Live at the Gonzo Hearings

Posted by Guest Blogger at 10:00 AM on July 24, 2007.

This post, written by Christy Hardin Smith, originally appeared on FireDogLake

Attorney General Alberto Gonzales is set to testify today before the Senate Judiciary Committee. Testimony will begin at 9:30 am ET -- and will be covered live on C-Span3. I'll try to liveblog to the best of my ability this morning as the hearing moves forward -- but that requires a little cooperation from all of you. The more you fill up the comments with one-liners and/or irrelevent, off-topic comments, the faster I have to change threads. Which means I have to pause my Tivo...and that puts the liveblogging behind.

So, keep the comments sparse, and I'll liveblog as quickly and accurately as I can, and we'll all be happier. Thanks gang. Happy birthday to dratty this morning. Now, onto the Texas Toast...

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9:32 am ET

SEN. LEAHY gavels the hearing into session.

SEN. LEAHY OPENING: Three months ago when AG Goznales last appeared before thsi committee, I said that the DOJ was experiencing a crisis of leadership perhaps unrivaled in its history. That crisis continues. The AG has lost confidence of the American public -- the DOJ must be restoreed to be worthy of tis name. It should not be reduced to being a political arm of the WH -- it was never intended tobe that. With the department shrouded in scandal, the DAG has announced his resignation, others have asked that their names be withdrawn rather than face a confirmation hearing. The DOJ's chief of staff, WH liaison and others have resigned. I joke that the last one out should turn out the lights. This WH values loyalty over judgment, secrecy over openness and ideology over competence. Political considerations factored into the firing of at least nine USAttys. The list was compiled by high ranks within the WH -- whether federal prosecutors were doing enough to file partisan voter fraud cases in strategic locations. The question remaining is who made the decision to fire these prosecutors. We know from testimony that the President was not involved. The evidence we have been able to collect points to Karl Rove and political operatives in the WH -- the stonewalling continues to our desire to get to the truth. What is the WH so desperate to hide? This WH has ordered former officials not to appear, including Harriet Miers -- the WH is asserting its claims of privilege -- further than have ever been asserted in our nation's history -- and that neither Congress nor the courts can review it. Again, this WH puts itself above the law.

Discussing the Todd Graves refusal to bring a case which would have stripped a number of African American voters from the voter rolls. When Graves was fired, Schlozman was brought in -- and did what the WH wanted, including filing a case on the eve of an election contrary to DOJ internal regulations. This is what happens when a responsible prosecutor is replaced by one who is politically motivated. [CHS notes: AG Gonzales is using an old lawyer trick this morning -- keep yourself busy taking notes as someone is speaking so that you don't show emotion. When he is looking upward at Leahy, it is all he can do to suppress a massive stink-eye look. Leahy's opening is quite good thus far.]

Discussing the Todd Graves refusal to bring a case which would have stripped a number of African American voters from the voter rolls. When Graves was fired, Schlozman was brought in -- and did what the WH wanted, including filing a case.

Mr. Schlozman also bragged about hiring ideological soulmates. Monica Goodling likewise admitted to crossing the line by using a political litmus test for hiring considerations. Instead of keeping law enforcement above politics, this Administration has put its political needs above the law. The lack of independence and the actions of the AG in acting as though he were the President's own lawyer and not the AG of the United States. Leahy lists: torture memo, going to Ashcroft's bedside to try and force him to sign off on NSA spying while he was incapacitated, and other actions taken which show that the AG was working toward the President's interests only.

Leahy brings up the AG lying about the Patriot Act violations under oath -- recently discovered through FBI testimony, not through the AG being open about having testified falsely. Leadership at the DOJ only admits mistakes when public revelations force such apology -- the regrets are that we have found out about these excesses and abuses, not for the problems themselves. With no other outside check or balance -- with an Administration trying to cut the courts and the Congress out of any oversight -- what the WH is doing amounts to "trust us." I am not willing to do so -- you have squandered the public trust.

A tragic dimension of all of this is the undermining of the integrity of the thousands of officials and prosecutors and investigators who do their jobs and do them well. Once the government shows a disregard for the independence of the justice system and the rule of law, it is very hard to restore the people's faith. This committee will do what it takes -- both Republicans and Democrats agree -- to restore the DOJ.

SEN. SPECTER OPENING: I direct my remarks to you. You saying that you accept full responsibility is not enough. The DOJ must function properly in order to protect the vital interests of the American public: national security cases, drug and violent crime, and many other issues. This investigation has placed a heavy cloud over the DOJ -- there is evidence of very low morale, of mismanagement -- and this is due to your actions or inactions. I have asked you both formally and privately to give us an explanation for the USAtty resignations, and that has not been done. We have sought an accommodation for interviewing the remaining witnesses -- and the Administration has continued to stonewall. [CHS notes: Arlen is now offering a full cave to the WH to make this go away. Hello, Lord North.] Then says that the Congress cannot give up their power of oversight -- will not give them up as an arrangement with this Administration. Remarkable turn of events: announcement that the DCUSAtty will be prevented from enforcing a contempt citation. The President can stymie Congressional oversight by doing so -- that is taking this controversy to an incredible level.

