Marty Lederman’s post on data-mining says what I’ve been trying to say for two years about the NSA program. Contrary to what the NYT and others suggest, we don’t have to look beyond data-mining to find something so horrible that a good conservative like James Comey would object. We just need to get to the point where the US is using data-mining of dubious connections to replace the idea of probable cause in a surveillance program.
Here’s the theory, roughly:
There wassome sort of data mining program going on. Probably not of content,almost certainly not content reviewed by humans. That is to say, itinvolved computers searching through "meta-data" related to calls ande-mails, looking for certain patterns that might suggest connections toAl Qaeda or to suspicious activitiy that might be terrorism-related. (Ihave my theories as to what the programs might have been looking for,but don’t want to get into such speculation in this forum. And in anycase, my theories are probably way off.)
This data-miningindicated that it might be valuable to do more targeted searches ofparticular communications "pipelines" (John Yoo’s phrase), looking formore specific information. But that’s where FISA came in. In order totarget a particular U.S. person, or to wiretap a particular "facility,"FISA requires that the NSA demonstrate to the FISA court probable causeto believe (i) that the target of the electronic surveillance is aforeign power or an agent of a foreign power, and (ii) that each of thefacilities or places at which the electronic surveillance is directedis being used, or is about to be used, by a foreign power or an agentof a foreign power. 50 U.S.C. 1805(a)(3).
Perhaps, as John Yoo suggests in his book, FISA would have prohibited following up on the leads revealed by the data mining with more targeted wiretaps of suspicious "channels" or "pipelines," "because we would have no specific al Qaeda suspects, and thus no probable cause."Â [Lederman’s bold, my italics]
And again, we can be sure that this is one of the things that was going on, because when Bush "confirmed" a program in December 2005–clearly aiming to confirm just that part of the program of undisputed legality–he stressed that the targets for wiretapping were people with clear ties to Al Qaeda. The problem was that the Administration was using data mining (already of dubious legality for reasons I’ll get into a second) as their basis for choosing targets to wiretap. They were therefore tapping people whose communication patterns–rather than their actions–suggested they might have terrorist ties.