Was the Gonzales/Comey Hospital Confrontation About the TSP or the NSA Call Records Program (Or Both)?:
Today's New York Times has an intriguing but frustratingly unclear story adding some details about the now-famous hospital confrontation over whether the recovering John Ashcorft would approve an NSA surveillance program despite Acting-AG James Comey's conclusion that the program wasn't legal. A few comments:
(1) The story says that the dispute "involved computer searches through massive electronic databases," but that in itself is pretty useless. If information is collected and then analyzed, and then the fruits are used, there will always be a stage involving "computer searches through massive electronic databases." Heck, Google queries are "computer searches through massive electronic databases." The question is, what information was in the database? And what did the government do with the fruits of the searches?
(2) It sounds like the NSA Call Records program and the Terrorist Surveillance Program were designed to work together. The government would get the non-content records, run searches through them for patterns, and then conclude that certain patterns were sufficient to suggest that some people were bad guys and that the contents of their communications should be intercepted. The starting point would be the call records program, the end point the TSP. I gather the question of whether Gonzales's testimony was misleading concerns where one program ends and the other begins.
(3) Presumably the authorization that Card & Gonzales wanted Ashcroft to sign was a 18 U.S.C. 2511(2)(a)(ii)(b) certification that the phone companies would have demanded before proceeding, which is "a certification in writing by . . . the Attorney General of the United States that no warrant or court order is required by law, that all statutory requirements have been met, and that the specified assistance is required." But we still don't know exactly what the legal issues were that were in dispute. I can come up with about 10 different theories, but I just don't know which one is particularly likely to be right.
(4) I'm puzzled by the newspaper's claim that searching a database of non-content call records disclosed by the phone companies requires a court order. It doesn't in the criminal law context: the Wiretap Act only applies for contemporaneous acquisition, and once there is a proper disclosure under the Stored Communications Act the data can be searched without any legal restrictions. But I wonder, does FISA require a court order in that setting? Or maybe the government wasn't relying on a voluntary disclosure theory? Or is the Times just getting this detail wrong? I'm not sure.
Marty Lederman has more thoughts at Balkinization.
(1) The story says that the dispute "involved computer searches through massive electronic databases," but that in itself is pretty useless. If information is collected and then analyzed, and then the fruits are used, there will always be a stage involving "computer searches through massive electronic databases." Heck, Google queries are "computer searches through massive electronic databases." The question is, what information was in the database? And what did the government do with the fruits of the searches?
(2) It sounds like the NSA Call Records program and the Terrorist Surveillance Program were designed to work together. The government would get the non-content records, run searches through them for patterns, and then conclude that certain patterns were sufficient to suggest that some people were bad guys and that the contents of their communications should be intercepted. The starting point would be the call records program, the end point the TSP. I gather the question of whether Gonzales's testimony was misleading concerns where one program ends and the other begins.
(3) Presumably the authorization that Card & Gonzales wanted Ashcroft to sign was a 18 U.S.C. 2511(2)(a)(ii)(b) certification that the phone companies would have demanded before proceeding, which is "a certification in writing by . . . the Attorney General of the United States that no warrant or court order is required by law, that all statutory requirements have been met, and that the specified assistance is required." But we still don't know exactly what the legal issues were that were in dispute. I can come up with about 10 different theories, but I just don't know which one is particularly likely to be right.
(4) I'm puzzled by the newspaper's claim that searching a database of non-content call records disclosed by the phone companies requires a court order. It doesn't in the criminal law context: the Wiretap Act only applies for contemporaneous acquisition, and once there is a proper disclosure under the Stored Communications Act the data can be searched without any legal restrictions. But I wonder, does FISA require a court order in that setting? Or maybe the government wasn't relying on a voluntary disclosure theory? Or is the Times just getting this detail wrong? I'm not sure.
Marty Lederman has more thoughts at Balkinization.
When you say "it's clear" that something more sinister is going on, and that "it's inconceivable" that this is only non-content information, what do you think it's so incredibly clear? Is it just your instinct that the kinds of people here wouldn't make a big stink out of this unless it involved contents? How do you know?