Specter is laying out the Presidential claims as dictates. [CHS notes: which, they are...] Specter now going through conflict of interests analysis, both for the AG and the WH. We also have an inherent contempt procedure of trying this in the Senate. We also have the potential Alcee Hastings proceeding as precedent -- using a committee -- and we are going to move ahead on this however we have to do so.

Every week a new issue arises. I sent you letters advising you that we would be pursuing these matters at this hearing. One is on the legality of the terrorist surveillance program -- you said categorically there was no disagreement on this. From Comey's testimony, we know very difference facts from your testimony. Going through the Ashcroft hospital visit -- it bedevils me to see any real explanation for how you could honestly say there was no disagreement when you had to try and weasel a signature out of a man in the hospital who was incapacitated. I also wrote to you about the Paul Charlton death penalty case -- you wouldn't give him more than 5 to 10 minutes with your deputy, you wouldn't talk to him. The oxycontin case -- there was malicious, deliberate falsification. Is your department functioning? How many other matters will there be that we discover that you haven't told us about or that we haven't heard from in the news?

Gonzales being sworn in under oath.

AG GONZALES OPENING: Wants to change the subject to scary terrorism -- instead of talking about how his lack of leadership and his weakening of the DOJ with his incompetence makes the nation as a whole less safe. Typical.

Talking about the end-run of FISA court, griping about having to follow the law -- wants the laws changed to allow them to do as they like. [CHS notes: Man, is he barking up the wrong congressional tree. "Sorry we suck. Now give us even more unsupervised power."]

Leahy says AG's full statement will be made part of the record.

SEN. LEAHY: We have documents, not of course given to this committee, but via FOIA lawsuits. There were violations of the Patriot Act safeguards on improper search warrants and other problems. You said in testimony under oath that there were no reports of problems -- and I followed up with written questions about these problems, and you never revealed that you knew of these problems from earlier written reports. Do you care to revise your prior misleading testimony? Gonzales says that he understands the prior statements that he made may have been confusing -- similar to Director of FBI. Leahy interrupts and says he is not concerned with other people's comments, he wants an explanation of Gonzales. AG says that the IOB reports say that these are not intentional abuses -- Leahy asks so you are saying this isn't an abuse if the requirements are broken without malice? Gonzales goes off on a long-winded bureaucratic explanation of procedural niceties and doesn't answer the question. Leahy says that the general counsel of the FBI hasn't received a single response from the IOB -- for five years -- "I thought Congress was the only group that didn't get responses." Are you saying that if we send it to the IOB and they bury the problem that there isn't then a problem? That's almost an Alice in Wonderland Administration.

Gonzales says appropriate action is taken. Leahy asks, after a long pause, "Such as?" [CHS notes: think skeptical tone.] Gonzales says some additional training is a good example of what they do. Leahy says that there are 17 remaining USAatty positionsare open -- when canwe expect actual nominations from the Bush Administration? And don't think that you will be end-running the Senate for advice and consent, either. Gonzales says they are working on it -- the vetting process takes time. [CHS says: jeebus! 17 positions are open! OMG!!!]

Leahy then gets into the constitutional duty of faithfully executing the law and enforcing a contempt citation? Gonzales says that he is recused from this ongoing controversy and that Leahy will have to talk with the Soliciter General. [CHS notes: who, I think, is an acting SG, if I remember correctly he may have been a recess appointment? Does anyone know for certain?]

SEN. SPECTER QUESTIONS: About Mr. Comey's testimony. You said there were no serious questions about the NSA program. Comey directly contradicts your statement. Gonzales says that they didn't go to the hospital to talk with Ashcroft about the domestic spying program but, rather, about other intelligence activities -- not about the surbeillance program that the President announced to the American public. And I'd like to talk to another meeting that occurred at the WH that puts the meeting at the hospital in context. Emergency meeting at the WH involving senior members of the WH and the Gang of 8 -- Comey said that he couldn't approve the continued surveillance question. Specter says how could you get approval from Ashcroft for anything if he was under sedation? Gonzales says that there are no rules to decide whether Ashcroft was able to answer -- they decided to leave it up to Ashcroft. [CHS notes: This tap dance on this is appalling. Ashcroft had relinquished his authority, they knew he had just had emergency surgery and was under sedation and very strong pain medication. If he thinks that anyone believes they weren't trying to take advantage of that, he is crazy.]

