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Chief Justice Fred Vinson.Chief Justice Fred Vinson. [Source: Kansas State Historical Society]The US Supreme Court upholds the power of the federal government’s executive branch to withhold documents from a civil suit on the basis of executive privilege and national security (see October 25, 1952). The case, US v Reynolds, overturns an appellate court decision that found against the government (see December 11, 1951). Originally split 5-4 on the decision, the Court goes to 6-3 when Justice William O. Douglas joins the majority. The three dissenters, Justices Hugo Black, Felix Frankfurter, and Robert Jackson, refuse to write a dissenting opinion, instead adopting the decision of the appellate court as their dissent.
'State Secrets' a Valid Reason for Keeping Documents out of Judicial, Public Eye - Chief Justice Fred Vinson writes the majority opinion. Vinson refuses to grant the executive branch the near-unlimited power to withhold documents from judicial review, as the government’s arguments before the court implied (see October 21, 1952), but instead finds what he calls a “narrower ground for defense” in the Tort Claims Act, which compels the production of documents before a court only if they are designated “not privileged.” The government’s claim of privilege in the Reynolds case was valid, Vinson writes. But the ruling goes farther; Vinson upholds the claim of “state secrets” as a reason for withholding documents from judicial review or public scrutiny. In 2008, author Barry Siegel will write: “In truth, only now was the Supreme Court formally recognizing the privilege, giving the government the precedent it sought, a precedent binding on all courts throughout the nation. Most important, the Court was also—for the first time—spelling out how the privilege should be applied.” Siegel will call the Reynolds ruling “an effort to weigh competing legitimate interests,” but the ruling does not allow judges to see the documents in order to make a decision about their applicability in a court case: “By instructing judges not to insist upon examining documents if the government can satisfy that ‘a reasonable danger’ to national security exists, Vinson was asking jurists to fly blind.” Siegel will mark the decision as “an act of faith. We must believe the government,” he will write, “when it claims [the accident] would reveal state secrets. We must trust that the government is telling the truth.”
Time of Heightened Tensions Drives Need for Secrecy - Vinson goes on to note, “[W]e cannot escape judicial notice that this is a time of vigorous preparation for the national defense.” Locked in the Cold War with the Soviet Union, and fighting a war in Korea, the US is, Vinson writes, in a time of crisis, and one where military secrets must be kept and even encouraged. [U. S. v. Reynolds, 3/9/1953; Siegel, 2008, pp. 171-176]
Future Ramifications - Reflecting on the decision in 2008, Siegel will write that while the case will not become as well known as many other Court decisions, it will wield significant influence. The ruling “formally recognized and established the framework for the government’s ‘state secrets’ privilege—a privilege that for decades had enabled federal agencies to conceal conduct, withhold documents, and block civil litigation, all in the name of national secrecy.… By encouraging judicial deference when the government claimed national security secrets, Reynolds had empowered the Executive Branch in myriad ways. Among other things, it had provided a fundamental legal argument for much of the Bush administration’s response to the 9/11 terrorist attacks. Enemy combatants such as Yaser Esam Hamdi (see December 2001) and Jose Padilla (see June 10, 2002), for many months confined without access to lawyers, had felt the breath of Reynolds. So had the accused terrorist Zacarias Moussaoui when federal prosecutors defied a court order allowing him access to other accused terrorists (see March 22, 2005). So had the Syrian-Canadian Maher Arar (see September 26, 2002), like dozens of others the subject of a CIA extraordinary rendition to a secret foreign prison (see After September 11, 2001). So had hundreds of detainees at the US Navy Base at Guantanamo Bay, held without charges or judicial review (see September 27, 2001). So had millions of American citizens, when President Bush, without judicial knowledge or approval, authorized domestic eavesdropping by the National Security Agency (see Early 2002). US v. Reynolds made all this possible. The bedrock of national security law, it had provided a way for the Executive Branch to formalize an unprecedented power and immunity, to pull a veil of secrecy over its actions.” [Siegel, 2008, pp. ix-x]

Entity Tags: William O. Douglas, Zacarias Moussaoui, US Supreme Court, Yaser Esam Hamdi, Robert Jackson, Jose Padilla, Felix Frankfurter, Bush administration (43), Fred Vinson, Barry Siegel, George W. Bush, Hugo Black, Maher Arar

Timeline Tags: Civil Liberties

Interviewer David Frost has a difficult time with his subject, former President Richard Nixon, in the day’s early questioning (see April 6, 1977). Frost attempts to recoup with a line of questioning suggested by his adviser James Reston, Jr., one used in the trial of former Nixon aide John Ehrlichman (see January 1, 1975). Were there no limits to what a president can do, even if the president wants to do something plainly illegal? he asks. Could he do anything despite the law? Burglary? Forgery? Even murder? “If the president does it, that means it’s not illegal,” Nixon retorts. “Never had his imperialism been so baldly stated,” Reston will later reflect. Frost asks if the dividing line between, for example, a police burglary and the murder of an antiwar protester is only the president’s judgment? Nixon agrees, and adds: “There’s nothing specific that the Constitution contemplates in that respect. I haven’t read every word, every jot and every tittle, but I do know this: That it has been, however, argued that as far as a president is concerned, that in war time, a president does have certain extraordinary powers which would make acts that would otherwise be unlawful, lawful if undertaken for the purpose of preserving the nation and the Constitution, which is essential for the rights we’re all talking about.” [Time, 5/30/1977; Reston, 2007, pp. 102-105; Landmark Cases, 8/28/2007]

Entity Tags: Richard M. Nixon, David Frost, James Reston, Jr, John Ehrlichman

Timeline Tags: Nixon and Watergate

Following the revelations of the Church Committee’s investigation into the excesses of the CIA (see April, 1976), and the equally revealing New York Times article documenting the CIA’s history of domestic surveillance against US citizens for political purposes (see December 21, 1974), Congress passes the Foreign Intelligence Surveillance Act (FISA). In essence, FISA prohibits physical and electronic surveillance against US citizens except in certain circumstances affecting national security, under certain guidelines and restrictions, with court warrants issued by the Foreign Intelligence Surveillance Court (FISC), operating within the Department of Justice as well as with criminal warrants. FISA restricts any surveillance of US citizens (including US corporations and permanent foreign residents) to those suspected of having contact with “foreign powers” and terrorist organizations. FISA gives a certain amount of leeway for such surveillance operations, requiring that the administration submit its evidence for warrantless surveillance to FISC within 24 hours of its onset and keeping the procedures and decisions of FISC secret from the public. [Electronic Frontier Foundation, 9/27/2001; Legal Information Institute, 11/30/2004] On September 14, 2001, Congress will pass a revision of FISA that extends the time period for warrantless surveillance to 72 hours. The revision, part of the Intelligence Authorization Act of 2002, will also lower the standard for the issuance of wiretap warrants and make legal “John Doe,” or generic, warrants that can be used without naming a particular target. FISA revisions will also expand the bounds of the technologies available to the government for electronic and physical surveillance, and broaden the definitions of who can legally be monitored. [US Senate, 9/14/2001; Senator Jane Harman, 2/1/2006]

Entity Tags: Foreign Intelligence Surveillance Court, New York Times, Foreign Intelligence Surveillance Act, US Department of Justice, Church Committee

Timeline Tags: Civil Liberties

A National Security Agency (NSA) linguist runs afoul of his superiors after he and other linguists submit a report concluding that Islamist terrorists are planning attacks on America. The analyst, who insists on remaining anonymous and is nicknamed “J” by press reports, is fluent in an unusual number of languages. His and his colleagues’ study of Arabic language messages, and the flow of money to terrorist organizations from Saudi Arabia, lead them to believe that Saudi extremists are plotting an attack. J will recall in January 2006: “You could see, this was the pure rhetoric of Osama bin Laden and his group, the exact same group, and we had an early indication.… All of us in the group had this view of a burgeoning threat, and suddenly we were all trotted off to the office of security. Then came the call to report for a battery of psychological tests.” J will issue further warnings of potential terrorist strikes, this time involving hijackers, passenger planes, and US buildings, in May 2001 (see May 2001). In 2006, other current and former NSA officials will claim that the NSA routinely uses unfavorable psychological evaluations to retaliate against whistleblowers and those employees who come into conflict with superiors (see January 25-26, 2006). [Cybercast News Service, 1/25/2006]

Entity Tags: “J”, National Security Agency

Timeline Tags: Complete 911 Timeline

A lieutenant general meets with Qwest CEO Joe Nacchio and Dean Wandry, who heads Qwest’s government business unit. According to documents filed in 2006 by Nacchio concerning his trial on insider trading charges (see October 12, 2007), the general “told Mr. Wandry that he ran the largest telecom operation in the world, he had looked at Qwest’s network, and he wanted to use it for government purposes.” The general in question could be NSA Director Kenneth Minihan, who will be replaced in 1999 by another lieutenant general, Michael Hayden, but neither Minihan nor Hayden will comment on the allegation. Many former intelligence officials will say that it is likely Minihan who met with Nacchio and Wandry. Nacchio’s court documents indicate that he and Wandry agree to work with the general. Nacchio is not allowed to announce the contract publicly, but according to the court documents, he “understood at the time this was the beginning of a relationship which had enormous potential for future work. This proves increasingly true as time went on.” By 1999 Qwest is working extensively with the NSA. Minihan is particularly concerned about the potential of “cyberwarfare” by foreign governments, terrorist organizations, drug cartels, and organized crime, a prospect which he felt the NSA is unprepared. He particularly worries about Russia and China; in June 1998, he will testify are training personnel in potential cyber-attacks. “These opportunists, enabled by the explosion of technology and the availability of inexpensive, secure means of communication, pose a significant threat to the interests of the United States and its allies,” Minihan will state. In 2007, a former senior NSA official will say that the agency felt those groups knew US privacy laws all too well and were capable of using those laws against the NSA and other intelligence agencies. He will say, “There was such a nuanced understanding of how to tie us in knots and use American law against us, that there were certainly pockets of people saying, ‘We’ve got to be assertive; we’ve got to be more aggressive on this.’” Hayden, Minihan’s successor, will be particularly willing to push agency operations to the edge of legality. After 9/11, Hayden will say, “We’re pretty aggressive within the law. As a professional, I’m troubled if I’m not using the full authority allowed by law.” [National Journal, 11/2/2007] The NSA will approach Qwest will a similar offer in the months before 9/11 (see February 2001).

Entity Tags: Michael Hayden, Dean Wandry, Kenneth Minihan, National Security Agency, Joe Nacchio, Qwest

Timeline Tags: Civil Liberties

NSA servers used to collect and sift data.NSA servers used to collect and sift data. [Source: FrancesFarmersRevenge.com]The National Security Agency (see 1952) begins building a massive data-mining system, code-named “Trailblazer,” that is intended to sift through reams of digital communications intercepts and find nuggets of information relevant to national security. The program’s task is huge—to sort through the 2 million bits of data the NSA collects every hour—and one made even more complex by the relatively new types of wireless, Internet, cell phone, and instant messaging communications now becoming ever more commonplace. Trailblazer is strongly embraced by General Michael Hayden, who became the NSA’s director in March 1999. Hayden recognizes from the outset that the NSA is years behind the technological curve, and casts Trailblazer as the future of the agency’s intelligence gathering and sorting. In November 1999, Hayden makes Trailblazer the centerpiece of his “100 Days of Change,” his plan to transform the agency into a leaner, more efficient organization, fast-tracking the program to vault it ahead of other initiatives. “It was going to structure us to handle the digital revolution,” a former intelligence official will recall. But from the outset the program has problems: a meeting between NSA and other government officials in December 1999 is unpromising, and, according to one government oversight official, the program “kicked off with not a real great definition of what it was trying to achieve.” Program managers fail to define standard data formats to allow for the proper sorting of information. After six years, $1.2 billion in expenditures, and endless man-hours of work, the utterly failed program will be recognized as the “biggest boondoggle… in the intelligence community” (see January 2006). [Baltimore Sun, 1/29/2006]

Entity Tags: Trailblazer, National Security Agency, Michael Hayden

Timeline Tags: Civil Liberties

Mike Frost.Mike Frost. [Source: NineMSN]One of the few commercial media reports about Echelon, the NSA’s global surveillance network (see April 4, 2001), appears on CBS’s 60 Minutes. The report is disturbing in its portrayal of Echelon as a surveillance system capable of, in host Steve Kroft’s words, capturing “virtually every electronic conversation around the world.” Kroft continues, “[V]irtually every signal radiated across the electromagnetic spectrum is being collected and analyzed,” including land line and cell phone signals, ATM transactions, fax machines,public and private radio broadcasts, even baby monitors. Mike Frost, a former intelligence officer for the CSE, the Canadian equivalent of the National Security Agency which often works closely with the NSA, says, “The entire world, the whole planet” is being surveilled. “Echelon covers everything that’s radiated worldwide at any given instant.… Every square inch is covered.” Listening stations around the world transmit their data to the NSA’s headquarters at Fort Meade, Maryland, where, as Kroft says, “acres of supercomputers scan millions of transmissions word by word, looking for key phrases and, some say, specific voices that may be of major significance.” Frost adds, “Everything is looked at. The entire take is looked at. And the computer sorts out what it is told to sort out, be it, say, by key words such as ‘bomb’ or ‘terrorist’ or ‘blow up,’ to telephone numbers or—or a person’s name. And people are getting caught, and—and that’s great.” Echelon is so secret that even its successes are not publicly documented, though it is believed that, among other successes, it helped capture international terrorist “Carlos the Jackal,” and helped identify two Libyans accused of planting a bomb on PanAm Flight 103 [CBS News, 2/27/2000] which exploded over Lockerbie, Scotland in 1988, killing 270 people. [Washington Post, 12/22/1988] “I say, never over-exaggerate the capacity of a system such as Echelon,” Frost noted in a 1999 interview with the Australian press. “Never ever over-exaggerate the power that these organizations have to abuse a system such as Echelon. Don’t think it can’t happen in Australia. Don’t think it can’t happen in Canada, because it does.” [NineMSN, 5/23/1999]
Monitoring Legal Conversations - As successful as Echelon has been in capturing terrorists, international drug dealers, and various criminals, it has raised serious concerns for its capability of monitoring ordinary, innocent civilians. Frost says that such monitoring happens every day: “Not only possible, not only probable, but factual. While I was at CSE, a classic example: A lady had been to a school play the night before, and her son was in the school play and she thought he did a—a lousy job. Next morning, she was talking on the telephone to her friend, and she said to her friend something like this, ‘Oh, Danny really bombed last night,’ just like that. The computer spit that conversation out. The analyst that was looking at it was not too sure about what the conversation w—was referring to, so erring on the side of caution, he listed that lady and her phone number in the database as a possible terrorist.” Though the NSA has a long and checkered history of spying on American citizens, including extensive monitoring of antiwar and civil rights protesters during the 1970s, the agency refuses to provide any information about its activities—not to the public and not even to Congress. Congressman Bob Barr (R-GA) has for years pressed for more information about the program, which he recently said “engages in the interception of literally millions of communications involving United States citizens.” Even the chairman of the House Intelligence Committee, Porter Goss (R-FL) had trouble getting information when he requested it last year. At the time, Goss said, “[T]here was some information about procedures in how the NSA people would employ some safeguards, and I wanted to see all the correspondence on that to make sure that those safeguards were being completely honored. At that point, one of the counsels of the NSA said, ‘Well, we don’t think we need to share this information with the Oversight Committee.’ And we said, ‘Well, we’re sorry about that. We do have the oversight, and you will share the information with us,’ and they did.” Goss had to threaten to cut the NSA’s budget before the agency would share even limited information with him. When asked how he can be sure the NSA isn’t listening in on ordinary citizens’ communications, Goss merely says, “We do have methods for that, and I am relatively sure that those procedures are working very well.”
Princess Diana, Human Rights Organizations Monitored - Evidence presented in the broadcast also suggests the NSA was monitoring Princess Diana (see November 30, 1998), as well as Amnesty International, Greenpeace, and other groups (see February 27, 2000). [CBS News, 2/27/2000]
British Ministers Monitored - Frost cites an instance where then-Prime Minister Margaret Thatcher monitored two of her own ministers (see 1983).
Americans Monitored - Former NSA contractor Margaret Newsham recalls hearing a monitored conversation featuring then-Senator Strom Thurmond (see April, 1988). Frost is not surprised. “Oh, of course it goes on,” he says. “Been going on for years. Of course it goes on.” Kroft asks, “You mean the National Security Agency spying on politicians in… in the United States?” Frost replies, “Sounds ludicrous, doesn’t it? Sounds like the world of fiction. It’s not; not the world of fiction. That’s the way it works. I’ve been there. I was trained by you guys” (see 1980s). Goss seems less concerned. He says that it is “[c]ertainly possible that something like that could happen. The question is: What happened next?… It is certainly possible that somebody overheard me in a conversation. I have just been in Europe. I have been talking to people on a telephone and elsewhere. So it’s very possible somebody could have heard me. But the question is: What do they do about it? I mean, I cannot stop the dust in the ether; it’s there. But what I can make sure is that it’s not abused—the capability’s not abused, and that’s what we do.”
Used for Corporate Advantage - In 2001, the European Parliament released a report listing many of Echelon’s surveillance stations around the world and detailing their capabilities (see July 11, 2001). Kroft notes, “The report says Echelon is not just being used to track spies and terrorists. It claims the United States is using it for corporate and industrial espionage as well, gathering sensitive information on European corporations, then turning it over to American competitors so they can gain an economic advantage.”
Encryption Effective? - European governments and corporations are encrypting more and more of their phone, fax, and e-mail transmissions to keep Echelon from listening in. In response, the US government is pressuring the Europeans to give US law enforcement and intelligence agencies software keys so that they can unlock the code in matters of national security. Parliament member Glyn Ford is not opposed to the idea in principle: “[I]f we are not assured that that is n—not going to be abused, then I’m afraid we may well take the view, ‘Sorry, no.’ In [Britain], it’s traditional for people to leave a key under the doormat if they want the neighbors to come in and—and do something in their house. Well, we’re neighbors, and we’re not going to leave the electronic key under the doormat if you’re going to come in and steal the family silver.” The NSA, CSE, and even Echelon are necessary evils, Ford acknowledges, but, “My concern is no accountability and nothing—no safety net in place for the innocent people that fall through the cracks. That’s my concern.” [CBS News, 2/27/2000]

Entity Tags: Greenpeace, Wayne Madsen, Glyn Ford, Echelon, Communications Security Establishment, Central Intelligence Agency, Amnesty International, Strom Thurmond, Electronic Privacy Information Center, Steve Kroft, Princess Diana, Mike Frost, Margaret Thatcher, Margaret Newsham, National Security Agency, Robert “Bob” Barr, House Intelligence Committee, Porter J. Goss, Ilich Ramírez Sanchez

Timeline Tags: Civil Liberties

The NSA completes a report for the incoming Bush administration entitled “Transition 2000” that tells how the NSA is planning to improve its intelligence gathering. More importantly, it tells incoming White House officials that in the process of improving its intelligence gathering, some US citizens will inevitably be targeted for surveillance, though, according to a former NSA official, analysts were supposed to “delete the name of the” citizen being surveilled. Such inadvertent surveillance of US citizens took place even during the Clinton administration, says that former official, but the citizens’ names were always deleted from the transcripts of the communications intercepts. The law expressly prohibits the NSA from spying on US citizens, US corporations, or even permanent US residents. (With the permission of the Foreign Intelligence Surveillance Court (FISC), the NSA can spy on diplomats and foreigners inside US borders.) An NSA official will tell the Boston Globe in October 2001, “If, in the course of surveillance, NSA analysts learn that it involves a US citizen or company, they are dumping that information right then and there.” However, once President Bush takes office in January 2001, that practice will undergo a radical change (see Spring 2001). [Truthout (.org), 1/17/2006] In the same transition report, agency officials say that the NSA must become a “powerful, permanent presence” on the commercial communications networks, a goal they admit will raise legal and privacy issues. [New York Times, 12/16/2007]

Entity Tags: Bush administration (43), National Security Agency

Timeline Tags: Civil Liberties

The National Security Agency seeks the assistance of global telecommunications corporation AT&T to help it set up a domestic call monitoring site to eavesdrop on US citizens’ phone communications, according to court papers filed in June 2006 as part of a lawsuit against AT&T (see October 2001). The NSA is expressly forbidden from spying on US citizens within US borders unless authorized by the Foreign Surveillance Intelligence Court (FISC) (see 1978). When the NSA program, which wiretaps phone and email communications often without court warrants, becomes public knowledge well over four years later (see December 15, 2005), President Bush, NSA Director Michael Hayden, and other White House and government officials will assert that the program was set up in response to the September 11, 2001 terrorist attacks. If the claims made in the lawsuit are accurate, these assertions are provably false. “The Bush administration asserted this became necessary after 9/11,” lawyer Carl Mayer will claim in 2006. “This undermines that assertion.” Unbeknownst to most Americans, the NSA is operating a secret “data mining” operation that, by 2006, will have compiled phone records and contact information on millions of domestic phone and email communications. The NSA project is code-named “Project Groundbreaker,” and is ostensibly an above-board attempt announced in June 2000 to have AT&T and other firms help modernize its technological capabilities. The project originally seeks to have AT&T build a network operations center that duplicates AT&T’s facility in Bedminster, New Jersey; this plan will be altered when the NSA decides it will be better served by acquiring the monitoring technology itself. The agency is seeking bids for a project to “modernize and improve its information technology infrastructure,” including the privatization of its “non-mission related” systems support. [TechWeb, 6/13/2000; Bloomberg, 6/30/2006] Groundbreaker’s privatization project is expected to provide up to $5 billion in government contracts to various private firms such as AT&T, Computer Sciences Corporation, and OAO Corporation, [Computerworld, 12/4/2000; Government Executive, 9/1/2001] and up to 750 NSA employees will become private contractors. Hayden, who has aggressively instituted a corporate management protocol to enhance productivity and has brought in numerous senior managers and agency executives from private defense firms, is a strong proponent of privatizing and outsourcing much of the NSA’s technological operations, and in 2001 will say that he wants the agency to focus on its primary task of breaking codes and conducting surveillance. Hayden does not admit that Groundbreaker is part of a larger NSA domestic surveillance program, [Government Executive, 9/1/2001] and publicly, NSA officials say that the project is limited to administrative and logistics functions. [Computerworld, 12/4/2000] The covert data mining portion of the project is code-named “Pioneer.” A former, unnamed employee of the NSA, [Bloomberg, 6/30/2006] and a former AT&T technician, Mark Klein, will provide the key information about Groundbreaker (see Late 2002, July 7, 2009 and December 15-31, 2005). Klein will say in 2006 that he saw the NSA construct a clandestine area within its switching center in San Francisco, and saw NSA technicians shunt fiber optic cable carrying Internet traffic into that area, which contains a large data bank and secret data mining hardware (see April 6, 2006). Klein will say he knew that the NSA built other such facilities in other switching locations. He will go on to say that the NSA did not work with just AT&T traffic; when AT&T’s network connected with other networks, the agency acquired access to that traffic as well. [Democracy Now!, 5/12/2006] The information about AT&T and the NSA will become public knowledge after the 2006 filing of a lawsuit against AT&T and other telecommunications firms (see May 12, 2006 and June 26, 2006).

Entity Tags: Mark Klein, Michael Hayden, George W. Bush, Foreign Intelligence Surveillance Court, Bush administration (43), Carl Mayer, Computer Sciences Corporation, AT&T, National Security Agency, OAO Corporation

Timeline Tags: Civil Liberties

Joseph Nacchio.Joseph Nacchio. [Source: publicity photo via Business Week]Qwest CEO Joe Nacchio meets with NSA officials in Fort Meade, Maryland, to discuss two topics of mutual interest: a $100 million infrastructure upgrade that Qwest, one of the US’s largest telecommunications firms, can perform for the agency, and another topic that remains classified. (The meeting will be revealed in heavily redacted court documents released six years later—see October 12, 2007). Observers believe the discussion is about the NSA’s warrantless wiretapping program of US citizens, which the government will conceal for years (see December 15, 2005), and which the Bush administration will insist did not come about until after the 9/11 attacks (see December 17, 2005). Nacchio meets with NSA officials to discuss the agency’s “Groundbreaker” project (see February 2001), which the NSA will later claim is merely a modernization and upgrade of its technological infrastructure. A June 2006 lawsuit against AT&T over that firm’s cooperation with the NSA alleges that “Groundbreaker” is part of a secret domestic surveillance operation. According to the court documents, Nacchio and the NSA are unable to agree on an unrevealed topic of discussion; after that disagreement, the NSA will withdraw its “Groundbreaker” contract from consideration for Qwest. Nacchio, according to the documents, believes that the unrevealed topic of discussion involves illegal and inappropriate actions. He asks the agency officials whether “a warrant or other legal process had been secured.” The NSA officials, according to the documents, have a “disinclination on the part of the authorities to use any legal process,” leading Nacchio to conclude that “the requests violated the privacy requirements of the Telecommunications Act.” When Nacchio refuses to cooperate with the NSA, the agency withdraws its offer of the “Groundbreaker” contract. [Raw Story, 10/12/2007; Marketwatch, 10/13/2007] James F.X. Payne, the former chief of Qwest’s government business unit, will later tell investigators, “There was a feeling also that the NSA acted as agents for other government agencies.” [National Journal, 11/2/2007] In 2007, the New York Times will reveal that Qwest refuses to give the NSA access to its most localized communications switches, carrying largely domestic phone calls. The arrangement would have permitted neighborhood-by-neighborhood surveillance of phone traffic without a court order. [New York Times, 12/16/2007] The NSA has more success with other companies—and has enjoyed a long and fruitful relationship with Qwest as well (see February 2001).

Entity Tags: Qwest, New York Times, James F.X. Payne, Bush administration (43), AT&T, Joe Nacchio, National Security Agency

Timeline Tags: Civil Liberties

The National Security Agency (NSA) engages in apparently illegal surveillance of US citizens beginning shortly after the inauguration of George W. Bush as president. This will not be revealed to the public until media reports in January 2006, a month after the press revealed that the NSA had engaged in similar illegal wiretaps and surveillance of American citizens after the 9/11 attacks, using those attacks as justification for the surveillance (see December 15, 2005). The former NSA and counterterrorism officials who reveal the pre-9/11 spying will claim that the wiretaps, e-mail monitoring, and Internet surveillance were all “inadvertent,” as NSA computers “unintentionally” intercepted US citizens’ international phone calls and e-mails when the computers flagged keywords. NSA protocol demands that such “inadvertent” surveillance end as soon as NSA analysts realize they are spying on those citizens, and the names of the monitored citizens are supposed to be deleted from the NSA databases. Instead, the NSA is instructed to continue monitoring some citizens that are characterized as “of interest” to White House officials. Those officials include President Bush, Vice President Cheney, and Defense Secretary Donald Rumsfeld, say the former NSA and counterterrorism officials. In December 2000, the NSA told the incoming Bush administration that some US citizens are being inadvertently targeted for surveillance, but the names of the citizens are deleted because the law expressly prohibits the NSA from spying on US citizens, US corporations, or even permanent US residents (see December 2000). However, once Bush takes office in January 2001, that practice undergoes a radical change. In the first few months of the administration, President Bush assigns Vice President Cheney to make himself more of a presence at the various US intelligence agencies, particularly the CIA, NSA, and DIA. Cheney, along with other officials at the State and Defense Departments, begins making repeated requests to the NSA to reveal the identities of those Americans which had previously been deleted, so that administration officials can more fully understand the context and scope of the intelligence. Such requests are technically legal. But Cheney goes well beyond the law when he requests, as he frequently does, that the NSA continue monitoring specific Americans already caught up in the NSA’s wiretaps and electronic surveillance. A former White House counterterrorism official will later claim that Cheney advised Bush of what he was learning from the NSA. “What’s really disturbing is that some of those people the vice president was curious about were people who worked at the White House or the State Department,” says another former counterterrorism official. “There was a real feeling of paranoia that permeated from the vice president’s office and I don’t think it had anything to do with the threat of terrorism. I can’t say what was contained in those taps that piqued his interest. I just don’t know.” [Truthout (.org), 1/17/2006]

Entity Tags: Richard (“Dick”) Cheney, Central Intelligence Agency, Defense Intelligence Agency, George W. Bush, Donald Rumsfeld, US Department of Defense, National Security Agency, US Department of State

Timeline Tags: Civil Liberties

One of the approximately 30 radomes at the Echelon station in Menwith Hill, England. A radome covers an antenna to protect it from the weather and disguise the direction it is pointing.One of the approximately 30 radomes at the Echelon station in Menwith Hill, England. A radome covers an antenna to protect it from the weather and disguise the direction it is pointing. [Source: Matt Crypto / Public domain]The BBC reports on advances in electronic surveillance. The US’s global surveillance program, Echelon, has become particularly effective in monitoring mobile phones, recording millions of calls simultaneously and checking them against a powerful search engine designed to pick out key words that might represent a security threat. Laser microphones can pick up conversations from up to a kilometer away by monitoring window vibrations. If a bug is attached to a computer keyboard, it is possible to monitor exactly what is being keyed in, because every key on a computer has a unique sound when depressed. [BBC, 4/4/2001] Furthermore, a BBC report on a European Union committee investigation into Echelon one month later notes that the surveillance network can sift through up to 90 percent of all Internet traffic, as well as monitor phone conversations, mobile phone calls, fax transmissions, net browsing history, satellite transmissions and so on. Even encryption may not help much. The BBC suggests that “it is likely that the intelligence agencies can crack open most commercially available encryption software.” [BBC, 5/29/2001]

Entity Tags: Echelon, British Broadcasting Corporation

Timeline Tags: Complete 911 Timeline, 9/11 Timeline, Civil Liberties

A National Security (NSA) linguist who only allows himself to be identified to the media as “J” warns his superiors at the agency that terrorists may be planning to hijack passenger planes to ram into buildings, and that security measures need to be implemented to prevent this. Instead, J is ordered to undergo psychiatric evaluation. (J was given similar treatment in another instance eight years before; see September 11, 1993). J will later claim that NSA officials dismissed his warnings, and instead labeled him as “obsessed” with the idea of a “kamikaze” threat because of time he had spent in Japan. In 2006, J will say that any time his analysis countered conventional wisdom, he was ordered to undergo psychiatric evaluations. He will eventually develop an irregular heartbeat due to the stress of anticipating further retaliatory, potentially career-damaging psychological evaluations. “I believe it was retaliation, but how do you prove that?” he will ask. J will spend his last decade at NSA with no promotion or raise, and will say that another linguist left the agency during that time out of disgust with what was happening. “Who was going to listen to us? Who could do anything anyway?” he asks in 2006. In 2006, other current and former NSA officials will claim that the NSA routinely uses unfavorable psychological evaluations to retaliate against whistleblowers and those employees who come into conflict with superiors (see January 25-26, 2006). [Cybercast News Service, 1/26/2006] It is not clear whether J’s warnings are related to the 33 other warnings picked up by NSA analysts during this same time period (see May-July 2001.)

