Dispatch September 2008

What Did Bush Tell Gonzales?

Sources say Alberto Gonzales now claims that President Bush personally directed him to John Ashcroft's hospital room in the infamous wiretap renewal incident

Before Gonzales and Card met with Ashcroft in the hospital, Gonzales and Cheney met with congressional leaders so as to enlist their possible aid in finding a legislative means for continuing the eavesdropping program if Comey and others continued to disagree about its legality. Bush personally instructed Gonzales to write notes of what was said at the meeting, according to a report released on September 2, 2008, by the Justice Department’s inspector general. The disclosure came because the IG was investigating whether Gonzales had mishandled classified information while attorney general.

A single sentence in the report says: “Gonzales told the OIG [Office of Inspector General] that President Bush directed him to memorialize the March 10, 2004 meeting.”

Among those present at the meeting besides Gonzales and Cheney, according to the IG report, were National Security Agency Director Michael Hayden, the speaker of the House of Representatives, the House minority leader, the Senate majority and minority leaders, and the chairmen and vice chairmen of the congressional intelligence committees.

Regarding the notes that Gonzales made about the meeting, the IG report went on to say:

Gonzales stated that he drafted notes about the meeting in a spiral notebook in his White House Counsel’s Office within a few days of the meeting, probably on the weekend immediately following the meeting. Gonzales stated that he wrote the notes in a single sitting except for one line, which he told us he wrote within the next day.

A congressional source familiar with the meeting said in an interview that he believed it was significant that Bush personally directed Gonzales to write notes as to what occurred at the meeting. Ordinarily members of Congress don’t take notes at briefings concerning such highly classified issues. Very likely, Gonzales’s notes are the only ones that exist. [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. For that story click here.]

The September 2 report by the IG narrowly focused on the question of whether Gonzales “mishandled classified documents” during his tenure as attorney general. The report concluded that Gonzales “violated Department security requirements and procedures” in handling 18 documents, classified as Top Secret or higher. Several were marked as SCI, or “sensitive compartmented information,” a category for the most highly classified records in government.

Among the most sensitive of those documents mishandled were the notes that Gonzales made of his March 10, 2004, meeting with congressional leaders.

It is unclear, based on what Gonzales wrote in his notes, what exactly he was told by the congressional leaders during the White House’s meeting with them.

But on July 24, 2007, when questioned before the Senate Judiciary Committee about the events of March 10, 2004, Gonzales testified that the members of Congress he met with that day had told him that “despite the recommendation of the deputy attorney general,” the government should still “go forward with very important intelligence activities.”

Several of the members of Congress who were at the March 10 meeting—House Minority Leader Nancy Pelosi and Senate Minority Leader Tom Daschle among them—have said they said no such thing.

Shortly before Gonzales resigned from office in August 2007, the Justice Department’s inspector general, Glenn A. Fine, wrote to inform Congress that he was investigating whether statements made by Gonzales under oath during congressional testimony were “intentionally false, misleading, or inappropriate.”

Among the statements that Fine is apparently investigating is one in which Gonzales claimed that the congressional leaders had wanted him to move forward with the program despite Comey’s refusal to certify it as legal.

Gonzales is also in legal jeopardy for having earlier told the Senate Judiciary Committee that there had never been any “serious disagreement” about the legality of the administration’s surveillance program: “There has not been any serious disagreement about the program the president has confirmed,” he testified in February 2006.

At the time Gonzales made that statement, the public had no idea about his late-night hospital-room visit with John Ashcroft—and he apparently had no expectation that it would ever come to light.

In one additional instance, President Bush was the person responsible for a controversial decision regarding his surveillance program.

This involved an effort to prevent his very own Justice Department from investigating the surveillance program in the first place. During 2006 and 2007, I wrote a series of stories for National Journal about how the Justice Department’s Office of Professional Responsibility wanted to investigate the administration’s surveillance program, but was unable to because its investigators were being denied security clearances to do their work. (Those articles can be found here, here, and here.) Over time, it was revealed that Gonzales had denied those security clearances, and later that Bush himself had made the decision disallowing them.

The story that I wrote for the March 15, 2007, edition of National Journal began as follows:

Shortly before Attorney General Alberto Gonzales advised President Bush last year on whether to shut down a Justice Department inquiry regarding the administration's warrantless domestic eavesdropping program, Gonzales learned that his own conduct would likely be a focus of the investigation, according to government records and interviews.

Bush personally intervened to sideline the Justice Department probe in April 2006 by taking the unusual step of denying investigators the security clearances necessary for their work.

It is unclear whether the president knew at the time of his decision that the Justice inquiry—to be conducted by the department's internal ethics watchdog, the Office of Professional Responsibility—would almost certainly examine the conduct of his attorney general.

At the time the story was published, Gonzales was fighting for his political life. Republicans in Congress had joined Democrats in sharply criticizing Gonzales for his role in the firings of nine U.S. attorneys. A whole new controversy might make his resignation from office imminent.

Gonzales immediately fought back. On March 22, 2007, a senior Justice Department official wrote Congress on his behalf, saying not only that it was President Bush who had made the decision to deny security clearances to the OPR investigators, but also that Gonzales had advised the president that the investigation should be allowed to move forward, and that Bush had overruled that advice.

A senior Justice Department official told me that the letter was approved in advance by the White House: “It was decided that in this instance the attorney general could no longer take the heat for the president … This time the president was going to take responsibility and deflect criticism for [his attorney general] instead of the other way around.”

At the time, it appeared that the president had halted the Justice Department’s probe in order to protect his attorney general, whose conduct was going to be a central focus for investigators. But as more information continues to come to light, the president’s denial of the security clearances raises an important question: Were the president’s actions designed to protect his attorney general—or himself?

Murray Waas is a writer in Washington, D.C.
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