Specter is now pissed. Moves on to executive privilege — and the WH attempt to bar the Congress from getting a proper determination about whether you can have a constitutional government where Congress exercises its duty of oversight where a President refuses to allow the oversight? Gonzales says sometimes accommodations are reached, but he’s not going to answer Specter’s question because this relates to an ongoing controversy and he isn’t going ot answer it. Specter says that Gonzales is the AG and also a lawyer — and this is a fundamental constitutional question. A court decides when a conflict exists — this has nothing to do with the USAttys who were asked to resign.

Does the President have a conflict of interest in allowing the former WH counsel to respond to subpoena? Gonzales says that he’s not going to answer that question either.

Let’s see if I can find a question you will answer. How about the death penalty case? Forensic problems with the case, Charlton contacted your office and said there were problems with the case and that it wasn’t a proper death penalty case. Charlton spoke with McNulty — had a deputy then call Charlton and say that McNulty had spent “perhaps as much as 5 or 10 minutes” a significant period of time on this matter. Gonzales says that he doesn’t remember this particular case. Specter says what you are saying is that you do not recall about how you stood on a matter of having a man executed. [CHS notes: Good lord, I remember every freaking case that I ever tried where a significant period of incarceration was involved, because they are personally difficult cases even where defendants deserve the penalties involved. We are not a death penalty state in WV — I can only imagine the additonal level of consideration that goes into that for an attorney, and Gonzales is breezing over this as if it were nothing at all. Appalling and immoral, and that’s just for starters — what kind of unfeeling dolt dosn’t pay attention when they are required to make that sort of decision. I’ve handled hundreds of court files — but the big cases stick in my mind in detail. Still. Years later.] Specter now makes this point as well.

SEN. KOHL QUESTIONS: Guantanimo continues to harm our image around the world. Goes into which former Bush officials, including current DOD head Gates, that it needs to be closed. Recent press reports are underway to close Guantanimo — but recent press reports say that AG Gonzales and others at the DOJ are blocking the closure. Gonzales begins his answer with the strawman argument of releasing everyone to fight against us again (which no one advocates for any real terror suspect), or bringing them to US soil which Gonzales thinks is unfeasible. Kohl says if you support closing Guantanimo, why don’t you put things itno place that would allow for this to happen? Gonzales then going on about bringing them to the US, problems with asylum questions on sending people back to nations where they might be tortured. [CHS notes: Gonzales really nervous in answering these questions. And dismissive.] Gonzales says President wants to close Guantanimo, but will require consultation with Congress to do so. [CHS notes: So, the WH pass the responsibility to someone else strategy extends to Guantanimo. Good to know.] Kohl now goes over the price of gas and why the DOJ isn’t enforcing the law with regard to cartel price fixing. Gonzales says they have to worry about “the downstream of impact” of the legislation on this.

Since last oversight hearing, doesn’t seem like anything has improved at the DOJ. Lots of resignations at the DOJ, positions not being filled because people keep turning down the jobs. This cannot be all about you — the DOJ is more important than the person who fills the job. Why wouldn’t the US be better served with someone who had believeablity, trust and credibility, which you do not have? Gonzales says he has decided to stay and fix the problems. [CHS notes: and continue to be a firewall for the WH…] Says they are bringing in good, experienced people to temporarily fill these positions. [CHS notes: without, of course, having them go through traditional Senate confirmation process or anything…for the record] The way you measure morale is to measure output — and output has been outstanding. [CHS notes: That’s because most of the people who work there are professionals, you jerk.]

SEN. HATCH QUESTIONS: Let me start by saying Guantanimo is scary. Be afraid of terrorists. No closing it — because I’ve staked my political livelihood on the scary terrorist meme. [CHS notes: Am paraphrasing here.] I’d like to give you a full opportunity to fully describe your CYA story about the Ashcroft hospital visit. Gonzales says that the DOJ had repeatedly approved the NSA domestic spying two years prior — Hatch asks whether COmey had been there that whole time, and Gonzales says no, but he can’t remember how long he’d been DAG. Gonzales says that the consensus of Congressional leadership was that the program should continue. [CHS notes: Hmmm…concensus — so it was a unanimous agreement from Congressional Gang of 8 folks, meanign that there was dissent about this that the WH previously has not acknowledged either.] Congressional leadership consensus also that it would be difficult to obntain legislation without compromising the program [CHS note: i.e., without revealing that the WH had been serially breaking the FISA law for the last few years.] Gonzales says that they wouldn’t have aked anything of Ashcroft had he not been competent. Ashcroft talked most of the time, was lucid about legal issues — he and Card spoke with Comey after Ashcroft indicated that Comey was making the decision and he stood by him on that. So, basically, according to Gonzales, it’s the fault of the Gang of Eight that Gonzales and Card had to go to the hospital to try and take advantage of a sedated and medicated man who had given his authority for this program to his DAG. Hatch then goes through the membership of the Gang of Eight — that it is a bi-partisan committee, and that the consensus (as in NOT EVERYONE) was to allow this to continue, again skating any dissent. [CHS notes: Someone should ask about Gang of Eight dissent, given Rockefeller’s written memorialization of it to Cheney, among others.]

