'04 dispute haunts attorney general

The Baltimore Sun

WASHINGTON -- A 2004 dispute over the National Security Agency's secret surveillance program that led top Justice Department officials to threaten resignation involved computer searches through massive electronic databases, according to current and former government officials briefed on the program.

It is not clear why the database searches, known as data mining, raised such a legal debate. But such databases, compiled by American companies and stored in the United States, contain records of the phone calls and e-mail messages of millions of Americans. Their examination by the government raises privacy issues.

The NSA's data mining has previously been reported. But the disclosure that concerns about it figured in the March 2004 debate helps to clarify the clash last week between Attorney General Alberto R. Gonzales and senators who accused him of misleading Congress and called for a perjury investigation.

The clash in 2004 culminated in a showdown in the hospital room of then-Attorney General John Ashcroft, where Gonzales, the White House counsel at the time, and Andrew H. Card Jr., the White House chief of staff, unsuccessfully tried to get Ashcroft to sign a reauthorization for the NSA program.

Gonzales insisted in testimony before the Senate last week that the 2004 dispute had not involved the Terrorist Surveillance Program, which he defined as the interception of phone calls and e-mail messages in and out of the United States involving people associated with al-Qaida. He said the fight involved "other intelligence activities."

Because the dispute chiefly involved the NSA's use of databases rather than eavesdropping, Gonzales' defenders might maintain that his narrowly crafted answers last week and in previous testimony, while legalistic, were technically accurate.

But members of the Senate Intelligence Committee, who have been briefed on the program, called the testimony deceptive.

"I've had the opportunity to review the classified matters at issue here, and I believe that his testimony was misleading at best," said Wisconsin Democratic Sen. Russ Feingold, who joined three other Democrats on Thursday in calling for a perjury investigation of Gonzales. "This has gone on long enough. It is time for a special counsel to investigate whether criminal charges should be brought."

The senators' comments, along with those of other members of Congress briefed on the program, suggested that they considered the eavesdropping and data mining so closely tied that they were part of a single program. Both activities, which ordinarily require warrants, were started without court approval as the Bush administration intensified counterterrorism efforts after the Sept. 11 attacks.

A half-dozen officials and former officials interviewed for this article would speak only on the condition of anonymity, in part because unauthorized disclosures about the classified program are already the subject of a criminal investigation. Some of the officials said the 2004 dispute involved other issues in addition to the data mining but would not provide details. They would not say whether the differences were over how the databases were searched or how the resulting information was used.

Nor would they explain what modifications to the surveillance program President Bush authorized to head off the threatened resignations by Justice Department officials.

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