The Washington Post's Weak Case That Gonzales Lied About Patriot Act Violations:
The front page of yesterday's Washington Post had a story by John Solomon suggesting 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 if not 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 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. 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 Marcia Hofmann of 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 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 stated that they had discussed the topic of civil liberties violations with Gonzales in the past. No details were given; the points were made very generally. 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.