Gonzales now whining about having to follow the FISA laws that have been in palce for multiple Administrations and that attorneys all over the country along with investigators follow every day in terms of third-party review of subpoenas for surveillance. [CHS notes: Including in dinky little jurisdictions like the one in which I worked, where manpower was at a premium — we still managed to fill out our paperwork properly and follow the law.]

Hatch goes into the attempted end-run of the Senate on appointments for USAttys. Will you get Senate advice and consent? [CHS notes: of course, Hatch fails to note that it was his former staffer that slipped that provision into the Patriot Act in the first place for the WH’s benefit…but hey, who was expecting candor?] Gonzales says they will do so.

SEN. LEAHY: Could you not have taken 30 seconds or a minute to tell me that you wanted FISA amendments or updates? You know, I have a listed phone number. Gonzales says he thinks it’s been communicated to staff…Leahy says he has a listed phone number, feel free to call me any time if it is that important to you.

SEN. FEINSTEIN QUESTIONS: I listened to both openings, and then I listened to your response, which was non-responsive. I don’t think you understand the problems in terms of integrity in the department and what it means to the nation. You cannot tell me that you went to see Ashcroft for any reason other than to reverse what Comey’s decision had been. Gonzales says yes, that’s what we were trying to do — if he’d been competent to make the decision. Feinstein makes the point that Ashcroft told you directly that Comey was in charge, and that they had to abide by that.

What I’d like to establish once and for all is who put the names of the USAttys on the list. Kyle Sampson was the “aggregator.” Comey didn’t even know the process was going on…and on and on. [CHS notes: Feinstein does a great job laying this all out. Hope someone pulls this clip.] Whoa pproved those names? Gonzales says that he ultimately approved the names on the list that was presented to me. How many names did you approve total? Seven on December 7th. I’ll have to get back to you on that. Feinstein says “you don’t know after all we’ve been through, hearing after hearing?” Gonzales says well, there were 7 on Dec. 7th to leave by January 15th. There were others who were asked to resign? Gonzales says yes. Cummins and Graves — and there were others who were asked to leave because there was “legitimate cause.” Feinstein says “so the others were asked to leave for illegitimate cause”?” Gonzales backs away from this, and says that no, what he means is egregious conduct, blah blah blah.

Read to you what has been dropped from the earlier addition of the DOJ manual. (1) restriction on bringing a voter fraud case close to an election. (2) Care for overt investigations in the pre-election period and while election is underway. “Most if not all prosecutions and investigations should await the end of the election.” — underlined in the prior volume — has been removed. Reason for that was to not impact the election. Gonzales, predictably, has no idea what Feinstein is talking about and can’t answer why those changes were made.

Feinstein says that this is relevent because two, possibly three, USAttys did no bring these small cases which could have impacted the elections. And when you look at the changes in the regs on this, something is rotten.

SEN. KYL QUESTIONS: Back to Guantanimo. [CHS says: The usual Kyl tactic of changing the subject continues…] Oh, look over there — it’s internet gambling and the NCAA. blah blah blah Sports need to be clean blah blah blah. Immigration and “criminal aliens”…blah blah blah.

SEN. CARDIN: I want to return to the USAtty issue. You have offere conflicting testimony as to who was responsible for the firings. We still dont’ know how particular names got on the list. Going through the list of USATTys who were fired. Iglesias. Problems with local GOP establishment in NM. In Arizona, local GOP establishment not happy with Charlton. With LAM, not happy with the expansion of the investigation on Duke Cunningham. In Missouri, same thing — we’ve spoken about that. What are we to think — when you and the WH are not giving us answers without the assertion of executive provilege? [CHS notes: Can someone please bring up the fact that the President is obstructing an investigation into his own WH by improperly asserting a blanket executive privlege to cover his own aides and his own WH?] Gonzales says that he didn’t put names on the list, but the names didn’t surprise him — he got recommendations from others. But fails to identify who put the names on the list. Cardin says if you don’t know how the names got there, how can you tell me that they weren’t put on for political reasons? Gonzales says that he’s just certain that didn’t happen, but that’s being investigated and he can’t really talk about it.

Cardin then gets into the Gang of Eight meeting. These are not public meetings, are they? Gonzales says no, that hasn’t been talked about publicly, but Congress has been informed about some of this from the WH. They are not in open session. Those proceedings are kept confidential. Advice given are not made public. To the extent that there is an importance of confidence to Congress for maintaining a working relationship, it seems to me that you are making a very selective use of what you do or do not hold in confidence. You release information that you think you can use for your benefit and you withhold independent information that might lead us ultimately to the facts if it might be harmful to someone the WH is trying to protect.

