Politics & Policy

Perjury Trap

In March, we argued that Alberto Gonzales should step down, or be told to step down, as attorney general. “He cannot defend the administration and its policies even when they deserve defense,” we wrote. This week we saw just how much credibility he has lost: He is no longer believed even when he is telling the truth.

Democrats are claiming that Gonzales perjured himself in testimony before the Senate, and are calling for a special counsel to investigate. In the disputed testimony, from February 2006, Gonzales was talking about the Terrorist Surveillance Program. He said that “there has not been any serious disagreement about the program that the president has confirmed.”

The Democrats say that this was untrue, because there was a lot of intra-administration strife about the National Security Administration’s surveillance of terrorists. In 2004, for example, John Ashcroft (at that time the attorney general), Gonzales (at that time the White House counsel), and other officials sparred over the program in Ashcroft’s hospital room. Ashcroft and his aides thought that the NSA was going beyond its authorization. Only in 2007 did this episode come to light.

The administration’s surveillance of terrorists has, however, undergone several modifications over the period since September 11, and some of the details remain secret. Gonzales’s phrasing was careful, and it was careful because he was trying to avoid disclosing those details.

As best as we can tell, here is how events unfolded. After September 11, the NSA began running wiretaps on suspected al Qaeda operatives. The surveillance program was reauthorized every 45 days. In 2004, however, Justice Department officials, for the first time, raised legal objections to the scope of the program. The resulting dispute within the administration led to the famous hospital scene, after which President Bush sided with the Justice Department officials and narrowed the program. Many months later, the New York Times revealed the existence of this now-narrowed program; President Bush then confirmed its existence and named it the “Terrorist Surveillance Program”; and Gonzales defended it.

When Gonzales said that “there has not been any serious disagreement about the program that the president has confirmed,” then, he was referring to the later, narrowed version of terrorist surveillance, and as far as we know he was correct. Other disputed Gonzales comments appear to follow the same basic pattern.

Thursday afternoon, the press and the Democrats started to play up testimony by FBI director Robert Mueller about the hospital-room meeting, testimony that supposedly contradicts Gonzales. But all Mueller said was that the meeting concerned a legal disagreement over the NSA’s surveillance. If our account of the chronology of the program is correct, there is no contradiction here.

The Democrats say that to defend Gonzales on these terms is to play games with words. But what was Gonzales supposed to say? The controversy about which he was testifying was the existing surveillance program. He could have said that an earlier version of it had provoked controversy: But given that the administration’s (defensible) position was that publicizing the program’s existence in the first place had jeopardized it, it would have been impossible to say that without inviting further questions that would have revealed more details about the program.

It is a convoluted story; and much of it is beside the point. The country is at war. The commander-in-chief and his agents have to be able to listen in on the enemy. Our surveillance appears to have played an important role in disrupting at least two terrorist plots. But our ability to wage this part of the war has gotten progressively weaker as it has continued. The program narrowed first because of legal objections by the Justice Department, and then because of the political fallout from the New York Times’s reporting. We fear that it will grow weaker still now, because Democrats who ought to know better insist on playing “gotcha” with the attorney general.


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