Further, you seem to miss the point -- this NY TImes article was clearly based on White House sources trying to protect Gonzales from the obvious perjury he committed. The fact that it doesn't make sense is a reflection of the fact that there is no explanation -- Gonzales lied repeatedly, and we all know it.
While I agree that AGAG probably has perjured himself, and I further agree about the purpose of this particular leak, I very much disagree that Prof. Kerr has "missed the point". That Gonzales is and has been deceiving people is not new and it's not the big story. The real issue is what the Administration was doing that was so unacceptable that most of the DOJ threatened to resign over it. Prof. Kerr's post correctly focuses on the details of that "program" and not on the sideshow issue (!) of perjury by the AG.
Move on.
Recent published reports have gone even further. The Washington Post said that NSA officials in 2003 were concerned with “the NSA’s direct intercepts of communications without court approval”. The only time the NSA needs court approval to intercept communications is when it involves US citizens.
Remember that Attorney General Ashcroft and his deputy both refused to approve the program and it was implemented without court approval. Later the program was modified and brought under the jurisdiction of the FISA Court. Although we don’t know the exact details of what the controversial program entailed it seems clear to me that it went beyond simply looking at phone call records. Many have drawn similar conclusions.
Nor do we know that the activities disputed in 2004 included only data mining. In fact, the NYT says today, "Some of the officials said the 2004 dispute involved other issues in addition to the data mining, but would not provide details."
The new leaks, with their emphasis on the resurrected hints about data mining, seem to have been designed to divert focus from the heated controversy over Gonzales' credibility and whether it is actionable. But they really shed no light on that. What is important as far as Gonzales is concerned is whether he lied or misled Congress when he testified Feb. 6, 2006, that "there has not been any serious disagreement about the program that the President has confirmed."
Whether the disagreement we now know about from Comey and Mueller involved stuff within the definition of that "program" is what matters for purposes of judging Gonzales' testimony. It does not really matter, for those purposes, whether the details in disagreement were about data mining, purely domestic surveillance, or topless dancing. If the activity was within "the program" and was part of that disagreement, then Gonzales is in deep weeds for dissembling to Congress.
Gonzales, Tony Snow and surrogates would have us concentrate on the "Terrorist Surveillance Program" as he described it in 2006. Yet DOJ now acknowledges that there never was a "Terrorist Surveillance Program" except as a public-relations term invented and defined in January of 2006. But the "program that the president ... confirmed" was a program defined by executive order shortly after 9/11, and reauthorized in 45-day intervals for years, according to President Bush's own announcement in his Dec. 17, 2005, radio address confirming the NYT story.
It was that actual "program" -- whatever it included -- that was up for reauthorization at the time of the incident with Gonzales, Comey, Ashcroft and Mueller in March 2004. What they understood to be the "program" was not the "Terrorist Surveillance Program," because that term of art and its definition would not be invented for another 22 months. The best documentary description of the actual program as it existed in March 2004 is probably contained in paper trail of the 45-day executive orders, which has never been revealed, has been subpoenaed, and likely will be fought over as a matter of privilege. "The program" was whatever was described within the four corners of those documents.
Notably, Gonzales has never even said there was more than one "program." He refers to the disputed stuff merely as "activities" or "operational capabilities." But if they were included in the single, actual program Comey refused to sign off on, Gonzales was dissembling at best.
These issues, not speculation about what the details of the program were, are what Gonzales' credibility rests on.
1) Do traffic analysis, starting from a set of known targets and following calls/messages made to or from those targets.
2) Set up content filtering on most of the nodes that result from that traffic analysis.
3) Cull the list of nodes over a short period (days, probably) based on what the content filtering provided. (After all, content filtering is expensive.)
4) Go back historically and do additional traffic analysis on suspicious nodes using the phone companies' call detail record databases.
5) Lather, rinse, repeat.
