The Washington Post's Weak Case That Gonzales Lied About Patriot Act Violations:
The front page of yesterday's Washington Post had a story by John Solomon suggesting that Alberto Gonzales may have lied to Congress about the Patriot Act in 2005. Although the story received a lot of play on the Hill and in the blogs yesterday, on closer inspection I think this story is seriously weak if not outright misleading. Here's the intro of the story:
First, some context. Gonzales's statement was made in the context of the sunsetting provisions of the Patriot Act. Congress had imposed sunset provisions on parts of the Patriot Act in 2001, and Gonzales was arguing that sunsetted provisions weren't necessary. Here's what he said:
According to the reports, which were obtained pursuant to a FOIA request by FOIA whiz Marcia Hofmann of EFF, investigators at some point conducted a physical search without consent, and once improperly continued a FISA warrant passed its deadline. In another case, an ISP goofed and gave the government more than it asked for under a proper national security letter (the government sealed up the package after they realized what had happened). Finally, in one case someone made a typo and asked for the wrong phone number in a national security letter, apparently obtaining the wrong set of phone logs.
Among these claims, the first two don't seem to connect at all to the Patriot Act. The Patriot Act amended a set of preexisting laws, and the first two seem to involve laws not even amended by the Act. The latter two examples at least are in the ballpark: while the national security letter authority was created in 1986, it was at least amended by the Patriot Act, so it's at least possible to connect the authority to the Patriot Act. But it doesn't sound like the violations mentioned are directly Patriot-Act-related: typos happen even outside the Patriot Act, and inaccurate compliance with court orders by ISPs is a longstanding issue that well predates the Patriot Act.
And even if you conclude that these violations involve the Patriot Act, are they really "civil liberties abuses"? The word "abuse" suggests something flagrant, either something intentional or at least really very reckless. In contrast, the reports that Gonzales's office received seem to involve the kind of occasional accidents that regrettably can occur; it's not obvious to me that they are abuses. I don't want to minimize the nature of the violations. Violations are always bad, and deserve a response. But the issue here is Gonzales's truthfulness, and I don't see how these reports are evidence that Gonzales was lying.
In sum, I think Solomon's report is based on a few logical leaps, both about the Patriot Act and the meaning of Gonzales's statement. And let me repeat myself: I'm no fan of Gonzales. I think he should resign as AG. But the question here is whether Gonzales lied about the Patriot Act, and it seems like a pretty serious stretch to suggest that he did.
But wait, there's more. I was also very puzzled by today's follow-up story, also in the Washington Post and also written by John Solomon. It seems that DOJ set up a phone call for the press with two DOJ officials, OIPR head James Baker and Ass't AG Ken Wainstein, to make the case that the Post story was misleading. Each defended Gonzales' remark on grounds a lot like the one I have made out above. But instead of featuring that as the key point, Solomon instead came up with what seems like a very strained interpretation of different remarks that Baker & Wainstein also each said.
Baker & Wainstein apparently each stated that they had discussed the topic of civil liberties violations with Gonzales in the past. No details were given; the points were made very generally. Here's Baker: "I have discussed and informed attorneys general, including this one, about mistakes the FBI has made or problems or violations or compliance incidents, however you want to refer to them." Here's Wainstein: ""I've discussed a number of times oversight concerns and, underlying those oversight concerns, the potential for violations. And I'm sure we've discussed violations that have occurred in the past."
How did John Solomon report that? Here's the title and first two paragraphs of Solomon's follow-up story today:
Maybe I'm missing something, and if so I would be happy to post a correction. But based on what I can tell so far, I just don't think that Solomon's story holds up.
As he sought to renew the USA Patriot Act two years ago, Attorney General Alberto R. Gonzales assured lawmakers that the FBI had not abused its potent new terrorism-fighting powers. "There has not been one verified case of civil liberties abuse," Gonzales told senators on April 27, 2005.I have already called for Alberto Gonzales to resign, and I still think he should resign, so I'm not one to go out of my way to defend Gonzales. But these criticisms strike me as really quite weak, and that they rest on some questionable connecting of dots by Post reporter John Solomon.
Six days earlier, the FBI sent Gonzales a copy of a report that said its agents had obtained personal information that they were not entitled to have. It was one of at least half a dozen reports of legal or procedural violations that Gonzales received in the three months before he made his statement to the Senate intelligence committee, according to internal FBI documents released under the Freedom of Information Act.
