Ashcroft and Data Mining

I'm as perplexed as everyone else in trying to decipher the White House's latest explanation of Attorney General Alberto Gonzales' seemingly inconsistent statements in his sworn testimony on what was at issue regarding the NSA's Terrorist Surveillance Program when he and Andy Card went to visit former Attorney General John Ashcroft in the hospital in March, 2004.

A 2004 dispute over the National Security Agency’s secret surveillance program that led top Justice Department officials to threaten resignation involved computer searches through massive electronic databases, according to current and former officials briefed on the program.

....Mr. Gonzales insisted before the Senate this week that the 2004 dispute did not involve the Terrorist Surveillance Program “confirmed” by President Bush, who has acknowledged eavesdropping without warrants but has never acknowledged the data mining. If the dispute chiefly involved data mining, rather than eavesdropping, Mr. Gonzales’ defenders may maintain that his narrowly crafted answers, while legalistic, were technically correct.

Big Tent Democrat argues that the TSP program and the data-mining program were one and the same -- data mining was part of the TSP program. While there are many data-mining programs run by a host of different agencies, that seems right in this context.

I'd like to examine it from a different angle: Was John Ashcroft ever opposed to data-mining? If not, how could that be the basis of the need to go to the hospital and twist his arm in reauthorizing the NSA's TSP program?


Answer to Question One: John Ashcroft was a proponent of data-mining. In 2002, he issued guidelines for terrorism investigations. They included this paragraph:

I Information Systems

The FBI is authorized to operate and participate in identification, tracking, and information systems for the purpose of identifying and locating terrorists, excluding or removing from the United States alien terrorists and alien supporters of terrorist activity as authorized by law, assessing and responding to terrorist risks and threats, or otherwise detecting, prosecuting, or preventing terrorist activities. Systems within the scope of this paragraph may draw on and retain
pertinent information from any source permitted by law, including information derived from past or ongoing investigative activities; other information collected or provided by governmental entities, such as foreign intelligence information and lookout list information; publicly available information, whether obtained directly or through services or resources (whether nonprofit or commercial) that compile or analyze such information; and information voluntarily provided by private entities. Any such system operated by the FBI shall be reviewed periodically for compliance with all applicable statutory provisions, Department regulations and policies, and Attorney General Guidelines.

Ashcroft was also a driving force behind Matrix, the multi-state police database with data mining capabilities, that would allow police to create lists of people who fit criminal profiles based on their ethnicity, address or credit history.

In June, 2003, Ashcroft testified before the House Judiciary Committee and had this to say about data-mining:

Mr. MEEHAN. If I could just follow up. Let's talk about limits on data collection then more generally. The FBI has relied on commercial databases to obtain information about existing suspects. But to what extent has the FBI been looking for patterns of terrorist activity in data that includes information about people who are not already suspects? And do we need some privacy rules to limit Government data mining in search of such patterns? And I'm just interested in what happens if the FBI relies on faulty data, either from the commercial sector or its own databases. Do Americans have any way to correct the inaccurate data that the FBI may have been relying on; in other words, whether it's commercially obtained or whether it's obtained through the FBI's own data collection?

Attorney General ASHCROFT. Well, your concern is an understandable concern, and I think we all are concerned about two things at least, probably many more. Faulty data is always a problem. You know, in the computer world we say garbage in, garbage out. So if you get bad input you're going to have a bad outcome. So we need to worry about the integrity of our data. And there is some concern about the scale of the data or there's too much data. And that's one of the reasons that I don't really believe that the FBI should be maintaining data. It's one thing to have — to go seek data if it's available someplace when you need it. It's another thing to accumulate data. And one of the things that I think protects privacy well is the idea of minimization; that you don't take more information than you need. And if you need to go get it, being able to go get it is very important.

He says the Justice Department and the Defense Department submitted a joint report on data mining and in his letter attached to the report, he raised these concerns:

....the efficacy and accuracy of search tools must be carefully demonstrated and tested, and that should be an ongoing thing. Secondly, it's critical that there be built-in operational safeguards to reduce the opportunities for abuse so that when you construct a system you ought to have checks over sites in the system and safeguards.

Number three, it's essential to ensure that substantial security measures are placed to prevent such tools from unauthorized access by hackers or by outsiders. Number four, any agency contemplating deploying certain tools for use in particular context with respect to data sources that contain information on U.S. persons must be required first to conduct a thorough predeployment legal review. In other words, review in advance what kinds of things are being sought.

