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US aides fought over data mining

Disclosure casts light on furor over AG's testimony

Members of the Senate Intelligence Committee called testimony by Attorney General Alberto R. Gonzales deceptive. Members of the Senate Intelligence Committee called testimony by Attorney General Alberto R. Gonzales deceptive. (DOUG MILLS/THE NEW YORK TIMES)

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

It is not known precisely why searching in the databases, known as data mining, raised such a furious legal debate, including a threat by top Justice Department officials to resign.

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. Though the databases do not include the content of the calls and messages, their examination by the government can raise privacy issues.

The National Security Agency'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 who called for a perjury investigation.

The clash in 2004 culminated in a showdown in the hospital room of Attorney General John D. Ashcroft, where Gonzales, White House counsel at the time, and Andrew H. Card Jr., White House chief of staff, unsuccessfully tried to get the ailing Ashcroft to sign a reauthorization for the National Security Agency 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 Qaeda. He said the fight involved "other intelligence activities."

Because the dispute chiefly involved the National Security Agency's use of databases, rather than eavesdropping, defenders of Gonzales may maintain that his narrowly crafted answers last week and in previous testimony were technically correct, although legalistic.

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 Senator Russ Feingold, Democrat of Wisconsin, 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 current 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 issues in addition to data mining, but would not provide details. They would not say whether the differences were over how the databases were searched or how 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.

A department spokesman declined to comment on the data-mining issue but referred a reporter to an earlier statement that Gonzales had testified truthfully.

In January, the Justice Department announced that eavesdropping without warrants under the Terrorist Surveillance Program had been halted and that a special intelligence court was again overseeing the wiretapping.

The National Security Agency, the nation's largest intelligence agency, generally eavesdrops on communications in foreign countries. Since passage of the Foreign Intelligence Surveillance Act in 1978, any eavesdropping to gather intelligence on US soil has required a warrant from the special court.

In addition, court approval is required for the National Security Agency to search the databases of telephone calls or e-mail records, 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. Such databases do not include the actual words spoken in phone calls or written in e-mail.

Government examination of the records allows analysts to trace relationships between callers and to identify possible terrorist cells and is considered less intrusive than actual eavesdropping.

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