1 Boring Old Man

When and To What Degree Was John Ashcroft Read Into the Illegal Surveillance Program?
By emptywheel
July 12, 2009

Ashcroft Claims He Wasn’t Fully Briefed on Data Mining Aspects of Program

That all addresses when Ashcroft was read into the program–but not what he learned. At least according to Ashcroft, he was never fully briefed on what are presumably the vacuuming and data-mining aspects of the program [we know this because of all the leaks that make it clear that data mining was the primary issue behind the March 10 confrontation] until after Philbin and Goldsmith replaced Yoo. The IG Report explains:

In a May 20, 2004 memorandum, Ashcroft wrote that it was not until Philbin and later Goldsmith explained to him that aspects of the NSA’s Other Intelligence Activities were not accurately described in the prior Authorizations that he realized that he had been certifying the Authorizations prior to March 2004 based on a misimpression of those activities.

The IG Report reinforces Ashcroft’s point here. It says that Yoo’s memos left out details on the Other Intelligence Activities that were part of the program.

Yoo also discussed in his memoranda the legal rationale for Other Intelligence Activities authorized as part of the PSP. To the extent that particular statutes might appear to preclude these activities, Yoo concluded that "we do not believe that Congress may restrict the President’s inherent constitutional powers, which allow him to gather intelligence necessary to defend the nation from direct attack." However, as detailed in Chapter Three of the DOJ OIG report, Yoo’s discussion of some of the Other Intelligence Activities did not accurately describe the scope of these activities. Yoo’s factual description of these activities was later identified by his successors in the Office of Legal Counsel and ODAG in late 2003 as insufficient and presenting a serious impediment to recertification as to form and legality.

Given that these "Other Intelligence Activities" are almost certainly the data mining and vacuuming parts of the program, it’s not just FISA that Yoo was blowing off here; it was also the Electronic Communication Protection Act and the Wiretap Act. And, by the time Philbin and Goldsmith discovered the discrepancy between what Yoo had described and what was actually being done, it also violated Congress’ explicit prohibition in the 2004 Defense Appropriations Law against DOD conducting such activity. All of which seems to explain the issues behind Ashcroft’s bring read in on the program. He wasn’t involved in the initial discussions about the program [John Yoo may or may not have been]. And from that point going forward, he took his understanding of the program from Yoo’s description of it–which left out key details about the data mining and vacuum side of things.

"Other Intelligence Activities" apparently means data-mining. As I understand it, data-mining means something like profiling. Look for all calls that have these words in them. I suppose that it’s like Googling, except the database is "all calls." The point is that our laws require "probable cause" for wiretaps or warrants. The results of a data-mining operation are so general that they fall way outside the definitions of "probable cause." So, why all the secrecy and subterfuge? Simple answer – it’s because what they’re doing is illegal under our Constitution’s Bill of Rights:

Article the sixth… The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.