[Clips] Bush Secretly Lifted Some Limits on Spying in U.S. After 9/11, Officials Say

R. A. Hettinga rah at shipwright.com
Thu Dec 15 21:11:50 PST 2005

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 The New York Times

 December 15, 2005

 Bush Secretly Lifted Some Limits on Spying in U.S. After 9/11, Officials Say

  WASHINGTON, Dec. 15 - Months after the Sept. 11 attacks, President Bush
 secretly authorized the National Security Agency to eavesdrop on Americans
 and others inside the United States to search for evidence of terrorist
 activity without the court-approved warrants ordinarily required for
 domestic spying, according to government officials.

  Under a presidential order signed in 2002, the intelligence agency has
 monitored the international telephone calls and international e-mail
 messages of hundreds, perhaps thousands, of people inside the United States
 without warrants over the past three years in an effort to track possible
 "dirty numbers" linked to Al Qaeda, the officials said. The agency, they
 said, still seeks warrants to monitor entirely domestic communications.

  The previously undisclosed decision to permit some eavesdropping inside
 the country without court approval represents a major shift in American
 intelligence-gathering practices, particularly for the National Security
 Agency, whose mission is to spy on communications abroad. As a result, some
 officials familiar with the continuing operation have questioned whether
 the surveillance has stretched, if not crossed, constitutional limits on
 legal searches.

  "This is really a sea change," said a former senior official who
 specializes in national security law. "It's almost a mainstay of this
 country that the N.S.A. only does foreign searches."

  Nearly a dozen current and former officials, who were granted anonymity
 because of the classified nature of the program, discussed it with
 reporters for The New York Times because of their concerns about the
 operation's legality and oversight.

  According to those officials and others, reservations about aspects of the
 program have also been expressed by Senator John D. Rockefeller IV, the
 West Virginia Democrat who is the vice chairman of the Senate Intelligence
 Committee, and a judge presiding over a secret court that oversees
 intelligence matters. Some of the questions about the agency's new powers
 led the administration to temporarily suspend the operation last year and
 impose more restrictions, the officials said.

  The Bush administration views the operation as necessary so that the
 agency can move quickly to monitor communications that may disclose threats
 to this country, the officials said. Defenders of the program say it has
 been a critical tool in helping disrupt terrorist plots and prevent attacks
 inside the United States.

  Administration officials are confident that existing safeguards are
 sufficient to protect the privacy and civil liberties of Americans, the
 officials say. In some cases, they said, the Justice Department eventually
 seeks warrants if it wants to expand the eavesdropping to include
 communications confined within the United States. The officials said the
 administration had briefed Congressional leaders about the program and
 notified the judge in charge of the Foreign Intelligence Surveillance
 Court, the secret Washington court that deals with national security issues.

  The White House asked The New York Times not to publish this article,
 arguing that it could jeopardize continuing investigations and alert
 would-be terrorists that they might be under scrutiny. After meeting with
 senior administration officials to hear their concerns, the newspaper
 delayed publication for a year to conduct additional reporting. Some
 information that administration officials argued could be useful to
 terrorists has been omitted.

  While many details about the program remain secret, officials familiar
 with it said the N.S.A. eavesdropped without warrants on up to 500 people
 in the United States at any given time. The list changes as some names are
 added and others dropped, so the number monitored in this country may have
 reached into the thousands over the past three years, several officials
 said. Overseas, about 5,000 to 7,000 people suspected of terrorist ties are
 monitored at one time, according to those officials.

  Several officials said the eavesdropping program had helped uncover a plot
 by Iyman Faris, an Ohio trucker and naturalized citizen who pleaded guilty
 in 2003 to supporting Al Qaeda by planning to bring down the Brooklyn
 Bridge with blowtorches. What appeared to be another Qaeda plot, involving
 fertilizer bomb attacks on British pubs and train stations, was exposed
 last year in part through the program, the officials said. But they said
 most people targeted for N.S.A. monitoring have never been charged with a
 crime, including an Iranian-American doctor in the South who came under
 suspicion because of what one official described as dubious ties to Osama
 bin Laden.

 Dealing With a New Threat

  The eavesdropping program grew out of concerns after the Sept. 11 attacks
 that the nation's intelligence agencies were not poised to deal effectively
 with the new threat of Al Qaeda and that they were handcuffed by legal and
 bureaucratic restrictions better suited to peacetime than war, according to
 officials. In response, President Bush significantly eased limits on
 American intelligence and law enforcement agencies and the military.