First, some context. Gonzales's statement was made in the context of the sunsetting provisions of the Patriot Act. Congress had imposed sunset provisions on parts of the Patriot Act in 2001, and Gonzales was arguing that sunsetted provisions weren't necessary. Here's what he said:
Finally, I’d like to close by addressing a common question that must be answered by this Congress: the issue of whether we should continue to impose sunset provisions on critical sections of the PATRIOT Act.Did Gonzales have reason to believe that his claim was false? I'm not so sure. The Washington Post story discusses a handful of reports that were sent to Gonzales's office about findings of rules and laws that were broken in investigations relating to terrorism. But as I read the examples, I can't find any that clearly is a "civil liberties abuse" involving the Patriot Act. And given that, I'm not sure we have any reason to conclude that Gonzales was intentionally misleading Congress.
The PATRIOT Act was a swift and decisive response to the attacks of September 11. In the weeks and months following the attacks in Washington, Pennsylvania, and New York, Democrats and Republicans came together to address the vulnerabilities in our nation’s defenses. Both Congress and the Administration worked with experienced law enforcement, intelligence, and national security personnel to design legislation to better protect the American people. Although there was extensive consideration in 2001, and although it is unusual to impose sunsets on statutory investigative tools, Congress included sunsets on certain provisions of the PATRIOT Act because members wanted to ensure that we were not risking the very liberties we were setting out to defend.
Today, we can all be proud. The track record established over the past three years has demonstrated the effectiveness of the safeguards of civil liberties put in place when the Act was passed. There has not been one verified case of civil liberties abuse.
According to the reports, which were obtained pursuant to a FOIA request by FOIA whiz Marcia Hofmann of EFF, investigators at some point conducted a physical search without consent, and once improperly continued a FISA warrant passed its deadline. In another case, an ISP goofed and gave the government more than it asked for under a proper national security letter (the government sealed up the package after they realized what had happened). Finally, in one case someone made a typo and asked for the wrong phone number in a national security letter, apparently obtaining the wrong set of phone logs.
Among these claims, the first two don't seem to connect at all to the Patriot Act. The Patriot Act amended a set of preexisting laws, and the first two seem to involve laws not even amended by the Act. The latter two examples at least are in the ballpark: while the national security letter authority was created in 1986, it was at least amended by the Patriot Act, so it's at least possible to connect the authority to the Patriot Act. But it doesn't sound like the violations mentioned are directly Patriot-Act-related: typos happen even outside the Patriot Act, and inaccurate compliance with court orders by ISPs is a longstanding issue that well predates the Patriot Act.
And even if you conclude that these violations involve the Patriot Act, are they really "civil liberties abuses"? The word "abuse" suggests something flagrant, either something intentional or at least really very reckless. In contrast, the reports that Gonzales's office received seem to involve the kind of occasional accidents that regrettably can occur; it's not obvious to me that they are abuses. I don't want to minimize the nature of the violations. Violations are always bad, and deserve a response. But the issue here is Gonzales's truthfulness, and I don't see how these reports are evidence that Gonzales was lying.
In sum, I think Solomon's report is based on a few logical leaps, both about the Patriot Act and the meaning of Gonzales's statement. And let me repeat myself: I'm no fan of Gonzales. I think he should resign as AG. But the question here is whether Gonzales lied about the Patriot Act, and it seems like a pretty serious stretch to suggest that he did.
But wait, there's more. I was also very puzzled by today's follow-up story, also in the Washington Post and also written by John Solomon. It seems that DOJ set up a phone call for the press with two DOJ officials, OIPR head James Baker and Ass't AG Ken Wainstein, to make the case that the Post story was misleading. Each defended Gonzales' remark on grounds a lot like the one I have made out above. But instead of featuring that as the key point, Solomon instead came up with what seems like a very strained interpretation of different remarks that Baker & Wainstein also each said.
Baker & Wainstein apparently each stated that they had discussed the topic of civil liberties violations with Gonzales in the past. No details were given; the points were made very generally. Here's Baker: "I have discussed and informed attorneys general, including this one, about mistakes the FBI has made or problems or violations or compliance incidents, however you want to refer to them." Here's Wainstein: ""I've discussed a number of times oversight concerns and, underlying those oversight concerns, the potential for violations. And I'm sure we've discussed violations that have occurred in the past."
How did John Solomon report that? Here's the title and first two paragraphs of Solomon's follow-up story today:
Gonzales Knew About Violations, Officials SayNow, I don't know if Solomon had any control over the title, but both the title and the lead paragraph seem pretty misleading to me. As far as I can tell, nothing in the article suggests that Gonzales actually knew of the violations relevant to the story, as opposed to other violations at other times. However, the title and paragraph certainly seem designed to make it seem like Baker & Wainstein had admitted to informing Gonzales directly of those reports.
By John Solomon
Washington Post Staff Writer
Wednesday, July 11, 2007; Page A03
Two senior Justice Department officials said yesterday that they kept Attorney General Alberto R. Gonzales apprised of FBI violations of civil liberties and privacy safeguards in recent years.
