In December, 2003, Jack Goldsmith replaced Jay Bybee as the head of the Office of Legal Counsel (OLC), the DOJ office charged with ensuring that Presidential Policy conforms to legal limitations. Jack Goldsmith had immediate and broad concerns about the legality of the Warrantless Surveillance Program and other policies that suspended civil liberties.
There are obviously a plethora of reasons Gonzales might have been motivated to resign. However, one reason in particular may have had a pressing time constraint- the issue of Gonzales' perjury in sworn Congressional Testimony. In excerpts from his new book, The Terror Presidency, featured at Slate, Goldsmith reveals an important motivation for Alberto Gonzales to resign. Gonzales knew that Goldsmith is scheduled to testify soon before the Senate Judiciary Committee, and Goldsmith's book excerpt makes it clear that he is about to swear under oath that Alberto Gonzales lied to Congress.
In February 2006, after the Risen and Lichtblau article on the NSA-driven Warrantless Surveillance Program, Gonzales testified before the SJC and told the Senators that there was no controversy over the "Terrorist Surveillance Program" (TSP). As I and others have argued, the term "TSP" was created in January 2006 to selectively declassify certain less-controversial portions of the NSA-driven Warrantless Surveillance Program.
This wordplay obfuscates the reality of a single Program that existed in March 2004, that included the TSP activities, and that was controversial to the point that the highest echelons of the DOJ and the Director of the FBI were prepared to resign if The Program was continued. Former Deputy AG (acting AG in March 2004) James Comey, and FBI Director Robert Mueller both refused to acknowledge the TSP as existing in 2004. However, Jack Goldsmith, who was head of the OLC and the architect of legal objection to The Program, is now on record as describing that the controversy was indeed about the TSP.
Gonzales' 2006 testimony that the TSP was not controversial was not under oath. However, on July 24, 2007, after Comey disclosed the Hospital Signature Mission publicly for the first time, Gonzales had a chance to correct his assertion, now under oath in front of SJC:
GONZALES: The disagreement that occurred, and the reason for the visit to the hospital, Senator, was about other intelligence activities. It was not about the terrorist surveillance program that the president announced to the American people.
GONZALES: The dissent related to other intelligence activities. The dissent was not about the terrorist surveillance program that the president confirmed and...
SCHUMER: And if it was about the TSP, you're dissembling to this committee. Now was it about the TSP or not, the discussion on the eighth?
GONZALES: The disagreement on the 10th was about other intelligence activities.
SCHUMER: Not about the TSP, yes or no?
GONZALES: The disagreement and the reason we had to go to the hospital had to do with other intelligence activities.
SCHUMER: Not the TSP?
Come on. If you say it's about "other," that implies not. Now say it or not.
(LAUGHTER)
GONZALES: It was not. It was about other intelligence activities.
SCHUMER: Was it about the TSP? Yes or no, please?
That's vital to whether you're telling the truth to this committee.
GONZALES: It was about other intelligence activities.
But here is what Goldsmith writes in his book upon receiving a subpoena to testify about the Warrantless Surveillance Program leak:
...I had spent hundreds of very difficult hours at OLC, in the face of extraordinary White House resistance, trying to clean up the legal mess that then-White House Counsel Gonzales, David Addington, John Yoo, and others had created in designing the foundations of the Terrorist Surveillance Program. It seemed rich beyond my comprehension for a Gonzales-led Department of Justice to be pursuing me for possibly illegal actions in connection with the Terrorist Surveillance Program...
and:
I am not permitted to say much about how Jim Comey, Patrick Philbin, and I, with the crucial support of former Attorney General John Ashcroft and others, struggled to put the Terrorist Surveillance Program on a proper legal footing.
Thus, it is clear that Goldsmith believes and is prepared to testify that the controversy on and before March 10, 2004 was over the legal foundations of the Terrorist Surveillance Program. Although Gonzales has resigned, he is not immune from prosecution for perjury, or from impeachment, which would preclude him receiving a pension and from holding public office in the future. These options should be pursued.
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Importantly, as emptywheel at TNH notes, these same excerpts make another point that has implications for those who remain in Governement, including Addington, Cheney and Bush:
The NSA-driven Warrantless Surveillance Program was ILLEGAL.
James Comey, in his SJC Testimony did not state explicitly that the Program was illegal:
...[I]t was the practice in this particular program, when it was renewed, that the attorney general sign off as to its legality.
There was a signature line for that. And that was the signature line on which was adopted for me, as the acting attorney general, and that I would not sign.
So it wasn't going forward in violation of any -- so far as I know -- statutory requirement that I sign off. But it was going forward even though I had communicated, "I cannot approve this as to its legality."
Nor does Goldsmith explicitly state this, but it is clear from the book excerpt that he believed the program illegal. His writing suggests he told the FBI agents who brought his leak investigation subpoena that they should be investigating Yoo and Addington:
It seemed rich beyond my comprehension for a Gonzales-led Department of Justice to be pursuing me for possibly illegal actions in connection with the Terrorist Surveillance Program, I told the two wide-eyed FBI agents in Harvard Square. They understood what I was talking about. But Doe nervously said that the legality of the foundations of the program was "outside [their] jurisdiction," and the agents quickly changed the subject to tell me about the recent progress they had made on the source of the leak
In summary, it is evident that Goldsmith believed Gonzales indeed lied to congress about the controversy over the TSP. Had Gonzales stayed in office, Goldsmith's upcoming SJC testimony would no doubt have fueled the calls for his prosecution and impeachment. His resignation was one means to reduce the interest in his prosecution, but we must maintain pressure on the SJC and HJC to continue to investigate Gonzales and pursue his prosecution. More importantly, the illegality of the NSA-driven Warrantless Surveillance Program as it existed from October 2001- March 2004 must be investigated further. If the program was indeed illegal, as Comey and Goldsmith imply, then the perpetrators of the illegality should be brought to justice.
UPDATE: According to NCDem, Goldsmith will testify next Monday, September 17.