Gonzales Hangs On … But for How Long?

Late on the afternoon of March 10, 2004, eight congressional leaders filed into the White House Situation Room for an urgent briefing on one of the Bush administration's top secrets: a classified surveillance program that involved monitoring Americans' e-mails and phone calls without court warrants. Vice President Dick Cheney did most of the briefing. But as he explained the National Security Agency program, the lawmakers weren't fully grasping the dimensions of what he was saying. Tom Daschle, then the Senate minority leader, tells NEWSWEEK that Cheney "talked like it was something routine. We really had no idea what it was all about." Still, as Daschle recalls, there were "a lot of concerns" expressed by some Democrats in the room when Cheney asked for their approval to continue the program. House Speaker Nancy Pelosi, then the House minority leader, recalls that she "made clear my disagreement with what the White House was asking."

Last week, embattled Attorney General Alberto Gonzales gave a different account of the briefing, provoking yet another controversy in his tenure as the country's top law-enforcement officer. In testimony before the Senate Judiciary Committee, Gonzales, who participated in the briefing as the White House counsel, said the legislators were told the deputy attorney general at the time, James Comey, had raised objections to the program. Gonzales said there was "consensus" that the program, aimed at catching terrorists, was needed. "The congressional leadership ... told us, 'Continue going forward with this very important intelligence activity'," Gonzales testified.

It was only after getting that go-ahead, Gonzales said, that he and then White House chief of staff Andrew Card visited the hospital room of John Ashcroft, the gravely ill attorney general recovering from surgery. Gonzales tried, unsuccessfully, to get the heavily medicated Ashcroft to overrule Comey—a pivotal moment in one of the fiercest behind-the-scenes clashes of the Bush presidency.

Gonzales's account of the briefing and his reasons for going to the hospital set off a firestorm. Democratic senators charged that aspects of Gonzales's testimony were false and demanded the appointment of a special prosecutor; even the committee's ranking Republican, Sen. Arlen Specter, questioned if Gonzales's testimony was "actionable." The key point of contention: the A.G.'s long insistence that "there has not been any serious disagreement" within the administration about the Terrorist Surveillance Program. His claim came under scrutiny a few months ago when Comey testified how he, Ashcroft and FBI Director Robert Mueller were ready to resign in March '04 over a classified-intelligence program. Senators familiar with the matter, such as John D. Rockefeller IV and Russ Feingold, say Comey was referring to the same program now called the TSP. Yet Gonzales insisted the subject of the briefing and the dispute with Comey was "not about the TSP" but about "other intelligence activities" he couldn't discuss.

Apparent evidence to the contrary is strong: a letter written last year by then-Director of National Intelligence John Negroponte described the March '04 briefing as being about the "Terrorist Surveillance Program"; and Mueller himself testified last week the dispute was about the "much discussed" NSA program.

The new dispute is, in part, a semantic game. The name "Terrorist Surveillance Program" wasn't used by the White House until December 2005. By that time, the program had been scaled back because of protests from Comey and others at the Justice Department. Justice officials insisted last week Gonzales has always been careful to limit his statements to the publicly disclosed TSP, implying that his comments do not refer to the program as it existed before late '05. The A.G.'s testimony "was and remains accurate," a spokesman says.

Whether the verbal parsing will be enough to permit Gonzales to survive broad calls for his resignation is unclear. Congressional Democrats plan to step up the heat in coming weeks, pressing for Justice memos and other documents. They also plan to call a potentially crucial witness: Jack L. Goldsmith, the former chief of Justice's Office of Legal Counsel. It was Goldsmith who wrote a key opinion concluding the eavesdropping program was illegal. A conservative lawyer now at Harvard, Goldsmith, who declined to comment, will have every incentive to talk. He is due to publish a new book this fall called "The Terror Presidency: Law and Judgment Inside the Bush Administration." According to its Amazon.com listing, the book will chronicle how the president's "apparent indifference to human rights has damaged his presidency." On the cover are pictures of Bush, Cheney—and Gonzales.

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