New details may explain Gonzales' testimony

WASHINGTON — A 2004 dispute over the National Security Agency's secret warrantless domestic eavesdropping 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 known why searching the databases, known as data mining, raised such a furious legal debate. But such databases, compiled by U.S. companies, contain records of the phone calls and e-mails of millions of Americans. Although the databases do not include the content of the calls and messages, their examination by the government can raise privacy issues.

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

The 2004 clash culminated in a showdown in the hospital room of Attorney General John Ashcroft, where then-White House counsel Gonzales and then-chief of staff Andrew Card unsuccessfully tried to persuade 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 so-called terrorist surveillance program, or TSP, which he defined as the interception of phone calls and e-mails 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 NSA use of databases, rather than eavesdropping, Gonzales' defenders may maintain that his narrowly crafted answers last week and in previous testimony, while legalistic, were technically correct.

But Senate Intelligence Committee members 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 Sen. Russ Feingold, D-Wis., joining three other Democrats in calling Thursday 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 soon 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 already are 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 eavesdropping program President Bush authorized to head off the threatened resignations by Justice Department officials.

An agency spokesman declined to comment on the data-mining issue.

The Justice Department said in January that eavesdropping without warrants under the program had been halted and that a special intelligence court again was overseeing the wiretapping.

The NSA, the nation's largest intelligence agency, generally eavesdrops on communications in foreign countries. Since passage of the Foreign Intelligence Surveillance Act(FISA) in 1978, any eavesdropping to gather intelligence on U.S. soil has required a warrant from the special court.

Court approval also is required for the NSA to search telephone or e-mail databases, usually assembled by phone and Internet companies and including phone numbers or e-mail addresses, as well as dates, times and duration of calls and messages. Sometimes called "metadata," such databases do not include the content of phone calls or e-mails.

Government examination of these records is considered less intrusive than eavesdropping.

But the NSA's eavesdropping targeted international calls and e-mails of people inside the United States, while the databases primarily contain domestic records. The 2004 conflict appears to have turned on differing interpretations of the president's power to bypass the FISA law and obtain access to the records.

Bush has asserted that his constitutional powers as commander in chief and the authorization for the use of military force passed by Congress after the Sept. 11 attacks gave him legal justification for skirting the warrant requirement. Critics have called the surveillance illegal because it does not comply with the FISA law.

The first known assertion by administration officials that there had been no serious disagreement within the government about the legality of the NSA program came in talks with New York Times editors in 2004. In an effort to persuade editors not to disclose the eavesdropping program, senior officials repeatedly cited lack of dissent as evidence of the program's lawfulness.

In December 2005, The New York Times published articles describing the program, the data mining and the internal legal debate. The newspaper reported that NSA had combed through large volumes of telephone and Internet traffic in search of patterns that might point to terrorism suspects.

Civil-liberties groups, congressional Democrats and some Republicans reacted with outrage, accusing the administration of operating an illegal surveillance program inside the United States. The uproar grew when USA Today reported in May 2006 more details of the NSA's acquisition from telephone companies of the phone-call databases.

In response, Bush confirmed the eavesdropping, saying it was limited to communications in and out of the United States involving people suspected of ties to al-Qaida. He did not confirm the data mining, nor has any other official done so publicly.

Gonzales defended the surveillance in an appearance before the Senate Judiciary Committee in February 2006, saying there had been no internal dispute about its legality.

By limiting remarks to "the program the president has confirmed," Gonzales skirted acknowledgment of heated arguments over data mining. He said the Justice Department had issued a legal analysis justifying the eavesdropping program.

Bush and other officials also have repeatedly cited Justice Department reviews as evidence of their care in overseeing the program, never mentioning the conflict that had unfolded behind the scenes.

Gonzales' 2006 testimony went unchallenged publicly until two months ago, when James Comey, the former deputy attorney general, described the March 2004 confrontation to the Senate Judiciary Committee.

Comey had refused to sign a reauthorization for the NSA program when he was standing in for then-Attorney General John Ashcroft, who was hospitalized for gallbladder surgery.

Comey described an intense fight that prompted top Justice Department officials to consider resigning in protest. Gonzales and Card visited the bedside of Ashcroft, who was in pain and under sedation, to seek his signature on the reauthorization.

Ashcroft refused to do so. Comey testified that he thought the White House officials were trying to take advantage of a sick man.