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Profile: Foreign Intelligence Surveillance Act
Foreign Intelligence Surveillance Act was a participant or observer in the following events:
Bella Abzug. [Source: Spartacus Educational]Staffers from the Church Committee (see April, 1976), slated with investigating illegal surveillance operations conducted by the US intelligence community, approach the NSA for information about Operation Shamrock (see 1945-1975). The NSA ostensibly closes Shamrock down the very same day the committee staffers ask about the program. Though the Church Committee focuses on a relatively narrow review of international cables, the Pike Committee in the House (see January 29, 1976) is much more far-ranging. The Pike Committee tries and fails to subpoena AT&T, which along with Western Union collaborated with the government in allowing the NSA to monitor international communications to and from the US. The government protects AT&T by declaring it “an agent of the United States acting under contract with the Executive Branch.” A corollary House subcommittee investigation led by Bella Abzug (D-NY)—who believes that Operation Shamrock continues under a different name—leads to further pressure on Congress to pass a legislative remedy. The Ford administration’s counterattack is given considerable assistance by a young lawyer at the Justice Department named Antonin Scalia. The head of the Office of Legal Counsel, Scalia’s arguments in favor of continued warrantless surveillance and the unrestricted rights and powers of the executive branch—opposed by, among others, Scalia’s boss, Attorney General Edward Levi—do not win out this time; Ford’s successor, Jimmy Carter, ultimately signs into law the Foreign Intelligence Surveillance Act (see 1978). But Scalia’s incisive arguments win the attention of powerful Ford officials, particularly Chief of Staff Donald Rumsfeld and Rumsfeld’s assistant, Dick Cheney. [Dubose and Bernstein, 2006, pp. 36-37] Scalia will become a Supreme Court Justice in 1986 (see September 26, 1986).
Entity Tags: Foreign Intelligence Surveillance Act, Church Committee, Bella Abzug, Antonin Scalia, AT&T, Donald Rumsfeld, Ford administration, National Security Agency, Western Union, James Earl “Jimmy” Carter, Jr., Edward Levi, Office of Legal Counsel (DOJ), Pike Committee, Richard (“Dick”) Cheney, US Department of Justice
Timeline Tags: Civil Liberties
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]
President Jimmy Carter issues Executive Order 12129, “Exercise of Certain Authority Respecting Electronic Surveillance,” which implements the executive branch details of the recently enacted Foreign Intelligence Surveillance Act of 1978 (FISA) (see 1978). [Jimmy Carter, 5/23/1979] The order is issued in response to the Iranian hostage crisis (see November 4, 1979-January 20, 1981). [Hawaii Free Press, 12/28/2005] While many conservatives will later misconstrue the order as allowing warrantless wiretapping of US citizens in light of the December 2005 revelation of George W. Bush’s secret wiretapping authorization (see Early 2002), [Think Progress, 12/20/2005] the order does not do this. Section 1-101 of the order reads, “Pursuant to Section 102(a)(1) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1802(a)), the Attorney General is authorized to approve electronic surveillance to acquire foreign intelligence information without a court order, but only if the Attorney General makes the certifications required by that Section.” The Attorney General must certify under the law that any such warrantless surveillance must not contain “the contents of any communication to which a United States person is a party.” The order does not authorize any warrantless wiretapping of a US citizen without a court warrant. [Jimmy Carter, 5/23/1979; 50 U.S.C. 1802(a); Think Progress, 12/20/2005] The order authorizes the Attorney General to approve warrantless electronic surveillance to obtain foreign intelligence, if the Attorney General certifies that, according to FISA, the communications are exclusively between or among foreign powers, or the objective is to collect technical intelligence from property or premises under what is called the “open and exclusive” control of a foreign power. There must not be a “substantial likelihood” that such surveillance will obtain the contents of any communications involving a US citizen or business entity. [Federal Register, 2/4/2006]
Due to apparent problems with the use of intelligence information in criminal proceedings, a set of procedures that later becomes known as the “wall” begins to take shape. The FBI, which performs both criminal and counterintelligence functions, normally obtains two types of warrants: criminal warrants and warrants under the recently passed Foreign Intelligence Surveillance Act (FISA). FISA warrants are thought to be easier to obtain, as the FBI only has to show that there is probable cause to believe the subject is a foreign power or an agent of one. Sometimes a case begins as an intelligence investigation, but results in a criminal prosecution. In court the defense can then argue that the government has abused FISA and obtained evidence by improperly using the lower standard, so any evidence obtained under FISA should not be allowed in court. Although the government can use information it happens to obtain under a FISA warrant for a criminal prosecution, if the purpose of obtaining information under a FISA warrant is for a criminal prosecution, this is in violation of the Fourth Amendment’s prohibition against warrantless searches. To combat this apparent problem, the special FISA Court decides that for a warrant under FISA to be granted, collecting intelligence information must be the primary purpose, although such information can be used in a criminal investigation provided the criminal investigation does not become the primary purpose of the surveillance or search. As a result of these procedures, when the FBI is conducting an intelligence investigation and uncovers evidence of criminal activity, it no longer consults local United States Attorneys’ Offices, but prosecutors within the Justice Department’s Criminal Division. The prosecutors then decide when the local attorney’s office should become involved. [US Department of Justice, 11/2004, pp. 21-24 ] The wall will be extended in the 1990s (see July 19, 1995) and will be much criticized before and after 9/11 (see July 1999 and April 13, 2004).