Now, the problem is that your best information is likely to result when you follow calls to a new target and immediately set up on that target. X in Afghanistan calls Y in Brooklyn, who immediately calls Z in New Jersey. The problem is that Y may decide to call for pizza before discussing his germ warfare plans with his buddies. So now you wind up bugging the pizza parlor and everybody that calls in to order, then bugging them, and so on. Of course, this may be an excellent reason why Al Qaeda might want to infiltrate your local Domino's.
Clearly, you can't do this stuff in realtime and be legal, even with FISA's "hot pursuit" provisions, where notification can occur after the fact. You'd swamp the system, rendering it useless for its real business.
I could see a disucssion on the technical, administrative, and budgetary aspects of this generating some hot bedside debate. I can also see a whole bunch of people rapidly coming to the conclusion that they had to do some things that were outside the letter of the law but nonetheless essential.
I can also see Gonzales wanting to be very careful which strings he allowed to be pulled from such a conversation, for fear of where they might lead. I'm sure political cover figures into this, but it's equally likely that certain technical aspects of the entire system (not just the program) are clever enough that their disclosure would provide an advantage to the bad guys.
I don't care if Gonzales goes down in this--he's merely the latest in a long line of the Bush inner circle who are cringingly incapable of communicating the business of government to its consumers, the US electorate. But I sure do hope that the folks that are so eager to pull him down are sufficiently clueful to leave intact the surveillance apparatus that are genuinely vital to national security.
I admire Shakespeare, although I admit I don't see his works often. What are your favorites?
KJ,
You seem to be overlooking the Pen Register Statute, the Stored Communications, the Wiretap Act, and FISA; they are all vitally important laws beyond the Fourth Amendment, and they all require court orders when the Fourth Amendment does not. Why are you certain that the objections were constitutional and not statutory? Further, the fact that surveillance is not controversial to the public does not mean it was not controversial within DOJ.
Orin, what are the fourth amendment implications in analyzing the content of all international traffic? My first impression is that they would run afoul of the requirement that the government specify "the place to be searched, and the persons or things to be seized."
Orin, I’m not. I doubt that the program concerns were strictly constitutional. Actually, the only publicly acknowledged change to the program involved oversight by the FISA Court (statutory) but there may be others.
The point that’s being missed here is that the AG, FBI Director and the leadership of the DOJ all had grave concerns about the legality of the program. These concerns were so serious that a mass exodus was threatened at the DOJ. The only change that we know about the program is that it’s now operating under FISA – and it wasn’t previously. Obviously this indicates that the surveillance activity, whatever it is, requires FISA Court approval.
Getting back to my original post, which you seemed to dispute - if the government wants to analyze the phone records and internet usage patterns of every person in America, this can be done without court approval. The government can collect, data mine and analyze this information in infinite ways because there is no expectation of privacy. Certainly FISA Court approval is not required for such a program. Therefore we can conclude that the program’s scope goes beyond metadata and into actual communications content otherwise FISA would not be implicated.
The problem is that it is a federal crime for anyone, including the government to collect metadata without a court order unless an exception applies, see 18 U.S.C. 3121. The government is barred from forcinf companies to give up the information without a court order, see 18 U.S.C. 2703, and the companies are barred from voluntarily disclosing except in some cases, 18 U.S.C. 2702. You keep saying that no court order is required because there is no expectation of privacy, but I'm curious how you get around these statutory restrictions that apply even when the Fourth Amendment does not.
I can't cite any sources at the moment but I have read that the all major phone carriers supply call record information, for every call to the government. Are you suggesting that this is not accurate or that it would be illegal?
Clement the "Star" --- the guy went into the well of the Supreme Court to argue on three occasions for the elimination of the Magna Charta. Your star, not mine.
Pursuing the question about what might have been illegal about data mining, could it be that what was going on was that the databases being mined were populated not after-the-fact from call records, but in real time by methods that would qualify as pen-registers?
The Pen Register Act and the related pen register provisions of FISA have relatively low thresholds for court orders. But they are designed for use on identified targets.
If the NSA was simply Hoovering up massive non-content meta-data covering all or most domestic communications without bothering with court orders, perhaps that could have comprised the activity sufficiently egregious to prompt the high-level mutiny at DOJ.
