The Obfuscation Report

By Murray Waas, National Journal

The Bush administration has withheld a series of e-mails from Congress showing that senior White House and Justice Department officials worked together to conceal the role of Karl Rove in installing Timothy Griffin, a protégé of Rove's, as U.S. attorney for the Eastern District of Arkansas.

The withheld records show that D. Kyle Sampson, who was then-chief of staff to Attorney General Alberto Gonzales, consulted with White House officials in drafting two letters to Congress that appear to have misrepresented the circumstances of Griffin's appointment as U.S. attorney and of Rove's role in supporting Griffin.

In one of the letters that Sampson drafted, dated February 23, 2007, the Justice Department told four Senate Democrats it was not aware of any role played by senior White House adviser Rove in attempting to name Griffin to the U.S. attorney post. A month later, the Justice Department apologized in writing to the Senate Democrats for the earlier letter, saying it had been inaccurate in denying that Rove had played a role.

Brad Berenson, an attorney for Sampson, said in an interview that his client did not intend to mislead Congress. Sampson, he said, signed off on the February 23 letter based on representations made by the White House that it was accurate.

The withheld e-mails show that Sampson's draft was forwarded for review to Chris Oprison, an associate White House counsel, who approved the language saying that Justice was not aware of Rove having played any role in supporting Griffin. But an earlier e-mail from Sampson to Oprison that has already been made public indicates that the two men discussed Rove and then-White House Counsel Harriet Miers as being at the forefront of Griffin's nomination.

Several of the e-mails that the Bush administration is withholding from Congress, as well as papers from the White House counsel's office describing other withheld documents, were made available to National Journal by a senior executive branch official, who said that the administration has inappropriately kept many of them from Congress.

The senior official said that Gonzales, in preparing for testimony before Congress, has personally reviewed the withheld records and has a responsibility to make public any information he has about efforts by his former chief of staff, other department aides, and White House officials to conceal Rove's role.

"If [Gonzales] didn't know everything that was going on when it went down, that is one thing," this official said. "But he knows and understands chapter and verse. If there was an effort within Justice and the White House to mislead Congress, it is his duty to disclose that to Congress. As the country's chief law enforcement official, he has a higher duty to disclose than to protect himself or the administration."

White House spokesman Tony Fratto denied that the White House was withholding records in the Justice Department's possession, and he said that Gonzales could make many of them public at any time. "The White House is neither guiding nor directing the Justice Department's decisions on privileged documents," Fratto said. "They make those decisions on their own."

Two senior administration officials told National Journal they were frustrated with decisions by Gonzales not to release some of the documents held by the Justice Department. One of the officials charged that "Gonzales is doing this to save his own neck," at the expense of the administration. The same official said that senior aides to Gonzales have been refusing to turn over many relevant documents to Congress, and that the attorney general's top aides have been selectively leaking portions of them to the media to portray themselves in a favorable light.

Last week, Senate Judiciary Committee Chairman Patrick Leahy, D-Vt., subpoenaed the Justice Department, demanding all e-mails between department officials and Rove and others at the White House regarding the firings of eight U.S. attorneys.

In a May 2 letter to Gonzales, Leahy said that the committee was subpoenaing the records because "the department's production of documents has been selective and incomplete.... In addition, to date, the department has yet to provide the committee with... any assurance that a preservation order was issued to prevent the loss or destruction of documents."

Separately, six senators on the Senate Judiciary Committee -- three Democrats and three Republicans -- complained to Gonzales last week that they had not been told anything about a confidential order he signed in March 2006, which delegated the authority to hire and fire many of the department's most senior political appointees to Sampson and to Monica Goodling, who at the time was the Justice Department's liaison to the White House.

Sen. Arlen Specter of Pennsylvania, the ranking Republican on the committee, said he was infuriated that he knew nothing of the existence of the order until it was disclosed by National Journal.

"Pardon me if I raise my voice," Specter said.

