Mueller Notes: Ashcroft out of White House Surveillance LoopThere’s no shortage of intrigue over the Bush administration’s warrantless surveillance efforts contained in FBI Director Robert Mueller’s just-released notes on the March 10, 2004 tussle in John Ashcroft’s hospital room between Alberto Gonzales, Andy Card and Jim Comey.
First thing to note. Mueller testified on July 26, contra Gonzales, that the legal dispute between Gonzales and Acting Attorney General Jim Comey that prompted the rush to Ashcroft’s hospital room had to do with the program now known as the Terrorist Surveillance Program. (Gonzales insisted on July 24, as he had in testimony last year, that Comey objected to “other intelligence activities,” not the TSP.) The surveillance program known as the TSP was but one component of a constellation of surveillance activities, even though Comey and others at the time of the March 2004 controversy considered the whole effort — authorized under a single 2001 executive order — to be a unitary enterprise. Now notice that all throughout Mueller’s memo, he refers to “program” — singular.
Secondly, the only non-redacted portion of the notes concerns the Ashcroft hospital visit, which takes up only a scant four paragraphs. Ashcroft — who, contrary to Gonzales’ portrayal, is described in Mueller’s notes as “feeble, barely articulate, clearly stressed” — isn’t talking about what happened during the visit. But Mueller reveals something intriguing. According to the FBI director, Ashcroft tells Card and Gonzales that “he was barred from obtaining the advice he needed on the program” — again, note program, singular — “by the strict compartmentalization rules of the [White House.]” Now that’s cronyism! For the first time, there’s the suggestion that even John Ashcroft — the attorney general of the United States and by all accounts a loyal Bushie — didn’t know all there was to know about the warrantless surveillance efforts. Apparently, Ashcroft wasn’t considered trustworthy enough to be kept in the loop on the most legally controversial program of them all — though his counterpart at the White House, and eventual successor, clearly was.
Speaking of Gonzales, here’s point number three. Comey informs Mueller of something pertinent to Program X (our name for the constellation of surveillance activities) on March 1, 2004. We don’t know what Comey told him — it’s redacted — but the timeline he gave in his May 2007 testimony suggests he was informing Mueller that he wasn’t going to reauthorize the program.
By the 9th, Mueller meets with his top aides, including FBI general counsel Valerie Caproni, and then travels to the White House for meetings with the constellation of people and agencies involved in the surveillance program: Card, Dick Cheney, CIA deputy director John McLaughlin, then-NSA chief Michael Hayden, Gonzales, and lawyers for the Justice Department’s Office of Legal Counsel and Cheney’s office (meaning Addington). Clearly, as we knew, Comey’s objections to the surveillance program were a massive internal shake-up for the White House: during this time, Comey testified in May, Card and Comey discussed the prospect that the dubious legality of Program X would prompt an embarrassing wave of DOJ resignations.
But then, following the hospital visit, there’s a flurry of activity that lasts over two weeks. Mueller meets with Card and Gonzales at the White House the next day. (That same day, the White House briefed Tom DeLay, House GOP enforcer, into the program.) On Friday, President Bush takes him aside after Mueller’s morning briefing, and discusses something that lasts a blacked-out page with him. (He met with Comey that morning as well, Comey testified.) That prompts another round of phone calls between Mueller and Comey, and Mueller and Gonzales. He meets with Tenet. He meets with Hayden. Gonzales calls him at home. Cheney calls him into his office.
We don’t know what Mueller discussed with his colleagues and bosses, as everything substantive is redacted. But it’s not unreasonable to speculate that the administration was doing whatever it could to keep Mueller inside the administration, and on board for the surveillance program. Everything to date suggests very strongly that the chief priority for the White House on the warrantless surveillance program was to keep it going, and keep it closely held. Internal dissension is the biggest enemy of both objectives — particularly with a program of dubious legality. One question that Bush, Cheney, Gonzales and Hayden surely asked Mueller: What will it take to get your support for the program?
Mueller’s answer surely played a part in birthing the aspect of the program now called the Terrorist Surveillance Program. After all, Comey told the Senate Judiciary Committee in May, “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.” The depths of Mueller’s objections to the program as it stood during the period of Comey’s dissent are still, as yet, unknown.
But maybe we won’t wait that long to find out. Conyers stated today that he’s going to seek an unredacted copy of the notes. In its current form, he said, Mueller’s disclosure “raises far more questions than it answers.” That’s quite an understatement.
Update: I initially speculated that the words “RSM Program Log” referred to the name of the surveillance program before “Terrorist Surveillance Program” took hold. That was boneheaded of me: “RSM” are Mueller’s initials. Thanks to reader TK for — very tactfully — pointing this out.
