TPMmuckraker | Talking Points Memo | Another Surveillance Program or a Lie?

Another Surveillance Program or a Lie?

By Laura McGann - May 22, 2007, 5:25PM

Either James Comey was talking about a new, secret surveillance program in his testimony last week, or Alberto Gonzales lied to Congress in 2006 about the NSA’s warrantless wiretapping program.

In the initial coverage of Comey's testimony, almost all reports treated it as a given that the clandestine program at the heart of the now-infamous late-night race to Ashcroft's bedside was the NSA's warrantless wiretapping program -- what the White House insists on calling the 'Terrorist Surveillance Program'. But that may not be the case.

After the New York Times uncovered how the NSA was tapping calls between the U.S. and foreign countries, Gonzales testified before Congress that there were no objections to the program’s legality in the Justice Department.

But presumably the hospital room showdown would count as an objection.

So, either the press jumped the gun last week or Gonzales lied about how officials in the Justice Department actually interpreted the program's legality.

Either way, Sens. Arlen Specter and Pat Leahy want documents explaining the program that caused the hospital-night scramble. In a letter Gonzales, that Paul posted here this afternoon, they ask for the NSA wiretapping documents, but end with a caveat. If it wasn’t the NSA program that caused the bedside confrontation, they want information on whatever did:

If you do not consider the surveillance program that was the subject of discussion during the hospital visit and other events that former Deputy Attorney General James Comey described in his May 15, 2007 testimony before the Senate Judiciary Committee to be covered by the requests made above, please provide all documents described in those requests relevant to that program, as well.

Steve Aftergood, who heads up the Project on Government Secrecy at the Federation of American Scientists, points out how craftily Specter and Leahy chose their words by making getting the documents the issue, rather than pointing out the possible lie.

“I think there is some gamesmanship going on. Leahy and Specter are attempting to go beyond on that,” Aftergood said. “I think this letter advances the debate.”

Comments (67)

Mojotron3000 wrote on May 22, 2007 6:33 PM:

Going to bet Gonzo uses the "weasel words" defense and will claim that he said there were no objections to "the plan that Bush signed off on"; what Comey & co. objected to was an earlier version of the plan. Completely misleading and dishonest, but will probably be enough to get out of lying to congress.

hungrycoyote wrote on May 22, 2007 6:40 PM:

Ever since Comey refused to name the program that was the subject of the hospital visit, I've had a gnawing suspicion that it wasn't the NSA program we already knew about. I'm glad to see somebody is digging deeper.

JAC wrote on May 22, 2007 6:41 PM:

Yes, there have been two separate programs reported.

One involved warrantless wiretaps. The other involved Internet traffic:

"The secret room also included data-mining equipment called a Narus STA 6400, "known to be used particularly by government intelligence agencies because of its ability to sift through large amounts of data looking for preprogrammed targets," according to Klein's statement."

http://www.wired.com/science/discoveries/news/2006/04/70619

To the best of my knowledge, all legal challenges to this program have been shut down due to National Security challenges from the Bush Administration.

This is NOT the program that Justice Anna Diggs Taylor ruled on in Michigan last year - that was about warrantless wiretapping.

Chris wrote on May 22, 2007 6:46 PM:

Given the that Gonzo said every single time in his initial testimony that he was referring to "the program the President disclosed" (which was the NSA wiretap program story the Times reported) it seems pretty darn clear that he was very carefully NOT referring to anything but the NSA program.

And, given that the FBI director is in the middle of the hospital meeting, it seems like it was clearly a domestic program.

So, Gonzo was telling the truth, and there's another non-NSA domestic spying program that we know not a goddamn thing about. That's my take, anyway.

SC: still: Gonzo is STILL ripe for impeachment

Chris wrote on May 22, 2007 6:54 PM:

My posting crossed with JAC above, and I think JAC has it exactly right: there was NSA spying (whether FISA-complaint or not, almost certainly not) and there was "internet spying" which to me boils down to DNC/DSCC/DCCC pre-election emails...

SC: smell: nothing Gonzo has done passes the smell test...

donkey wrote on May 22, 2007 6:58 PM:

if ashcroft

didn't like the

program and thought it was

illegal

well...

you can imagine

heh...

bluestatedon wrote on May 22, 2007 7:03 PM:

I'd bet a big box of money that the surveillance program Ashcroft refused to sign off on was aimed at Bush's domestic political opponents, i.e., anti-war activists, community organizations, educational institutions, churches, and of course, Democrats.

Unfortunately, unless someone inside spills the beans, I doubt we'll ever find out the truth.

Kevster wrote on May 22, 2007 7:07 PM:

Either the Judiciary committee or the Intelligence committee (or both) need to go into closed session and get Comey to clarify this. We know next to nothing about the secret surveillance programs that have been going on for nearly six years. It's high time to find out what's been going on.

