Able Danger Blog

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Sunday, July 29, 2007

Able Danger and Alberto Gonzales

Ed Morrissey at Captain's Quarters sums it up better than I could:

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.