July 29, 2007

Able Danger, Alberto Gonzales, And The Senate (Update: Who Leaked It?)

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.


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Comments (15)

Posted by Lightwave | July 29, 2007 9:45 AM


So while Gonzales was telling the truth, technically, we have two major papers now breaking news of a possible program to data mine for terrorists.

I wonder who these "current and former officials briefed on the project" are. As Ed said, Able Danger was made public to try to hurt Bush, and I'm wondering if the entire circus with the AG last week was in fact nothing more than a flimsy pretense to leak details to the Times and Post in order to score more damage.

Once again, I'm seeing the Democrats putting their own political games before the country's security.

Posted by starfleet_dude | July 29, 2007 10:04 AM

The threats of resignations and the uproar from the Congressional oversight delegation would have sent Gonzales to John Ashcroft's hospital room for assistance ... which Ashcroft apparently refused.

"Assistance"? Here's what Gonzales and Card were doing in Ashcroft's hospital room that night:

And it was only a matter of minutes that the door opened and in walked Mr. Gonzales, carrying an envelope, and Mr. Card. They came over and stood by the bed. They greeted the attorney general very briefly. And then Mr. Gonzales began to discuss why they were there -- to seek his approval for a matter, and explained what the matter was -- which I will not do.
And Attorney General Ashcroft then stunned me. He lifted his head off the pillow and in very strong terms expressed his view of the matter, rich in both substance and fact, which stunned me -- drawn from the hour-long meeting we'd had a week earlier -- and in very strong terms expressed himself, and then laid his head back down on the pillow, seemed spent, and said to them, But that doesn't matter, because I'm not the attorney general.
SCHUMER: But he expressed his reluctance or he would not sign the statement that they -- give the authorization that they had asked, is that right?

This latest bit about a question of "data mining" is just the latest angle being tossed out by a White House that's doing what it can to obfuscate the reasons for the attempted end-run. Gonzales and Card were there to get a signature on the program from Ashcroft, not get his "assistance", and there's more to this matter than you're supposing Ed.

Posted by Carol Herman | July 29, 2007 12:07 PM

The more the Bonkeys attack Gonzales and Bush, the angrier it leaves a lot of people in the public, who are outraged that the FBI and the CIA are worthless, when it comes to keeping secrets.

It's now nothing more than an inside the beltway fight.

And, there will be blow back.

Meanwhile, like Chris Muir's Day by Day shows ya; the news from Iraq is great. (They won the soccer game, and are now the champs. Beating out Saudi Arabia's team.)

It was the DRAFT that spun Vietnam way out of control. And, yes. The likes of John Kerry, getting his footing up in a political way. If the Bonkeys like carrying that weight around? Good for them.

Since many people uncoupled from both parties; it will be a race, in 2008, to convince the MAINSTREAM to vote for the candidate they'll pick, and put on top of the ticket.

In 1952, the democrats got routed out of the White House. They got back in with Jimmy Carter; but he left a bad taste. And, then, of course, Bubba. Whose sexual escapades are famous. Now, Bubba wants his wife to be the Bonkey candidate. One way or the other; the fighting ahead looks deranged. You would think there would be saner heads, available, to guide things.

But where would you find such people among limousine liberals, huh? Care to make bets on how this all turns out?

Posted by Neo | July 29, 2007 12:46 PM

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.

So exactly why are two who were privy to the breiefing asking for a special counsel ?

Do they believe that Gonzales commited perjury or were they just interested in causing political damage while ignoring the truth of it all ? Doesn't this constitute obstruction ?

Posted by Lightwave | July 29, 2007 1:03 PM

I feel some need to respond, Ed.

I stand by my theory for a couple of reasons:

1) The perjury charge was easily dismissed. We knew that from day one, this whole thing has been a fishing expedition to try any way to bring the AG down.

2) Democrats need a victory right now, and they are getting pummeled in the polls badly by both the left and the right on the same charge: not producting anything of substance. They have been hammering on Gonzales for months now and still haven't made anything stick.

3) While Able Danger may have indeed be shuttered before Bush took office, how many people assumed Bush was simply doing the same thing because of the timing of the leak? Able Danger itself didn't hurt Bush, but the leak of Able Danger did.

