Uncovering terror cells is going to require us to maximize our technological advantages. One obstacle is FISA, the Foreign Intelligence Surveillance Act.

The New York Times recently revealed that a data mining program was the subject of the legal dispute that led to Albert Gonzales' famous hospital visit to then-AG John Ashcroft.  It was not the Terrorist Surveillance Program; rather, it had to do with the Able Danger data mining operation being conducted by the NSA.  It may have run afoul of FISA, the Foreign Intelligence Surveillance Act, and thus led to a dispute between DoJ and NSA (which comes under DoD) over which of the two entities of the Executive Branch should have jurisdiction over it. 

(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.

I think what happened is that the data mining revealed something that the NSA, with DOJ's blessing, followed up on, perhaps using quite long and attenuated "connections" (e.g., phone calls and e-mails three degrees of separation removed) -- what Risen and Lichtblau's original story referred to as "an expanding chain" -- and this follow-up surveillance involved purely domestic communications, as well as communications of persons for whom there was no probable cause to believe they were Al Qaeda agents. Further speculation, with links to plenty of other bloggers, here.) If this is correct, then it was the follow-up surveillance, not the data mining, that was the legal problem -- it didn't satisfy FISA because whatever it was NSA learned from the data mining, it was something far short of probable cause that all the subsequent targets were agents of Al Qaeda. And OLC concluded that Article II did not justify disregarding FISA.

Goldsmith reportedly insisted that the surveillance be justified based on the AUMF, which imposed two limitations:

a. First, on the view of the Court in Hamdi (later explained in much greater detail by Jack Goldmsith and Curt Bradley in their Harvard Law Review article on the AUMF), the AUMF only authorizes conduct that had historically been undertaken by the President in wartime. Roosevelt and other Presidents had intercepted overseas telegrams and other international communications; but there was no precedent for interception of wholly domestic communications without court approval.

b. Second, the AUMF itself requires a nexus to those responsible for 9/11 -- which is where the OLC [DoJ's Office of Legal Counsel, headed by Goldsmith] requirement came from that the communications involve at least one person in, or associated with, Al Qaede or related groups.

So OLC insisted these two criteria be satisfied in order to avoid FISA's strictures.