Entity Tags: National Security Agency, “J”

Timeline Tags: Complete 911 Timeline, 9/11 Timeline

In July 2001, NSA director Michael Hayden tells a reporter that the NSA does not monitor any US citizens without court warrants from the Foreign Intelligence Surveillance Court (FISC). “We don’t do anything willy-nilly,” Hayden says. “We’re a foreign intelligence agency. We try to collect information that is of value to American decision-makers, to protect American values, America—and American lives. To suggest that we’re out there, on our own, renegade, pulling in random communications, is—is simply wrong. So everything we do is for a targeted foreign intelligence purpose. With regard to the—the question of industrial espionage, no. Period. Dot. We don’t do that.” When asked how Americans could verify that, Hayden says that they should simply trust the NSA to police and monitor itself, along with oversight from the White House and from Congress. However, it will later come to light that the NSA began illegally monitoring US citizens from the start of the Bush administration (see Spring 2001). A former NSA official will later dispute Hayden’s account. “What do you expect him to say?” the official says. “He’s got to deny it. I agree. We weren’t targeting specific people, which is what the President’s executive order does. However, we did keep tabs on some Americans we caught if there was an interest [by the White House.] That’s not legal. And I am very upset that I played a part in it.” [Truthout (.org), 1/17/2006] Hayden also denies persistent allegations from European government officials that the agency has engaged in economic espionage to help American companies against European competitors (see April 4, 2001). In March 2001, the American Civil Liberties Union’s Barry Steinhardt says that “since there is no real check on [the NSA], there is no way to know” if they are following the law. Steinhardt says that Congress is the only real check on possible NSA abuses, but it has consistently failed to exercise any sort of aggressive oversight on the agency. [CNN, 3/31/2001]

Entity Tags: National Security Agency, Barry Steinhardt, Michael Hayden, American Civil Liberties Union

Timeline Tags: Civil Liberties

All the alleged 9/11 hijackers reportedly check in at the airports from where they board Flights 11, 175, 77, and 93. [9/11 Commission, 7/24/2004, pp. 1-4; 9/11 Commission, 8/26/2004, pp. 27, 89, 93] Since 1998, the FAA has required air carriers to implement a program called the Computer Assisted Passenger Prescreening System (CAPPS). This identifies those passengers who might be a security risk, based upon suspicious behavior such as buying one-way tickets or paying with cash. CAPPS also randomly assigns some passengers to receive additional security scrutiny. If a particular passenger has been designated as a “selectee,” this information is transmitted to the airport’s check-in counter, where a code is printed on their boarding pass. At the airport’s security checkpoints, selectees are subjected to additional security measures. [US News and World Report, 4/1/2002; 9/11 Commission, 1/27/2004; US Congress, 3/17/2004; 9/11 Commission, 8/26/2004, pp. 2, 85] Their baggage is to be screened for explosives or held off the plane until they have boarded. Supposedly, the thinking behind this is that someone smuggling a bomb onto a plane won’t get onto that same flight. According to the 9/11 Commission, nine of the 19 hijackers are flagged by the CAPPS system before boarding Flights 11, 175, 77, and 93. [Washington Post, 1/28/2004; 9/11 Commission, 7/24/2004, pp. 84; United States of America v. Zacarias Moussaoui, a/k/a Shaqil, a/k/a Abu Khalid al Sahrawi, Defendant, 3/6/2006] In addition, Mohamed Atta was selected when he checked in at the airport in Portland, for his earlier connecting flight to Boston (see 5:33 a.m.-5:40 a.m. September 11, 2001). All of the hijackers subsequently pass through security checkpoints before boarding their flights. [9/11 Commission, 7/24/2004, pp. 1-4]

Entity Tags: Federal Aviation Administration, Computer Assisted Passenger Prescreening System

Timeline Tags: Complete 911 Timeline, 9/11 Timeline

Shortly after the 9/11 attacks, the NSA expands surveillance operations, relying on its own authorities; some sources indicate this includes a massive domestic data mining and call tracking program, and some contend that it is illegal. In a 2006 public briefing, NSA Director Michael Hayden will say, “In the days after 9/11, NSA was using its authorities and its judgment to appropriately respond to the most catastrophic attack on the homeland in the history of the nation.” Following an October 1 briefing by Hayden to the House Intelligence Committee, Representative Nancy Pelosi (D-CA) will write to Hayden on October 11, saying, “[Y]ou indicated that you had been operating since the September 11 attacks with an expansive view of your authorities with respect to the conduct of electronic surveillance” (see October 11, 2001). Some evidence indicates NSA domestic surveillance began even before 9/11 (see Late 1999, February 27, 2000, December 2000, February 2001, February 2001, Spring 2001, and July 2001). [Nancy Pelosi, 1/6/2006; Michael Hayden, 1/23/2006]
No Connection to Bush-Authorized Warrantless Domestic Call Monitoring - In his 2006 remarks, Hayden will clearly distinguish between the expansion he initiates under his own authorities, and the warrantless monitoring of calls with one end outside the US authorized later by President Bush (see October 4, 2001), saying, “[E]xcept that they involved NSA, these [Hayden-authorized] programs were not related… to the authorization that the president has recently spoken about.” [Michael Hayden, 1/23/2006]
'Stellar Wind' Is Name of Hayden-Authorized Program - In 2012 interviews, former NSA official William Binney will indicate that “Stellar Wind” is the name of the surveillance program initiated by Hayden. [Wired News, 2/15/2012; Democracy Now!, 4/20/2012] Some sources will refer to the Bush-authorized eavesdropping as being part of the Stellar Wind program. [Newsweek, 12/22/2008]
Differing Views on Authority for Surveillance - In his 2006 briefing, Hayden will say the Fourth Amendment only protects Americans against “unreasonable search and seizure,” and that 9/11 changed what was to be considered “reasonable.” Specifically, if communications are believed to have “[i]nherent foreign intelligence value,” interception of these communications is reasonable. In addition to referring to Hayden’s “view of [his] authorities” as “expansive,” Pelosi’s letter will give another indication that the NSA’s new standard is significantly broader than it was previously, stating, “You indicated that you were treating as a matter of first impression, [redacted] being of foreign intelligence interest.” Hayden will publicly clarify in 2006 that the authority for the NSA’s operational expansion exists under an Executive Order issued by President Reagan, saying, “These decisions were easily within my authorities as the director of NSA under and [sic] executive order; known as Executive Order 12333.” And, he will say, “I briefed the entire House Intelligence Committee on the 1st of October on what we had done under our previously existing authorities” (see October 1, 2001). In her October 11 letter, Pelosi will also write of having concerns about the program that haven’t been resolved due to restrictions on information-sharing with Congress imposed by Bush (see October 11, 2001). Binney, who pioneered the development of certain NSA data mining and surveillance technologies, will come to believe that what the NSA is doing is unconstitutional; he will first take his concerns to Congress (see Before October 31, 2001) and then resign on October 31 (see October 31, 2001). [Nancy Pelosi, 1/6/2006; Michael Hayden, 1/23/2006]
Surveillance Involves Domestic Communications - In his 2006 remarks, Hayden will not say the NSA is only targeting foreign communications under his post-9/11 authorization. Rather, the context of his remarks will indicate he is referring to domestic communications. More specifically, Hayden will state: “If the US person information isn’t relevant, the data is suppressed. It’s a technical term we use; we call it ‘minimized.’ The individual is not even mentioned. Or if he or she is, he or she is referred to as ‘US Person Number One’ or ‘US Person Number Two.’ Now, inherent intelligence value. If the US person is actually the named terrorist, well, that could be a different matter.” Hayden will also reveal that information is being passed to the FBI, an investigative agency with a primarily domestic jurisdiction, saying, “[A]s another part of our adjustment, we also turned on the spigot of NSA reporting to FBI in, frankly, an unprecedented way.” [Michael Hayden, 1/23/2006] One of Pelosi’s statements in her letter to Hayden may indicate an aspect of the domestic component: “You indicated that you were treating as a matter of first impression, [redacted] being of foreign intelligence interest,” she will write. [Nancy Pelosi, 1/6/2006] In a 2011 interview with Jane Mayer published in the New Yorker, Binney will say the NSA was obtaining “billing records on US citizens” and “putting pen registers [call logs] on everyone in the country.” [New Yorker, 5/23/2011] And in a 2012 Wired article, NSA expert James Bamford will write that Binney “explains that the agency could have installed its tapping gear at the nation’s cable landing stations—the more than two dozen sites on the periphery of the US where fiber-optic cables come ashore. If it had taken that route, the NSA would have been able to limit its eavesdropping to just international communications, which at the time was all that was allowed under US law. Instead it chose to put the wiretapping rooms at key junction points throughout the country—large, windowless buildings known as switches—thus gaining access to not just international communications but also to most of the domestic traffic flowing through the US.” Binney’s account is supported by other sources (see October 2001). [Wired News, 2/15/2012]
Surveillance Program Is Massive - Bamford, citing Binney, will write: “Stellar Wind… included not just eavesdropping on domestic phone calls but the inspection of domestic email. At the outset the program recorded 320 million calls a day, he says, which represented about 73 to 80 percent of the total volume of the agency’s worldwide intercepts.” It is unclear exactly when this level of surveillance began. According to whistleblower AT&T employee Mark Klein, construction of secret rooms splitting communications traffic does not begin until Fall 2002 (see Fall 2002). Bamford will write that Binney says, “[T]he taps in the secret rooms dotting the country are actually powered by highly sophisticated software programs that conduct ‘deep packet inspection,’ examining Internet traffic as it passes through the 10-gigabit-per-second cables at the speed of light.” [Wired News, 2/15/2012] Also, Binney’s remark to Jane Mayer that the NSA was “putting pen registers on everyone in the country” indicates the broad scope of the program. [New Yorker, 5/23/2011]

Entity Tags: Religious Society of Friends (Quakers), US Department of Justice, National Security Agency, George W. Bush, Michael Hayden, Al-Qaeda, Foreign Intelligence Surveillance Court, House Intelligence Committee, Nancy Pelosi, Ronald Reagan

Timeline Tags: Civil Liberties

NSA director Michael Hayden addresses the NSA in a global videoconference, saying that the NSA, like other government agencies, will have to do more to protect the country from further terrorist attacks. The challenge, he says, is to balance Americans’ security with civil liberties, “to keep America free by making Americans feel safe again.” Hayden will say in a 2006 speech reflecting on that videoconference (see January 23, 2006) that US citizens operate under misconceptions about the NSA’s capabilities—that while citizens believe the NSA has a global electronic surveillance network that can, and does, spy on citizens willy-nilly, in reality the NSA is understaffed and unprepared to handle the technological advances of the last decade. Hayden will say that with more extensive domestic surveillance of US citizens and foreign visitors, the NSA could have caught some of the 9/11 hijackers before they were able to put their plan into motion. The standards by which US citizens and foreign visitors are monitored must change, Hayden believes.
Expansion of NSA Surveillance Powers - Using Ronald Reagan’s 1981 executive order 12333 (see December 4, 1981), Hayden expands the NSA’s domestic surveillance practices to eavesdrop, sometimes without court approval, on selected international calls made by US citizens. Though Hayden’s expansion of NSA surveillance is not directly authorized by President Bush, and is not the same program as authorized by Bush’s secret executive order of 2002 (see Early 2002), Hayden will later say that this expansion is based on the intelligence community’s assessment “of a serious and continuing threat to the homeland.” Hayden’s program is reviewed and approved by lawyers at the NSA, the Justice Department, and the White House, as well as Attorney General John Ashcroft. [Michael Hayden, 1/23/2006]
Domestic Surveillance Began Before 9/11? - Though Bush officials admit to beginning surveillance of US citizens only after the 9/11 attacks, some evidence indicates that the domestic surveillance program began some time before 9/11 (see Late 1999, February 27, 2000, December 2000, February 2001, February 2001, Spring 2001, and July 2001).

Entity Tags: Terrorist Surveillance Program, US Department of Justice, National Security Agency, John Ashcroft, George W. Bush, Bush administration (43), Ronald Reagan, Michael Hayden

Timeline Tags: Civil Liberties

The US Congress adopts a joint resolution, the Authorization for Use of Military Force (AUMF), that determines that “the president is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.” Congress also states that the “grave acts of violence” committed on the US “continue to pose an unusual and extraordinary threat to [its] national security and foreign policy.” [US Congress, 9/14/2001] President Bush signs the resolution into law on September 18. [White House, 9/18/2001] The passage of the AUMF served another purpose: to extend presidential power. While the Defense Department and the Joint Chiefs of Staff intended the AUMF to define the conflict in narrow terms, and authorize the US to move militarily against al-Qaeda and its confederates, and the Taliban, Vice President Dick Cheney and his chief of staff, David Addington, had a larger goal. Attorney Scott Horton, who has written two major studies on interrogation of terrorism suspects for the New York City Bar Association, says in 2005 that Cheney and Addington “really wanted [the AUMF defined more broadly], because it provided the trigger for this radical redefinition of presidential power.” Addington helped draft a Justice Department opinion in late 2001, written by lawyer John Yoo (see Late September 2001), that asserted Congress cannot “place any limits on the president’s determinations as to any terrorist threat, the amount of military force to be used in response, or the method, timing, and nature of the response.” [US News and World Report, 5/21/2006]

Entity Tags: US Department of Defense, Taliban, Scott Horton, Joint Chiefs of Staff, Richard (“Dick”) Cheney, David S. Addington, George W. Bush, John C. Yoo, Al-Qaeda, Authorization to Use Military Force (AUMF)

Timeline Tags: Torture of US Captives, Complete 911 Timeline, Civil Liberties

John Yoo, a deputy assistant attorney general in the Department of Justice (DOJ) Office of Legal Counsel (OLC), issues a legal opinion that says the US can conduct electronic surveillance against its citizens without probable cause or warrants. According to the memo, the opinion was drafted in response to questions about whether it would be constitutional to amend the Foreign Intelligence Surveillance Act (FISA) to state that searches may be approved when foreign intelligence collection is “a purpose” of the search, rather than “the purpose.” Yoo finds this would be constitutional, but goes further. He asserts that FISA is potentially in conflict with the Constitution, stating, “FISA itself is not required by the Constitution, nor is it necessarily the case that its current standards match exactly to Fourth Amendment standards.” Citing Vernonia School Dist. 47J v. Acton, in which the Supreme Court found that warrantless searches of students were permissible, Yoo argues that “reasonableness” and “special needs” are also the standards according to which warrantless monitoring of the private communications of US persons is permissible. According to Yoo, the Fourth Amendment requirement for probable cause and warrants prior to conducting a search pertain primarily to criminal investigations, and in any case cannot be construed to restrict presidential responsibility and authority concerning national security. Yoo further argues that in the context of the post-9/11 world, with the threat posed by terrorism and the military nature of the fight against terrorism, warrantless monitoring of communications is reasonable. Some information indicates the NSA began a broad program involving domestic surveillance prior to the 9/11 attacks, which contradicts the claim that the program began after, and in response to, the attacks (see Late 1999, February 27, 2000, December 2000, February 2001, February 2001, Spring 2001, and July 2001). [US Department of Justice, 9/25/2001 pdf file; American Civil Liberties Union [PDF], 1/28/2009 pdf file; New York Times, 3/2/2009; Inspectors General, 7/10/2009]
Yoo Memo Used to Support Legality of Warrantless Surveillance - Yoo’s memo will be cited to justify the legality of the warrantless domestic surveillance program authorized by President Bush in October 2001 (see October 4, 2001). NSA Director General Michael Hayden, in public remarks on January 23, 2006, will refer to a presidential authorization for monitoring domestic calls having been given prior to “early October 2001.” Hayden will also say, “The lawfulness of the actual authorization was reviewed by lawyers at the Department of Justice and the White House and was approved by the attorney general.” The various post-9/11 NSA surveillance activities authorized by Bush will come to be referred to as the President’s Surveillance Program (PSP), and the first memo directly supporting the program’s legality will be issued by Yoo on November 2, 2001, after the program has been initiated (see November 2, 2001). Many constitutional authorities will reject Yoo’s legal rationale. [Michael Hayden, 1/23/2006]
Yoo Memo Kept Secret from Bush Officials Who Might Object - According to a report by Barton Gellman and Jo Becker in the Washington Post, the memo’s “authors kept it secret from officials who were likely to object,” including ranking White House national security counsel John Bellinger, who reports to National Security Adviser Condoleezza Rice. Bellinger’s deputy, Bryan Cunningham, will tell the Post that Bellinger would have recommended having the program vetted by the Foreign Intelligence Surveillance Court, which oversees surveillance under FISA. Gellman and Becker quote a “senior government lawyer” as saying that Vice President Dick Cheney’s attorney, David Addington, had “open contempt” for Bellinger, and write that “more than once he accused Bellinger, to his face, of selling out presidential authority for good ‘public relations’ or bureaucratic consensus.” [Washington Post, 6/24/2007]

Entity Tags: US Department of Justice, John Bellinger, National Security Agency, Bryan Cunningham, Condoleezza Rice, David S. Addington, Foreign Intelligence Surveillance Act, Foreign Intelligence Surveillance Court, Office of Legal Counsel (DOJ), John C. Yoo, George W. Bush, Richard (“Dick”) Cheney

Timeline Tags: Civil Liberties

According to author Ronald Kessler’s November 2007 book The Terrorist Watch, the NSA’s domestic surveillance program begins around two weeks after the 9/11 attacks, when President Bush meets with NSA director Michael Hayden and other NSA officials in the Oval Office. According to chief of staff Andrew Card, in attendance, Bush asks, “What tools do we need to fight the war on terror?” Hayden suggests revamping NSA guidelines to allow the agency to wiretap domestic phone calls and intercept e-mails to and from terror suspects if one end of the communication is overseas. Kessler gives the following rather lurid example: “Thus, if [Osama] bin Laden were calling the US to order the detonation of a nuclear device, and the person he called began making overseas calls, NSA could listen in to those calls as well as to bin Laden’s original call.” Kessler is a chief correspondent for the extremist conservative Web site NewsMax; his assertion is disputed by evidence suggesting that the domestic surveillance program began well before the 9/11 attacks (see Late 1999, February 27, 2000, December 2000, February 2001, February 2001, Spring 2001, and July 2001). [Kessler, 2007, pp. 130]

Entity Tags: National Security Agency, Andrew Card, Michael Hayden, Ronald Kessler, George W. Bush

Timeline Tags: Civil Liberties

Former AT&T employee Mark Klein.Former AT&T employee Mark Klein. [Source: PBS]The National Security Agency, as part of its huge, covert, and possibly illegal wiretapping program directed at US citizens (see Spring 2001 and After September 11, 2001), begins collecting telephone records of tens of millions of Americans, using data provided by telecommunications firms such as AT&T, Verizon, and BellSouth (see February 5, 2006). The media will not report on this database until May 2006 (see May 11, 2006). The program collects information on US citizens not suspected of any crime or any terrorist connections. Although informed sources say the NSA is not listening to or recording actual conversations, the agency is using the data to analyze calling patterns in an effort to detect terrorist activity. “It’s the largest database ever assembled in the world,” says one anonymous source. The NSA intends “to create a database of every call ever made.” As a result, the NSA has detailed records of the phone activities of tens of millions of US citizens, from local calls to family and friends to international calls. The three telecommunications companies are working with the NSA in part under the Communications Assistance Act for Law Enforcement (CALEA) (see January 1, 1995 and June 13, 2006) and in part under contract to the agency.
Surveillance Much More Extensive Than Acknowledged - The wiretapping program, which features electronic surveillance of US citizens without court warrants or judicial oversight, is far more extensive than anything the White House or the NSA has ever publicly acknowledged. President Bush will repeatedly insist that the NSA focuses exclusively on monitoring international calls where one of the call participants is a known terrorist suspect or has a connection to terrorist groups (see December 17, 2005 and May 11, 2006), and he and other officials always insist that domestic calls are not monitored. This will be proven false. The NSA has become expert at “data mining,” sifting through reams of information in search of patterns. The warrantless wiretapping database is one source of information for the NSA’s data mining. As long as the NSA does not collect “personal identifiers”—names, Social Security numbers, street addresses, and the like—such data mining is legal. But the actual efficacy of the wiretapping program in learning about terrorists and possibly preventing terrorist attacks is unclear at best. And many wonder if the NSA is not repeating its activities from the 1950s and 1960s, when it conducted “Operation Shamrock” (see 1945-1975), a 20-year program of warrantless wiretaps of international phone calls at the behest of the CIA and other intelligence agencies. Operation Shamrock, among other things, led to the 1978 passage of the Foreign Intelligence Surveillance Act (see 1978). [USA Today, 5/11/2006] In May 2006, former NSA director Bobby Ray Inman will say, “[T]his activity is not authorized” (see May 12, 2006). [Democracy Now!, 5/12/2006]
Secret Data Mining Center - In May 2006, retired AT&T technician Mark Klein, a 22-year veteran of the firm, will file a court affidavit saying that he saw the firm construct a secret data-mining center in its San Francisco switching center that would let the NSA monitor domestic and international communications (see January 2003). And former AT&T workers say that, as early as 2002, AT&T has maintained a secret area in its Bridgeton, Missouri, facility that is likely being used for NSA surveillance (see Late 2002-Early 2003).
Domestic Surveillance Possibly Began Before 9/11 - Though Bush officials admit to beginning surveillance of US citizens only after the 9/11 attacks, some evidence indicates that the domestic surveillance program began some time before 9/11 (see Late 1999, February 27, 2000, December 2000, February 2001, February 2001, Spring 2001, and July 2001).

Entity Tags: Terrorist Surveillance Program, Verizon Communications, Mark Klein, George W. Bush, AT&T, BellSouth, Central Intelligence Agency, Communications Assistance for Law Enforcement Act (CALEA), Foreign Intelligence Surveillance Act, Qwest, National Security Agency

Timeline Tags: Civil Liberties

President Bush issues a directive authorizing the National Security Agency (NSA) to operate a warrantless domestic surveillance program. Author/journalist Jane Mayer will report in 2011, “[O]n October 4, 2001, Bush authorized the policy, and it became operational by October 6th,” and, “[t]he new policy, which lawyers in the Justice Department justified by citing President Bush’s executive authority as commander in chief, contravened a century of constitutional case law.” Mayer will interview NSA whistleblower Thomas Drake for her article and quote him as saying that, following the October 4 directive, “strange things were happening. Equipment was being moved. People were coming to me and saying, ‘We’re now targeting our own country!’” Bush’s directive is based on a legal opinion drafted by Department of Justice Office of Legal Counsel Deputy Attorney General John Yoo (see September 25, 2001). [New Yorker, 5/23/2011]
Conflicting Information regarding Date of First Authorization - The existence of the NSA’s domestic surveillance program will first be made public in December 2005, following reporting by the New York Times that will cite “[n]early a dozen current and former officials” (see December 15, 2005). The Times article will state that in 2002, “[m]onths after the Sept. 11 attacks,” Bush signed an executive order authorizing the NSA to monitor domestic phone calls, including those of US citizens and permanent residents, if one end of the call was outside the country. The Times article also mentions an NSA “‘special collection program’ [that] began soon after the Sept. 11 attacks, as it looked for new tools to attack terrorism.” The difference between the October 4, 2001 directive and the 2002 executive order referred to by the Times is unclear. [New York Times, 12/16/2005]
Other Sources for October Directive - Other sources, including Bush, NSA Director General Michael Hayden, and the inspectors general of five separate agencies, will later refer to a presidential order having been given in “October,” or “weeks” after the 9/11 attacks, and say that, subsequent to this order, international calls of US persons are targeted for content-monitoring. Following the publication of the Times article, Bush will say in a December 17, 2005 radio address: “In the weeks following the terrorist attacks on our nation, I authorized the National Security Agency, consistent with US law and the Constitution, to intercept the international communications of people with known links to al-Qaeda and related terrorist organizations. Before we intercept these communications, the government must have information that establishes a clear link to these terrorist networks” (see December 17, 2005). This presidential authorization was based on a legal opinion drafted by Department of Justice Office of Legal Counsel attorney John Yoo (see October 18, 2001). [WhiteHouse(.gov), 12/17/2005] Hayden, in public remarks on January 23, 2006, will refer to a presidential authorization for monitoring domestic calls having been given prior to “early October 2001,” which is when he “gathered key members of the NSA workforce… [and] introduced [the NSA’s] new operational authority to them.” Hayden will also say, “The lawfulness of the actual authorization was reviewed by lawyers at the Department of Justice and the White House and was approved by the attorney general,” and that “the three most senior and experienced lawyers in NSA… supported the lawfulness of this program.” [Michael Hayden, 1/23/2006] In a July 10, 2009 jointly-issued report, the inspectors general of the Department of Defense, Department of Justice, CIA, NSA, and Office of the Director of National Intelligence will refer to the “President’s Surveillance Program” (PSP) and “the program’s inception in October 2001.” The report will say: “One of the activities authorized as part of the PSP was the interception of the content of communications into and out of the United States where there was a reasonable basis to conclude that one party to the communication was a member of al-Qaeda or related terrorist organizations.… The attorney general subsequently publicly acknowledged the fact that other intelligence activities were also authorized under the same presidential authorization, but the details of those activities remain classified.” [Inspectors General, 7/10/2009] Citing “a senior administration official,” the Washington Post will report on January 4, 2006: “The secret NSA program… was authorized in October 2001.… The president and senior aides have publicly discussed various aspects of the program, but neither the White House, the NSA, nor the office of the director of national intelligence would say what day the president authorized it.” [Washington Post, 1/4/2006]

Entity Tags: US Department of Justice, Thomas Drake, US Department of Defense, Office of Legal Counsel (DOJ), Office of the Director of National Intelligence, Michael Hayden, National Security Agency, George W. Bush, Central Intelligence Agency, John C. Yoo, Jane Mayer

Timeline Tags: Civil Liberties

Nancy Pelosi.Nancy Pelosi. [Source: US Congress]House Minority Leader Nancy Pelosi (D-CA) writes to NSA Director Michael Hayden questioning the nature and extent of the apparently illegal warrantless wiretapping of US citizens by the agency. Pelosi and other members of the House Intelligence Committee were briefed on October 1, 2001, by Hayden, whose agency began conducting surveillance against US citizens after the 9/11 attacks (see After September 11, 2001). Pelosi will release the letter on January 6, 2006, three weeks after the New York Times revealed that the NSA had been conducting electronic surveillance of US citizens without warrants since at least 2002 (see December 15, 2005.) Pelosi’s office will also release Hayden’s response, but almost the entire letter from Hayden is redacted.
Letter to Hayden - Pelosi writes in part, “[Y]ou indicated [in the briefing] that you had been operating since the September 11 attacks with an expansive view of your authorities with respect to the conduct of electronic surveillance under the Foreign Intelligence Surveillance Act and related statutes, orders, regulations, and guidelines.… For several reasons, including what I consider to be an overly broad interpretation of President Bush’s directive of October 5 on sharing with Congress ‘classified or sensitive law enforcement information’ it has not been possible to get answers to my questions. Without those answers, the concerns I have about what you said on the First can not be resolved, and I wanted to bring them to your attention directly. You indicated that you were treating as a matter of first impression, [redacted ] being of foreign intelligence interest. As a result, you were forwarding the intercepts, and any information [redacted ] without first receiving a request for that identifying information to the Federal Bureau of Investigation. Although I may be persuaded by the strength of your analysis [redacted ] I believe you have a much more difficult case to make [redacted ] Therefore, I am concerned whether, and to what extent, the National Security Agency has received specific presidential authorization for the operations you are conducting. Until I understand better the legal analysis regarding the sufficiency of the authority which underlies your decision on the appropriate way to proceed on this matter, I will continue to be concerned.” The only portion of Hayden’s October 18 reply regarding Pelosi’s concerns that has not been redacted reads, “In my briefing, I was attempting to emphasize that I used my authorities to adjust NSA’s collection and reporting.” In January 2006, an NSA official will say that Pelosi’s concerns were adequately addressed in Hayden’s reply, and in a private briefing shortly thereafter. [Washington Post, 1/4/2006; Nancy Pelosi, 1/6/2006]
Pelosi Unaware of Pre-9/11 Surveillance - Though Bush officials eventually admit to beginning surveillance of US citizens only after the 9/11 attacks, that assertion is disputed by evidence suggesting that the domestic surveillance program began well before 9/11 (see Late 1999, February 27, 2000, December 2000, February 2001, February 2001, Spring 2001, and July 2001). Pelosi is apparently unaware of any of this.

Entity Tags: Michael Hayden, House Intelligence Committee, Nancy Pelosi

Timeline Tags: Civil Liberties

NSA Director Michael Hayden responds to an October 11 letter from Representative Nancy Pelosi (see October 11, 2001), expressing concerns about the NSA’s post-9/11 surveillance expansion (see After September 11, 2001) that Hayden outlined for the House Intelligence Committee on October 1 (see October 1, 2001), and asking whether the president authorized it. The substance of Hayden’s October 18 reply will be redacted, except for this statement: “In my briefing, I was attempting to emphasize that I used my authorities to adjust NSA’s collection and reporting.” [Nancy Pelosi, 1/6/2006] A January 4, 2006 report in the Washington Post will cite “intelligence official close to Hayden” as saying that “[Hayden’s] appearance on Oct. 1, 2001, before the House committee had been to discuss Executive Order 12333, and not the new NSA program,” and that “Pelosi’s concerns had been answered in writing and again several weeks later during a private briefing.” [Washington Post, 1/4/2006] In a January 23, 2006 public briefing, Hayden will say, “September 2001, I asked to update the Congress on what NSA had been doing, and I briefed the entire House Intelligence Committee on the 1st of October on what we had done under our previously existing authorities,” and, “These decisions were easily within my authorities as the director of NSA under and [sic] executive order; known as Executive Order 12333.” [Michael Hayden, 1/23/2006]
Nature of Hayden's EO 12333 Surveillance Program - The full scope of Hayden’s surveillance program is unclear, but some sources indicate it includes the wholesale collection and data-mining of phone records provided by telecom companies and placement of pen registers (call trackers) on domestic phone numbers (see After September 11, 2001, October 11, 2001, After September 11, 2001, Late September, 2001, October 2001), and October 31, 2001). Some sources indicate the NSA began large-scale domestic surveillance activities prior to the 9/11 attacks (see Late 1999, February 27, 2000, December 2000, February 2001, February 2001, Spring 2001, and July 2001).

Entity Tags: Michael Hayden, House Intelligence Committee, Nancy Pelosi, National Security Agency

Timeline Tags: Civil Liberties

Vice President Dick Cheney summons the chairmen and ranking members of the Senate and House Intelligence Committees to the White House for a classified briefing on the secret NSA warrantless wiretapping program (see Early 2002). Cheney makes it clear to the lawmakers that he is merely informing them about the program, and not seeking their approval. [Washington Post, 12/18/2005] Officials later say that under any of the previous presidents, such a meeting of this import would involve the president. But the four lawmakers are hustled away from the Oval Office. Instead, “[w]e met in the vice president’s office,” Bob Graham (D-FL), the chairman of the Senate Intelligence Committee, later recalls. President Bush has already told Graham that “the vice president should be your point of contact in the White House.” Cheney, according to the president, “has the portfolio for intelligence activities.” [Washington Post, 6/24/2007] The leaders are briefed by Cheney, CIA Director George Tenet, and NSA Director Michael Hayden. The Congressional leaders will later mostly refuse to comment publicly about what they do and do not learn about the program, even after it is revealed to the public (see December 15, 2005). In 2003, when Senator John D. Rockefeller ascends to the Democratic leadership of the Senate committee, and is himself briefed on the program, he will write to Cheney expressing his concerns over it (see July 17, 2003). [New York Times, 12/15/2005]
'No Discussion about Expanding' NSA Wiretapping - In December 2005, after the program is revealed to the public, one of the Congressmen present at the briefings, Graham, the then-chairman of the Senate Intelligence Committee, will discuss his knowledge of the program. In contradiction to the characterizations of Bush and other White House officials, Graham will say that he recalls “no discussion about expanding [NSA eavesdropping] to include conversations of US citizens or conversations that originated or ended in the United States,” and knew nothing of Bush’s intention to ignore the Foreign Intelligence Surveillance Court (also known as the FISA court). “I came out of the room with the full sense that we were dealing with a change in technology but not policy,” Graham will recall, using new methodologies to intercept overseas calls that passed through US switches. He thought that NSA eavesdropping would continue to be limited to “calls that initiated outside the United States, had a destination outside the United States but that transferred through a US-based communications system.” Instead, Graham will say, it now seems that Bush decided to go “beyond foreign communications to using this as a pretext for listening to US citizens’ communications. There was no discussion of anything like that in the meeting with Cheney.” A senior intelligence official, who refuses to reveal his identity but says he is speaking with the permission of the White House, will accuse Graham of “misremembering the briefings,” which he will call “very, very comprehensive.” The official will refuse to discuss the briefings in any but the most general terms, but will say they were intended “to make sure the Hill knows this program in its entirety, in order to never, ever be faced with the circumstance that someone says, ‘I was briefed on this but I had no idea that—’ and you can fill in the rest.” Graham will characterize the official’s description as saying: “[W]e held a briefing to say that nothing is different.… Why would we have a meeting in the vice president’s office to talk about a change and then tell the members of Congress there is no change?” House Minority Leader Nancy Pelosi (D-CA), who was also present at the meeting as the ranking Democrat on the House Intelligence Committee, will say the briefing described “President Bush’s decision to provide authority to the National Security Agency to conduct unspecified activities.” She will note that she “expressed my strong concerns” but did not go into detail. [Washington Post, 12/18/2005]
Lawmakers Unaware of Pre-9/11 Surveillance - Though Bush officials eventually admit to beginning surveillance of US citizens only after the 9/11 attacks, that assertion is disputed by evidence suggesting that the domestic surveillance program began well before 9/11 (see Late 1999, February 27, 2000, December 2000, February 2001, February 2001, Spring 2001, and July 2001). In the briefing, Cheney informs the lawmakers of none of this.

