Was Increased Domestic Eavesdropping An NSA Initiative?
Is George W. Bush so clever and subtle that he is able to influence the course of events with his brainwaves?:
The National Security Agency acted on its own authority, without a formal directive from President Bush, to expand its domestic surveillance operations in the weeks after the Sept. 11 attacks, according to declassified documents released Tuesday.
The N.S.A. operation prompted questions from a leading Democrat, Representative Nancy Pelosi of California, who said in an Oct. 11, 2001, letter to a top intelligence official that she was concerned about the agency’s legal authority to expand its domestic operations, the documents showed.
Ms. Pelosi’s letter, which was declassified at her request, showed much earlier concerns among lawmakers about the agency’s domestic surveillance operations than had been previously known. Similar objections were expressed by Senator John D. Rockefeller IV, Democrat of West Virginia, in a secret letter to Vice President Dick Cheney nearly two years later.
The letter from Ms. Pelosi, the House minority leader, also suggested that the security agency, whose mission is to eavesdrop on foreign communications, moved immediately after the Sept. 11 attacks to identify terror suspects at home by loosening restrictions on domestic eavesdropping.
The congresswoman wrote to Lt. Gen. Michael V. Hayden, then head of the N.S.A., to express her concerns after she and other members of the House and Senate Intelligence Committees received a classified briefing from General Hayden on Oct. 1, 2001, about the agency’s operations.
Ms. Pelosi, then the ranking Democrat on the House Intelligence Committee, said, “I am concerned whether, and to what extent, the National Security Agency has received specific presidential authorization for the operations you are conducting.”
The answer, General Hayden suggested in his response to Ms. Pelosi a week later, was that it had not. “In my briefing,” he wrote, “I was attempting to emphasize that I used my authorities to adjust N.S.A.’s collection and reporting.”
Well, that’s an interesting twist. It’s hard to square with the rallying cry of the anti-Bush forces that Dubya is so hell-bent on becoming a dictator that he’s chunking the Bill of Rights out the window.
It may be objected that Bush could have ordered the initiative informally, but then you’d have to reconcile that with this:
In 2002, President Bush signed an executive order specifically authorizing the security agency to eavesdrop without warrants on the international communications of Americans inside the United States who the agency believed were connected to Al Qaeda. The disclosure of the domestic spying program last month provoked an outcry in Washington, where Congressional hearings are planned.
Does any of this make any difference as to the legality or propriety of the program? Not at all…but it shows the danger of assuming too much without all of the available facts. Still, there would have been better ways of handling this, it seems:
Admiral Inman said that while he supported the decision to step up eavesdropping against potential terrorists immediately after the 2001 attacks, the Bush administration should have tried to change the Foreign Intelligence Surveillance Act to provide explicit legal authorization for what N.S.A. was doing.
“What I don’t understand is why when you’re proposing the Patriot Act, you don’t set up an oversight mechanism for this?” Admiral Inman said in an interview. “I would have preferred an approach to try to gain legislation to try to operate with new technology and with an audit of how this technology was used.”
I would have preferred that approach, too (and I still do, in point of fact). I wonder, though…
We have Nancy Pelosi (who, to her credit, appears to have been on the up and up when she stated in the aftermath of the leak that she had expressed concerns at the time) and other congressional intelligence bigwigs being briefed on 10/01/01. It would appear that the program had been up and running, and was only widened after 9/11/01 (after all, you can’t develop a major program in 2 and 1/2 weeks). It would also appear that the agency believed it had been granted authority prior to Bush’s 2002 authorization under a directive dating from the Reagan Administration:
Bush administration officials said on Tuesday that General Hayden, now the country’s No. 2 intelligence official, had acted on the authority previously granted to the N.S.A., relying on an intelligence directive known as Executive Order 12333, issued by President Ronald Reagan in 1981. That order set guidelines for the collection of intelligence, including by the N.S.A.
“He had authority under E.O. 12333 that had been given to him, and he briefed Congress on what he did under those authorities,” said Judith A. Emmel, a spokeswoman for the Office of the Director of National Intelligence. “Beyond that, we can’t get into details of what was done.”
Again, we don’t know the full picture, and none of this proves the program was necessary or legal. What it does do, however, is paint a picture that is far different from the simplistic view of a dictatorial president determined to stampede over the Constitution if it suits him.