President Clinton issues Executive Order 12949, which marginally extends the powers of the Justice Department to conduct warrantless surveillance of designated targets, specifically suspected foreign terrorists. Perhaps the most controversial aspect of the order comes in the first section, which reads, “Pursuant to section 302(a)(1) of the [Foreign Intelligence Surveillance] Act [FISA], the Attorney General is authorized to approve physical searches, without a court order, to acquire foreign intelligence information for periods of up to one year, if the Attorney General makes the certifications required by that section.” [US President, 2/9/1995] As with then-president Jimmy Carter’s own May 1979 order extending the Justice Department’s surveillance capabilities (see May 23, 1979), after George W. Bush’s warrantless domestic wiretapping program will be revealed in December 2005 (see December 15, 2005), many of that program’s defenders will point to Clinton’s order as “proof” that Clinton, too, exercised unconstitutionally broad powers in authorizing wiretaps and other surveillance of Americans. These defenders will point to the “physical search” clause in Clinton’s order to support their contention that, if anything, Clinton’s order was even more egregrious than anything Bush will order. This contention is false. [50 U.S.C. 1802(a); Think Progress, 12/20/2005] Under FISA, the Attorney General must certify that any such physical search does not involve the premises, information, material, or property of a United States person.” That means US citizens or anyone inside the United States. Clinton’s order does not authorize warrantless surveillance or physical searches of US citizens. [US President, 2/9/1995; Think Progress, 12/20/2005]
Deputy Attorney General Jamie Gorelick issues a memo establishing procedures to regulate prosecutors’ and criminal investigators’ access to intelligence information generated in the wake of the 1993 WTC bombing cases (see February 26, 1993). These new procedures effectively extend the so-called “wall” that arose in the early 1980s. During the criminal investigation of the bombing, the FBI came across counterintelligence information related to Islamic extremists operating inside the United States, so it began an intelligence investigation. The new procedures are established because the Justice Department does not want to be perceived as using warrants issued under the Foreign Intelligence Surveillance Act (FISA), which are thought to be easier to obtain than criminal warrants, to further the criminal investigations, because this might possibly lead to problems in court (see Early 1980s). In the memo, Gorelick, who will later be a 9/11 Commissioner (see December 16, 2002), acknowledges that the procedures go “beyond what is legally required.” [US Department of Justice, 11/2004, pp. 28 ; Lance, 2006, pp. 549-550] A similar set of controversial procedures is issued later covering all intelligence investigations (see July 19, 1995). However, Andrew McCarthy, one of the WTC prosecutors cut off from the information, will later say this policy is “excessively prohibitive” and “virtually guaranteed intelligence failure” in the fight against terrorism. McCarthy will also note that there already are procedures in place to prevent the misuse of FISA-derived evidence. [National Review, 4/19/2004]
Attorney General Janet Reno, who signed the 1995 Procedures memo. [Source: US Department of Justice]The Justice Department issues the “wall” memo, a later heavily criticized memo that establishes procedures to regulate the flow of information from FBI intelligence investigations to criminal investigators and prosecutors. Such procedures already exist, but this “wall” is now formalized and extended. The memo is signed by Attorney General Janet Reno, but is based on a similar one recently issued by Deputy Attorney General Jamie Gorelick governing the 1993 WTC bombing cases (see March 4, 1995). The wall exists to prevent defendants from successfully arguing in court that information gathered under a warrant issued under the Foreign Intelligence Surveillance Act (FISA) should not be used in a criminal prosecution, as the standard for obtaining a FISA warrant is considered to be lower than that for obtaining a criminal search warrant (see Early 1980s). Such arguments are usually unsuccessful, according to the Justice Department’s Office of Legal Counsel, which believes that courts are showing “great deference” to the government when such challenges are made. The procedures, which now apply to all intelligence investigations regardless of whether or not a FISA warrant has been issued, state that the FBI must consult the Justice Department’s Criminal Division, not local United States Attorneys’ offices, about intelligence investigations when it is considering starting a parallel criminal investigation, and that it must do so when there is reasonable indication of a significant federal crime. This means that FBI headquarters has veto power over whether a field office can contact a local prosecutor about an intelligence investigation. However, Criminal Division prosecutors should only be consulted and cannot control an investigation. [Office of the Attorney General, 7/19/1995; US Department of Justice, 11/2004, pp. 25-30 ] These procedures will be implemented in such a way that even greater restrictions are placed on information sharing (see (Late 1995-1997)), although a partial exception will be created for the Southern District of New York, which handles a lot of terrorism work (see August 29, 1997). The procedures will also be much criticized for the way they are implemented in the FBI (see July 1999). The increased barriers to information sharing often mean that the FBI monitors terrorists as before, but the information does not get passed to criminal investigators, so the cells carry on operating in the US and the FBI carries on monitoring them. For example, the FBI monitors a Florida-based cell that funds and recruits for jihad throughout the world for nearly a decade before it is rolled up (see (October 1993-November 2001)). Some money raised by terrorism financiers in the US goes to Bosnia, where the US has a policy of enabling covert support for the Muslim side in the civil war (see April 27, 1994). Prosecutor Andrew McCarthy will later call the wall a “rudimentary blunder,” and say that it “was not only a deliberate and unnecessary impediment to information sharing; it bred a culture of intelligence dysfunction.” [National Review, 4/13/2004] John Ashcroft, Attorney General in the Bush Administration (see April 13, 2004), will say that “Government buttressed this ‘wall’,” and will call it the “single greatest structural cause for September 11.” [9/11 Commission, 4/13/2004]
Following the issuance of the “wall” memo, which established procedures to regulate the flow of information from intelligence investigations by the FBI to local criminal prosecutors (see July 19, 1995), an additional information sharing “wall” is erected inside the FBI. After 9/11, the Justice Department’s Office of Inspector General will find, “Although it is unclear exactly when this ‘wall’ within the FBI began, [it was] sometime between 1995 and 1997.” This additional wall segregates FBI intelligence investigations from FBI criminal investigations and restricts the flow of information from agents on intelligence investigations to agents on criminal investigations, because of problems that may occur if the flow is not regulated (see Early 1980s). If an intelligence agent wants to “pass information over the wall” to a criminal agent, he should get approval from one of his superiors, either locally or at FBI headquarters. A description of wall procedures comes to be commonplace in all warrant requests filed under the Foreign Intelligence Surveillance Act (FISA). [US Department of Justice, 11/2004, pp. 30-32 ] However, FBI agents often ignore these restrictions and over a hundred cases where information is shared without permission between intelligence and criminal FBI agents will later be uncovered (see Summer-October 2000 and March 2001).
Mary Jo White. [Source: CNN]Mary Jo White, US Attorney for the Southern District of New York, which handles a lot of terrorism investigations, complains about the “wall” procedures regulating the passage of intelligence information to US attorneys and criminal agents at the FBI. The rules were recently formalized (see July 19, 1995), but she says that the 1995 procedures are building “unnecessary and counterproductive walls that inhibit rather than promote our ultimate objectives [and that] we must face the reality that the way we are proceeding now is inherently and in actuality very dangerous.” Following her complaints, an exception is created for the Southern District of New York Attorneys’ Office. The office works with the FBI’s I-49 squad, which handles international terrorism matters (see January 1996 and Late 1998-Early 2002). The FBI can now notify this office of evidence of a crime directly, without consulting the Justice Department. Once this is done, the office would then contact two units in the Justice Department, the Criminal Division and the Office of Intelligence Policy and Review. [US Department of Justice, 11/2004, pp. 29 ]
The Justice Department’s Office of Inspector General issues a report into the FBI’s use of intelligence information in an investigation into campaign finance, and this report is critical of the “wall”. The “wall” regulates the passage of some information from FBI intelligence investigations to criminal FBI agents and prosecutors, to ensure such information can legitimately be used in court (see Early 1980s). After the procedures were formalized (see July 19, 1995), the FBI drastically reduced its consultations with Justice Department attorneys about intelligence investigations, because any consultation with such attorneys could result in an intelligence warrant not being granted, as it may lead authorities reviewing a warrant application to conclude that the warrant was really being sought for a criminal investigation, not an intelligence investigation. The result is that the FBI does not ask for input from prosecutors until it is ready to close an intelligence investigation and “go criminal.” The campaign finance report finds that FBI failed to disclose some information from intelligence investigations not only to Congress and the Attorney General, but also to its own Director, Louis Freeh. The “wall” procedures are found to be vague and ineffective, as well as misunderstood and often misapplied. [US Department of Justice, 11/2004, pp. 32-33 ] The “wall” procedures are also criticized by other reports (see May 2000).