Entity Tags: Richard (“Dick”) Cheney, Senate Intelligence Committee, Nancy Pelosi, John D. Rockefeller, House Intelligence Committee, Daniel Robert (“Bob”) Graham, George J. Tenet, George W. Bush, Michael Hayden, National Security Agency

Timeline Tags: Civil Liberties

Concerned that NSA post-9/11 surveillance operations violated the US Constitution, a senior NSA official reports on the program to House Intelligence Committee staff (see Before October 31, 2001), then retires. William Binney, a crypto-mathematician, had served in the NSA for 36 years. In 1997 he was made technical director of the World Geopolitical and Military Analysis Reporting Group, a 6000-employee unit that focused on signals intelligence (SIGINT) reporting and analysis. In the last part of his NSA career, Binney focused on dealing with the NSA’s problem of information overload, co-founding the Signals Intelligence Automation Research Center (SARC) and leading a 20-member team to develop a data-mining and analysis program called ThinThread. This program made it possible to “correlate data from financial transactions, travel records, Web searches, GPS equipment, and any other ‘attributes’ that an analyst might find useful,” and “could chart relationships among people in real time.” Unlike the NSA’s existing centralized data processing systems, ThinThread was able to identify useful or useless data as it was collected, reducing the overload problem. However, though it targeted foreign communications, ThinThread also intercepted those of Americans, and “continued documenting signals when a trail crossed into the US.” Binney incorporated measures to protect privacy, but NSA lawyers still considered the program too invasive, according to a 2011 article by Jane Mayer based on interviews with Binney and another NSA whistleblower, Thomas Drake. In 1999, NSA Director General Michael Hayden decided to fund a rival program, Trailblazer, which would be developed by defense contractors (see Late 1999). Trailblazer will be abandoned in 2006 as unworkable, after costing $1.2 billion (see January 2006). [New Yorker, 5/23/2011; Wired News, 2/15/2012; Democracy Now!, 4/20/2012] In 2002, three NSA whistleblowers—Edward Loomis, J. Kirk Wiebe, and Binney—will ask the Pentagon to investigate the NSA for wasting “millions and millions of dollars” on Trailblazer. [Nation, 3/26/2013]
Post-9/11 NSA Surveillance Expansion - Binney will tell Mayer that, after the 9/11 attacks, his people began coming to him, saying things like: “They’re getting billing records on US citizens! They’re putting pen registers [call logs] on everyone in the country!” James Bamford will interview Binney in 2012 and write, “At the outset the program recorded 320 million calls a day, [Binney] says, which represented about 73 to 80 percent of the total volume of the agency’s worldwide intercepts.” Binney has not been personally “read in” to this domestic surveillance program, but some members of his SARC team have, as their knowledge of ThinThread code was needed to set it up. Binney became convinced elements of ThinThread were being used, but without privacy protections, meaning US persons could be targeted. Soon after learning these things, Binney takes his concerns to the House Intelligence Committee (see Before October 31, 2001), and retires on October 31. He will tell Mayer, “I couldn’t be an accessory to subverting the Constitution.” Other sources support Binney’s account of this NSA data-mining and monitoring program (see After September 11, 2001, October 11, 2001, After September 11, 2001, Late September, 2001, and October 2001). However, the claim that NSA domestic surveillance was initiated only after, and in response to, 9/11 is contradicted by information indicating that domestic monitoring programs and activities were established and conducted prior to 9/11 (see Late 1999, February 27, 2000, December 2000, February 2001, February 2001, Spring 2001, and July 2001). [New Yorker, 5/23/2011; Wired News, 2/15/2012; Democracy Now!, 4/20/2012]
ThinThread 'Would Likely Have Prevented 9/11' - Despite ThinThread’s capacity to collect actionable intelligence, Hayden vetoed the idea of deploying the system three weeks before 9/11, in August 2001. According to the Loomis, Wiebe, and Binney, this decision “left the NSA without a system to analyze the trillions of bits of foreign SIGINT flowing over the Internet at warp speed, as ThinThread could do.” During the summer of 2001, when “the system was blinking red,” according to CIA Director George Tenet, the NSA “failed to detect critical phone and e-mail communications that could have tipped US intelligence to al-Qaeda’s plans to attack.” [Nation, 3/26/2013]

Entity Tags: Edward Loomis, World Geopolitical and Military Analysis Reporting Group, J. Kirk Wiebe, William Binney, Thomas Drake, House Intelligence Committee, James Bamford, Trailblazer, Jane Mayer, National Security Agency, Signals Intelligence Automation Research Center, Michael Hayden, Thinthread

Timeline Tags: Civil Liberties

John Yoo, the Justice Department’s (DOJ) Office of Legal Counsel (OLC) deputy assistant attorney general, sends a classified memo to Attorney General John Ashcroft justifying warrantless surveillance of US persons. The National Security Agency (NSA)‘s domestic surveillance authorized by President Bush (see October 4, 2001, Early 2002, and December 15, 2005) will come to be publicly referred to as the President’s Surveillance Program (PSP). This is not the first Yoo memo supporting warrantless surveillance (see September 25, 2001), but a 2009 report on the PSP jointly issued by the inspectors general (IGs) of the Department of Defense (DOD), DOJ, CIA, National Security Agency (NSA), and Office of the Director of National Intelligence (ODNI) will refer to it as “[t]he first OLC opinion directly supporting the legality of the PSP.” The IGs’ report will quote from and comment on the memo, noting that “deficiencies in Yoo’s memorandum identified by his successors in the Office of Legal Counsel and the Office of the Deputy Attorney General later became critical to DOJ’s decision to reassess the legality of the program in 2003.” According to the IGs’ report, Yoo asserts that warrantless surveillance is constitutional as long as it is “reasonable” under the Fourth Amendment, which only protects against “unreasonable searches and siezures.” On this point, the IGs’ report will note that Yoo’s successors were troubled by his failure to discuss the Supreme Court’s decision in Youngstown Sheet & Tube Co. v. Sawyer (1952), which found the president’s wartime authority to be limited. His memo does acknowledge that the Foreign Intelligence Surveillance Act (FISA) “purports to be the exclusive statutory means for conducting electronic surveillance for foreign intelligence,” but asserts that it is only a “safe harbor for electronic surveillance” because it cannot “restrict the president’s ability to engage in warrantless searches that protect the national security.” Yoo also writes that Congress has not “made a clear statement in FISA that it sought to restrict presidential authority to conduct warrantless searches in the national security area.” The IGs’ report will state that Yoo’s successors considered this problematic because Yoo has omitted discussion of the fact that FISA explicitly authorizes the president to conduct warrantless surveillance during the first 15 days following a declaration of war by Congress, which they considered an expression of Congress’s intent to restrict warrantless surveillance to a limited period of time and specific circumstances. The IGs’ report will also state that Yoo’s memo discusses “the legal rationale for Other Intelligence Activities authorized as part of the PSP,” and that Yoo concludes, “[W]e do not believe that Congress may restrict the president’s inherent constitutional powers, which allow him to gather intelligence necessary to defend the nation from direct attack.” The IGs’ report will say that “Yoo’s discussion of some of the Other Intelligence Activities did not accurately describe the scope of these activities,” and that Yoo’s successors considered his discussion of these other activities to be “insufficient and presenting a serious impediment to recertification of the program as to form and legality.” [Inspectors General, 7/10/2009, pp. pp. 11-13]
Memo's Existence Revealed by ACLU Lawsuit - On December 15, 2005, the New York Times will report that Bush authorized an NSA warrantless domestic surveillance program after the 9/11 attacks (see December 15, 2005). The American Civil Liberties Union (ACLU) will request records pertaining to the program under the Freedom of Information Act (FOIA) and then sue the Justice Department for the release of records. The existence of Yoo’s November 2 memo will first be revealed in an October 19, 2007 deposition filed by then head of the OLC Steven Bradbury in response to the ACLU lawsuit, which says that it “[concerns] the legality of certain communications intelligence activities.” After the 2009 release of the IGs’ report the ACLU will notify the court and the government will agree to reprocess four OLC memos, including Yoo’s November 2 memo. This memo and a May 6, 2004 memo by Yoo’s OLC successor Jack Goldsmith that disputes many of Yoo’s conclusions will be released in heavily redacted form on March 18, 2011. [ACLU.org, 2/7/2006; United States District Court of DC, 10/19/2007; American Civil Liberties Union, 3/19/2011]
Constitutional Experts Dispute Yoo's Legal Rationale - Numerous authorities on the law will question or reject the legal bases for warrantless domestic surveillance. In 2003, Yoo will leave the OLC. Goldsmith will begin a review of the PSP, after which he will conclude it is probably illegal in some respects and protest, within the executive branch, its continuation (see Late 2003-Early 2004 and December 2003-June 2004). Following the public disclosure of its existence, a January 5, 2006 report by the Congressional Research Service will find it to be of dubious legality (see January 5, 2006). On January 19, 2006, the DOJ will issue a 42-page white paper laying out the legal bases for the program (see January 19, 2006). These bases will be reviewed and rejected by 14 constitutional scholars and former government officials in a joint letter to Congress on February 2, 2006. [al [PDF], 2/2/2006 pdf file] The American Bar Association will adopt a resolution on February 13, 2006 that rejects DOJ’s arguments and calls on Congress to investigate the program. [Delegates, 2/13/2006 pdf file] On August 17, 2006, in the case ACLU v. NSA, US district judge Anna Diggs Taylor will reject the government’s invocation of the “state secrets privilege” and its argument that plaintiffs’ lack standing due to their being unable to prove they were surveilled, and will rule that warrantless surveillance is in violation of “the separation of powers doctrine, the Administrative Procedures Act, the First and Fourth Amendments to the United States Constitution, the FISA, and Title III” (see August 17, 2006). Taylor’s ruling will be overturned on appeal, on the grounds that the plaintiffs lack standing as they cannot prove that surveillance has occurred. In another case, Al Haramain v. Barack Obama, the government will make the same arguments, but US district judge Vaughn Walker will reject these and conclude in 2010 that illegal surveillance occurred (see March 31, 2010). [Al-Haramain v. Obama, 3/31/2010]

Entity Tags: Steven Bradbury, Vaughn Walker, Ronald Dworkin, George W. Bush, John C. Yoo, American Bar Association, Office of Legal Counsel (DOJ), American Civil Liberties Union, John Ashcroft, Anna Diggs Taylor, US Department of Justice

Timeline Tags: Civil Liberties

Deputy Assistant Attorney Generals Patrick Philbin and John Yoo send a memorandum to Pentagon General Counsel William J. Haynes offering the legal opinion that US courts do not have jurisdiction to review the detention of foreign prisoners at Guantanamo Bay. Therefore detentions of persons there cannot be challenged in a US court of law. The memo is endorsed by the Department of Defense and White House legal counsel Alberto Gonzales. [Newsweek, 5/24/2004] The memo addresses “the question whether a federal district court would properly have jurisdiction to entertain a petition for a writ of habeas corpus filed on behalf of an alien detained at the US naval base at Guantanamo Bay, Cuba.” The conclusion of Philbin and Yoo is that it cannot, based primarily on their interpretation of a decision by the US Supreme Court in the 1950 Eisentrager case, in which the Supreme Court determined that no habeas petition should be honored if the prisoners concerned are seized, tried, and held in territory that is outside of the sovereignty of the US and outside the territorial jurisdiction of any court of the US. Both conditions apply to Guantanamo according to Philbin and Yoo. Approvingly, they quote the US Attorney General in 1929, who stated that Guantanamo is “a mere governmental outpost beyond our borders.” A number of cases, quoted by the authors, “demonstrate that the United States has consistently taken the position that [Guantanamo Bay] remains foreign territory, not subject to US sovereignty.” Guantanamo is indeed land leased from the state of Cuba, and therefore in terms of legal possession and formal sovereignty still part of Cuba. But Philbin and Yoo acknowledge a problem with the other condition: namely that the territory is outside the US’s jurisdiction. They claim with certainty that Guantanamo “is also outside the ‘territorial jurisdiction of any court of the United States.’” However, the Supreme Court should not have made a distinction between jurisdiction and sovereignty here; the wording of the decision is really, Philbin and Yoo believe, an inaccurate reflection of its intent: “an arguable imprecision in the Supreme Court’s language.” For that reason, they call for caution. “A non-frivolous argument might be constructed, however, that [Guantanamo Bay], while not be part of sovereign territory of the United States, is within the territorial jurisdiction of a federal court.” [US Department of Justice, 12/28/2001 pdf file]

Entity Tags: John C. Yoo, Alberto R. Gonzales, Patrick F. Philbin, William J. Haynes

Timeline Tags: Torture of US Captives, Civil Liberties

Sometime in early 2002, President Bush signs a secret executive order authorizing the National Security Agency (NSA) to wiretap phone conversations and read e-mails to and from US citizens. The order extends an operation set into motion at least as early as October 2001 to begin wiretapping US citizens’ phones in a response to the 9/11 attacks. When the program is revealed by the US media in late 2005 (see December 15, 2005), Bush and his officials will say the program is completely legal, though it ignores the requirements of the Foreign Intelligence Surveillance Act (FISA) that requires the government to obtain court-issued warrants to mount surveillance against US citizens. They will insist that only those suspected of having ties to al-Qaeda are monitored, and only when those individuals make or receive international communications. [New York Times, 12/15/2005; Washington Post, 12/22/2005; Newsweek, 12/22/2008] Bush’s order authorizes the NSA to monitor international telephone conversations and international e-mails of hundreds, and perhaps thousands, of US citizens without court warrants, in an effort to track what officials call “dirty numbers” linked to al-Qaeda. When the program is finally revealed by the New York Times over three years later (see December 15, 2005), officials will say that the NSA still seeks warrants to monitor domestic communications. But there is little evidence of this (see, for example, Spring 2001). The presidential order is a radical shift in US surveillance and intelligence-gathering policies, and a major realignment for the NSA, which is mandated to only conduct surveillance abroad. Some officials believe that the NSA’s domestic eavesdropping crosses constitutional limits on legal searches. “This is really a sea change,” a former senior official who specializes in national security law will say in December 2005. “It’s almost a mainstay of this country that the NSA only does foreign searches.” [New York Times, 12/15/2005] Some sources indicate that NSA domestic surveillance activities, such as data-mining, the use of information concerning US persons intercepted in foreign call monitoring, and possibly direct surveillance of US persons, took place prior to 9/11 (see Late 1999, February 27, 2000, December 2000, February 2001, February 2001, Spring 2001, and July 2001).

Entity Tags: George W. Bush, Al-Qaeda, Foreign Intelligence Surveillance Court, National Security Agency

Timeline Tags: Civil Liberties

Vice Admiral John Poindexter testifying before Congress in the Iran Contra hearings in 1987.Vice Admiral John Poindexter testifying before Congress in the Iran Contra hearings in 1987. [Source: Associated Press]Vice Admiral John Poindexter begins running a shadowy new government agency called the Information Awareness Office. [New York Times, 2/13/2002; Federal Computer Week, 10/17/2002] Poindexter, formerly President Reagan’s National Security Adviser, is known for his five felony convictions of lying to Congress, destroying documents, and obstructing Congress in its investigation of his role in the mid-1980s Iran-Contra affair. Later his convictions were overturned on a technicality. [Los Angeles Times, 11/17/2002] Far from apologizing, Poindexter said it was his duty to lie to Congress. [Newsday, 12/1/2002] The New York Times notes that his new agency “is developing technologies to give federal officials instant access to vast new surveillance and information-analysis systems.” The new office is part of DARPA, the Defense Advanced Research Projects Agency. Poindexter was also known for his controversial role in shifting control of computer security to the military in the 1980s. Says Marc Rotenberg, former counsel for the Senate Judiciary Committee, “It took three administrations and both political parties over a decade to correct those mistakes.” [New York Times, 2/13/2002] Surprisingly, Poindexter’s appointment is little noticed until later in 2002 when the Total Information Awareness program is revealed (see March 2002; November 9, 2002). Incidentally, several others involved in the Iran-Contra affair also find jobs in the Bush Administration, including Elliott Abrams, John Negroponte, and Otto Reich. [Observer, 12/8/2002]

Entity Tags: Total Information Awareness, Defense Advanced Research Projects Agency, John Poindexter

Timeline Tags: Civil Liberties, Iran-Contra Affair


This partial image from a Total Information Awareness slide presentation shows types of data that will be collected. Note that
even “gait” - the way one walks, will be analyzed.
This partial image from a Total Information Awareness slide presentation shows types of data that will be collected. Note that even “gait” - the way one walks, will be analyzed. [Source: DARPA]The US military internally announces the creation of a new global data collection system called Total Information Awareness. The existence of this program is not reported until August 2002 [Wired News, 8/7/2002] , and not widely known until November 2002 (see November 9, 2002). Interestingly, the early accounts of this program suggest its budget is a “significant amount” of $96 million [Federal Computer Week, 10/17/2002] , and not the $10 million later reported. [Guardian, 11/23/2002] It is also reported that “parts” of the program “are already operational” whereas later it is said to be only in the conceptual stages of development. [Federal Computer Week, 10/17/2002]

Entity Tags: Total Information Awareness, US Department of Defense

Timeline Tags: Civil Liberties

Veteran AT&T technician Mark Klein (see July 7, 2009) is startled when he receives an email informing him and his colleagues that a representative from the National Security Agency (NSA) will soon arrive to conduct “some kind of business.” Klein works at the Geary Street facility in San Francisco, helping provide Internet, VoIP (voice over Internet Protocol), and data transport between the US and the Far East. Klein and his supervisor, Don Henry, soon learn that one of their colleagues, one of AT&T’s senior “field support specialists” whom Klein will only identify as “Ski,” is to be interviewed by the NSA for a security clearance. Ski is slated to begin working in an NSA-operated “secure facility” at AT&T’s Folsom Street facility in San Francisco. [PBS Frontline, 5/15/2007; Klein, 2009, pp. 22-25] Klein later says of the NSA visit: “That struck me as a little odd to begin with, because I remember from back in the ‘70s, the NSA is not supposed to be doing domestic spying, so what were they doing in an AT&T company office? It struck me as odd, but I didn’t know anything more about it, so I just let it lie and waited for the guy to come.” Klein will later describe the NSA representative as “closemouthed and unsmiling, and he did his business.” Klein decides that the NSA visit was a one-time affair, and he thinks no more of it for the time being. [PBS Frontline, 5/15/2007]

Entity Tags: Mark Klein, AT&T, “Ski” (AT&T field support specialist), Don Henry, National Security Agency

Timeline Tags: Civil Liberties

According to the later recollections of senior AT&T technician Mark Klein (see July 7, 2009), rumors are swirling throughout AT&T regarding a “secret room” being built at the company’s facility at 611 Folsom Street in San Francisco (see Summer 2002). (At this time, Klein works at another AT&T facility located on San Francisco’s Geary Street; he will later begin working at the Folsom Street facility.) In January 2003, Klein will learn that the rumors are true, and that the room is to be used by the National Security Agency (NSA) (see January 2003). [Klein, 2009, pp. 26-28]

Entity Tags: Mark Klein, National Security Agency, AT&T

Timeline Tags: Civil Liberties


The original logo for the Total Information Awareness program. An eye from a Masonic pyramid appears to cast a beam over the world, with Muslim regions highlighted. [<a href=“http://www.sfgate.com/cgi-bin/article.cgi?file=/chronicle/archive/2002/11/20/MN218568.DTL” target=_new>San Francisco Chronicle, 11/20/02</a>, <a href=“http://www.guardian.co.uk/Print/0,3858,4552953,00.html” target=_new>Guardian, 11/23/02</a>] The motto, Scientia Est Potentia, means “knowledge is power.” The logo is later removed from the department’s website. [<a href=“http://www.sunspot.net/news/nationworld/bal-spy1503,0,4325331.story?coll=bal-home-headlines” target=_new>Baltimore Sun, 1/5/03</a>]
The original logo for the Total Information Awareness program. An eye from a Masonic pyramid appears to cast a beam over the world, with Muslim regions highlighted. [San Francisco Chronicle, 11/20/02, Guardian, 11/23/02] The motto, Scientia Est Potentia, means “knowledge is power.” The logo is later removed from the department’s website. [Baltimore Sun, 1/5/03] [Source: DARPA]The New York Times exposes the existence of John Poindexter’s Total Information Awareness data collection program, begun in early 2002 (see Mid-January 2002; March 2002). [New York Times, 11/9/2002] Conservative columnist William Safire writes, “If the Homeland Security Act is not amended before passage, here is what will happen to you: Every purchase you make with a credit card, every magazine subscription you buy and medical prescription you fill, every Web site you visit and e-mail you send or receive, every academic grade you receive, every bank deposit you make, every trip you book and every event you attend—all these transactions and communications will go into what the Defense Department describes as ‘a virtual, centralized grand database.’ To this computerized dossier on your private life from commercial sources, add every piece of information that government has about you—passport application, driver’s license and bridge toll records, judicial and divorce records, complaints from nosy neighbors to the FBI, your lifetime paper trail plus the latest hidden camera surveillance—and you have the supersnoop’s dream: a ‘Total Information Awareness’ about every US citizen.” [New York Times, 11/14/2002] Poindexter says it will take years to realize his vision, but his office has already begun providing some technology to government agencies. [Washington Post, 11/12/2002] The existence of this program, and the fact that Poindexter is running it, causes concern for many on both the left and right. [USA Today, 1/16/2003] It is regularly called Orwellian, conjuring visions of 1984’s Big Brother, and even supporters admit it sounds Orwellian. [Newsweek, 11/15/2002; Los Angeles Times, 11/17/2002; Guardian, 11/23/2002; Newsday, 12/1/2002; New Yorker, 12/9/2002; BBC, 12/12/2002; Dallas Morning News, 12/16/2002; Baltimore Sun, 1/5/2003] The New York Times suggests, “Congress should shut down the program pending a thorough investigation.” [New York Times, 11/18/2002] Experts question not only its civil liberties implications, but also if it is even feasible. If it does work, would its database be swapped with errors that could not be removed? (see March 2002) [Mercury News (San Jose), 12/26/2002] However, many newspapers fail to report on the program at all, and ABC is the only network to report the story on prime time television. [ABC News, 11/16/2002; ABC News, 11/25/2002] Despite so many objections, the program is included in the Homeland Security bill (see November 25, 2002), and only later somewhat curbed by Congress (see January 23, 2003).

Entity Tags: John Poindexter, William Safire, Homeland Security Act, Total Information Awareness

Timeline Tags: Civil Liberties, Iran-Contra Affair

Veteran AT&T technician Mark Klein (see July 7, 2009) becomes convinced that the “secure facility” being constructed at an AT&T facility in San Francisco (see Summer 2002 and Fall 2002) has some connection to the Bush administration’s “Total Information Awareness” program (see Mid-January 2002 and March 2002). The press has recently begun reporting on the program (see November 9, 2002). In 2007, Klein will tell a reporter: “You might recall there [around this time] was a big blowup in the news about the Total Information Awareness [TIA] program, led by Admiral [John] Poindexter, which caused the big upsetness in Congress, because what Poindexter was proposing to do was draw in databases from everywhere… draw in Internet data, bank records, travel records, everything into one big conglomeration which could be searchable by the government so they could find out everything about what anybody’s doing at any time of day. And all this would be done without any warrants.” Klein and other AT&T employees begin speculating that the “secure facility” might have some connection to Poindexter’s TIA program. “[T]he Total Information Awareness program is involved with the NSA [National Security Agency] and with DARPA, which is the Defense [Advanced Research] Projects Agency,” he will tell the reporter. “So I began to connect the two, because it seemed quite logical at least that if they are looking for large amounts of Internet data to sift through and vacuum up, what would be a perfect place? It would be in the Internet room at a place like AT&T. And lo and behold, the NSA guy shows up. Then I started learning that it’s not only a new room; it’s a room that all the technicians cannot go into. Only the one guy—a management guy, no union people—a management field specialist with security clearance obviously given to him by the NSA, only he could go into this room, which was being built on the sixth floor, right next door to the phone switch room. So I got very worried about that. What does this mean? What are they doing there?” In 2009, Klein will write, “Gradually I started to connect the TIA program with the curiously simultaneous appearance of the NSA at our office, and the more I learned about what they were installing, and where, the more I was convinced the two were connected.” [PBS Frontline, 5/15/2007; Klein, 2009, pp. 25-26]

Entity Tags: Mark Klein, AT&T, Bush administration (43), National Security Agency, Defense Advanced Research Projects Agency, Total Information Awareness, John Poindexter

Timeline Tags: Civil Liberties

Army investigators discover that 62 percent of its gas masks and 90 percent of its chem/bio detectors—which alert soldiers to the presence of chemical or biological toxins—are defective. Nevertheless, the Bush administration continues to prepare for war with Iraq, a country believed to have a large and dangerous stock of chemical and biological weapons. Tens of thousands of US soldiers will be issued defective chem/bio suits, many with holes or ripped seams. Retired Army Colonel David Hackworth will later recall: “When the Pentagon tried to trace down these bad suits, they couldn’t find them at all. So a trooper out in the… middle of a desert is putting on a suit, [and] he doesn’t know if he’s got a good one or a bad one. It’s, it’s kind of like Russian roulette.” [Carter, 2004, pp. 57]

Entity Tags: David Hackworth, US Department of Defense, US Department of the Army

Timeline Tags: Events Leading to Iraq Invasion

The NSA’s secret room in the AT&T switching center.The NSA’s secret room in the AT&T switching center. [Source: PBS]Veteran AT&T technician Mark Klein (see July 7, 2009) takes an informal tour of his company’s facility on San Francisco’s Folsom Street (see Late 2002), along with three other technicians from his Geary Street offices. The tour, Klein will later say, is to introduce the four technicians to the Folsom Street staff, “because they were obviously eventually planning to bring us over there.” Klein learns that the rumors of a “secret room” in the facility are true (see Fall 2002). The secret room is on the facility’s sixth floor and is being built to house some sort of equipment, but Klein is unsure exactly what that equipment might be. Klein and the others see the outer door of the secret room, and a workman working on the door “suddenly [began talking to Klein and his colleages in a] very low voice like he didn’t want to be overheard. He felt like this was something secret, you know, and he didn’t know much about it, and he was saying: ‘None of us can go in there. It’s all secret.’ This was not only an affront to the technicians; it was a violation of union rules, because they were obviously planning to install telecommunications equipment, which is supposed to be the jurisdiction of the union technicians. We had a contract. So the technicians were not only angry about this secret thing that they’re not let in on, but also the fact that there’s work there that they’re excluded from. And they were told nothing about it. So that was it.” Klein is further surprised to learn that only a single non-union technician (whom he only identifies as “Ski,” an AT&T “field support specialist” who has been granted a security clearance by the National Security Agency (NSA)), is allowed to work in the secure room. No union technicians are allowed in, even though the installation work being done is specifically contracted to the union workers. “The regular technician work force was not allowed in the room,” Klein will later state. Klein deduces that this secret room is the long-rumored NSA installation he has been hearing about. Moreover, he notes with some alarm that the room is next door to the 4ESS phone switch, “the traditional workhorse used for AT&T long-distance calls.” Klein will write, “Now my mental alarm bells were ringing, but for the moment there was nothing to do but take some mental notes, particularly since it was not clear exactly what they [the NSA and AT&T] were doing.” [Wired News, 4/7/2006; Democracy Now!, 5/12/2006; PBS Frontline, 5/15/2007; Klein, 2009, pp. 26-28] Klein will explain that he chooses not to say anything about his concerns because he is “scared for several reasons, one being, well, this is obviously secret. This is obviously some federal government secret operation that they don’t want nosy people nosing around in, and if I started asking questions I could get into trouble. Furthermore, our jobs were in jeopardy anyway, because [we] were always getting wind that they were planning to close our previous office at Geary Street, and I didn’t need to give them an excuse to fire me. So I thought after thinking about it that the best thing to do is not to say anything and just watch it.” [PBS Frontline, 5/15/2007] He later learns that similar cabinets are being installed in AT&T centers in other cities, including Seattle, San Jose, Los Angeles, and San Diego (see Late 2003). [Wired News, 4/7/2006] The Folsom Street facility is apparently connected to a more central surveillance facility operated out of one of AT&T’s main command centers in Missouri (see Late 2002-Early 2003).