Let’s go to another area. Civil rights division hirings for career hires — used to be they were reviewed by career attorneys. That was taken over by political appointees. I hope that you will go back to a non-partisan environment for hiring career appointees. We have had testimony, from Monica Goodling and others, that crosses the line in what is appropriate. Gonzales says he thinks they have taken those steps, but doesn’t sound very sure.

SEN. GRASSLEY QUESTIONS: Puts a list of outstanding document requests in the record.

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Back in session after the break.

SEN. LEAHY: Vote on the Senate floor won’t be until later. Trying to work around the committee schedule and the vote schedule to continue.

SEN. WHITEHOUSE: Talking again about the Ashcroft hospital visit. It is your testimony under oath that AG Ashcroft was read into and authorized the program at issue for two years prior to your hospital visit? Gonzales says he wants “to be very careful here because it’s fairly complicated…” [CHS notes: in other words, not quite…] Gonzales says that Ashcroft had authorized these activities, the facts are complicated, we had discussions in the intel committees about this issue, all the lawyers worked very hard to find a way forward on this issue…these had been authorized by AG Ashcroft. Whitehouse says he’s trying to nail that one point down — AG Gonzales says he isn’t sure that he can answer the question.

LEAHY: Why not just be fair to the truth and answer the question?

WHITEHOUSE: Ashcroft was read into these activities and did approve them fromt he very beginning, “I beleive from the very beginning, but again, I want to be very fair to General Ashcroft…but I can’t get into details here, quite frankly.” Was this program ever run without the approval of the AG? “We believe that we had the approval of the AG for these particular activities.” Would that be reflected in any document? yes, it would. Whitehouse says they will pursue that document. When you went ot visit Ashcroft, what document did you have in your hand? A reauthorization of the NSA program — would be a WH document so would be covered under records act. Do you consider FBI Dir. Mueller to be a reasonable man? Why would he order FBI agents not to throw Comey out of the room — not to leave Card and Gonzales alone with Ashcroft? Gonzales says that he isn’t certain that Meuller knew about the Gang of Eight meeting [CHS notes: as though that matters in terms of trying to take advantage of a sedated and medicated man in the ICU] Is it awkward to supervise the FBI after this piece of information has come out? Gonzales says that he can’t speak to the Director’s feelings about Gonzales, but that he still has a good deal of respect for Mueller.

Would you allow the DOJ to be supervised by the WH? Is there any situation where the WH would be allowed to direct litigation by the DOJ in which the WH is a party? Gonzales says no. “No transcript, closed door interviews, no oath, npo further inquiry” — would that be okay for you in any matter that the DOJ would be subjected to those restrictions? Gonzales says anything is possible. Whitehouse is clearly skeptical.

SEN. SESSIONS QUESTIONS: Your changes in the civil rights division are controversial — and your lack of knowledge of who changed such important policies as voter fraud policies and voting rights section is troubling. Gonzales says that the DAG does that. Sessions asks if that is delegated — says that it should be the AG’s responsibility. Sessions then gets into immigration issues and enforcement. Then goes on to cite Michelle Malkin as an authoritative source on the matter. [CHS notes: Oooh, excellent staff research. /snark] blah blah blah scary illegal immigrants blah blah blah. Now on to disparity between crack cocaine versus powder cocaine sentencing guidelines — Sessions says that he thinks it is time to review that and Leahy agrees.

SEN. SCHUMER QUESTIONS: First, I take it that there was just one program that the President confirmed in 2005 — not more that one? Gonzales says yes, just one. Puts upa chart detailing prior Gonzales testimony. [CHS notes: taking a stylistic tip from the Meet the Press gotcha quotes, I see…] You said “no dissent from DOJ officials.” Now, of course, we know from Jim Comey that almost the entire leadership of the Justice Department was prepared to resign over this program. What was this program? The very one that you said on which there was no dissent. Please help us understand how you did not mislead the committee. You just admitted to me that there was only one program. You said there was no dissent. But there was. Your June 5th statement confirms that what Comey was testifying about was the very program about which there was no dissent. Gonzales says that he stand by what he said to the committee.

You constantly make statements that are clear on their face that you are deceiving the committee and then you say that you go back and correct the record several days later. It is clear that you publicly told the committee something that was not true. Gonzales: Mmmmm hmmm. [CHS notes: Is the dismissive “mmmm hmmm” a DOJ political tic?]

LEAHY is asking for a review of the transcripts — if there is a discrepancy in sworn testimony, then we will look at who is telling the truth and who is not.