Which brings me to 4) The Democrats get plausible deniability cover from the MSM and reveal yet another piece of the intelligence apparatus used to protect this country from another terrorist attack. It keeps Gonzales in the news, and now the Dems have yet another excuse to drag him before yet another hearing, this time about the data mining activities, which was the real goal of the exercise. "Bush is reading your e-mail and Gonzales is responsible for it!"

No, it seems to me the Democrats believe they would have a lot to gain by painting Gonzales into a corner and then giving him a way out...by exposing more US intelligence methods to the world in another effort to "Get Bush!"

Posted by Neo | July 29, 2007 1:09 PM

“The program had different parts, but there was only one program,” Ms. Harman said, adding that Mr. Gonzales was “selectively declassifying information to defend his own conduct,” which she called improper. Rep. Jane Harman (D, CA) formerly the ranking member of the House Intel Committee.

This certainly indicates that there were more the one part to the NSA programs. It certainly doesn't come from the White House.

Posted by Neo | July 29, 2007 1:23 PM

Got the feeling that Lightwave had read my previous comment

I noticed that one point that the White House and the rest of the commenters
haven't touched is that some sort of legislation defining a legal ground work
for clarifying when a phone call is domestic or international is pending in the
Judiciary Committee.

Currently, there are some FISA judges that consider any call that is routed
through the US to be a "domestic" phone call, even if it is between two al Qeada
members in the UK and Indonesia. So long as it passes through phone equipment in
territorial USA, they consider it "domestic" and under the supervision of FISA.
There are "efforts" to change this "definition" underway in the Judiciary
Committee, but the change is not a "slam dunk" by any means.

“The program had different parts, but there was only one program,” Ms. Harman
said, adding that Mr. Gonzales was “selectively declassifying information to
defend his own conduct,” which she called improper.
Jane Harman (D, CA)
formerly the ranking member of the House Intel Committee.

After reading the Harman comment, I am beginning to wonder if there is another
NSA program (or subprogram) that the New York Times hasn't told us about (yet)
that may have some sort of controversial aspects (they all do) that the Leahy et
al would like to keep their hands clean on .. or worse .. would like to leave
only the Bush Administration's fingerprints on. Remember Comey and the Gang of 8
haven't revealed the true scope of what was discussed in those private briefings
.. only the vague subject of NSA surveillance (but of course that hasn't stopped
anybody from assuming perjury).

Now imagine that they could find a way to force the Bush Administration to
reveal the existence of the program for "political purposes". Like, perhaps, an
AG under threat of perjury.

Wow! Political firings of federal prosecutors .. followed by a political
inspired release of classified information to save a political appointee of the
Administration at the expense of the safety of "average Joe Six Pack". I can
hear it now .. "how low will Bush and the Republicans go to put average
Americans at risk .. for political purposes ?

The fact that political jockeying by Democratic members of the Judiciary
Committee to force the end of a large block of seemingly benign surveillance on
America's enemies will be lost in the noise as all those programs are closed
down. A real Democratic win-win as they could then blame Bush for any future
attacks that might .. might have been avoided through "proper surveillance". And
without any recorded votes to anger the ACLU et al.

Did Alberto Gonzales put them on record that they are now threading on dangerous ground ? Forcing them to leave a few fingerprints .. so to speak.

Did anybody notice ?

Posted by RBMN | July 29, 2007 2:55 PM

Data-mining can be applied to almost anything. It's used to find likely sites for oil drilling from raw geological data. It's used to find shipwrecks on the ocean floor. If you collect enough sonar data for known shipwrecks (maybe find a typical pattern of large objects in two or three parts, full of sharp uniform lines and shapes, next to a trail of debris) and then use computers to automate the reverse process--the pattern recognition. Find the pattern, and you find a new shipwreck. Or, find the pattern, and you find a new terrorist. In most cases, you don't even have to understand how it works. You just let it learn. If you have enough data to reveal the patterns, it teaches itself. Our technology is one of the few advantages we have over determined suicide bombers. It would be a shame if we didn't use all of it to stop them.

Posted by JM Hanes | July 29, 2007 3:00 PM

It's no accident that this investigation is being pushed into classified territory by the Senate Judiciary committee, versus the Intelligence Committee -- and not just because Gonzales could presumably look back at the Intel panel and say, "You know perfectly well what I'm talking about and why I can't be more specific in an open hearing,"

What's really being advanced here is the Schumer agenda. When you're a fundraising powerhouse, you get to do what you wanna do, and go where you wanna go. Leahy barely rates a hat tip from his junior member these days, and it's worth looking at the Schumer pattern, not just the Gonzales pattern at issue.