Entity Tags: Bush administration (43), AT&T, Electronic Frontier Foundation, Mark Klein, Terrorist Surveillance Program, “Ski” (AT&T field support specialist), National Security Agency

Timeline Tags: Civil Liberties

The 9/11 Commission, officially titled the National Commission on Terrorist Attacks Upon the United States, holds its first meeting in Washington. The commission has $3 million and only a year and a half to explore the causes of the attacks. By comparison, a 1996 federal commission to study legalized gambling was given two years and $5 million. [Associated Press, 1/27/2003] Two months later the Bush administration grudgingly increases the funding to $12 million total (see March 26, 2003). [Associated Press, 1/27/2003] A few days later, Vice Chairman Lee Hamilton says, “The focus of the commission will be on the future. We want to make recommendations that will make the American people more secure.… We’re not interested in trying to assess blame, we do not consider that part of the commission’s responsibility.” [United Press International, 2/6/2003]

Entity Tags: Philip Zelikow, 9/11 Commission, Bush administration (43), Lee Hamilton

Timeline Tags: Complete 911 Timeline, 9/11 Timeline

AT&T completes installing “splitter” equipment in its Folsom Street, San Francisco, facility (see January 2003), enabling the National Security Agency (NSA) to monitor a vast amount of domestic and international electronic communications over telephone and Internet connections. [Klein, 2009, pp. 34-35] Veteran AT&T technician Mark Klein (see July 7, 2009) later helps connect Internet circuitry to a splitting cabinet that leads into the secret room (see October 2003). In an affidavit, Klein will later state, “While doing my job, I learned that fiber optic cables from the secret room were tapping into the Worldnet (AT&T’s Internet service) circuits by splitting off a portion of the light signal.” The circuitry allows AT&T to divert traffic to and from its network from other domestic and international providers to the NSA monitoring equipment, meaning that even citizens who do not use AT&T as their provider can be monitored. [Wired News, 4/7/2006]

Entity Tags: Mark Klein, AT&T, National Security Agency

Timeline Tags: Civil Liberties

Army-issue chemical and biological protective gear.Army-issue chemical and biological protective gear. [Source: Approved Gas Masks (.com)]Defense Secretary Donald Rumsfeld responds to a request from House member Jan Schakowsky (D-IL) to certify to Congress that US troops going to Iraq “have the minimum required levels of chem/bio protective equipment” as established by the Pentagon, even as Army units are selling the same equipment on eBay (see Early March 2003). Rumsfeld says that he cannot make such a certification. [Carter, 2004, pp. 58-61] The General Accounting Office has reported that up to 250,000 chem/bio suits are defective. Furthermore, the GAO reported that the Army has been aware of the problem since 1996. When asked by House member Dennis Kucinich (D-OH) about the deficiency in late 2002, Defense Department Inspector General Joseph Schmitz replied, “There is no such thing as perfect safety in warfare.” [United Press International, 10/1/2002]

Entity Tags: General Accounting Office, Jan Schakowsky, Joseph Schmitz, US Department of the Army, Dennis Kucinich, Donald Rumsfeld

Timeline Tags: Events Leading to Iraq Invasion

Congressman Dennis Kucinich (D-OH) says during a House Subcommittee on National Security meeting that, according to the General Accounting Office, many US military units are selling their protective chem/bio suits (see Late 2002) on the Internet for three dollars “while other units [are] desperately clamoring for those critical items.” Congressional investigators will find that the Army has sold 429 of the $200 protective suits on eBay for three dollars apiece. The problem goes beyond a few hundred suits. One entire military wing has “only 25 percent of the protective masks required.” The Pentagon’s Inspector General has found that 420,000 protective suits listed on inventory and intended for distribution to troops bound for Iraq cannot be found. In February, Defense Secretary Rumsfeld refused to certify that US soldiers had the proper chem/bio equipment necessary for the invasion (see February 27, 2003). [Set-Aside Alert: Federal Contract News and Information, 9/6/2002; Carter, 2004, pp. 57-58]

Entity Tags: Dennis Kucinich, General Accounting Office, House Subcommittee on National Security, Donald Rumsfeld

Timeline Tags: Events Leading to Iraq Invasion

Senator John D. Rockefeller.Senator John D. Rockefeller. [Source: ViewImages.com]John D. Rockefeller (D-WV), the ranking member of the Senate Intelligence Committee, learns of the secret NSA warrantless wiretapping program against US citizens (see Early 2002) in a secret briefing for himself, the chairman of the committee, and the chairman and ranking member of the House Intelligence Committee. Hours later, Rockefeller sends a handwritten letter to Vice President Cheney expressing his concerns about the potential illegality of the program, concerns he apparently expressed in the briefing as well. Rockefeller will not release the letter publicly until December 19, 2005, four days after the New York Times publishes an article revealing the program’s existence (see December 15, 2005). Disturbed both by the information he was given and the information that was obviously being withheld, Rockefeller writes in part: “Clearly the activities we discussed raise profound oversight issues.… Given the security restrictions associated with this information, and my inability to consult staff or counsel on my own [Cheney had prohibited Rockefeller and the three other lawmakers in the briefing from consulting with their staff experts], I feel unable to fully evaluate, much less endorse these activities. As I reflected on the meeting today, and the future we face, John Poindexter’s TIA [Total Information Awareness (see March 2002)] project sprung to mind, exacerbating my concern regarding the direction the administration is moving with regard to security, technology, and surveillance. Without more information and the ability to draw on any independent legal or technical expertise, I simply cannot satisfy lingering concerns raised by the briefing we received.” [Democratic Party, 12/19/2005; Savage, 2007, pp. 115] Rockefeller also notes that he is not at liberty to do anything about his concerns, since he is legally bound to obey the secrecy rules the White House has invoked, but he wants his concerns noted. [Savage, 2007, pp. 116] It is unclear whether Rockefeller ever receives a reply. Rockefeller is apparently unaware of evidence showing that domestic surveillance may have begun well before 9/11 (see Late 1999, February 27, 2000, December 2000, February 2001, February 2001, Spring 2001, July 2001, and Early 2002).

Entity Tags: New York Times, Richard (“Dick”) Cheney, John D. Rockefeller, John Poindexter, Total Information Awareness, National Security Agency

Timeline Tags: Civil Liberties

Senior AT&T technician Mark Klein (see July 7, 2009), working near the National Security Agency (NSA)‘s “secret room” in the firm’s Folsom Street, San Francisco facility (see October 2003), receives two documents pertaining to the equipment in that secret room. (In a 2007 interview with PBS, Klein will cite a third document as well, that he found lying on top of a router.) The two documents are entitled “SIMS Splitter Cut-In and Test Procedure Issue 2, 01/12/03” and “SIMS Splitter Cut-In and Test Procedure OSWF Training Issue 2 January 24, 2002.” “OSWF” stands for “On-Site Work Force.” As for “SIMS,” all Klein knows is that it is an acronym associated with the secret room. Reading over the documents, Klein realizes that they indicate the secret room contains a “splitter cabinet,” installed in February 2003 (see February 2003), containing “optical splitters” that “cut in” to signals sent through 16 “Peering Links” between AT&T and 16 other major carriers and Internet exchange points. He later recalls: “I brought them back to my desk, and when I started looking at it, I looked at it more, and I looked at it more, and finally it dawned on me sort of all at once, and I almost fell out of my chair, because this showed, first of all, what they had done, that they had taken working circuits, which had nothing to do with a splitter cabinet, and they had taken in particular what are called peering links which connect AT&T’s network with the other networks. It’s how you get the Internet, right? One network connects with another. So they took 16 high-speed peering links which go to places like Qwest [Communications] and Palo Alto Internet Exchange and places like that.… These circuits were working at one point, and the documents indicated in February 2003 they had cut into these circuits so that they could insert the splitter so that they can get the data flow from these circuits to go to the secret room. So this data flow meant that they were getting not only AT&T customers’ data flow; they were getting everybody else’s data flow, whoever else might happen to be communicating into the AT&T network from other networks. So it was turning out to be like a large chunk of the network, of the Internet.” The documents, he later says, name “the circuit IDs… the companies they belong to… [and] the cut date. And they were all in February [2003], when they were cut into the splitter” (see February 2003). The 16 carriers include ConXion, Verio, XO, Genuity, Qwest, PAIX (Palo Alto Internet Exchange), Allegiance, Abovenet, Global Crossing, C&W, UUNET, Level 3, Sprint, Telia, PSINet, and MAE West (the Metropolitan Area Exchange for AT&T’s Western region). In plain English, the splitter in the NSA room is duplicating the electronic data being sent through AT&T’s equipment, and sending the duplicated signals somewhere else, presumably to NSA computers for later processing. Klein is given the documents by a veteran AT&T technician who is preparing to retire. Klein, in a casual conversation with the colleague who gave him the documents, remarks, “It seems obvious to me, given that the secret room is next to the 4ESS (see January 2003), that they’re listening to phone calls.” Klein’s colleague shakes his head and says: “No, Internet.… I’ll show you.” (In 2007 Klein will learn from a telecommunications expert that since AT&T was transferring its long-distance telephone traffic onto Internet fiber cables, the splitter was most likely picking up both telephone and Internet traffic.) Klein’s colleague shows him the cabinet containing the splitters. Klein later tells a reporter: “[T]here were optical splitters, which basically were connected by fiber-optic cable down to the secret room on the sixth floor.… The analogy I can give you, which most people are familiar with is, say you get cable TV in your living room and then want to watch all the channels you get in the living room, you want to get all those same channels in your bedroom. So they install on the cable what they call a splitter, which splits off all the signals, duplicates of the same signals which go to the bedroom.… What the splitter does is make a duplicate copy of all the signals going across the fiber-optic cables.… We’re talking about billions and billions of bits of data going across every second, right? And it’s going into the router, and it’s coming back from the routers in that office. So what they do with the splitter is they intercept that data stream and make copies of all the data, and those copies go down on the cable to the secret room.” Klein confirms from his colleague and from the documents that show the splitters are connected directly to the equipment in the secret room. [PBS Frontline, 5/15/2007; Klein, 2009, pp. 34-35]

Entity Tags: Genuity, UUNET, XO, Allegiance, Abovenet, AT&T, ConXion, Sprint/Nextel, Telia, Palo Alto Internet Exchange, MAE West, Level 3, Global Crossing, Mark Klein, National Security Agency, C&W, PSINet, Qwest

Timeline Tags: Civil Liberties

A portion of the outer door of AT&T’s Folsom Street facility.A portion of the outer door of AT&T’s Folsom Street facility. [Source: Wired News]Senior AT&T technician Mark Klein (see July 7, 2009), newly assigned to the company’s Folsom Street facility in San Francisco, is tasked to work at the seventh floor “Internet room,” where AT&T manages much of its domestic Internet traffic. Klein is intensely curious about the National Security Agency’s “secret room” on the sixth floor (see January 2003). The NSA room has two doors, both labeled “641A,” and is in reality what Klein will later term “a room within a room,” with the outer room filled with ordinary “computer equipment for mundane corporate uses.” He does not know what is in the inner “secret” room. Klein will later write, “While working in the outer room, you could walk around three sides of the secret room, which I measured to be about 24 by 48 feet.” An outer door leads from Room 641A to the 4ESS switchroom, which AT&T uses to manage its long-distance telephone communications. The rooms are connected by “row after row of equipment and a tangle of cabling going up and across the ceiling.” Klein learns that the NSA room is sometimes called “the SIMS room,” an acronym of which no one seems to know the meaning. [PBS Frontline, 5/15/2007; Klein, 2009, pp. 32-34] Klein will later describe his job at the Folsom Street facility as working with the phone switch equipment on the sixth floor, “which handled the public’s telephone calls and was the workhorse of the phone system.… My main assignment was to oversee the Internet room, and that meant keeping it going. If there were any trouble calls, I had to answer them. If there’s any upgrading work to do, I had to either do it or arrange for others to do it in off hours. Just oversee the flow of work in the Internet room and watch things.” He also spends a tremendous amount of time on the seventh floor, “where the Internet room was.… That’s where there are a lot of Cisco routers, a lot of fiber-optic lines coming in and going out.” The Folsom Street facility serves the Bay Area as well as much of Western America. According to Klein: “There’s lots of Internet traffic, as you can imagine, that goes in and out of this office, probably hundreds of fiber-optic lines that go out, carrying billions—that’s billions with a ‘B’—billions of bits of data going in and out every second every day. So all the Web surfing you’re doing, whatever you’re doing on the Internet—the pictures, the video, the Voice over Internet—all that stuff’s going in and out of there. And then of course there’s also the traditional phone switch, which is doing what it’s been doing since before the Internet.… Handling millions and millions of phone calls, right. That’s its job.” [PBS Frontline, 5/15/2007]

Entity Tags: Mark Klein, AT&T, National Security Agency

Timeline Tags: Civil Liberties

Narus logo.Narus logo. [Source: Endace (.com)]Narus, a firm which manufactures telecommunications hardware, co-sponsors a technical conference in McLean, Virginia, titled “Intelligence Support Systems for Lawful Interception and Internet Surveillance.” As AT&T engineer Mark Klein (see July 7, 2009) will later write: “Police officials, FBI and DEA agents, and major telecommunications companies eager to cash in on the ‘war on terror’ had gathered in the hometown of the CIA to discuss their special problems. Among the attendees were AT&T, BellSouth, MCI, Sprint, and Verizon. Narus founder Dr. Ori Cohen gave a keynote speech.” Also speaking at the conference is William Crowley, the former deputy director of the National Security Agency (NSA). Narus is providing some of the key hardware components used in the NSA’s domestic surveillance program (see January 16, 2004). [PBS Frontline, 5/15/2007; Klein, 2009, pp. 39]

Entity Tags: Narus, AT&T, BellSouth, Mark Klein, Ori Cohen, Verizon Wireless, National Security Agency, MCI, Sprint/Nextel, William Crowley

Timeline Tags: Civil Liberties

Senior AT&T technician Mark Klein (see July 7, 2009), working at the company’s Folsom Street facility in San Francisco one floor above the National Security Agency’s “secret room” monitoring the company’s Internet communications (see October 2003 and Fall 2003), is given a technical document to pass on to the secret room’s AT&T supervisor, a man Klein will identify only as “Ski” (see Summer 2002 and January 2003). Klein flips through the non-classified document, titled “Study Group 3 LGX/Splitter Wiring San Francisco Issue 1 12/10/02.” (LGX, Klein will later explain, refers to “Lucent LightGuide patch panels.”) He finds the document astonishing. It confirms, he will later write, “that the splitter cabinet in the 7th floor Internet room [his workstation] was directly connected to panels in the 6th floor secret room, which was referred to as the ‘SG3 Secure Room.’” Documents he has previously read (see Fall 2003) “made repeated references to the ‘Splitter,’ ‘Splitter Cabinet,’ or other descriptions which made it clear that the three documents were linked together.” Klein deduces that “SG3” stands for “Study Group 3,” an appellation he will write was chosen in “an apparent attempt to make a sinister operation look innocent.” And, since San Francisco is the site of the third study group, he deduces there must be at least two other study groups, presumably in different cities, “a fact,” he will write, “which was soon confirmed to me. I had a hand on only one small part of a giant octopus.” Klein pores more closely over the documents to try to learn exactly what AT&T and the NSA are doing, and soon finds a reference to a “Narus STA 6400.” He has no idea what this piece of equipment is, but he quickly learns that it is, as he will write, “a very sophisticated and specialized product that not only was perfectly suited for sorting through the data stream in real time looking for things, but… was already being marketed specifically to telecommunications and other companies for intelligence and police spying.” [AT&T, 12/10/2002; AT&T, 1/13/2003; AT&T, 1/24/2003; Klein, 2009, pp. 35-37] Later, Klein will describe the Narus STA 6400 as “not only designed for high-speed sifting through high-speed volumes of data, looking for something according to various program algorithms, something you’d think would be perfect for a spy agency.” [PBS Frontline, 5/15/2007]

Entity Tags: National Security Agency, “Ski” (AT&T field support specialist), AT&T, Mark Klein

Timeline Tags: Civil Liberties

The White House and the Justice Department are at odds over the legality of the National Security Agency’s “data mining” program, which involves the NSA combing through enormous electronic databases containing personal information about millions of US citizens, ostensibly for anti-terrorism purposes and often without court warrants (see February 2001, Spring 2001, After September 11, 2001, After September 11, 2001, October 2001, and Early 2002). Such data mining by the NSA potentially threatens citizens’ constitutional right to privacy. This clash between the White House and the Justice Department is one of the reasons that White House counsel Alberto Gonzales and chief of staff Andrew Card will try to pressure Attorney General John Ashcroft, while Ashcroft is recuperating from surgery, to reauthorize the NSA program over the objections of Deputy Attorney General James Comey. That attempt to force reauthorization over Justice Department complaints will result in the protest resignations of Ashcroft, Comey, and other Justice officials (see March 10-12, 2004). In 2007, Gonzales will deny that any such attempt to pressure Ashcroft to overrule Comey ever happened (see July 24, 2007), and will deny that there was any such dispute between the White House and Justice Department over the NSA program. Those denials will lead to calls to investigate Gonzales for perjury (see May 16, 2007). In late 2005, President Bush will admit, after the New York Times reveals the existence of the NSA warrantless wiretapping program (see Early 2002), that the program indeed exists, but will not acknowledge the data mining. Several current and former administration officials, interviewed by reporters in 2007, refuse to go into detail about the dispute between the White House and Justice Department, but say that it involves other issues along with the data mining. They will also refuse to explain what modifications to the surveillance program Bush will authorize to mollify Justice Department officials. Bush and his officials, including Gonzales, who will ascend to the position of attorney general in 2005, will repeatedly insist that he has the authority, both under the Constitution and under Congress’s authorization to use military force against terrorists passed after the 9/11 attacks (see September 14-18, 2001), to bypass the requirements for court warrants to monitor US citizens. Critics will say that such surveillance is illegal under the Foreign Intelligence Surveillance Act. [New York Times, 7/29/2007]
Domestic Surveillance Began Before 9/11? - Though Bush officials eventually admit to beginning surveillance of US citizens only after the 9/11 attacks, that assertion is disputed by evidence suggesting that the domestic surveillance program began well before 9/11 (see Late 1999, February 27, 2000, December 2000, February 2001, February 2001, Spring 2001, July 2001, and Early 2002).

Entity Tags: US Department of Justice, National Security Agency, New York Times, James B. Comey Jr., Alberto R. Gonzales, Andrew Card, Bush administration (43), George W. Bush, John Ashcroft

Timeline Tags: Civil Liberties

A sample page from Mark Klein’s AT&T documentation.A sample page from Mark Klein’s AT&T documentation. [Source: Mark Klein / Seattle Times]Senior AT&T technician Mark Klein (see July 7, 2009), gravely concerned by the National Security Agency (NSA) spying operation going on in AT&T’s San Francisco facility (see October 2003) and now in possession of documents which prove the nature and scope of the telecommunications surveillance activities (see Fall 2003 and Late 2003), writes a memo summarizing his findings and conclusions. He appends eight pages of the unclassified documents he has in his possession, along with two photographs and some material from the Internet which documents the sophisticated surveillance equipment being used to gather data from AT&T’s electronic transmissions. The NSA and AT&T were, he later says, “basically sweeping up, vacuum-cleaning the Internet through all the data, sweeping it all into this secret room.… It’s the sort of thing that very intrusive, repressive governments would do, finding out about everybody’s personal data without a warrant. I knew right away that this was illegal and unconstitutional, and yet they were doing it.… I think I’m looking at something Orwellian. It’s a government, many-tentacled operation to gather daily information on what everybody in the country is doing. Your daily transactions on the Internet can be monitored with this kind of system, not just your Web surfing. All kinds of business that people do on the Internet these days—your bank transactions, your email, everything—it sort of opens a window into your entire private life, and that’s why I thought of the term ‘Orwellian.’ As you know, in [George] Orwell’s story [1984], they have cameras in your house, watching you. Well, this is the next best thing.… So I was not only angry about it; I was also scared, because I knew this authorization came from very high up—not only high up in AT&T, but high up in the government. So I was in a bit of a quandary as to what to do about it, but I thought this should be halted.”
Gathering 'the Entire Data Stream' - In his memo, Klein concludes that the NSA is using “splitter” equipment to copy “the entire data stream [emphasis in the original] and sent it to the [NSA’s] secret room for further analysis.” Klein writes that the splitters actually “split off a percentage of the light signal [from the fiber optic circuits] so it can be examined. This is the purpose of the special cabinet… circuits are connected into it, the light signal is split into two signals, one of which is diverted to the ‘secret room.’ The cabinet is totally unnecessary for the circuit to perform—in fact, it introduces problems since the signal level is reduced by the splitter—its only purpose is to enable a third party [the NSA] to examine the data flowing between sender and recipient on the Internet.” (Emphasis in the original.) In his book, Klein will explain that “each separate signal,” after being split, “contains all the information, nothing is lost, so in effect the entire data stream has been copied.” He will continue: “What screams out at you when examining this physical arrangement is that the NSA was vacuuming up everything flowing in the Internet stream: email, Web browsing, voice-over-Internet phone calls, pictures, streaming video, you name it. The splitter has no intelligence at all, it just makes a blind copy.” Klein later explains to a reporter: “The signals that go across fiber optics are laser light signals. It’s light basically that runs through a fiber optic, which is a clear glass fiber, and it has to be at a certain level for the routers to see the light and interpret the data correctly. If the light gets too low, just as if you get a weak flashlight with bad batteries, at a certain point it doesn’t work. If the light level drops too low, the router starts dropping bits and getting errors, and eventually you get loss of signal, and it just doesn’t work at all.… The effect of the splitter is to reduce the strength of the signal, and that may or may not cause a problem, depending on how much the signal is reduced.” A telecommunications company would not, as a rule, use such a splitter on its backbone Internet traffic because of the risk of degraded signal quality. “You want to have as few connections on your main data lines as possible,” Klein will say, “because each connection reduces the signal strength, and a splitter is a connection, and if you can avoid that, all the better.”
Inherently Illegal - Klein will explain that there is no way these activities are legal: “There could not possibly be a legal warrant for this, since according to the Fourth Amendment, warrants have to be specific, ‘particularly describing the place to be searched and the persons or things to be seized.’ It was also a blatant violation of the 1978 Foreign Intelligence Surveillance Act [FISA—see 1978], which calls for specific warrants as required by the Fourth Amendment. This was a massive blind copying of the communications of millions of people, foreign and domestic, randomly mixed together. From a legal standpoint, it does not matter what they claim to throw away later in their secret rooms, the violation has already occurred at the splitter.” [AT&T, 12/10/2002; AT&T, 1/13/2003; AT&T, 1/24/2003; Wired News, 5/22/2006; PBS Frontline, 5/15/2007; Klein, 2009, pp. 37, 119-133]
The Narus STA 6400 - Klein discusses one key piece of equipment in the NSA’s secret room, the Narus STA 6400 (see Late 2003). Narus is a firm that routinely sells its equipment not only to telecom firms such as AT&T, “but also to police, military, and intelligence officials” (see November 13-14, 2003). Quoting an April 2000 article in Telecommunications magazine, Klein writes that the STA 6400 is a group of signal “traffic analyzers that collect network and customer usage information in real time directly from the message.… These analyzers sit on the message pipe into the ISP [Internet Service Provider] cloud rather than tap into each router or ISP device.” Klein quotes a 1999 Narus press release that says its Semantic Traffic Analysis (STA) technology “captures comprehensive customer usage data… and transforms it into actionable information… [it] is the only technology that provides complete visibility for all Internet applications.” The Narus hardware allows the NSA “to look at the content of every data packet going by, not just the addressing information,” Klein will later write.
A 'Dream Machine for a Police State' - Klein later writes of the Narus STA 6400: “It is the dream machine of a police state, one that even George Orwell could not imagine. Not only does it enable the government to see what millions of people are saying and doing every day, but it can build up a database which reveals the connections among social groups—who’s calling and emailing whom. Such a device can easily be turned against all dissident protest groups, and even the Democratic and Republican parties, with devastating effect. And it’s in the hands of the executive power, in total secrecy.” [AT&T, 12/10/2002; AT&T, 1/13/2003; AT&T, 1/24/2003; Wired News, 5/22/2006; Klein, 2009, pp. 37-40] In support of the memo and an ensuing lawsuit against AT&T (see January 31, 2006), Klein will later write: “Despite what we are hearing, and considering the public track record of this administration, I simply do not believe their claims that the NSA’s spying program is really limited to foreign communications or is otherwise consistent with the NSA’s charter or with FISA. And unlike the controversy over targeted wiretaps of individuals’ phone calls, this potential spying appears to be applied wholesale to all sorts of Internet communications of countless citizens.” [Wired News, 4/7/2006]

Entity Tags: National Security Agency, Narus, Mark Klein, Foreign Intelligence Surveillance Act, AT&T

Timeline Tags: Civil Liberties

Thomas Tamm.Thomas Tamm. [Source: Newsweek]Thomas Tamm, a veteran Justice Department prosecutor with a high-level security clearance, is finishing up a yearlong post with the Office of Intelligence Policy and Review (OIPR), a Justice Department unit handling wiretaps of suspected terrorists and spies. As his stint is coming to a close, Tamm learns of the existence of a highly classified National Security Agency (NSA) program that is electronically eavesdropping on American citizens—domestic wiretapping. He later learns that “the program,” as it is referred to by those few who know of it at all, is called “Stellar Wind.”
Concealment from FISA Judges - Tamm learns that the NSA program is being hidden from the Foreign Intelligence Surveillance Act (FISA) Court, a panel of federal judges who by law must approve and supervise such surveillance for intelligence purposes. OIPR lawyers ask the FISA Court for permission to implement national-security wiretaps. But, Tamm learns, some wiretaps—signed only by Attorney General John Ashcroft—are going to the chief FISA Court judge and not the other ten judges on the FISA panel. The “AG-only” requests are extraordinarily secretive, and involve information gleaned from what is only referred to as “the program”—Stellar Wind. Only a very few White House and US intelligence officials know the name and the nature of “the program.” Stellar Wind involves domestic wiretaps on telephones and computer e-mail accounts derived from, but not necessarily linked to, information secured from captured al-Qaeda computers and cell phones overseas. With the voluntary cooperation of American telecommunications companies (see 1997-August 2007 and After, February 2001, February 2001, and February 2001 and Beyond), the NSA program also collects vast amounts of personal data about US citizens’ phone and e-mail communications. The program also collects an enormous amount of financial information from the Treasury Department (see February 28, 2006), all collected as part of the NSA’s “data mining” efforts (see Late 1999 and After September 11, 2001).
Program Is 'Probably Illegal,' Says DOJ Official - Tamm, suspicious about the unusual requests, asks his supervisors about the program, and is told to drop the subject. “[N]o one wanted to talk about it,” he will recall. Tamm asks one of his supervisors, Lisa Farabee, “Do you know what the program is?” Farabee replies: “Don’t even go there.… I assume what they are doing is illegal.” Tamm is horrified. His first thought, he will later recall, is, “I’m a law enforcement officer and I’m participating in something that is illegal?” Tamm soon finds out from deputy OIPR counsel Mark Bradley that the chief FISA judge, Colleen Kollar-Kotelly, is raising unwanted questions about the warrant requests (see 2004 and 2005), and “the AG-only cases are being shut down.” Bradley adds, “This may be [a time] the attorney general gets indicted.”
Request for Guidance Turned Down - For weeks, Tamm agonizes over what to do. He seeks guidance from a former colleague, Sandra Wilkinson, who now works on the Senate Judiciary Committee. The two have coffee in the Senate cafeteria, and Tamm asks Wilkinson to ask if anyone on the committee knows anything about “the program.” Weeks go by without a response, and Tamm sends Wilkinson an e-mail from his OIPR computer—an e-mail that will later alert the FBI to Tamm’s interest in Stellar Wind. During a second conversation, Wilkinson refuses to give Tamm any information. “Well, you know, then,” he replies, “I think my only option is to go to the press.”
Contacting the New York Times - Tamm finally decides to contact the New York Times’s Eric Lichtblau, who has written several stories on the Justice Department that impressed Tamm. By this point he has transferred out of OIPR and back into a Justice Department office that would allow him to return to the courtroom. Tamm calls Lichtblau from a pay phone near the US District Courthouse in Washington. “My whole body was shaking,” he will recall. He identifies himself only as “Mark” (his middle name), and arranges to meet Lichtblau at a bookstore near the Justice Department. (In his 2008 book Bush’s Law: The Remaking of American Justice, Lichtblau describes Tamm as “a walk-in” source who was “agitated about something going on in the intelligence community.” Lichtblau will describe Tamm as wary and “maddeningly vague,” but as they continue to meet—usually in bookstores and coffee shops in the Capitol District—Tamm’s “credibility and his bona fides became clear and his angst appears sincere. Eighteen months later, after finally overriding a request and warning from President Bush not to print the story (see December 6, 2005), the Times reports on the existence of the NSA program (see December 15, 2005). [Ars Technica, 12/16/2008; Newsweek, 12/22/2008]

Entity Tags: Mark Bradley, Federal Bureau of Investigation, Eric Lichtblau, Colleen Kollar-Kotelly, Bush administration (43), ’Stellar Wind’, Foreign Intelligence Surveillance Court, Lisa Farabee, Senate Judiciary Committee, Thomas Tamm, Sandra Wilkinson, Office of Intelligence Policy and Review, New York Times, US Department of the Treasury, National Security Agency, US Department of Justice, John Ashcroft

Timeline Tags: Civil Liberties

Vice President Dick Cheney gives the Congressional leaders known as the “Gang of Eight”—the House speaker and House minority leader, the Senate majority and minority leaders, and the ranking members of the House and Senate intelligence committees—their first briefing on the NSA’s warrantless wiretapping program (see Early 2002). The Democratic leaders at the meeting are House Minority Leader Nancy Pelosi (D-CA), Senate Minority Leader Tom Daschle (D-SD), House Intelligence Committee ranking member Jane Harman (D-CA), and Senate Intelligence Committee ranking member John D. Rockefeller (D-WV). Daschle (D-SD) later recalls the meeting as superficial. Cheney “talked like it was something routine,” Daschle will say. “We really had no idea what it was about.” Unbeknownst to many of the Congressional leaders, White House and Justice Department leaders are locked in a sharp dispute over whether or not the program is legal and should be continued; Cheney is preparing to send White House counsel Alberto Gonzales and chief of staff Andrew Card to Attorney General John Ashcroft’s hospital room to persuade the gravely ill, heavily sedated Ashcroft to overrule acting Attorney General James Comey and reauthorize the program (see March 10-12, 2004). The briefing is designed to give the appearance of Congressional approval for the program. While most Republicans in the briefing give at least tacit approval of the program, some Democrats, as Daschle will recall, expressed “a lot of concerns” over the program’s apparent violation of fundamental Congressional rights. Pelosi later recalls that she “made clear my disagreement with what the White House was asking.” But administration officials such as Gonzales will later say (see July 24, 2007) that the eight Congressional leaders are in “consensus” in supporting the program, a characterization that is patently false (see July 25, 2007). Gonzales will also later testify that today’s briefing does not cover the NSA wiretapping program, later dubbed the “Terrorist Surveillance Program” (TSP), another apparent falsehood contradicted by Democratic senators such as Rockefeller and Russ Feingold, as well as testimony and notes on the hospital room visit made by FBI Director Robert Mueller and a memo from John Negroponte, the director of national intelligence. Many feel that Gonzales is using the moniker “Terrorist Surveillance Program,” not in use until December 2005, to play what reporter Michael Isikoff calls “verbal parsing” and “a semantic game”—since the NSA wiretapping program is not known by this name at the time of the Congressional briefing, Gonzales will imply that the briefing wasn’t about that program. [Newsweek, 8/6/2007; Klein, 2009, pp. 88]
Cheney, Gonzales: Democrats on Board with Illegal Program - In Angler: The Cheney Vice Presidency, a 2008 book by Washington Post reporter Barton Gellman, Gonzales will claim there is a “consensus in the room” among Democrats and Republicans alike, and according to Gellman’s reporting on Gonzales, “four Democrats and four Republicans, duly informed that the Justice Department had ruled something unlawful, said the White House should do it anyway.” Cheney will confirm this allegation during a December 2008 appearance on Fox News. [Klein, 2009, pp. 88]
Domestic Surveillance Began before 9/11? - Cheney fails to inform the lawmakers that the wiretapping program may have begun well before the 9/11 attacks (see Late 1999, February 27, 2000, December 2000, February 2001, February 2001, Spring 2001, July 2001, and Early 2002).

