FBI chief undercuts Gonzales’ testimony on Bush wiretapping

Times Staff Writer

The director of the FBI told a congressional committee Thursday that he had had reservations about the Bush administration’s terrorism surveillance program -- a statement that appears to contradict sworn testimony last year by Atty. Gen. Alberto R. Gonzales that the warrantless eavesdropping had generated no serious disagreement among high-level officials.

Testifying before the House Judiciary Committee, Robert S. Mueller III also undercut statements Gonzales offered this week to lawmakers about a controversial hospital visit to the bedside of then-Atty. Gen. John Ashcroft in March 2004.

Mueller’s disclosures come amid what until now has been a highly partisan debate on Capitol Hill over Gonzales’ tenure at the Justice Department and his reputation for honesty.

The testimony by the career Justice Department official -- who has headed the FBI for six years -- came just hours after Senate Democrats called on the department to appoint a special prosecutor to investigate whether Gonzales had perjured himself before congressional committees. Mueller’s testimony, some observers said, would make it difficult for the department not to take some action on that request.


Democrats also raised the stakes in their investigation of the politically charged dismissals last year of eight U.S. attorneys. Senate Judiciary Committee Chairman Patrick J. Leahy (D-Vt.) issued subpoenas to Bush political strategist Karl Rove and White House deputy political affairs director J. Scott Jennings. The two are expected to resist the order to testify Aug. 2, which probably would touch off an effort to hold them in contempt of Congress.

The White House continued to defend Gonzales on Thursday, and denied Mueller had contradicted the attorney general’s testimony. Presidential spokesman Tony Snow said lawmakers were manipulating the testimony of Gonzales and Mueller, who he said were limited in what they could say publicly about classified intelligence-gathering programs.

“This is the latest in a long line of artful distortions by people who have spent the last six months hurling allegations at the attorney general. The FBI director didn’t contradict the testimony,” Snow said. “There are attempts in Congress to create a public discussion of classified programs. That’s inappropriate. The president ... maintains full confidence in the attorney general.”

In December 2005 -- after a description of the wiretapping program appeared in the media -- Bush acknowledged that shortly after the Sept. 11 attacks, the National Security Agency began conducting electronic surveillance of communications between people in the United States and terrorism suspects overseas without seeking the approval of a special intelligence court. The program was controversial because such surveillance historically has been monitored by that court.

Two months later, after reports that some administration officials were concerned about the legality of the program, Gonzales began to publicly draw a distinction between what Bush called the Terrorist Surveillance Program, or TSP, and other “operational” activities that remained classified. He asserted that there was no internal administration dispute “about the program that the president has confirmed.”

But his statements came into question. Former Deputy Atty. Gen. James B. Comey, appearing before the Senate Judiciary Committee in May, disclosed in dramatic fashion how he and other Justice Department officials -- including Mueller -- had a disagreement with the White House over intelligence-gathering in March 2004. That dispute culminated in an unusual meeting of senior administration officials by Ashcroft’s bed in a Washington intensive care unit, where the attorney general was recovering from gallbladder surgery the day before.

Comey, who had been designated acting attorney general while Ashcroft was ill, was concerned about the legality of the intelligence program and had refused to sign off on its continuation. That decision, he said, led then-White House Counsel Gonzales, accompanied by then-White House Chief of Staff Andrew H. Card Jr., to attempt to persuade a weakened Ashcroft to countermand Comey’s action; Ashcroft refused.

Comey declined to say during his testimony whether the program in dispute was the warrantless surveillance that Bush had announced. But lawmakers believed that was the case, and they contended Gonzales was essentially splitting hairs in testifying that there was no disagreement over the program.


In his appearance before the Senate panel, Comey testified that he, Ashcroft and Mueller believed the problems to be so severe that they were prepared to resign unless changes were made. Because the program was classified and run by another agency, Mueller had never discussed the issue publicly -- until his appearance before the House committee Thursday.

“Can you confirm that you had some serious reservations about the warrantless wiretapping program?” Rep. Melvin Watt (D-N.C.) asked the director.

“Yes,” Mueller said.

He acknowledged that he was not in Ashcroft’s hospital room at the time of the confrontation. But he said that, at Comey’s request, he had ordered the FBI agents serving as Ashcroft’s security detail to make sure that Gonzales did not try to remove Comey from the room.


The FBI director told the committee Thursday that he had arrived shortly after the visitors left and that he spoke with the ailing attorney general.

“Did you have an understanding that that the conversation was on TSP?” Rep. Sheila Jackson-Lee (D-Texas) asked.

“I had an understanding the discussion was on an NSA program, yes,” Mueller answered.

Jackson persisted: “We use ‘TSP,’ we use ‘warrantless wiretapping’ -- so would I be comfortable in saying that those were the items that were part of the discussion?”


“The discussion was on a national NSA program that has been much discussed, yes,” Mueller responded.

On Tuesday, in an appearance before the Senate Judiciary Committee, Gonzales repeatedly denied that the dispute with Comey and Mueller was about the terrorist surveillance program. He insisted the disagreement was about “other intelligence activities” that could not be disclosed for security reasons.

Justice Department spokesman Brian Roehrkasse said Thursday that Gonzales was standing by those remarks.

“Confusion is inevitable when complicated classified activities are discussed in a public forum, where the greatest care must be used not to compromise sensitive intelligence operations,” Roehrkasse said.


The request for the special prosecutor was made in a letter sent Thursday from four Democratic members of the Senate Judiciary Committee to Solicitor General Paul D. Clement, who is serving as acting attorney general in matters from which Gonzales has recused himself.

Apart from Gonzales’ statements over the anti-terrorism programs, the letter cited sworn testimony in April in which he declared that he was not speaking with other witnesses in the investigation into the U.S. attorneys’ firings because he did not want to compromise the inquiry. He acknowledged to lawmakers Tuesday that he had spoken with a top aide, Monica M. Goodling, about the firings but denied trying to affect her testimony.

The “instances we outline here, there’s no wiggle room,” one of the authors of the letter, Sen. Charles E. Schumer (D-N.Y.), said at a news conference. “Those are not misleading. Those are deceiving. Those are lying.”

The subpoenas to Rove and Jennings came one day after the House Judiciary Committee voted to endorse bringing criminal contempt charges against White House Chief of Staff Joshua Bolten and former White House Counsel Harriet E. Miers for failing to cooperate in the investigation of the prosecutors’ dismissals.


The full House is expected to take up the issue after Labor Day, when Congress returns from its August recess. Legal experts said they could not recall a time when both chambers of Congress had simultaneously held administration figures in contempt.