The two officials spoke in a telephone call arranged by press officials at the Justice Department after The Washington Post disclosed yesterday that the FBI sent reports to Gonzales of legal and procedural violations shortly before he told senators in April 2005: "There has not been one verified case of civil liberties abuse" after 2001.
Maybe I'm missing something, and if so I would be happy to post a correction. But based on what I can tell so far, I just don't think that Solomon's story holds up.
Oh, and Professor Kerr: my experience writing for a college newspaper was that a member of the editorial staff, not the article's author, picks the headline.
John Solomon has a pretty well-established track record as a muckracking hack; the reaction to this story around the liberal blogosphere was basically "Wow, Solomon went after the other guys for once." But it sounds like they were mistaken to assume that his writing might be any less hackish in this case than it has been in the past.
*"There has not been one verified case of civil liberties abuse"
1)What about unverified cases of civil liberties abuse (if you can't answer now please investigate and give this info by Date X)
2)What about legal or procedural violations? How often do these occur, how serious, etc?
------------------------
Orin to the common man the differences between the two look like you are splitting hairs trying to spin. When Gonzales made the comment, congress trusted him to be forthright, honest, and ethical, in reality he was a calculating and manipulating.
He may not lied per say, but he was definitely was misleading and not being forthright. This is a serious matter, and the logic you used doesn't wash the AG's actions away.
------------
Of course like you said though it ultimately doesn't matter me and you agree that AG should resign.
I supose the most honest answer would have been something like this:It would have been really interesting if Gonzales had said that, actually.
But the Patriot Act is used as a political issue by both sides. You can't have Bush saying one day that Democrats are endangering the country by holding up the Patriot Act, and Gonzales testifying the next day that the Patriot Act actually wasn't that big a deal.
Anyway, I get that you're the #1 debunker of myths about the Patriot Act, but the difference in the NSL regimes before and after the Patriot Act is actually pretty substantial.
paraphrased.
Senators, you don't understand the Patriot Act, you only signed it into law... i don't understand the Patriot Act, i'm only required to enforce the law... and, sure, i know for a fact that there have been 'violations', but not INTENTIONAL violations... trust me... nudge, nudge, wink, wink...
and the man who doesn't know what's in the Patriot Act knows this HOW. Reports on his desk detailing, let's face it, civil liberty violations... he knew what he was being asked and he LIED to congress...
And now, the truth:
Six days earlier, the FBI sent Gonzales a copy of a report that said its agents had obtained personal information that they were not entitled to have. It was one of at least half a dozen reports of legal or procedural violations that Gonzales received in the three months before he made his statement to the Senate intelligence committee, according to internal FBI documents released under the Freedom of Information Act.
The acts recounted in the FBI reports included unauthorized surveillance, an illegal property search and a case in which an Internet firm improperly turned over a compact disc with data that the FBI was not entitled to collect, the documents show. Gonzales was copied on each report that said administrative rules or laws protecting civil liberties and privacy had been violated.
The reports also alerted Gonzales in 2005 to problems with the FBI's use of an anti-terrorism tool known as a national security letter (NSL), well before the Justice Department's inspector general brought widespread abuse of the letters in 2004 and 2005 to light in a stinging report this past March.
The second excuse, that "many" of those FBI violations were mere violations of "procedural safeguards" is even more absurd. The whole point of such safeguards is to prevent abuses. The fact that the administration has consistently sought to do away with those safeguards is precisely the issue when determining whether to renew the act that lowered them. Those reports detailed a wide variety of abuses, not mere "typographical errors", and the DOJ's own reports later slammed the FBI for its profligate and unprincipled use of National Security Letters.
Just another lie from Gonzales.
Good on ya', Kerr. Beat down the closest snake, then move on to beating on the next one, wherever it lies.
Perhaps you could respond to the arguments in the post I wrote? I realize that using all caps is quite powerful, but I actually did make an argument in my post.
No, I don't. I think he should resign, but I don't think Congress should impeach and remove him.
On the other hand, the systemic abuse of the National Security Letter's is something serious to civil liberties. I dont need to explain to those here why NSL's are potentially so dangerous. And to hear reports about possibly THOUSANDS of improper NSL's in 2004 and 2005 leads me to conclude that Alberto Gonzalez, who was aware of the high number of NSL's (or if not was completely deficient in his duties) was merely saying what the Dear Leader wanted him to say and what Congress wanted/needed to hear to renew certain provisions of the unPatriot Act.
Question: When these Patriot Act renewals came up for vote, was this at the same time when (some random staffer) slipped in that amendment to the Patriot Act that let the AG appoint interim US attorney's without senate approval? The amendment that nobody remembers reading (like the initial patriot act) or voting on but which is so widely popular now?
I think [Gonzales] should resign, but I don't think Congress should impeach and remove him.