Entity Tags: Richard (“Dick”) Cheney, National Security Agency, Robert S. Mueller III, Terrorist Surveillance Program, Tom Daschle, US Department of Justice, Russell D. Feingold, Nancy Pelosi, John Negroponte, John D. Rockefeller, Alberto R. Gonzales, Andrew Card, Michael Isikoff, Bush administration (43), Jane Harman, James B. Comey Jr., “Gang of Eight”, John Ashcroft

Timeline Tags: Civil Liberties

At a speech in Hershey, Pennsylvania, supporting the USA Patriot Act (see October 26, 2001), President Bush tells listeners that all US surveillance efforts are done with warrants from the Foreign Intelligence Surveillance Act (FISA) Court: “For years, law enforcement used so-called roving wire taps to investigate organized crime. You see, what that meant is if you got a wire tap by court order—and, by the way, everything you hear about requires court order, requires there to be permission from a FISA court, for example.… See, with court approval, we have long used roving wire taps to lock up monsters—mobsters. Now [with the Patriot Act in effect] we have a chance to lock up monsters, terrorist monsters.” [White House, 4/19/2004] The next day, Bush makes a similar claim during another pro-Patriot Act speech in Buffalo. He tells listeners: “[T]here are such things as roving wiretaps. Now, by the way, any time you hear the United States government talking about wiretap, it requires—a wiretap requires a court order. Nothing has changed, by the way. When we’re talking about chasing down terrorists, we’re talking about getting a court order before we do so. It’s important for our fellow citizens to understand, when you think Patriot Act, constitutional guarantees are in place when it comes to doing what is necessary to protect our homeland, because we value the Constitution. But a roving wiretap means—it was primarily used for drug lords. A guy, a pretty intelligence drug lord would have a phone, and in old days they could just get a tap on that phone. So guess what he’d do? He’d get him another phone, particularly with the advent of the cell phones. And so he’d start changing cell phones, which made it hard for our DEA types to listen, to run down these guys polluting our streets. And that changed, the law changed on—roving wiretaps were available for chasing down drug lords. They weren’t available for chasing down terrorists, see? And that didn’t make any sense in the post-9/11 era. If we couldn’t use a tool that we’re using against mobsters on terrorists, something needed to happen. The Patriot Act changed that. So with court order, law enforcement officials can now use what’s called roving wiretaps, which will prevent a terrorist from switching cell phones in order to get a message out to one of his buddies.” [White House, 4/20/2004] Former AT&T senior technician Mark Klein (see July 7, 2009 and May 2004), who helped install the equipment used by the National Security Agency (NSA) and his firm to intercept foreign and domestic Internet communications (see January 16, 2004), will later say that Bush’s insistence that the administration gets court orders before wiretapping communications is false. AT&T, on behalf of the NSA, was monitoring “billions of messages a second,” Klein will write, all without court orders. [Klein, 2009, pp. 47-48] Klein will call Bush’s description of the surveillance program “disingenuous,” and continue: “They present it as about phone calls. They’re just watching a few bad people who make phone calls to al-Qaeda and the Middle East, and you notice they don’t talk about the Internet hardly at all. That part of it hasn’t been revealed, because if they did, Americans would realize it’s not just a few people; it’s everybody, because the data they’re handing over is not selected out. When you run fiber optics through a splitter and you send all that data to a secret room, there’s no selecting going on there at all.… They have no way of sifting it out unless they look through it later. Now they can claim, ‘Oh, we are right as rain; we’re only doing the legal thing and selecting out a few people that we’re legally entitled to,’ but that’s only after they get all the data. The analogy I use: If the government claims: ‘Well, when you do your taxes, why don’t you just write me a blank check and we’ll fill in the amount? Don’t worry. We’ll do it legal. We’ll fill in the right amount,’ would you do that? Nobody would trust the government by writing a blank check to them. It’s the same thing with the data we’re giving them.… [T]he Fourth Amendment specifically bans general warrants. It calls for specific warrants in which the things to be seized and the persons to be seized are specifically named. There’s a reason for that. It’s to protect against arbitrary government power. And what they’ve done is to trample over the Fourth Amendment by basically instituting a general warrant on the Internet.” [PBS Frontline, 5/15/2007]

Entity Tags: Foreign Intelligence Surveillance Court, Mark Klein, National Security Agency, George W. Bush

Timeline Tags: Civil Liberties

Senior AT&T technician Mark Klein (see July 7, 2009) accepts a buyout package from his firm and retires. Klein, disheartened by the illegal AT&T/NSA wiretapping operation he has documented (see January 16, 2004), decides to keep the documents he has collected over the years (see Fall 2003 and Late 2003), the “hard proof” of the operation, he will later write, “in case there was some change in the political winds that would enable me to come forward and expose… the crimes which I knew were being committed.” [Klein, 2009, pp. 44]

Entity Tags: Mark Klein, AT&T

Timeline Tags: Civil Liberties

Yaser Esam Hamdi.Yaser Esam Hamdi. [Source: Associated Press]In the case of Yaser Esam Hamdi v. Donald Rumsfeld, the Supreme Court rules 8-1 that, contrary to the government’s position, Hamdi (see December 2001), as a US citizen held inside the US, cannot be held indefinitely and incommunicado without an opportunity to challenge his detention. It rules he has the right to be given the opportunity to challenge the basis for his detention before an impartial court. Justice Sandra Day O’Connor writes for the majority: “It would turn our system of checks and balances on its head to suggest that a citizen could not make his way to court with a challenge to the factual basis for his detention by his government, simply because the Executive opposes making available such a challenge. Absent suspension of the writ by Congress, a citizen detained as an enemy combatant is entitled to this process.” Hamdi, on the other hand, apart from military interrogations and “screening processes,” has received no process. Due process, according to a majority of the Court, “demands some system for a citizen detainee to refute his classification [as enemy combatant].” A “citizen-detainee… must receive notice of the factual basis for his classification, and a fair opportunity to rebut the government’s factual assertions before a neutral decision-maker.” However, O’Connor writes, “an interrogation by one’s captor… hardly constitutes a constitutionally adequate factfinding before a neutral decisionmaker.”
Conservative Dissent: President Has Inherent Power to Detain Citizens during War - Only Justice Clarence Thomas affirms the government’s opinion, writing, “This detention falls squarely within the federal government’s war powers, and we lack the expertise and capacity to second-guess that decision.” [Supreme Court opinion on writ of certiorari. Shafiq Rasul, et al. v. George W. Bush, et al., 6/28/2004] Thomas adds: “The Founders intended that the president have primary responsibility—along with the necessary power—to protect the national security and to conduct the nation’s foreign relations. They did so principally because the structural advantages of a unitary executive are essential in these domains.” [Dean, 2007, pp. 105]
'A State of War Is Not a Blank Check for the President' - The authority to hold Hamdi and other such US citizens captured on enemy battlefields derives from Congress’s Authorization to Use Military Force (AUMF—see September 14-18, 2001). Justice Antonin Scalia dissents from this portion of the majority ruling, saying that because Congress had not suspended habeas corpus, Hamdi should either be charged with a crime or released. The Court also finds that if Hamdi was indeed a missionary and not a terrorist, as both he and his father claim, then he must be freed. While the Court does not grant Hamdi the right to a full criminal trial, it grants him the right to a hearing before a “neutral decision-maker” to challenge his detention. O’Connor writes: “It is during our most challenging and uncertain moments that our nation’s commitment to due process is most severely tested; and it is in these times that we must preserve our commitment at home to the principles for which we fight abroad.… We have long made clear that a state of war is not a blank check for the president when it comes to the rights of the nation’s citizens.”
Affirms President's Right to Hold US Citizens Indefinitely - Although the media presents the ruling as an unmitigated defeat for the Bush administration, it is actually far more mixed. The White House is fairly pleased with the decision, insamuch as Hamdi still has no access to civilian courts; the administration decides that Hamdi’s “neutral decision-maker” will be a panel of military officers. Hamdi will not have a lawyer, nor will he have the right to see the evidence against him if it is classified. This is enough to satisfy the Court’s ruling, the White House decides. In 2007, author and reporter Charlie Savage will write: “[T]he administration’s legal team noted with quiet satisfaction that, so long as some kind of minimal hearing was involved, the Supreme Court had just signed off on giving presidents the wartime power to hold a US citizen without charges or a trial—forever.” The Justice Department says of the ruling that it is “pleased that the [Court] today upheld the authority of the president as commander in chief of the armed forces to detain enemy combatants, including US citizens.… This power, which was contested by lawyers representing individuals captured in the War on Terror, is one of the most essential authorities the US Constitution grants the president to defend America from our enemies.” [Savage, 2007, pp. 193-194]

Entity Tags: Sandra Day O’Connor, Antonin Scalia, Donald Rumsfeld, Yaser Esam Hamdi, Clarence Thomas, Charlie Savage

Timeline Tags: Torture of US Captives, Complete 911 Timeline, Civil Liberties

Judge Colleen Kollar-Kotelly, the presiding judge over the Foreign Intelligence Surveillance Court (FISC), warns the Justice Department that if it does not stop using evidence collected with warrantless wiretaps to obtain warrants to continue surveillance, her court will be more reluctant to grant warrants for surveillance. Kollar-Kotelly has complained about this before (see 2004). Though both Kollar-Kotelly and her predecessor, Judge Royce Lambeth, express concerns to senior officials that Bush’s warrantless wiretapping program is inherently unconstitutional, neither judge feels that they have the authority to rule on the president’s power to order such surveillance. Instead, they work to preserve the integrity of the FISA process. Eventually, the judges reach a compromise with government lawyers: any case using evidence from warrantless wiretaps that is to be presented to the judges for FISA warrants to continue monitoring the same suspects will be “tagged,” and that evidence will not be used to obtain warrants. Those cases, numbering less than ten a year, are to be presented only to the presiding judge. Lambeth and Kollar-Kotelly both feel that the process will work primarily because of the trust they have developed in James Baker, the Justice Department’s liaison to FISC. Part of the problem stems from contradictory statements and claims from the administration; after the wiretapping program began (see After September 11, 2001, NSA chief Michael Hayden and then-Attorney General John Ashcroft made it clear in private meetings with the judges that President Bush wanted to gain all possible information on any potential terrorist attacks, and that such information-gathering must by necessity go beyond the FISA court’s probable-cause requirement. But more recent assertions by Hayden and Ashcroft’s successor, Alberto Gonzales (see December 19, 2005, claiming that NSA analysts do not listen to domestic calls unless they already have some evidence that one of the parties to the call has links to terrorism, contradict earlier administration claims to the judges. Kollar-Kotelly suspects that the entire truth of the matter is not being presented to her and the FISC. Her suspicions are validated when her court is, in spite of administration reassurances, again presented with warrant applications based on illegally obtained evidence (see Late 2005). [Washington Post, 2/9/2006]

Entity Tags: Royce Lambeth, US Department of Justice, National Security Agency, John Ashcroft, Alberto R. Gonzales, Colleen Kollar-Kotelly, Foreign Intelligence Surveillance Court, George W. Bush, James Baker, Michael Hayden

Timeline Tags: Civil Liberties

In a Columbus, Ohio, speech praising the USA Patriot Act (see October 26, 2001), President Bush claims that when US government agencies wiretap anyone’s phones or email communications, they do so with a court order. Bush says: “Before the Patriot Act, agents could use wiretaps to investigate a person committing mail fraud, but not to investigate a foreign terrorist. The Patriot Act corrected all these pointless double standards—and America is safer as a result. One tool that has been especially important to law enforcement is called a roving wiretap. Roving wiretaps allow investigators to follow suspects who frequently change their means of communications. These wiretaps must be approved by a judge, and they have been used for years to catch drug dealers and other criminals. Yet, before the Patriot Act, agents investigating terrorists had to get a separate authorization for each phone they wanted to tap. That means terrorists could elude law enforcement by simply purchasing a new cell phone. The Patriot Act fixed the problem by allowing terrorism investigators to use the same wiretaps that were already being using against drug kingpins and mob bosses. The theory here is straightforward: If we have good tools to fight street crime and fraud, law enforcement should have the same tools to fight terrorism.” [White House, 6/9/2005] Bush made almost identical claims a year ago (see April 19-20, 2004). The same day as Bush makes his speech, the White House issues a fact sheet making the same claims (see June 9, 2005). Former AT&T senior technician Mark Klein (see July 7, 2009 and May 2004), who helped install the equipment used by the National Security Agency (NSA) and his firm to intercept foreign and domestic Internet communications (see January 16, 2004), will later say that Bush’s insistence that the administration gets court orders before wiretapping communications is false. AT&T, on behalf of the NSA, was monitoring “billions of messages a second,” Klein will write, all without court orders. [Klein, 2009, pp. 47-48]

Entity Tags: Mark Klein, George W. Bush, National Security Agency, USA Patriot Act

Timeline Tags: Civil Liberties

Arthur Sulzberger.Arthur Sulzberger. [Source: New York Times]George W. Bush summons New York Times publisher Arthur Sulzberger and Times editor Bill Keller to the Oval Office to try to dissuade them from running a landmark story revealing the NSA’s illegal wiretapping program (see December 15, 2005) that he authorized in 2002 (see Early 2002). In the meeeting, Bush warns Sulzberger and Keller that “there’ll be blood on your hands” if another terrorist attack were to occur, obviously implying that to reveal the nature of the program would invite terrorist strikes. Bush is unsuccessful in his attempt to quash the story. [Newsweek, 12/21/2005; Newsweek, 12/22/2008]

Entity Tags: New York Times, Arthur Sulzberger, George W. Bush, National Security Agency, Bill Keller

Timeline Tags: Civil Liberties

In his weekly radio address, President Bush claims that the US always obtains court warrants before launching electronic surveillance efforts. “The Patriot Act is helping America defeat our enemies while safeguarding civil liberties for all our people,” he says. “The judicial branch has a strong oversight role in the application of the Patriot Act. Under the act, law enforcement officers need a federal judge’s permission to wiretap a foreign terrorist’s phone or search his property. Congress also oversees our use of the Patriot Act. Attorney General Gonzales delivers regular reports on the Patriot Act to the House and the Senate.” [White House, 12/10/2005] Bush has made similar claims in the recent past (see April 19-20, 2004, June 9, 2005, and April 19-20, 2004). Former AT&T senior technician Mark Klein (see July 7, 2009 and May 2004), who helped install the equipment used by the National Security Agency (NSA) and his firm to intercept foreign and domestic Internet communications (see January 16, 2004), will later say that Bush’s insistence that the administration gets court orders before wiretapping communications is false. AT&T, on behalf of the NSA, was monitoring “billions of messages a second,” Klein will write, all without court orders. [Klein, 2009, pp. 47-48]

Entity Tags: Mark Klein, AT&T, George W. Bush, USA Patriot Act, National Security Agency

Timeline Tags: Civil Liberties

Retired AT&T technician Mark Klein (see July 7, 2009 and May 2004) is gladdened to see the New York Times’s reports on the Bush administration’s warrantless wiretapping program (see December 15, 2005 and December 24, 2005). Klein has known since 2002 that the National Security Agency (NSA) has been using AT&T facilities to illegally eavesdrop on American citizens’ telephone and Internet communications (see Late 2002, January 2003, October 2003, Fall 2003, Late 2003, Late 2003, and January 16, 2004). He has considered going public with his knowledge, but has so far refrained because, he will later explain, “[t]he atmosphere was still kind of scary.” He will later say of the Times report, “They seemed to be talking mainly about phone calls, but anyway, it was revealed that there was an illegal spying program going on, and I thought, ‘Ah, this would probably blow the whole thing,’ and I thought it would all come out, and I don’t need to do anything.” However, Klein is horrified to see the government’s response. He will say: “[W]hat came out was the government turned around and went on the offensive against anybody who would dare to criticize them.… They’re issuing threats: Anyone who has a security clearance and spills any beans here is in for prosecution. That was deliberately said by them several times on TV to intimidate anybody in, say, the NSA who knew the truth, intimidate them so they would not come forward. So that silenced anybody in the intelligence community” (see December 17, 2005, December 19, 2005, December 21, 2005, December 30, 2005, and January 25-26, 2006). In his 2009 book Wiring Up the Big Brother Machine… and Fighting It, Klein will write that the Justice Department’s December 2005 investigation into the leak of classified information that led to the Times reports (see December 30, 2005) “was obviously intended to silence Congress, the media, and any potential whistleblowers inside the NSA who might have been tempted to come forward. The administration was manipulating the secrecy oath which people had taken to get security clearances, turning it into a weapon to silence anyone who had knowledge of wrongdoing.” Klein decides that he must come forward. He never received a security clearance, so he cannot be threatened with legal action over violating such clearance. He will explain: “All I had and still have are some company documents and some knowledge of some illicit NSA installation at AT&T’s network. And if anybody—say, Congress—was willing to follow the trail, I can give them all the names they want, and they can go up the hierarchy of AT&T all the way up to Dave Dorman, who was the president back then, and they can go even higher, and they can find out who is responsible for this, and they can ask them under oath and subpoena what the heck is going on here, if they had the will to do it.” Klein later admits to some hesitation and trepidation at undertaking such an effort, and will cite the “McCarthyite” atmosphere he says the government has created in which “dissidents become the target of a lynch mob searching for ‘terrorists.’” But, he will write, he believes the Times stories are “a political indication of a shift at the top of government, a split of some kind which could provide an opening.… Maybe they would publish my material, I thought, and that would provide some protection.” By December 31, Klein writes a preface to his memo from almost two years before (see January 16, 2004 and December 31, 2005). [PBS Frontline, 5/15/2007; Klein, 2009, pp. 52-53]

Entity Tags: New York Times, AT&T, Bush administration (43), National Security Agency, US Department of Justice, Mark Klein

Timeline Tags: Civil Liberties

A number of senators from both political parties lash out at President Bush’s acknowledgment that he reauthorized the NSA’s warrantless wiretapping program over thirty times since its inception in late 2001 (see December 17, 2005). Senator Russ Feingold (D-WI) says that such warrantless wiretapping is outside of the law. “He’s trying to claim somehow that the authorization for the Afghanistan attack after 9/11 permitted this, and that’s just absurd,” Feingold says. “There’s not a single senator or member of Congress who thought we were authorizing wiretaps.… If he needs a wiretap, the authority is already there—the [Foreign] Intelligence Surveillance Act (FISA). They can ask for a warrant to do that, and even if there’s an emergency situation, they can go for 72 hours as long as they give notice at the end of 72 hours.” Senator Arlen Specter (R-PA) says the behavior of the White House and NSA “can’t be condoned.” Specter, the chairman of the Senate Judiciary Committee, says his committee will immediately begin investigating the matter. Senator Charles Schumer (D-NY) says the report swayed his decision on the reauthorization of the USA Patriot Act. “Today’s revelation that the government listened in on thousands of phone conversations without getting a warrant is shocking and has greatly influenced my vote,” he says. [CNN, 12/16/2005]

Entity Tags: Charles Schumer, Arlen Specter, Foreign Intelligence Surveillance Act, George W. Bush, Russell D. Feingold, National Security Agency, USA Patriot Act, Senate Judiciary Committee

Timeline Tags: Civil Liberties

President Bush acknowledges that he issued a 2002 executive order authorizing the National Security Agency (NSA) to wiretap US citizens’ phones and e-mails without proper warrants, and accuses the New York Times of jeopardizing national security by publishing its December 15 article (see Early 2002 and December 15, 2005). Bush says he was within the law to issue such an order, which many feel shatters fundamental Constitutional guarantees of liberty and privacy, but accuses the Times of breaking the law by publishing the article. Bush tells listeners during his weekly radio address that the executive order is “fully consistent” with his “constitutional responsibilities and authorities.” But, he continues, “Yesterday the existence of this secret program was revealed in media reports, after being improperly provided to news organizations. As a result, our enemies have learned information they should not have, and the unauthorized disclosure of this effort damages our national security and puts our citizens at risk.” He admits allowing the NSA to “to intercept the international communications of people with known links to al-Qaeda and related terrorist organizations” in a program designed to “detect and prevent terrorist attacks.” Under the law, the NSA must obtain warrants from the Foreign Intelligence Surveillance Act (FISA) Court, but after Bush’s executive order, it was no longer required to do so. Bush justifies the order by citing the example of two 9/11 hijackers, Khalid Almihdhar and Nawaf Alhazmi, who, he says, “communicated while they were in the United States to other members of al-Qaeda who were overseas, but we didn’t know they were here until it was too late.” Because of the unconstitutional wiretapping program, it is “more likely that killers like these 9/11 hijackers will be identified and located in time, and the activities conducted under this authorization have helped detect and prevent possible terrorist attacks in the United States and abroad.” Bush also admits to reauthorizing the program “more than thirty times,” and adds, “I intend to do so for as long as our nation faces a continuing threat from al-Qaeda and related groups.” [CNN, 12/16/2005] Bush fails to address the likelihood that the domestic surveillance program began well before 9/11 (see Late 1999, February 27, 2000, December 2000, February 2001, February 2001, Spring 2001, July 2001, and Early 2002).

Entity Tags: National Security Agency, George W. Bush, Khalid Almihdhar, Foreign Intelligence Surveillance Act, Nawaf Alhazmi, Al-Qaeda

Timeline Tags: Civil Liberties

After the NSA’s warrantless wiretapping program is revealed (see Early 2002 and December 15, 2005), some commentators criticize the program. Americans have fundamental Constitutional protections that are enforceable in court whether their conversations are domestic or international, says law scholar Geoffrey Stone. Stone says that President Bush’s emphasis that NSA wiretapping only takes place on US calls to overseas phones or overseas e-mails “is no different, as far as the law is concerned, from saying we only do it on Tuesdays.” Former FBI national security law chief Michael Woods, who served in the position when Bush signed the NSA directive, calls the program “very dangerous.” Though Woods says the program was justifiable in the immediate aftermath of 9/11, “[By now] we ought to be past the time of emergency responses. We ought to have more considered views now…. We have time to debate a legal regime and what’s appropriate.” [Washington Post, 12/18/2005] Kate Martin, director of the Center for National Security Studies, says the secret order may amount to Bush authorizing criminal activity in direct violation of FISA. “This is as shocking a revelation as we have ever seen from the Bush administration,” she says. “It is, I believe, the first time a president has authorized government agencies to violate a specific criminal prohibition and eavesdrop on Americans.” The American Civil Liberties Union’s Caroline Frederickson says of the program, “It’s clear that the administration has been very willing to sacrifice civil liberties in its effort to exercise its authority on terrorism, to the extent that it authorizes criminal activity.” [Washington Post, 12/16/2005]

Entity Tags: Center for National Security Studies, Geoffrey Stone, American Civil Liberties Union, National Security Agency, Caroline Frederickson

Timeline Tags: Civil Liberties

Attorney General Alberto Gonzales and NSA chief Lieutenant General Michael Hayden conduct their own “briefing” on the recently revealed NSA wiretapping program (see December 15, 2005) with the White House press corps. Gonzales and Hayden make the following points:
bullet Gonzales says that he will not discuss the internal workings of the still-classified program, only what he calls its “legal underpinnings.”
bullet He claims that the program, which he calls “the most classified program that exists in the United States government,” is legal because President Bush authorized it, and says that the idea that “the United States is somehow spying on American citizens” is wrong: it is “[v]ery, very important to understand that one party to the communication has to be outside the United States.”
bullet He says that for the NSA to eavesdrop on a US citizen’s telephone or e-mail communications, “we have to have a reasonable basis to conclude that one party to the communication is a member of al-Qaeda, affiliated with al-Qaeda, or a member of an organization affiliated with al-Qaeda, or working in support of al-Qaeda.” The wiretapping program is an essential part of the administration’s war against terror, he says.
bullet He goes on to claim that “the authorization to use force, which was passed by the Congress in the days following September 11th, constitutes” legal grounds for “this kind of signals intelligence.” [White House, 12/19/2005] The White House signed Congress’s Authorization to Use Military Force (AUMF) into law on September 18, 2001 (see September 14-18, 2001. [White House, 9/18/2001]
Hayden Claims Supreme Court Backing - While he admits that the Congressional authorization to use force against international terrorism does not specifically mention any kind of electronic surveillance, he refers the listeners to the Supreme Court case concerning alleged US terrorist Yaser Esam Hamdi (see June 28, 2004), in which the Court ruled that Hamdi had the legal right to challenge his detention. “[T]he United States government took the position that Congress had authorized that detention in the authorization to use force, even though the authorization to use force never mentions the word ‘detention.’ And the Supreme Court, a plurality written by Justice O’Connor agreed. She said, it was clear and unmistakable that the Congress had authorized the detention of an American citizen captured on the battlefield as an enemy combatant for the remainder—the duration of the hostilities. So even though the authorization to use force did not mention the word, ‘detention,’ she felt that detention of enemy soldiers captured on the battlefield was a fundamental incident of waging war, and therefore, had been authorized by Congress when they used the words, ‘authorize the President to use all necessary and appropriate force.’ For the same reason, we believe signals intelligence is even more a fundamental incident of war, and we believe has been authorized by the Congress. And even though signals intelligence is not mentioned in the authorization to use force, we believe that the Court would apply the same reasoning to recognize the authorization by Congress to engage in this kind of electronic surveillance.”
Bush 'Very Concerned' With Protecting Civil Liberties - Gonzales insists, Bush “is very concerned about the protection of civil liberties, and that’s why we’ve got strict parameters, strict guidelines in place out at NSA to ensure that the program is operating in a way that is consistent with the President’s directives.” He adds, “[W]e feel comfortable that this surveillance is consistent with requirements of the Fourth Amendment. The touchstone of the Fourth Amendment is reasonableness, and the Supreme Court has long held that there are exceptions to the warrant requirement in—when special needs outside the law enforcement arena. And we think that that standard has been met here.”
Wiretapping Essential in Catching Terrorists - Hayden reiterates how important the wiretapping is to catching terrorists and stopping potential attacks against US targets, though he and Gonzales both refuse to say what, if any, terrorist plots or what terror suspects might have been captured through the NSA wiretapping program. Hayden does say, “This program has been successful in detecting and preventing attacks inside the United States.…I can say unequivocally, all right, that we have got information through this program that would not otherwise have been available,” though he refuses to cite specifics. He admits that there have been some errors in surveilling innocent US citizens, though he refuses to give any details, and says those errors were quickly corrected.
Administration Not Required to Go Through FISA - Gonzales, who is the main speaker in the briefing, reiterates that while the administration continues to seek warrants from the Foreign Intelligence Surveillance (FISA) court, “we are not legally required to do, in this particular case, because the law requires that we—FISA requires that we get a court order, unless authorized by a statute, and we believe that authorization has occurred.” He justifies the administration’s refusal to use the FISA court for obtaining warrants by insisting that NSA officials “tell me that we don’t have the speed and the agility that we need, in all circumstances, to deal with this new kind of enemy. You have to remember that FISA was passed by the Congress in 1978. There have been tremendous advances in technology… since then.” Hayden adds, “I don’t think anyone could claim that FISA was envisaged as a tool to cover armed enemy combatants in preparation for attacks inside the United States. And that’s what this authorization under the President is designed to help us do.”
'Balancing' of Civil Liberties, National Security - Hayden says the warrantless wiretapping program is part of “a balancing between security and liberty,” a more “aggressive” operation “than would be traditionally available under FISA. It is also less intrusive. It deals only with international calls. It is generally for far shorter periods of time. And it is not designed to collect reams of intelligence, but to detect and warn and prevent about attacks. And, therefore, that’s where we’ve decided to draw that balance between security and liberty.”
Media Leaks Damaging to National Security - Gonzales refuses to talk about when any members of Congress were briefed on the program or what they were told, but he does imply that there will be some sort of leak investigation as to how the New York Times found out about the program: “[T]his is really hurting national security, this has really hurt our country, and we are concerned that a very valuable tool has been compromised. As to whether or not there will be a leak investigation, we’ll just have to wait and see.”
No Evidence of Compromised National Security - When asked whether he can cite any evidence that the revelation of the program’s existence has actually compromised anything—“Don’t you assume that the other side thinks we’re listening to them? I mean, come on,” one reporter says—Gonzales responds, rather confusingly, “I think the existence of this program, the confirmation of the—I mean, the fact that this program exists, in my judgment, has compromised national security, as the President indicated on Saturday.”
Easier to Sidestep FISA Instead of Seek Congressional Approval - He does admit that the administration decided to sidestep the FISA court entirely instead of attempt to work with Congress to rewrite the FISA statutes because “we were advised that that would be difficult, if not impossible” to amend the law to the White House’s satisfaction. Gonzales says those who are concerned about the program being excessively intrusive or a threat to American civil liberties simply “don’t understand the specifics of the program, they don’t understand the strict safeguards within the program.… Part of the reason for this press brief today is to have you help us educate the American people and the American Congress about what we’re doing and the legal basis for what we’re doing.” He adds that any legal experts who believe the program is illegal are basing their judgments “on very limited information.”
Tough Questioning - One reporter asks an unusually tough series of questions to Gonzales: “Do you think the government has the right to break the law?”, to which Gonzales replies, “Absolutely not. I don’t believe anyone is above the law.” The reporter then says, “You have stretched this resolution for war into giving you carte blanche to do anything you want to do,” to which Gonzales replies cryptically, “Well, one might make that same argument in connection with detention of American citizens, which is far more intrusive than listening into a conversation.” The reporter insists, “You’re never supposed to spy on Americans,” and Gonzales deflects the responsibility for the decision back onto the Supreme Court.
Administration Will Tell Nation What It Needs to Know - Gonzales says the administration has no intention of releasing any of the classified legal opinions underpinning the program, and this press briefing is one of the methods by which the administration will “educat[e] the American people…and the Congress” to give them what they need to know about the program. [White House, 12/19/2005]

Entity Tags: White House press corps, Michael Hayden, Al-Qaeda, National Security Agency, Alberto R. Gonzales, George W. Bush, Foreign Intelligence Surveillance Court

Timeline Tags: Civil Liberties

DARPA logo.DARPA logo. [Source: Duke University]The computer and technology experts at Ars Technica, a well-regarded Web publication which describes itself as focusing on “the art of technology,” speculate on the technology behind the NSA warrantless wiretapping program recently revealed to the public (see December 15, 2005). The Ars Technica experts believe that Senator Jay Rockefeller (D-WV)‘s 2003 comparison between the program and the Total Information Awareness (TIA) project (see March 2002) is the most apt. They believe that the NSA wiretapping program may be built upon the foundation of a shadowy, highly classified surveillance program called Echelon. They write, “This system’s purpose would be to monitor communications and detect would-be terrorists and plots before they happen… This project is not interested in funding ‘evolutionary’ changes in technology, e.g., bit-step improvements to current data mining and storage techniques. Rather, the amount of data that the directors are anticipating (petabytes!) would require massive leaps in technology (and perhaps also some massive leaps in surveillance laws).” [Ars Technica, 12/20/2005; Ars Technica, 2007] Data storage measured in petabytes is a colossal capacity; a petabyte is 1,024 terabytes, and a single terabyte is 1,024 gigabytes, the usual measurement for hard drive capacity. [TechTerms, 2007] The Ars Technica experts continue, “According to DARPA, such data collection ‘increases information coverage by an order of magnitude,’ and ultimately ‘requires keeping track of individuals and understanding how they fit into models.’” They go on to note that the NSA wiretapping program was instituted shortly after the TIA project was quashed by Congress, and say they believe the NSA program is an extension and an outgrowth of TIA. They note that “the FBI requested the legal authorization to do very high-volume monitoring of digital calls” in 1995, that there is “no way for the judicial system to approve warrants for the number of calls that the FBI wanted to monitor,” and that the FBI “could never hire enough humans to be able to monitor that many calls simultaneously, which means that they’d have to use voice recognition technology to look for ‘hits’ that they could then follow up on with human wiretaps.” The Ars Technica experts believe the NSA is using “some kind of high-volume, automated voice recognition and pattern matching system,” employing a form of “smart filtering” that would weed through perhaps hundreds of thousands of computer-monitored calls and turning a fraction of those calls over to human analysts for evaluation: “[Y]es, this kind of real-time voice recognition, crude semantic parsing and pattern matching is doable with today’s technology, especially when you have a budget like the NSA.” In a follow-up, Ars Technica technology specialist and self-described conservative and “privacy nazi” Jon Stokes writes of his own concerns over the program, noting that the program is too wide-reaching and too blunt to actually catch many real terrorists, and that the program is a tremendous intrusion into Americans’ fundamental privacy: “The problem is not that such large-scale industrial fishing invariably catches a few dolphins along with the tuna, but that between 99.999 and 100 percent of what you’re going to get is dolphin.” Stokes also warns that such an intrusive surveillance program will not only violate privacy rights, but be quite ineffective: “As the TSA, with its strip-searching of people’s elderly grandparents, abundantly proves every holiday season, blunt instruments and scorched earth tactics are of dubious value in catching genuine bad actors. In fact, blunt instruments and wide nets are the easiest for professional bad guys to evade. All you need to beat such surveillance tools is patience and know-how.…Blunt instruments like airport facial recognition software and random subway bag searches produce much more noise than they do signal, and any engineer or computer scientist worth his or her salt will tell you that an intelligent, targeted, low-tech approach beats a brute-force high-tech approach every time. There is no high-tech substitute for human intelligence gathering. In fact…an overload of crudely processed information is actually more likely to lead an analyst astray than it is to produce any useful insight.…In the end, brute force security techniques are not only corrosive to democratic values but they’re also bad for national security. They waste massive resources that could be spent more effectively elsewhere, and they give governments and countries a false sense of security that a savvy enemy can exploit to devastating effect.…[I]t’s not just enough to have sound intelligence; you also need political leaders who have the wisdom to use that intelligence appropriately.” [Ars Technica, 12/20/2005]

Entity Tags: Transportation Safety Administration, Total Information Awareness, Federal Bureau of Investigation, John D. Rockefeller, Defense Advanced Research Projects Agency, Jon Stokes, National Security Agency

