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May 21, 2007


EW--I had begun to believe that the program that Ashcroft/Comey/Mueller disagreed with was distinct from the one Bush had confirmed. You and others pointed out that Gonzales perjured himself if it was otherwise. But this weekend, Eugene Robinson interpreted Gonzales' previous testimony in a such way as to suggest that when he said "this program" he was referring to the same program but with the revisions that Ashcroft and Comey demanded which were ultimately made.

Now Robinson's take on this makes me sleep better because I wondered just how bad this other program was...What do you think?

I agreed with Josh's point about the "first person narrative" but it reminded me of another question that I have which is why isn't Ashcroft being called?

The "Godfather" hospital room scene.

Devoted son races to save endangered invalid from approaching goons.

Comey created an emotional connection between an American cultural touchstone and the behavior of Bush and Gonzo.

You're right that Comey also added new critical elements to the story like Bush's involvement (and now his unwillingness to own up to it).

But the Republicans have lived for years by deliberately manipulating emotionally charged themes--the latest is "surrender date" for setting Iraq timetables--and in this story the emotional narrative runs against them.

Jane S

I think it's a different PART of the program--it clearly has to be. If GOnzales didn't lie in February 2006 when asked if there were disagreements about the program and replied "there were no disagreements about the program Bush has confirmed," then it says there's something more. I strongly believe the something more has to do with the amount of data they're keeping and the sorts they're doing on that data.

"Comey undercut Gonzales' effectiveness as a firewall" That is a very good point. I think it really is only a matter of time before he goes. But Bushie is still stalling because he knows that they may not be able to easily put in another firewall to keep their crimes from becoming public. Oh how I hope someone else at DOJ or an ex-DOJ employee starts to sing.

I saw DiFi on MTP Sunday -- and she only said that the domestic spying program was initially much broader -- but no details. The program really must have been something big if nobody is willing to give any details on it still...

EW, I love your tenaciousness and attention to detail in covering this one (as well as Libby trial/scandal) -- don't let go of it. I had a gut feeling from the very beginning of the USA firings that their was gold buried in this/these scandal/s.

Telecom lawyers are no dunces but I'm led to believe that for that 2 week window where the original program ran uncertified they complied because Bush said 'trust me'. Telecoms had been, we assume, particpating within this program for several years so they had to be up to speed already on how it pushed the envelope of law...yet they took the gamble, exposed their corporate asses to the liability - in a publically held company.

Here's a point of concern for me. Has the administration been hiding the most questionable aspects of the program from Congress? When Bush was with Blair last week, he repeated a couple times that Congress had been briefed. Is is it possible some members were briefed and sworn to secrecy? I doubt Bush would have gone as far out on a limb as he did in the press conference if what he was saying weren't technically true.

There is also this myth being created that Ashcroft is some great defender of liberties. In fact, I believe Comey's testimony shows:

1. Ashcroft had been signing off on the program every 45 days without ever reviewing it, probably cause he knew what a review would document. Cause Ashcroft was ill, Comey took over and had lawyers review the program, who codumented it as illegal

2. Comey had a meeting with Ashcroft a week before the hospital incident in which he presented the evidence to Ashcroft and forced Ashcroft to agree it was illegal.

3. Hence at the hospital, Ashcroft could not disagree with Comey.

So if anybody deserves credit, it is COMEY, who had put Ashcroft into a bind over this.


I agree Ashcroft is no gift to tolerance and civil liberties. But the chronology goes further back. When Jay Bybee resigned, BushCo wanted to appoint John Yoo in his place--the guy who actually drafted the deadful terror memo. Either because of bureaucratic miff (it has been reported that Ashcroft was pissed that Bybee had been working directly with OVP on the unconstitutional stuff) or because Ashcroft had a sense things at OLC were fucked up, Ashcroft refused to take Yoo. Yoo resigned, and Jack Goldsmith got appointed instead, starting two months before Comey even started. Already by the time Comey was confirmed, Goldsmith had overturned one of OLC's opinions on torture. And, if I'm doing the math correctly, the program only got recertified twice between the time Goldsmith arrived and the hospital scene.

And one more thing--the concerns about the domestic spying program were at least partly a response to complaints from a FISA Court judge. So that partly explains the timing, as well.

Ashcroft wanted to believe what he was told about Bush's newly aggressive "anti-terrorist" surveillance. So, I don't think he challenged the certification recommendations when Bybee and Yoo were running OLC. Given his reputation for not being too inquisitive, he may not have inquired at all.

When Goldsmith and Comey presented a legal analysis instead of Yoo's fiction, Ashcroft knew there were wholesale violations of law. My guess is that Yoo and the WH probably also lied to Ashcroft about the programs. Hence, his visceral backing for Comey's refusal to re-certify the President's spying program(s) unless substantive changes were made, and his support for a mass resignation of senior conservative lawyers over their dispute with the President about his authority to spy on his fellow citizens.

Which begs two questions: what were the program(s) and why should we be confident that the President implemented the changes required to bring them into even minimal compliance with established law?

Intelligent guesswork suggests that we're talking about Bush copying rivers of data flows and dumping them into Google + size server farms where NSA/DIA supercomputers troll them for "what ifs". The kind of thing that used to be done to Sergei and Raoul and Dong Li and Ahmed's communications, now applied to unknown thousands of US nationals. If 417 people (instead of 4) in Bush's WH could talk politics with Gonzales' Justice Dept, how many in Rove's Shoppe got access to these new data flows and analyses? Who wants to bet their house that Rove didn't take a close look at the newly acquired data on a long list of opponents and wavering friends? Is that the source of his smirk and "the math" for the 2006 election?

re: EW @ 10:58:
You are quite right. It is Goldsmith who is the unsung hero here.

If, in fact, the program that Gonzales referred to as "This Program" was the SAME program that had been rejected by Comey and Ashcroft, except with the changes that they had required to bring it into legality (with the same staff, the save objectives, the same structure and assets) except cosmetic or minor changes, then Gonzo not only committed Perjury, but also Obstruction of Justice. My guess would be that they changed the code name of the program when they made the changes, which would technically render it a "different" program. That would be the act of obstruction.

I'd like to see a little more heat directed @ the NYT for suppressing this story before the 2004 election. Yeah, I know, there were comments on the suppression when the story finally DID come out, but I think a revisiting is in order.

I wasn't involved at the telco site and what you say sounds true...but I was told several times (2000-2001) that the telecom's we did business with (almost all the major companies in the world) would comply with badged or "authorized" law enforcement officials to perform legal intercept---or connect the network splitting equipment to allow traffic flow to be intercepted---pretty much without internal analysis.
-The teleco corporate counsel and execs didn't want to get very deep into whatever the legal situation was with each order for intercept. Law enforcement won't go there anyway.
-The tradition going back a long time with wiretaps was to trust the warrant or order, so there's a culture of approval without internal investigation.
-The relationship between regulatory government officials and a teleco is, um, delicate, with every effort possible to keep on the good side and keep regulation at a minimum.
-Post 9/11 security concerns rocked the telcos; there was horror that something could have been done with communications to have prevented the towers, and a complete buy-in to any and all efforts to prevent this from happening again. Plus everything was new and confusing about new requirements and programs, so I wonder that any lawyer at a telco would stand up and stop a program...

2003-06 also a wave of significant telecomms mergers. AT&T, Cingular, Bell South, Nextel, ad nauseum.

What CEO or General Counsel is going to make a stink about a little warrantless wiretapping - ie, wholesale tapping into trunk lines, not individual phones or internet connections - at the expense of seeing his or her mega-merger get a little rougher treatment by Justice, the FTC or FCC? More extensive disclosure alone could cost millions. Changes and delays could cost tens of millions or more. And, heavens, what about "deal" and executive bonuses dependent on closing transactions by a date certain. No, these guys were not about to talk out of turn. They just want immunity, like Bush & Co.

Marksb and Earl - That is exactly the argument I make in EW's post just above this one. The Wiretap Act provision only requires a telecom to have a written authorization. Once they got that they are as protected as they are going to get; asking more questions and sticking thei noses in the muck would only add to their problems and liability concerns. That would sure be my position if I were their general counsel. Once the telecom has their general permission slip, what the government does is the government's problem in hteir eyes. From that point on its the Sgt. Schultz defense of "I hear nothing, I see nothing and I know nothing".

Corney trusted Ted Olson enough to ask him to be a witness to his meeting with Card.
Has there ever been an investigation as to why Olson resigned? Was Gonzales the one
who told Olson to tell the Supreme Court that the United States does not torture

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