Data Mining

In a significant development, both the New York Times and Washington Post are reporting tonight that the disagreement which prompted the showdown in John Ashcroft's hospital room in 2004 involved NSA data mining activities. This story was clearly leaked by sources friendly to Alberto Gonzales in an effort to push back against the growing consensus that he intentionally misled Congress regarding whether there was dissent within the DOJ as to the legality of the "Terrorist Surveillance Program."

This new revelation is obviously highly relevant to the perjury analysis in my previous post.

In a nutshell, the sources who are leaking to the Times and Post are defending Gonzales' claim that "there has not been any serious disagreement about the program that the president has confirmed" by claiming that the objections raised by James Comey, Jack Goldsmith, and other DOJ officials in 2004 related not to the Terrorist Surveillance Program, but to data-mining activities that the President has not yet confirmed. Therefore, the argument goes, Gonzales was not technically lying when he testified that the Ashcroft hospital episode was related not to the TSP, but to "other activities."

Let me start by pointing out what seems to be a flaw in this argument. For this defense to even arguably work, it has to be true that Comey and Goldsmith's objections were limited to data-mining activities and in no way pertained to any of the activities the President confirmed in December of 2005. But this graf from the Post piece seems to undercut that claim:

One source familiar with the NSA program said yesterday that there were widespread concerns inside the intelligence community in 2003 and 2004 over how much Internet and telephone data mining could occur, as well as about the NSA's direct intercepts of communications without court approval.

That last part, the concern over warrantless direct intercepts, certainly seems to relate to the activities the President disclosed. Moreover, if prior reporting is to be believed, Comey and Goldsmith's concerns had to do with the legal justification for operating outside of FISA. If that's true, then their concerns were not limited to data-mining, but applied to virtually everything the Bush administration was doing.

To resolve this, someone is going have to get James Comey, Jack Goldsmith, John Ashcroft, or someone else with direct knowledge of the controversy to testify in more depth about what the disagreement actually encompassed. I suspect that the answer to this question will not help Gonzales.

It's also worth pointing how breathtakingly hypocritical these leaks are. For years, the Bush administration has refused to acknowledge that it was involved in data-mining activities. When the USA Today reported in May 2006 that the administration was engaged in widespread data-mining, President Bush hastily convened a press conference in which he claimed that his administration was "not mining or trolling through the personal lives of millions of innocent Americans." He also noted angrily that "every time sensitive intelligence is leaked, it hurts our ability to defeat this enemy."

Now the existence of data-mining activities is being confirmed by anonymous administration officials--almost surely at the behest of the White House--solely in an effort to defend Alberto Gonzales from perjury charges. How typical of this administration.

I'll have more to say on this once I've had the time to gather my thoughts and read through some old press reports and administration comments. Stay tuned.