Because of concerns that al-Qaeda will launch attacks during the millennium celebrations (see Early December 1999, December 15-31, 1999 and December 14, 1999), the Justice Department and the Foreign Intelligence Surveillance Court alter the set of procedures known as the “wall,” which governs the sharing of intelligence inside the FBI and between the FBI and prosecutors. As a result of these changes, it becomes easier for the FBI to obtain wiretap warrants from the court, so the court itself becomes the wall with the authority to determine what information can be released to prosecutors. [Foreign Intelligence Surveillance Court, 5/17/2002; US Department of Justice, 11/2004, pp. 32, 149, 194 ] Nonetheless, US attorney Patrick Fitzgerald, working with the I-49 squad on al-Qaeda cases at the time, will later complain about the lack of information prosecutors receive around the millennium, “Criminal prosecutors received information only in part and with lag time so as not to breach the ‘wall’. The persons who determined what could be shared with the prosecutors were on the other side of the ‘wall,’ making their best guess as to what would be helpful. This was no way to defend our country from imminent attack.” [US Congress, 10/21/2003] Fellow attorney Andrew McCarthy will say this change was not that unusual, and that the “wall” “could be raised or lowered based on Justice’s perception of the threat environment at any given time.” [National Review, 4/13/2004]
The FBI obtains a wiretap warrant to seize al-Qaeda-related e-mails under the Foreign Intelligence Surveillance Act (FISA), but experimental software malfunctions and an angry FBI agent is said to destroy all the e-mails collected. The Carnivore software, which was installed in Denver, collects e-mails not only from the target, but also from other people. The FBI technician is reportedly so upset when he discovers e-mails from people whose communications the FBI has no authorization to collect that he apparently deletes everything the FBI has gathered, including the e-mails from the target. However, the article that first reports this deletion also says the opposite: “A Justice Department official, speaking on condition of anonymity, said Tuesday night that the e-mails were not destroyed.” In either case, the Office of Intelligence Policy and Review (OIPR) at FBI headquarters, which deals with FISA warrants, is then informed and expresses its surprise it was not told the software was experimental before the warrant was issued. An FBI official will comment: “To state that [an OIPR official] is unhappy with [the FBI’s International Terrorism Operations Section] and the [Usama bin Laden] Unit would be an understatement of incredible proportions.” As the target’s e-mails have been destroyed in the FBI system, the FBI then wants a physical search warrant under FISA to go and collect the e-mails from the carrier. However, the OIPR insists on an explanation for the error before this can happen, and also demands an explanation for the problem, so the special FISA court can be notified. [Federal Bureau of Investigation, 4/5/2000; Associated Press, 5/28/2002] It is not known who was being monitored, though there are potential al-Qaeda Denver connections: in 1994, a bin Laden front began routing communications through Denver (see 1994), and a passport was stolen there in 1995 from a man who was later confused with one of the 9/11 hijackers (see 1995).
A Justice Department report into the handling of the Wen Ho Lee investigation attacks the “wall” procedures. The “wall” regulates the passage of some information from FBI intelligence investigations to criminal FBI agents and prosecutors, to ensure such information can legitimately be used in court (see Early 1980s). After the procedures were formalized (see July 19, 1995), they were criticized in a 1999 Justice Department report (see July 1999). The Wen Ho Lee report finds that additional requirements imposed by the Office of Intelligence Policy and Review (OIPR) at the Justice Department (see (Late 1995-1997)) that hamper consultations between agents on intelligence investigations and attorneys at the Justice Department’s Criminal Division are actually in contravention of the procedures specified in the original 1995 memo. The report states, “It is clear from interviews… that, in any investigation where [the Foreign Intelligence Surveillance Act (FISA)] is employed or even remotely hoped for (and FISA coverage is always hoped for), the Criminal Division is considered radioactive by both the FBI and the OIPR.” It also says that the FBI’s deputy director has told agents that contacting prosecutors without the OIPR’s permission is a “career stopper.” Another report, published in July 2001, finds that some improvements have been made in this area, but recommends further steps. [US Department of Justice, 11/2004, pp. 33-36 ]
The Justice Department’s Office of Intelligence Policy and Review (OIPR), which helps obtain warrants under the Foreign Intelligence Surveillance Act (FISA), discovers errors in several al-Qaeda related FISA applications under a counterterrorist program called “Catcher’s Mitt.” The OIPR verbally notifies the FISA Court of the errors, which are mostly in affidavits submitted by supervisory special agents at field offices. Then, in September and October 2000, the OIPR submits two pleadings to the court regarding approximately 75-100 applications with errors starting in July 1997. Many of the errors concern misleading statements about the nature of collaboration between criminal and intelligence agents. Most of these applications stated that the FBI New York field office, where the I-49 squad focusing on al-Qaeda was based (see January 1996 and Late 1998-Early 2002), had separate teams of agents handling criminal and intelligence investigations. But in actual fact the I-49 agents intermingled with criminal agents working on intelligence cases and intelligence agents working on criminal cases. Therefore, contrary to what the FISA Court has been told, agents working on a criminal investigation have had unrestricted access to information from a parallel intelligence investigation—a violation of the so-called “wall,” the set of bureaucratic procedures designed to separate criminal and intelligence investigations (see July 19, 1995). [Newsweek, 5/27/2002; Newsweek, 3/29/2004; US Department of Justice, 11/2004, pp. 36-37 ] The information about al-Qaeda in these cases is also shared with assistant US attorneys without FISA permission being sought or granted first. Other errors include the FBI director wrongly asserting that the target of a FISA application was not under criminal investigation, omissions of material facts about a prior relationship between the FBI and a target, and an interview of a target by an assistant US attorney. [Foreign Intelligence Surveillance Court, 5/17/2002] This leads the FISA Court to impose new requirements regarding the “wall” (see October 2000). Similar problems will be found in FISA applications for surveillance of Hamas operatives (see March 2001).
FISA court judge Royce Lamberth was angry with the FBI over misleading statements made in FISA wiretap applications. [Source: Public domain]While monitoring foreign terrorists in the US, the FBI listens to calls made by suspects as a part of an operation called Catcher’s Mitt, which is curtailed at this time due to misleading statements by FBI agents. It is never revealed who the targets of the FBI’s surveillance are under this operation, but below are some of the terrorism suspects under investigation in the US at the time:
Imran Mandhai, Shuyeb Mossa Jokhan and Adnan El Shukrijumah in Florida. They are plotting a series of attacks there, but Mandhai and Jokhan are brought in for questioning by the FBI and surveillance of them stops in late spring (see November 2000-Spring 2002 and May 2, 2001);
Another Florida cell connected to Blind Sheikh Omar Abdul-Rahman. The FBI has been investigating it since 1993 (see (October 1993-November 2001));
Al-Qaeda operatives in Denver (see March 2000);
A Boston-based al-Qaeda cell involving Nabil al-Marabh and Raed Hijazi. Cell members provide funding to terrorists, fight abroad, and are involved in document forging (see January 2001, Spring 2001, and Early September 2001);
Fourteen of the hijackers’ associates the FBI investigates before 9/11. The FBI is still investigating four of these people while the hijackers associate with them; [US Congress, 7/24/2003, pp. 169 ]
Hamas operatives such as Mohammed Salah in Chicago. Salah invests money in the US and sends it to the occupied territories to fund attacks (see June 9, 1998).
