Why Was FBI Director Mueller Involved?

May 16, 2007

(updated below – updated again)

Rereading yesterday’s Comey testimony (full pdf; text excerpt; video excerpt (thx Uncle)) and the various news accounts I find something odd.

Everybody seems to assume that the underlying issue here is the eavesdropping by the NSA without FISA-court authority. But Comey only says "this involved a classified program" and he talks about "a particular classified program."

This could be the NSA wiretapping, but it could also be something entirely different.

There is absolutly no mentioning by Comey of the NSA or the Pentagon which runs the NSA, but there is a lot of unexplained involvement of the FBI Director.

Like Comey FBI Director Mueller rushes to the hospital where Ashcroft is lying in intensive care. They want to make sure that Bush’s chief of staff Card and counsel Alberto Gonzales do not make Ashcroft sign off on the program. The Justice Department had determined that the program had no legal basis.

Why would Mueller be involved here?

Bush reauthorizes the program without DOJ consense and Ashcroft, Comey and their chiefs of staff threaten to resign. According to Comey FBI Director Mueller also threatens to resign over this.

Why would Mueller do so if this was a pure NSA program?

On March 12, two days after the hospital incidence, Bush is under threat of the resignations and he caves in. As Comey tells it:

We had the briefing. And as I was leaving, the president asked to speak to me, took me in his study and we had a one-on-one meeting for about 15 minutes — again, which I will not go into the substance of. It was a very full exchange. And at the end of that meeting, at my urging, he met with Director Mueller, who was waiting for me downstairs.

He met with Director Mueller again privately, just the two of them. And then after those two sessions, we had his direction to do the right thing, to do what we…
[…]
[I]t was Director Mueller who carried to me the president’s direction to do what the Department of Justice thinks is right to get this where the department believes it ought to be. And we acted on that direction.

Why would only a talk with Mueller convince Bush to change course?

Mueller is deeply involved in the process of authorization of the program. He is threatening to resign over it and only he convinces a reluctant Bush to order changes to the program.

Now combine that with the uncertainty over the program:

SPECTER: […] And it was necessary to make changes in the terrorist surveillance program to get the requisite certification by the acting attorney general — that is you?

COMEY: And I may be being overly cautious, but I’m not comfortable confirming what program it was that this related to.

"What program" – are there several programs? What might the program Comey is relating to be and why is Mueller so deeply involved here? Some reasons I can think of are:

This was about the NSA program and Mueller was just lending a helping hand to his friend Comey including a willingness to resign.
The program in question is the NSA eavesdropping, but that extended much further than is publicly known and included parts of the FBI.
The program in question is not the NSA eavesdropping, but a separate program run by the FBI.
The FBI was investigating an ongoing federal crime that was related to some program. The crime discontinued when the program was changed and the FBI dropped the investigation.

Which one is it?

Are there other possible reasons for Mueller’s intimate involvement?

Any further ideas?

UPDATE: Peter Swire at Think Progress has an additional and good argument why the program in question in most probably NOT the NSA warrentless wiretapping. Gonzales earlier testified about that NSA program:

GONZALES: Senator, here is a response that I feel that I can give with respect to recent speculation or stories about disagreements. There has not been any serious disagreement, including — and I think this is accurate — there has not been any serious disagreement about the program that the president has confirmed. There have been disagreements about other matters regarding operations, which I cannot get into. I will also say –

SCHUMER: But there was some — I am sorry to cut you off, but there was some dissent within the administration, and Jim Comey did express at some point — that is all I asked you — some reservations.

GONZALES: The point I want to make is that, to my knowledge, none of the reservations dealt with the program that we are talking about today.

Either Gonzales lied in his testimony or the disagreement was NOT about the NSA eavesdroping program.

What programs might the FBI, which has no investigative task outside of the U.S., possibly run?

UPDATE II: Glenn Greenwald’s in his blogentry on the issue highlights what one of his commentator finds:

Note that nowhere in Comey’s story are NSA officials mentioned. But FBI Director Robert Mueller was a central player in the drama — he even met personally with President Bush — and also was one who threatened resignation. This indicates that, whatever was going on before the program was modified, those activities were being conducted by the FBI, not just the NSA. That could mean purely domestic unwarranted wiretaps, unwarranted black-bag jobs, or similar misconduct.

