More NSA Surveillance Programs?:
The Washington Post reports that AG Alberto Gonzales and White House Counsel Harriett Miers each denied in telephone calls to Rep. Jane Harman that there was "a broader program or an additional program out there involving surveillance of U.S. persons" beyond the known NSA surveillance program.

  This is an interesting development, although exactly what it means isn't clear to me. Given that the statements were made to Harman over the phone and reported by her from memory, we don't know precisely what was said. The details might matter. For example, a statement that there are no additional "surveillance" programs might be quite different from a statement that there are no additional "electronic surveillance" programs. "Surveillance" would seem to be a general term, but "electronic surveillance" is a term of art defined in FISA that is mostly limited to acquiring the contents of communications. See 50 U.S.C. 1801(f). So, for example, a datamining program that used non-content envelope information from Internet and telephone communications to try to look for patterns and links of communications might sound like a "surveillance" program in a popular sense. On the other hand, it technically would not be an "electronic surveillance" program as the term is used in FISA.
I'd also like to see these statements confirmed by the Administration before I take them too seriously. There have been disputes in the past over what exactly someone has said to a member of Congress in private.
3.3.2006 11:28am
It is bizarre in the extreme that Gonzales, who repeatedly testified before the Judiciary Committee that he was barred from saying anything whatsoever about any programs beyond the single program he was there to discuss, would simply pick up the phone and tell a Member of Congress that no such programs exist.

If the conversation did occur as reported, it would seem highly significant that Gonzales felt free to make such a representation on a relatively informal basis over the phone, but was unwilling to make the same representation either in his testimony or in the subsequent six-page "clarifying" letter which was discussed earlier this week. Something strange is going on here.
3.3.2006 11:36am
Just an Observer:
As another caveat, I note that the denial Harman says she received refers to surveillance that might be conducted now, but does not rule out prior surveillance.

When dealing with someone such as Gonzales, who parses his words very carefully, it is best to get his exact words on the record. Paraphrases and hearsay are worse than useless.
3.3.2006 12:15pm
Orin, isn't that the sort of legalistic quibbling that got Bill Clinton in trouble?
3.3.2006 12:16pm
Orin, I think you've overlooked the fact that "contents" is defined very broadly in FISA, much more so than in the criminal wiretap statute. Here's the FISA definition:
(n) "Contents", when used with respect to a communication, includes any information concerning the identity of the parties to such communication or the existence, substance, purport, or meaning of that communication.
"[N]on-content envelope information from Internet and telephone communications" is therefore, I submit, internally contradictory, at least as far as FISA goes.
3.3.2006 12:21pm
KMAJ (mail):
This is merely an exercise in speculation without substantiation. There is no transcript of the conversation. Even if the representation of words chosen is accurate, it does nothing more than advance conspiracy theory. The old adage 'absence of evidence is not evidence of absence', but it is still lack of evidence upon which to make one's case, plays out in translation absence of a past tense choice of words is not evidence there were past programs or that there weren't. Certainly if one were to try to present such a case in court, "Well, judge, the AG did not use a past tense verb in his conversation with the Congresswoman, thus did not confirm or deny past programs, so we want to prosecute based on that second hand parsing for surveillance violations." The judge would toss it out.
3.3.2006 1:25pm
A temporal detention...of digital packets...and seizure into memory of the image of binary ones and the speed of light...that is taking hair splitting to the nano- will only get better.
3.3.2006 1:28pm

Actually, there is a doctrine in evidence, sometimes called "admissions by silence," where a failure to deny the truth of a statement in circumstances where a denial would be expected can be admitted as evidence of the party's agreement with statement.

Of course, this doctrine likely would be inapplicable here because Gonzales does have at least a nominal reason for refusing to deny or confirm other programs (the government's interest in secrecy). Still, one should be careful about over-generalizing on this issue.
3.3.2006 2:20pm
Mobius (mail):
What?! A congressman lying?! Impossible, congressmen never lie. Everything they say is one hundred percent truth. (I'm being cynical here) So many people in politics are spinning half truths, and outright lies, that it's hard to tell what the hell is going on. I wish Orin would post something more than just hearsay.
3.3.2006 2:44pm
Tom Holsinger (mail):
Words of art matter here.
3.3.2006 2:50pm
Of course the precise words make a huge difference, which is why it's a calculated decision to convey this information in a phone call rather than in a letter or in recorded testimony.
3.3.2006 2:58pm

I realize FISA has a different and broader definition of contents than does Title III, but I still think it's narrow enough that the same principle applies.
3.3.2006 3:03pm
So many people in politics are spinning half truths, and outright lies, that it's hard to tell what the hell is going on. I wish Orin would post something more than just hearsay.