If Ashcroft couldn't sign off you know it had to be very bad. SHINE A LIGHT ON THIS CONGRESS!!

ahem wrote on May 22, 2007 7:10 PM:

It's been fairly clear that one of the objections to FISA warrant requirements stemmed from the deployment of automated massively-parallel voice and digital data filtering. When the Snoop Box is analyzing thousands of streams, and recording any that fire the semantic trigger, then the old procedure that was based upon an agent listening to a tap was rendered moot.

That's to say, it wasn't advancements in technology used by people being snooped upon, but the technology used to do the snooping.

"there's another non-NSA domestic spying program that we know not a goddamn thing about."

At very least. And I think that a couple of Dems on Intel -- Feinstein, for instance -- know about them but need a way for the details to become public.

T DeVries wrote on May 22, 2007 7:18 PM:

Agreeing: the director of FBI was involved and apparently threatened to quit over the issue. That sounds like more than a turf battle with NSA.

And Gonzales referred to the 'program the President confirmed....'which would be the FISA/wiretap business.

Something else was out there.

Rebel wrote on May 22, 2007 7:19 PM:

Specter is such a putz. When he had leadership of the committee, oversight was practically nil and when he did have Gonzales testify, he refused to put Gonzales under oath. Gonzo has been mocking him since.

So today a good comparison is the Republican Oversight Committee and the DOJ. Both are totally Republican party first and any scraps of humanity left might possibly for all Americans.

Anonymous wrote on May 22, 2007 7:26 PM:

NARUS STA 6400: Comey apparently said that there was some illegal stuff going on. Wow, all this US Attorney prosecutor "inside information" suddenly shows up inside the GOP offices.

A. How many NSA contractors were providing domestic surveillance information through AT&T/Verizon/NARUS and providing this directly or indirectly through intermediaries to the GOP; what were the conditions of the contract and agreed to "immunity" despite Comey's assertions taht the activity was not lawful?

B. How did the GOP/WH leadership "know" about something that was supposedly classified inside the US Attorneys office; how many of the WH acdtions against US Attorneys are related to NSA contractors illegally providing through intermediaries this GOP-interest-data, in violation of FISA?

C. Is there some explanation how the WH staff -- which supposedly only reads things in the newspapers -- can get access to classified DOJ/FBI investigations related to GOP?

D. How many contractors have been assigned to conduct domestic surveillance; and have been threatened with NSLs/gag orders to keep quiet about the domestic monitoring that GOP relies on to get access to US Attorney confidential information?

E. Which contractors have been threatened with NSLs and gag orders if they dare discuss the terms of the contracts which allow a free flow of information -- illegally -- from the NSA contractors, to the GOP?

F. Which intermediaries are involved in transferring data from NSA contractors, to other third parties, then to the White House, GOP, and DOJ Staff leadership in violation of FISA?

G. DoJ OPR was shut down. What did AG Gonzalez hope to block DOJ OPR from reviewing as it relates to the contract terms of NSA contractors providing data in violation of FISA to the GOP and AT&T-affiliated contractors for purposes of doing media messaging analysis?

H. Does the Verizon General Counsel have any explanation why one of its counsel fatally asserted that the NSA "may" have been given access; but then the Verizon story changed to "can neither confirm nor deny"?

I. What does Berenson with Sidley Austin -- providing legal counsel for AT&T, Sampson and Ralston -- have to say about the apparent inconsistencies between [a] what Comey said was illegal NSA-FISA violations which DOJ was talking about; but [b] Berenson's assertion that the NSA activity was secret and could not be disscussed?

J. As with the US Attorney firings, GOP was releasing public statements to couch the discussion. Various GOP-affiliated legal counsel associated with AT&T/Baker have made public comments suggesting that the President has privilege. Yet, Comey argues the opposite: that the activity was not lawful. How does Berenson reconcile the inconsistency between [a] legal counsel duty to comply with the law; [b] illegal use of data to support prisoner abuse and kidnapping; [c] US Attorney/DOJ Staff e-mails showing GOP lawyers were issuing misleading editorial; and [d] COmey's testimony which says the NSA activity was illegal; and [e] Berenson's out of court assertions that the activity was lawful?

K. What possible explanation can Berenson provide to justify confidence that Comey's statements on the illegal surveillance are or are not truthful; yet the public and courts can rely on AT&T or Berenson's statements outside court in re the classification of this [comey-asserted] illegal activity?

L. What is Berenson's explanation how the data that was illegal captured and used to support prisoner abuse, rendition, domestic surveillance, unlawful-warrantless searches, and interrogations of American citizens without legal counsel?

M. Does Berenson have any explanation how this activity could occur while he was in the WH counsel's office; yet he would have us believe that he has no clue about it?

N. Why should anyone believe Berenson's statements or his assertions that he's fully complying with the laws on all legal issues?

