Do we really understand the scope of the administration's warrantless wiretapping program?

We've already written a number of times about the new book by New York Times reporter Eric Lichtblau. And on Tuesday, I interviewed Lichtblau, who began reporting on the administration's wireless wiretapping program back in 2004 and won the Pulitzer Prize along with James Risen for breaking the story in December of 2005.

Among other things, I got him to walk me through what we do and don't know about the program. How broad was the surveillance? What does the NSA's massive data mining project have to do with the warrantless wiretapping? And does Lichtblau suspect that his own phone has been tapped?

Lichtblau also responded to Rep. Jane Harman (D-CA), who posted at TPMcafe on Monday of this week. Harman was in turn responding to a passage in Lichtblau's book, where he writes that when he approached Harman in 2005 about the administration's then-still-secret warrantless wiretapping program, she'd shushed him and told him that The New York Times did the right thing by not publishing the story in 2004. Beginning in February of 2003, Harman was a member of the so-called "gang of eight," the eight lawmakers, four Republicans and four Dems, who were briefed on the surveillance program.

Harman didn't dispute his account, but did take issue with his characterization that her position on the program underwent "a dramatic transformation" after the Times broke the story. She wrote in her post that she'd been completely in the dark that the program had involved wiretapping without warrants.

To which, Lichtblau responds below:

I think that assertion was consistent with what we’ve heard, that these briefings were very limited, very carefully crafted, that they were only told a certain amount about the program and given sort of a filtered view of it. I believe all that much is true.

I guess the next question is why the gang of eight were willing to settle for that....

I’m not saying the program shouldn’t have continued, but it’s one thing for four members of Congress to know what they were approving and to say, okay. It’s another thing to say we had no idea, then to allow this to continue for five years.

The full interview is below. TPM research hound John Amick provided the transcription.

Question: Tell me if the following is accurate. I'm going to attempt to describe the administration’s secret surveillance program as it was before the Comey/Goldsmith-led insurrection in March of 2004 [I'm referring to James Comey, the former deputy attorney general and the former chief of the Department's Office of Legal Counsel Jack Goldsmith. Comey agreed with Goldsmith's determination that the Department could not continue to authorize the program, a decision that culminated in the showdown by Attorney General John Ashcroft's hospital bed.]

It’s hard to talk about the program generally because there have been different iterations of it -- like for instance there’s one, after 9/11 and before March 2004. Then there was that iteration of the program, I suppose, from March of 2004 through January 2007 when [the administration] finally brought it under the jurisdiction of the FISA court. This description also owes something to the description Siobhan Gorman had in her recent Wall Street Journal piece. So, here goes:

The NSA, since shortly after 9/11, ran a massive data mining operation that involved both domestic and international data. That data comes from information collected by the Departments of Justice (the FBI, via things like National Security Letters), Homeland Security and Treasury. That massive NSA database produced leads, which were investigated by the FBI, but it also led to wiretapping done without warrants, bypassing the FISA court.

Lichtblau: I think that’s essentially correct, that in the earliest iteration of the program, it was a massive data-mining operation, and the hottest leads would be followed up through warrantless wiretaps. Those that were less urgent would be the subject of FBI investigations, data-tracing, but not necessarily content wiretaps.

Question: Was the relationship between the data mining and the warrantless wiretapping always that way? Or did the wiretapping also come straight from people fingered by the CIA?

Lichtblau: That is one of the questions we still to this day are trying to get our arms around: exactly what the relationship was between the broader program and the wiretapping itself.

We wrote the story very early on in December 2005, just a few weeks after our initial story described this for the first time as part of a massive data-mining operation. And General Hayden, in a speech before the National Press Club, was quick to say that those two programs are not directly related, that was the essence of his quote.

The administration has never clarified what that relationship was. Clearly A did get them to B. Exactly how they used, and continue to use, the broad data-mining to get to the wiretapping is still something of a mystery. But we believe that is the core of what led to the hostile confrontation in 2004 at Ashcroft’s bedside, because aspects of the program related to the data-mining were found to be particularly problematic and illegal by Jack Goldsmith’s office at OLC, as I described in the book.

I quoted one senior official as saying that they were doing a number of different, 10 different aspects of the same generalized program, the same NSA program, and stopped doing several aspects of that program because of those concerns. We don’t know exactly what those elements were that they stopped doing, but it’s clear that there were portions of the program that were ended.

Question: Do you have a sense of whether those wiretaps done without a warrant were of a narrow group? Was it really just of those with Al Qaeda ties? I mean, was it a narrow subset of leads that led to the warrantless wiretapping?

Lichtblau: Those were the ones that the NSA considered the hottest leads. Now, whether or not those were really valid and whether or not those really led you to someone with legitimate ties to al-Qaeda is very debatable.