Posted by b on May 16, 2007 at 10:44 UTC | Permalink

Comments

I posted a simuliar yt vid in the other thread however this one is much more detailed: Youtube: GONZALES: Pressured DOJ to OK Domestic Spying
Good catch and questions b, very interesting indeed, is it possible that FBI Director Mueller is talking about the MATRIX program with Jr.?
Important New Documents on MATRIX (for those unfamiliar)
The ACLU has posted crucial new material about the MATRIX database, son of Total Information Awareness. Their [press release sums up:
[Politech] ACLU details problems with Matrix data-mining program [priv]
The Department of Homeland Security not only financed the Matrix program, as has previously been reported, but actually assumed managerial control.
“Florida Governor Jeb Bush has personally taken a lead role in selling the program.
“Vice President Cheney was given a personal briefing on and plea for support for the Matrix program by Governor Bush in January 2003.
“New details about the centrality of data mining in the program – publicly denied by Matrix officials – including something called ‘High Terrorist Factor scores.’
“The company that runs Matrix provided the authorities with a list of 120,000 names of individuals who scored highly on this ‘High Terrorist Factor’ analysis.
“A brief white paper discussing the revelations as well as a release, the documents themselves, and other materials, are online at
aclu’s Matrix program.

Posted by: Uncle $cam | May 16 2007 11:49 utc | 1

There is another misconception in the reports.
They make it sound like the DOJ changed legal resoning on the program because a new legal guy was looking at it.
But Comey says they reviewed the factual program and the legal issues. So very well the facts around the program might have changed which led to new legal reasoning.
From watching the video Comey seems to emphazise the factual base. From the text

a week before that March 11th deadline, I had a private meeting with the attorney general for an hour, just the two of us, and I laid out for him what we had learned and what our analysis was in this particular matter.

Another question: Senator Schumer clearly did know what to ask. In fact he seems to have known the whole story and he couches Comey through it. Who has “seeded” him with the story? Best guess: the FBI …

Posted by: b | May 16 2007 13:14 utc | 2

Can we speculate now on whether “they” will successfully prevent all this Matrix stuff from getting public scrutiny?
I would say yes simply because there is so much black and illegal ops going on and so many bodies attached to the programs. The unwritten rule has got to be – cover your ass and mine too – . If one fails at this cya for any reason he is subject to serious life ending consequences.

Posted by: rapt | May 16 2007 13:57 utc | 3

Well, at this point I’m grateful for the information, but tend to think that all apparent administration disagreement, or even any counsel, is just for show and distraction. I think any discussions as to policy are entirely invisible, above the functionaries, and that the results are delivered to Cheney et al, together with orders to have a little drama.
Remember Bush and Rumsfeld saying the Dubai ports deal was vetted at the highest level, though neither had heard of it (Bush by manner, Rumsfeld by statement)until the brouhaha

Posted by: Anonymous | May 16 2007 16:23 utc | 4

sorry, above was me.

Posted by: plushtown | May 16 2007 16:27 utc | 5

The NSA spies and records whatever they want, anytime, in any way.
These rumblings are symptoms of an underground war, the picking of an issue that one can make hay about, in one way or another. A minor skirmish fought underground, with some leaks, some righteous stances, in the media. Nobody in power cares about the laws at all. It is pontificating posturing.
The crux is: there are people’s jobs and salaries at stake, interest groups, there is a lot of money floating around, the sums are huge, other-worldly, staggering. And all the participants, I would guess, are concentrated on that. They all know that this kind of spying is useless, except insofar that it controls citizens thru fear; the monitoring must be made public, otherwise it has no effect, so revealing it is a priority.
Therefore the media announcements – the spying itself is seriously implemented with *winks winks* (thousands of ppl feed their families, act righteous and serious, polish their shoes, support the troops, toe the line..), the threat of surveillance itself being the crucial point.
The rationale is rooting out terrorists – not done before 9/11 and not done today in any serious way. Everyone knows there are no terrorists in the US (lone nutters and gunmen set apart) and that there will no further ‘terror’ attacks in the US.
Think of it as corporations looking for business opportunities.
— Funded by the tax payer when Big Gov gets together with Big Corps.