So Ashcroft was never opposed to data-mining. He was concerned with how it was to be accomplished. The only way I can see to reconcile the White House's latest explanation of Gonzales' testimony is if Ashcroft thought the way in which the NSA was going about the data mining failed to pass legal muster.

Answer to Question Two: If top level Justice Department officials were willing to quit over the NSA's proposed data mining plan, it wasn't because they opposed data mining. It could only be because the kind of data they were going to mine or the way in which they were going to use it or store it were completely illegal under Title III, the Fourth Amendment, FISA and privacy or other laws.

Can't this be resolved by Congress (or a special prosecutor) calling John Ashcroft to testify about the reason for the March, 2004 hospital room dispute?

Update: I'm also wondering whether the national security letters issued to telecom companies figure in somewhere here. More here.

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    a tidbit in the reg opens up whole new vistas (5.00 / 1) (#9)
    by scribe on Sun Jul 29, 2007 at 08:23:50 AM EST
    One of the sources which the reg allows the FBI to use was this:

    "and information voluntarily provided by private entities"

    I've seen news reports that the briefs recently filed by the telephone companies in the suits against them (particularly as to the State regulators going after them) for their parts in the NSA wiretapping have argued that even assuming the wiretapping went on, the Telcos were private entities voluntarily cooperating with the government, and thereby exercising their First Amendment rights and therefore immune from suit for their conduct in providing the information.

    In other words, because the Telcos voluntarily provided the wiretap information, the FBI could use it.  As to the Telco which didn't - QWest - well, we saw last week what happens to those who don't "voluntarily" provide information to the government.

    Moreover, this little clause appears to be the workaround authorizing what Ashcroft et als. really sought - to use the wiretap information in court cases without having to disclose either its provenance, and without having to comply with FISA.  In other words, a way around Katz v. US and US v. US District Court (Keith).

    A number of years ago, when I was defending civil rights suits, one of my favorite defense arguments when applicable was that my clients, being state actors, were afforded a defense against the suit under the Eleventh Amendment.  Judges always found a way to avoid deciding that issue, because as precedent it would have pretty quickly closed the courthouse doors forever to civil rights suits.  I raised that defense in one case, and the pro se plaintiff wrote in his letter brief opposing my summary judgment motion:  "You can't use your Eleventh Amendment rights to destroy my Fifth Amendment rights!"  To which I wrote, in my reply brief:  "Yes, I can."

    We have a similar issue arising here:  will the Telcos' claimed First Amendment rights to "co-operate" with the government trump their customers' Fourth, Fifth and Sixth (Confrontation) amendments rights?

    A nice turn of phrase sums it up: (5.00 / 2) (#11)
    by scribe on Sun Jul 29, 2007 at 09:06:53 AM EST
    From Josh Marshall over at TPM:  

    "The intensity of the covering up doesn't match the alleged secret."

    Why would the administration be going so absolutely apesh*t to protect this program (these programs) when they have repeatedly shown reckless disregard for secrets of the highest sensitivities?

    And, what would staunch prosecutors like Comey and the head of the FBI - serious uber-cops all - threaten to resign?  Comey's no choirboy - I think it was he who made the comment "heads on spikes" relative to terrists (and terrist suspects) to describe the DoJ's attitude immediately post-9/11.  Muller's the head of the FBI fer goodness sake - the lineal successor to J. Edgar Hoover.  No FBI Director has ever (to my knowledge) threatened to resign over something intended to catch designated "bad guys".

    I keep coming back to an idea that cropped up some time ago and has never really gone away:  that they were tapping Members of Congress and the Senate, and Democratic activists/officials, for blackmail purposes and to game the elections.

    In other words, all roads lead to Rove.

    thanks for the nice rating (5.00 / 1) (#23)
    by scribe on Sun Jul 29, 2007 at 12:03:37 PM EST
    but, really, I think my other comment on this thread was far more important.
    If they got the Telcos to give them the information "voluntarily" and prosecuted the CEO of the one which refused (QWest) and then rewrote the regs to allow reliance on material "voluntarily provided by private entities", have they not accomplished their goals at least vis-a-vis destroying The Wall?

    I mean, we just saw during this past week's Gonzo hearings, the revelation that DoJ rewrote its election law policy book, to make legal the sort of election-interfering-with stunts that had previously been unacceptable. Stuff like, allowing initiating prosecutions before elections, when they can interfere with the result, and all the other stuff that was Rove's personal [better-than-sex] fantasy before and now is just another tool in his toolbox for stealing elections.

