N.S.A.’s Intercepts Exceed Limits Set by Congress

[Eugen Leitl]

http://www.nytimes.com/2009/04/16/us/16nsa.html?_r=1&adxnnl=1&adxnnlx=1239879278-cQgITiFbOnMjN86okGnuOQ&pagewanted=print 

April 16, 2009

N.S.A.bs Intercepts Exceed Limits Set by Congress

By ERIC LICHTBLAU and JAMES RISEN

WASHINGTON b The National Security Agency intercepted private e-mail messages
and phone calls of Americans in recent months on a scale that went beyond the
broad legal limits established by Congress last year, government officials
said in recent interviews.

Several intelligence officials, as well as lawyers briefed about the matter,
said the N.S.A. had been engaged in bovercollectionb of domestic
communications of Americans. They described the practice as significant and
systemic, although one official said it was believed to have been
unintentional.

The legal and operational problems surrounding the N.S.A.bs surveillance
activities have come under scrutiny from the Obama administration,
Congressional intelligence committees and a secret national security court,
said the intelligence officials, who spoke only on the condition of anonymity
because N.S.A. activities are classified. Classified government briefings
have been held in recent weeks in response to a brewing controversy that some
officials worry could damage the credibility of legitimate
intelligence-gathering efforts.

The Justice Department, in response to inquiries from The New York Times,
acknowledged Wednesday night that there had been problems with the N.S.A.
surveillance operation, but said they had been resolved.

As part of a periodic review of the agencybs activities, the department
bdetected issues that raised concerns,b it said. Justice Department officials
then btook comprehensive steps to correct the situation and bring the program
into complianceb with the law and court orders, the statement said. It added
that Attorney General Eric H. Holder Jr. went to the national security court
to seek a renewal of the surveillance program only after new safeguards were
put in place.

In a statement on Wednesday night, the N.S.A. said that its bintelligence
operations, including programs for collection and analysis, are in strict
accordance with U.S. laws and regulations.b The Office of the Director of
National Intelligence, which oversees the intelligence community, did not
address specific aspects of the surveillance problems but said in a statement
that bwhen inadvertent mistakes are made, we take it very seriously and work
immediately to correct them.b

The questions may not be settled yet. Intelligence officials say they are
still examining the scope of the N.S.A. practices, and Congressional
investigators say they hope to determine if any violations of Americansb
privacy occurred. It is not clear to what extent the agency may have actively
listened in on conversations or read e-mail messages of Americans without
proper court authority, rather than simply obtained access to them.

The intelligence officials said the problems had grown out of changes enacted
by Congress last July in the law that regulates the governmentbs wiretapping
powers, and the challenges posed by enacting a new framework for collecting
intelligence on terrorism and spying suspects.

While the N.S.A.bs operations in recent months have come under examination,
new details are also emerging about earlier domestic-surveillance activities,
including the agencybs attempt to wiretap a member of Congress, without court
approval, on an overseas trip, current and former intelligence officials
said.

After a contentious three-year debate that was set off by the disclosure in
2005 of the program of wiretapping without warrants that President George W.
Bush approved after the Sept. 11 attacks, Congress gave the N.S.A. broad new
authority to collect, without court-approved warrants, vast streams of
international phone and e-mail traffic as it passed through American
telecommunications gateways. The targets of the eavesdropping had to be
breasonably believedb to be outside the United States. Under the new
legislation, however, the N.S.A. still needed court approval to monitor the
purely domestic communications of Americans who came under suspicion.

In recent weeks, the eavesdropping agency notified members of the
Congressional intelligence committees that it had encountered operational and
legal problems in complying with the new wiretapping law, Congressional
officials said.

Officials would not discuss details of the overcollection problem because it
involves classified intelligence-gathering techniques. But the issue appears
focused in part on technical problems in the N.S.A.bs ability at times to
distinguish between communications inside the United States and those
overseas as it uses its access to American telecommunications companiesb
fiber-optic lines and its own spy satellites to intercept millions of calls
and e-mail messages.

One official said that led the agency to inadvertently btargetb groups of
Americans and collect their domestic communications without proper court
authority. Officials are still trying to determine how many violations may
have occurred.

The overcollection problems appear to have been uncovered as part of a
twice-annual certification that the Justice Department and the director of
national intelligence are required to give to the Foreign Intelligence
Surveillance Court on the protocols that the N.S.A. is using in wiretapping.
That review, officials said, began in the waning days of the Bush
administration and was continued by the Obama administration. It led
intelligence officials to realize that the N.S.A. was improperly capturing
information involving significant amounts of American traffic.

Notified of the problems by the N.S.A., officials with both the House and
Senate intelligence committees said they had concerns that the agency had
ignored civil liberties safeguards built into last yearbs wiretapping law.
bWe have received notice of a serious issue involving the N.S.A., and webve
begun inquiries into it,b a Congressional staff member said.

Separate from the new inquiries, the Justice Department has for more than two
years been investigating aspects of the N.S.A.bs wiretapping program.

As part of that investigation, a senior F.B.I. agent recently came forward
with what the inspector generalbs office described as accusations of
bsignificant misconductb in the surveillance program, people with knowledge
of the investigation said. Those accusations are said to involve whether the
N.S.A. made Americans targets in eavesdropping operations based on
insufficient evidence tying them to terrorism.

And in one previously undisclosed episode, the N.S.A. tried to wiretap a
member of Congress without a warrant, an intelligence official with direct
knowledge of the matter said.

The agency believed that the congressman, whose identity could not be
determined, was in contact b as part of a Congressional delegation to the
Middle East in 2005 or 2006 b with an extremist who had possible terrorist
ties and was already under surveillance, the official said. The agency then
sought to eavesdrop on the congressmanbs conversations, the official said.

The official said the plan was ultimately blocked because of concerns from
some intelligence officials about using the N.S.A., without court oversight,
to spy on a member of Congress.