We have published a couple of example of cases that appeared to grow out of the NSA program that were real terrorist ties, although some of those were disputed by intelligence officials. There were certainly others, including some I published in the book, that appear completely unconnected to terrorism: a doctor in Kenucky whose medical specialty might or might not have been of interest to bin Laden. Things like that, where there does not appear to have been a legitimate nexus to terrorism.

The problem with the program from the view of many within the administration was that there were very few controls at the outset of the program form 2001 to 2004 that guided how the NSA determined whether someone was considered to have ties to al-Qaeda.

How did the shift manager go about determining if there was legal probable cause to wiretap someone without a warrant? In essence you had the shift supervisor acting in a role that used to be performed by an FBI intelligence agent, a lawyer at the Justice Department’s Office of Intelligence and Policy Review and, ultimately, the FISA court.

So there was little in the way of firm guidelines of how that kind of determination was made. And to this day, there has not been an independent review done by any agency or outside body to really look at this, to determine if there were abuses. That’s one thing that’s called for in current legislation before Congress: an independent Congressional review with subpoena power to look at the operations of the program.

Question: After the hospital showdown [in 2004], you mention in the book that there was an internal audit [of the warrantless wiretapping]. Was that actually done?

Lichtblau: There appears to have been a limited audit. [The Justice Department] looked at a small sampling of cases and did not appear to find any abuses, but the one thing they did do was to put into place a formalized checklist which established how the NSA went about determining if someone was connected to al-Qaeda and should be subjected to warrantless wiretapping. That was a checklist of 18 or 20 criteria that were used, and that was the first time a formal, expanded list was put into place.

Question: You write in the book that James Risen grew wary of speaking over the telephone, believing that his telephone was tapped. Did you ever have that sort of fear?

Lichtblau: I certainly thought his concerns were reasonable. I wasn’t trying to suggest he was just being paranoid. I think we both have reason to be careful when you have FBI leak investigators out there. I’m certainly careful about what I say.

Question: Lawrence Wright has written in his New Yorker piece on McConnell that…

Lichtblau: Yes, a conversation involving his daughter. [FBI agents from the Joint Terrorism Task Force showed up at Wright’s door and asked him about calls made to a lawyer in England who represented several jihadis. They told him they believed his daughter had made the calls, but her name “is not on any of our phones,” Wright wrote. – ed]

Question: Has anything like that happened to you?

Lichtblau: Nothing quite that explicit, but I certainly wouldn’t be surprised.

Question: A more general question. Having done all the reporting you’ve done, do you feel like you understand, with a reasonable amount of confidence, what the program was?

Lichtblau: I think we understand the basic outlines, but there are certainly many, many details that we still don’t have answered. And I would not be at all shocked if a year, five years, ten years from now as the documents come out as this administration leaves office, we find out some of our core assumptions were completely wrong.

Some of the statements from Alberto Gonzales when he was attorney general certainly implied that much. When he was asked about other programs and not only refused to say whether certain things were allowed by presidential authority, but sort of implied that they were just by his silence, or his refusal to rule them out. He said “this program” did not include domestic to domestic monitoring. We have no idea if there was any other program out there.

Question: He kept saying “This program.”

Lichtblau: Yes, he kept coming back to that construction. So, I would not at all be surprised if a few years from now if we have a completely different understanding of what they were doing.

Question: Harman yesterday responded to the passage in your book where she advised you against running the story. I hope you got a chance to read it?

Lichtblau: Yes, I did. You stirred that whole pot there. I was intrigued by that because she didn’t really dispute anything.

Question: She says that she never knew that the wiretapping was done outside of FISA until the story ran. Does that wash for you?

Lichtblau: I think that assertion was consistent with what we’ve heard, that these briefings were very limited, very carefully crafted, that they were only told a certain amount about the program and given sort of a filtered view of it. I believe all that much is true.

I guess the next question is why the gang of eight were willing to settle for that. And, by their own admission, they adopted a very passive role in these briefings. There were very few points when any real questions were raised.

There was a certain point I talk about in the book where [Sen. Jay Rockefeller (D-WV), then the ranking member of the Senate intelligence committee] wrote a letter under lock and key that he sent to Dick Cheney raising concerns about this. There is no indication that that led to any firm changes beyond shaking things up a little bit. Speaker Pelosi, before she was speaker, wrote a similar letter, but limited briefings continued, the program continued.

I’m not saying the program shouldn’t have continued, but it’s one thing for four members of Congress to know what they were approving and to say, okay. It’s another thing to say we had no idea, then to allow this to continue for five years.

Question: And your assumption at the time, when you approached [Harman] outside that hearing to talk about this, was that the ranking member of the House intelligence committee knew what you were talking about?

Lichtblau: I certainly assumed that she had received at least a full enough briefing to know what it was they were participating in. So, yes, I figured the gang of eight was conducting its oversight role.