I am just speculating, of course, and you have greater expertise in this area than I do. Is this plausible?
Yes, that is wrong. See the laws I cited above.
Greedy Clerk,
I realize you don't agree with the legal arguments that Clement was making. But why Richard III?
USA Todaystates that the NSA has the" largest database ever assembled in the world" containing phone records for nearly every call made.
Well... I still don't entirely buy that. So far I think two individuals have stated this, and others questioned have replied "no comment". And based on my work experience, I would need an awful lot of fingers to count all the people who have told me that they would resign if they didn't get their way, but never did. It's very simple way to show frustration, and try to gain the upper hand in a negotiation, but in my experience it's not super effective because a lot of uplines realize that most people will back down, or accept a small amt of changes to save face to stay. And I won't even get into the discussion that one or two of the named individuals seem very much like the type above, who are looking more for leverage than willing to pull the cord :)
But when I assume it's true, then I have to ask myself why some of these people would threaten to quit. AG, Asst. AG, OLC.. I could see them making the threat over something like this if they saw what another agency was doing and felt uneasy about it (Though I must admit while I could see it hypothetically, I can't see it with all of these specific people). But the Director of the FBI?? That one makes me wonder if the program was crossing the line into heavy domestic by involving FBI agents. But agents doing what? Listening in on specific calls? Or just taking leads and doing some legwork? Don't know :)
I do recall that a statement was made that Comey spoke to Bush about his concerns. He was listened to but felt he didn't have any impact. But then Mueller spoke to Bush, and out of that meeting Bush decided to make some changes. Having read a good deal on Mueller, I'm inclined to believe that unlike Comey, who may have approached this from a 10,000 ft "oh my gosh, what are we doing?" angle (if he did. he didn't say specifically what he discussed so for all we know he discussed Bush's last vacation), Mueller sat down and said "Hey boss, we've got a problem here. We need to do this and this and this, or someone may run to the papers". At which point I expect Bush told him to make it happen.
I admit I don't know that much about Comey, so I've always taken his words and side of things as suspect. But I have a good deal of knowledge on Mueller, so I suspect my Meuller is pretty spot on (and as a bonus, Comey can still be a saint in this!) :)
When I see someone say obviously, I always sigh. If it was really obvious you wouldn't need to say that. I used to work with a guy who used to use the word "basically" as if it magically made whatever he was talking about understandable to his audience ("Basically, I just re-route the flux capacitor into the quantum condenser and tada!" Audience: ???).
Saying obviously does not make it so. The advice I gave this guy, and that I've given others, is that when you feel yourself about to use a word like "basically" or "obviously" or the like, stop and ask yourself WHY you think it's basic or obvious. And then consider how to explain those points to the person you're expressing your views to. If it turns out you really are seeing something everyone else missed, by showing them your train of thought and the evidence you used to reach your conclusion, they very well may say "Oh! I missed it!". Alternatively, when thinking it out, you may realize that what seemed obvious at first, was actually a misfire on your part. In such a case, having thought it out saves you the embarrassment of making an erroneous statement :)
To your specific statement, it is just as likely this change was not made because it had to be, but because it was felt that making it reduced the likelyhood that the upset individuals would potentially leak or otherwise put the program at risk. Everyone else may still feel the change was not required. Furthermore, since we don't actually know what "it" is specifically, we have no way of judging for ourselves that status. And then, even if we did know what "it" is, lacking the final word of SCOTUS we could never be exactly sure it needed to be changed (unless it turns out to be something like the NSA was feeding phone numbers to the FBI, who were then going out and killing the owners of those numbers assassination style. I think we could safely draw a conclusion there :) ).
The likelyhood is that if we ever do learn what "it" is, it will not be clear that it's right or not. Instead, it will be highly disagreed upon as to whether or not "it" is legal. Just like today. That was why I tossed in the SCOTUS line :)
We may be in situation where:
1) The public has perception about a certain program, with certain details
2) Members of Congress and the AG know about a wider set of facts
3) Members of Congress phrase certain questions which the AG answers on the basis of #2 but which on the basis of #1 sound untruthful or incompetent.