When problems are found with the applications for the wiretap warrants, an investigation is launched (see Summer-October 2000), and new requirements for warrant applications are put in place (see October 2000). From this time well into 2001, the FBI is forced to shut down wiretaps of al-Qaeda-related suspects connected to the 1998 US embassy bombings and Hamas (see March 2001 and April 2001). One source familiar with the case says that about 10 to 20 al-Qaeda related wiretaps have to be shut down and it becomes more difficult to get permission for new FISA wiretaps. Newsweek notes, “The effect [is] to stymie terror surveillance at exactly the moment it was needed most: requests from both Phoenix [with the Ken Williams memo (see July 10, 2001)] and Minneapolis [with Zacarias Moussaoui’s arrest] for wiretaps [will be] turned down [by FBI superiors],” (see August 21, 2001 and August 28, 2001). [Newsweek, 5/27/2002] Robert Wright is an FBI agent who led the Vulgar Betrayal investigation looking into allegations that Saudi businessman Yassin al-Qadi helped finance the embassy bombings, and other matters. In late 2002, he will claim to discover evidence that some of the FBI intelligence agents who stalled and obstructed his investigation were the same FBI agents who misrepresented the FISA petitions. [Judicial Watch, 9/11/2002]
Entity Tags: Royce Lamberth, Shuyeb Mossa Jokhan, Catcher’s Mitt, Robert G. Wright, Jr., Zacarias Moussaoui, Raed Hijazi, Mohammad Salah, Federal Bureau of Investigation, Al-Qaeda, Adnan Shukrijumah, Central Intelligence Agency, Nabil al-Marabh, Ken Williams, Imran Mandhai, Foreign Intelligence Surveillance Act
Timeline Tags: Complete 911 Timeline, 9/11 Timeline
The Foreign Intelligence Surveillance (FISA) Court implements new rules requiring any FBI employee who sees FISA-obtained materials or other FISA-derived intelligence to sign a certification acknowledging that the court’s approval is needed before the information is disseminated to criminal investigators. This comes after the FISA Court was informed that approximately 100 FISA applications submitted by the FBI had misrepresented how criminal and intelligence agents were working together in the Catcher’s Mitt program (see Summer 2000-September 11, 2001 and Summer-October 2000). The new rules also require that the CIA and NSA place a caveat on all FISA-derived intelligence sent to the bureau. In an effort to speed up inter-agency reporting, the NSA will reportedly go a step further, placing caveats on all information it sends to the FBI. The caveats warn that the information being sent might be FISA-derived and that an intelligence agent wishing to pass it to a criminal agent must first obtain assurance from the NSA that the intelligence is not FISA-derived. [US Department of Justice, 11/2004, pp. 37-38 ]
Royce Lamberth’s letter to John Ashcroft, obtained by the 9/11 Timeline by Freedom of Information Act request. [Source: Foreign Intelligence Surveillance Court]The Justice Department’s Office of Intelligence Policy and Review (OIPR) discovers that an application for a warrant under the Foreign Intelligence Surveillance Act (FISA) is misleading. The application is for surveillance of the Palestinian militant group Hamas and the supporting affidavit was signed by FBI agent Michael Resnick. The Justice Department’s Office of Professional Responsibility (OPR) is already investigating dozens of similar errors in FISA warrants for surveillance of al-Qaeda targets in the US (see Summer 2000-September 11, 2001). The application is misleading because its does not accurately describe the “wall” procedures being followed by several FBI field offices. Wall procedures regulate the passage of information from FBI intelligence agents to FBI criminal agents and local US attorneys’ offices. The misleading description is also found in another 14 warrant applications for surveillance of Hamas. The impact of the misleading statements in the Hamas investigations has not been disclosed, but in the al-Qaeda cases the wall was breached because criminal agents had unrestricted access to intelligence information (see Summer-October 2000). Royce Lamberth, Presiding Judge on the FISA Court, writes to Attorney General John Ashcroft saying it will no longer accept any applications where the supporting affidavit is signed by Resnick and asking for an immediate inquiry. [Foreign Intelligence Surveillance Court, 3/9/2001 ; New York Times, 9/19/2001; New York Times, 5/27/2002; Washington Post, 8/23/2002; Arab News, 3/3/2004; US Department of Justice, 11/2004, pp. 39 ] The Justice Department’s investigation into the misleading applications finds that “none of [them]… were the result of professional misconduct or poor judgement,” but that “a majority of the errors were the result of systemic flaws.” [US Department of Justice, 11/2004, pp. 40 ] Following the discovery of the errors in the FISA applications, surveillance of al-Qaeda and Hamas targets in the US is curtailed (see April 2001). Resnick remains with the bureau and will become head of the Joint Terrorism Task Force in North Carolina and then chief of the Terrorist Identities Group at the FBI’s National Counter Terrorism Center. [US Congress, 3/30/2006; WCNC, 6/20/2006]
A surveillance program known as Catcher’s Mitt is curtailed, and ten to twenty al-Qaeda wiretaps, as well as some Hamas wiretaps, are not renewed. This follows the discovery of errors in applications for warrants under the Foreign Intelligence Surveillance Act (FISA) related to both al-Qaeda and Hamas and the introduction of new procedures (see Summer 2000-September 11, 2001, Summer-October 2000, October 2000, and March 2001). [New York Times, 9/19/2001; Newsweek, 5/27/2002; Newsweek, 3/29/2004] In addition, other similar programs such as Able Danger and Monarch Passage are shut down at the same time (see (February-March 2001) and January-March 2001).
The FBI opens an intelligence investigation to find future 9/11 hijacker Khalid Almihdhar, despite protests from the FBI New York field office that FBI headquarters has wrongly insisted on an intelligence investigation, when a criminal investigation would be more appropriate and have a better chance of finding him. The Justice Department’s office of inspector general will later conclude that “the designation of the Almihdhar matter as an intelligence investigation, as opposed to a criminal investigation, undermined the priority of any effort to locate Almihdhar.” Upon learning of the decision, Steve Bongardt, an investigator working on the USS Cole bombing investigation, writes to headquarters agent Dina Corsi to express his frustration. He points out that she is unable to produce any solid documentary evidence to support her view of the “wall,” a mechanism that restricts the passage of some intelligence information to criminal agents at the FBI (see Early 1980s and July 19, 1995), and that her interpretation of the “wall” is at odds with the purpose for which it was established. He adds: “Whatever has happened to this—someday someone will die—and wall or not—the public will not understand why we were not more effective and throwing every resource we had at certain ‘problems.’ Let’s hope the [Justice Department’s] National Security Law Unit will stand behind their decisions then, especially since the biggest threat to us now, UBL [Osama bin Laden], is getting the most ‘protection.’” [US Congress, 9/20/2002; New York Times, 9/21/2002; US Department of Justice, 11/2004, pp. 307-9 ; New Yorker, 7/10/2006 ] Both the Justice Department’s office of inspector general and the 9/11 Commission will later back Bongardt and say the investigation should have been a criminal investigation, as the “wall” procedures did not apply. The inspector general will comment that Bongardt “was correct that the wall had been created to deal with the handling of only [Foreign Intelligence Surveillance Act] information and that there was no legal barrier to a criminal agent being present for an interview with Almihdhar if it occurred in the intelligence investigation.” [US Department of Justice, 11/2004, pp. 351 ] The 9/11 Commission will remark that Corsi “misunderstood” the wall and that, “Simply put, there was no legal reason why the information [Corsi] possessed could not have been shared with [Bongardt].” It will conclude: “It is now clear that everyone involved was confused about the rules governing the sharing and use of information gathered in intelligence channels. Because Almihdhar was being sought for his possible connection to or knowledge of the Cole bombing, he could be investigated or tracked under the existing Cole criminal case. No new criminal case was needed for the criminal agent to begin searching for [him]. And as the NSA had approved the passage of its information to the criminal agent, he could have conducted a search using all available information. As a result of this confusion, the criminal agents who were knowledgeable about al-Qaeda and experienced with criminal investigative techniques, including finding suspects and possible criminal charges, were thus excluded from the search.” [9/11 Commission, 7/24/2004, pp. 271, 539]