Justice Department spokesman Dean Boyd denied that the department was withholding any records from Congress to conceal wrongdoing by administration officials. "The Justice Department has already turned over 6,000 pages of documents and e-mails to House and Senate committees and voluntarily provided for interviews of numerous senior DOJ officials," Boyd said.

In earlier correspondence with Congress, the department said it had not turned over many documents that Congress had requested because of "confidentiality and privacy" concerns; it also said it would not turn over documents related to answering queries from Congress and the press about the U.S. attorney firings.

Fratto, the White House spokesperson, said, "No White House documents are available except under the conditions offered by White House counsel Fred Fielding to the Judiciary committees." Fielding has offered to allow Congress to interview Rove and other White House officials on the condition that they wouldn't be required to provide formal testimony under oath and that no transcript would be made of what they said. Fratto said that if Congress agreed to those conditions, the White House "would make available the relevant documents at that time."

In the interim, Fratto said, "the White House retains its rights and privileges over those documents."

A senior Justice Department official said in an interview that it was the discovery of a December 19, 2006, e-mail from Sampson to Oprison -- in which Sampson wrote that "getting [Griffin] appointed was important" to Rove and to then-White House Counsel Harriet Miers -- that prompted the Justice Department to repudiate the February 23 letter to four Senate Democrats.

The February 23 letter, signed by acting Assistant Attorney General Richard Hertling, stated, "The department is not aware of Karl Rove playing any role in the decision to appoint Mr. Griffin," and added that the department "is not aware of anyone lobbying, either inside or outside of the administration, for Mr. Griffin's appointment."

Sampson testified before Congress that he drafted the February 23 letter even though he had conferred with the White House about appointing Griffin. Sampson testified that he included the language about Rove not being involved because he didn't know for a fact that Rove was pushing for his former aide's appointment.

"I knew that [Rove deputies] Sara Taylor and Scott Jennings had expressed interest in promoting Mr. Griffin for appointment to be U.S. attorney, and I assumed, because they reported to Karl Rove, that he was interested in that," Sampson said in testimony to the Senate Judiciary Committee on March 29. "But later in February, when I participated in the drafting of that [February 23] letter, I did not remember then ever having talked to Mr. Rove about it. I don't remember now ever having talked to Mr. Rove about it. I'm not sure whether Mr. Rove was supportive of Mr. Griffin's appointment."

Berenson, Sampson's attorney, says that Sampson consulted with the White House before including the language in the February 23 letter to Congress that the Justice Department was "not aware of Karl Rove playing a role in the decision to appoint Mr. Griffin." Berenson said, "Kyle didn't want to traffic in assumptions, so he circulated the letter to the White House for confirmation whether what he believed to be true was accurate or not. He drafted the letter according to his understanding of the facts, and he circulated it beforehand to other people for clearance to assure that it accorded with their understanding of the facts."

The withheld e-mails obtained by National Journal show that on February 23, as he was working on a final draft of the letter, Sampson consulted with Oprison. "Chris, please review this version," Sampson asked in one e-mail regarding the draft.

Fratto, the White House spokesman, said in an interview that Oprison "had no reason to believe" that the reference to Rove was inaccurate and cleared the letter. Asked about the December 19 e-mail in which Sampson told Oprison that Griffin's appointment was important to Rove and Miers, Fratto said: "Chris did not recall Karl's interest when he reviewed the letter."

A congressional investigator questioned whether the White House counsel's office would sign off on the letter without asking Rove himself whether it was accurate. The investigator also noted that publicly released Justice Department records show that Taylor and Jennings, both top aides to Rove, worked closely with Griffin to have him installed as U.S. attorney. In response Fratto said: "We have no record of that letter ever leaving the White House counsel's office."

Oprison, in turn, consulted with White House Counsel Fred Fielding and Deputy White House Counsel Bill Kelley in approving the draft of the letter, according to White House records.