Ask yourself how and why putative hearings on the U.S. Attorney firings ended up in Ashcroft's hospital room.

Jim Comey hails from the SDNY Attorney crowd and might as well have been a Schumer proxy at the DoJ. Take a look at Schumer's questions to Comey (whom he introduced) in Comey's Confirmation Hearing. Schumer was interested in one thing, to the exclusion of virtually everything else. What he wanted from Comey was a Special Counsel, and that's exactly what he got. Comey came to the Hill prepped on the DoJ's Special Counsel Regulations and was already singing the praises of former fellow SDNYorker, Fitzgerald. I can't assert that the fix was in, but within 3 weeks of his confirmation, Comey had appointed Fitzgerald, in defiance of the very regulations he had so recently cited. We'll never hear the Senator from New York claiming Comey duped him though, will we?

Schumer has apparently realized that outright repudiation of the the Special Counsel regs to keep things in the family may have been a slight miscalculation. He corrects course in his latest call for Special Counsel from "outside the Department of Justice," but make no mistake about it, special prosecutions are the family business, and once again, Comey is playing a significant part. The Deputy A.G. was desperately sprinting up those hospital stairs to prevail on a weakened A.G. Ashcroft even faster than the White House crew. These hearings were never about U.S. Attorneys; the underlying template is using the DoJ to hogtie its own Administration. Complaints about executive incursions are more than simply ironic.

Posted by Neo | July 29, 2007 6:57 PM

I'm beginning to believe that the only perjury on Capitol Hill was when the current crop of asshat Senators were shorn to "preserve, protect and defend the Constitution of the United States".

They should relish their 14% rating, cause it ain't gonna last long.

Reid is a failed statesman.

Posted by Ray | July 29, 2007 8:00 PM

"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

Running a data mining program in and of itself is not problem. It depends on what information the database contains and how it was acquired that could be a potential problem. For example, the NSA using a database that is comprised of data collected domestically and contains information solely of domestic nature.

If the NSA ran a data mining program on a database contain data that was collect domestically by another entity like the FBI but did not contain information of domestic nature, like the telephone numbers of American citizens or recordings of domestic surveillances for example, I don't see a problem.

If the FBI compiled a database of information it collected domestically about foreign contacts, say, that the FBI gained through the surveillance of someone here in the US, that information could be shared with the NSA and the NSA could use that without conflict as long as no additional information was provided, like the name or domestic location of the person under surveillance.

imagine what would be involve in determining if the NSA improperly used information collected domestically. Since these types of database can be huge, I would not want to be an investigator who must view that data to determine if any department has violated their mandate as to what information they can collect or how it can be collected. Imaging having to review just 20 or 30 megs of data of FBI interviews, for example. That doesn't sound like much fun.

Posted by JEM | July 29, 2007 11:00 PM

I would not be surprised to find that when it comes to data mining, that quite simply the NSA would have the skills and the tools and the budget to do the job and the FBI would not.

Posted by Christoph | July 30, 2007 4:37 AM

Captain, I'm a great fan, but there was one critical part of your post that was 100% inaccurate and it's an important point:

"The NSA would not need to "data mine" communications they have already intercepted; they would know exactly what was in them."

On the contrary. NSA collects massive amounts of information and one of their biggest challenges is analyzing and, for that matter, data mining it.

Data mining is going through it manually or in an automated fashion and tabulating it in some type of useful format for analysts to access.

Mere collection of data - and NSA collects reams of it - does not mean they know exactly what's in it.

It's a key part of understanding how NSA and signals intelligence works.

Posted by Tiptree | July 30, 2007 2:32 PM

Folks, data mining isn't at all like what has been described here. In a nutshell, data mining involves searching VAST amounts of data with algorithms that seek to detect patterns in those data. What emerges isn't necessarily details like individual phone numbers, but information -- like previously unsuspected correlations between data -- that isn't readily obvious to even experienced analysts. Once the patterns emerge, then forensic analysis can be done to drill down to details, but the data mining itself operates 'above' the sea of detail...

Posted by Tully | July 30, 2007 8:18 PM

What Tiptree said. Social network analysis using meta-data.