Posted by Orin Kerr:
The Washington Post's Weak Case That Gonzales Lied About Patriot Act Violations:
http://volokh.com/archives/archive_2007_07_08-2007_07_14.shtml#1184101082
The front page of yesterday's [1]Washington Post suggests that Alberto
Gonzales may have lied to Congress about the Patriot Act in 2005.
Although the story received a lot of play on the Hill and in the blogs
yesterday, on closer inspection I think this story is seriously weak
and perhaps outright misleading. Here's the intro of the story:
As he sought to renew the USA Patriot Act two years ago, Attorney
General Alberto R. Gonzales assured lawmakers that the FBI had not
abused its potent new terrorism-fighting powers. "There has not
been one verified case of civil liberties abuse," Gonzales told
senators on April 27, 2005.
Six days earlier, the FBI sent Gonzales a copy of a report that
said its agents had obtained personal information that they were
not entitled to have. It was one of at least half a dozen reports
of legal or procedural violations that Gonzales received in the
three months before he made his statement to the Senate
intelligence committee, according to internal FBI documents
released under the Freedom of Information Act.
I have [2]already called for Alberto Gonzales to resign, and I still
think he should resign, so I'm not one to go out of my way to defend
Gonzales. But these criticisms strike me as really quite weak, and
that they rest on some questionable connecting of dots by Post
reporter John Solomon.
First, some context. Gonzales's statement was made in the context of
the sunsetting provisions of the Patriot Act. Congress had imposed
sunset provisions on parts of the Patriot Act in 2001, and Gonzales
was arguing that sunsetted provisions weren't necessary. [3]Here's
what he said:
Finally, I�d like to close by addressing a common question that
must be answered by this Congress: the issue of whether we should
continue to impose sunset provisions on critical sections of the
PATRIOT Act.
The PATRIOT Act was a swift and decisive response to the attacks of
September 11. In the weeks and months following the attacks in
Washington, Pennsylvania, and New York, Democrats and Republicans
came together to address the vulnerabilities in our nation�s
defenses. Both Congress and the Administration worked with
experienced law enforcement, intelligence, and national security
personnel to design legislation to better protect the American
people. Although there was extensive consideration in 2001, and
although it is unusual to impose sunsets on statutory investigative
tools, Congress included sunsets on certain provisions of the
PATRIOT Act because members wanted to ensure that we were not
risking the very liberties we were setting out to defend.
Today, we can all be proud. The track record established over the
past three years has demonstrated the effectiveness of the
safeguards of civil liberties put in place when the Act was passed.
There has not been one verified case of civil liberties abuse.
Did Gonzales have reason to believe that his claim was false? I'm
not so sure. The Washington Post story discusses a handful of reports
that were sent to Gonzales's office about findings of rules and laws
that were broken in investigations relating to terrorism. But as I
read the examples, I can't find any that clearly is a "civil liberties
abuse" involving the Patriot Act. And given that, I'm not sure we have
any reason to conclude that Gonzales was intentionally misleading
Congress.
According to the reports, which were obtained pursuant to a FOIA
request by FOIA whiz [4]Marcia Hoffmann of [5]EFF, investigators at
some point conducted a physical search without consent, and once
improperly continued a FISA warrant passed its deadline. In another
case, an ISP goofed and gave the government more than it asked for
under a proper national security letter (the government sealed up the
package after they realized what had happened). Finally, in one case
someone made a typo and asked for the wrong phone number in a national
security letter, apparently obtaining the wrong set of phone logs.
Among these claims, the first two don't seem to connect at all to
the Patriot Act. The Patriot Act amended a set of preexisting laws,
and the first two seem to involve laws not even amended by the Act.
The latter two examples at least are in the ballpark: while the
national security letter authority was created in 1986, it was at
least amended by the Patriot Act, so it's at least possible to connect
the authority to the Patriot Act. But it doesn't sound like the
violations mentioned are directly Patriot-Act-related: typos happen
even outside the Patriot Act, and inaccurate compliance with court
orders by ISPs is a longstanding issue that well predates the Patriot
Act.
And even if you conclude that these violations involve the Patriot
Act, are they really "civil liberties abuses"? The word "abuse"
suggests something flagrant, either something intentional or at least
really very reckless. In contrast, the reports that Gonzales's office
received seem to involve the kind of occasional accidents that
regrettably can occur; it's not obvious to me that they are abuses. I
don't want to minimize the nature of the violations. Violations are
always bad, and deserve a response. But the issue here is Gonzales's
truthfulness, and I don't see how these reports are evidence that
Gonzales was lying.
In sum, I think Solomon's report is based on a few logical leaps,
both about the Patriot Act and the meaning of Gonzales's statement.
And let me repeat myself: I'm no fan of Gonzales. I think he should
resign as AG. But the question here is whether Gonzales lied about the
Patriot Act, and it seems like a pretty serious stretch to suggest
that he did.
But wait, there's more. I was also very puzzled by [6]today's
follow-up story, also in the Washington Post and also written by John
Solomon. It seems that DOJ set up a phone call for the press with two
DOJ officials, OIPR head James Baker and Ass't AG Ken Wainstein, to
make the case that the Post story was misleading. Each defended
Gonzales' remark on grounds a lot like the one I have made out above.
But instead of featuring that as the key point, Solomon instead came
up with what seems like a very strained interpretation of different
remarks that Baker & Wainstein also each said.
Baker & Wainstein apparently each made general remarks that they
generally had kept Gonzales up to date on allegations of violations.
Here's Baker: "I have discussed and informed attorneys general,
including this one, about mistakes the FBI has made or problems or
violations or compliance incidents, however you want to refer to
them." Here's Wainstein: ""I've discussed a number of times oversight
concerns and, underlying those oversight concerns, the potential for
violations. And I'm sure we've discussed violations that have occurred
in the past."
How did John Solomon report that? Here's the title and first two
paragraphs of Solomon's follow-up story today:
Gonzales Knew About Violations, Officials Say
By John Solomon
Washington Post Staff Writer
Wednesday, July 11, 2007; Page A03
Two senior Justice Department officials said yesterday that they
kept Attorney General Alberto R. Gonzales apprised of FBI
violations of civil liberties and privacy safeguards in recent
years.
The two officials spoke in a telephone call arranged by press
officials at the Justice Department after The Washington Post
disclosed yesterday that the FBI sent reports to Gonzales of legal
and procedural violations shortly before he told senators in April
2005: "There has not been one verified case of civil liberties
abuse" after 2001.
Now, I don't know if Solomon had any control over the title, but
both the title and the lead paragraph seem pretty misleading to me. As
far as I can tell, nothing in the article suggests that Gonzales
actually knew of the violations relevant to the story, as opposed to
other violations at other times. However, the title and paragraph
certainly seem designed to make it seem like Baker & Wainstein had
admitted to informing Gonzales directly of those reports.
Maybe I'm missing something, and if so I would be happy to post a
correction. But based on what I can tell so far, I just don't think
that Solomon's story holds up.
References
1.
http://www.washingtonpost.com/wp-dyn/content/article/2007/07/09/AR2007070902065.html
2. http://volokh.com/posts/1177092682.shtml
3. http://www.usdoj.gov/ag/speeches/2005/042705senateintelligence.htm
4. http://www.eff.org/about/staff/imgz/marcia_lg.jpg
5. http://www.eff.org/
6.
http://www.washingtonpost.com/wp-dyn/content/article/2007/07/10/AR2007071001992.html
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