4) Members of Congress then beat the drum that the AG sounds untruthful and incompetent.
Orin: There is a critical distinction between these activities breaching the 4th amendment versus statutory injunctions. The former is much more useful as a matter of politics. The 4th amendment clearly constraints the executive, but statutory provisions may be unconstitutional restraints in themselves.
If the hospital scene was played out over statutory concerns regarding SCA or similar provisions, the public is going to shrug off this whole incident. As frankly it largely has.
If the terrorists surrendered in Iraq tomorrow, Bush's approval rating would jump irrespective of TSP.
I realize that finding a new example of Bush dissembling is not very interesting at this stage; it's a lot like finding a new example of AGAG dissembling. But it might be slightly interesting to remember that Bush said we don't do data mining:
Too bad the White House can't find a way to make Gonzales look like less of a liar without also simultaneously making Bush look like more of a liar.
h/t to anonymous liberal, here.
Andrew McCarthy is a frequent NRO contributor and former federal prosecutor. He prosecuted Sheikh Omar Abdel Rahman. This is what McCarthy said about Comey and his testimony:
Two things to remember about the Bush quote you cite above from May 2006:
1) It was expressed in the present tense, so it would not cover something that previously took place (before the "program" was modified in 2004).
2) It was expressed as a denial of an exaggerated strawman -- "We're not mining or trolling through the personal lives of millions of innocent Americans." Knocking down that strawman was really a non-denial denial.
Gen. Hayden made similar strawman denials in January 2006:
The same two caveats apply to Hayden's comments.
I agree completely with everything you said. Good points.
Bush said "we're not mining." I think there are two ways of interpreting that statement:
A) We don't do data mining currently, and we haven't done data mining in the past.
B) We don't do data mining currently, but we used to, for a couple of years, and we only stopped because Ashcroft et al threatened to resign over it.
A and B are quite different. I think it's pretty clear that Bush was hoping we would hear A, when it fact it now appears that the underlying reality might have been B. (And that's giving Bush some unearned benefit-of-the-doubt, because it involves assuming that there's really been no data mining since 3/04; i.e., he was telling the truth when he said it's not being done currently.)
"The same two caveats apply to Hayden's comments."
Yes. However, I think it's interesting to notice this point made by Greenwald: that Hayden "made clear that the NSA could not and would not engage in such data mining because of the 'ethical' and 'practical' considerations involved." Hayden isn't just saying we don't do it currently. He's saying (paraphrase) 'we would never do such a thing, and couldn't even if we wanted to.' This seems to blow a large hole in the latest spin emanating from the White House.
Anyway, as several people have astutely suggested, it's important to stay focussed on the central point: exactly what was it that Bush was doing pre-hospital, that was so egregious that Ashcroft et al threatened to resign? It's about time we knew.
I think Orin may be reaching the wrong conclusion about that. His presumption does not seem consistent with Comey's testimony, which was that the AG's signature was not required by any statute, but that a signature block for the AG, attesting to the general legality of the program, had simply been incorporated into the program's (re)authorization process all along. That process was something the administration invented internally.
From Comey's testimony:
This same speculation about surveillance of purely domestic communications has long been advanced by critics such as Marty Lederman (and, FWIW, me.) The difference is that the rest of us think this even more intrusive, pervasive, illegal domestic spying is an evil to be rooted out and -- gasp! -- maybe even punished.
But Rivkin and Lee lament that such surveillance apparently had to be stopped! These surrogate propagandists, I think, are softening up the ground for the eventual disclosure that the illegal spying on citizens within the country has gone far beyond that which has been admitted so far.
I say "alleged", because although the database was reported in USA Today as per KJ's link, I don't think it was ever confirmed or denied by the Bush administration. I thought the general view was that if news reports were accurate, it would be illegal under FISA. So far as I've heard (and I'd be interested to hear corrections) the database is presumably ongoing. When the administration announced they were suspending the TSP, the wording was sufficiently narrow that it could easily exclude this database.
