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Update On Bush’s Illegal Spying

gonzo_bush.jpgThe controversy over the Bush Administration’s illegal surveillance of Americans and the Attorney General’s role in concealing it became more intense over the weekend. Much of the focus was on the side show of whether Attorney General Gonzales did or did not mislead or lie to Congress when he claimed there was never any significant disagreement over the “program the President has confirmed.” But the “underlying crime,” which the Administration keeps trying to sweep under the rug, is and always has been the illegal spying on Americans. And bit by bit, the Administration has been forced to concede it engaged in these crimes for years.

On the “did Gonzales lie” front, the big shiny object news came from the Administration leaks to the New York Times and Washington Post, in which anonymous officials planted the story that Gonzales might have been telling the truth when he said there was no disagreement about the confirmed program, because he meant the limited program of NSA surveillance of communications involving al Qaeda affiliated parties on one end and US residents on the other. The matters about which James Comey and Robert Mueller were prepared to resign were not that program but instead “other programs” based on data mining. The progressive bloodhounds have already dissected these misleading leaks.

Keying off a long analysis by Marty Lederman, Glenn Greenwald goes through the credibility of these leaks and not only debunks their accuracy but excoriates the Times and Post for once again serving as uncritical vehicles for anonymous Administration leaks intended to exonerate Administration officials. Glenn also notes that:

(1) The Times and WaPo stories do not get Gonzales off the hook because the Comey et al legal objections were not limited just to data mining activities; they also included “other activities”;

(2) Former NSA Director Hayden emphatically denied that NSA ever performed such data mining — [then who did?];

(3) The nature and scope of the programs to which Comey and Mueller referred in their testimonies continue to be unknown; so

(4) We still need to find out what the Bush Administration was doing on each and all of these programs.

At The Next Hurrah, emptywheel adds to Anonymous Liberal’s discussion of the perjury charge, systematically parsing the statements of Bush, Gonzales, Comey, and Mueller, trying to close off the Adminstration’s defenses against lying. And yesterday, Marcy carried Lederman’s data mining analysis further and concluded that Bush had been violating the law in multiple ways:

Which is a fancy way of saying that the data-mining violated the requirements for probable cause in FISA, but the data-mining itself probably violated a law Congress had passed in Fall 2003 specifically to prevent data-mining of American citizens. Which would mean that, no matter the outcome of debates over the AUMF-based justification for violating FISA and the Article II-based justification for violating FISA, if Bush was also violating this provision, then he was violating something passed subsequent to the AUMF and subsequent to Bush’s initial authorization of the program.

You’ll recall from Constitutional law posts by Prof, looseheadprop and Christy, Marcy’s chronology means that the Yooian legal justifications relied on by Bush are even weaker than we assumed. The later enacted statute banning data mining reduces the President’s inherent power to its weakest point (just as FISA does) and its timing supercedes any argument based on the War Authorization. Marcy also notes that the Times fails to discuss its own knowledge about whether the Administration made its program distinctions back in 2004 when it convinced the Times’ editors to withhold the story for over a year.

[Update: See emptywheel’s latest connecting the dots on Rockefeller’s letter to Cheney wrt to data mining.]

The Administration’s new storyline did not seem to do Gonzales much good. Fox News’ Chris Wallace pursued the Gonzales story with Senator Feingold but reported that Fox was unable to find any Republican willing to come on the show to defend Gonzales. Senator Leahy, appearing on Face the Nation gave Gonzales one week to clarify his testimony, or else . . . Connecticut’s Chris Shays told reporters he wished Gonzales would just resign for the good of the party. And there were more stories today on the history of Gonzales misleading Congress.

Finally, Kagro X reports that Gonzales will be pleased to know that in Ellen Tauscher’s copy of the Constitution, there apparently is no provision for impeaching the Attorney General. I suspect the New York Times, whose editorial page called for Gonzales’ impeachment if he does not come clean, will be happy to loan Ms. Tauscher their copy.

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John has been writing for Firedoglake since 2006 or so, on whatever interests him. He has a law degree, worked as legal counsel and energy policy adviser for a state energy agency for 20 years and then as a consultant on electricity systems and markets. He's now retired, living in Massachusetts.

You can follow John on twitter: @JohnChandley