Timeline Tags: Civil Liberties

Reporter Arlene Getz equates President Bush’s attempt at controlling the media exposure of the warrantless wiretapping program (see December 15, 2005 and December 6, 2005) to similar media manipulation programs undertaken by the white apartheid regime in South Africa during the 1980s, and the acceptance of the controlled media by some South African citizens. Getz, who reported extensively on South Africa’s government, writes: “For anyone who has lived under an authoritarian regime, phone tapping—or at least the threat of it—is always a given. But US citizens have always been lucky enough to believe themselves protected from such government intrusion. So why have they reacted so insipidly to yet another post-9/11 erosion of US civil liberties?” She extends the comparison: “While Bush uses the rhetoric of ‘evildoers’ and the ‘global war on terror,’ Pretoria talked of ‘total onslaught.’ This was the catchphrase of P. W. Botha, South Africa’s head of state from 1978 to 1989.…Botha liked to tell South Africans that the country was under ‘total onslaught’ from forces both within and without, and that this global assault was his rationale for allowing opponents to be jailed, beaten or killed. Likewise, the Bush administration has adopted the argument that anything is justified in the name of national security.” [Newsweek, 12/21/2005]

Entity Tags: National Security Agency, Arlene Getz, Bush administration (43), P. W. Botha, George W. Bush

Timeline Tags: Civil Liberties, Domestic Propaganda

Chart showing NSA surveillance network.Chart showing NSA surveillance network. [Source: NSA Watch] (click image to enlarge)The National Security Agency has built a far larger database of information collected from warrantless surveillance of telephone and Internet communications to and from US citizens than the NSA or the Bush administration has acknowledged (see October 2001). On December 15, the New York Times exposed the NSA’s program (see December 15, 2005), which was authorized by President Bush in early 2002 (see Early 2002), but which actually began far earlier (see Spring 2001). The NSA built its database with the cooperation of several major American telecommunications firms (see June 26, 2006), and much of the information was mined directly into the US telecommunications system’s major connections. Many law enforcement and judicial officials question the legality of the program (see May 12, 2006 and December 18, 2005), and many say the program goes beyond the bounds of the Foreign Intelligence Surveillance Act (see 1978). One question is whether the FISA Court, or FISC, can authorize monitoring of international communications that pass through US-based telephonic “switches,” which handle much of the US’s electronic communications traffic. “There was a lot of discussion about the switches” in conversations with FISC, says a Justice Department official. “You’re talking about access to such a vast amount of communications, and the question was, How do you minimize something that’s on a switch that’s carrying such large volumes of traffic? The court was very, very concerned about that.” While Bush and his officials have insisted that the warrantless wiretaps only target people with known links to al-Qaeda, they have not acknowledged that NSA technicials have not only eavesdropped on specific conversations between people with no known links to terrorism, but have combed through huge numbers of electronic communications in search of “patterns” that might point to terrorism suspects. Such “pattern analysis” usually requires court warrants before surveillance can begin, but in many cases, no such warrants have been obtained or even requested. Other, similar data-mining operations, such as the Total Information Awareness program, developed by the Defense Department to track terror suspects (see March 2002), and the Department of Homeland Security’s CAPPS program, which screened airline passengers (see (6:20 a.m.-7:48 a.m.) September 11, 2001), were subjected to intense public scrutiny and outrage, and were publicly scrapped. The Bush administration has insisted that it has no intention of scrapping the NSA’s warrantless wiretapping program, because, as its officials have said, it is necessary to identify and track terrorism suspects and foil terrorist plots before they can be hatched. Administration officials say that FISC is not quick enough to respond to its need to respond to potential terrorist acts. A former technology manager at a major telecommunications company says that after 9/11, the leading telecom firms have been storing information on calling patterns and giving it to the federal government to aid in tracking possible terrorists. “All that data is mined with the cooperation of the government and shared with them, and since 9/11, there’s been much more active involvement in that area,” says the former manager. “If they get content, that’s useful to them too, but the real plum is going to be the transaction data and the traffic analysis. Massive amounts of traffic analysis information—who is calling whom, who is in Osama Bin Laden’s circle of family and friends—is used to identify lines of communication that are then given closer scrutiny.” And, according to a government expert on communications privacy who used to work at the NSA, says that in the last few years, the government has quietly encouraged the telecom firms to rout more international traffic through its US-based switches so it can be monitored. Such traffic is not fully addressed by 1970s-era laws that were written before the onset of modern communications technology; neither does FISA adequately address the issues surrounding that technology. Computer engineer Phil Karn, who works for a major West Coast telecom firm, says access to those switches is critical: “If the government is gaining access to the switches like this, what you’re really talking about is the capability of an enormous vacuum operation to sweep up data.” [New York Times, 12/24/2005]

Entity Tags: US Department of Defense, US Department of Justice, Total Information Awareness, New York Times, US Department of Homeland Security, Computer Assisted Passenger Prescreening System, Bush administration (43), Foreign Intelligence Surveillance Act, Foreign Intelligence Surveillance Court, George W. Bush, National Security Agency, Phil Karn

Timeline Tags: Civil Liberties

Suzanne Spaulding, a former counsel for the CIA, the Senate and House intelligence commission, and executive director of the National Terrorism Commission from 1999 through 2000, writes an op-ed criticizing the Bush administration for its domestic surveillance program. She writes that the three main sources of oversight and restraint on Bush’s unfettered efforts to monitor US citizens—Congress, the judiciary, and the American people—have failed to halt what she calls “this extraordinary exercise of presidential power.” Spaulding, who will testify along similar lines before the Senate over a year later (see April 11, 2007), writes, “Ironically, if it is ultimately determined that this domestic surveillance program reflects the exercise of unchecked power in contravention of law, it will wind up weakening the presidency. Once again, we will confront the challenge of restoring Americans’ faith in the rule of law and our system of checks and balances.” The pretense of oversight by the administration, in providing limited and perhaps misleading briefings on the program only to the so-called “Gang of Eight” Congressional leaders, is superficial and ineffective, she writes; the entire process “effectively eliminates the possibility of any careful oversight.” She notes that because of the severe restrictions both in the information doled out to these Congressional leaders, and their strict prohibition on discussing the information with anyone else, even other intelligence panel members, “[i]t is virtually impossible for individual members of Congress, particularly members of the minority party, to take any effective action if they have concerns about what they have heard in one of these briefings. It is not realistic to expect them, working alone, to sort through complex legal issues, conduct the kind of factual investigation required for true oversight and develop an appropriate legislative response.” Congressional oversight is key to retaining the trust of the US citizenry, she writes, and adds that that particular principle was well understood at the CIA while she was there. Oversight “is vital for a secret agency operating in a democracy. True oversight helps clarify the authority under which intelligence professionals operate. And when risky operations are revealed, it is important to have members of Congress reassure the public that they have been overseeing the operation. The briefings reportedly provided on the National Security Agency (NSA) surveillance program reflect, instead, a ‘check the box’ mentality—allowing administration officials to claim that they had informed Congress without having really achieved the objectives of oversight.” While those few members of Congress are given little real information, the judiciary, particularly the Foreign Intelligence Surveillance Court (FISC), is cut out of the process entirely. “Instead of going to a judge on the secret court that was specifically established to authorize foreign intelligence surveillance inside the United States, we are told that an NSA shift supervisor was able to sign off on the warrantless surveillance of Americans,” she writes. “That’s neither a check nor a balance. The primary duty of the NSA shift supervisor, who essentially works for the president, is to collect intelligence. The task of the judge is to ensure that the legal standards set out in the 1978 Foreign Intelligence Surveillance Act (FISA) have been met. Which one has stronger independence to say no, if no needs to be said? The objectives of the surveillance program, as described in news reports, seem laudable. The government should be running to ground the contacts listed in a suspected terrorist’s cell phone, for example. What is troubling is that this domestic spying is being done in apparent contravention of FISA, for reasons that still are not clear.” In her piece she takes issue with the Bush administration’s insistence that its surveillance program is legal and necessary. She makes the following case:
Specious Arguments to Duck FISA Court - The argument that the FISA Court is too slow to respond to immediate needs for domestic surveillance is specious, she says. “FISA anticipates situations in which speed is essential. It allows the government to start eavesdropping without a court order and to keep it going for a maximum of three days. And while the FISA application process is often burdensome in routine cases, it can also move with remarkable speed when necessary, with applications written and approved in just a few hours.” Instead, she says that the Bush administration must have dodged FISC because their wiretaps didn’t meet FISA standards of probable cause. Since FISC is staffed by judges hand-picked by conservative then-Supreme Court Chief Justice William Rehnquist, “who presumably felt that they had the right temperament and expertise to understand the national security imperatives as well as the need to protect civil liberties,” and since FISC has granted all but four of the more than 5,645 requests for wiretaps and surveillance made by the administration since 2001, to argue that FISC is unresponsive is simply wrong-headed. And, she notes, if the administration felt that FISA’s standards were too strict, it could have moved to amend the law to allow more leniency in obtaining such warrants. It has not done so since the passage of the 2001 Patriot Act. She writes, “The administration reportedly did not think it could get an amendment without exposing details of the program. But this is not the first time the intelligence community has needed a change in the law to allow it to undertake sensitive intelligence activities that could not be disclosed. In the past, Congress and the administration have worked together to find a way to accomplish what was needed. It was never previously considered an option to simply decide that finding a legislative solution was too hard and that the executive branch could just ignore the law rather than fix it.”
No Justification for Keeping Program Secret - In addition, the administration has consistently failed to make a case for keeping the domestic wiretapping policy secret for four years. US-designated terrorist groups already know that the government listens to their cell phone conversations whenever possible, and they are well aware of the various publicly known programs to search through millions of electronic communications, such as the NSA’s Echelon program (see April 4, 2001). “So what do the terrorists learn from a general public discussion about the legal authority being relied upon to target their conversations?” she asks. “Presumably very little. What does the American public lose by not having the public discussion? We lose the opportunity to hold our elected leaders accountable for what they do on our behalf.”
Assertions that Program Authorized by Congress Fallacious - The argument advanced by Attorney General Alberto Gonzales that says the program does not violate the law because Congress’s post-9/11 authorization of force against terrorists gives the administration the right to circumvent FISA is equally specious, she argues. “FISA does provide for criminal penalties if surveillance is conducted under color of law ‘except as authorized by statute.’ This is a reference to either FISA or the criminal wiretap statute. A resolution, such as the Use of Force resolution, does not provide statutory authority. Moreover, FISA specifically provides for warrantless surveillance for up to 15 days after a declaration of war. Why would Congress include that provision if a mere Use of Force resolution could render FISA inapplicable? The law clearly states that the criminal wiretap statute and FISA are ‘the exclusive means by which electronic surveillance…and the interception of domestic wire, oral, and electronic communications may be conducted.’ If these authorities are exclusive, there is no other legal authority that can authorize warrantless surveillance. Courts generally will not view such a clear statutory statement as having been overruled by a later congressional action unless there is an equally clear indication that Congress intended to do that.” Therefore, by any legal standard, the administration’s program is, apparently, illegal.
No Inherent Presidential Authority - The ultimate argument by Bush officials, that the president has some sort of inherent authority as commander-in-chief to authorize illegal wiretaps, is the same groundless legal argument recently used to justify the use of torture by US intelligence and law enforcement agents (see December 28, 2001). That argument was withdrawn, Spaulding notes, after it became publicly known. While the courts have not specifically ruled on this particular argument, Spaulding notes that the Supreme Court refused to recognize then-President Harry Truman’s attempt to seize control of the nation’s steel mills to avert a possible strike during the Korean War. The Supreme Court ruled “that the president’s inherent authority is at its weakest in areas where Congress has already legislated. It ruled that to find inherent presidential authority when Congress has explicitly withheld that authority—as it has in FISA—‘is not merely to disregard in a particular instance the clear will of Congress. It is to disrespect the whole legislative process and the constitutional division of authority between president and Congress.’” She notes that in 2004, the Supreme Court rejected the argument for unchecked presidential power in the Hamdi case (see June 28, 2004), with Justice Sandra Day O’Connor writing for the court, “We have long since made clear that a state of war is not a blank check for the president when it comes to the rights of the Nation’s citizens. …Whatever power the United States Constitution envisions for the Executive in its exchanges with… enemy organizations in times of conflict, it most assuredly envisions a role for all three branches when individual liberties are at stake.” Spaulding concludes, “The rule of law and our system of checks and balances are not a source of weakness or a luxury of peace. As O’Connor reminded us in Hamdi, ‘It is during our most challenging and uncertain moments…that we must preserve our commitment at home to the principles for which we fight abroad.’” [Washington Post, 12/25/2005]

Entity Tags: Sandra Day O’Connor, William Rehnquist, USA Patriot Act, Suzanne Spaulding, National Security Agency, US Supreme Court, Harry S. Truman, Alberto R. Gonzales, “Gang of Eight”, National Commission on Terrorism, Central Intelligence Agency, Foreign Intelligence Surveillance Act, Foreign Intelligence Surveillance Court, Echelon, Bush administration (43)

Timeline Tags: Civil Liberties

The Justice Department opens an investigation into the leak of classified information about the Bush domestic surveillance program. The investigation focuses on disclosures to the New York Times about the secret warrantless wiretapping program conducted by the National Security Agency since shortly after the 9/11 attacks (see Early 2002). The White House claims that the Justice Department initiated the investigation on its own after receiving a request from the NSA, and that it was not even informed of the investigation until the decision had already been made. But White House spokesman Trent Duffy hails the investigation, and implicitly accuses the Times of aiding and abetting terrorists by printing its stories. “The leaking of classified information is a serious issue,” Duffy says. “The fact is that al-Qaeda’s playbook is not printed on Page One, and when America’s is, it has serious ramifications.” [Associated Press, 12/30/2005] President Bush fuels the attack on the Times when he says, “The fact that we’re discussing this program is helping the enemy.” [New York Times, 12/30/2005] Many outside of the administration have accused the wiretapping program, which functions without external oversight or court warrants, of being illegal, and Bush of breaking the law by authorizing it. Administration officials insist that Bush has the power to make such a decision, both under the Constitution’s war powers provision and under the post-9/11 Congressional authorization to use military force against terrorism, even though, as former Senate Majority Leader Tom Daschle recalls, Congress explicitly refused to give Bush the authority to take military action inside the US itself (see December 21-22, 2005). And, in a recent letter to the chairs of the House and Senate Intelligence Committees, the White House claimed that the nation’s security needs outweigh the needs of the citizenry to be secure from secret government surveillance. [Associated Press, 12/30/2005] Others disagree. The American Civil Liberties Union’s Anthony Romero says, “President Bush broke the law and lied to the American people when he unilaterally authorized secret wiretaps of US citizens. But rather than focus on this constitutional crisis, Attorney General [Alberto] Gonzales is cracking down on critics of his friend and boss. Our nation is strengthened, not weakened, by those whistle-blowers who are courageous enough to speak out on violations of the law.” And Marc Rotenberg, the executive director of the Electronic Privacy Information Center, says the NSA should be the focus of an investigation to determine if it broke federal surveillance laws. Tom Devine of the Government Accountability Project suggests a middle course. His group does not object to a limited investigation into the leak of classified information, but, he says, if the administration does “a blanket witch hunt, which I fear, it would trample all over good government laws” designed to protect government workers who expose wrongdoing. “The whole reason we have whistle-blower laws is so that government workers can act as the public’s eyes and ears to expose illegality or abuse of power.” [New York Times, 12/30/2005] Ultimately, this leak investigation may not achieve much, according to law professor Carl Tobias. “It doesn’t seem to me that this leak investigation will take on the importance of the Plame case,” Tobias says. “The bigger story here is still the one about domestic spying and whether the president intends, as he said, to continue doing it.” [Washington Post, 12/31/2005]

Entity Tags: Anthony D. Romero, Tom Devine, Trent Duffy, American Civil Liberties Union, Al-Qaeda, Tom Daschle, Senate Intelligence Committee, US Department of Justice, National Security Agency, Carl Tobias, Electronic Privacy Information Center, Alberto R. Gonzales, New York Times, Government Accountability Project, George W. Bush, Marc Rotenberg, House Intelligence Committee

Timeline Tags: Civil Liberties

Retired AT&T technician Mark Klein (see July 7, 2009 and May 2004), angered by the Bush administration’s counterattack against government and media members who have helped to expose its warrantless wiretapping operation (see December 15-31, 2005), decides to go public with a memo he wrote about his own knowledge of the collusion between AT&T and the National Security Agency (NSA) in eavesdropping on American citizens’ communications (see January 16, 2004). He updates the memo with a brief preface, selects eight pages of the 121 pages of AT&T documentation he possesses which he believes gives a good overview of the NSA’s surveillance equipment installation, and includes the two photographs he has taken of the NSA’s “secret room” at the AT&T facility in San Francisco and the Internet research he has done on the Narus STA 6400 equipment the NSA is using to sort the communications being captured and recorded (see Late 2003). Instead of entrusting his newly refurbished memo to the Internet, he uses the PGP (Pretty Good Privacy) security protocol for anticipated dissemination, burns the data onto a CD, and begins searching online for civil liberties groups that might be interested in his work. [Wired News, 5/17/2006; Klein, 2009, pp. 53-55]

Entity Tags: AT&T, National Security Agency, Mark Klein

Timeline Tags: Civil Liberties

Retired AT&T technician Mark Klein (see July 7, 2009 and May 2004), angered by the Bush administration’s counterattack against government and media members who have helped to expose its warrantless wiretapping operation (see December 15-31, 2005) and having prepared evidence to prove his knowledge of AT&T’s complicity with the NSA in setting in motion that operation (see December 31, 2005), begins searching for a civil liberties group that might be interested in his work. He quickly determines that two organizations, the Electronic Privacy Information Center (EPIC) and the Electronic Frontier Foundation (EFF), might be his best choices. Reluctant to use the telephone for fear of surveillance, he visits the EPIC offices, where he gives a lawyer a copy of the CD containing his evidence, printouts, and a disk copy of his PGP privacy key for public dissemination. He will later say that the lawyer on site is “polite” but shows little interest. When two weeks go by without any contact from EPIC, he journeys to San Francisco to the EFF offices with his documentation in hand. The reception at EFF is far different from the polite disinterest evidenced at EPIC. Executive director Shari Steele escorts him to speak with senior attorneys Kevin Bankston and Lee Tien. The EFF staffers tell Klein that their organization is already preparing a lawsuit against AT&T for illegally providing its customers’ telephone records to the government (see January 31, 2006), and his evidence will be very useful in the suit. Klein later writes, “I felt a sense of relief, that I had found the right place: a group that wanted to take on this fight.” EFF’s initial lawsuit does not include Klein’s material, but the organization will use it in the court proceedings. [Klein, 2009, pp. 55-56]

Entity Tags: Electronic Frontier Foundation, AT&T, Bush administration (43), Electronic Privacy Information Center, Kevin Bankston, Shari Steele, Lee Tien, Mark Klein

Timeline Tags: Civil Liberties

Jane Harman (D-CA), the ranking Democrat on the House Intelligence Committee, tells President Bush that his administration’s practice of only briefing a select few Congressional leaders on highly classified programs violates the National Security Act of 1947. Harman is referring to Bush’s practice of briefing the so-called “Gang of Eight,” comprised of the Speaker and Minority Leader of the House, the Majority and Minority Leaders of the Senate, and the chairmen and ranking members of the House and Senate Intelligence Committees, about the National Security Agency’s warrantless wiretapping program. Harman, a member of the Gang of Eight since 2003, says that she has found, she writes, “that the practice of briefing only certain Members of the intelligence committees violates the specific requirements of the National Security Act of 1947. The National Security Act requires that ‘The President shall ensure that the congressional intelligence committees are kept fully and currently informed of the intelligence activities of the United States….‘…The Act makes clear that the requirement to keep the committees informed may not be evaded on the grounds that ‘providing the information to the congressional intelligence committees would constitute the unauthorized disclosure of classified information.’” Harman notes that the one exception to the president’s duty to keep all committee members informed, covert action that entails “extraordinary circumstances affecting vital interests of the United States” and thereby limits notification to the Gang of Eight, applies only “to covert actions, not intelligence collection activities.” Harman adds, “For all intelligence activities that are not covert actions, the Executive Branch’s duty is clear: the ‘heads of all…entities involved in intelligence activities shall…keep the congressional intelligence committees fully and currently informed of all intelligence activities.” Harman says that merely briefing the Gang of Eight does not provide “effective oversight,” especially in light of the restrictions on the lawmakers: “Members of the Gang of Eight cannot take notes, seek the advice of their counsel, or even discuss the issues raised with their committee colleagues.… As you know, both congressional intelligence committees are select committees, formed of Members who hold the highest security clearances and have a proven ability to safeguard classified information.” Harman concludes, “In my view, failure to provide briefings to the full congressional intelligence committees is a continuing violation of the National Security Act.” [US House of Representatives, 1/4/2006] Two weeks later, the Congressional Research Service will issue a report on the requirements of the Act agreeing with Harman’s conclusion (see January 18, 2006).

Entity Tags: Congressional Research Service, “Gang of Eight”, George W. Bush, House Intelligence Committee, National Security Agency, Jane Harman, Senate Intelligence Committee, National Security Act

Timeline Tags: Civil Liberties

President Bush’s rationale for authorizing warrantless surveillance against US citizens is of questionable legality and “may represent an exercise of presidential power at its lowest ebb,” according to a Congressional analysis. The Congressional Research Service (CRS), the independent and nonpartisan research bureau of the legislature, answers the question raised around the nation since the revelation of the secret program by the New York Times (see Early 2002): did Bush break the law when he ordered the National Security Agency to eavesdrop on US citizens without court orders or judicial oversight? The CRS report does not give a definitive yes or no answer to that question, but finds Bush’s legal rationale dubious at best. That rationale “does not seem to be as well-grounded” as administration lawyers have claimed, and the report finds that, despite assertions to the contrary by Bush and administration officials, Congress did not authorize warrantless wiretaps when it gave the executive branch the authority to wage war against al-Qaeda in the days after the 9/11 attacks. Unsurprisingly, Bush administration officials criticize the report. But some Republicans and Democrats find the report’s conclusions persuasive, and hold up the report as further evidence that Bush overextended his authority by authorizing the wiretaps. For instance, Republican Thomas Kean, the former chairman of the 9/11 commission (see January 27, 2003, says he doubts the program’s legality. Kean, who has not spoken publicly about the program until now, says the 9/11 commission was never told about the program, and he strongly doubts its legality. “We live by a system of checks and balances, and I think we ought to continue to live by a system of checks and balances,” Kean says. [Congressional Research Service, 1/5/2006 pdf file; New York Times, 1/6/2006]

Entity Tags: George W. Bush, 9/11 Commission, Congressional Research Service, New York Times, National Security Agency, Thomas Kean

Timeline Tags: Civil Liberties

Fourteen law professors and former federal officials send a letter criticizing the Justice Department’s recent legal arguments supporting the legality of the secret NSA surveillance program (see December 19, 2005 and December 21-22, 2005). The letter is signed by law professors Curtis A. Bradley, a former State Department legal advisor; David Cole; Walter Dellinger, a former acting solicitor general and assistant attorney general; Ronald Dworkin; Richard Epstein; Harold Koh, a former assistant secretary of state and a former Justice Department official; Philip B. Heymann, a former deputy attorney general; Martin Lederman, a former Justice Department official; Beth Nolan, a former presidential counsel and a former Justice Department official; William S. Sessions, the former director of the FBI; Geoffrey R. Stone; Kathleen M. Sullivan; Laurence H. Tribe; and William Van Alstyne, a former Justice Department attorney. The letter is couched in legal language, but clearly states that the signees consider the NSA surveillance program entirely illegal: “[T]he program appears on its face to violate existing law.” The signees consider and reject the Justice Department’s argument that Congress “implicitly authorized the NSA program when it enacted the Authorization for Use of Military Force (AUMF) against al-Qaeda” in 2001 (see September 14-18, 2001), writing: “[T]he AUMF cannot reasonably be construed to implicitly authorize warrantless electronic surveillance in the United States during wartime, where Congress has expressly and specifically addressed that precise question in FISA and limited any such warrantless surveillance to the first 15 days of war.” The signees also reject the Justice Department’s argument that the president’s “inherent constitutional authority as commander in chief to collect ‘signals intelligence’” is not prohibited by FISA. The signees conclude that the Justice Department has failed “to offer a plausible legal defense of the NSA domestic spying program. 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. 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.” [Marty Lederman, 1/9/2006; Center for Democracy and Technology, 1/9/2006 pdf file]

Entity Tags: Harold Koh, William S. Sessions, William Van Alstyne, Curtis Bradley, Beth Nolan, Geoffrey Stone, US Department of Justice, Walter Dellinger, Richard Epstein, Martin (“Marty”) Lederman, Laurence Tribe, Kathleen M. Sullivan, Ronald Dworkin, National Security Agency, Philip Heymann, David D. Cole

Timeline Tags: Civil Liberties

Russell Tice.Russell Tice. [Source: ABC News]Former National Security Agency (NSA) official Russell Tice says that many of the wiretapping operations he once helped run were illegal. “I specialized in what’s called special access programs,” Tice tells ABC News. “We called them ‘black world’ programs and operations.” Tice is ready to testify before Congress about what he calls the illegal wrongdoings that are part of the Defense Department and the NSA’s wiretapping programs enacted after the 9/11 attacks. Many of these programs were targeted at innocent US citizens. “The mentality was we need to get these guys, and we’re going to do whatever it takes to get them,” he says. The technology used to track and sort through every domestic and international telephone center is impressive. “If you picked the word ‘jihad’ out of a conversation, the technology exists that you focus in on that conversation, and you pull it out of the system for processing.” Intelligence analysts use the information to develop graphs that resemble spiderwebs linking one suspect’s phone number to hundreds or even thousands more. While the president has admitted giving orders that allowed the NSA to eavesdrop on a small number of Americans without warrants, Tice says says the number of Americans subject to eavesdropping by the NSA could be in the millions if the full range of secret NSA programs is used. “That would mean for most Americans that if they conducted, or you know, placed an overseas communication, more than likely they were sucked into that vacuum.” Tice has been subjected to what appears to be bureaucratic punishment for his willingness to blow the whistle on the nation’s warrantless wiretapping programs; last year the NSA revoked his security clearance based on what it calls "psychological concerns," and later fired him. Tice says that is the way the NSA often deals with employees it considers troublemakers and whistleblowers (see January 25-26, 2006). [ABC News, 1/10/2006; ABC, 1/10/2006]

Entity Tags: US Department of Defense, National Security Agency, Russell Tice

Timeline Tags: Civil Liberties

A memo from the nonpartisan Congressional Research Service (CRS) finds that President Bush appears to be in violation of the National Security Act of 1947 in his practice of briefing only select members of Congress on the National Security Agency’s warrantless wiretapping program. Bush has provided only limited briefings to the so-called “Gang of Eight,” the four Congressional leaders and the four ranking members of the House and Senate Intelligence Committees. But the 1947 law requires the US intelligence community to brief the full membership of both committees on the program. The memo is the result of a request by Representative Jane Harman (D-CA), who wrote Bush a letter saying that she believes he is required under the Act to brief both committees, and not just the Gang of Eight (see January 4, 2006). The White House claims that it has briefed Congressional leaders about the program over a dozen times, but refuses to provide details; the Congressional members so briefed are forbidden by law to discuss the content or nature of those classified briefings, even with their own staff members. “We believe that Congress was appropriately briefed,” says White House spokeswoman Dana Perino. The CRS agrees with Harman that the single exception to such full briefings under the law, covert actions taken under extraordinary threats to national security, is not applicable in this instance. Unless the White House contends the program is a covert action, the memo says, “limiting congressional notification of the NSA program to the Gang of Eight…would appear to be inconsistent with the law.” [US House of Representatives, 1/4/2006; Congressional Research Service, 1/18/2006 pdf file; Washington Post, 1/19/2006] The day after the CRS memo is released, Senate Democrats John D. Rockefeller (D-WV) and Harry Reid (D-NV), along with House Minority Leader Nancy Pelosi (D-CA) and Harman, the ranking member of the House Intelligence Committee, write to Vice President Dick Cheney demanding that the full committees be briefed on such intelligence matters in the future. [Washington Post, 1/20/2006] On February 9, Bush will allow Attorney General Alberto Gonzales and former NSA chief Michael Hayden to brief the full House Intelligence Committee on the program (see February 8-17, 2006).

Entity Tags: Jane Harman, John D. Rockefeller, National Security Agency, National Security Act, Richard (“Dick”) Cheney, Michael Hayden, House Intelligence Committee, George W. Bush, Dana Perino, “Gang of Eight”, Alberto R. Gonzales, Harry Reid, Congressional Research Service, Bush administration (43)

Timeline Tags: Civil Liberties

The Justice Department (DOJ) issues a 42-page “white paper” detailing its arguments that the National Security Agency’s warrantless wiretapping program (see February 2001, Spring 2001, After September 11, 2001, After September 11, 2001, October 2001, Early 2002, September 2002, Late 2003-Early 2004, April 19-20, 2004, June 9, 2005, June 9, 2005, December 15, 2005, December 17, 2005, December 19, 2005, December 24, 2005, January 5, 2006, January 18, 2006, January 18, 2006, January 23, 2006, and January 30, 2006) is legal. The DOJ reiterates two previous arguments (see December 19, 2005 and December 21-22, 2005)—that Congress implicitly authorized the program in 2001 when it authorized the Bush administration to begin military actions against al-Qaeda (see September 14-18, 2001), and that the president has the authority as commander in chief to conduct such a program—even though these arguments have been thoroughly refuted (see January 9, 2006) and overridden by the Supreme Court’s recent Hamdan v. Rumsfeld ruling (see December 15, 2005 and July 8, 2006). In its paper, the DOJ declares that if necessary, it will attack the legality of the Foreign Intelligence Surveillance Act (FISA) in order to stop that law from “imped[ing]” the president’s power to order domestic surveillance. In essence, according to columnist and civil liberties lawyer Glenn Greenwald, the DOJ is asserting that the president’s powers are limitless as long as he or she declares a given action necessary to battle terrorism. “Because the president has determined that the NSA activities are necessary to the defense of the United States from a subsequent terrorist attack in the armed conflict with al-Qaeda, FISA would impermissibly interfere with the president’s most solemn constitutional obligation—to defend the United States against foreign attack,” the DOJ claims. Neither Congress nor the court system has the right to limit or even review the president’s powers, according to the DOJ. Greenwald calls the DOJ’s argument “a naked theory of limitless presidential power.” In fact, Greenwald argues, the DOJ is asserting that FISA itself is unconstitutional, because no law can in any way limit the president’s power to conduct foreign policy or protect the nation’s security. The document is part of a larger Bush administration defense of the USA Patriot Act, and part of the administration’s push to convince Congress to reauthorize that legislation. Attorney General Alberto Gonzales sends the document to Congress. Justice Department official Steven Bradbury says, “When it comes to responding to external threats to the country… the government would like to have a single executive who could act nimbly and agilely.” [US Department of Justice, 1/19/2006 pdf file; Glenn Greenwald, 1/20/2006; Washington Post, 1/20/2006]
Dubious Legality - The program has already been found to be of questionable legality by two reports recently released by the nonpartisan Congressional Research Service (see January 5, 2006 and January 18, 2006). And author James Bamford, a US intelligence expert who has written extensively about the NSA, says that the Justice Department’s arguments are specious in light of Congress’s clear intent in its 1978 passage of FISA to block warrantless wiretapping, and its demonstrated lack of intent to allow any such operations within US borders in the October 2001 legislation. “You could review the entire legislative history in the authorization to use military force and I guarantee you won’t find one word about electronic surveillance,” he says. “If you review the legislative history of FISA, you will find Attorney General Griffin Bell testifying before the intelligence committee saying this was specifically passed to prevent a president from claiming inherent presidential powers to do this again.” [Washington Post, 1/20/2006]
Self-Contradictory Justifications - In 2007, author and reporter Charlie Savage will write of the “shaky foundation” supporting the administration’s “two-pronged attacks on critics of the wiretapping program and the Patriot Act,” which some officials have claimed authorizes the program. “Beneath the simplistic rhetoric, the administration’s position was self-contradicting,” Savage will write. If Bush has the inherent presidential authority to order warrantless wiretapping, then he needs no authorization from the Patriot Act or any other legislation. But if Congress is endangering the nation by delaying in reauthorizing the Patriot Act and thusly not rendering the program legal, then the wiretapping program is illegal after all. The memo attempts to “paper… over” this problem by claiming that, while Bush has the inherent authority to do whatever he feels is necessary to protect the country, the Patriot Act’s extra police powers are still necessary in “contexts unrelated to terrorism.” Savage will write, “In other words, the administration’s own position, hidden in the fine print, was that the Patriot Act was superfluous and irrelevant to the war on terrorism—a somewhat absurd stance made necessary by their desire to say the wiretapping program was legal.” [Savage, 2007, pp. 315]
Failure to Address Probable Beginning of Program Before Attacks - The Justice Department says nothing about the program apparently beginning well before 9/11 (see Late 1999, February 27, 2000, December 2000, February 2001, February 2001, Spring 2001, July 2001, and Early 2002).

