January 13, 2006
The National Security Agency advised President Bush in early 2001 that it had been eavesdropping on Americans during the course of its work monitoring suspected terrorists and foreigners believed to have ties to terrorist groups, according to a declassified document.
The NSA's vast data-mining activities began shortly after Bush was sworn in as president and the document contradicts his assertion that the 9/11 attacks prompted him to take the unprecedented step of signing a secret executive order authorizing the NSA to monitor a select number of American citizens thought to have ties to terrorist groups.
In its "Transition 2001" report, the NSA said that the ever-changing world of global communication means that "American communication and targeted adversary communication will coexist."
"Make no mistake, NSA can and will perform its missions consistent with the Fourth Amendment and all applicable laws," the document says.
However, it adds that "senior leadership must understand that the NSA's mission will demand a 'powerful, permanent presence' on global telecommunications networks that host both 'protected' communications of Americans and the communications of adversaries the agency wants to target."
What had long been understood to be protocol in the event that the NSA spied on average Americans was that the agency would black out the identities of those individuals or immediately destroy the information.
But according to people who worked at the NSA as encryption specialists during this time, that's not what happened. On orders from Defense Department officials and President Bush, the agency kept a running list of the names of Americans in its system and made it readily available to a number of senior officials in the Bush administration, these sources said, which in essence meant the NSA was conducting a covert domestic surveillance operation in violation of the law.
James Risen, author of the book State of War and credited with first breaking the story about the NSA's domestic surveillance operations, said President Bush personally authorized a change in the agency's long-standing policies shortly after he was sworn in in 2001.
"The president personally and directly authorized new operations, like the NSA's domestic surveillance program, that almost certainly would never have been approved under normal circumstances and that raised serious legal or political questions," Risen wrote in the book. "Because of the fevered climate created throughout the government by the president and his senior advisers, Bush sent signals of what he wanted done, without explicit presidential orders" and "the most ambitious got the message."
The NSA's domestic surveillance activities that began in early 2001 reached a boiling point shortly after 9/11, when senior administration officials and top intelligence officials asked the NSA to share that data with other intelligence officials who worked for the FBI and the CIA to hunt down terrorists that might be in the United States. However the NSA, on advice from its lawyers, destroyed the records, fearing the agency could be subjected to lawsuits by American citizens identified in the agency's raw intelligence reports.
The declassified report says that the "Director of the National Security Agency is obligated by law to keep Congress fully and currently formed of intelligence activities." But that didn't happen. When news of the NSA's clandestine domestic spying operation, which President Bush said he had authorized in 2002, was uncovered last month by the New York Times, Democratic and Republican members of Congress appeared outraged, claiming that they were never informed of the covert surveillance operation. It's unclear whether the executive order signed by Bush removes the NSA Director from his duty to brief members of Congress about the agency's intelligence gathering programs.
Eavesdropping on Americans required intelligence officials to obtain a surveillance warrant from a special court and show probable cause that the person they wanted to monitor was communicating with suspected terrorists overseas. But Bush said that the process for obtaining such warrants under the 1978 Federal Intelligence Surveillance Act was, at times, "cumbersome."
In a December 22, letter to the Senate Select Committee on Intelligence, Assistant Attorney General William E. Moschella wrote that the "President determined it was necessary following September 11 to create an early warning detection system. FISA could not have provided the speed and agility required for the early warning detection system."
However, what remains murky about that line of reasoning is that after 9/11, former Attorney General John Ashcroft undertook a full-fledged lobbying campaign to loosen the rules and the laws governing FISA to make it easier for the intelligence community to obtain warrants for wiretaps to spy on Americans who might have ties to terrorists. Since the legislative change, more than 4,000 surveillance warrants have been approved by the FISA court, leading many to wonder why Bush selectively chose to bypass the court for what he said were a select number of individuals.
More than a dozen legal scholars dispute Moschella's legal analysis, saying in a letter just sent to Congress that the White House failed to identify "any plausible legal authority for such surveillance."
"The program appears on its face to violate existing law," wrote the scholars of constitutional law, some of whom worked in various senior capacities in Republican and Democratic administrations, in an extraordinary letter to Congress that laid out, point by point, why the president is unauthorized to permit the NSA to spy on Americans and how he broke the law by approving it.
"Even conceding that the President in his role as Commander in Chief may generally collect 'signals intelligence' on the enemy abroad, Congress indisputably has authority to regulate electronic surveillance within the United States, as it has done in FISA," the letter states. "Where Congress has so regulated, the President can act in contravention of statute only if his authority is exclusive, that is, not subject to the check of statutory regulation. The DOJ letter pointedly does not make that extraordinary claim. The Supreme Court has never upheld warrantless wiretapping within the United States."
Additionally, "if the administration felt that FISA was insufficient, the proper course was to seek legislative amendment, as it did with other aspects of FISA in the Patriot Act, and as Congress expressly contemplated when it enacted the wartime wiretap provision in FISA," the letter continues. "One of the crucial features of a constitutional democracy is that it is always open to the President - or anyone else - to seek to change the law. But it is also beyond dispute that, in such a democracy, the President cannot simply violate criminal laws behind closed doors because he deems them obsolete or impracticable."
Jeffrey Smith, the former General Counsel for the CIA under the Clinton administration, also weighed in on the controversy Wednesday. Smith said he wants to testify at hearings that Bush overstepped his authority and broke the law. His own legal opinion on the spy program was included in a 14-page letter to the House Select Committee on Intelligence that said that President Bush does not have the legal authority to order the NSA to spy on American citizens, aides to Congressman John Conyers said Wednesday evening.
"It is not credible that the 2001 authorization to use force provides authority for the president to ignore the requirements of FISA," Smith wrote, adding that if President Bush's executive order authorizing a covert domestic surveillance operation is upheld as legal "it would be a dramatic expansion of presidential authority affecting the rights of our fellow citizens that undermines the checks and balances of our system, which lie at the very heart of the Constitution."
Still, one thing that appears to be indisputable is that the NSA surveillance began well before 9/11 and months before President Bush claims Congress gave him the power to use military force against terrorist threats, which Bush says is why he believed he had the legal right to bypass the judicial process.
According to the online magazine Slate, an unnamed official in the telecom industry said NSA's "efforts to obtain call details go back to early 2001, predating the 9/11 attacks and the president's now celebrated secret executive order. The source reports that the NSA approached U.S. carriers and asked for their cooperation in a 'data-mining' operation, which might eventually cull 'millions' of individual calls and e-mails."
Jason Leopold spent two years covering California's electricity crisis as Los Angeles bureau chief of Dow Jones Newswires. Jason has spent the last year cultivating sources close to the CIA leak investigation, and is a regular contributer to t r u t h o u t.