SEN. DURBIN QUESTIONS: Takes the AG to task for torture issues. Talks about the recent executive order which brings conduct back to what McCain’s anti-torture amendment attempted to pull back. Does common article 3 of the Geneva Convention apply to detainees? Gonzales says that he’s confident that it applies to al qaeda because the Supreme Court only smacked them down about al qaeda detentions in a current case. [CHS notes: And said executive order still was worded rather vaguely and left loopholes large enough to drive a waterboard through…]
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SEN. DURBIN QUESTIONS CONTINUED: Do you have any idea how you make the United States look by failing to completely answer these questions? Would it be legal for a foreign government to subject a US citizen to subject any of the interrogation techniques that we just talked about? Gonzales stalls in answering and stammers quite a bit. “We obviously would demand humane treatment of American citizens in accordance to the laws.” Do you believe that these techniques would be outside the norms of international law? Gonzales recuses himself from answering. Durbin calls him on it — you recuse yourself any time you are asked a question you don’t want to answer because it might make you look bad. Do you have any idea how this weaseling refusal to answer this makes the US look to other nations in terms of human rights and international law? Your ambiguity, you personally and this Administration, whether through signing statements or memos, are trying to leave just the sort of loopholes for conduct which we condemn from others around the world. [CHS notes: Go Durbin!]

Can you explain to me how five years after the Guantanimo prison was opened, there is yet to have a single conviction? Gonzales blames the lawyers who represent the inmates and the legal process. Durbin says that he suggested that 5 years ago that he and Specter tried to create a legal framework that would have allowed for streamlined legal process and you rejected it wholesale — and your conduct since then has wasted years and simply proved Sen. Durbin’s point.

SEN. FEINGOLD QUESTIONS: I am about to introduce a censure resolution against the President for his illegal conduct. As you probably know, I am a member of the Intelligence committee and I have had an opportunity to review the classified matters at issue here today — and I think that your testimony here today has been misleading at best as to the circumstances. As you know, I am prevented by law from elaborating further, but I intend to send you a classified letter which details all of the reasons why that is. Gonzales then accuses Feingold of not understanding what was going on in the intel committee. Feingold says that he’s appalled by Gonzales attempt to shift responsibility for the NSA domestic spying program onto Ashcroft. Also, limiting the briefing on this program to the Gang of Eight violates the Security Act. And, finally, you are the one that tried to take advantageof AG Ashcroft while he was in the ICU.

Feingold goes through all of the misstatements made by Gonzales under oath. When you look at all of your misstatements together, what I see is a pattern of conduct which was an intentional attempt to mislead Congress again and again. Shouldnt the head of the DOJ be held to a higher standard than that? Gonzales says where he’s made mistakes, he’s tried to correct the record and do better.

Do you agree that the potential liability for companies for failing to follow the privacy laws is an important part of the enforcement scheme of our privacy laws? As a general matter, yes.

SEN. KENNEDY QUESTIONS: Did you preview the President’s executive order on torture recently? Yes. Were their documents prepared to that end on review? Gonzales hesitates to answer and stammers. Kennedy asks that he get back to the committee with said documents. Goes on to talk about prohibition on activities outside the bounds of decency and humanity “such as sexual and indecent acts undertaken for the purposes of humiliation,” “threatening the individual with sexual mutilation,” “denegration of religious practices,” etc. If those are prohibited, why aren’t you willing to prohibit all of the activities which have been identified as improper? Gonzales says obviously some activities are beyond the pale and other activities are not so clear — so I can’t talk about them in open session. Kennedy says that he is basically saying that the activities in the Exec. Order are expressly prohibited, but the other activities don’t rise to the importance that they were listable as prohibited — so they may not be prohibited. Gonzales says that he’s not saying they aren’t, but it will be determined based on parameters in the executive order and by the Director of the CIA.

McConnell was on MtP and would not comment on these. Is it lawful to leave torture hanging out there as a threat? Gonzales says we aren’t engagng in torture. Kennedy makes the point that there is a question of extreme psychological harm.

Let’s go to another issue: diplomats receive political briefings at the Peace Corps. We’ve already had some fifteen government agencies briefed by Karl Rove’s political office on targeting Democrats for defeat prior to the election. Did you get these sorts of briefings at the DOJ? Gonzales says not that he knows of. [CHS notes: well, that’s really reassuring, isn’t it?] Kennedy asks him to look into whether these briefings violated the Hatch Act.

About the civil rights division cases — the Bush Administration has filed only two cases based on race discrimination and voting rights, and then it took until 2006 for these to be filed. Do you think this reflects accurately what is going on in terms of discrimination in the US? Gonzales says no, he doesn’t, and he thinks the person from the DOJ who testified about the civil rights division cases was wrong.