Entity Tags: National Security Agency, James Bamford, Steven Bradbury, US Department of Justice, Griffin Bell, Senate Judiciary Committee, Glenn Greenwald, Foreign Intelligence Surveillance Act, Alberto R. Gonzales, Arlen Specter, George W. Bush, Congressional Research Service, Charlie Savage

Timeline Tags: Civil Liberties

President Bush’s top political adviser, deputy White House chief of staff Karl Rove, tells a meeting of the Republican National Committee that the warrantless wiretapping controversy (see December 15, 2005 and December 18, 2005) can be used to boost Republicans’ election chances in the 2006 midterm elections. Republicans should emphasize that the wiretapping proves that Bush is willing to do whatever it takes to defeat terrorism and keep Americans safe. Critics of the program, therefore, can be painted as weak on terrorism. “The United States faces a ruthless enemy, and we need a commander in chief and a Congress who understand the nature of the threat and the gravity of the moment America finds itself in,” Rove says. “President Bush and the Republican Party do; unfortunately, the same cannot be said of many Democrats.… Let me be clear as I can be: President Bush believes if al-Qaeda is calling somebody in America, it is in our national security interests to know who they’re calling and why. Some important Democrats clearly disagree.” [WIS-TV, 1/20/2006; Savage, 2007, pp. 203]

Entity Tags: George W. Bush, Democratic Party, Republican Party, Republican National Committee, Karl C. Rove

Timeline Tags: Civil Liberties

Retired AT&T technician Mark Klein (see December 15-31, 2005 and July 7, 2009), already having contacted a civil liberties group about his knowledge of governmental illegality in eavesdropping on Americans’ telephone and Internet communications (see Early January 2006), contacts Los Angeles Times reporter Joseph Menn about his story. Klein has a packet of evidence showing AT&T’s collusion with the National Security Agency (NSA) in that agency’s surveillance of American citizens. Menn is enthusiastic, and Klein provides him with the full packet of documents he has secured from AT&T, the first time he has shown these documents to anyone (see December 31, 2005). Klein is sure Menn is preparing a “blockbuster” story centering on his evidence and observations. [Klein, 2009, pp. 57]

Entity Tags: National Security Agency, AT&T, Joseph Menn, Los Angeles Times, Mark Klein

Timeline Tags: Civil Liberties

Current and former National Security Agency (NSA) employees say that the agency often retaliates against whistleblowers by labeling them “delusional,” “paranoid,” or “psychotic.” They say such labeling protects powerful superiors who might be incriminated by potentially criminal evidence provided by such whistleblowers, and helps to keep employees in line through fear and intimidation. One NSA whistleblower, former intelligence analyst Russell Tice, is currently the victim of such agency allegations. Tice, along with three other former analysts, Diane Ring, Thomas Reinbold, and another analyst who wishes to remain anonymous, make the allegations of unfounded psychological labeling by the agency; their allegations are corroborated by a current NSA officer who also wishes to remain anonymous. [Cybercast News Service, 1/25/2006]
Identifying a Potential Spy - Tice, a former signals intelligence (SIGINT) officer, is the first NSA whistleblower to capture the media’s attention, when in 2004, the Pentagon investigated possible NSA retaliation against him. In 2001, Tice reported that a co-worker at the Pentagon’s Defense Intelligence Agency (DIA) was possibly engaged in espionage for China, possibly connected to California Republican official and Chinese double agent Katrina Leung. [Democracy Now!, 1/3/2006; Cybercast News Service, 1/25/2006] Tice says, “I saw all the classic signs” in the DIA employee. After transferring to the NSA in November 2002, he reported his concerns again, this time adding criticisms of incompetence for the FBI, who in Tice’s view failed to properly investigate his allegations. Instead, Tice was ordered by NSA Security to undergo psychiatric evaluation. He was labeled “paranoid” and “psychotic” by NSA forensic psychologist Dr. John Michael Schmidt; Tice lost his top-secret security clearance as a result. [Cybercast News Service, 1/25/2006]
Fired - He was fired from the NSA in 2005 after spending his last years at the agency pumping gas and working in an agency warehouse. “I reported my suspicion and got blown off,” he says. “I pushed the issue and that ticked them off, the fact that I questioned their almighty wisdom.” [Cox News Service, 5/5/2005] Tice again made news on January 10, 2006 (see January 10, 2006), when he admitted to being a source for the New York Times’s article about a secret NSA electronic surveillance program against American citizens, a program carried out in the name of combating terrrorism. [ABC News, 1/10/2006]
No Evidence of Mental Instability - As for Tice’s own psychological evaluation by Schmidt, according to three other clinical psychologists, there is “no evidence” of either of the disorders in Tice’s mental makeup. And another NSA psychologist pronounced Tice mentally sound in 2002, though having a “somewhat rigid approach to situations.” Tice is described by five retired NSA and intelligence officials as “congenial,” “enthusiastic,” and “a scholar of high intellectual rigor [with] sound judgment [and] unparalleled professionalism.” Tice says of the NSA’s attempts to smear whistleblowers with apparently baseless psychological allegations, “This nonsense has to stop. It’s like Soviet-era torture. These people are vicious and sadistic. They’re destroying the lives of good people, and defrauding the public of good analysts and linguists.” But it has been effective in cowing others who were, in Tice’s words, “too afraid or ashamed to come forward.” [Cybercast News Service, 1/25/2006]
Further Allegations - Another former analyst, now employed by another federal agency and who only allows himself to be identified as “J,” describes similar targeting by the NSA. J is fluent in an unusually high number of languages, and is described by former colleagues as “brilliant” and possessed of “amazing” critical skills. “I believe the abuse is very widespread,” J says. “The targeted person suddenly is described as ‘not being a team player,’ as ‘disgruntled,’ and then they’re accused of all sorts of bizarre things. Soon they’re sent to the psych people.” J himself was targeted in September 1993 (see September 11, 1993) when he and other analysts concluded that the United States was being targeted by Islamic terrorists, and then again in early 2001 after predicting a terrorist attack using planes as weapons (see May 2001).
NSA Like the 'Gestapo' - A third whistleblower, a current NSA officer who refuses to be identified, confirms the allegations and says that baseless psychiatric allegations as a form of retaliation are “commonplace” at the agency. He says, “A lot of people who work there are going through the same thing. People live in fear here. They run it like some kind of Gestapo.” Those identified as “problems” are “yelled at, badgered and abused.…These are really good people, who start to be labeled crazy, but they’re telling the truth.” The official adds that the NSA often plants false evidence in personnel files as part of the intimidation campaign. Tice says the NSA maintains what he calls a “dirt database” of inconsequential but potentially embarrassing information on employees, gathered during routine clearance investigations and used as a form of leverage. The current officer says that an “underground network” has developed to discuss these issues. “It’s like the Nazis have taken over,” he says. [Cybercast News Service, 1/25/2006]
Personal Vendettas - Diane Ring is another former NSA official targeted by her superiors. Unlike Tice, a self-described conservative who believes President Bush should be impeached over the NSA’s illegal wiretapping program, Ring is a Bush supporter who believes the surveillance program is entirely proper. Ring, a former NSA computer scientist, says she was ordered to undergo psychiatric evaluations after coming into conflict with a colonel at the Pentagon. Ring is not a whistleblower per se like the others, but says she was targeted for retaliation because of a personal vendetta against her. The colonel “blew up” at Ring after she missed a meeting and explained that her branch chief had her working on a classified program that took priority over the meeting. Ring also was evaluated by Dr. Schmidt. When she complained about the apparent retaliation, her security clearance was, like Tice’s, revoked, and she was “red-badged,” or put on restricted access within the NSA offices. Ring says she received an excellent job evaluation just three months prior to the actions taken against her. She says her colleagues at the time were told not to talk to her, and she was restricted to working in a room filled with other red-badgers. She thinks she was isolated as part of an intentional campaign to force her to leave the agency. “They had these red-badgers spread out all over the place.” she recalls. “Some were sent to pump gas in the motor pool and chauffeur people around. In our room, some people brought sleeping bags in and slept all day long. Others read. I would think that would incense the taxpaying public.” Schmidt eventually reported that another doctor diagnosed Ring with a “personality disorder,” but Ring has a July 21, 2005 letter from that doctor, Lawrence Breslau, which reads in part, “On mental status examination including cognitive assessment she performs extremely well.” In the letter, Breslau says he never made such a diagnosis. She, like others in her position, went to the NSA Employee Assistance Service (EAS) for confidential counseling, but the current NSA officer says that though those sessions are supposed to be confidential, NSA officials can and do obtain “confidential” sessions for retaliatory purposes. “Their goal is to freak you out, to get inside your mind,” that officer says. Rice claims that NSA General Counsel Paul Caminos lied about her case before a judge, denying that he had sent an internal e-mail forbidding anyone from supporting Ring. Ring says she was “floored” by Caminos’s actions: “I served in Bosnia. We had mines going off all around us, all day long. That was nothing compared to this.” She is currently working on clearing her name with the NSA’s new director, Lieutenant General Keith Alexander. Ring believes that the problem at NSA involves a small number of people, “The whole lot of them is corrupt though. There is zero integrity in the process. And zero accountability.”
'Psychiatric Abuse' 'Very Widespread' - Like his fellow whistleblowers, former NSA officer Thomas Reinbold says the practice of “psychiatric abuse” inside the NSA is “very widespread.” Reinbold, who recelved 26 commendations and awards during his career at the NSA, including a medal for the intelligence he provided during the 1991 Gulf War, says, “They call it ‘doing a mental’ on someone.” Such practices have a “chilling effect” on other potential whistleblowers: “They fear for their careers because they fear someone will write up bad [psychological] fitness reports on them.” Reinhold was labeled “paranoid” and “delusional” by Schmidt after he complained to an inspector general on February 25, 1994, that the federal government was guilty of contract tampering; Schmidt’s evaluation contradicts a psychological evaluation he conducted on Reinbold eight months before that found he was mentally sound. At the time, Reinbold worked as a contracting officer representative for the Naval Security Group (NAVSECGRU) in Virginia. Reinbold had his high-level security clearance revoked, and was escorted off the grounds by armed security officers. Reinbold says NSA officials fabricated evidence in his personnel file to force him out; that evidence included allegations that he was a danger to himself and others, and that he had said “if [he] was going down, [he] would take everyone with him.” In September 1995, an administrative hearing found that the revocation of Reinbold’s security clearance was unjustified and recommended restoring his clearance, but did not allow the damaging information to be removed from his personnel file. He later sued the agency, and then retired because of diabetes. “I gave 29 years of my life to the intelligence community,” he recalls. “They couldn’t get me out the door fast enough. There are very good people, getting screwed and going through hell.”
Helping Those Who Come After - Some of the whistleblowers hope to gain the assistance of politicians to help their cases. But Tice is less optimistic. “Our time is over,” Tice says he told Ring. “But we can make a difference for those who come behind us.” The five whistleblowers have the support of the whistleblower advocacy group Integrity International. Its founder and director, Dr. Don Soeken, himself a whistleblower while he was with the US Public Health Service in the 1970s, says, “When this retaliation first starts, there’s a tendency by bosses to use code words like ‘delusional,’ ‘paranoid’ and ‘disgruntled’. Then they use psychiatric exams to destroy them. They kill the messenger and hope the PR spin will be bought by the public.” Tom Devine of the Government Accountability Project says that “psychiatric retaliation” is a knee-jerk reaction against whistleblowers: “It’s a classic way to implement the first rule of retaliation: shift the spotlight from the message to the messenger. We call it the ‘Smokescreen Syndrome.’” Superiors investigate and smear the whistleblower for anything from financial irregularities to family problems, sexual practices, bad driving records, or even failure to return library books, Devine says. “It’s a form of abuse of power.” The Whistleblower Protection Act was written to protect those like Tice, Ring, Reinbold, and Soeken, but, says Beth Daly of the Project on Government Oversight (POGO), the act has serious flaws. “You have to go through the inspector general or the director of the CIA to let them know if you’re going to Congress and what you’re going to disclose,” she says. “And inspector generals are notorious for revealing who whistleblowers are.”

Entity Tags: Paul Caminos, Project for Government Oversight, Naval Security Group, Russell Tice, Tom Devine, Thomas Reinbold, National Security Agency, US Public Health Service, Keith Alexander, Lawrence Breslau, Diane Ring, Defense Intelligence Agency, Beth Daly, Don Soeken, House National Security Subcommittee, Government Accountability Project, John Michael Schmidt, Integrity International, “J”

Timeline Tags: Civil Liberties

Washington Post reporter William Arkin reveals that the National Security Agency (NSA) is “building a new warning hub and data warehouse” in Aurora, Colorado, just outside of Denver, on the grounds of Buckley Air Force Base. The agency is transferring many key personnel from its Fort Meade, Maryland, headquarters to Aurora. Arkin calls the new NSA facility, named the Aerospace Data Facility (ADF), “massive,” and says he believes it is the hub of the NSA’s data mining operation (see January 16, 2004). According to Government Executive magazine, the NSA’s new data storage facility “will be able to hold the electronic equivalent of the Library of Congress every two days.” While the NSA explains that the new facility is a cost-cutting measure and part of the agency’s post-9/11 decentralization—“This strategy better aligns support to national decision makers and combatant commanders,” an NSA spokesman tells one reporter—Arkin says that the “NSA is aligning its growing domestic eavesdropping operations—what the administration calls ‘terrorist warning’ in its current PR campaign—with military homeland defense organizations, as well as the CIA’s new domestic operations [in] Colorado.… Colorado is now the American epicenter for national domestic spying.” Arkin notes that previous news reports have said that the CIA is planning to move much of its domestic National Resources Division to Aurora as well. He also notes that Colorado is the home of the US military’s Northern Command (NORTHCOM), the military arm responsible for homeland defense. The move also allows the NSA to better coordinate its efforts with private contractors such as Lockheed Martin, Northrup Grumman Mission Systems, and Raytheon, all of which have presences in Colorado. Arkin names all three firms as partners with the NSA in building the ADF. Former senior AT&T technician Mark Klein (see July 7, 2009 and May 2004) will later write, “Over months and years, the database would be huge, ready for data mining whenever the government wants to go after someone.” [Washington Post, 1/31/2006; Klein, 2009, pp. 40-41]

Entity Tags: National Security Agency, Aerospace Data Facility, Government Executive Magazine, Mark Klein, Northrup Grumman Mission Systems, William Arkin, Lockheed Martin Corporation, Raytheon, US Northern Command

Timeline Tags: Civil Liberties

Electronic Frontier Foundation logo.Electronic Frontier Foundation logo. [Source: Flickr.com]The Electronic Frontier Foundation (EFF), a civil liberties and privacy-advocacy organization, files a lawsuit against telecommunications giant AT&T for allegedly violating the law and the privacy of its citizens by cooperating with the National Security Agency in the NSA’s construction of what the EFF calls a “massive, illegal program to wiretap and data-mine Americans’ communications.” EFF lawyer Kevin Bankston says: “Our goal is to go after the people who are making the government’s illegal surveillance possible. They could not do what they are doing without the help of companies like AT&T. We want to make it clear to AT&T that it is not in their legal or economic interests to violate the law whenever the president asks them to.”
Unprecedented Access to Communications System - EFF alleges that as part of the NSA’s domestic spying program, AT&T has allowed the NSA direct access to the phone and Internet communications passing over its network, and has given the government “unfettered access to its over 300 terabyte ‘Daytona’ database of caller information—one of the largest databases in the world.” One of AT&T’s databases, nicknamed “Hawkeye,” contains 312 terabytes of data detailing nearly every telephone communication on AT&T’s domestic network since 2001, the lawsuit alleges. The suit goes on to claim that AT&T allowed the NSA to use the company’s powerful Daytona database management software to quickly search this and other communication databases. AT&T, the suit claims, is in violation of the First and Fourth Amendments, federal wiretapping statutes, telecommunications laws, and the Electronic Communications Privacy Act. The suit requests fines up to $22,000 for each AT&T customer, and punitive fines—damages that could potentially reach into the billions of dollars. The EFF lawsuit is one of over 30 lawsuits filed for similar reasons (see June 26, 2006). The lawsuit will survive a number of initial legal challenges by the Justice Department and AT&T, including AT&T’s contention that “whatever we did, the government told us to do” and therefore it should be immune from such lawsuits, and the Justice Department’s invocation of “national security” and the possibility of the revelation of “state secrets” (see March 9, 1953). EFF retorts, “In this country we follow the law, we don’t just follow orders.” Bankston tells a reporter, “If state secrecy can prevent us from preserving the rights of millions upon millions of people, then there is a profound problem with the law.”
Suit Alleges Criminal Actions, Does Not Challenge Government's Right to Wiretap - The lawsuit does not challenge the government’s right to electronically monitor legitimate terrorism suspects, nor does it challenge the judicial right to issue warrants for such surveillance. Rather, EFF writes: “Wiretaps on terrorists are allowed under the law, and this lawsuit is not challenging the wiretap laws. We have sued AT&T for breaking those laws—the telecommunications giant gave the government access to its communications switches and its huge databases of information on millions of ordinary Americans. These are AT&T customers who have not even been accused of affiliations with terrorists. Americans can be both safe and free: if the government truly believes it has cause to wiretap a suspect, it can order AT&T to provide information under FISA [the Foreign Intelligence Surveillance Act]—for up to 72 hours before going to the court. But AT&T has no business providing direct access to the communications of millions of ordinary Americans, without the checks and balances of Congress or the courts.” [Electronic Frontier Foundation, 1/31/2006; Wired News, 1/31/2006]

Entity Tags: Electronic Frontier Foundation, Foreign Intelligence Surveillance Act, National Security Agency, AT&T, US Department of Justice, Kevin Bankston

Timeline Tags: Civil Liberties

Retired AT&T technician Mark Klein (see December 15-31, 2005 and July 7, 2009), working with a civil liberties group and a reporter to expose the collusion of AT&T and the National Security Agency in pushing the government’s illegal surveillance program (see Early January 2006 and January 23, 2006 and After), contacts the office of Senator Dianne Feinstein (D-CA) at the advice of Electronic Frontier Foundation lawyer Kevin Bankston. Klein talks to Feinstein’s chief attorney in Washington, DC, Steven Cash. Klein will later write: “I instinctively recoiled at the thought of trying to approach her as my memory of her record told me she was no friend of civil liberties, though she plays one on TV. My instinct was not wrong.” After an initial discussion with Cash, Klein emails him his packet of documentation (see December 31, 2005). On the afternoon of February 3, Cash calls Klein and says he is very interested in his story, though Feinstein’s staff rates the probability of the NSA performing illegal acts at somewhere around “50-50,” according to Klein. Cash promises to get back in touch with Klein on February 6, but fails to do so. Neither Klein nor his attorneys (see Early January 2006) are able to talk to anyone on Feinstein’s staff from here on. Klein later writes: “The silent message was unmistakable: the senator did not want to sully her political skirts by having contact with a whistleblower. And this was a foretaste of her behavior and voting for the next two and a half years. At every turn, she was there pushing for immunity for the telecom companies in the Senate Intelligence and Judiciary Committees; peddling her toothless restatement of the ‘exclusive means’ clause of FISA [the Foreign Intelligence Surveillance Act—see 1978] as a substitute for any confrontation with the president over ongoing illegal NSA spying; ushering former NSA Director Michael Hayden through his nomination for CIA director; and backing Michael Mukasey as a clone replacement for the resigning Attorney General [Alberto] Gonzales. Moreover, this ultimately turned out to be the attitude of virtually the entire Democratic Party leadership, not to mention the Republicans.” Klein will explain that FISA’s “exclusive means” clause states that FISA should be the “exclusive means” for the federal government to conduct surveillance. Congress’s duty under the law was, Klein will state, to enforce the law against President Bush, “who openly flouted the law.” Instead, Klein will claim, Feinstein uses the “exclusive means” clause to protect the Bush administration and the telecom firms. [Klein, 2009, pp. 57-60]

Entity Tags: Electronic Frontier Foundation, AT&T, Dianne Feinstein, Mark Klein, National Security Agency, Steven Cash, Kevin Bankston

Timeline Tags: Civil Liberties

The Justice Department’s Office of Professional Responsibility (OPR) opens an internal investigation into the department’s role in approving the Bush administration’s domestic warrantless wiretapping program. OPR counsel Marshall Jarrett informs Representative Maurice Hinchey (D-NY) of the investigation into the program, initiated after the 9/11 attacks by the National Security Agency and authorized via a secret executive order from President Bush shortly thereafter (see Early 2002). Jarrett writes that the OPR probe will include “whether such activities are permissible under existing law.” Justice Department spokeswoman Tasia Scolinos says the inquiry will be quite limited: “They will not be making a determination on the lawfulness of the NSA program but rather will determine whether the department lawyers complied with their professional obligations in connection with that program.” Scolinos calls the OPR probe “routine.” Hinchey says he welcomes the probe, which may determine “how President Bush went about creating this Big Brother program.” [Washington Post, 2/16/2006] The OPR inquiry is derailed after the NSA, with Bush’s authorization, refuses to give routine security clearances to OPR lawyers that would allow them to examine the relevant documents (see May 9, 2006).

Entity Tags: US Department of Justice, Tasia Scolinos, H. Marshall Jarrett, National Security Agency, George W. Bush, Bush administration (43), Maurice Hinchey, Office of Professional Responsibility

Timeline Tags: Civil Liberties

A Washington Post article repeats assertions by the National Security Agency (NSA) and the Bush administration that even if the NSA is automatically intercepting and storing millions of domestic phone calls and emails (see January 16, 2004), such computerized surveillance does not legally “count” unless it is examined—i.e. read or listened to—by human analysts. As the Post reports, NSA rules state that “‘acquisition’ of content does not take place until a conversation is interrupted and processed ‘into an intelligible form intended for human inspection.’” The Post article says that “nearly all” of the intercepted “overseas” communications from American citizens have been “dismissed” by intelligence officers who found nothing of interest in them. The Post observes: “Fewer than 10 US citizens or residents a year, according to an authoritative account, have aroused enough suspicion during warrantless eavesdropping to justify interception of their domestic calls, as well. That step still requires a warrant from a federal judge, for which the government must supply evidence of probable cause.” And, according to the Post’s “knowledgeable sources,” no more than 5,000 Americans have had their conversations recorded or their emails examined by intelligence analysts. According to Bush administration officials, the Post reports, “[s]urveillance takes place in several stages… the earliest by machine. Computer-controlled systems collect and sift basic information about hundreds of thousands of faxes, emails, and telephone calls into and out of the United States before selecting the ones for scrutiny by human eyes and ears. Successive stages of filtering grow more intrusive as artificial intelligence systems rank voice and data traffic in order of likeliest interest to human analysts. But intelligence officers, who test the computer judgments by listening initially to brief fragments of conversation, ‘wash out’ most of the leads within days or weeks.” People who have helped develop the computer analysis technology say that “it is a triumph for artificial intelligence if a fraction of one percent of the computer-flagged conversations guide human analysts to meaningful leads.”
Controversy over Legality, Usefulness of Surveillance - National security lawyers say that the high proportion of false leads and innocent bystanders being wiretapped contravenes the “reasonable” search provisions of the Fourth Amendment. One government official says the success rate should be closer to 50 percent—one out of every two persons surveilled—and not less than one percent. “Those who devised the surveillance plan, the official says, “knew they could never meet that standard—that’s why they didn’t go through” the court that supervises the Foreign Intelligence Surveillance Act, or FISA. Bush officials refuse to say whether the NSA is discarding the more than 99 percent of communications that it intercepts and deems useless for further analysis. Jeff Jonas, an IBM scientist who invented a data-mining system now in use by both private and governmental entities, says that the kind of pattern-matching data analysis used by the NSA in its surveillance program is neither useful nor accurate. Those analysis techniques that “look at people’s behavior to predict terrorist intent,” he says, “are so far from reaching the level of accuracy that’s necessary that I see them as nothing but civil liberty infringement engines.” Psychology professor James W. Pennebaker disagrees. “Frankly, we’ll probably be wrong 99 percent of the time,” he says, “but one percent is far better than one in 100 million times if you were just guessing at random. And this is where the culture has to make some decisions.” [Washington Post, 2/5/2006]
Former AT&T Technician: AT&T, NSA Violating Fourth Amendment - Former AT&T senior technician Mark Klein (see July 7, 2009 and May 2004) will later take a different view of the issue. In 2009, he will write: “[T]he illegal act happens at the point of seizure by the government, i.e. the splitter—not later, whether or not a medium is involved (see January 16, 2004). That is the whole part of the Fourth Amendment, which demands the government get a warrant to show ‘probable cause’ for seizing things, whatever the government does with it afterwards. What they do later is unknown, and at any rate, their word on anything has proven to be an exercise in prevarication.” [Klein, 2009, pp. 48-49]

Entity Tags: Jeff Jonas, Foreign Intelligence Surveillance Act, Bush administration (43), James W. Pennebaker, Mark Klein, National Security Agency, Washington Post

Timeline Tags: Civil Liberties

The White House twice convinces Congressional leaders to derail or water down upcoming Congressional hearings into its warrantless wiretapping program, dodging potentially embarrassing public revelations about its surveillance of US citizens. Some observers praise the Bush administration for accepting more Congressional oversight, but some lawmakers feel the concessions made by the White House in return for Congress’s back down from full hearings mean little. Privately, some Republicans say that the White House came far closer to suffering large public setbacks than is generally known, and that President Bush must be more forthcoming about the warrantless wiretapping program if he wants to retain the good will of Congress. On February 8, a day before the House Intelligence Committee is to begin its hearings on the program, some lawmakers are complaining that the administration is trying to dodge any real discussion of the program; two days before, Attorney General Alberto Gonzales had defended the program without providing any details, and the White House intended to send Gonzales and former NSA head Michael Hayden to the hearings to give the same limited briefing. Instead, the White House agrees to have Gonzales and Hayden provide more details about the program’s “procedural aspects,” the first time a full Congressional committee has received a briefing about the program (see January 4, 2006 and January 18, 2006). Many committee members are placated by the briefing. In return, committee leaders agree to stymie Democrats’ attempts to hold more expansive hearings into the program. On February 17, the Senate Intelligence Committee deals with a motion by ranking Democrat Jay Rockefeller (D-WV) to open a broad inquiry into the program. But White House chief of staff Andrew Card has, two days before, spoken with committee member Olympia Snowe (R-ME). Snowe had expressed her own concerns about the program’s legality, and its infringement on constitutional civil liberties, and she is, according to Senate sources briefed on the call, “taken aback” by Card’s intransigence about restricting Congressional oversight of the program. Snowe and fellow senator Chuck Hagel (R-NE), another Republican who has voiced his own doubts about the program, speak with committee chairman Pat Roberts (R-KS). Roberts thinks he has the votes to defeat Rockefeller’s motion, but he learns Snowe and Hagel will support it, thus ensuring its passage. Thus informed, Roberts blocks passage of the motion by arranging a party-line vote to adjourn the committee until March 9, a move that infuriates Rockefeller. “The White House has applied heavy pressure in recent weeks to prevent the committee from doing its job,” he says after the adjournment. Both Hagel and Snowe deny folding under administration pressure. The White House is supportive of a proposal by Senator Mike DeWine (R-OH) that would exempt the NSA program from FISA, while providing for limited congressional oversight. [Washington Post, 2/19/2006]

Entity Tags: Olympia Snowe, Senate Intelligence Committee, Pat Roberts, Mike DeWine, National Security Agency, John D. Rockefeller, Bush administration (43), Andrew Card, Alberto R. Gonzales, Michael Hayden, House Intelligence Committee, Chuck Hagel, George W. Bush

Timeline Tags: Civil Liberties

Retired AT&T technician Mark Klein (see December 15-31, 2005 and July 7, 2009), working with a civil liberties group about his knowledge of governmental illegality in eavesdropping on Americans’ telephone and Internet communications (see Early January 2006), has contacted Los Angeles Times reporter Joseph Menn about publishing an article expising AT&T’s collusion with the National Security Agency (NSA) to illegally conduct surveillance against American citizens (see January 23, 2006 and After). Klein believed Menn was enthusiastic about exposing AT&T and the NSA in his newspaper. Instead, Klein is shocked to hear from Menn that the Times’s “top guy” is preparing to meet with Director of National Intelligence John Negroponte to discuss any such publication. “I nearly fell down in shock,” Klein will later write. “[T]hey were actually negotiating with the government on whether to publish!” Menn describes himself to Klein as “demoralized,” and says the chances of getting the story published are “grim.” In his seven years at the Times, Menn tells Klein, he has never seen a story “spiked” for “nefarious reasons,” implying that the reason behind the story’s non-publication are “nefarious.” Klein is also dismayed that the Times has now revealed his existence as a whistleblower to Negroponte, and by extension to the US intelligence apparatus. Two days ago, Klein began emailing a New York Times reporter, James Risen, the co-author of a 2005 expose about the NSA’s surveillance program (see December 15, 2005). After hearing from Menn, Klein emails Risen to inform him of the Los Angeles Times’s decision to “consult” with Negroponte, and also of the lack of interest he has received from Senator Dianne Feinstein’s office (see February 1-6, 2006). Risen calls in fellow reporter Eric Lichtblau, his co-author on the 2005 story, and the two begin working on their own story. Klein remains worried about his personal and professional safety, since, as he will write, “[t]he government was on to me, but I did not yet have a published article and the protection that comes with publicity. I had visions, perhaps paranoid in hindsight, of being disappeared in the night, like [nuclear industry whistleblower] Karen Silkwood.” The Los Angeles Times story will drag on until March 29, when Menn will inform Klein that it is officially dead, blocked by Times editor Dean Baquet. Klein will later learn that Baquet had not only been in contact with Negroponte, but with NSA Director Michael Hayden. In 2007, Baquet will tell ABC News reporters that “government pressure played no part in my decision not to run with the story,” and will say that he and managing editor Doug Frantz decided “we did not have a story, that we could not figure out what was going on” with Klein’s documentation (see March 26, 2007). Klein will call Baquet’s explanation an “absurd and flimsy excuse,” and will say it is obvious that the Los Angeles Times “capitulated to government pressure.” [PBS Frontline, 5/15/2007; Klein, 2009, pp. 59-62]

Entity Tags: James Risen, Dean Baquet, AT&T, Dianne Feinstein, Eric Lichtblau, Joseph Menn, Michael Hayden, John Negroponte, Douglas Frantz, National Security Agency, Los Angeles Times, Mark Klein

