Why controversy over Gonzales’ testimony continues to boil

WASHINGTON —  The controversy surrounding Atty. Gen. Alberto R. Gonzales widened last week after FBI Director Robert S. Mueller III gave testimony on Capitol Hill about an administration anti-terrorism program, testimony that seemed to contradict sworn statements made earlier by the attorney general. Now Democrats are alleging that Gonzales lied to Congress and are even calling for the appointment of a special prosecutor by the Justice Department.

Here are some basics about the latest furor:

The allegation that Gonzales lied to Congress involves a controversial anti-terrorism program. What is that program about?

After the Sept. 11 attacks, President Bush secretly ordered the National Security Agency to conduct electronic surveillance of the communications into and out of the U.S. involving suspected terrorism affiliates. The program, when its existence became known, stirred controversy because the NSA did not obtain court warrants before conducting surveillance. Bush confirmed the existence of the program to the American people in December 2005 after it was described in news reports. It soon became known as the Terrorist Surveillance Program, or TSP.

What has Mueller said about the warrantless wiretapping program?

The FBI director on Thursday told the House Judiciary Committee that he had had serious reservations about it. Those were his first public comments on the program.

What has Gonzales said, and how does it differ from Mueller’s statement?

Gonzales testified before Congress that there was no serious dissent within the Bush administration about the program that Bush confirmed in December 2005. Mueller’s testimony, along with earlier statements by other officials, seemed to contradict Gonzales’ statement about no dissent.

What does the White House say?

Presidential spokesman Tony Snow said both men were telling the truth.

How can that be?

The White House statement seems to rest on its definition of the term “Terrorist Surveillance Program.” The TSP -- at least in common usage -- has become a blanket term for the electronic surveillance that the NSA has been conducting since 2001.

Snow said the administration has always considered the term TSP to include only the program that Bush described in December 2005.

Mueller seemed to be saying that the term TSP covered the NSA’s activities since 2001. In his testimony, he did not use the phrase Terrorist Surveillance Program, but he did say his concerns were with “an NSA program that has been much discussed.”

What other evidence is there that Justice Department officials were upset with the program?

A former top Justice official, James B. Comey, has testified about his strong objections to an anti-terrorism program in 2004. At the time, he was acting as attorney general because then-Atty. Gen. John Ashcroft was in the hospital. Comey has accused Gonzales of trying to pressure Ashcroft into approving the program while he was in intensive care. Ashcroft refused. Comey has said that the White House agreed to make changes in the program after he, Mueller and Ashcroft threatened to resign.

Mueller confirmed that episode in testimony Thursday and said it related to concerns about NSA surveillance.

Gonzales said there was no dissent at all?

The attorney general has conceded that there were disagreements, but that they were about “other intelligence activities” unrelated to the program Bush confirmed in December 2005.

What “other intelligence activities”?

Gonzales and the White House have said that information is classified and have declined to disclose it. The New York Times reported Sunday that the hospital episode involved “data mining” of NSA phone and Internet records to identify terrorism suspects.

Why would Gonzales and the White House want to downplay internal dissension about TSP activities?

The administration has said that the program, which conducted eavesdropping in the U.S. without going through the special intelligence court that Congress created to monitor such activity, is legal. To buttress that contention, it has sought to portray the program as something all senior officials considered proper.

Is Gonzales likely to be charged with a crime?

No. Although he and the White House might be accused of splitting hairs, he has been consistent in his testimony before Congress. And the lack of perfect clarity on what Mueller was talking about and what Gonzales was talking about seems to create enough wiggle room for all involved to avoid legal problems.

What happens next?

Democrats want a special prosecutor appointed to investigate whether Gonzales lied to Congress.

Will the Justice Department do that?

Even if the department believes Gonzales did nothing wrong, it may be hard to dismiss the request. One possibility would be to refer the matter to career prosecutors within the department who could conduct a preliminary investigation.

Why is there so much steam behind this issue?

Until January, when Republicans lost control of Congress for the first time in Bush’s presidency, Bush was relatively free of aggressive congressional oversight, despite his expansion of the power of the presidency. That’s been especially true in areas related to anti-terrorism, such as the use of severe interrogation techniques and the legal rights of suspected terrorists. Now, Democrats are making up for lost time. Gonzales, in particular, has been a lightning rod for criticism. Even before he became attorney general, he was linked to controversial administration anti-terrorism polices as the White House counsel.

rick.schmitt@latimes.com