Sampson also played a central role in the drafting of a January 31, 2007, letter from acting Assistant Attorney General Richard Hertling to Sen. Mark Pryor, D-Ark., implying that the White House had never contemplated using an obscure provision in the USA PATRIOT Act that would allow it to install Griffin as a U.S. attorney without having Griffin undergo Senate confirmation. Gonzales and Sampson have since testified to the Senate Judiciary Committee that they did indeed consider using the PATRIOT Act to install Griffin as a federal prosecutor.

The withheld records show that Oprison assisted Sampson in drafting the January 31 letter. Previously disclosed Justice Department records show that Sampson and Oprison had worked closely together in devising the original plan to install Griffin as U.S. attorney under the PATRIOT Act provisions.

Bud Cummins, who was fired as the U.S. attorney for the Eastern District of Arkansas to make room for Griffin, has told the House Judiciary Committee that he personally contacted senior Justice Department officials on January 19, 2007, the day after Gonzales testified to Congress on the firing of Cummins and seven other U.S. attorneys.

Cummins said he warned department officials of very serious "misleading statements" about the U.S. attorney firings. Foremost among his concerns was that Gonzales had said that the Justice Department would never utilize the PATRIOT Act to install new U.S. attorneys by circumventing the Senate confirmation process. Cummins wrote the House Judiciary Committee that he believed that Gonzales's testimony was incorrect because both Griffin and a senior Justice Department official had told him that consideration had indeed been given to using the PATRIOT Act.

A senior Justice Department official told him, Cummins said, that using the PATRIOT Act to install Griffin "might have been the White House plan," but the White House had "never read DOJ into that plan." Cummins said he replied, "If that was the case, then we had better gag Tim Griffin, because Griffin was telling too many people … that he could stay as [U.S. attorney] whether he was ever appointed or not."

Gonzales had testified at the January 18 hearing: "Let me publicly sort of pre-empt perhaps a question you're going to ask me, and that is, I am fully committed, as the administration's fully committed, to ensure that, with respect to every United States attorney position in this country, we will have a presidentially appointed, Senate confirmed United States attorney.... I think a United States attorney,... as the law enforcement leader, my representative in the community;... has greater imprimatur of authority, if in fact that person's been confirmed by the Senate."

A senior Justice Department official said that the statement was truthful because by then Gonzales had abandoned the idea of using the PATRIOT Act to permanently install Griffin, and he was speaking about future appointments.

But despite Cummins's warning, Gonzales's testimony, and department officials' own knowledge that the PATRIOT Act had been discussed as a way to install Griffin, senior Justice Department officials continued to make claims to Congress that the Bush administration had never contemplated using the PATRIOT Act to bypass the confirmation process.

On January 31, 2007, Hertling wrote Pryor to say that "not once" had the Bush "administration sought to avoid the Senate confirmation process" by exploiting the PATRIOT Act. "As the Attorney General has stated to you," Hertling wrote, "the Administration is committed to having a Senate confirmed United States Attorney for all 94 districts. At no time has the Administration sought to avoid the Senate confirmation process by appointing an interim United States Attorney and then refusing to move forward... on the selection, nomination and confirmation of a new United States Attorney. Not once."

In drafting the letter, Sampson consulted with Sara Taylor, the White House political director and an aide to Rove. Taylor had been aware of considerations that the PATRIOT Act might be invoked to permanently install Griffin, according to withheld administration papers. In an e-mail -- among those that the Justice Department has withheld from Congress -- Taylor wrote: "I'm concerned we imply that we'll pull down Griffin's nomination should Pryor object."

The senior executive branch official who read the e-mail said it was significant because Taylor signed off on the letter despite the fact that Taylor, Oprison, and other White House officials knew that the administration had indeed considered using the PATRIOT Act to make Griffin a U.S. attorney.

Fratto said he believed that the e-mail showed that Taylor wanted to use the Senate confirmation process to have Griffin made U.S. attorney without using the PATRIOT Act. "We battle with the Senate with nominations every day," Fratto said. "It is very important to us.... That's what Sara was saying: 'We shouldn't imply we're willing to walk away from the nomination.'"