  But some of the administration's antiterrorism initiatives have provoked
 an outcry from members of Congress, watchdog groups, immigrants and others
 who argue that the measures erode protections for civil liberties and
 intrude on Americans' privacy. Opponents have challenged provisions of the
 USA Patriot Act, the focus of contentious debate on Capitol Hill this week,
 that expand domestic surveillance by giving the Federal Bureau of
 Investigation more power to collect information like library lending lists
 or Internet use. Military and F.B.I. officials have drawn criticism for
 monitoring what were largely peaceful antiwar protests. The Pentagon and
 the Department of Homeland Security were forced to retreat on plans to use
 public and private databases to hunt for possible terrorists. And last
 year, the Supreme Court rejected the administration's claim that those
 labeled "enemy combatants" were not entitled to judicial review of their
 open-ended detention.

  Mr. Bush's executive order allowing some warrantless eavesdropping on
 those inside the United States  including American citizens, permanent
 legal residents, tourists and other foreigners  is based on classified
 legal opinions that assert that the president has broad powers to order
 such searches, derived in part from the September 2001 Congressional
 resolution authorizing him to wage war on Al Qaeda and other terrorist
 groups, according to the officials familiar with the N.S.A. operation.

  The National Security Agency, which is based at Fort Meade, Md., is the
 nation's largest and most secretive intelligence agency, so intent on
 remaining out of public view that it has long been nicknamed "No Such
 Agency.'' It breaks codes and maintains listening posts around the world to
 eavesdrop on foreign governments, diplomats and trade negotiators as well
 as drug lords and terrorists. But the agency ordinarily operates under
 tight restrictions on any spying on Americans, even if they are overseas,
 or disseminating information about them.

  What the agency calls a "special collection program" began soon after the
 Sept. 11 attacks, as it looked for new tools to attack terrorism. The
 program accelerated in early 2002 after the Central Intelligence Agency
 started capturing top Qaeda operatives overseas, including Abu Zubaydah,
 who was arrested in Pakistan in March 2002. The C.I.A. seized the
 terrorists' computers, cellphones and personal phone directories, said the
 officials familiar with the program. The N.S.A. surveillance was intended
 to exploit those numbers and addresses as quickly as possible, the
 officials said.

  In addition to eavesdropping on those numbers and reading e-mail messages
 to and from the Qaeda figures, the N.S.A. began monitoring others linked to
 them, creating an expanding chain. While most of the numbers and addresses
 were overseas, hundreds were in the United States, the officials said.

  Under the agency's longstanding rules, the N.S.A. can target for
 interception phone calls or e-mail messages on foreign soil, even if the
 recipients of those communications are in the United States. Usually,
 though, the government can only target phones and e-mail messages in this
 country by first obtaining a court order from the Foreign Intelligence
 Surveillance Court, which holds its closed sessions at the Justice

  Traditionally, the F.B.I., not the N.S.A., seeks such warrants and
 conducts most domestic eavesdropping. Until the new program began, the
 N.S.A. typically limited its domestic surveillance to foreign embassies and
 missions in Washington, New York and other cities, and obtained court
 orders to do so.

  Since 2002, the agency has been conducting some warrantless eavesdropping
 on people in the United States who are linked, even if indirectly, to
 suspected terrorists through the chain of phone numbers and e-mail
 addresses, according to several officials who know of the operation. Under
 the special program, the agency monitors their international
 communications, the officials said. The agency, for example, can target
 phone calls from someone in New York to someone in Afghanistan.

  Warrants are still required for eavesdropping on entirely
 domestic-to-domestic communications, those officials say, meaning that
 calls from that New Yorker to someone in California could not be monitored
 without first going to the Federal Intelligence Surveillance Court.

 A White House Briefing

  After the special program started, Congressional leaders from both
 political parties were brought to Vice President Dick Cheney's office in
 the White House. The leaders, who included the chairmen and ranking members
 of the Senate and House intelligence committees, learned of the N.S.A.
 operation from Mr. Cheney, Gen. Michael V. Hayden of the Air Force, who was
 then the agency's director and is now the principal deputy director of
 national intelligence, and George J. Tenet, then the director of the
 C.I.A., officials said.

  It is not clear how much the members of Congress were told about the
 presidential order and the eavesdropping program. Some of them declined to
 comment about the matter, while others did not return phone calls.

  Later briefings were held for members of Congress as they assumed
 leadership roles on the intelligence committees, officials familiar with
 the program said. After a 2003 briefing, Senator Rockefeller, the West
 Virginia Democrat who became vice chairman of the Senate Intelligence
 Committee that year, wrote a letter to Mr. Cheney expressing concerns about
 the program, officials knowledgeable about the letter said. It could not be
 determined if he received a reply. Mr. Rockefeller declined to comment.
 Aside from the Congressional leaders, only a small group of people,
 including several cabinet members and officials at the N.S.A., the C.I.A.
 and the Justice Department, know of the program.