SEN. LEAHY QUESTIONS: When Monica Goodling testified under oath, she said she crossed the line on hiring career personnel for political screening for career hires, including for Assistant USAttys? Were you aware that she was doing this? Gonzales says he doesn’t recall being aware of that. Were other officials at the WH aware that she was doing that? Not that Gonzales is aware of knowing about. [CHS notes: Good lord, that’s a hedgy little answer, isn’t it?] “I can’t recall being aware of instances where she may have asked improper questions.” Do you ever consider political affiliation, organizational involvement, and other partisan qualifications for career hires that are not to be politicized? No. And we’ve changed our policy internally, but he doesn’t know if they’ve communicated to the WH that this is not appropriate hiring criteria for career hires at DOJ.

On May 23rd, Goodling testified under oath that she had an uncomfortable conversation with her before she left the Department. You said you did not talk to her about the matters before the committee. Gonzales says that he did have that conversation with her — trying to “console an emotionally distraught woman.” She came into his office and she was emotionally distraught…Leahy says that we sent you written questions, and in no way did you ever indicate that you ever had this conversation. Your testimony is now that you did have this conversation that you failed to tell us about previously? Gonzales says that as far as he knew nothing improper or illegal had happened here. He wants to put it “in context.” [CHS notes: This is the second time the “in context” malarky has come up. Seems to me he uses this dodge and phony show tactic to filibuster having to answer the question — and it’s a bit of a tell as to where he’s hiding something from the committee.]

There have been 260 applications, you have approved only 14 claims, and denied 40-plus others. Denied benefits to a US Forest Service firefighter in AZ who was working to contain a fire, and your department couldn’t determine whether he was engaged in “strenuous activity” when he had his heart attack. I don’t know what you consider strenuous activity, but trying to stop a fire is a bit strenuous…this is picayune, and it is wrong to do this to the families of some very brave people. What are you going to do to clear that up? Gonzales says that it has taken too long, blames the drafting of the regulations and the bureaucracy taking too much time to process claims.

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SEN. WHITEHOUSE QUESTIONS: The path to the truth with you and the WH is so convuluted — I have no choice looking at the facts in front of us that you had no intent other than to try and lead us away from the dispute over the NSA domestic spying program that Comey referenced. [CHS notes: come on, you can say it — Gonzales is lying to cover his own butt and others.] If you are setting up administrative barriers to protect the DOJ from improper influence of politics, isn’t the WH the number one locus of potential influence that prior administration’s have all tried to wall off from too much contact? Gonzales dances around answering. Talking about the letter from Janet Reno to Lloyd Cutler, instigated by questions from Orrin Hatch, restricting DOJ/WH contact to seven people total. You recall the graphic that I showed you for this WH which was substantially higher — you seemed to agree with me that it was important to restrict contacts between the DOJ and the WH on criminal prosecutions. You agree with me that contact needed to be limited. I then showed you the letter from then AG Ashcroft which kicked open the door to much higher contact between the WH and the DOJ. You agreed this was a problem. I’d like to bring to your attention a May 2006 document which is a subsequent one to the Ashcroft memorandum which is signed by you — why don’t you take a look at it?

Here’s what concerns me: in the Ashcroft memo, there was that paragraph which changes the whole memo which allows the AG to communicate directly to the President, the Veep, Counsel to the President, officials and staff of the various officials staffs as well. And I see from your May 2006 memo things which concern me even more: for convenience, executive functions of the Vice President are referred to by OVP — communications between the EOP (Office of the President) apply similarly with the OVP. What on earth does the office of the OVP have to do with the DOJ? Gonzales says that’s a good question, and he doesn’t know the answer to it. Whitehouse says he’d like an answer as to how that got into the memo. “President, VIce President, their Chiefs of Staff, Counsel to the President or Vice President” — someone took the trouble to write in Vice President and give them access to criminal investigations and matters. [CHS notes: Including, one might add, the Fitzgerald investigation, which was ongoing at that time.]

You come here today with severely diminished credibility, asserting to us that you want to restore the DOJ — and yet, here, where there is something you could do about it. Since we had our last discussion, you have done nothing. We have a memo here that actually makes it worse. You’ve made no changes to make this better. How on earth do you expectme to take you seriously that you want to clean up this mess that you have made of the DOJ? Gonzales says they are looking into the Ashcroft memo. With respect to his own Gonzales memo, he’ll have to look at it. Whitehouse says that he and Leahy have legislation which would restrict the DOJ back to contact between the original seven — and he hopes they will consider supporting it. It is very difficult to take your claims of making efforts seriously — there are a lot of people who love the DOJ, and who are very worried about what you have done to the department. Whitehouse goes through the substantial number of high level DOJ officials who have resigned from the DOJ. And then discusses the LTE in the Denver Post from a long-time DOJ employee talking abotu the disrespect for the law and ethics of political employees at the DOJ and the politicization wholesale of the department under their running of it. Gonzales says he’s working hard at his hard job.

SEN. CARDIN QUESTIONS: Selective release of information. You put things out there that are restricted — was there a decision by the WH to release the information about the Gang of Eight briefing? Gonzales says that this didn’t come from the WH. Cardin says that they cannot independently review this fully without all of the information, and you are telling us that we get to know only the things that the WH thinks make you look good.