Berenson said that the letter was technically accurate because Sampson and Oprison never ultimately implemented the plan to install Griffin as U.S. attorney through the PATRIOT Act provision. "The principals never adopted it, and it was never done," Berenson said. "The statement in the letter is accurate."

Griffin faced an uphill battle to win Senate confirmation because, in addition to having served as an aide to Rove, he had served as the research director of the Republican National Committee in 2004, when he had been in charge of opposition research efforts against Democratic presidential nominee John Kerry. He had been involved in similar efforts against Al Gore four years earlier as the RNC's deputy research director.

Griffin's supporters have said that he was highly qualified to be a U.S. attorney because he had served in the Judge Advocate General Corps in the U.S. Army Reserve, and briefly was a special assistant U.S. attorney.

Pryor first raised questions about Cummins's departure as U.S. attorney. The senator had heard that, contrary to claims that Cummins had resigned voluntarily, the prosecutor had been pushed out to make room for Griffin, Pryor's chief of staff Bob Russell said in an interview.

Pryor later became suspicious that the Bush administration was attempting to bypass the Senate confirmation process by invoking the PATRIOT Act. The special authority, granted to the president, allowed interim U.S. attorneys to continue in their job indefinitely without Senate confirmation to help prosecute the war on terrorism.

Pryor, who had voted for the authority, was upset that the original purpose was now being abused to circumvent the Senate and avoid a confirmation vote on politically contentious nominees such as Griffin. He was especially upset because he had been one of only six Democratic senators to vote for Gonzales's confirmation-a vote that sparked criticism from liberal interest groups. As he saw it, he had stuck his neck out for Gonzales with his vote.

On December 15, 2006, Pryor spoke to then-White House Counsel Miers and Gonzales about the issue, Russell said. The discussion left Pryor with the impression that if Griffin was named U.S. attorney, his name would be formally sent to the Senate for confirmation.

But White House and Justice Department officials, afraid that Griffin would not be confirmed, asked Cummins to resign more quickly so that they could name Griffin as an interim U.S. attorney, which under the PATRIOT Act would allow him to forego a confirmation vote in the Senate.

On December 19, 2006, four days after Pryor and Gonzales spoke, Sampson e-mailed Oprison with a strategy to have Griffin stay permanently as U.S. attorney: "I think we should gum this to death," Sampson wrote in an e-mail turned over to Congress, "ask the Senators to give Tim a chance. meet with him. give him some time in office to see how he performs, etc. they ultimately say, 'no never' (and the longer they forestall the better). Then we can tell them we'll look for other candidates, and otherwise run out the clock. All of this should be done in 'good faith' of course."

By that time, Griffin would be able to serve out the remainder of the Bush administration because of his appointment as interim U.S. attorney under the emergency provisional authority of the PATRIOT Act.

Sampson added in his e-mail: "The only thing really at work here is a repeal of the AG's appointment authority. There is some risk that we'll lose that authority, but if we don't ever exercise it then what's the point of having it."

Sampson concluded in the e-mail: "I'm not 100 percent sure that Tim was the guy on which to test drive this authority, but know that getting him appointed was important to Harriet, Karl, etc.," referring to Miers and Rove.

The next day, on December 20, Cummins formally resigned as U.S. attorney and Griffin was named as his interim replacement. Cummins said in an interview that officials at Justice sped up the timetable on his departure, going so far as to call him on a cellphone when he was on a hunting trip with his son to say he must leave on December 20.

A spokesman for the Justice Department said: "To the extent Kyle Sampson in his e-mail suggested there was an attempt to circumvent the process, this was dismissed by the Attorney General and does not represent the views or final actions of the Department as our record demonstrates."

Gonzales, during his recent testimony before the Senate Judiciary Committee, was asked whether he would have invoked the PATRIOT Act to permanently install Griffin as U.S. attorney. He replied: "I never liked this idea. I wouldn't consider it and didn't consider it." But later in his testimony, Gonzales said he dropped the idea only after he had spoken to Pryor and determined that it was politically untenable to move forward.