Entity Tags: Osama bin Laden, Steve Bongardt, Usama bin Laden Unit (FBI), Office of the Inspector General (DOJ), National Commision on Terrorist Attacks, Foreign Intelligence Surveillance Act, Dina Corsi, FBI Headquarters, Khalid Almihdhar, FBI New York Field Office
Timeline Tags: Complete 911 Timeline, 9/11 Timeline
An illustration of the NIMD dataflow. [Source: LibertyThink.com] (click image to enlarge)Shortly after the 9/11 attacks, the NSA awards $64 million in research contracts for a program called Novel Intelligence from Massive Data (NIMD). [New York Times, 5/21/2003; National Journal, 1/20/2006] NIMD is one of several cutting-edge data mining technologies that not only has the capability of finding keywords among millions of electronically monitored communications, but can find hidden relationships among data points, and even critique the thinking and biases of a particular analyst and suggest alternative hypotheses differing from the human analysts’ conclusion. Like other data-mining technologies, the NSA will steadfastly refuse to discuss whether NIMD is used to analyze data from domestic surveillance operations. NIMD is designed as an preliminary sort program, to keep human analysts from becoming overwhelmed by raw data. In essence, NIMD is an early-warning system. “NIMD funds research to…help analysts deal with information-overload, detect early indicators of strategic surprise, and avoid analytic errors,” according to the “Call for 2005 Challenge Workshop Proposals” released by the Advanced Research and Development Activity (ARDA). ARDA was founded in 1998 to create, design, and field new technologies for US intelligence agencies, particularly the NSA. A selected few Congressional lawmakers (see January 18, 2006) were informed that the warrantless surveillance program authorized by President George W. Bush (see Early 2002) was designed to be an early-warning system for possible terrorist attacks or plans. Assistant Attorney General William Moschella will inform the top Democrats and Republicans on the House and Senate Intelligence committees in December 2002 that the “president determined that it was necessary following September 11 to create an early-warning detection system” to prevent more attacks. He will justify the use of programs such as NIMD by claiming, as NSA director Michael Hayden and other administration officials have repeatedly claimed, that the Foreign Intelligence Surveillance Act (FISA), which allows the government to obtain warrants to conduct domestic eavesdropping or wiretapping, “could not have provided the speed and agility required for the early-warning detection system.” Many experts outside of the Bush administration feel that NIMD and other programs do not have to operate outside of the Foreign Intelligence Surveillance Act (FISA) because of limitations in the law, but because of the fact that the programs cannot meet the law’s minimum requirements for surveillance. FISA requires that any such surveillance must have a probable cause that the target is a terrorist. NIMD has no such threshold. Steven Aftergood, an expert on intelligence and government secrecy with the Federation of American Scientists, will say in 2006, “Logistically speaking, the early-warning approach may involve a significant increase in the number of surveillance actions. It may be that neither the Justice Department nor the [Foreign Intelligence Surveillance Court, which approves wiretapping warrants] is prepared to prepare and process several thousand additional FISA applications per year, beyond the 1,700 or so approved in 2004.” [National Journal, 1/20/2006] Some experts will later express the opinion that NIMD is the controversial Total Information Awareness program in a slightly different form (see February 2003 and September 2002).
Entity Tags: Senate Intelligence Committee, US Department of Justice, Total Information Awareness, William E. Moschella, Tom Armour, Novel Intelligence from Massive Data, Steven Aftergood, Michael Hayden, National Security Agency, Advanced Capabilities for Intelligence Analysis, Advanced Research and Development Activity, John Poindexter, Foreign Intelligence Surveillance Act, George W. Bush, Federation of American Scientists (FAS), House Intelligence Committee
Timeline Tags: Civil Liberties
A self-styled White House “war council” begins meeting shortly after the 9/11 attacks, to discuss the administration’s response to the attacks and the methods it will use (see (After 10:00 a.m.) September 11, 2001). The ad hoc group is composed of White House counsel Alberto Gonzales, Justice Department lawyer John Yoo, Pentagon chief counsel William J. Haynes, and the chief aide to Vice President Dick Cheney, David Addington. According to Jack Goldsmith, who will become head of the Justice Department’s Office of Legal Counsel (OLC) in 2003 (see October 6, 2003), the four believe that the administration’s biggest obstacle to responding properly to the 9/11 attacks is the body of domestic and international law that arose in the 1970s to constrain the president’s powers after the criminal excesses of Richard Nixon’s White House. Chief among these restraints is the Foreign Intelligence Surveillance Act (FISA) of 1978 (see 1978). Though Addington tends to dominate the meetings with his imposing physical presence and aggressive personality, Yoo is particularly useful to the group; the head of the OLC, Jay Bybee (whom Goldsmith will replace) has little experience with national security issues, and delegates much of the responsibility for that subject to Yoo, even giving him the authority to draft opinions that are binding on the entire executive branch. Yoo agrees wholeheartedly with Addington, Gonzales, and Cheney about the need for vastly broadened presidential powers. According to Goldsmith, Yoo is seen as a “godsend” for the White House because he is eager to draft legal opinions that would protect Bush and his senior officials from any possible war crimes charges. However, Yoo’s direct access to Gonzales angers Attorney General John Ashcroft, who feels that the “war council” is usurping legal and policy decision-making powers that are legally his own. [New York Times Magazine, 9/9/2007] In 2009, Goldsmith will say, “[I]it was almost as if they [Cheney and Addington] were interested in expanding executive power for its own sake.” [Vanity Fair, 2/2009]
Entity Tags: Richard (“Dick”) Cheney, William J. Haynes, Richard M. Nixon, Office of Legal Counsel (DOJ), Jay S. Bybee, Jack Goldsmith, John C. Yoo, Bush administration (43), Foreign Intelligence Surveillance Act, Alberto R. Gonzales, David S. Addington
Timeline Tags: 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 ; American Civil Liberties Union [PDF], 1/28/2009 ; 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
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
Assistant Attorney General William Moschella informs the ranking members of the House and Senate Intelligence committees of the administration’s use of potentially unconstitutional data mining and electronic surveillance programs after the 9/11 attacks. Moschella tells the lawmakers, “The president determined that it was necessary following September 11 to create an early-warning detection system” to prevent more attacks. One such program is the Novel Intelligence from Massive Data (NIMD) initiative (see After September 11, 2001). Moschella echoes the claims of National Security Agency director Michael Hayden and other administration officials, saying that the Foreign Intelligence Surveillance Act (FISA), which allows the government to obtain warrants to conduct domestic eavesdropping or wiretapping, “could not have provided the speed and agility required for the early-warning detection system.” [National Journal, 1/20/2006]
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). Moschella informs the lawmakers of none of this.