Posted by: Noirette | May 16 2007 18:42 utc | 6

@Noirette – thanks for your always valued comment
Here I disgree.
There are some always some rare folks disagreeing with the company line for fundamental reasons even at very high pay grades.
(Have seen it multiple times and done it myself at a not so high pay grade)
I’d argue that there is an open war now. Ashcroft and Comey are both rightwing people. I certainly disagree with them all the time on specific legal issues. But even they kept a moral boundery of right and wrong and within that I do not disagree with them.
There are other people who do not have a bit of a human conscience and who have no regards for humanity or moral boundaries in any way. Gonzales, Bush and Cheney are such people.
Ashcroft is quite an ass – in this scene, which seems to reflect what happened, he is a right-wing but reliable straight ass and he knows were to stop his partisanship. The same goes for Comey.
The real bad people are those disregarding ANY principle.
Those are in power right now. If my natural but principeled enemies help to fight those, I’ll go with them.

Posted by: b | May 16 2007 20:00 utc | 7

Perhaps b and Noirette are both right. In other words, my speculation is that there is most definitely a war that is going on between factions within the elite, we’ll call them evil(1) vs evil(2). In that evil(1) doesn’t care to hide the slow walk into fascism. Where as evil(2) would rather that it be not as blatant. Just as the insider war between Cheneyco and Poppy’s team, Uncle James A. Baker III. Either way, yet again, ‘the people’ are caught in a gang war between two criminal syndicates just as we were for the Baker vs. “The Lobby” war. Either way, we are fucked, caught in a crossfire metaphorically.
Also, other are saying, “Comey virtually gave it away — IT’S A SECRET FBI SPYING PROGRAM, NOT AN NSA PROGRAM!!!!!!!!”
Senators Question Whether Gonzales Lied Under Oath About NSA Wiretapping Program
P.S. where the heck is annie, and the rest of the regulars? Seems the bar is not as smoky as of late.

Posted by: Uncle $cam | May 16 2007 20:56 utc | 8

i was away for the weekend and i have been lurking.
😉 also i have an article/ show coming up and am working in my studio.
ok, so here is my brilliant comment. of course it is domestic spying, what else??

Posted by: annie | May 16 2007 21:23 utc | 9

this is what elites do well – eat each other
reminding me of a poem by adrian mitchell
you wanted
one life
i wanted
another
we couldn’t
eat our cake
so we ate
each other

Posted by: remembereringgiap | May 16 2007 21:26 utc | 10

we couldn’t
eat our cake
so we ate
each other
faster please

Posted by: annie | May 16 2007 21:29 utc | 11

No Dissent on Spying, Says Justice Dept.

The Justice Department said yesterday that it will not retract a sworn statement in 2006 by Attorney General Alberto R. Gonzales that the Terrorist Surveillance Program had aroused no controversy inside the Bush administration, despite congressional testimony Tuesday that senior departmental officials nearly resigned in 2004 to protest such a program.
The department’s affirmation of Gonzales’s remarks raised fresh questions about the nature of the classified dispute, which former U.S. officials say led then-Deputy Attorney General James B. Comey and as many as eight colleagues to discuss resigning.
…
Four Democratic senators sent a letter to Gonzales yesterday asking, “do you stand by your 2006 Senate and House testimony, or do you wish to revise it,” prompting the Justice Department’s response.