RECESS BRIEFLY

SEN. LEAHY: I would look at your trancript very, very carefully, Mr. Attorney General.

SEN. SCHUMER QUESTIONS: When you went to Ashcroft’s ICU room, did you know that power had been tranferred to Jim Comey? Gonzales says that this was probably something that he knew. Schumer says — wait a minute, dod you know or not? Gonzales says that there was no governing legal principle that precluded Ashcroft from taking back that authority if he felt that he could do so. {CHS notes: And if he did so while sedated and drugged, and didn’t actually know what he was doing or saying, how much authority, exactly, would said taking back of authority have? Jeebus…] Did you know that his wife had barred all visitors because of how ill he was? Gonzales says he thinks he may have known something about that. Gonzales doesn’t recall personally having the paperwork on the transfer of authority to Comey from Ashcroft — but he doesn’t have any recollection of that information. Schumer asks for copies of those documents. Gonzales says he’ll try to do that — Schumer says he’d like it by Friday. Gonzales says that Ashcroft did most of the talking in the hospital room. Who sent you to the hospital room? Gonzales says they’d had an important meeting ath the WH…”I’ll just say that the Chief of Staff and Counsel went on behalf of the President of the United States. That’s the answer I can give you.” Schumer — that doesn’t answer my question — can you tell me why you cannot answer that question? You are before this committee, you are supposed to answer questions, you have not claimed any privilege — why can you not answer that question? Gonzales says that it relates to activities that occurred when I was in the WH. Did the Veep send you? We were there on behalf of the President.

Did you talk to the Vice President about this visit? We were there on behalf of the President. So you can’t answer the question? I will take this back and see if I can answer it.

Did the Gang of Eight know that top level officials at the DOJ and the FBI were prepared to resign over the NSA domestic spying program? Gonzales wasn’t personally aware that this is true, but he’s isn’t aware that he got into any discussions about resignations with the Gang of Eight, only that Comey did not approve of the program. Gonzales said that he was clear with them that Comey did not agree that the President had the legal authority to do this program. But you testified to the SJC that there was no dissent. So you are saying that the Gang of Eight knew about this dissent, but that we couldn’t know about that? If we talked to the members of the Gang of Eight, would they tell us that they were informed about this dissent? Because you previously said you were looking for legislation, and now you are saying that you told them about dissent within the DOJ — but when you testified before us, you said there was none. It seems to me that you are dissembling to this committee. The disagreement at the hospital was about other intelligence activities. Was it about the TSP — that is vital to the understanding of this committee? It was about other intelligence activities.

Did the Gang of Eight have access to the DOJ’s dissenting opinions? That the office of legal counsel disagreed with the program? Gonzales says that he thinks it would be perfectly logical to assume that the Gang of Eight would know that if Comey disagreed, then the Office of Legal Counsel disagreed. [CHS notes: So that would be a “I didn’t tell them, no.”]

Should this committee want to call Patrick Fitzgerald before it for testimony regarding his special counsel investigation, would you have an objection? Gonzales says he’s recused from discussing this. McNulty would be responsible for making that decision.

SEN. SPECTER: Morale is at an all time low in your department. I’d ask you to take a look at that, and at how the department is functioning generally. The oxycontin case plea agreement is troubling — because it is too lax. This committee cannot possibly run your department. Technically, you are recused, I know that — but you are still the Attorney General. The WH needs to get us the information we need in order to conclude this investigation — a transcript is a fundamental need. Goes through a history of the legal giants who have been attorneys general — you need to consider how your failures are dragging your department down. [CHS notes: I’m paraphrasing there, but that’s the gist…]

SEN. LEAHY: I have a lot more questions, but we aren’t going to get answers to them. I’ll think about submitting them in writing where I also won’t get answers. The tragedy on this is the decent civil servants who deter crime and prosecute crime — who work long hours at difficult jobs protecting the public. I’ve never once asked a DOJ employee or law enforcement personnel what their political affiliation was because it doesn’t matter — what metters is facts and evidence. You come here seeking our trust. Frankly, Mr. AG, you have lost mine, and I have never said this to another cabinet official in my entire career in government. Once the system of justice loses credibility and the public loses faith in it — when that credibility is lost, those career professionals have an uphill battle to do their jobs. This committee is going to do what it must to restore that credibility. I take no pleasure in saying this, but I am seriously, gravely disappointed. Do you wish to say something in response? Then we stand adjourned.

HEARING ADJOURNED

Tagged as: gonzales, leahy, ashcroft, attorneygate, specter

Christy Hardin Smith is a former attorney, who earned her undergraduate degree at Smith College, in American Studies and Government, concentrating in American Foreign Policy.