I'm not sure what you're saying, Mobius. I take it that Gonzales and Miers are very well situated to correct Harman if she relayed their view incorrectly.
3.3.2006 3:07pm
Dilan Esper (mail) (www):
Following on to Orin Kerr's point, you can't on the one hand defend the Administration's fetish for the absolute secrecy of these programs and then criticize the critics of the programs for speculating. If the programs are benign, the Administration needs to put enough information out about them so that people can see this. And if it doesn't feel that it can do this without compromising the program (something that I doubt-- I think all signs point to an Administration that simply doesn't want Congress or the Courts to exert any authority in this area), then the Administration must weigh the costs of disclosure against the costs of nondisclosure, which include critics speculating and criticizing the program whose details the Administration won't reveal.
3.3.2006 3:44pm
Noah Klein (mail):

I am sorry I have been gone for a while. I have been working on my studies and have not had time to post, although I have read several threads.

Professor Kerr,

As you know, I tend to agree with you on this subject, including the possibility of more questionable surveillance programs, but I do not see anything new in Harman's statement. I agree with the opponents of the program on this thread that this does not present any new information. I further agree that Gonzales' and Miers' denial to Harman does not seem to be subject to any conclusion other than that there are no other programs. I don't think that the administration is parsing in this statement, but they may lying. We don't know, but you have on several occasions demonstrated their reluctance to confirm or deny any other questionable programs. This new statement by the administration while a flat denial does not help to determine the truth of whether there are other programs.

3.3.2006 4:09pm
RSwan (mail):
Dilan Esper,
The reason the Administration may not be putting out more information on the program is that such information would provide the "enemy" with the information needed to avoid the program -- and thereby render the program useless.

I don't know if the program is constitutional, but taking the Congressional folks as informed citizens (I am assuming they have at least a passing knowlege of the Constitution), the program isn't obviously unconstitutional. My personal belief is the NSA program is at worst in a gray area.
3.3.2006 4:54pm
Mobius (mail):
The fact of the matter is that no one here knows what is the truth and what isn't. And it is deceptive to claim something is true with absolutely no evidence. You hold the administration to a standard that you yourself cannot acheive or maintain.
3.3.2006 5:26pm
Mobius writes:

[I]t is deceptive to claim something is true with absolutely no evidence. You hold the administration to a standard that you yourself cannot acheive or maintain.

What did I claim to be true? I'm lost. To be clear, I'm trying to point out how little we know, not how much we know.
3.3.2006 5:35pm
Charlie (Colorado) (mail):

I'm not sure what you're saying, Mobius. I take it that Gonzales and Miers are very well situated to correct Harman if she relayed their view incorrectly.

Why, Orin?

I don't know that it's important, since this appears to exactly match what Gonzales has said in more public venues. But assume for the sake of hypothesis it weren't true: assume that the most either one has said to Harman in the last six months were "nice shoes." Then replying in the press that they had said nothing of the sort to Harman would, first, mean they were calling someone who has been a relative ally a liar, and second would immediately lead to 673 news stories that say Gonzales said there were surveillance programs directed at US persons. (Cf, the "plastic turkey" people, or the "imminent" danger people; there being apparently little desire to get the facts right anyway, what's the point of making a correction of this sort?)
3.3.2006 6:34pm
Noah Klein (mail):

The reasons you lay out might be logical if the facts you presented were true. Harman is most certainly not an ally. She is a very partisan Democrat and she has made many statements against the NSA program. So that does not make sense.

3.3.2006 6:45pm
Bruce Hayden (mail) (www):
I find it interesting, in light of our discussion here yesterday about this very subject - that the AG in his testimony before Congress and his prepared statements has said that the TSP does not surveil purely domestic communications. The assumption of some here seemed to be that that implied that there were other programs that did. I suspect that if this assumption were wide enough spread, it might explain why the AG and/or Ms. Miers were reported to have made - to lay this to rest. Maybe.

The problem with the Admission by Silence suggestion is that, at least here in Colorado (my father's last win in the CO Supreme Ct. before he retired), an obligation to speak is essentially required. I don't see that, esp. in view of the classified nature of much of the information.

That said, I am not the least bit surprised at many here trying to guess at what is going on here from what he isn't saying. One of the things that you ultimately learn in the practice of law is to try to always read between the lines. Often, your opponents will do precisely this - say one thing, let you assume more, but carefully not say it, because the reality is quite different.
3.3.2006 6:55pm
Dilan Esper (mail) (www):

With respect, there is NO evidence that putting out more information about the program will make it useless. Al Qaeda ASSUMES that electronic communications are monitored. It ASSUMES that we are doing data mining, attempting to track its members, etc. They are not stupid.

On the other hand, we know that the Bush Administration loves secrecy. We know they oppose any judicial review of what they characterize as the "war on terror". We know that they oppose Congressional oversight. We know that they are deeply unpopular, have done many things that violate the Constitution, federal law, treaties, and basic civil liberties.

Occam's razor says they are lying and just don't want the proram scrutinized. To say otherwise, you'd have to trust proven repeated liars. I don't. Perhaps you do.
3.5.2006 11:58pm
Devil's Advocate (mail):
"...AG Alberto Gonzales and White House Counsel Harriett Miers each denied in telephone calls to Rep. Jane Harman..."

If the Torturer General and George's Nanny say so, it must be true! It's not as if either one of them would lie, or anything.
3.6.2006 1:20pm