Posted by: b | May 17 2007 6:16 utc | 12

Ok – I’m quite convinced by now that it really is an FBI program:
Remember this – I could be related …
Watchdog Calls FBI Abuses Inexcusable

The FBI engaged in widespread and serious misuse of its authority in illegally gathering telephone, e-mail and financial records of Americans and foreigners while hunting terrorists, the Justice Department’s chief inspector said Tuesday.
The FBI’s failure to establish sufficient controls or oversight for collecting the information through so-called national security letters constituted “serious and unacceptable” failures, said Glenn A. Fine, the internal watchdog who revealed the data-gathering abuses in a 130-page report last week.
…
In a review of headquarters files and a sampling of just four of the FBI’s 56 field offices, Fine found 48 violations of law or presidential directives during 2003-2005 and estimated that “a significant number of … violations throughout the FBI have not been identified or reported.”
…
Fine’s review, authorized by Congress over Bush administration objections, concluded the number of national security letters requested by the FBI skyrocketed after the Patriot Act became law. Each letter may contain several requests.
In 2000, the FBI issued an estimated 8,500 requests. That number peaked in 2004 with 56,000. Overall, the FBI reported issuing 143,074 requests in national security letters between 2003 and 2005. In 2005, 53 percent were for records of U.S. citizens or permanent residents.
In a sampling of 77 case files in four FBI field offices, Fine discovered an additional 8,850 requests that were never recorded in the FBI’s database, and he estimated there were many more nationwide.

Look when the number peaked. Why did it go down after 2004?

Posted by: b | May 17 2007 6:29 utc | 13

When does Ashcroft get subpoenaed?
Of course, I’m of the mind, that it matters not one wit.
All over the blogsphere commenter’s are saying “just be patient” the dems are working behind the scenes, in closed hearings and will soon spring the trap!
Yeah, right.
I have no ideal why, but I got falsely hopeful the other day, as I thought it possible that some people were getting a bare inkling that the Dems are not the saviors everybody wants to believe they are. When stumbling across some interesting posts here and here.
The first one above by Kagro X had this little semi-tidbit: “Forget the past, they say. Look to the future. Well, ladies and gentlemen, I fear you are looking at your future.” in which he infers what we all know, in that, the Dems are a do nothing false hope.
And then it happens again, –as I have demonstrated countless timesof others– but in this case it was mcjoan, whom says all the right things up until the very end, as so many do*, and then proceeds to pull the rug right out from under her argument with: “It [sic]think it’s time for a new Gonzales hearing.”
*What was that process b spoke of earlier of denial and bargaining? The grief process?
And finally, I am at a loss, (wellm not really) to understand as others have why this was not a big deal 2 weeks ago when it came out. In which The secrecy oath the fascists used on the dem cowards worked. I am more inclined to believe they are not so much cowards as they are complicit. They want these executive branch powers for themselves. If they win the big enchilada aka the 08 election. Even if it means eating each other as r’giap and annie has highlighted.
And what of the people? ‘Fuck em’, give em crumbs…
At one time in history, the hubris of, ‘Let’em eat cake’:
When Marie Antoinette advised the starving masses, “Let them eat cake,” when told they could not afford to make bread, she eventually paid for it at the guillotine.
Indeed, “faster please”…

Posted by: Uncle $cam | May 17 2007 7:43 utc | 14

Why did Gonzo say there were no serious disagreements with the program? Note, how he emphasized the program we are dealing with “NOW.” There were serious disagreements with the program as it existed before Bush intervened at the time that Ashcroft was hospitalized. However, the program was modified, according to Comey so the program NOW is different from the program then!
Why was Mueller involved, rather than someone from NSA? Because the Director of the FBI works for the Attorney General, and Comey could order him to come to the hospital. NSA is in the Department of Defense, and Comey has no authority over him.
Please visit the Schapira blog, “What we know so far …
“… and tell ’em Big Mitch sent ya!”

Posted by: Mitch Schapira | May 17 2007 21:20 utc | 15

@Mitch – Why was Mueller involved, rather than someone from NSA? Because the Director of the FBI works for the Attorney General, and Comey could order him to come to the hospital.
Comey could not order him to resign and Mueller was willing to do so.
The only reasonable explanation for now: This was an FBI “program”, i.e. domestic spying.

