Justice Department: Stevens Investigation, Gonzales Troubles

Dan Eggen
Washington Post Justice Department Reporter
Wednesday, August 1, 2007 12:00 PM

Washington Post Justice Department Reporter Dan Eggen was online Tuesday, Aug. 1 at noon ET to discuss his recent articles about the FBI raid of Sen. Ted Stevens' (R-Alaska) home, the Senate's pursuit (and Vice President Cheney's defense) of Attorney General Alberto Gonzales, and the breadth of the Bush administration's Terrorist Surveillance Program.

Archive: More stories by Dan Eggen

The transcript follows.


Dan Eggen: Hello everyone. There have been a blizzard of developments related to the Justice Department, U.S. attorney firings, NSA surveillance and congressional corruption probes. I'll try to answer some of your questions. Let's get started!


New York: I've been following the attorney general's testimony before Congress on the Ashcroft hospital visits and the program(s) involved, and it really seems to me that Gonzales's answers and denials, at their root, are very much in the line of "it depends on what the meaning of the word 'is' is." Do you agree? What are your thoughts on the issue?

Dan Eggen: That is certainly the point of view of many Democrats and, it seems, at least one Republican -- Arlen Specter of Pennsylvania. I don't think there's much doubt that the comments that have gotten the attorney general into trouble are very artfully crafted. Whether that means he's being evasive or just careful is really the heart of the debate.

But I do think what bothers a lot of Democrats is their feeling that Gonzales has set out to mislead them. The debate about the National Security Agency surveillance program is probably the best example: It appears he may have been technically correct in telling Congress there were no legal objections to the part of the program that President Bush has confirmed, but there was a major legal row over a related part (or parts) of that same program -- and by giving such a narrow answer early in 2006, many lawmakers feel that the AG was leading them astray to avoid admitting that there were legal concerns about what the NSA was up to.


Chicago: Do you think the controversial part of the NSA program was changed in 2004 to make it legal, or was it simply removed from inter-agency oversight (i.e. no longer sent to the attorney general for a legality review)?

Dan Eggen: We simply cannot say for sure based on what we know at the moment, either through public testimony or the numerous accounts provided by anonymous intelligence sources. We know from the testimony of James B. Comey, the former Deputy AG who was at the heart of the dispute, that changes were made to satisfy Justice lawyers in the first half of 2004. But whether those changes included a wholesale abandonment of some activities, or just tweaking, is unclear. Some reports have indicated that the objections were related at least in part to NSA data-mining activities, but other sources have indicated that was only part of the problem.


Washington: Hi Dan. Simple, innocent question: What would have been Gonzales's specific motivation for lying to Congress? I mean, it was already out in the open that they went to Ashcroft's bedside to get him to sign off, which looks bad but isn't criminal. So, what's the point of splitting hairs on the nature of the conversation? I've gotten confused by all the layers here. Thanks.

Dan Eggen: It may help to remember that Gonzales first made this claim in early February 2006, about six weeks after the NSA program first was revealed. The president and everyone else in the administration, including Gonzales, had strongly implied that the program was limited and that it was unquestionably legal. But reports had begun to surface already at that time about the hospital visit and the legal fight that led to it, as well as about the NSA's extensive use of raw telecommunications data as part of the effort.

I'm not concluding that Gonzales did lie, or that he had a motive for doing so, but certainly there was a strong desire on the part of the administration to downplay any legal hiccups connected to a controversial program that involved the government running wiretaps on U.S. citizens without warrants.


Hinsdale, Mass.: Now we hear of more shenanigans at the Justice Department with the OxyContin case. Is anyone in charge at this place? Morale must be horrible.

Dan Eggen: It almost goes without saying at this point that morale, particularly at main Justice, is awful. They're having trouble finding anyone willing to take the numerous top-level jobs that are currently vacant, and there's a lot of grumbling that Gonzales and his aides are too focused on deflecting the waves of criticism to properly focus on the business of running DOJ. The department's major legislative goals are bogged down in the fights over Gonzales, the U.S. attorney firings, etc. More than one person has described the mood as similar to being at a funeral that won't end.


Olympia, Wash.: Dan, great reading your stuff in the papers and online. Keep up the good work. Your name got mentioned by the attorney general in congressional testimony; that must put you in a difficult spot. How hard is it for you as a reporter to stay out of the story? What do your editors do? Thanks!

Dan Eggen: Thankfully, being a lowly print reporter, I don't get dragged into things like this too often. So it was a little strange to have my name bandied about at a hearing like that.

To give a quick recap for those not familiar with it: At the Senate Judiciary Committee hearing last week, Sen. Schumer grilled AG Gonzales about a press conference he had in early June, in which Gonzales plainly said that the legal dispute described by former Deputy Attorney General Comey was about the NSA surveillance program confirmed by the president. This would have been a big deal, given that Gonzales had been saying the opposite for more than a year.

I asked DOJ about this and, after a day or two, received a clarification e-mail from the department's main spokesman, Brian Roehrkasse, explaining that Gonzales had misspoke and had not intended to change his characterization of events.

I never actually wrote about this little behind-the-scenes drama because of other news. I kept it in the back of my mind as another example of Gonzales's apparent difficulty in communicating clearly, but alas, I never had a chance to address it.

For the real junkies out there, here is the full statement that Roehrkasse sent me on June 8:

"The Attorney General merely intended to not publicly comment on sensitive and highly-classified intelligence activities. To clarify his comments from the press conference on former Deputy Attorney General Comey's recent testimony before the Senate Judiciary Committee, the disagreement that existed was not about the Terrorist Surveillance Program -- that is, the NSA surveillance program publicly confirmed by the President that targeted for collection international communications into and out of the United States where there is probable cause to believe that one of the communicants is a member or agent of al-Qaeda or an associated terrorist organization. There have been disagreements about other intelligence activities, as one would expect, and the fact and nature of such disagreements have been briefed to the intelligence committees. As the Attorney General remarked during the press conference, we will not comment any further on the testimony, given the highly classified nature of the intelligence activities."


Washington: Will we ever know the depth and breadth of the Bush administration's national spy program(s)? Will we ever know what was (is) legal or illegal?

Dan Eggen: If those of us live that long -- perhaps in 25, 30 or 50 years -- after things become declassified, then we'll know.

I do think that the letter that was sent yesterday by Mike McConnell, the director of national intelligence, underscores just how little the administration actually has fessed up to in connection with its special NSA operation. About 20 months after the first stories appeared, only now are they admitting, even in a small way, that the program was broader than previously admitted.

That shows quite clearly there is a great deal we do not know, even accounting for the great investigative reporting efforts of the New York Times, The Post, USA Today and many others.

Also keep in mind there is still an open criminal leak investigation into the original Times report. That means those who do know the parameters of this operation are even less likely to speak up. Also, many lawmakers have described their briefings on the program as limited and highly inadequate, and they are banned from sharing the details with the public.


Chicago: Dan, do you think Arlen Specter's refusal to request Gonzales be sworn in for his Feb. 6, 2006, Senate Judiciary Committee testimony on NSA surveillance jeopardizes a perjury conviction? Can you think of a good reason, other than facilitation of mischief, why Specter would block Leahy and Feingold's requests for an oath?

Dan Eggen: You have a good memory. There is nothing legally binding about the oath -- lying to Congress is a crime, whether you're under oath or not.

The debate at the time was part of a long-running dispute between Specter, then the chairman of the Judiciary committee, and Leahy, the ranking member at the time. Republicans objected to swearing administration officials in because they argued it was being used for photo op purposes, implied that the officials weren't honest, etc. I would note they're all getting sworn in now.

If nothing else, this footnote shows how far Specter has come in his opinion of Gonzales. I recall that Specter at the time talked about how honorable Gonzales was and how there was no need to swear him in because of his honesty, etc. Now Specter says he doesn't find the AG credible.


Washington: I found AG Gonzales's exchange with Dianne Feinstein shocking. What do you make of him not being able to answer the question about the number of U.S. attorneys who have left/been asked to leave? Most of the time it seems as though his legal parsing at least has a legitimate base in protecting executive privilege or national security, but in the exchange with Sen. Feinstein about the number of U.S. attorneys, he came across as out-of-touch. Do you think his reluctance/hesitance to simply answer her questions on that point was more of the legal parsing (meaning, he didn't want to offer a solid number that Democrats and Specter then could hang their hats on)?

Dan Eggen: That is an interesting question. It was striking that he was either unable or unwilling to supply a number. It is possible he was trying to avoid another gotcha moment, and seemed to be referring obliquely to a couple U.S. attorneys who had been fired for serious misconduct allegations. He seemed not to realize, however, that those firings occurred in 2005, if memory serves, so he simply could have answered the question by confirming that nine were fired in 2006.

Gonzales also, quite frankly, often still does not seem comfortable on his feet in a public venue, and seems to stumble an awful lot even after more than two years on the job. It's useful to remember that, until he became AG, Gonzales served in various roles where he was primarily a behind-the-scenes aide to George W. Bush or occupied a low-key post, whether in Texas or here.


Columbia, Md.: Why wasn't the telephone surveillance program, in which NSA listened in on U.S. telephone conversations (whether or not the other party was al-Qaeda) illegal, as it was demonstrably in violation of the FISA law at the time?

Dan Eggen: Many people, including a lot of national security lawyers, believe it was illegal. The Bush administration argues it was not for a variety for reasons, including, they argued, because such intercepts are allowed under the congressional authorization of force against al-Qaeda. Another part of the administration's legal argument is that no law can constitutionally trump the president's wartime powers.


Chicago: A New York Times editorial from Sunday stated that Gonzales and Card were sent on the Hospital Signature Mission by Dick Cheney. Do you know of any independent confirmation of that allegation?

Dan Eggen: I've never seen this reported anywhere other than that editorial, and I'm not aware that anyone has confirmed who specifically dispatched them on the mission. Comey testified that he assumed it was the president; Gonzales testified that he was there on behalf of the president.


Knoxville, Tenn.: Even if the Attorney General's testimony is "technically" accurate, thus falling short of perjury, it seems to me that much of his testimony about the administration's surveillance activities and the attorney firings easily could be found to be misleading (which is also a crime?). Is that a fair accusation? And if so, why aren't the senators who are calling for a perjury investigation also bringing up the misleading nature of Gonzales's testimony to Congress on multiple occasions?

Dan Eggen: Many lawmakers, especially Democrats, clearly feel that Gonzales has been misleading and too clever by half on several major points. I haven't noticed any shortage of commentary on this; Sens. Leahy, Schumer and others make this charge almost daily. It is also at the heart of the calls for a perjury probe, though proving a crime is much more difficult than alleging he has been misleading or disingenuous in his testimony.


Washington: Dan, I look forward to your/Amy's/Paul's coverage daily on the Justice/Gonzales issues. How frustrating is it for you to uncover development after development, with no major movement from the attorney general or White House with respect to taking responsibility and/or the attorney general leaving his post?

Dan Eggen: I don't claim any frustration for the lack of a specific outcome or resignation or anything like that; that's not my role.

But certainly I am regularly frustrated -- and have been for five-plus years covering Justice -- by attempts to obfuscate what is going on, whatever the issue. As a reporter, that's what keeps us going -- trying to get at the truth of the matter, as best we can.


Boston: Isn't it Legal 101 to read a document carefully before you sign it? How is it then that Gonzales didn't know the Office of the Vice President was included in revised information-sharing between the DOJ and the administration on criminal proceedings, in a memo that Gonzales signed himself?

Dan Eggen: To put it charitably, the attorney general repeatedly has shown that he will not win any memory contests. In his testimony at the Senate Judiciary panel in April, I believe a conservative count tallied more than 60 instances when he said he could not recall something; other measures put it at more than 100 times.

It is particularly surprising to have a Cabinet officer claim he cannot remember the details of a major document that he signed himself.


Seattle: Why haven't we heard directly from Andrew Card, since he was actually in the room with Gonzales at the time of the conversation with Ashcroft? Will Congress subpoena Card?

Dan Eggen: We haven't heard from Card, nor have we heard from Ashcroft or his wife. I haven't heard talk of subpoenas for any of them at the moment.


New York: In his interview with Larry King last night, Vice President Cheney said in relation to whether he sent Gonzales and Card to Ashcroft's hospital room (and his "I don't recall" response, and King's follow up that it would be something he would remember):

THE VICE PRESIDENT: I would think so. But certainly I was involved because I was a big advocate of the Terrorist Surveillance Program, and had been responsible and working with General Hayden and George Tenet to get it to the President for approval. By the time this occurred, it had already been approved about 12 times by the Department of Justice. There was nothing new about it.

Doesn't this suggest that the vice president appears to believe (contrary to McConnell's letter) that the "Terrorist Surveillance Program" refers to more than what the president subsequently acknowledged in early 2006? The vice president seems to believe that what he calls the TSP had been approve 12 times by DOJ since 2001.

Dan Eggen: The administration has been back and forth repeatedly on what the term "Terrorist Surveillance Program" is referring to. Last year, the former DNI chief implied it was about a whole panoply of NSA activities related to those that Bush confirmed. Gonzales has said the opposite, and that is the official line at the moment.

The irony is that for months in early 2006, the administration refused to admit that "TSP" was a made-up name that was tacked onto the program for political reasons after it was leaked. Now they happily admit that was the case, because it serves their arguments at the moment.


Seattle: This is more a politics question that Justice Department, but here goes: Why doesn't Sen. Stevens consider stepping down now? It seems like the FBI investigation will be wrapping up right before next year's election and could, potentially, charge him with accepting bribes and other corruption charges.

Dan Eggen: I've seen no indication that Sen. Stevens is considering anything of the sort. He's also not showing any signs of going underground: One day after his Alaska house was raided by the FBI and IRS, he vowed to help derail new ethics legislation.


Boston: While an embarrassment for the administration in terms of how the sausage was made, is the U.S. attorney investigation a loser legally and politically for the Democrats (given that the U.S. attorneys serve at the pleasure of the president, and given the lack of proof of explicit wrongdoing)? Does it leave the Democrats open to charges of partisan overreach on that and other potentially more important issues, like illegal NSA programs?

washingtonpost.com: U.S. Attorney Became Target After Rebuffing Justice Dept. (Post, Aug. 1)

Dan Eggen: While not conceding all of your points, it is a possibility that the Democrats in particular can be attacked on this front. But it's not clear how much that plays beyond the GOP base, and Gonzales's poll numbers are pretty dismal.

A lot may depend on what comes out of the joint investigation by the Justice Department's inspector general and Office of Professional Responsibility. If there are any criminal referrals, that would change the dynamics significantly.

Well I'm sorry that we're out of time and I couldn't get to so many great questions. Thanks for visiting, and please keep reading.


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