The NSA thing. Or things. Is it one thing or two?

The NSA is the world's toughest nut to crack, and this small blog ain't gonna pry it wide open. Nevertheless, we must try. An NSA program of some sort is at the heart of the Gonzales testimony -- testimony which has even Nancy Pelosi talking impeachment.

Talking Points Memo offers the best brief summary I've seen:

The most recent controversy about Alberto Gonzales telling lies centers on the apparent contradiction between his sworn testimony and that of FBI Director Robert Mueller. Gonzales and his partisans appear to be basing their defense of the AG on the notion that there's a narrow, semantical distinction about what constitutes the 'terrorist surveillance program' that gets him off the hook for perjury. And there's even some lingering question about whether Mueller really said what he appeared to say in his congressional testimony.

Josh Marshall then goes on to quote an NYT piece which quotes an FBI official who says that, yep, Mueller meant it.

This is no small matter. What is this "terrorist surveillance program"? Many aver that this term was an after-the-fact label designed to rationalize a staggering advance in NSA capabilities. We know this:

1. Whatever this program is, Bush says that it targets terrorists and only terrorists.

2. Gonzales says that the program at the heart of the bizarre race-to-the-hospital scenario was something other than what the president talked about.

3. Mueller says no, it's the same thing.

This contradiction mirrors another one, which arises from the gnomish hints offered by Russell Tice, the NSA whistleblower widely labeled a source for the original New York Times story uncovering the warrantless wiretap program.

I am now given to understand that Tice was not the source for that story (or at least not the main source) and that Tice is out to blow the whistle on something different.

Just what is this program? Are we talking about one program or two?

Were the Bushies spying on political opponents, as many believe? Or did the controversy have something to do with advance knowledge of the Madrid bombings -- which occurred the day after the hospital confrontation?

I'll tell you what I know after the jump...

(To read the rest, click "Permalink" below)

From lukery's new blog, Monosyllabic Fish:

The thing is, Russ Tice tried to tell Congress about some of the NSA's illegal and unconstitutional spying programs and not a single person in congress had sufficiently high clearance to hear what Tice had to say - not even the Chairs of the Senate or House Intelligence Committees.

In fact, it's not apparent that the Attorney General is even clued into the program. And Tice even has doubts as to whether your Ostensible President has any idea what was going on. It's no wonder that they all find themselves tripping the linguistic fantastic.

And:

Yes, we all acknowledge that they have the technical capability to spy on whoever they want, whenever they want - and we all acknowledge that they have no respect for any laws (or, at least, that they can justify anything to themselves so long as we are 'at war.') And yes, we all know about Echelon - but Tice seems to be talking about something that is revolutionary, not incremental.

From Tice's interview with Reason Magazine:

REASON: You're referring to what James Risen calls "The Program," the NSA wiretaps that have been reported on?

Tice: No, I'm referring to what I need to tell Congress that no one knows yet, which is only tertiarily connected to what you know about now.

"Tertiarily." A coinage like still doesn't give us much of an answer to the "one thing or two" question, or how the two things might connect.

Tice does offer this clue as to nature of the Mother of All Eavesdropping Programs (or MAEP -- and yes, I really must break this habit of coining new acronyms):

I've thought about this for a while, and as I said, I can't tell you how things are done, but I can foresee it, especially with what we've seen now. We're finding out that NSA conducted surveillance on U.S. citizens. And FISA could have been used but wasn't, was sidestepped. No one even made the attempt to see if they had a problem they could have fixed through FISA.

That would lead one to ask the question: "Why did they omit the FISA court?"

I would think one reason that is possible is that perhaps a system already existed that you could do this with, and all you had to do is change the venue. And if that's the case, and this system was a broad brush system, a vacuum cleaner that just sucks things up, this huge systematic approach to monitoring these calls, processing them, and filtering them—then ultimately a machine does 98.8 percent of your work. What you come out with from a haystack is a shoebox full of straw. Once you have that, you have people that can look at it.

Now here's an interesting question: If this approach was used, and hundreds of thousands if not millions of communications were processed in that manner, and then if and when the truth ever came out, a lawyer—and I think lawyers are going to be arguing semantics in this case—the argument could be made, well, if a machine was doing the looking and the sucking in, it doesn't matter because that's not monitoring until a human looks at it.

Now, when Tice talks about "foreseeing" something, he really means "I need to use a semantic dodge in order to stay out of trouble."

What we are talking about is, I believe, an already-existent system which sucks in everything: All landline phone calls, all cell phone calls (although many argue that VOIP is still secure), all email, all driver's license information, all transaction records, all credit histories. Everything. From everyone.

The MAEP scoops it all up. Data-mining techniques winnow it down.

Here's where I disagree with lukery. Of course Gonzales and Bush know about this. Cheney must too -- he seems to have been the primary instigator of the rush to the hospital.

So what was the rush about?

They cannot have been worried about the very existence of the MAEP. It has been around for a while, methinks. So their concern must have been how the data was used -- and who was the target.

The ill Ashcroft wanted no part of it. He was obviously glad to have been out of the hot seat, glad that the decision to sign off on the thing rested with acting AG James Comey. Ashcroft, Mueller and Comey were ready to resign en masse over this issue.

Picture two teams pitted against each other: Ashcroft, Mueller and Comey on one side; Gonzales, Cheney, Bush and Andy Card (and Rove?) on the other. Somewhere in the middle is the MAEP.

Cheney felt that the decision could not be put off until Ashcroft got out of the hospital. The hospital incident took place on March 10, 2004.

The crisis in March 2004 stemmed from a review of the program by the Justice Department's Office of Legal Counsel, which raised "concerns as to our ability to certify its legality," according to Comey's testimony. Ashcroft was briefed on the findings on March 4 and agreed that changes needed to be made, Comey said.

Then came Ashcroft's illness and, on March 10, the mad rush to the hospital room, as Alberto Gonzales and Andy Card tried to get the gravely ill non-acting A.G. to sign off on the program. Robert Mueller called up the security guys protecting Ashcroft and told them that no matter what Gonzales or Card did or said, Comey was not to be kept out that room. Ultimately, Ashcroft told Cheney's henchmen that Comey was the acting AG and that he, Ashcroft could do nothing. (In this case, I think we can presume that "could" means "would.")

Ashcroft left office, for reasons still not fully understood, in February of 2005. You-know-who replaced him.

So what made the NSA program a matter of such dire concern on the might of March 10-11?

In the past, I've offered the opinion that the Mother of All Eavesdropping Programs was being used to spy on political opponents. I still have strong suspicions along those lines. However:

The next day, as terrorist bombs killed more than 200 commuters on rail lines in Madrid, the White House approved the executive order without any signature from the Justice Department certifying its legality. Comey responded by drafting his letter of resignation, effective the next day, March 12.

Comey was persuaded to stay after Bush promised unspecified changes to the law.

Could the race to the hospital have had any connection to the Madrid bombings? Did the Bush administration have advance warning of the plot?

One would have thought that, after Risen's article came out, the Bushies would have used Madrid as a propaganda point: "We could have prevented tragedy in Spain," that sort of thing. But they never made any real attempt to sound that note, although Gonzales did make a brief en passant mention of Madrid during his testimony.

On the other hand, if the Bushies were (say) spying on John Kerry, Comey probably would have so testified -- if, in fact, Comey knew. It may be that Comey had suspicions but did not know.

So. What was going on?

I've given you all the pieces of the puzzle we have at present. We seem to have maybe twenty pieces of a 200-piece puzzle. What kind of a picture is forming?