Two years ago, the tantalizing story of Able Danger came to light as three of its team went public with information on the cutting-edge data-mining program. Coincidentally, as the AD story got fitfully reported over the succeeding months, the New York Times revealed an NSA surveillance plan that monitored communications on suspected terrorist lines and cell phones from points abroad into the US without a wiretap. Now it looks like the two may have more in common than first thought, at least conceptually, and that may prove that Alberto Gonzales told the truth in testimony this week in the Senate:
A fierce dispute within the Bush administration in early 2004 over a National Security Agency warrantless surveillance program was related to concerns about the NSA's searches of huge computer databases, the New York Times reported today.
The agency's data mining was also linked to a dramatic chain of events in March 2004, including threats of resignation from senior Justice Department officials and an unusual nighttime visit by White House aides to the hospital bedside of then-Attorney General John D. Ashcroft, the Times reported, citing current and former officials briefed on the program.
Attorney General Alberto R. Gonzales, one of the aides who went to the hospital, was questioned closely about that episode during a contentious Senate hearing on Tuesday. Gonzales characterized the internal debate as centering on "other intelligence activities" than the NSA's warrantless surveillance program, whose existence President Bush confirmed in December 2005.
FBI Director Robert S. Mueller III contradicted Gonzales, his boss, two days later, testifying before the House Judiciary Committee that the disagreement involved "an NSA program that has been much discussed." ...
The report of a data mining component to the dispute suggests that Gonzales's testimony could be correct. A group of Senate Democrats, including two who have been privy to classified briefings about the NSA program, called last week for a special prosecutor to consider perjury charges against Gonzales.
The report also provides further evidence that the NSA surveillance operation was far more extensive than has been acknowledged by the Bush administration, which has consistently sought to describe the program in narrow terms and to emphasize that the effort was legal.
This may be good news for Gonzales, but will likely prompt more questions about the NSA's surveillance program. The AD program got shut down in a hurry before 9/11, in some tellings because it got a little too indiscriminate with its connections between Clinton administration officials and potential enemies, but more likely because of its potential to cross lines separating military intelligence and domestic privacy laws. If the Pentagon's lawyers got a case of the shakes around AD, the Department of Justice could easily have felt the same way about a similar program centered at the NSA.
Would a data-mining effort be so closely attached to the terrorist-surveillance program (TSP) that the Senate would consider them one and the same? It seems unlikely -- which benefits Gonzales. The NSA would not need to "data mine" communications they have already intercepted; they would know exactly what was in them. To the extent they created databases for these intercepts, mining them would cause no great issue for the DoJ. If the intercepts were themselves illegal, that would be its own issue, not mining them for connections to other intercepts.
If, however, the NSA employed data-mining on publicly-available databases in the same manner that Able Danger did, one could see why the Congressional delegation would have objected. The NSA is supposed to be more outward-directed, analogous to the CIA. Conducting domestic surveillance should be a brief for the FBI, which has more controls over how they can access domestic data. An NSA data-mining program that utilized domestic data could trip the same alarm warnings that Able Danger did, implying a great deal less control over domestic spying than Congress demanded in its FISA legislation.
Given that the data used in AD was publicly available, the mechanics of the data-mining of a similar program at NSA may not have created any legal problems. However, if the NSA ran the program, that might have been enough to get strenuous objections from Congress and the Department of Justice -- which should have been in charge of a program like that, through the FBI. The threats of resignations and the uproar from the Congressional oversight delegation would have sent Gonzales to John Ashcroft's hospital room for approval for the data-mining program ... which Ashcroft apparently refused.
So, in terms of Gonzales, this appears to answer questions of perjury erupting from the Senate Judiciary Committee, and also explain why Gonzales wanted to answer the questions in camera. However, it opens up a whole new can of worms for both the White House and Congress on whether continuing an Able Danger-like program through the NSA was appropriate, if in fact that's what this was. And it could go a long way to explaining why both Congress and the White House did their best to tube the probe into Able Danger.
UPDATE AND BUMP: In the comments, Lightwave makes a couple of statements, one of which I have to disagree. He says that "Able Danger was made public to try to hurt Bush", and that the Senate's tempest with Gonzales was an attempt to get this data-mining project exposed.
I don't believe that exposing Able Danger had anything to do with George Bush at all, since the program had been shuttered before his election. The people who came forward to tell about Able Danger and the association it allegedly made with Mohammed Atta and other AQ terrorists wanted to defend the intel community -- especially those who actually gather and analyze data. The 9/11 Commission put almost the entire blame for 9/11 on these people for not connecting dots -- and this was intended to show that the bureaucrats kept them from being able to do so.
It's also a little farfetched to think that the Senate needed to conduct these hearings to leak the NSA's data-mining activities. Anyone in the Congressional oversight delegation could have done so years ago, especially in December 2005 when the Able Danger story was still hot and the Times uncovered the TSP. I'm more inclined to agree with Glenn Greenwald on this point: someone in the administration probably leaked this to protect Alberto Gonzales from accusations of perjury. One has to ask who benefits most from this leak -- and it isn't the Democrats in the Senate.
UPDATE II: I've changed "assistance" to "approval for the data-mining program" in response to Starfleet Dude's comment, too. It points out a couple of dots I neglected to connect completely in the main post.
If all of this is true, the DoJ would have seen the NSA data-mining program as within its authority and not that of the NSA. The Congressional objections would have been along those lines, which would have forced the program to abide by Justice's guidelines on civil liberties and had much more oversight on its operation. That would explain why several high-ranking DoJ officials threatened to resign after the program came to light at Justice -- and why Attorney General Ashcroft would have refused to sign off on it when then-White House counsel Alberto Gonzales came calling at the hospital. Ashcroft would have seen this as a jurisdictional issue.
UPDATE III: Rick Moran connects a few dots at Right Wing Nut House, too.
UPDATE IV: Marty at Balkinization has a detailed legal analysis of what may have caused the objections at DoJ.