Welcome to Gonzales Watch - Blawging the Ex-Attorney General

There’s an urgent problem created by Alberto Gonzales’ litany of controversies while serving as U.S. Attorney General and White House Counsel to President Bush.

Will Gonzales’ inability to testify truthfully before Congress, attempts to circumvent the Justice Department’s legal conclusion under former Attorney General John Ashcroft that warrantless wiretapping is unconstitutional, and continued lack of Congressional support for firing career criminal prosecutors in U.S. Attorney offices around the country have a catastrophic affect on America’s ability to collect vital intelligence on terrorists and others threatening the U.S. domestically and abroad?

These questions come to mind after reading today’s Washington Post article on efforts by Mike McConnell, the U.S. Director of National Intelligence to get Congress to amend the Foreign Intelligence Surveillance Act (’FISA’) (50 U.S.C. § 1801, et al.

In effect, McConnell appears like he’s trying to ‘pull a Gonzales’ by circumventing the federal judiciary. The changes that he is proposing to Congress for the current FISA law, according to the Post, are of a logistical nature, and raise the following question: “When communications between one foreign-located source and another foreign-located source travel through a U.S.-located terminal or switch, can they be intercepted without a warrant?”

Here are a few hypothetical scenarios that come to mind:

• If potential targets of a terrorism investigation use Skype (which is owned by San Jose, Calif.-based eBay), could the U.S. eavesdrop on VoIP phone calls or text communications simply because the parent company is a U.S.-based entity?
• If VoIP servers used in foreign communications by terrorists are located overseas, would the U.S. still have jurisdiction to eavesdrop on the communication(s) without first obtaining a court-ordered warrant?
• If an al Qaeda terrorist called from a satellite phone in the tribal areas between Afghanistan and Pakistan to a member of a terrorist cell in a country outside of the United States, could the U.S. legally eavesdrop on the conversation and use information collected from to act against the parties when their communication, locations, and systems used were all overseas?

Convicted 9/11 conspirator and admitted al Qaeda terrorist Zarias Moussaoui used Hotmail accounts to help carry out part of his intended operation, according to court documents and news reports in the case.

If he had used a overseas e-mail account instead of his Hotmail account hosted by Microsoft, would McConnell’s proposed changes in the law have enabled U.S. intelligence agencies to legally collect and used information garnered from his communications (the FBI reportedly bungled their collection and use of Moussaoui’s Hotmail e-mails.)?

When a rookie FBI agent violated federal law restricting the collection of personal financial information, the agency notified the President’s Intelligence Oversight Board (’IOB’) and the Department of Justice.

How serious was the violation? Julie Thomas, the FBI’s Deputy General Counsel, was apparently so concerned about the agent’s violation of the Right to Financial Privacy Act (’RFPA’) that she sent a notice of the violation by courier to Brent Scowcroft, the IOB Chairman at the time.

Under the RFPA, an aggrieved party can seek civil damages against a person or entity who violates the law. The FBI admission letter from the agency’s lawyers spelled out this concern.

Even though the agent “did not realize that she had acted in contravention of the RFPA and Bureau policy,” the FBI’s legal team concluded that her conduct “was wilful and intentional.” In other words, when the agent broke the law, she violated not only federal law, but her employer’s HR policies.

The violation of federal law, and the FBI’s lawyers urgent admission of the breach, is the subject of an article in this morning’s Washington Post.

The focus on Attorney General Alberto Gonzales concerning a violation of federal law that was reported in October 2004, when he was still White House Counsel, has less to with the fact that it happened, and everything to do with Gonzales’ testimony to Congress the Spring of 2005 when he said under oath that there still no “verified case of civil liberties abuse” under the Patriot Act.

On Tuesday, Gonzales testified before the Senate Judiciary Committee that when he testified about abuse of civil liberties two years ago, that he was only referring to “intentional abuse.”

“My view and the views of other leadership in the department is, in fact, we’re talking about abuses of the Patriot Act, we’re talking about intentional, deliberate misuse of the Patriot Act,” the Attorney General told inquiring Senate Judiciary Committee members.

It is unclear from the documents detailing the FBI’s conduct and liability whether the agent was reprimanded. Washington Post reporter John Solomon does not discuss this aspect of the breach in his investigative report.

As President Bush seeks more surveillance powers overseas, under the Foreign Intelligence Surveillance Act, violations of federal law at home are sure to come under far greater scrutiny.