Posted by: b | May 17 2007 22:00 utc | 16

TPM: President Bush refuses to answer whether he ordered Card and Gonzales to Ashcroft’s hospital bedside …
he funny thing about this dodge is that the president is saying not only that the nature of the program is highly classified and must be kept secret, which may be true, but that his apparent order for Gonzales and Card to go squeeze the semi-concsious John Ashcroft is also highly classified and must be kept secret. Somehow I just don’t get that one. The president’s refusal to answer tells the tale. The president gave the order and even placed the call, as James Comey all but told us yesterday.
But it should not surprise us because this White House has mainly used ‘classification’ as a way to keep embarrassing information out of public view.

Posted by: Uncle $cam | May 17 2007 22:10 utc | 17

Forensics of congressional hearings – excellent examination Bernhard and all.
Historical aside: Current historians say that Marie Antoinette never said “Let them eat cake.” As an outsider, an Austrian foreigner from the powerful Hapsburg family, she was an easier, safer target for critique than the king and his advisors. And, of course, gossip, including false rumors, is an ancient weapon of the “weak,” or of cowards, bullies, and political illusionists.
The iconic meaning of that imperial dismissal survives any historical clarification. Mitchell’s poem speaks a lesson of histories as much as any record of facts. I’m with Annie: “Faster please.”

Posted by: small coke | May 17 2007 22:27 utc | 18

uncle
when these hoods fart – it suddenly becomes a question of national security

Posted by: remembereringgiap | May 18 2007 1:26 utc | 19

driftnet

Posted by: beq | May 18 2007 1:28 utc | 20

here is a twenty minute video of Comey’s testimony.
The Bush junta has absolutely no scruples, no boundaries…yes, b, there is a large demarcation between those whose opinion and approach differ from yours and those who could give a damn about the law, others’ rights, …and it is especially disgusting that these people are in such positions of power.
Comey’s testimony just brought down Bush and Gonzalez. Is there no one in the U.S. govt with the integrity to uphold the constitution?? If no special prosecutor is not appointed to obtain testimony under oath from Bush, then what the fuck is left of so-called democracy?

Posted by: fauxreal | May 18 2007 3:51 utc | 21

oops. close that tag, please.

Posted by: fauxreal | May 18 2007 3:52 utc | 22

I find it significant that the certainly far right wing editorial board of the Washington Post under Fred Hiatt now for the third day in a row is blasting Bush over this.
Tuesday: Mr. Comey’s Tale

Justice’s conclusions are supposed to be the final word in the executive branch about what is lawful or not, and the administration has emphasized since the warrantless wiretapping story broke that it was being done under the department’s supervision.
Now, it emerges, they were willing to override Justice if need be.

Wednesday: The Gonzales Coverup

What’s critical here is that lawmakers get a full picture of what happened, obtaining whatever documents — Office of Legal Counsel opinions — and testimony are necessary, behind closed doors if need be.

Thursday: Caller ID

The administration, it appears from Mr. Comey’s testimony, was willing to go forward, against legal advice, with a program that the Justice Department had concluded did not “honor the civil liberties of our people.” Nor is it clear that Congress was adequately informed. The president would like to make this unpleasant controversy disappear behind the national security curtain. That cannot be allowed to happen.

Bush has overstepped their libertarian streak big time.
Still today they also print an utter shill peace by a form Reagon DOJ guy. Testimony in a Teacup

Comey’s testimonial flourish is actually yet another rehashing of whether the president’s responsibility as commander in chief (under Article II) and the broad grant of all “necessary and appropriate” power given in military authorization by Congress trumps the ill-fitting FISA statute, which was drafted in peacetime and whose leisurely espionage structure arguably contemplates exceptions to its warrant regime premised on “other statutes.”

But that piece is so stupid that even a legal amateurs could take it apart.
But lets leave it to the professionals. Here the Marty Lederman asking Is This the Best the Administration’s Surrogates Can Do?

The OLC conclusion was not that the President “lacked authority” in the first instance to order the surveillance — it was, instead, that a duly enacted statute, FISA, flatly prohibited the President from exercising what would otherwise be his constitutional authority — and that Article II of the Constitution does not give the President the power to disregard such a statutory restriction.

Posted by: b | May 18 2007 9:50 utc | 23

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