While I don't mind hearing that you're a Shakespeare fan, like Greedy Clerk I'd also be interested to hear why you do or don't think a special prosecutor would be a good idea. (Or why you're on the fence, if that's where you are.)
Also, what are your thoughts on impeaching Gonzales? IIRC, last go round you said that while -- like pretty much everyone -- you think he should resign, you didn't think he should be impeached. But you didn't give your reasons. I'd be interested to hear your thoughts on why he shouldn't be impeached (or why he should if the recent testimony changed matters for you).
As I understand the statute Orin references, 8 USC 2511(2)(a)(ii)(b) refers to a certification document actually provided to telecom companies. Comey is describing something different, presumably a classified executive order, that reauthorizes the whole program within the executive branch.
The purpose of the signature blocks for the AG and White House counsel is pretty obvious, I think. It was to provide legal cover to the President and his subordinates for their facial violations of civil and criminal law. With respect to FISA and the TSP eavesdropping that has been confirmed, these legal opinions are the only thing that purports to excuse the lawbreaking. And with respect to whatever activities over and above that, which were in dispute in March 2004, the senior DOJ lawyers decided they no longer could provide such cover.
On the impeachment and special prosecutor questions, I see that Anonymous Liberal comes out in favor of impeaching Gonzales, but against a special prosecutor (see the last several paragraphs of his post). Tom Maguire apparently agrees.
Yes. But I think this "lament" brings up some interesting questions that I haven't seen anyone consider.
If the program (pre-hospital TSP, whatever that means) was really so crucial in keeping us safe, then why did Bush ever stop? One way or another, he could have and should have found a way to continue. For example, he could have simply let Ashcroft et al resign. This is called sticking to your guns. Or he could have gone to his rubber-stamp GOP Congress and asked them for new law to satisfy Ashcroft's concerns. Instead, he simply ended the program (or made substantive changes, which some folks now "lament"). This tends to create the impression that it wasn't that crucial to our safety, to begin with.
Then again, it's possible that the program was simply very, very wrong (while also being not too important to our safety). This would explain why Ashcroft et al threatened to resign. It would also explain why Bush chose to cave in to Ashcroft (to avoid the story becoming public pre-election). It would also explain why only at this late date, under duress, are we getting hints from Bush that he ever did such a thing ("data mining," the narrative du jour). After leading us to believe, years ago, that this is something he would never do.
So I think the focus now should be this: why did you do data mining? If it was both important and legal, why did you stop? And if you really thought it was legal, why are you admitting it only now? And if you're really not doing it anymore, and there was nothing illegal about it, why is it important to still be so secretive about it?
It's getting very tiresome to hear this: 'if I described my illegal activities, that would help the terrorists.' And this: 'if we don't do illegal stuff, they're going to cut our heads off.'
Thanks for pointing out the WSJ column. I'm sure it precisely embodies the latest collection of official talking points.
I would add that it does not seem at all clear that the telecoms got any such written certifications from the AG for their participation in the program, whatever it entailed. That is why the administration is pushing hard for legislation (part of today's "modernize FISA" bill) that would retroactively immunize the companies from lawsuits such as those now pending against them.
The AG signatures Comey was discussing, and the supporting OLC/DOJ opinions, seem more like a get-out-of-jail-free card for the President and his subordinates.
What confuses me is why anyone thinks the "questionable" parts were stopped. I think it's more likely the program that the justice dept. was involved with was modified, and a new program came into existance to continue the rest. Perhaps it's entirely a military program. We'll probably never know.
I have no doubt that if Bush really thought those activities were important, they are still happening. The difference of course may be that the individuals doing those activities now are the kind who won't ever leak, at
least not for a decade or three.
Some would chuckle that those screaming for full disclosure have pretty much guaranteed that it will never happen now. Though I have to admit that I feel for many that they'd rather not ever have the facts, because not having them let's them weave their web of stories without anyone being able to conclusively prove or disprove them :)