Dispatch September 2008

The Case of the Gonzales Notes

Did Alberto Gonzales create a set of fictitious notes to justify the reauthorization of Bush's warrantless eavesdropping program?

The Justice Department is investigating whether former Attorney General Alberto Gonzales created a set of fictitious notes so that President Bush would have a rationale for reauthorizing his warrantless eavesdropping program, according to sources close to the investigation.

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President Bush reauthorized the surveillance program on March 11, 2004, one day after the hospitalized Attorney General John Ashcroft refused to sign a certification saying that the program was legal and could therefore continue.

In reauthorizing the surveillance program over the objections of his own Justice Department, President Bush later claimed to have relied on notes made by Gonzales about a meeting that had taken place the day before (March 10), in which Gonzales and Vice President Cheney had met with eight congressional leaders—also known as the “Gang of Eight”—who receive briefings about covert intelligence programs. According to Gonzales’s notes, the congressional leaders had said in the meeting that they wanted the surveillance program to continue despite the attorney general’s refusal to certify that it was legal.

But four of the congressional leaders present at the meeting say that’s not true; they never encouraged the White House to sidestep the objections of the attorney general and continue the program without his approval.

Investigators are skeptical of the notes because Gonzales did not write them until days after the meeting with the congressional leaders, and he wrote them after both Bush and Gonzales had together signed a reauthorization of the surveillance program.

Gonzales, who was White House counsel at the time he met with the congressional leaders, has told investigators working for the Justice Department’s Office of the Inspector General that President Bush personally directed him to write the notes so that he could “memorialize” what the legislators had told him, according to a report made public by the Inspector General’s Office on September 2 and sources close to the investigation.

It is unclear whether it was before the March 10 meeting that Bush directed Gonzales to write the notes, or after the meeting occurred. The White House declined to comment for this story. An attorney for Gonzales, George J. Terwilliger III, himself a former deputy attorney general, declined to comment as well.

The timing of when Bush directed Gonzales to write the notes is important: investigators say the fact that they were written after both the meeting and the reauthorization of the program might indicate that they were written in order to provide an after-the-fact justification for the signing of the reauthorization—and that that timing might have given Gonzales a motive to lie in the notes.

Stanley Brand, a Washington attorney who specializes in representing executive branch officials under investigation, said in an interview: “Why would you want someone to take notes of a meeting days after the fact? If you wanted your notes to stand up, they are going to be more credible if you took them at the meeting itself or shortly after it occurred. Any reputable lawyer would want to write them as soon as possible.”

When the notes were written and when the president directed Gonzales to write them is “extraordinarily relevant and would allow a person to draw a reasonable inference … that something funny was going on.” An investigating body, or a jury, Brand said, might “infer there was a conspiracy afoot to obstruct with or without the participation of the president.”

Brand adds: “The presumption is that the president told Gonzales to write truthful notes … That is the benign interpretation of what happened. But when Gonzales is claiming to have had members of Congress telling him things they say they never said, a meticulous investigator would want to examine the president’s role as well.”

A senior career Justice Department official, not directly involved in the inspector general’s investigation, comments: “I think you would want to know whether the president was another person who Gonzales misled … or rather was someone who might have encouraged it. Because Bush was a direct beneficiary of Gonzales’s deception, you have to at least consider the possibility that he was a party to it.”

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