Steven Aftergood of the Federation of American Scientists says that he is not sure that Congress’s public termination of the Total Information Awareness (TIA) project (see January 23, 2003) was as real and outrage-driven as it seemed at the time. “The whole congressional action looks like a shell game,” Aftergood says. “There may be enough of a difference for them to claim TIA was terminated while for all practical purposes the identical work is continuing.” While Congress terminated TIA with visible indignation, it also quietly funded the “National Foreign Intelligence Program,” and never identified which intelligence agency would do the work—which was also kept from the public eye. Congress did say that none of the research would be used against US citizens. No one in Congress will discuss how many of Poindexter’s programs survived, but knowledgeable sources will confirm that some 18 data-mining programs known as Evidence Extraction and Link Discovery in Poindexter’s research were preserved after TIA’s termination. These programs may well include the sprawling data mining program known as Novel Intelligence from Massive Data (NIMD) (see After September 11, 2001), though this cannot be confirmed. Former TIA chief John Poindexter’s vision of the technology behind NIMD envisioned software that can quickly analyze “multiple petabytes” of data. A single petabyte would fill the Library of Congress space for 18 million books more than 50 times, or could hold 40 pages of text for each of the more than 6.2 billion humans on Earth. Poindexter and his colleagues envisioned the program as handling a petabyte or more of data a month. [Associated Press, 2/23/2004] Concerns about the privacy rights of US citizens being damaged by the program are rife. “If they were to stick to strictly military-related research and development, there is less of an issue, but these technologies have much broader social implications,” says Barbara Simons, a computer scientist who is past president of the Association of Computing Machinery, an organization that has expressed concerns about TIA. [New York Times, 5/21/2003] At least one Senator is uncomfortable with the apparent resurgence of TIA. Jay Rockefeller (D-WV) will write Vice President Dick Cheney in June 2003 after receiving a briefing on the various secret surveillance programs (see July 17, 2003). Rockefeller will write, “As I reflected on the meeting today, John Poindexter’s TIA project sprung to mind, exacerbating my concern regarding the direction the administration is moving with regard to security, technology, and surveillance.” [National Journal, 1/20/2006]
The Senate Judiciary Committee issues an interim report titled “FISA Implementation Failures” that finds the FBI has mishandled and misused the Foreign Intelligence Surveillance Act (FISA) in its anti-terrorism measures. The report is written by Arlen Specter (R-PA), Charles Grassley (R-IA), and Patrick Leahy (D-VT). [US Congress, 2/2003] Committee chairman Orrin Hatch (R-UT) not only refused to take part in the report, he issues a letter protesting the report’s findings. Other committee members were invited to take part in drafting the report, but none did so. [Salon, 3/3/2003] Specter says just after the report is issued, “The lack of professionalism in applying the law has been scandalous. The real question is if the FBI is capable of carrying out a counterintelligence effort.” According to the report, both the FBI and the Justice Department routinely employ excessive secrecy, suffer from inadequate training, weak information analysis, and bureaucratic bottlenecks, and will stifle internal dissent to excess as part of their usage of the expanded powers provided under FISA. The report uses as a case study the instance of suspected terrorist Zacarias Moussaoui (see August 16, 2001), who stands accused of conspiring with the 9/11 hijackers. FBI officials in Washington impeded efforts by its agents in Minneapolis, most notably former FBI agent Coleen Rowley, to secure a FISA warrant that would have allowed those agents to search Moussaoui’s laptop computer and belongings before the attack. [US Congress, 2/2003; Associated Press, 2/25/2003] “September 11 might well have been prevented,” says Specter. “What are they doing now to prevent another 9/11?” Grassley adds that in closed Senate hearings, they learned that two supervisors who handled the case did not understand the basic elements of FISA, and a senior FBI attorney could not provide the legal definition of “probable cause,” a key element needed to obtain a FISA warrant. [Associated Press, 2/25/2003] “I hate to say this,” Leahy observes, “but we found that the FBI is ill-equipped” to conduct surveillance on those in the United States possibly plotting terrorist acts on behalf of foreign powers. [Salon, 3/3/2003]
Lack of Cooperation from FBI, Justice Department - The report says that neither the FBI nor the Justice Department were cooperative with the Judiciary Committee in the committee’s efforts to investigate either agency’s actions under FISA, routinely delaying their responses to Congressional inquiries and sometimes ignoring them altogether. The report says that perhaps the most troubling of its findings is “the lack of accountability that has permeated the entire application procedure.” The report notes that although Congressional oversight is critical to ensure a transparent, effective usage of FISA powers (augmented under the USA Patriot Act) that do not stray from legal boundaries, such oversight has been discouraged by both the FBI and the Justice Department. [US Congress, 2/2003] The Justice Department dismisses the report as “old news.” [Patrick Leahy, 2/27/2003] Grassley says, “I can’t think of a single person being held accountable anywhere in government for what went on and what went wrong prior to Sept. 11. It seems that nobody in government makes any mistakes anymore.” [Salon, 3/3/2003]
Spark for New Legislation - The three senators use the report as a springboard to introduce a bill, the “Domestic Surveillance Oversight Act,” which will allow Congress to more closely oversee oversee FBI surveillance of Americans and government surveillance of public libraries, would supervise FISA usage in criminal cases, and disclose the secret rules of the FISA court to Congress. [Associated Press, 2/25/2003] Even though all three senators support a lowering of the standards by which a FISA warrant can be issued, the American Civil Liberties Union says it supports the bill, with reservations. “There’s a lot of concern in this country that, especially with the USA PATRIOT Act, FISA has become a massive tool for secret surveillance,” says ACLU lawyer Timothy Edgar. “One way to assuage those concerns—or show that they’re true—is to have more reporting.” Edgar says that the ACLU worries about the lowering of the standards for such warrants, but as long as the bill implement. [Salon, 3/3/2003] The question of the bill becomes moot, however, as it will never make it out of committee. [US Congress - Senate Judiciary Committee, 3/2003]
Entity Tags: USA Patriot Act, Robert S. Mueller III, Tim Edgar, Patrick J. Leahy, Senate Judiciary Committee, Marion (“Spike”) Bowman, Federal Bureau of Investigation, US Department of Justice, American Civil Liberties Union, Foreign Intelligence Surveillance Act, Arlen Specter, Domestic Surveillance Oversight Act, Charles Grassley, Zacarias Moussaoui
Timeline Tags: Civil Liberties
The United Nations launches an investigation into the electronic and physical surveillance of a number of its Security Council delegates by the National Security Agency (see January 31, 2003). The NSA operation, revealed the week before, was apparently leaked to Britain’s Observer by Katharine Gun, who works at Britain’s Government Communications Headquarters (GCHQ) and has been arrested on suspicion of breaking Britain’s Official Secrets Act (see February 2003). The NSA also solicited the assistance of an intelligence agency of an unnamed “friendly foreign government”; it is believed to be Britain. The leak is touted as “more timely and potentially more important than the Pentagon Papers” by celebrated whistleblower Daniel Ellsberg. The leak of the NSA surveillance program has caused deep embarrassment for the Bush administration, which is working to recruit supporters for a second UN resolution authorizing military force against Iraq (see February 24, 2003). The authorization for the NSA operation is believed to have come from National Security Adviser Rice, but US intelligence experts say that such a decision would have had to involve Defense Secretary Donald Rumsfeld, CIA Director George Tenet, and NSA Director Michael Hayden. President Bush, by necessity, would have been informed of the proposed operation at one of his daily intelligence briefings. While such surveillance of foreign diplomats at the UN is legal under the US’s Foreign Intelligence Surveillance Act (FISA), it violates the Vienna Convention on Diplomatic Relations. According to international law expert Dr. John Quigley, the Vienna Convention stipulates: “The receiving state shall permit and protect free communication on the part of the mission for all official purposes…. The official correspondence of the mission shall be inviolable.” [Observer, 3/9/2003]
Entity Tags: United Nations Security Council, United Nations, National Security Agency, Vienna Convention on Diplomatic Relations, Michael Hayden, John Quigley, Condoleezza Rice, Katherine Gun, Donald Rumsfeld, Foreign Intelligence Surveillance Act, George W. Bush, Government Communications Headquarters, George J. Tenet, Daniel Ellsberg
Timeline Tags: Events Leading to Iraq Invasion
Prosecutor Patrick Fitzgerald testifies before the Senate Committee on the Judiciary about post-9/11 legislative changes, and says that the removal of the “wall” was a significant step forward for US counterintelligence. The wall was a set of procedures which regulated the passage of intelligence information within the FBI and from the FBI to prosecutors (see July 19, 1995). Fitzgerald says the removal of the wall represented “the single greatest change that could be made to protect our country.” He cites four cases that he says are examples of how the wall and other such obstacles have hampered counterterrorism efforts:
The arrest of Ali Mohamed. Fitzgerald claims it would have been “far less difficult” to arrest al-Qaeda operative Ali Mohamed for his involvement in the attacks on US embassies in East Africa (see September 10, 1998) had it not been for the wall. [US Congress, 10/21/2003] However, author Peter Lance will point out, “But Fitzgerald neglected to tell the senators that… prosecutors and FBI agents had been monitoring the bombing cell members for two years or that they’d had multiple face-to-face meetings with Mohamed himself.” Mohamed, who was called a “key figure” in the Day of Terror plot in the US press in early 1995 (see February 3, 1995), had actually met Fitzgerald a year before the arrest and told him that he had trained bin Laden’s bodyguards, lived in bin Laden’s house, loved and believed in bin Laden, and that he didn’t need a fatwa to attack the US, as it was obvious the US was the enemy (see After October 1997). [Lance, 2006, pp. 274-6, 299-300]
The Day of Terror conspiracy. After the partial success of the World Trade Center bombing (see February 26, 1993), the conspirators planned to attack other targets in New York, but were arrested by the FBI, which had penetrated their cell. All of the arrested plotters were successfully convicted. However, Fitzgerald tells the committee, “Prosecutors were in the dark about the details of the plot until very late in the day.” [US Congress, 10/21/2003; Lance, 2006, pp. 118-9]
The Millennium Alert. Fitzgerald says that in 1999, investigations into suspected millennium plots were hampered because “criminal prosecutors received information only in part and with lag time so as not to breach the wall.” All attacks planned for the millennium failed, including one plot to bomb the Los Angeles airport (see December 31, 1999-January 1, 2000).