In one of the e-mails that the White House has withheld from Congress, and obtained by National Journal, Sampson wrote to six other senior Justice Department officials and derided Pryor's letter: "The PDF below is an outrageous letter we got from Sen. Pryor; we don't think it has hit the press yet."

Sampson said that the Justice Department had been asked to "respond to the allegation that we troglodytes discrimatorialy [sic] passed over the FASU [First Assistant U.S. Attorney] because she is apparently a mother out on maternity leave."

In fact, a Justice Department spokesperson had told the press, and senior Justice officials had told Pryor in a private meeting, that although it was the common practice when a U.S. attorney resigned to name the first assistant U.S. attorney in the office as the interim, they had not done so in the case of Cummins's departure because his first assistant, Jane Duke, was about to go on maternity leave.

But other Justice Department records show that Sampson and the White House had decided to name Griffin as a U.S. attorney in June 2006 even before Duke knew she was pregnant. And the records show that they attempted to name Griffin as an interim U.S. attorney to either enhance the possibility that he would be confirmed by the Senate or to circumvent Senate confirmation completely.

Cummins said in a letter to Congress that after he heard the claims that Duke had not been named as his interim successor because of her pregnancy, he immediately called a senior Justice Department official to complain that the assertion was untrue:

"I told [the senior official] that most people in our relatively small legal community had instantly mocked that statement because it was obvious Tim Griffin had been here for months for the purpose of taking over on my departure [and] because no person was aware of any conversations or communications that might demonstrate that appointing the First Assistant was EVER a consideration."

-- Click here for more coverage of the Justice Department from Murray Waas.

Labels: Alberto Gonzales, Arlen Specter, Bush Administration, D. Kyle Sampson, Karl Rove, Monica Goodling, Patriot Act, U.S. Attorneys

By Andrew Miga
Associated Press
Thursday, April 12, 2007; A12

A librarian who fended off an FBI demand for computer records on patrons said Wednesday that secret anti-terrorism investigations strip away personal freedoms.

"Terrorists win when the fear of them induces us to destroy the rights that make us free," said George Christian, executive director of Library Connection, a consortium of 27 libraries in the Hartford, Conn., area.

In prepared testimony for a Senate panel, Christian said his experience "should raise a big patriotic American flag of caution" about the strain that the government's pursuit of would-be terrorists puts on civil liberties.

He said the government uses the USA Patriot Act and other laws to learn, without proper judicial oversight or any after-the-fact review, what citizens are researching in libraries.

A recent report by the Justice Department's inspector general found 48 violations of law or rules in the FBI's use of national security letters from 2003 through 2005. Some congressional critics want to tighten legal safeguards on the letters.

" 'Trust us' doesn't cut it when it comes to the government's power to obtain Americans' sensitive business records without a court order and without any suspicion that they are tied to terrorism or espionage," said Sen. Russell Feingold (D-Wis.), the chairman of the Senate Judiciary subcommittee on civil rights.

Under the Patriot Act, the FBI can use the letters to acquire telephone, e-mail, travel and financial records without a judge's approval. Letter recipients are not allowed to disclose their involvement in a request.

Prosecutors have said secrecy is needed to avoid alerting suspects.

In July 2005, the FBI issued a national security letter to Christian and three other Connecticut librarians. The letter sought computer subscriber data for a 45-minute period on Feb. 15, 2005, during which a terrorist threat was thought to have been transmitted. A gag order prevented the librarians from talking about the letter.

The librarians refused to comply with the FBI's request.

The American Civil Liberties Union filed a legal challenge on behalf of the librarians but did not name them.

A judge ruled that the gag order should be lifted, saying it unfairly prevented the librarians from participating in debate over how the Patriot Act should be rewritten. Prosecutors appealed, but in April 2006 they said they would no longer seek to enforce a gag order.

Last year, authorities dropped their demand for the records, saying they had discounted the potential threat that led to the request.

