, though the cryptic comments from Reyes and Holt don't enlighten us at all on the program [update hat tip Staar].
If Ashcroft did, in fact, chat with the SSCI, then it might explain why Whitehouse--who serves on both the SSCI and the SJC--might have asked the questions he did.
If Ashcroft hasn't done his SSCI tour, though, I do hope Whitehouse gets Ashcroft to explain what Gonzales meant with all his parsing of "activities."