Then again, this may have nothing whatsoever to do with the 2002 ‘warrentless surveillance’. At least that’s the opinion of Orin Kerr of the Volokh Conspiracy:
The obvious question is, was this expansion directly related to the Bush Administration’s warrantless surveillance program? I doubt it. It seems quite unlikely to me that the NSA would on its own accord engage in monitoring that needed the AUMF or rather novel Article II theories to justify it. Presumably the change was just some kind of expansion of monitoring or change in practice that the NSA thought fit within the bounds of FISA and the existing Executive Order.
My understanding is that these are not wiretaps in the general context of putting a “bug” in a phone or a physical connection to some wires in your house. Anyone with the proper reception equipment can intercept these electronic conversations because they are present in the air as radio and/or microwave energy. Should a warrant be required to listen to a radio type broadcast? Or is this more like a conversation overheard in a public area?
The Constitution protects us from “unreasonable” search. I don’t see anything unreasonable in intercepting something available in the Public Air. It is unreasonable to give a terrorist a free pass just because they are located inside the US.
It is also impossible to get a warrant without specifics. How can you get specific with the public air waves where you can only ‘catch’ it all and then sort it out? If you don’t know who is broadcasting, how can you get specific?
For example, if you only catch a conversation about a specific target, but don’t know the specific source (other than it is from/to a know terrorist or terrorist organization) you don’t have enough specifics to get the warrant from any court even after 72 hours. Does this mean that we should allow the plan to continue? The answer is Yes, we should be able to take action to prevent another World Trade Center 9-11 disaster without a warrant. And how do you pass a law to allow this type of intercept, since it can’t even be defined properly? Let the NSA do the job they were created to do!
There are many types of Legally ALLOWED warrantless searches to protect us from some types of harm. Why shouldn’t this include ‘known terrorists’ regardless of where they are located?
In short, get a warrant if possible, but don’t prevent warrantless actions where it is not an unreasonable search.
Well, Richard, you make some good points, but just to play devil’s advocate for a minute, the Times has said that the NSA has also obtained access to switches from telco companies, and that would not be available just out in the air…
In my view, there is nothing objectionable about this sort of initiative, because it is analogous to a police camera at a traffic intersection which takes pictures of drivers running red lights. The camera is not there to find anyone specifically — it is a passive and neutral device which identifies reckless drivers.
The distinction between the red light camera (and the NSA initiative) and the other NSA program which wiretapped a collection of individuals is that the first is blind and the second is specific.
Mark,
Security and Civil Liberty are two ends of the same sliding scale. The more of one, the less the other. Someplace on this scale is a balance between Security against Terrorist attacks and Civil Liberty. So long as conditions are as President Bush indicated (1) one end of the conversations is Terrorist related (2) Congressional Intellegence Committees were informed of this activity (3) one end of the communications is outside the US even telco switch access should not be a problem.
Further note the various enforcement agencies already have the power to conduct warrantless searches for a few specific groups. Child porn and Mafia being two I believe are allowed. Aren’t terror individuals/groups at least as great a threat to our way of life?
The Feds have released figures that show that over the last 4 years around 100 Terror plans have been prevented. That’s an average of almost 1 every other week! Had they been successful and each had resulted in an average of 100 deaths thats 10,000; if the average would have been 1000 thats 100,000; if each had been like 9-11 thats almost 300,000 deaths of innocent people.
Can we really afford another 9-11 because a Terrorist is within the border of the US? Do we really want to say to the world “If you get to the US, we will allow you to freely plan your attacks on us? What if Osama came to the US. Do we then want to be prevented from monotoring his activities without a warrant? Do we want to be prevented from learning about others just because we captured a Talaban cell phone in Afganastan and it contains a US number?
[...] A dodgy response at best, but one invested with a larger truth. For too many liberals, all secret intelligence activities are “fruit,” and bitter fruit at that. The government is presumed guilty of illegal electronic eavesdropping until proven innocent. This sort of civil-liberties fetishism is a hangover from the Vietnam era, when the Nixon Administration wildly exceeded all bounds of legality—spying on antiwar protesters and civil rights leaders. Pelosi certainly fooled me at the time (or at least had me wondering). Klein continues: Pelosi made clear to me that she considered Hayden, now Deputy Director of National Intelligence, an honorable man who would not overstep his bounds. “I trust him,” she said. “I haven’t accused him of anything. I was, and remain, concerned that he has the proper authority to do what he is doing.” A legitimate concern, but the Democrats are on thin ice here. Some of the wilder donkeys talked about a possible Bush impeachment after the NSA program was revealed. [...]