Sharing Wadih El-Hage’s grand jury interview. In 1997, Al-Qaeda operative El-Hage provided information about bin Laden and his associates to a grand jury. Fitzgerald wanted to pass some of this information along to intelligence investigators (see September 24, 1997) but was unable to because grand jury information cannot be shared with intelligence investigators. To get around this restriction, an FBI agent had to get El-Hage to repeat the information outside the grand jury room. (Note: this example is not directly related to the “wall” under the Foreign Intelligence Surveillance Act, but rather to a similar obstacle governing the passage of information in the opposite direction—from criminal agents to intelligence agents). [US Congress, 10/21/2003]
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 , 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]
Jack Goldsmith, the head of the Justice Department’s Office of Legal Counsel (see October 6, 2003), is astonished at the open contempt displayed by White House officials over dealing with Congress and the restraints imposed by the Foreign Intelligence Surveillance Act (FISA). Though Goldsmith agrees with the aims of the administration in battling terrorism, and agrees with the administration that FISA may present undue restraint on conducting terror investigations, he is shocked at the cavalier manner in which the administration ignores the law and the constitutional mandates for Congressional oversight. “We’re one bomb away from getting rid of that obnoxious [FISA] court,” White House aide David Addington tells Goldsmith. Addington, the chief aide to Vice President Dick Cheney, and other Bush officials treat FISA the same way they treated other laws they disdained, Goldsmith later recalls: “They blew through them in secret based on flimsy legal opinions that they guarded closely so no one could question the legal basis for the operations,” he will write in his 2007 book “The Terror Presidency” (see September 9, 2007). [New York Times Magazine, 9/9/2007]
Attorney General John Ashcroft before the 9/11 Commission. [Source: Associated Press]Attorney General John Ashcroft testifies publicly before the 9/11 Commission. Due to information leaked to the public about Ashcroft’s apparently poor performance and lack of interest in terrorism before the attacks (see Spring 2001, July 12, 2001, and September 10, 2001), in the words of author Philip Shenon, “Everybody expect[s] it to be a difficult day for Ashcroft—maybe the day that mark[s] the end of his tenure as George Bush’s attorney general.” Executing a strategy designed in advance by the Justice Department’s leadership, instead of defending his record, Ashcroft goes on the offensive against the Commission. First, Ashcroft withholds from the Commission a copy of his written statement, although all other witnesses provide this. Then, when his testimony starts, he blames the problems dealing with terrorist threats on information-sharing regulations set up by former Deputy Attorney General Jamie Gorelick, now a 9/11 commissioner. [Shenon, 2008, pp. 325-327]
Ashcroft Exaggerates Effect of Gorelick Memo - He comments: “The single greatest structural cause for September 11 was the ‘wall’ that segregated criminal investigators and intelligence agents. Government erected this ‘wall.’ Government buttressed this ‘wall.’ And before September 11, government was blinded by this ‘wall.’” The wall was a set of procedures that regulated the passage of information from FBI intelligence agents to FBI criminal agents and prosecutors to ensure that information obtained using warrants under the Foreign Intelligence Surveillance Act (FISA) would not be thrown out from criminal cases (see July 19, 1995). Ashcroft says that the wall impeded the investigation of Zacarias Moussaoui and that a “warrant was rejected because FBI officials feared breaching the ‘wall.’” (Note: two applications to search Moussaoui’s belongings were prepared. The first was not submitted because it was thought to be “shaky” (see August 21, 2001). The second warrant application was prepared as a part of an intelligence investigation under the Foreign Intelligence Surveillance Act, so it was not affected by the “wall” (see August 28, 2001)). According to Ashcroft, the wall also impeded the search for hijackers Khalid Almihdhar and Nawaf Alhazmi because criminal investigators were not allowed to join in. However, the 9/11 Commission will find that they could legally have helped, but were prevented from doing so by FBI headquarters (see August 29, 2001). Ashcroft asserts that 9/11 commissioner Jamie Gorelick was responsible for the wall. He cites a document he just declassified that had been written by Gorelick to deal with the two 1993 World Trade Center bombing cases (see March 4, 1995). That document becomes known as the “wall memo.” However, this memo only governed the two WTC cases; all other cases were governed by a different, but similar memo written by Attorney General Janet Reno a few months later (see July 19, 1995). [9/11 Commission, 4/13/2004]
Commission's Response - 9/11 Commission Chairman Thomas Kean and Vice Chairman Lee Hamilton will say that the “attorney general’s claim was overstated,” and that the two 1995 memos only codified a set of procedures that already existed (see Early 1980s). During questioning, Republican 9/11 commissioner Slade Gorton points out that Ashcroft’s deputy reaffirmed the procedures in an August 2001 memo that stated, “The 1995 procedures remain in effect today” (see August 6, 2001). [Kean and Hamilton, 2006, pp. 194-6] Ashcroft’s accusation against Gorelick produces an immediate public response. Commissioner Bob Kerrey (D-NE) will say: “Ashcroft was still speaking, and the e-mails were already coming in. The e-mails said things like, ‘You traitor, you should be ashamed of yourself for having somebody like Gorelick on the 9/11 Commission.’ I could see that this was a setup.” [Shenon, 2008, pp. 329]
Falsely Claims No Clinton Program to Kill Bin Laden - Ashcroft also claims there was no program to kill Osama bin Laden before 9/11, saying, “Let me be clear: my thorough review revealed no covert action program to kill bin Laden.” However, the 9/11 Commission has already found a memorandum of notification signed by President Clinton in 1998 after the African embassy bombings that allowed CIA assets to kill bin Laden, and two commissioners, Fred Fielding and Richard Ben-Veniste, point this out to Ashcroft. [9/11 Commission, 4/13/2004; 9/11 Commission, 7/24/2004, pp. 132, 485]
Attack Brings Commission Together - Paradoxically, the effect of Ashcroft’s attack is to bring the Commission—made up of five Democrats and five Republicans—together. Shenon will comment, “The Republicans were just as angry as the Democrats over what Ashcroft had done, maybe angrier.” Commissioner Slade Gorton (R-WA) will add, “There was universal outrage on the part of all 10 people.” [Shenon, 2008, pp. 332]
Entity Tags: Thomas Kean, Zacarias Moussaoui, Slade Gorton, Philip Shenon, Lee Hamilton, Khalid Almihdhar, 9/11 Commission, Bob Kerrey, Foreign Intelligence Surveillance Act, Fred F. Fielding, John Ashcroft, Nawaf Alhazmi, Richard Ben-Veniste
Timeline Tags: Complete 911 Timeline, 9/11 Timeline
9/11 Commissioner Jamie Gorelick is attacked for her role in extending the ‘wall’. [Source: Associated Press / Charles Dharapak]Attorney General John Ashcroft’s testimony before the 9/11 Commission (see April 13, 2004) sparks a wave of attacks against 9/11 Commissioner Jamie Gorelick, who was Deputy Attorney General during the Clinton administration. In 1995 Gorelick played a leading role in extending the “wall,” a set of procedures that regulated the passage of information from FBI intelligence agents to FBI criminal agents and prosecutors (see March 4, 1995 and July 19, 1995). Ashcroft calls the wall “the single greatest structural cause for September 11.” The attacks include:
On April 14 James Sensenbrenner, chairman of the House Judiciary Committee, calls on Gorelick to resign because of her “crippling conflict of interest.” He says “the public cannot help but ask legitimate questions about her motives” and argues that the commission will be “fatally damaged” if she continues. Other Republican congresspersons repeat this call;
On April 16 House Majority Leader Tom Delay writes to Commission Chairman Tom Kean saying Gorelick has a conflict of interest and accusing the commission of “partisan mudslinging, circus-atmosphere pyrotechnics, and gotcha-style questioning,” as well as undermining the war effort and endangering the troops;
Criticism of Gorelick also appears in several media publications, including the New York Times, New York Post, National Review, Washington Times, and Wall Street Journal. For example, an op-ed piece published in the New York Times by former terrorism commissioners Juliette Kayyem and Wayne Downing says the commissioners are talking too much and should “shut up.” [National Review, 4/13/2004; National Review, 4/19/2004; Kean and Hamilton, 2006, pp. 200-203]
On April 22 Senator Christopher Boyd and ten other Republican senators write to the commission calling on Gorelick to testify in public;
On April 26 Congressman Lamar Smith and 74 other Republicans write to Gorelick demanding answers to five questions about her time as deputy attorney general;
On April 28 the Justice Department declassifies other memos signed by Gorelick;
In addition to hate mail, Gorelick receives a bomb threat, requiring a bomb disposal squad to search her home.
