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Data Mining Figured In Dispute Over NSA
Report Links Program to Gonzales Uproar

By Dan Eggen and Joby Warrick
Washington Post Staff Writers
Sunday, July 29, 2007

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."

Although the NSA's data mining efforts have been reported previously, neither Bush nor his aides have publicly confirmed that, in connection with the surveillance program, the agency had combed through phone and e-mail records in search of suspicious activity.

Nor have officials publicly discussed what prompted the legal dispute between the White House and the Justice Department.

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.

The White House, the Justice Department and the Office of the Director of National Intelligence declined to comment last night. Calls placed to the NSA, which collected and analyzed the data, were not returned.

The warrantless surveillance program, which was authorized by presidential order after the Sept. 11, 2001, attacks, was first revealed publicly by the Times in December 2005. Bush confirmed aspects of the program at that time, defining it as monitoring communications between the United States and overseas in which one party was suspected of ties to al-Qaeda.

The Washington Post reported in February 2006 that the NSA targets were identified through data mining efforts and that thousands of Americans had been monitored. USA Today later reported that the government had the help of telecommunications companies in collecting millions of phone records.

The practice of sifting through mountains of privately collected data on phone calls and Internet communications raises legal issues. Although the contents of calls and e-mails are protected, courts have ruled that "metadata" -- basic records of calls and e-mails kept by phone companies -- are not.

Some privacy advocates contend that the Bush administration should disclose how it has used metadata and explain the legal justifications.

"The administration is creating unbelievable amounts of distrust and confusion by not coming forward and giving us its interpretation of the law," James Dempsey, policy director for the Washington-based Center for Democracy and Technology, said yesterday. "Instead, it is dribbling out bits of information and partial justification. It's a crazy way to run a war on terror."

Dempsey noted that Bush is pressing Congress for changes in the Foreign Intelligence Surveillance Act, which governs clandestine spying in the United States. Bush voiced that call again yesterday in his weekly radio address.

"The administration is asking Congress to make changes in FISA law without first coming clean on what they've been doing for the last five years," Dempsey said.

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.

In March 2004, James B. Comey, who was acting attorney general, warned the White House that the Justice Department could not certify the legality of the intelligence activities at issue. That prompted Gonzales, the White House counsel at the time, to accompany then-White House Chief of Staff Andrew H. Card Jr. to Ashcroft's bedside, seeking his approval of the program. Ashcroft rebuffed the two men. Comey testified about the episode to the Senate earlier this year.

Staff writer John Solomon contributed to this report.

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