  Some officials familiar with it say they consider warrantless
 eavesdropping inside the United States to be unlawful and possibly
 unconstitutional, amounting to an improper search. One government official
 involved in the operation said he privately complained to a Congressional
 official about his doubts about the legality of the program. But nothing
 came of his inquiry. "People just looked the other way because they didn't
 want to know what was going on," he said.

  A senior government official recalled that he was taken aback when he
 first learned of the operation. "My first reaction was, 'We're doing what?'
 " he said. While he said he eventually felt that adequate safeguards were
 put in place, he added that questions about the program's legitimacy were

  Some of those who object to the operation argue that is unnecessary. By
 getting warrants through the foreign intelligence court, the N.S.A. and
 F.B.I. could eavesdrop on people inside the United States who might be tied
 to terrorist groups without skirting longstanding rules, they say.

  The standard of proof required to obtain a warrant from the Foreign
 Intelligence Surveillance Court is generally considered lower than that
 required for a criminal warrant  intelligence officials only have to show
 probable cause that someone may be "an agent of a foreign power," which
 includes international terrorist groups  and the secret court has turned
 down only a small number of requests over the years. In 2004, according to
 the Justice Department, 1,754 warrants were approved. And the Foreign
 Intelligence Surveillance Court can grant emergency approval for wiretaps
 within hours, officials say.

  Administration officials counter that they sometimes need to move more
 urgently, the officials said. Those involved in the program also said that
 the N.S.A.'s eavesdroppers might need to start monitoring large batches of
 numbers all at once, and that it would be impractical to seek permission
 from the Foreign Intelligence Surveillance Court first, according to the

 Culture of Caution and Rules

  The N.S.A. domestic spying operation has stirred such controversy among
 some national security officials in part because of the agency's cautious
 culture and longstanding rules.

  Widespread abuses  including eavesdropping on Vietnam War protesters and
 civil rights activists  by American intelligence agencies became public in
 the 1970's and led to passage of the Foreign Intelligence Surveillance Act,
 which imposed strict limits on intelligence gathering on American soil.
 Among other things, the law required search warrants, approved by the
 secret F.I.S.A. court, for wiretaps in national security cases. The agency,
 deeply scarred by the scandals, adopted additional rules that all but ended
 domestic spying on its part.

  After the Sept. 11 attacks, though, the United States intelligence
 community was criticized for being too risk-averse. The National Security
 Agency was even cited by the independent 9/11 Commission for adhering to
 self-imposed rules that were stricter than those set by federal law.

  Several senior government officials say that when the special operation
 first began, there were few controls on it and little formal oversight
 outside the N.S.A. The agency can choose its eavesdropping targets and does
 not have to seek approval from Justice Department or other Bush
 administration officials. Some agency officials wanted nothing to do with
 the program, apparently fearful of participating in an illegal operation, a
 former senior Bush administration official said. Before the 2004 election,
 the official said, some N.S.A. personnel worried that the program might
 come under scrutiny by Congressional or criminal investigators if Senator
 John Kerry, the Democratic nominee, was elected president.

  In mid-2004, concerns about the program expressed by national security
 officials, government lawyers and a judge prompted the Bush administration
 to suspend elements of the program and revamp it.

  For the first time, the Justice Department audited the N.S.A. program,
 several officials said. And to provide more guidance, the Justice
 Department and the agency expanded and refined a checklist to follow in
 deciding whether probable cause existed to start monitoring someone's
 communications, several officials said.

  A complaint from Judge Colleen Kollar-Kotelly, the federal judge who
 oversees the Federal Intelligence Surveillance Court, helped spur the
 suspension, officials said. The judge questioned whether information
 obtained under the N.S.A. program was being improperly used as the basis
 for F.I.S.A. wiretap warrant requests from the Justice Department,
 according to senior government officials. While not knowing all the details
 of the exchange, several government lawyers said there appeared to be
 concerns that the Justice Department, by trying to shield the existence of
 the N.S.A. program, was in danger of misleading the court about the origins
 of the information cited to justify the warrants.

  One official familiar with the episode said the judge insisted to Justice
 Department lawyers at one point that any material gathered under the
 special N.S.A. program not be used in seeking wiretap warrants from her
 court. Judge Kollar-Kotelly did not return calls for comment.

  A related issue arose in a case in which the F.B.I. was monitoring the
 communications of a terrorist suspect under a F.I.S.A.-approved warrant,
 even though the National Security Agency was already conducting warrantless
 eavesdropping. According to officials, F.B.I. surveillance of Mr. Faris,
 the Brooklyn Bridge plotter, was dropped for a short time because of
 technical problems. At the time, senior Justice Department officials
 worried what would happen if the N.S.A. picked up information that needed
 to be presented in court. The government would then either have to disclose
 the N.S.A. program or mislead a criminal court about how it had gotten the

 The Civil Liberties Question

  Several national security officials say the powers granted the N.S.A. by
 President Bush go far beyond the expanded counterterrorism powers granted
 by Congress under the USA Patriot Act, which is up for renewal. The House
 on Wednesday approved a plan to reauthorize crucial parts of the law. But
 final passage has been delayed under the threat of a Senate filibuster
 because of concerns from both parties over possible intrusions on
 Americans' civil liberties and privacy.

