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Short of Perjury

By Ruth Marcus
Tuesday, July 31, 2007

I find myself in an unaccustomed and unexpected position: defending Attorney General Alberto Gonzales.

Gonzales fans, if there are Gonzales fans left, except for the only fan who counts: Don't take any comfort from my assessment.

In his Senate testimony last week, Gonzales once again dissembled and misled. He was too clever by seven-eighths. He employed his signature brand of inartful dodging -- linguistic evasion, poorly executed. The brutalizing he received from senators of both parties was abundantly deserved.

But I don't think he actually lied about his March 2004 hospital encounter with then-Attorney General John Ashcroft. I certainly don't think he could be charged with -- much less convicted of -- perjury.

Go back to December 2005, when the New York Times reported on a secret program of warrantless wiretapping. President Bush acknowledged an effort "to intercept the international communications of people with known links to al-Qaeda and related terrorist organizations."

Soon, the first stories about the hospital visit appeared.

In a Jan. 1, 2006, article, the Times reported then-Deputy Attorney General James Comey's refusal to approve continuation of the surveillance program and described "an emergency visit" to Ashcroft's hospital room by Gonzales and Andrew Card, then White House counsel and chief of staff, respectively.

Similarly, Newsweek reported how the White House aides "visited Ashcroft in the hospital to appeal Comey's refusal. In pain and on medication, Ashcroft stood by his No. 2."

It was in this context -- senators knew about the hospital visit well before Comey's riveting description in May -- that Gonzales appeared before the Senate Judiciary Committee in February 2006.

Asked about those reports, he said that "with respect to what the president has confirmed, I do not believe that these DOJ officials that you were identifying had concerns about this program." The disagreements, he said, "dealt with operational capabilities that we're not talking about today."

Flash-forward to last week, when Gonzales once again said: "The disagreement that occurred and the reason for the visit to the hospital . . . was about other intelligence activities. It was not about the Terrorist Surveillance Program that the president announced to the American people."

The emphasis is mine, and it matters. We know, from Comey's account, that the dispute was intense. We don't know precisely what the disagreement was about -- and it makes sense that we don't know: This was a classified program, and all the officials, current and former, who have testified about it have been deliberately and appropriately vague.

In his May testimony, Comey referred only to "a particular classified program." FBI Director Robert Mueller told the House Judiciary Committee last week that the hospital-room encounter was about "an NSA program that has been much discussed."

Does this really contradict Gonzales or turn him into a perjurer? It's clear there was an argument over the warrantless wiretapping program. Comey refused to recertify it. In response, something about the program changed; Justice officials were willing to go along with the modified program.

The New York Times reported Sunday that the disagreement involved "computer searches through massive electronic databases" -- not necessarily the more-limited program the president acknowledged. As the Times put it, "If the dispute chiefly involved data mining, rather than eavesdropping, Mr. Gonzales' defenders may maintain that his narrowly crafted answers, while legalistic, were technically correct."

Congress deserves better than technically correct linguistic parsing. So the bipartisan fury at Gonzales is understandable. Lawmakers are in full Howard Beale mode, mad as hell at Gonzales and not wanting to take it anymore.

But perjury is a crime that demands parsing: To be convicted, the person must have "willfully" stated a "material matter which he does not believe to be true."

The Supreme Court could have been writing about Gonzales when it ruled that "the perjury statute is not to be loosely construed, nor the statute invoked simply because a wily witness succeeds in derailing the questioner -- so long as the witness speaks the literal truth" -- even if the answers "were not guileless but were shrewdly calculated to evade."

Consequently, the calls by some Democrats for a special prosecutor to consider whether Gonzales committed perjury have more than a hint of maneuvering for political advantage. What else is to be gained by engaging in endless Clintonian debates about what the meaning of "program" is?

Rather, lawmakers need to concentrate on determining what the administration did -- and under what claimed legal authority -- that produced the hospital room showdown. They need to satisfy themselves that the administration has since been operating within the law; to see what changes might guard against a repetition of the early, apparently unlawful activities; and to determine where the foreign intelligence wiretapping statute might need fixes.

That's where Congress's focus should be -- not on trying to incite criminal a prosecution that won't happen of an attorney general who should have been gone long ago.

Subscribe to the podcast of this column athttp://www.washingtonpost.com/podcast. The writer's e-mail address ismarcusr@washpost.com.

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