O. How many e-mails did Berenson get while he was in the WH Counsel's office through the RNC private e-mail systems?

P. Why is Berenson asserting that the surveillance program was "classified," yet he knows or should know that ORCON prohibits classification of [comeny-asserted] illegal activity?

Q. What is Berenson's explanation in light of Reynolds when the substantial portion of that surveillance has less to do with national security, but more to do with hiding evidence of illegal activity: Domestic surveillance of lawful opposition to illegal warfare; FISA violations; known illegal use of NSLs; and or use of domestic surveillance to target/intimidate/identify people attempting to disclose evidence of war crimes?

R. How can Comey talk about "illegal activity" yet Berenson argues that the issue "cannot be discussed"; does Berenson not know that illegal activity cannot be lawfully classified udner ORCON; or is there some other hidden rule that "permits" former WH counsel to make an out of court, inconsistent statement with Comey on whether something is or is not lawful?

S. How much data was transferred using the NARUS STA 6400 to support rendition, scheduling of Boeing aircraft, illegal surveillance, unlawful kidnapping, transport of prisoners in violation of Geneva to Eastern Europe?

T. How many Americans were illegally interrogated using DHS warrantless surveillance procedures which Berenson, Gonzalez, and Yoo knew or should have known were in contravention ot the Bill of Rights giving witnesses-defendants a chance to have counsel present?

U. Is it not odd that Berenson is asserting "rights" for his clients; but other Americans were secretly deprived their rights to counsel, privacy, and the chance to invoke the 5th?

V. How many times did the "request to invoke the 5th" on issues of privacy did WH Counsel Berenson and others use as a basis under NSL assignments to target someone for increased surveillance, monitoring, harassment, intrusion, interviews; why the double standard on where Americans can or cannot enjoy their Constitutional rights?

V. How many subpoenas has Sidley Austin issued to harass, intimdiate, or keep silent American citizens who dare to attempt to discuss the alleged relationship between [a] Berenson; [b] FISA-Geneva vioations; and [c] allegations that Staff counsel have not fully complied with the Geneva Conventions?

W. How many NSLs has DOJ-FBI issued to silence public discussion/gag them on alleged complciity of DOJ Staff counsel, WH Counsel, and outside counsel on issues of war crimes, prisoner abuse, illegal warfare, FISA violations, and other breaches of the Supreme Law; where are the records kept inside DOJ to monitor and review whether the NSL issued is or is not related more to national security, not a private concern by formerly assigned WH counsel that the issues are getting to close to issues of war crimes?

X. How many RNC e-mails does Berenson have under his control that he acquired while WH Counsel?

Y. How does Berenson "know" that his client Ralston has these e-mails unless he's reviewed them; when did Berenson review the e-mails; how many e-mails did Ralston get that Bereson was CC:copied on while he was WH counsel?

skeptic wrote on May 22, 2007 7:32 PM:

Feinstein and Rockefeller did not want to know what was going on. Chickenshits

nitty wrote on May 22, 2007 7:56 PM:

Can we make one of those V's a Z?

lilybart wrote on May 22, 2007 8:13 PM:

I think they were going to spy on the US Attorneys in addition to everyone else.

JNagarya wrote on May 22, 2007 8:24 PM:

I've been asking the obvious question since the Comey testamony:

Why would FBI Director Mueller threaten to resign over a program that wasn't located in the FBI?

That would mean Gonzales may have told the truth when he responded to Schumer's question about reports of disagreement about the NSA program with denial. Because he then added that it was another program, which he refused to identify, about which there was disagreement.

SC = jump. As in, I didn't jump the gun.

Yes: the gun was jumped: Why would the FBI Director threaten to resign over a progam which wasn't in the FBI?

All I did was read Schumer's question, and Gonzo's answer, without presumption. And listen to Comey's testimony without seeking to hear what I wanted.

Joe Buck wrote on May 22, 2007 8:28 PM:

Occam's Razor: the simplest explanation is the most likely one.

Explanation #1: there's a completely new program that no one has heard about, that outraged multiple Justice Dept. officials to the point where they threatened to resign, but there has been no leak at all suggesting what it is about.

Explanation #2: it's about what everyone thinks it's about, and Gonzalez lied.

I'll take #2.

JNagarya wrote on May 22, 2007 8:30 PM:

"Going to bet Gonzo uses the "weasel words" defense and will claim that he said there were no objections to "the plan that Bush signed off on"; what Comey & co. objected to was an earlier version of the plan. Completely misleading and dishonest, but will probably be enough to get out of lying to congress.

"Posted by: Mojotron3000
Date: May 22, 2007 06:33 PM"

You miss the point. Ask yourself: Why would the FBI Director threaten to resign over a program not located in the FBI?

I've been asking that obvious question since putting together Gonzo's February, 2006 answer to Schumer's question, with Comey's testimony. Both refused to identify the program about which there was disagreement. But among those who threatened to resign was the FBI Director.

JNagarya wrote on May 22, 2007 8:36 PM: