August 17, 2007

Best Evidence

I must hat-tip Power Line, because it was while reading Paul Mirengoff's post today that I realized the oddest angle of all in the 2004 brouhaha, the contretemps, the donnybrook between then White House Counsel (now Attorney General) Alberto Gonzales, former White House Chief of Staff Andy Card, former Principal Deputy Attorney General James Comey, FBI Director Robert Mueller (now and then) -- and a "John Doe" to be named later on the one hand... and the Democrats in Congress on the other hand.

Our previous spelunking into this cavern of treachery can be unearthed here:

• FBI DIRECTOR SAYS GONZALES LIED! Oh, wait, no he didn't... but we wish he had
• Gonzales Gotcha
• Gonzales, Intelligence, and Perjury: the Penultimate Word

First, let's set the background:

Shortly after 9/11, President Bush adopted a program to surveille terrorists that included a number of elements: One element -- intercepting telephone calls between known or suspected terrorists and other people, where one node of each call is outside the United States -- has been confirmed by the president, and is called the Terrorist Surveillance Program, TSP.

Another element of the program comprises "data-mining" of millions of phone calls -- that is, not intercepting the call's content but instead other circumstances, including location, time placed, duration, number of people involved, and so forth. This element has never been confirmed or its existence declassified, so no government official can lawfully mention it.

The first group -- the principals -- all agree on the following facts; there is no dispute:

1. At some point, the Justice Department objected to some element of this program; officials have now stepped forward anonymously (and illegally) to leak that the particular element DoJ had problems with was the data-mining. None of the principals disputes this.
2. James Comey, then acting Attorney General while the actual Attorney General was recuperating in hospital, refused to sign off on the program at one of the annual required reviews.
3. Gonzales and Card were concerned and puzzled: The Attorney General goes into hospital for gall-bladder surgery; and while he's there, the acting Attorney General, who has opposed the data-mining element all along, refuses to approve it. On March 10th, 2004, Gonzales and Card go to the hospital, either to find out whether Comey was acting on his own wishes and not the Attorney General's, or possibly to try to get the Attorney General to override Comey, his deputy.
4. Gonzales and the Attorney General have a conversation, during which the latter makes clear that he agrees with Comey and refuses to sign off on the data-mining element without changes.
5. Comey, worried that Gonzales might apply "undue pressure" on Attorney General John Doe to get him to sign, calls Mueller in to back Comey up.
6. Gonzales and Card leave about 8:00 pm.
7. Mueller arrives at 8:10 pm.
8. Mueller talks to Comey, who tells him that John Doe had told Gonzales that Doe "was in no condition to decide issues."
9. Mueller leaves.

Thus endeth the chronology of March 10th, 2004, which is undisputed by any of the principals involved. Later, the administration made some changes which brought the Department of Justice back on board. So whence the beef?

Enter the other group, not the principals but the hindsighters...

The hindsighters primarily comprise a concatenation of five Democrats on Sen. Pat Leahy's (D-VT, 95%) Judiciary Committee -- the chairman, plus Sens. Charles Schumer (D-NY, 100%), Dianne Feinstein (D-CA, 90%), Russell Feingold (D-WI, 100%), and the absurdly named Sheldon Whitehouse (D-RI), who has no rating as yet, as he replaced "Republican" Lincoln Chafee in 2007; Majority Leader Harry "Pinky" Reid (D-Caesar's Palace, 90%); various Democratic congressional rounders and bounders, seducers and traducers; and most of the elite media. (That is, the usual suspects.)

The hindsighters were not present during the altercation, the kafuffle, the spat. They have, however, shown up nearly three and a half years later to accuse now Attorney General Alberto Gonzales of perjury, obstruction of justice, contempt of Congress, suborning perjury, threatening a subordinate, treason, attempting a coup d'état, misleading Congress, having an unspellable last name, aggravated mopery with intent to gawk, and groping a female fundraiser who came to him with a personal problem. Oh, wait, that last was just a flashback; my bad.

The hindsighters originally claimed that Gonzales lied when he denied that the Justice Department objected to the TSP -- the element of the surveillance program where the National Security Agency intercepted phone calls from a known or suspected terrorist to someone else, where one node of the call was outside the United States. He said it was to a different element, which he did not name (as it was still classified).

That prompted (drove, compelled) those four members of Leahy's Senate Judiciary Committee (minus Leahy himself) to forward a "referral" to the Justice Department, demanding the appointment of a special counsel to indict Gonzales for perjury, obstruction, and contempt. The media mavens leapt aboard the slanderwagon, convicting Gonzales in absentia (though some in the drive-by media instead convicted an unknown assailant and cabinet-member impersonator named "Alberto Gonzalez").

Then word leaked out that this was not, in fact, the disputed element -- the dispute was over data mining instead; thus, Gonzales, if not Gonzalez, had told the truth. In response, the Flab Four and their puppet friends quietly dropped the demand... without ever actually withdrawing the referral.

They have since rummaged around and found a new charge, which they can piggyback onto the old referral, if they've a mind: Gonzales (or Gonzalez, whoever he is) committed perjury, obstruction, and contempt by saying that the Attorney General, John Doe, was "lucid" during the March 10th conversation, even that Doe "did most of the talking."

This claim is belied, say the hindsighters, by FBI Director Mueller's notes... which say that after Gonzales left, John Doe was tired out, exhausted, tuckered:

Then-Attorney General [John Doe] was "feeble," "barely articulate" and "stressed" moments after [where "moments after" is here defined as "ten minutes after"] a hospital room confrontation in March 2004 with Alberto R. Gonzales, who wanted [Doe] to approve a warrantless wiretapping program over Justice Department objections, according to notes from FBI Director Robert S. Mueller III that were released yesterday.

By now, I assume everyone is wondering whether I've slipped a cog. I said something upfront about "the oddest angle of all" in this entire ballyhoo, this hubub, this riot. So far, all I have done is recap the facts (the gouge, the poop, the undisputed truth). Ah, but you must have noticed the Strange Case of the Missing Man, Attorney General John Doe?

Your honors, I now intend to name our John Doe: His name is, in truth, John... he is former senator, former Attorney General John Ashcroft -- the only other participant in the actual conversation (conclave, jaw-jaw, gabfest) with Gonzales.

And the most absurd part of all this is that so far, nobody has troubled to get John Ashcroft's take on the whole convulsion. He's the missing man in this entire storm, squall, willywaw.

Now, the Washington Post says that Ashcroft has no comment:

The White House and Justice officials declined to comment. Neither Ashcroft nor his former staffers have commented publicly on the episode.

But the media, even the elite media, are only the sock puppets in this affair; the real buggy drivers are the Democrats in the Senate J-Com. And unlike even the Washington Post, the committee has subpoena power: Ashcroft is a lobbyist now (in perfectly good health and only 65 years old), and he is a former cabinet member who needed Senate approval. Thus in either case, he can be subpoenaed to testify under oath to that Senate committee.

Why has Leahy not moved to do so? I'm sure the White House would have no objection to Ashcroft testifying to the following questions:

• General Ashcroft, General Gonzales has testified that the particular element that the Department of Justice objected to and refused, for a time, to recertify was not the element now called the Terrorist Surveillance Program and confirmed by the president, but rather another program which the president has never confirmed. Was Mr. Gonzales correct, to the best of your knowledge and recollection?
• Mr. Gonzales also testified that, during a conversation in hospital on March 10th, 2004, about the Justice Department's objections to terrorist surveillance operations, you, General Ashcroft, were lucid. He also testified that you did most of the talking. He testified that you lucidly explained the legal reasoning behind your objection. Is this true and accurate, to the best of your recollection?
• Finally, General Ashcroft, I would like to ask you a question in your capacity as an expert witness on constitutional law. Is it your legal understanding that government officials with specific knowledge of classified programs and operations must not reveal classified information about those programs or operations in open testimony before Congress, unless such disclosure has been specificaly authorized by the Executive? And is it your legal understanding that Congress may not demand testimony in open session that amounts to Congress unilaterally declassifying information that was classified by the Executive?

I suspect John "Doe" Ashcroft would have no difficulty answering any of these three questions, and that his answers would completely detumesce, deflate, and contract this current... uh, flap. So why hasn't the committee subpoenaed the man?

Ah, I see I have committed a rhetorical question again. Never mind.

Hatched by Dafydd on this day, August 17, 2007, at the time of 5:00 PM

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