I think pretty much everyone agrees that Gonzales should resign. And that he won't (barring major new developments). May I ask why you oppose impeachment? Or do you think he might still resign without the threat of impeachment?
we don't know if there are more reports and we dont' know much of the detail in those reports that have been made available. we do know he also neglected to mention the NSL problems.
if you begin with the presumption that he was there to fully inform congress, he would not have glossed these matters over. for him to rely on further parsing and suggestions that Congress didn't ask the "right" question to unlock the box is disheartening.
gonzales needs to go for so many different reasons, i can see why some would be inclined to view this incident as part and parcel of an untrustworthy AG and not a stand alone reason for his removal.
his repeated evasions to congress have shredded his credibility, but i concede, it may turn out his statements in this case were warranted in light of what he knew, but no one will argue he was full and forthcoming.
if the President wants to keep an AG with zero credibility, he better be prepared for congress to investigate every suspicous thing he does.
And lest there be any doubt that Gonzales is a liar, here's what he had to say on December 14, 2005, just two days before the NY Times revealed the existence of the NSA warrantless surveillance program:
For what it is worth, "abuse" is defined as follows by the dictionaries I've consulted:
Sources: http://dictionary.reference.com/browse/abuse and http://www.merriam-webster.com/dictionary/abuse (NOTE: the DOJ specifically "cited the definition of 'abuse' . . . in Webster's," per the WP report).
With all due respect, can you point us to a source that includes "flagrant," "intentional" or "reckless" in the definition of "abuse"?
Note that all these definitions include "improper," and many of the reports sent to the AG specifically discuss the "improper" collection of information. Moreover, in a later (Jan 06) public statement, the AG specifically cited to "the Justice Department's own binding procedures and policies," right before mentioning the alleged lack of abuse:
Yet, at a minimum, the reports in the FOIA response show "investigative activity which the FBI has determined was conducted contrary to the attorney general's guidelines for FBI National Security Investigations and Foreign Intelligence Collection and/or laws, executive orders and presidential directives." It is, at best, disingenuous to laud the protections of binding procedures and policies when you know that there are uses of NSLs contrary to those very procedures.
More importantly, the Attorney General's goal in his testimony was to broadly reassure ordinary Americans and Congress so that the Patriot Act provisions would be reauthorized by Congress. And it worked. He certainly gave no indication that his testimony was only intended to address "flagrant" problems -- that would have been easy enough to do. To the contrary, he wanted us to think that there were none. Now that the truth is coming out, and it's clear that there were significant problems and Gonzales knew about them, isn't it a little strange to be splitting hairs about the definition of "abuse" rather than discussing why the AG didn't talk straight to the American people and Congress in his testimony?
If you want to make a broader point about the impression Gonzales was trying to make, though, I think Gonzales was being accurate based on what he knew. First, he was talking about the Patriot Act, not governmental investigations more generally. Second, in every organization consisting of thousands of people, there will always be some number of typos, omissions, and low-level accidental screw-ups somewhere. They happen in the FBI; they happen in the Senate; they happen in the private sector. I don't think Gonzales's statement was widely interpreted to mean that he had found away to eliminate all human error.
and Kurt Opsahl for the entire post he made. They made the point I was trying to make so much better than I did, I am glad someone did.
Yes John Solomon is spinning and exaggerating what the AG did, yet at the same time the non-exaggerated true occurrence of events is enough to create "serious eyebrows", it is enough to remove all trust on congress behalf of the AG, it is enough that the president should fire/force the AG to resign, and it is enough to have members of Congress privatively consider the option of impeaching the AG (note I didn't say the should do so, they should though consider the option.)
Nick
"According to the reports, which were obtained pursuant to a FOIA request by FOIA whiz Marcia Hofmann of EFF, investigators at some point conducted a physical search without consent, and once improperly continued a FISA warrant passed its deadline.
...
Among these claims, the first two don't seem to connect at all to the Patriot Act. The Patriot Act amended a set of preexisting laws, and the first two seem to involve laws not even amended by the Act."
I am completely puzzled by this argument with respect to the second issue. FISA was among the laws amended by the PATRIOT Act, a fact frequently noted in rebuttal to those who claim that FISA was never updated to deal with terrorism. More specifically, Section 207 of the PATRIOT Act extended the duration for FISA warrants, and that was one of the Sections scheduled to sunset. So it seems to me Orin is simply wrong about the relevance of that issue.
By the way, President Bush told a similar lie on April 20, 2004, just weeks after the Gonzales-Comey-Ashcroft confrontation about warrantless surveillance (emphasis added):
I agree about what this looks like to the common man, but find it extremely amusing that anyone believes that Congress expects anything else than hair-splitting, calculating, and manipulating. Certainly they never expect anything better of their colleagues. Most of them are lawyers. All of them are politicians. If they didn't question Gonzales's evasions, they didn't want to hear the whole truth.
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