DOJ: ‘Confusion’ Reigns Over Surveillance Program

Via ex-Justice Department lawyer Marty Lederman, Justice Department spokesman Brian Roehrkasse released a statement yesterday to reconcile the obvious inconsistencies between Alberto Gonzales’s testimony and former Deputy Attorney General James Comey’s on warrantless surveillance. Roehrkasse blames Gonzales’s woes on the difficulty of publicly discussing classified programs. In other words, no one should expect Gonzales to be candid, but we should nevertheless trust him that Comey wasn’t dissenting from the surveillance program that everyone understands as the “Terrorist Surveillance Program.”

We humbly recommend that you read our post from last night laying out the probable source of all this “confusion,” as Roehrkasse puts it (Democrats would call it dishonesty). In any case, watch Roehrkasse walk the line:

Confusion is inevitable when complicated classified activities are discussed in a public forum, where the greatest care must be used not to compromise sensitive intelligence operations. The Administration first used the term “Terrorist Surveillance Program” in early 2006 to refer publicly to a particular intelligence activity that the President publicly acknowledged and described in December 2005 — that is, the NSA’s targeting for interception international communications coming into or going out of the United States where the NSA has reasonable grounds to believe that a party to the communication is an agent or member of al Qaeda or an affiliated terrorist organization. That is the only intelligence activity that the Attorney General meant when he used the phrase “Terrorist Surveillance Program.”

He continues:

When Members of Congress and the public, after that activity was disclosed, questioned whether it was lawful, the Attorney General noted that there had not been serious disagreements raised by the Justice Department about the lawfulness of that particular activity — i.e., the interception of international communications of al Qaeda. That statement was accurate. There was not a disagreement between the Justice Department and the White House in March 2004 or any other time about whether there was a legal basis for that particular intelligence activity.

Indeed, the white paper that the Department sent to Congress on January 19, 2006 reflects and is consistent with the legal position taken by the Department in 2004, including under Mr. Comey’s tenure, concerning the legal basis for that activity. The disagreement that occurred in March 2004 concerned the legal basis for intelligence activities that have not been publicly disclosed and that remain highly classified.

The May 17, 2006 letter from Director of National Intelligence Negroponte is consistent with the Attorney General’s testimony. The letter indicates that the March 10, 2004 meeting included a briefing on the activity we have called the “Terrorist Surveillance Program,” without indicating whether other intelligence activities were discussed.”

Notice how meticulously that statement is crafted. There were no “serious disagreements raised by the Justice Department about the lawfulness of that particular activity — i.e., the interception of international communications of al Qaeda.” That’s probably true. What it neglects is that Comey had, as he testified, serious disagreements about other aspects of Program X, so much so that he could not certify the program as being legal.

Furthermore, as Lederman writes, Roehrkasse parses very carefully the pre- and post-Comey versions of the program, and settles on the post-Comey version as being the TSP that President Bush announced. That allows him to neglect entirely the October 01-March 04 version of the program that Comey found illegal — the very heart of the issue, and the reason why Gonzales’ parsing has gotten him into potential perjury trouble.

Finally, Roehrkasse acknowledges that the infamous March 10, 2004 briefing for Congress was a briefing on TSP — Gonzales said at that briefing, lawmakers were told of Comey’s objections to “other intelligence activities” — but says Negroponte’s letter doesn’t indicate “whether other intelligence activities were discussed.” If he thinks he’s doing his boss a favor here, he’s not. FBI Director Robert Mueller testified yesterday that Comey’s objections were about the TSP, contradicting Gonzales on a crucial pivot-point in the attorney-general’s testimony. Maybe other intelligence activities were discussed, but now that Mueller has backed Comey, they’re irrelevant. The only relevance is Comey’s objections to TSP — the surveillance program that began in October 2001, no matter how the Bush administration wishes to obscure the issue.