The leak designed to save Alberto Gonzales

(updated below - updated again)

Anonymous sources seeking to protect Alberto Gonzales have leaked to the NYT the claim that what triggered the 2004 DOJ dispute over the NSA program "involved computer searches through massive electronic databases" -- i.e, "data mining" of the "records of the phone calls and e-mail messages of millions of Americans." The Post has amplified the leak.

The claim, passed on by anonymous pro-Bush sources, is rather obviously intended to exonerate Alberto Gonzales by claiming that he told the truth when he said that the 2004 DOJ dispute did not involve the NSA's warrantless eavesdropping program (because, instead, the dispute concerned "data mining"). Like the well-trained followers that they are, authoritarian Bush supporters are already seizing this leak to proclaim Alberto Gonzales vindicated.

For multiple reasons -- many of them obvious -- these stories accomplish no such thing. Can reporters covering the Gonzales story please do something other than write down the claims of pro-Gonzales sources and just use your brains a little bit:

(1) Anonymous Liberal points out the painfully obvious:

Let me start by pointing out what seems to be a flaw in this argument. For this defense to even arguably work, it has to be true that Comey and Goldsmith's objections were limited to data-mining activities and in no way pertained to any of the activities the President confirmed in December of 2005. But this graf from the Post piece seems to undercut that claim:

One source familiar with the NSA program said yesterday that there were widespread concerns inside the intelligence community in 2003 and 2004 over how much Internet and telephone data mining could occur, as well as about the NSA's direct intercepts of communications without court approval.

The Times article makes the same fatal point:

A half-dozen officials and former officials interviewed for this article would speak only on the condition of anonymity, in part because unauthorized disclosures about the classified program are already the subject of a criminal investigation. Some of the officials said the 2004 dispute involved other issues in addition to the data mining, but would not provide details.

This leak would be arguably exculpatory for Gonzales only if it reported that data mining was the only source of the Comey/Ashcroft objections, not merely one of the sources. But both articles explicitly state that there were other grounds for those objections besides data mining, leaving open -- rather than resolving -- the only relevant questions: did those objections, contrary to Gonzales' sworn testimony, relate to the "TSP's" warrantless eavesdropping?

These articles are expressly unable to answer that question, the only one that matters. Therefore, it proves nothing as to whether Gonzales lied when he testified that the Ashcroft/Comey objections had nothing to do with the "TSP." That is just basic, obvious logic.

(2) In January, 2006, Gen. Michael Hayden -- the NSA Director during the implementation of the "TSP" and the current CIA Director -- gave a press briefing at the National Press Club in which he emphatically denied that the NSA had been engaging in the type of "data mining" which this morning's articles describe. During his opening remarks, Hayden said:

Let me talk for a few minutes also about what this program is not. It is not a driftnet over Dearborn or Lackawanna or Freemont grabbing conversations that we then sort out by these alleged keyword searches or data-mining tools or other devices that so-called experts keep talking about.

This is targeted and focused. This is not about intercepting conversations between people in the United States. This is hot pursuit of communications entering or leaving America involving someone we believe is associated with al Qaeda.

He then made clear that the NSA could not and would not engage in such data mining because of the "ethical" and "practical" considerations involved:

QUESTION: Are you spying on or intercepting our communications, e-mails and telephone conversations of those of us who are organizing The World Can't Wait to Drive Out the Bush Regime?

GEN. HAYDEN: You know, I tried to make this as clear as I could in prepared remarks. I said this isn't a drift net, all right? I said we're not there sucking up coms and then using some of these magically alleged keyword searches -- "Did he say 'jihad'?

Let's get --" I mean, that is not -- do you know how much time Americans spend on the phone in international calls alone, okay? In 2003, our citizenry was on the phone in international calls alone for 200 billion minutes, okay? I mean, beyond the ethical considerations involved here, there are some practical considerations about being a drift net. This is targeted, this is focused. This is about al Qaeda.

And again:

We are not out there -- and again, let me use a phrase I used in the comments -- this isn't a drift net out there where we're soaking up everyone's communications. We are going after very specific communications that our professional judgment tells us we have reason to believe are those associated with people who want to kill Americans. That's what we're doing.

Gen. Hayden's emphatic denial that they were engaged in "data mining" was not confined to that date nor to any specific program. The denials were general denials -- they were not engaged in data mining because of "the ethical considerations involved here, there are some practical considerations." In fact, the whole point of his briefing was to insist that what they were doing was in response to the President's October, 2001 request that they expand their surveillance activities and that the program they designed had full, unanimous, unequivocal approval from NSA lawyers from the start -- something obviously inconsistent with this denial of data mining due to its "ethical considerations":

In early October 2001, I gathered key members of the NSA workforce in our conference room and I introduced our new operational authority to them. With the historic culture of NSA being what it was and is, I had to do this personally. I told them what we were going to do and why. I also told them that we were going to carry out this program and not go one step further. NSA's legal and operational leadership then went into the details of this new task. . . .

And so even though I knew the program had been reviewed by the White House and by DOJ, by the Department of Justice, I asked the three most senior and experienced lawyers in NSA: Our enemy in the global war on terrorism doesn't divide the United States from the rest of the world, the global telecommunications system doesn't make that distinction either, our laws do and should; how did these activities square with these facts?

They reported back to me. They supported the lawfulness of this program. Supported, not acquiesced. This was very important to me. A veteran NSA lawyer, one of the three I asked, told me that a correspondent had suggested to him recently that all of the lawyers connected with this program have been very careful from the outset because they knew there would be a day of reckoning. The NSA lawyer replied to him that that had not been the case. NSA had been so careful, he said -- and I'm using his words now here -- NSA had been so careful because in this very focused, limited program, NSA had to ensure that it dealt with privacy interests in an appropriate manner.

There is no way to read Gen. Hayden's briefing and reconcile it with the claim that the DOJ mutiny was triggered primarily, let alone exclusively, by some massive, sprawling data mining program. The whole point of Gen. Hayden's briefing was to assure Americans that no such program ever existed.

(3) The program to which Comey and Ashcroft objected was not one which was cancelled altogether, but rather modified to accommodate their objections. In other words, the program to which they objected continued to operate after they objected, merely with operational and legal changes necessary to satisfy them that it was legal. Comey made that repeatedly clear in his testimony:

We had the president's direction to do what we believed, what the Justice Department believed was necessary to put this matter on a footing where we could certify to its legality.

And so we then set out to do that. And we did that. . . . Director Mueller carried to me the president's direction that we do what the Department of Justice wanted done to put this on a sound legal footing.

If it were really the data mining program to which they objected, that would mean that the data mining program continued to operate, which would make Gen. Hayden's emphatic statements absolute falsehoods. Put simply, the activities to which Comey objected continued in revised fashion. Thus, if it were really the "data mining" program to which he objected, then Gen. Hayden's 2006 denial that they engage in "data mining" would be false.

(4) Whatever else is true, the claims in the NYT and the Post are completely irreconcilable with the testimony of FBI Director Robert Mueller regarding the Comey/Ashcroft objections:

"I had an understanding that the discussion was on a N.S.A. program," Mr. Mueller said in answer to a question from Representative Sheila Jackson Lee, Democrat of Texas, in a hearing before the House Judiciary Committee.

Asked whether he was referring to the Terrorist Surveillance Program, or T.S.P., he replied, "The discussion was on a national N.S.A. program that has been much discussed, yes."

By definition, Mueller testified that the DOJ conflict was not about some separate data mining program -- at least not only -- because, according to Mueller, it was about "a national N.S.A. program that has been "much discussed". The only NSA program that has been "much discussed" is warrantless eavesdropping, not data mining.

Mueller obviously knew exactly why he was being asked these questions and his answers made clear that Gonzales -- by claiming that the DOJ objections had nothing to do with the "TSP" -- was lying. Mueller's testimony is completely inconsistent with the attempt by the NYT and Post to exonerate Gonzales by suggesting that the only DOJ objections were over "data mining," not warrantless eavesdropping.

(5) Even if "data mining" activities were part of what triggered the DOJ objections, that would not, as Big Tent Democrat points out, mean that Gonzales told the truth, since the claim from Bush followers from the beginning has been that the TSP included data mining, and indeed, that this was the reason why FISA warrants were obsolete. That is the same point which Sen. Feingold -- who has reviewed the classified information -- seems to be making in the NYT article: that Judiciary Committee members "considered the eavesdropping and data mining so closely tied that they were part of a single program."

All of this merely underscores, rather than eliminates, the urgent need for Congress to find out what exactly the administration was doing in 2004 that prompted the entire top level of the DOJ to threaten to resign if it continued. Now that the administration has leaked its own data mining activities, there is no reason to do anything other than subpoena Comey and Ashcroft and ask if their objections were in any way related to warrantless eavesdropping or confined exclusively to "data mining." The Judiciary Committee has previously subpoenaed documents reflecting what the DOJ's real concerns were, and the White House has no justification for withholding them.

* * * * *

What we have here, yet again, is the administration completely manipulating the NYT by selectively leaking previously "super-top-secret" information when doing so helps them politically. This, as always, is followed by the newspaper -- desperate for "scoops" -- outrageously granting anonymity to administration officials to do nothing other than disseminate pro-government propaganda, and turning its front pages over to the administration's claims with very little critical analysis or real scrutiny.

It is obviously "news" that the administration was data mining and that this prompted strenuous objections, or at least it is news that anonymous administration officials claim this was so. So there is nothing objectionable per se about reporting this (though, given that these are plainly pro-administration leaks, it is inexcusable to grant them anonymity).

But, and this is the critical point, the leaked report, for so many reasons -- see above -- cannot begin to exonerate Alberto Gonzales or prove that he told the truth. Yet there is the NYT dutifully claiming that this leak "helps to clarify the clash this week between Attorney General Alberto R. Gonzales and senators who accused him of misleading Congress and called for a perjury investigation," while the Post proclaims that "the report of a data mining component to the dispute suggests that Gonzales's testimony could be correct."

According to the administration, these are spying activities that ceased three years ago. According to the Bush DOJ's emphatic conclusion, these spying activities were patently illegal -- so illegal that they all threatened to resign if they continued. Putting those two premises together, why is it that we do not know what these activities are? What possible excuse exists now for continuing to keep them concealed? Now that the administration has leaked its own allegedly defunct and illegal program, there should a full airing of what they were doing that prompted the DOJ mutiny.

UPDATE: Here is a snapshot of the United States from 2000-present. The Bush administration whispers something to "journalists." They repeat it uncritically on their front page. Other "journalists" read it. They believe it uncritically and then repeat it. With nothing else required, it becomes "fact" (that is the Jessica Lynch and Pat Tillman and Iraqi WMD Process, repeated over and over and over).

Hence, Time's Karen Tumulty this morning recites the storyline of the NYT and pronounces:

This distinction -- one that Senators have not generally made when discussing the two programs --probably means that Gonzales did not commit perjury in last week's testimony before the Senate Judiciary Committee.

And presto, just like that -- from the administration's anonymous lips to the American public, making a pit stop with leading journalists only to be amplified and bolstered but never examined or investigated -- Alberto Gonzales is vindicated.

Equally revealing, several regular Swampland commenters objected to her gullible ingestion of the NYT leak and "caution[ed] against taking the NYT story on its face." To her credit, Tumulty notes that warning in an update, but this is how our country's political press works. The administration secretly decrees. Their selected journalist passes it along, soaking up the rewards of their "scoop." Other journalists believe it and disseminate it. And all administration problems are solved, painlessly fading away.

UPDATE II: Marty Lederman -- in the "P.S." section of a long post analyzing the legal implications of "data mining" -- again makes a point that I have also emphasized several times this week and will likely keep emphasizing. Namely, whatever one's views are on how strong of a perjury charge one can mount here against Gonzales for this specific testimony -- and I have gone back and forth on that question several times this week -- that is but a mere sideshow in the NSA scandal.

The NSA scandal is not now and never has been about perjury. It is about highly illegal spying activities by our government on American citizens.

The scandal arose because the Bush administration spied on Americans illegally for many years and concealed its criminality. It did so (a) by eavesdropping on the telephone calls of Americans without warrants even though FISA makes it a felony to do that, and (b) by engaging in the even-worse though still unknown spying activities which caused Ashcroft, Comey, Mueller et al. to threaten to quit if it did not cease.

This is where the focus should be, and my concern from the start about the Gonzales perjury focus is that it would overshadow that far more important issue. We cannot spend the next 18 months in a mind-numbing semantic debate over what the "TSP" means or does not mean in the administration's misleading testimony and public statements. That is far afield from the real criminality here and it will obscure it. As Lederman says:

The focus now, in other words, should be on the substance of the NSA and FBI conduct, on DOJ's justifications therefore, and on the breakdown in the separation of powers -- and not the parsing of the Attorney General's testimony, which has never been useful for anyone in Congress anyway.

What was the administration doing prior to 2004 that was so illegal that the entire top level of the DOJ threatened to quit over it? It's nice that the Senate Judiciary Committee wants a criminal investigation concerning Gonzales' perjury.

But the real criminal investigation that is needed here -- and that has been needed for quite some time -- is an investigation over the underlying surveillance crimes -- both warrantless eavesdropping and whatever else it was that they were doing that caused the DOJ mutiny on the ground that it was against the law.