Labels: ACLU, gag orders, George Christian, librarians, Patriot Act

Washington Post Editorial

It is the policy of The Washington Post not to publish anonymous pieces. In this case, an exception has been made because the author -- who would have preferred to be named -- is legally prohibited from disclosing his or her identity in connection with receipt of a national security letter. The Post confirmed the legitimacy of this submission by verifying it with the author's attorney and by reviewing publicly available court documents.

The Justice Department's inspector general revealed on March 9 that the FBI has been systematically abusing one of the most controversial provisions of the USA Patriot Act: the expanded power to issue "national security letters." It no doubt surprised most Americans to learn that between 2003 and 2005 the FBI issued more than 140,000 specific demands under this provision -- demands issued without a showing of probable cause or prior judicial approval -- to obtain potentially sensitive information about U.S. citizens and residents. It did not, however, come as any surprise to me.

Three years ago, I received a national security letter (NSL) in my capacity as the president of a small Internet access and consulting business. The letter ordered me to provide sensitive information about one of my clients. There was no indication that a judge had reviewed or approved the letter, and it turned out that none had. The letter came with a gag provision that prohibited me from telling anyone, including my client, that the FBI was seeking this information. Based on the context of the demand -- a context that the FBI still won't let me discuss publicly -- I suspected that the FBI was abusing its power and that the letter sought information to which the FBI was not entitled.

Rather than turn over the information, I contacted lawyers at the American Civil Liberties Union, and in April 2004 I filed a lawsuit challenging the constitutionality of the NSL power. I never released the information the FBI sought, and last November the FBI decided that it no longer needs the information anyway. But the FBI still hasn't abandoned the gag order that prevents me from disclosing my experience and concerns with the law or the national security letter that was served on my company. In fact, the government will return to court in the next few weeks to defend the gag orders that are imposed on recipients of these letters.

Living under the gag order has been stressful and surreal. Under the threat of criminal prosecution, I must hide all aspects of my involvement in the case -- including the mere fact that I received an NSL -- from my colleagues, my family and my friends. When I meet with my attorneys I cannot tell my girlfriend where I am going or where I have been. I hide any papers related to the case in a place where she will not look. When clients and friends ask me whether I am the one challenging the constitutionality of the NSL statute, I have no choice but to look them in the eye and lie.

I resent being conscripted as a secret informer for the government and being made to mislead those who are close to me, especially because I have doubts about the legitimacy of the underlying investigation.

The inspector general's report makes clear that NSL gag orders have had even more pernicious effects. Without the gag orders issued on recipients of the letters, it is doubtful that the FBI would have been able to abuse the NSL power the way that it did. Some recipients would have spoken out about perceived abuses, and the FBI's actions would have been subject to some degree of public scrutiny. To be sure, not all recipients would have spoken out; the inspector general's report suggests that large telecom companies have been all too willing to share sensitive data with the agency -- in at least one case, a telecom company gave the FBI even more information than it asked for. But some recipients would have called attention to abuses, and some abuse would have been deterred.

I found it particularly difficult to be silent about my concerns while Congress was debating the reauthorization of the Patriot Act in 2005 and early 2006. If I hadn't been under a gag order, I would have contacted members of Congress to discuss my experiences and to advocate changes in the law. The inspector general's report confirms that Congress lacked a complete picture of the problem during a critical time: Even though the NSL statute requires the director of the FBI to fully inform members of the House and Senate about all requests issued under the statute, the FBI significantly underrepresented the number of NSL requests in 2003, 2004 and 2005, according to the report.

I recognize that there may sometimes be a need for secrecy in certain national security investigations. But I've now been under a broad gag order for three years, and other NSL recipients have been silenced for even longer. At some point -- a point we passed long ago -- the secrecy itself becomes a threat to our democracy. In the wake of the recent revelations, I believe more strongly than ever that the secrecy surrounding the government's use of the national security letters power is unwarranted and dangerous. I hope that Congress will at last recognize the same thing.

Labels: abuse of power, balls, FBI, National Security Letters, Patriot Act