    No, rewriting the regs was public and arguably,  piping information to the NSA would have been not much of a story had it initially come out that way.  And they're still hiding something - furiously. Gotta be big.

    And, finally, as to those stirring up the hearsay argument about what Muller knew or heard or such, please, please, please answer me this:

    Why is unsworn hearsay from unknown, unnamed and uncertain-whether-they-ever-existed declarants, badly translated from some strange language admissible against and wholly satisfactory to support incarceration of alleged terrists by some ad hoc kangaroo court looking to meet its predetermined outcome, while the non-hearsay Public Testimony Under Oath of The Director of The Federal Bureau of Investigation is not sufficient to call bullsh*t on the lies of the Attorney General and the President?

    I will not suggest an answer.  This is an essay exam.  You have as long as it takes you.  Use complete sentences and show your work.

    If you can't give me an intellectually honest and logically coherent answer, then STFU.


    Best. Line. Ever. (5.00 / 0) (#27)
    by Sailor on Sun Jul 29, 2007 at 08:12:59 PM EST
    Smoother results than Occam's Razor and lasts a hella long time, though initial application of the principle is painful as hell.

    ellie (1.00 / 0) (#26)
    by jimakaPPJ on Sun Jul 29, 2007 at 06:43:49 PM EST
    This is an admin that had big plans even before 9/11. They have their pet projects to set in motion quite apart from the open-ended War on Whatever. In 2000 it was all about controlling elections and finding a way to get and keep power (in particular, using the judicial branch to do so.)

    And the lunar landing was shot in a movie set.

    keep ignoring the truth (5.00 / 0) (#28)
    by Sailor on Sun Jul 29, 2007 at 08:28:04 PM EST
    in discussing the threat posed by Iraqi President Saddam Hussein, Bush said: "After all, this is the guy who tried to kill my dad."

    PNAC members influenced his misAdmin from the beginning. Their goal is world domination via taking over the ME.

    The lunar landing was legitmate, attacking Iraq using the excuse of 9/11 wasn't.


    Ah, the Bonkers, Unhinged, Sh'yeah right argument (none / 0) (#29)
    by Ellie on Sun Jul 29, 2007 at 09:23:19 PM EST
    It's so rational and logical.

    So find anything in my post can't be independently corroborated by easily accessed, publicly available records of events, statements and declared intentions.

    I'll event grant you a gimme for the bulk of your argument: I'M ACTUALLY BONKERS.

    There you go. But even that doesn't address or dismantle what I posted, the recap of events, or the Occam principle.


    ellie (1.00 / 0) (#30)
    by jimakaPPJ on Mon Jul 30, 2007 at 09:50:38 AM EST
    I accept your self description but don't believe it.

    This is an admin that had big plans even before 9/11. They have their pet projects to set in motion quite apart from the open-ended War on Whatever. In 2000 it was all about controlling elections and finding a way to get and keep power (in particular, using the judicial branch to do so.)

    This paragraph by itself defines you.

    For whatever reason you are unconcerned about the threats presented to liberal democracies by radical Moslems. Instead, focusing on any attempts to contain them. As Churchhill said:

    The fact that in Mohammedan law every woman must belong to some man as his absolute property must delay the final extinction of slavery until the faith of Islam has ceased to be a great power among men.

    This alone has always puzzled me. To me there is nothing any Moslem could say, or do, untill that tenet of Islam was removed completely.


    The difference (none / 0) (#1)
    by Big Tent Democrat on Sun Jul 29, 2007 at 12:21:10 AM EST
    Simply was this - James Comey.

    I think it is that simple J.

    There were no standup lawyers in the room until
    Comey came along.

    Comey made Ashcroft gain some self respect.

    Comey (none / 0) (#2)
    by Jeralyn on Sun Jul 29, 2007 at 12:38:18 AM EST
    is another (until recently) career prosecutor.  I wouldn't use "stand up" to describe him.

    Heh (none / 0) (#3)
    by Big Tent Democrat on Sun Jul 29, 2007 at 12:47:44 AM EST
    Okay. Let me put it this way, he apparently had his limits.

    I always think of career AUSAs as the zealous run down those criminals to the end of the earth types.

    Let me put it another way, I trust careeer prosecutors a lot more than political Justice appointees.  


    Maybe Comey had his limits... (none / 0) (#7)
    by mattd on Sun Jul 29, 2007 at 01:48:25 AM EST
    ...but did Ashcroft?

    It seems obvious that Card and Gonzales went to Ashcroft's hospital bed because they believed Ashcroft would reauthorize the program, as he had before.  I don't remember many references saying that the scope of the program offended Ashcroft, more that he didn't like the White House going over Comey's head when he was sedated.

