I want to do several things with this post. First, I want to belatedly agree with lizard (partly) and Peter Swire: the program (or aspects of the program) to which Comey and Goldsmith and Philbin objected is different from the program that George Bush publicly acknowledged, the tapping of the domestic calls of people with six degrees of separation from bin Laden. Gonzales parsed too carefully for this not to be true.
SCHUMER: I concede all those points. Let me ask you about some specific reports.
It's been reported by multiple news outlets that the former number two man in the Justice Department, the premier terrorism prosecutor, Jim Comey, expressed grave reservations about the NSA program and at least once refused to give it his blessing. Is that true?
GONZALES: Senator, here's the response that I feel that I can give with respect to recent speculation or stories about disagreements.
There has not been any serious disagreement -- and I think this is accurate -- there has not been any serious disagreement about the program that the president has confirmed. There have been disagreements about other matters regarding operations which I cannot get into.
I will also say...
SCHUMER: But there was some -- I'm sorry to cut you off -- but there was some dissent within the administration. And Jim Comey did express, at some point -- that's all I asked you -- some reservations.
GONZALES: The point I want to make is that, to my knowledge, none of the reservations dealt with the program that we're talking about today. They dealt with operational capabilities that we're not talking about today. [my emphasis]
Next, I want to follow the lead of Anonymous Liberal in going back to the original reporting on the NSA program. The original NYT Risen-Lichtblau story on the program provides some clues as to why Comey objected.
Several senior government officials say that when the special operation began, there were few controls on it and little formal oversight outside the N.S.A. The agency can choose its eavesdropping targets and does not have to seek approval from Justice Department or other Bush administration officials.
In mid-2004, concerns about the program expressed by national security officials, government lawyers and a judge prompted the Bush administration to suspend elements of the program and revamp it.
For the first time, the Justice Department audited the N.S.A. program, several officials said. And to provide more guidance, the Justice Department and the agency expanded and refined a checklist to follow in deciding whether probable cause existed to start monitoring someone's communications, several officials said.
A complaint from Judge Colleen Kollar-Kotelly, the federal judge who oversees the Federal Intelligence Surveillance Court, helped spur the suspension, officials said. The judge questioned whether information obtained under the N.S.A. program was being improperly used as the basis for F.I.S.A. wiretap warrant requests from the Justice Department, according to senior government officials. While not knowing all the details of the exchange, several government lawyers said there appeared to be concerns that the Justice Department, by trying to shield the existence of the N.S.A. program, was in danger of misleading the court about the origins of the information cited to justify the warrants.
So presumably in Fall 2003, not long after Goldsmith comes to OLC, Kollar-Kotelly complains about the program. OLC then reviews the program and realizes NSA is tapping people without probable cause. Not long after this article, Bush admits to the six degrees of separation program, and for months afterwords, the discussion remains focused on that program.
But even in the first week after the Risen-Lichtblau scoop, they reveal other details, details which may reveal more about the part of the program that Comey objected to. As I pointed out last year, on a Saturday Christmas Eve, undoubtedly one of the days of the year when people read the news least closely, they snuck a story pointing to technical details in the paper. The article is clearly a response to Bush's claims about the program: Lichtblau and Risen's sources point out that the program is much more extensive than Bush has admitted to.
The National Security Agency has traced and analyzed large volumes of telephone and Internet communications flowing into and out of the United States as part of the eavesdropping program that President Bush approved after the Sept. 11, 2001, attacks to hunt for evidence of terrorist activity, according to current and former government officials.
The volume of information harvested from telecommunication data and voice networks, without court-approved warrants, is much larger than the White House has acknowledged, the officials said. It was collected by tapping directly into some of the American telecommunication system's main arteries, they said.
Since the disclosure last week of the N.S.A.'s domestic surveillance program, President Bush and his senior aides have stressed that his executive order allowing eavesdropping without warrants was limited to the monitoring of international phone and e-mail communications involving people with known links to Al Qaeda.
What has not been publicly acknowledged is that N.S.A. technicians, besides actually eavesdropping on specific conversations, have combed through large volumes of phone and Internet traffic in search of patterns that might point to terrorism suspects. Some officials describe the program as a large data-mining operation. [my emphasis]
Note, on January 1, Lichtblau and Risen publish the first account of the hospital meeting. This December 24 article comes between the December 16 story first revealing the NSA spying and the description of the hospital meeting in which Comey and Ashcroft objected to the program. So this revelation--given to Lichtblau and Risen in an attempt to explain that Bush was only admitting to part (the least damning part) of the program was clearly a key part of the program to which DOJ objected.
All of which suggests that Bush (and later Gonzales) revealed the six degrees of separation wiretapping, treating it as distinct from the data mining program, as a way of distracting from the more damning parts of the program.
There's something ironically revealing about this story: Kollar-Kotelly complained, partly, because she believed the government was shielding the existence of "the program" from her. But that's what appears to be going on now (and in the hearing on the NSA program). Bush is admitting the existence of a program tapping those with six degrees of separation from bin Laden as a way to shield this, the datamining program.
One final point. As I pointed out yesterday, Bush is still insisting on the authority to tap without a warrant even while discussing the six degrees of separation program. That is probably more of the same--a willingness to discuss and limit the more visible parts of the program, all the while ensuring that the Administration retains the ability to implement the larger, more heinous part of the program.
Hopefully, Schumer schedules Comey's closed door testimony to the SJC quickly so we can begin to put an end to all this fancy parsing.