Today’s New York Times has an intriguing but frustratingly unclear story adding some details about the now-famous hospital confrontation over whether the recovering John Ashcorft would approve an NSA surveillance program despite Acting-AG James Comey’s conclusion that the program wasn’t legal. A few comments:
(1) The story says that the dispute “involved computer searches through massive electronic databases,” but that in itself is pretty useless. If information is collected and then analyzed, and then the fruits are used, there will always be a stage involving “computer searches through massive electronic databases.” Heck, Google queries are “computer searches through massive electronic databases.” The question is, what information was in the database? And what did the government do with the fruits of the searches?
(2) It sounds like the NSA Call Records program and the Terrorist Surveillance Program were designed to work together. The government would get the non-content records, run searches through them for patterns, and then conclude that certain patterns were sufficient to suggest that some people were bad guys and that the contents of their communications should be intercepted. The starting point would be the call records program, the end point the TSP. I gather the question of whether Gonzales’s testimony was misleading concerns where one program ends and the other begins.
(3) Presumably the authorization that Card & Gonzales wanted Ashcroft to sign was a 18 U.S.C. 2511(2)(a)(ii)(b) certification that the phone companies would have demanded before proceeding, which is “a certification in writing by . . . the Attorney General of the United States that no warrant or court order is required by law, that all statutory requirements have been met, and that the specified assistance is required.” But we still don’t know exactly what the legal issues were that were in dispute. I can come up with about 10 different theories, but I just don’t know which one is particularly likely to be right.
(4) I’m puzzled by the newspaper’s claim that searching a database of non-content call records disclosed by the phone companies requires a court order. It doesn’t in the criminal law context: the Wiretap Act only applies for contemporaneous acquisition, and once there is a proper disclosure under the Stored Communications Act the data can be searched without any legal restrictions. But I wonder, does FISA require a court order in that setting? Or maybe the government wasn’t relying on a voluntary disclosure theory? Or is the Times just getting this detail wrong? I’m not sure.
Marty Lederman has more thoughts at Balkinization.