    It might be a red herring to get diverted onto "what was so egregious that Ashcroft wouldn't renew it," when apparently he'd already renewed it several times.  They may have just offended the uptight Ashcroft who wanted to be left alone - and got his wish in November 2004 when he wasn't asked to return for a second term, replaced by Bush's sycophant.


    Maybe it was a standup JUDGE (none / 0) (#4)
    by Big Tent Democrat on Sun Jul 29, 2007 at 01:03:00 AM EST
    From the Times article in Dec 2005:

    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.

    For the first time, the Justice Department audited the N.S.A. program, several officials said. And to provide more guidance, the Justice Department and the agency expanded and refined a checklist to follow in deciding whether probable cause existed to start monitoring someone's communications, several officials said.

    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. While not knowing all the details of the exchange,several government lawyers said there appeared to be concerns that the Justice Department, by trying to shield the existence of the N.S.A. program, was in danger of misleading the court about the origins of the information cited to justify the warrants.

    One official familiar with the episode said the judge insisted to Justice Department lawyers at one point that any material gathered under the special N.S.A. program not be used in seeking wiretap warrants from her court. Judge Kollar-Kotelly did not return calls for comment.

    The question then is the how could Gonzlaes testify that there was no dispute when the articloe confirmed them and Bush confirmed the article?


    A related issue arose in a case in which the F.B.I. was monitoring the communications of a terrorist suspect under a F.I.S.A.-approved warrant, even though the National Security Agency was already conducting warrantless eavesdropping.

    According to officials, F.B.I. surveillance of Mr. Faris, the Brooklyn Bridge plotter, was dropped for a short time because of technical problems. At the time, senior Justice Department officials worried what would happen if the N.S.A. picked up information that needed to be presented in court. The government would then either have to disclose the N.S.A. program or mislead a criminal court about how it had gotten the information.

    Could this have been why?


    the information data mining mother load (none / 0) (#5)
    by Sumner on Sun Jul 29, 2007 at 01:39:14 AM EST
    Some years ago, I seem to remember, www.gliif.org didn't even need an email address with "@something". Apparently, simply addressing a communication to gliif or gliif.org was enough to have it sifted up to their attention.

    A google search of "gliif" will bring up many early links and historical iterations. Now consider that current players involve the likes of Blackwater, SAIC, VeriSign, and a host of similar others. In fact, the former SAIC financial officer recently moved over to serve as VeriSign's CEO.

    An open journal shows what they all had in mind in 2002.

    And here's some of where they are now.

    Do not forget that the "Information sharing" now makes it all available across department lines.

    Bring Back the Wall (5.00 / 2) (#6)
    by Jeralyn on Sun Jul 29, 2007 at 01:47:09 AM EST
    That was Ashcroft's biggest crusade, to tear down the wall between intelligence and crime agencies, allowing them to share information.  I miss that wall.

    Ah, now that makes sense... (none / 0) (#8)
    by Strick on Sun Jul 29, 2007 at 08:15:02 AM EST
    Can't this be resolved by Congress (or a special prosecutor) calling John Ashcroft to testify about the reason for the March, 2004 hospital room dispute?

    Especially since Mueller's "understanding" is essentially hearsay.

    Update: I'm also wondering whether the national security letters issued to telecom companies figure in somewhere here. More here.

    Again, more reasonable.  The catch is that the call detail records provided by the telecoms isn't really that compatible with what the TSP gathered, especially if you believe they indexed the contents of any of the communications from the TSP.  

    The analysis they'd do with the TSP results is just that, analysis, not really data mining, at least not in the formal meaning of the word.  Plus, there's a strong indication that they only have temporary access to the data.  They seem to be taking raw data from the switch which would be quite a bit of extra work to make sense of.

    The call detail records provided by the telecoms would be the perfect base for data mining, pre-digested, organized and stable, and it would give them the flexibility to address broader questions or search more deeply when they do find a pattern.

    That said, even if the two activities are on the same subject, they're so different that our speculation won't settle whether they're the same program or two different ones.  That can be settled by showing if they had different start dates, sponsors or funding authorizations.

    If they are different programs, make the Administration put up or shut up.

    His understanding is not hearsay. By definition. (none / 0) (#10)
    by Molly Bloom on Sun Jul 29, 2007 at 09:05:16 AM EST
    Mueller's understanding of the conversation was about or what the situation was in Ashcroft's hosptial room is not hearsay. By definition.