  Under the act, law enforcement and intelligence officials are still
 required to seek a F.I.S.A. warrant every time they want to eavesdrop
 within the United States. A recent agreement reached by Republican leaders
 and the Bush administration would modify the standard for F.B.I. wiretap
 warrants, requiring, for instance, a description of a specific target.
 Critics say the bar would remain too low to prevent abuses.

  Bush administration officials argue that the civil liberties concerns are
 unfounded, and they say pointedly that the Patriot Act has not freed the
 N.S.A. to target Americans. "Nothing could be further from the truth,"
 wrote John Yoo, a former official in the Justice Department's Office of
 Legal Counsel, and his co-author in a Wall Street Journal opinion article
 in December 2003. Mr. Yoo worked on a classified legal opinion on the
 N.S.A.'s domestic eavesdropping program.

  At an April hearing on the Patriot Act renewal, Senator Barbara A.
 Mikulski, Democrat of Maryland, asked Attorney General Alberto R. Gonzales
 and Robert S. Mueller III, the director of the F.B.I., "Can the National
 Security Agency, the great electronic snooper, spy on the American people?"

  "Generally," Mr. Mueller said, "I would say generally, they are not
 allowed to spy or to gather information on American citizens." President
 Bush did not ask Congress to include provisions for the N.S.A. domestic
 surveillance program as part of the Patriot Act and has not sought any
 other laws to authorize the operation. Bush administration lawyers argued
 that such new laws were unnecessary, because they believed that the
 Congressional resolution on the campaign against terrorism provided ample
 authorization, officials said.

  Seeking Congressional approval was also viewed as politically risky
 because the proposal would be certain to face intense opposition on civil
 liberties grounds. The administration also feared that by publicly
 disclosing the existence of the operation, its usefulness in tracking
 terrorists would end, officials said.

  The legal opinions that support the N.S.A. operation remain classified,
 but they appear to have followed private discussions among senior
 administration lawyers and other officials about the need to pursue
 aggressive strategies that once may have been seen as crossing a legal
 line, according to senior officials who participated in the discussions.

  For example, just days after the Sept. 11, 2001, attacks on New York and
 the Pentagon, Mr. Yoo, the Justice Department lawyer, wrote an internal
 memorandum that argued that the government might use "electronic
 surveillance techniques and equipment that are more powerful and
 sophisticated than those available to law enforcement agencies in order to
 intercept telephonic communications and observe the movement of persons but
 without obtaining warrants for such uses."

  Mr. Yoo noted that while such actions could raise constitutional issues,
 in the face of devastating terrorist attacks "the government may be
 justified in taking measures which in less troubled conditions could be
 seen as infringements of individual liberties."

  The next year, Justice Department lawyers disclosed their thinking on the
 issue of warrantless wiretaps in national security cases in a
 little-noticed brief in an unrelated court case. In that 2002 brief, the
 government said that "the Constitution vests in the President inherent
 authority to conduct warrantless intelligence surveillance (electronic or
 otherwise) of foreign powers or their agents, and Congress cannot by
 statute extinguish that constitutional authority."

  Administration officials were also encouraged by a November 2002 appeals
 court decision in an unrelated matter. The decision by the Foreign
 Intelligence Surveillance Court of Review, which sided with the
 administration in dismantling a bureaucratic "wall" limiting cooperation
 between prosecutors and intelligence officers, noted "the president's
 inherent constitutional authority to conduct warrantless foreign
 intelligence surveillance."

  But the same court suggested that national security interests should not
 be grounds "to jettison the Fourth Amendment requirements" protecting the
 rights of Americans against undue searches. The dividing line, the court
 acknowledged, "is a very difficult one to administer."

 R. A. Hettinga <mailto: rah at ibuc.com>
 The Internet Bearer Underwriting Corporation <http://www.ibuc.com/>
 44 Farquhar Street, Boston, MA 02131 USA
 "... however it may deserve respect for its usefulness and antiquity,
 [predicting the end of the world] has not been found agreeable to
 experience." -- Edward Gibbon, 'Decline and Fall of the Roman Empire'
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R. A. Hettinga <mailto: rah at ibuc.com>
The Internet Bearer Underwriting Corporation <http://www.ibuc.com/>
44 Farquhar Street, Boston, MA 02131 USA
"... however it may deserve respect for its usefulness and antiquity,
[predicting the end of the world] has not been found agreeable to
experience." -- Edward Gibbon, 'Decline and Fall of the Roman Empire'

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