What Was the Data Mining Dispute About?
Posted on Sun Jul 29, 2007 at 02:58:00 PM EST
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As long as Jeralyn, Orin Kerr and Marty Lederman are speculating about what the legal dispute was that triggered the 2004 Comey crisis, I am going to throw my 2 cents in too. I think a thorough review of the original Times article, and the most recent article lead us to a reasonable speculation - that it was NOT the data mining itself that was objectionable but the use of the data mining results. Lederman writes:
[T]he most likely possibility -- the legal problem wasn't the data mining itself, but instead that the uses of the data that were mined violated FISA. The Times story hints at this -- that perhaps it was not so much the data mining itself, but instead what what NSA did with the mined data, that caused the legal uproar: "Some of the officials said the 2004 dispute involved other issues in addition to the data mining, but would not provide details. They would not say whether the differences were over how the databases were searched or how the resulting information was used." . . .
Indeed, and I think we can trace where these concerns first started:
In mid-2004, concerns about the program expressed by national security officials, government lawyers and a judge prompted the Bush administration to suspend elements of the program and revamp it. . . . A complaint from Judge Colleen Kollar-Kotelly, the federal judge who oversees the Federal Intelligence Surveillance Court, helped spur the suspension, officials said. The judge questioned whether information obtained under the N.S.A. program was being improperly used as the basis for F.I.S.A. wiretap warrant requests from the Justice Department, according to senior government officials.
The Judge's concerns, I speculate, led to a wholesale review by Comey and others and they came to conclude the program did not pass legal muster. More.
Now consider Bush's description of the program he "confirmed":
In the weeks following the terrorist attacks on our nation, I authorized the National Security Agency, consistent with U.S. law and the Constitution, to intercept the international communications of people with known links to al Qaeda and related terrorist organizations. Before we intercept these communications, the government must have information that establishes a clear link to these terrorist networks.Of course this must have been AFTER the program was revamped. As Lederman surmises:
This data-mining indicated that it might be valuable to do more targeted searches of particular communications "pipelines" (John Yoo's phrase), looking for more specific information. But that's where FISA came in. In order to target a particular U.S. person, or to wiretap a particular "facility," FISA requires that the NSA demonstrate to the FISA court probable cause to believe (i) that the target of the electronic surveillance is a foreign power or an agent of a foreign power, and (ii) that each of the facilities or places at which the electronic surveillance is directed is being used, or is about to be used, by a foreign power or an agent of a foreign power. 50 U.S.C. 1805(a)(3).Perhaps, as John Yoo suggests in his book, FISA would have prohibited following up on the leads revealed by the data mining with more targeted wiretaps of suspicious "channels" or "pipelines," "because we would have no specific al Qaeda suspects, and thus no probable cause."
I think what happened is that the data mining revealed something that the NSA, with DOJ's blessing, followed up on, perhaps using quite long and attenuated "connections" (e.g., phone calls and e-mails three degrees of separation removed) -- what Risen and Lichtblau's original story referred to as "an expanding chain" -- and this follow-up surveillance involved purely domestic communications, as well as communications of persons for whom there was no probable cause to believe they were Al Qaeda agents. Further speculation, with links to plenty of other bloggers, here.) If this is corerct, then it was the follow-up surveillance, not the data mining, that was the legal problem -- it didn't satisfy FISA because whatever it was NSA learned from the data mining, it was something far short of probable cause that all the subsequent targets were agents of Al Qaeda. And OLC concluded that Article II did not justify disregarding FISA.
(Emphasis supplied.) I think this sounds so plausible that I predict this is what the legal problem was. I think the best evidence of this is that the review was spurred by complaints from the FISA court itself. The problem was using probably legal data mining techniques to bootstrap FISA surveillance.
BTW, this really would make Gonzales' perjury even WORSE. It is not possible that his latest justification or description can provide an innocent explanation for his "error." If Gonzales was trying to intimate that the problem with the program was the data mining as opposed to the FISA surveillance based on the data mining, then he intentionally told falsehoods in order to deliberately mislead the Congress. There is no innocent explanation possible if this is the case.
Could Gonzales have made his situation worse? If my speculation is correct, I think so.
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