After Gonzales

Yesterday’s resignation of Attorney General Alberto Gonzales — timed to minimize media attention during the long Congressional recess — is yet another reminder of who dominated Gonzales’ term as AG:  first, the president; second, the media. It is surprising only in that it was so long in coming. 

Gonzales’ departure clearly wasn’t the president’s idea. In his brief statement this morning, President Bush said he accepted the resignation of his longtime friend “reluctantly,” adding, “It’s sad that we live in a time when a talented and honorable person like Alberto Gonzales is impeding from doing important work because his good name was dragged through the mud for political reasons.”

Gonzales has, as the President pointed out, done some commendable work, most notably helping manage the confirmations of Supreme Court Chief Justice John Roberts and Justice Sam Alito. But Gonzales — who had become the focal point of Congressional turmoil resulting from the firing of nine US Attorneys after the last election — has been a disappointment to conservatives on two exceedingly important matters.

The two were the diminution of the President’s constitutional powers to gather intelligence and the enforcement of the laws protecting government secrets. 

Liberals have been howling about the National Security Agency’s “terrorist surveillance program” since it was leaked to and published by the New York Times.  Under the Foreign Intelligence Surveillance Act, they argued, the NSA couldn’t conduct widespread warrantless surveillance of e-mails and telephone conversations between persons inside the United States and others overseas. 

But the FISA law doesn’t cover all persons in the United States, just those who are citizens and those permanent residents who are here legally.  It also doesn’t infringe on the president’s inherent authority (as described in the In re Sealed Case opinion by the FISA Court) to gather intelligence on foreign enemies. 

During the FISA amendment debates — well after the New York Times publication of the leaks — he agreed to cede some of the President’s constitutional powers in order to get Congressional approval of new legislation updating FISA.  (This happened months before the end-of-session rush to amend FISA in July.)

So why didn’t the AG defend the Constitution as vigorously as he should have? 

Whomever succeeds Gonzales should speak at length with former Solicitor General Ted Olson and Pepperdine University Law Dean Ken Starr about the independence the AG must have from the White House political operations.

Conservatives — especially those in the military and intelligence communities — had enormous problems with Gonzales because he failed to investigate and prosecute the leakers who told the Times about the NSA program.  And this was only one of the instances in which Gonzales failed to investigate and prosecute the most damaging leaks.
In December 2004, three Democratic US Senators — Jay Rockefeller of West Virginia, Dick Durbin of Illinois and Ron Wyden of Oregon — were the subject of a criminal referral to the Justice Department for their apparent publication of a top secret — sensitive compartmented information (TS-SCI) satellite program being bought by the CIA, which I wrote about here.

The intelligence community source who told me about this was nearly purple with outrage because then-Senate Majority Leader Bill Frist and the Gonzales Justice Department seemed content to let the matter pass.  But it was, quite apparently, a federal felony willfully committed by the three Dems.

Since then, I have repeatedly checked on this story.  The Justice Department has never seriously investigated it, though it would be a serious crime for these senators — or whoever leaked the information — to have done so. (The Constitution’s “speech and debate” immunity would not apply, since none of the three leaked the information in the legislative process.  For example, one allegedly mugged for the press about the cost of the satellites.)  Chalk another one up to “prosecutorial discretion”?  Or fear of what the media would do?

In addition to the NSA program leak, the Washington Post published the CIA’s secret terrorist programs when it was leaked the information.  And, when the New York Times published leaks about the Belgian “SWIFT” consortium helping us — in secret — to track terrorist financing, once again the Justice Department under Gonzales failed to act.

These leaks damaged national security severely.  Some of the secret CIA prisons had to be closed, and the nations hosting them discontinued cooperation.  The leak of the “SWIFT” program interrupted — and perhaps stopped — the program altogether.  And the leak of the NSA program caused some terrorists to change their means of communication.

Conservatives were left to wonder whether Attorney General Gonzales was waiting for media approval to investigate.  It is beyond parody that the only leak-related prosecution under Gonzales’ Justice Department was that of Lewis I. “Scooter” Libby, the Vice President’s former staffer, who was never prosecuted for leaking anything.

But there is one important difference between the Libby case and the others:  it was a prosecution the media demanded.  None of the others had been blessed by the political media. 

The next AG, whoever it is, shouldn’t wait for the blessing of CBS or the New York Times in order to investigate and prosecute leaks.  If these leaks aren’t prosecuted, how can we expect any secrets to be kept?