    Even if Mueller testified to the statements of others that were underlying his understanding of the conversation, those statements  were descrbing a contemporanous event, which is an exception to the hearsay rule.

    Don't rely on Powerline. They are movement conservatives first and last.


    Gang of 8 (none / 0) (#12)
    by Big Tent Democrat on Sun Jul 29, 2007 at 09:07:05 AM EST
    Not hearsay by any definition, even Powerline's.

    Powerline is floating the hearsay defense (none / 0) (#13)
    by Molly Bloom on Sun Jul 29, 2007 at 09:17:44 AM EST
    The boys at Powerline are floating the hearsay defense

    Earlier today, FBI Director Robert Mueller seemed to contradict Gonzales when he testified before a House committee that his impression was that the hospital visit did relate to the terrorist surveillance program. This was hearsay on Mueller's part, since he was not present at the interview, but arrived shortly after. He apparently got the impression that the TSP program was involved from Ashcroft.

    Whatever lawschool they attended, should demand their diplomas back.

    Some days I feel like Alice in Wonderland. Who needs Owsley anymore, everything is already surreal.


    MB (1.00 / 1) (#18)
    by jimakaPPJ on Sun Jul 29, 2007 at 10:28:51 AM EST
    And seems to me that you are floating the "I know what the Judge would do defense."

    If you are that good you should be rolling in the clients.

    As for schools, I think one went to Dartmouth...

    That'll be one big refund.


    you need more coffee than I do this AM (none / 0) (#20)
    by Molly Bloom on Sun Jul 29, 2007 at 10:47:07 AM EST
    Typically (none / 0) (#21)
    by Big Tent Democrat on Sun Jul 29, 2007 at 11:04:27 AM EST
    I have no idea what you are talking about.

    MB, do you?


    Fair enough (none / 0) (#16)
    by Strick on Sun Jul 29, 2007 at 10:14:57 AM EST
    Still, Mueller's understanding is only his understanding.  If there's a question on what the conversation was about, why not ask Ashcroft as Jeralyn suggests and cut out the middleman?

    Great idea (none / 0) (#17)
    by Big Tent Democrat on Sun Jul 29, 2007 at 10:18:28 AM EST
    works for me (none / 0) (#19)
    by Molly Bloom on Sun Jul 29, 2007 at 10:45:04 AM EST
    Oh need more coffee (none / 0) (#14)
    by Molly Bloom on Sun Jul 29, 2007 at 09:18:24 AM EST
    I misread what you were saying. True enough.

    Strick (none / 0) (#15)
    by jimakaPPJ on Sun Jul 29, 2007 at 10:03:55 AM EST
    The call detail records provided by the telecoms would be the perfect base for data mining, pre-digested, organized and stable, and it would give them the flexibility to address broader questions or search more deeply when they do find a pattern.

    Actually the information would be provided in disassociated format, which means it has to be formated with the called and calling number, start time, end time which then gives call length. Billing can then be done based on the rate, routes and time of day. Actually pretty simple stuff and not one bit confidential.

    Section 2702(c) sets out the circumstances in which a telecom provider can disclose phone records, not including the contents of communications. So this would cover the call information at issue in this program. 2702(c)(6) says that such phone records may be freely disclosed, at the company's discretion:

    (6) to any person other than a governmental entity.

    That's right. These supposedly top-secret telephone records can be given or, more likely, sold to any company or private citizen. So if I had enough money, I could buy the phone records of every person in the U.S., and donate them to the NSA.


    Analysis of such information, whether or not you think it legal, has absolutely nothing to do with recoding of telephone conversations.

    Two completely separate programs.


    Now, now, jimakaPPJ (none / 0) (#22)
    by Strick on Sun Jul 29, 2007 at 11:24:49 AM EST
    I've consulted to the telecoms on data issues, too.

    CDRs are simpler to interpret that the raw output of  the switches.  And if we assume they were taking domestic call CDRs, which wouldn't go through the international switches the NSA accesses for the TSP, it wouldn't be directly related the TSP at all.

    BTW, you never can tell what format the PhDs will want the data in to apply their magic to.  Probably neither the the raw formats from the switches nor CDRs.


    Strick (none / 0) (#24)
    by jimakaPPJ on Sun Jul 29, 2007 at 03:02:04 PM EST
    What the Phds will want..

    As I said, they can get in disassociated format on a tape, disk or drive and do what they want.

    I could see them looking for numbers with very low call lengths, calls at the same time of day, or sequence of days, etc..