Timeline Tags: Civil Liberties

Former National Security Agency (NSA) intelligence analyst and current whistleblower Russell Tice tells the House Government Reform Subcommittee on National Security, Emerging Threats, and International Relations that he worries about what he calls a “special access” electronic surveillance program that is far more wide-ranging than the warrantless wiretapping recently exposed by the New York Times. However, Tice says he is forbidden by law to reveal specifics of the program to Congress. Tice says he believes the program violates the Constitution’s protection against unlawful search and seizures, but for him to discuss it with anyone in Congress or even with the NSA’s inspector general would violate classification laws. A spokesman for Congressman Dennis Kucinich (D-OH) says both Kucinich and committee chairman Christopher Shays (R-CT) believe that a few members of the Armed Services Committee have high enough security clearances for Tice’s information: “Congressman Kucinich wants Congressman Shays to hold a hearing [on the program]. Obviously it would have to take place in some kind of a closed hearing. But Congress has a role to play in oversight. The [Bush] administration does not get to decide what Congress can and can not hear.” In January 2006, it emerged Tice was one of the sources for the New York Times’s revelation that the NSA is engaged in possibly illegal wiretapping of American civilians as part of the war on terror (see January 10, 2006). Tice was fired from the NSA in 2005 and labeled “paranoid,” a classification Tice says was pasted on him in retaliation for his whistleblowing both inside the agency and to the public (see January 25-26, 2006). [United Press International, 2/14/2006] Author James Bamford, an expert on US intelligence, says, “The congressional intelligence committees have lost total control over the intelligence communities. You can’t get any oversight or checks and balances; the Congress is protecting the White House and the White House can do whatever it wants.” [In These Times, 5/15/2006]

Entity Tags: Russell Tice, Christopher Shays, Dennis Kucinich, House Armed Services Committee, James Bamford, House Government Reform Subcommittee on National Security, Emerging Threats and International Relations

Timeline Tags: Civil Liberties

Retired AT&T technician Mark Klein (see December 15-31, 2005 and July 7, 2009), working with a civil liberties group about his knowledge of governmental illegality in eavesdropping on Americans’ telephone and Internet communications (see Early January 2006), is concerned that the New York Times will not publish a story featuring his allegations and evidence against AT&T and the National Security Agency (NSA). Klein was “outed” by Los Angeles Times editor Dean Baquet to the US intelligence apparatus after Klein approached a Los Angeles Times reporter about his story, and Klein is concerned that he lacks the protection that publicity would afford him (see February 11, 2006 and After). New York Times reporters James Risen and Eric Lichtblau fail to contact Klein for weeks during this time period, leaving Klein to wonder if the New York Times, like the Los Angeles Times before it, will fail to publish his story. Klein emails Risen and Lichtblau his full set of AT&T documents proving his allegations in mid-February (see December 31, 2005). Meanwhile, he sends emails containing selected documents to a number of Congressional members. Only one, House Representative Pete Stark (D-CA), responds, promising that he will present Klein’s information to the House Judiciary Committee, but, as Klein will write, “I never heard anything from the Judiciary Committee, or any other committee for that matter.” [PBS Frontline, 5/15/2007; Klein, 2009, pp. 63]

Entity Tags: James Risen, Dean Baquet, AT&T, Eric Lichtblau, House Judiciary Committee, Los Angeles Times, Mark Klein, New York Times, National Security Agency, Fortney Hillman (“Pete”) Stark, Jr

Timeline Tags: Civil Liberties

Electronic Frontier Foundation (EFF) lawyer Kevin Bankston asks AT&T whistleblower Mark Klein (see December 15-31, 2005 and July 7, 2009) to submit a legal declaration as to his knowledge of AT&T’s collusion with the National Security Agency (NSA) in its illegal domestic wiretapping program. Klein is working with the EFF in that organization’s lawsuit against AT&T (see Early January 2006 and January 31, 2006). Five days later, Klein submits his evidence of AT&T’s actions (see December 31, 2005) to Bankston to be used in the lawsuit. Klein will work with his lawyers to craft the declaration, and will have it in final form by late March. [Klein, 2009, pp. 63-64]

Entity Tags: National Security Agency, AT&T, Electronic Frontier Foundation, Mark Klein, Kevin Bankston

Timeline Tags: Civil Liberties

The Al Haramain Islamic Foundation, a now-defunct Saudi Arabian charitable organization that once operated in Oregon, sues the Bush administration [Associated Press, 2/28/2006] over what it calls illegal surveillance of its telephone and e-mail communications by the National Security Agency, the so-called Terrorist Surveillance Program. The lawsuit may provide the first direct evidence of US residents and citizens being spied upon by the Bush administration’s secret eavesdropping program, according to the lawsuit (see December 15, 2005). According to a source familiar with the case, the NSA monitored telephone conversations between Al Haramain’s director, then in Saudi Arabia, and two US citizens working as lawyers for the organization and operating out of Washington, DC. The lawsuit alleges that the NSA violated the Foreign Intelligence Surveillance Act (see 1978), the US citizens’ Fourth Amendment rights, and the attorney-client privilege. FISA experts say that while they are unfamiliar with the specifics of this lawsuit, they question whether a FISA judge would have allowed surveillance of conversations between US lawyers and their client under the circumstances described in the lawsuit. Other lawsuits have been filed against the Bush administration over suspicions of illegal government wiretapping, but this is the first lawsuit to present classified government documents as evidence to support its contentions. The lawsuit alleges that the NSA illegally intercepted communications between Al Haramain officer Suliman al-Buthe in Saudi Arabia, and its lawyers Wendell Belew and Asim Ghafoor in Washington. One of its most effective pieces of evidence is a document accidentally turned over to the group by the Treasury Department, dated May 24, 2004, that shows the NSA did indeed monitor conversations between Al Haramain officials and lawyers. When Al Haramain officials received the document in late May, 2004, they gave a copy to the Washington Post, whose editors and lawyers decided, under threat of government prosecution, to return the document to the government rather than report on it (see Late May, 2004). [Washington Post, 3/2/2006; Washington Post, 3/3/2006] Lawyer Thomas Nelson, who represents Al Haramain and Belew, later recalls he didn’t realize what the organization had until he read the New York Times’s December 2005 story of the NSA’s secret wiretapping program (see December 15, 2005). “I got up in the morning and read the story, and I thought, ‘My god, we had a log of a wiretap and it may or may not have been the NSA and on further reflection it was NSA,’” Nelson will recall. “So we decided to file a lawsuit.” Nelson and other lawyers were able to retrieve one of the remaining copies of the document, most likely from Saudi Arabia, and turned it over to the court as part of their lawsuit. [Wired News, 3/5/2007]
Al Haramain Designated a Terrorist Organization - In February 2004, the Treasury Department froze the organization’s US financial assets pending an investigation, and in September 2004, designated it a terrorist organization, citing ties to al-Qaeda and alleging financial ties between Al Haramain and the 1998 bombings of two US embassies in Africa (see 10:35-10:39 a.m., August 7, 1998). The organization was disbanded by the Saudi Arabian government in June 2004 and folded into an “umbrella” private Saudi charitable organization, the Saudi National Commission for Relief and Charity Work Abroad (see March 2002-September 2004). In February 2005, the organization was indicted for conspiring to funnel money to Islamist fighters in Chechnya. The charges were later dropped. [US Treasury Department, 9/9/2004; Washington Post, 3/2/2006] The United Nations has banned the organization, saying it has ties to the Taliban. [United Nations, 7/27/2007]
Challenging Designation - In its lawsuit, Al Haramain is also demanding that its designation as a terrorist organization be reversed. It says it can prove that its financial support for Chechen Muslims was entirely humanitarian, with no connections to terrorism or violence, and that the Treasury Department has never provided any evidence for its claims that Al Haramain is linked to al-Qaeda or has funded terrorist activities. [Associated Press, 8/6/2007] The lawsuit also asks for $1 million in damages, and the unfreezing of Al Haramain’s US assets. [Associated Press, 8/5/2007]
Administration Seeks to Have Lawsuit Dismissed - The Bush administration will seek to have the lawsuit thrown out on grounds of national security and executive privilege (see Late 2006-July 2007, Mid-2007).

Entity Tags: Wendell Belew, Suliman al-Buthe, Taliban, Washington Post, United Nations, Saudi National Commission for Relief and Charity Work Abroad, US Department of the Treasury, National Security Agency, Thomas Nelson, Foreign Intelligence Surveillance Act, Al Haramain Islamic Foundation, Al-Qaeda, Al Haramain Islamic Foundation (Oregon branch), Foreign Intelligence Surveillance Court, Asim Ghafoor, Bush administration (43)

Timeline Tags: Civil Liberties

Republicans on the Senate Intelligence Committee refuse to allow an inquiry into the Bush administration’s warrantless wiretapping program (see December 15, 2005 and December 18, 2005), with the committee voting 10-8 along party lines to reject such a probe. Senate Judiciary Committee chairman Arlen Specter (R-PA) had advocated such a probe, but White House officials refused to cooperate with his committee, saying they would only cooperate via classified briefings to the Intelligence Committee. However, committee Republicans, led by chairman Pat Roberts (R-KS), have no intention of allowing such an inquiry. Roberts and his fellows say they will push to impose limitations on the program. Committee Democrats accuse their Republican colleagues of colluding with the administration to block the inquiry. “The committee is, to put it bluntly, is basically under the control of the White House,” says ranking committee member John D. Rockefeller (D-WV). “You can’t legislate properly unless you know what’s going on.” The Republicans have left Congress to “legislate in darkness and ignorance,” he says. Republicans say that a new, select subcommittee will increase oversight of the administration’s wiretapping. “It provides for a case-by-case examination and oversight by the United States Congress,” says Mike DeWine (R-OH), who is helping draft the bill for the new oversight subcommittee. “It will be very consistent with what our constitutional obligations are.” DeWine’s bill would allow the administration to ignore restrictions on wiretapping merely by invoking national security, and would not allow the committee to intervene even in clearly unjustified cases of wiretapping. “The White House could just decide not to tell them everything, and there’s no sanction,” says Bruce Fein, a former Reagan administration lawyer. “And the president can still claim that he has inherent power to conduct surveillance.” The bill is “extremely generous to the president,” says conservative law professor Douglas Kmiec. “It is not significantly different from the status quo. And I think the president would be quite delighted by that.” [Boston Globe, 3/8/2006; Savage, 2007, pp. 204]

Entity Tags: Senate Judiciary Committee, Bruce Fein, Arlen Specter, Bush administration (43), Pat Roberts, Douglas Kmiec, Mike DeWine, John D. Rockefeller, Senate Intelligence Committee

Timeline Tags: Civil Liberties

Senator Russell Feingold (D-WI) tells reporters that he intends to push through legislation that would censure President Bush because of his domestic surveillance program (see February 2001, Spring 2001, After September 11, 2001, After September 11, 2001, October 2001, Early 2002, September 2002, Late 2003-Early 2004, April 19-20, 2004, June 9, 2005, June 9, 2005, December 15, 2005, December 17, 2005, December 19, 2005, December 24, 2005, January 5, 2006, January 18, 2006, January 18, 2006, January 23, 2006, and January 30, 2006). “What the president did by consciously and intentionally violating the Constitution and laws of this country with this illegal wiretapping has to be answered,” Feingold tells an interviewer. “Proper accountability is a censuring of the president, saying, ‘Mr. President, acknowledge that you broke the law, return to the law, return to our system of government.‘… The president has broken the law and, in some way, he must be held accountable.… Congress has to reassert our system of government, and the cleanest and the most efficient way to do that is to censure the president. And, hopefully, he will acknowledge that he did something wrong.” Senate Majority Leader Bill Frist (R-TN) calls Feingold’s proposal “a crazy political move.” The Senate Intelligence Committee, following the Bush administration’s lead, has rejected some Democrats’ call for a full investigation of the surveillance program (see February 1-6, 2006). Instead, the committee has adopted a Republican plan for a seven-member subcommittee to conduct oversight. Feingold says his censure motion is not “a harsh approach, and it’s one that I think should lead to bipartisan support.” Frist, however, says: “I think it, in part, is a political move because here we are, the Republican Party, the leadership in the Congress, supporting the president of the United States as commander in chief who is out there fighting al-Qaeda and the Taliban and Osama bin Laden and the people who have sworn—have sworn—to destroy Western civilization and all the families listening to us.… The signal that it sends that there is in any way a lack of support for our commander in chief who is leading us with a bold vision in a way that we know is making our homeland safer is wrong. And it sends a perception around the world.” Only once in history has a president been censured by Congress: Andrew Jackson in 1834. In the House, Representative John Conyers (D-MI) is exploring the idea of introducing impeachment legislation against Bush. [New York Times, 3/12/2006; Associated Press, 3/12/2006] Feingold says on the Senate floor: “The president has violated the law and Congress must respond. A formal censure by Congress is an appropriate and responsible first step to assure the public that when the president thinks he can violate the law without consequences, Congress has the will to hold him accountable.” Most Congressional Democrats want nothing to do with either Feingold’s or Conyers’s legislative ideas, and some Republicans seem to be daring Democrats to vote for the proposal. Vice President Dick Cheney tells a Republican audience in Feingold’s home state of Wisconsin, “Some Democrats in Congress have decided the president is the enemy.” Democratic leaders in the Senate thwart an immediate vote as requested by Frist, and Senator Richard Durbin (D-IL) says he is not sure the proposal will ever come to a vote. Senate Minority Leader Harry Reid (D-NV) says he does not support it and has not read it. Senator Joseph Lieberman (D-CT) makes a similar assertion. In the House, Minority Leader Nancy Pelosi (D-CA) refuses to support such a proposal, saying in a statement that she “understands Senator Feingold’s frustration that the facts about the NSA domestic surveillance program have not been disclosed appropriately to Congress. Both the House and the Senate must fully investigate the program and assign responsibility for any laws that may have been broken.” [Associated Press, 3/14/2006] Former Nixon aide John Dean testifies in support of Feingold’s censure motion (see March 31, 2006). However, the censure motion, lacking support from Democratic leaders and being used by Republicans as a means to attack Democrats’ patriotism, never comes to a vote. [Klein, 2009, pp. 84]

Entity Tags: Joseph Lieberman, George W. Bush, Bush administration (43), Bill Frist, Harry Reid, John Dean, Russell D. Feingold, Senate Intelligence Committee, Richard (“Dick”) Durbin, Richard (“Dick”) Cheney, Nancy Pelosi, John Conyers

Timeline Tags: Civil Liberties

Expert witness J. Scott Marcus, in an analysis submitted on behalf of the Electronic Frontier Foundation’s lawsuit against AT&T (see January 31, 2006), notes that if the NSA had wanted to intercept only international electronic communications in its surveillance operations facilited by AT&T (see January 16, 2004), it would have placed “splitters” only at entry points such as ocean cable-head stations rather than in AT&T offices (see October 2003) in locations such as Atlanta and San Francisco (see Late 2003), where they would inevitably pick up huge amounts of domestic communications. Marcus, a former AT&T employee who held a top secret clearance when he was a consultant for the Federal Communications Commission (FCC), writes: “The majority of international IP [Internet Protocol] traffic enters the United States at a limited number of locations, many of them in the areas of northern Virginia, Silicon Valley, New York, and (for Latin America) south Florida. This deployment, however, is neither modest nor limited, and it apparently involves considerably more locations that would be required to catch the majority of international traffic.” (Emphasis in original.) Marcus continues: “I conclude that the designers of the SG3 Configuration (see Late 2003) made no attempt, in terms of the location or position of the fiber split, to exclude data sources primarily comprised of domestic data.… Once the data has been diverted, there is nothing in the data that reliably and unambiguously distinguishes whether the destination is domestic or foreign.” Marcus estimates that the NSA has 15 to 20 sites in AT&T facilities around the country, and says, “a substantial fraction, probably well over half, of AT&T’s purely domestic traffic was diverted.” Former senior AT&T technician Mark Klein (see July 7, 2009 and May 2004) will later write, “Though Marcus refrained from drawing the obvious conclusion, the facts strongly suggest that this entire apparatus was designed for domestic spying.” (Emphasis in original). [Klein, 2009, pp. 49-50, 71] Klein will also write that Marcus’s expertise “was at a much higher level than mine.” Klein will later write that he is pleased that Marcus’s statement validates and supports his own documentation and conclusions. [Klein, 2009, pp. 71]

Entity Tags: National Security Agency, AT&T, Electronic Frontier Foundation, Mark Klein, J. Scott Marcus

Timeline Tags: Civil Liberties

The Justice Department demands that it be allowed to review evidence obtained by the Electronic Frontier Foundation (EFF) from retired AT&T technician Mark Klein (see February 23-28, 2006). The EFF is preparing to submit the evidence under regular court seal to presiding Judge Vaughn Walker. Neither the Justice Department nor any other government agency is a named defendant in the EFF’s lawsuit against AT&T for its allegedly illegal behavior in working with the National Security Agency (NSA) to conduct warrantless surveillance against American citizens (see January 31, 2006). Even so, lawyers from the Justice Department say they want to see if Klein’s documentation contains classified information (it does not—see Late 2003), and if so, they intend to place Klein’s documentation into a “sensitive compartmented information facility,” which would mean it would not be kept at the courthouse but in the possession of government agents at a secure location. Such classification would make the legal proceedings more difficult for both Judge Walker and the EFF lawyers. However, the request piques the interest of the national media, and reporters begin “flooding” Klein and the EFF with requests for information and interviews. [Klein, 2009, pp. 65-66] Ironically, two news outlets, the Los Angeles Times and New York Times, have all but shunned Klein before now (see February 11, 2006 and After and Mid-February - Late March, 2006). On April 4, after perusing the documents, the government lawyers return them to Walker with approval from senior Justice Department lawyer Anthony J. Coppolino to file them under ordinary court seal. Klein will later write that Coppolino’s acquiescence will undermine the government’s later efforts to have the lawsuit dismissed under the “state secrets” provision (see Late May, 2006). [Klein, 2009, pp. 66] In June 2007, the online technical news site Wired News will publish the documents after they are released by the Electronic Frontier Foundation (see June 13, 2007) under the headline “AT&T ‘Spy Room’ Documents Unsealed; You’ve Already Seen Them.” Wired previously published them in May 2006 (see May 17, 2006), and PBS’s Frontline also published them as part of a televised documentary on Klein and the eavesdropping program. [Wired News, 6/13/2007]

Entity Tags: Mark Klein, AT&T, Anthony J. Coppolino, Los Angeles Times, US Department of Justice, New York Times, Electronic Frontier Foundation, Vaughn Walker, Wired News, National Security Agency

Timeline Tags: Civil Liberties

Retired AT&T technician and incipient whistleblower Mark Klein (see December 15-31, 2005 and July 7, 2009) issues his first press release, summarizing his knowledge of AT&T’s complicity with the National Security Agency (NSA) in that agency’s illegal domestic wiretapping program (see December 31, 2005). Klein has given documentation supporting his claims to the Electronic Frontier Foundation (EFF) in support of that organization’s lawsuit against AT&T (see January 31, 2006). Klein’s press release tells of the NSA’s “secret room” in AT&T’s Folsom Street, San Francisco, facility (see January 2003) and reveals for the first time the NSA’s use of the Narus STA 6400 to comb through the wiretapped data (see January 16, 2004). The release reads in part: “Based on my understanding of the connections and equipment at issue, it appears the NSA is capable of conducting what amounts to vacuum-cleaner surveillance of all the data crossing the Internet—whether that be people’s email, Web surfing, or any other data. Given the public debate about the constitutionality of the Bush administration’s spying on US citizens without obtaining a FISA warrant (see December 18, 2005, December 20, 2005, December 21, 2005, December 21, 2005, December 25, 2005, January 5, 2006, January 10, 2006, January 18, 2006, January 18, 2006, and January 31, 2006), I think it is critical that this information be brought out into the open, and that the American people be told the truth about the extent of the administration’s warrantless surveillance practices, particularly as it relates to the Internet. Despite what we are hearing (see December 19, 2005, December 19, 2005, December 21-22, 2005, and January 19, 2006), and considering the public track record of this administration (see December 24, 2005, Early 2006, January 23, 2006, January 25-26, 2006, and February 2, 2006), I simply do not believe their claims that the NSA’s spying program is really limited to foreign communications or otherwise consistent with the NSA’s charter or with FISA. And unlike the controversy over targeted wiretaps of individuals’ phone calls, this potential spying appears to be applied wholesale to all sorts of Internet communications of countless citizens.” Klein issues the press release in part to give himself some publicity, and the protection from government harassment such publicity might entail (see February 11, 2006 and After). [Wired News, 4/7/2006; Wired News, 4/7/2006; Klein, 2009, pp. 66-67]

Entity Tags: Electronic Frontier Foundation, AT&T, Bush administration (43), National Security Agency, Mark Klein

Timeline Tags: Civil Liberties

The New York Times publishes its first report on the allegations by former AT&T technician Mark Klein (see December 15-31, 2005 and July 7, 2009), who is providing evidence and documentation to the Electronic Frontier Foundation (EFF) for that organization’s lawsuit against AT&T (see December 31, 2005 and January 31, 2006). The three-paragraph squib, buried deep in the pages of the “A” section, says that AT&T “cooperated with the National Security Agency in 2003 to install equipment capable of ‘vacuum-cleaner surveillance’ of email messages and other Internet traffic.” The report is based in part on a recent press release issued by Klein (see April 6, 2006), and notes the EFF lawsuit in passing. It admits that Klein has provided some of the documentation to the press, if not to the Times itself (see Mid-February - Late March, 2006), but simply writes that Klein’s documents “describe a room at the AT&T Internet and telephone hub in San Francisco that contained a piece of equipment that could sift through large volumes of Internet traffic.” Klein later calls the brevity and incompleteness of the report “puzzling,” and will say, “Their only purpose seemed to be to signal the government that I had ‘provided’ the New York Times with the documents, while minimizing the story for everyone else.” Klein will speculate, “It looked like some kind of backroom brawl was going on, but the public could not know the details.” [New York Times, 4/7/2006; Klein, 2009, pp. 70] A week later, the Times will publish a more in-depth article (see April 12, 2006).

Entity Tags: Mark Klein, AT&T, Electronic Frontier Foundation, New York Times, National Security Agency

Timeline Tags: Civil Liberties

The New York Times does a more in-depth report on the allegations advanced by former AT&T technician Mark Klein (see December 15-31, 2005 and July 7, 2009), who is providing evidence and documentation to the Electronic Frontier Foundation (EFF) for that organization’s lawsuit against AT&T (see December 31, 2005 and January 31, 2006). The Times published a far briefer report five days earlier (see April 7, 2006). The article provides a brief synopsis of Klein’s allegations—that AT&T worked with the National Security Agency (NSA) to illegally monitor and record millions of Americans’ telephone and Internet communications and thus illegally invaded its customers’ privacy. It also notes, as did the first article, that Klein had provided some of his documentation “to reporters,” though neither article admits that the Times received the documents months beforehand (see Mid-February - Late March, 2006). The new information in the article is the conclusion of “four independent telecommunications and computer security experts” who examined Klein’s documents “at the request of The New York Times.” According to the four experts, the documents “describe equipment capable of monitoring a large quantity of email messages, Internet phone calls, and other Internet traffic. The equipment… was able to select messages that could be identified by keywords, Internet or email addresses, or country of origin and divert copies to another location for further analysis.” All four experts agreed that the documents proved “AT&T had an agreement with the federal government to systematically gather information flowing on the Internet through the company’s network. The gathering of such information, known as data mining, involves the use of sophisticated computer programs to detect patterns or glean useful intelligence from masses of information.” Brian Reid, the director of engineering at the Internet Systems Consortium, says of the AT&T/NSA project: “This took expert planning and hundreds of millions of dollars to build. This is the correct way to do high volume Internet snooping.” An expert who refuses to be named says the documents are “consistent” with Bush administration claims that the NSA only monitored foreign communications and communications between foreign and US locations, in part because of the location of the monitoring sites. (An expert witness, former AT&T and FCC employee J. Scott Marcus, has given testimony for EFF that flatly contradicts this expert’s assertions—see March 29, 2006). The article notes the Justice Department’s objections to Klein’s documents being filed with the court in the EFF lawsuit, and notes that the department withdrew its objections (see Late March - April 4, 2006). It also notes AT&T’s request for the court to order the EFF to return the documents because they are, the firm claimed, “proprietary” (see April 6-8, 2006). AT&T spokesman Walt Sharp says of Klein and the EFF lawsuit: “AT&T does follow all laws with respect to assistance offered to government agencies. However, we are not in a position to comment on matters of national security.” NSA spokesman Don Weber makes a similar statement: “It would be irresponsible of us to discuss actual or alleged operational issues as it would give those wishing to do harm to the United States the ability to adjust and potentially inflict harm.” [New York Times, 4/12/2006] Klein will write of the story, “Finally it was out there in a major newspaper, though I noticed that the New York Times did not show any images of the actual documents, and never called me back for an in-depth followup story.” [Klein, 2009, pp. 71]

Entity Tags: J. Scott Marcus, Brian Reid, AT&T, Bush administration (43), Electronic Frontier Foundation, National Security Agency, Walter Sharp, Mark Klein, Don Weber, New York Times, US Department of Justice

Timeline Tags: Civil Liberties

The New York Times prints a brief editorial in response to its article about AT&T whistleblower Mark Klein and his allegations that the company is colluding with the NSA to illegally wiretap Americans’ communications and compromise their privacy (see April 12, 2006). The editorial recommends: “If AT&T is violating its customers’ privacy rights, it should come clean and stop immediately.… AT&T has a reason to worry if it is participating in illegal domestic spying. In the age of unfettered communication, no company should want to get a reputation for allowing the government to listen in on its customers’ phone calls, read their e-mail, and monitor their Web activity without the requisite legal showing.” [New York Times, 4/17/2006]

Entity Tags: AT&T, New York Times, National Security Agency, Mark Klein

Timeline Tags: Civil Liberties

The Justice Department announces that it is invoking the “state secrets” clause to prevent a lawsuit by the Electronic Frontier Foundation (EFF) against AT&T from going forward (see March 9, 1953 and January 31, 2006). The EFF is suing AT&T for compromising its customers’ privacy by colluding with the National Security Agency (NSA) in that agency’s domestic surveillance program. The government alleges that the lawsuit would reveal “state secrets” critical to “national security” if it continues. The Justice Department makes its initial filing in mid-May (see May 13, 2006). [US District Court, Northern District of California, 4/28/2006 pdf file; Klein, 2009, pp. 71]

Entity Tags: Electronic Frontier Foundation, AT&T, National Security Agency, US Department of Justice

Timeline Tags: Civil Liberties

Maurice Hinchey.Maurice Hinchey. [Source: Washington Post]A Justice Department investigation into the National Security Agency’s warrantless wiretapping program ends before it begins, because the NSA will not grant Justice Department lawyers routine security clearances. The investigation had been opened in February 2006 (see February 2, 2006) when Representative Maurice Hinchey (D-NY) asked the Justice Department’s Office of Professional Responsibility (OPR) to investigate the NSA’s warrantless surveillance of US citizens (see After September 11, 2001). Without security clearances, investigators could not examine NSA lawyers’ role in the program. OPR counsel H. Marshall Jarrett writes in a letter to Hinchey: “We have been unable to make any meaningful progress in our investigation because OPR has been denied security clearances for access to information about the NSA program. Without these clearances, we cannot investigate this matter and therefore have closed our investigation.” Jarrett and his office have made routine requests for security clearances since January, to no avail. The OPR’s investigation would have focused strictly on whether Justice Department lawyers violated ethical rules, and would not have examined the entire NSA program. Hinchey says, “This administration thinks they can just violate any law they want, and they’ve created a culture of fear to try to get away with that.” [Associated Press, 5/11/2006] Hinchey writes to Jarrett, regarding the failure to grant clearances: “We are perplexed and cannot make sense of your denial of these security clearances. Our request did not ask OPR to give us the intricate details of the NSA program; we understand that such a request would not even be within OPR’s jurisdiction. There appear to be no reasonable grounds for blocking this investigation. Not only does your denial of their request for a security clearance not make sense, it is unprecedented.” Hinchey will try, and fail, to get a bill through the Republican-controlled House Judiciary Committee to force the White House, Justice Department, and Defense Department to turn over to Congress all documents related to the closure of the OPR probe. He will write in a letter to President Bush, “If the NSA program is justified and legal, as you yourself have indicated, then there is no reason to prevent this investigation from continuing.” [US House of Representatives, 7/18/2006] In June 2006, it will be revealed that Bush personally made the decision not to grant the OPR investigators security clearances (see Late April 2006).

Entity Tags: Office of Professional Responsibility, Maurice Hinchey, US Department of Justice, George W. Bush, H. Marshall Jarrett, National Security Agency

Timeline Tags: Civil Liberties

USA Today headline.USA Today headline. [Source: CBS News]USA Today reports that “[t]he National Security Agency (NSA) has been secretly collecting the phone call records of tens of millions of Americans, using data provided by the nation’s three biggest telecommunications providers, AT&T, Verizon, and BellSouth,” according to “people with direct knowledge of the arrangement.” None of the sources would allow USA Today to identify them by name, job, or affiliation. The USA Today story claims that the NSA program “does not involve the NSA listening to or recording conversations,” but does use “the data to analyze calling patterns in an effort to detect terrorist activity,” according to their sources. One source says that the NSA program is compiling “the largest database ever assembled in the world,” with the goal of creating “a database of every call ever made” within US borders. President Bush has said that the NSA program is focused exclusively on international calls, and for the calls to be recorded, “one end of the communication must be outside the United States.” However, this is now shown not to be the case (see January 16, 2004). A US intelligence official says that the NSA program is not recording the actual phone calls themselves, but is collecting what he calls “external” data about the communications to allow the agency to emply “social network analysis” for insight into how terrorist networks are connected with one another. Another large telecommunications company, Qwest, has refused to help the NSA eavesdrop on customer calls (see February 2001, February 2001 and Beyond, and February 27, 2001). USA Today’s sources say that the NSA eavesdropping program began after the 9/11 attacks, a claim that is not bolstered by the facts (see 1997, February 27, 2000, February 27, 2000, December 2000, February 2001, February 2001, February 2001 and Beyond, February 2001, Spring 2001, April 2001, April 4, 2001, July 2001, Before September 11, 2001, and Early 2002). The sources say that the three companies agreed to provide “call-detail records,” lists of their customers’ calling histories, and updates, which would allow the agency to track citizens’ calling habits. In return, the sources say, the NSA offered to pay the firms for their cooperation. After the three firms agreed to help the agency, USA Today writes, “the NSA’s domestic program began in earnest” (see After September 11, 2001, After September 11, 2001, October 2001, September 2002, and Spring 2004). NSA spokesman Don Weber says the agency is operating strictly “within the law,” but otherwise refuses to comment. Former US prosecutor Paul Butler says that the Foreign Intelligence Surveillance Act (FISA), which governs surveillance operations by US intelligence agencies, “does not prohibit the government from doing data mining” (see 1978). White House press spokesman Dana Perino says, “There is no domestic surveillance without court approval,” and all surveillance activities undertaken by government agencies “are lawful, necessary, and required for the pursuit of al-Qaeda and affiliated terrorists.” All government-sponsored intelligence activities “are carefully reviewed and monitored,” she adds, and says that “all appropriate members of Congress have been briefed on the intelligence efforts of the United States” (see October 11, 2001 and October 25, 2001 and November 14, 2001). Don Weber, a senior spokesman for the NSA, refuses to discuss the agency’s operations, saying: “Given the nature of the work we do, it would be irresponsible to comment on actual or alleged operational issues; therefore, we have no information to provide. However, it is important to note that NSA takes its legal responsibilities seriously and operates within the law.” All three firms released similar comments saying that they would not discuss “matters of national security,” but were complying with the law in their alleged cooperation with the NSA. The Electronic Frontier Foundation (EFF) is suing AT&T for what it calls its complicity in the NSA’s “illegal” domestic surveillance program (see January 31, 2006). [USA Today, 5/11/2006]

Entity Tags: Verizon Communications, USA Today, Qwest, Paul Butler, Foreign Intelligence Surveillance Act, Jane Harman, AT&T, BellSouth, National Security Agency, Dana Perino, Don Weber

Timeline Tags: Civil Liberties

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