Marty Lederman hypothesizes about the nature of the original NSA program in an exceptionally thorough and legally taut post. It's far, far too long to fully run through, so read the whole thing. The big takeaway is here, though:
[T]his is to my mind the most likely possibility -- the legal problem wasn't the data mining itself, but instead that the uses of the data that were mined violated FISA. The Times story hints at this -- that perhaps it was not so much the data mining itself, but instead what what NSA did with the mined data, that caused the legal uproar: "Some of the officials said the 2004 dispute involved other issues in addition to the data mining, but would not provide details. They would not say whether the differences were over how the databases were searched or how the resulting information was used."
Here's the theory, roughly:
There was some sort of data mining program going on. Probably not of content, almost certainly not content reviewed by humans. That is to say, it involved computers searching through "meta-data" related to calls and e-mails, looking for certain patterns that might suggest connections to Al Qaeda or to suspicious activitiy that might be terrorism-related. (I have my theories as to what the programs might have been looking for, but don't want to get into such speculation in this forum. And in any case, my theories are probably way off.)
This data-mining indicated that it might be valuable to do more targeted searches of particular communications "pipelines" (John Yoo's phrase), looking for more specific information. But that's where FISA came in. In order to target a particular U.S. person, or to wiretap a particular "facility," FISA requires that the NSA demonstrate to the FISA court probable cause to believe (i) that the target of the electronic surveillance is a foreign power or an agent of a foreign power, and (ii) that each of the facilities or places at which the electronic surveillance is directed is being used, or is about to be used, by a foreign power or an agent of a foreign power. 50 U.S.C. 1805(a)(3).
Perhaps, as John Yoo suggests in his book, FISA would have prohibited following up on the leads revealed by the data mining with more targeted wiretaps of suspicious "channels" or "pipelines," "because we would have no specific al Qaeda suspects, and thus no probable cause."
I think what happened is that the data mining revealed something that the NSA, with DOJ's blessing, followed up on, perhaps using quite long and attenuated "connections" (e.g., phone calls and e-mails three degrees of separation removed) -- what Risen and Lichtblau's original story referred to as "an expanding chain" -- and this follow-up surveillance involved purely domestic communications, as well as communications of persons for whom there was no probable cause to believe they were Al Qaeda agents. Further speculation, with links to plenty of other bloggers, here.) If this is corerct, then it was the follow-up surveillance, not the data mining, that was the legal problem -- it didn't satisfy FISA because whatever it was NSA learned from the data mining, it was something far short of probable cause that all the subsequent targets were agents of Al Qaeda. And OLC concluded that Article II did not justify disregarding FISA.
And that's why the cover-up. Here's where Marty and I part company, though:
Unfortunately, most of the reaction to the Times story is about the question of whether it helps or hurts the allegations that the Attorney General lied to Congress. Folks, really, that's a sideshow. Of course he tried as much as possible to deceive the Congress, in numerous respects, including in order to keep them from discovering what Comey bravely and responsibly revealed. No one -- no one -- still thinks that Gonzales's testimony is at all valuable or relevant, or ever has been, for purposes of informing Congress about anything. For goodness sake, when Newt Gingrich and Jonah Goldberg and Orrin Hatch and Jeff Sessions all think you're dishonest, well . . . there isn't a single issue on which there is more consensus in America than whether Alberto Gonzales is trustworthy and has been a truthful Attorney General.
This is fairly odd reasoning for a few reasons, I think. There are a number of good reasons to go after Gonzales for perjury, not least of which is that that's perhaps the only ways we'll ever learn exactly what the NSA and DOJ were up to. But there are other, more important things at stake here. These past two weeks, we've been in the midst of something truly unprecedented, watching fairly helplessly as the Bush administration tap dances on the wrong side of its Constitutional limits. If we're trying to make sure the country never goes down this road again, I can think of no worse strategy than ignoring (or leaving the press alone to discover) the illegal steps Bush and Gonzales have taken to cover up its also-illegal underlying activities.
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