Commission Chairmen Tom Kean and Lee Hamilton will call this an “onslaught” and say her critics used the wall “as a tool to bludgeon Jamie Gorelick, implicate the Clinton administration, and undermine the credibility of the commission before we had even issued our report.” Gorelick offers to resign, but the other commissioners support her and she writes a piece for the Washington Post defending herself. [Washington Post, 4/18/2004; Kean and Hamilton, 2006, pp. 200-205] When the commission meets President Bush and Vice President Cheney at the end of the month (see April 29, 2004), Bush tells Kean and Hamilton he does not approve of memos being declassified and posted on the Justice Department’s website. At this point, the commissioners realize “the controversy over Jamie Gorelick’s service on the commission was largely behind us.” That afternoon, the White House publicly expresses the president’s disappointment over the memos and the effort to discredit Gorelick loses momentum. [Kean and Hamilton, 2006, pp. 208, 210]
Entity Tags: Lee Hamilton, Wayne Downing, Lamar Smith, Thomas Kean, Juliette Kayyem, Jamie Gorelick, James Sensenbrenner, Andrew McCarthy, John Ashcroft, Christopher Boyd, George W. Bush, Foreign Intelligence Surveillance Act, Tom DeLay
Timeline Tags: Complete 911 Timeline, 9/11 Timeline
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]
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).
Jonathan Alter. [Source: Publicity photo via Greater Talent Network]Reporter and political pundit Jonathan Alter writes that President Bush’s attempt to kill the New York Times domestic wiretapping story (see December 15, 2005 and December 6, 2005), which the Times delayed for over a year at the White House’s request, is not an attempt to protect national security, as Bush will say in his response to the article (see December 17, 2005), but “because he knew that it would reveal him as a law-breaker.” Alter continues, “He insists he had ‘legal authority derived from the Constitution and Congressional resolution authorizing force.’ But the Constitution explicitly requires the president to obey the law. And the post-9/11 congressional resolution authorizing ‘all necessary force’ in fighting terrorism was made in clear reference to military intervention. It did not scrap the Constitution and allow the president to do whatever he pleased in any area in the name of fighting terrorism.” Alter is puzzled that Bush felt the need for the program when the 1978 Foreign Intelligence Surveillance Act (see 1978) “allows the government to eavesdrop on its own, then retroactively justify it to the court, essentially obtaining a warrant after the fact.” Alter says that only four of “tens of thousands” of FISA requests have ever been rejected, and, “There was no indication the existing system was slow—as the president seemed to claim in his press conference—or in any way required extra-constitutional action.” He concludes: “[Bush] knew publication would cause him great embarrassment and trouble for the rest of his presidency. It was for that reason—and less out of genuine concern about national security—that George W. Bush tried so hard to kill the New York Times story. …We’re seeing clearly now that Bush thought 9/11 gave him license to act like a dictator, or in his own mind, no doubt, like Abraham Lincoln during the Civil War.” [Newsweek, 12/21/2005]
Former Senate Majority Leader Tom Daschle (D-SD) writes that Congress explicitly rejected several attempts by the Bush administration to provide him with war-making authority and the authority to wiretap and monitor US citizens “in the United States” when it approved the September 18, 2001 authorization to use military force (AUMF) against terrorists (see September 14-18, 2001). Instead, the Bush administration merely usurped that authority and launched—or expanded (see Spring 2001)—its warrantless wiretapping program, conducted by the NSA. Since then, the Bush administration and the Justice Department have both repeatedly asserted that the AUMF gave them the right to conduct the wiretapping program, an assertion that Daschle says is flatly wrong. On December 21, the Justice Department admitted in a letter that the October 2001 presidential order authorizing warrantless eavesdropping on US citizens did not comply with “the ‘procedures’ of” the law that has regulated domestic espionage since 1978, known as the Foreign Intelligence Surveillance Act (FISA). FISA established a secret intelligence court and made it a criminal offense to conduct electronic surveillance without a warrant from that court, “except as authorized by statute.” However, the letter, signed by Assistant Attorney General William Moschella, argues that the AUMF gave the administration the authority to conduct the program. [Washington Post, 12/22/2005] The letter continues the argument that Congress gave President Bush the implict authority to create an exception to FISA’s warrant requirements, though the AUMF resolution did not mention surveillance and made no reference to the president’s intelligence-gathering authority. The Bush administration kept the program secret until it was revealed by the New York Times on December 15, 2005. Moschella argues that secret intelligence-gathering, even against US citizens, is “a fundamental incident to the use of military force” and that its absence from the resolution “cannot be read to exclude this long-recognized and essential authority to conduct communications intelligence targeted at the enemy.” Such eavesdropping, he argued, must by necessity include conversations in which one party is in the United States. [William Moschella, 12/22/2005 ] Daschle, one of the primary authors of the resolution, says that Moschella and the Bush administration are wrong in their assertions: “I did not and never would have supported giving authority to the president for such wiretaps. I am also confident that the 98 senators who voted in favor of authorization of force against al-Qaeda did not believe that they were also voting for warrantless domestic surveillance” (see September 12-18, 2001). [Washington Post, 12/23/2005]
Entity Tags: National Security Agency, Bush administration (43), Authorization to Use Military Force (AUMF), Al-Qaeda, Foreign Intelligence Surveillance Act, George W. Bush, Osama bin Laden, US Department of Justice, Foreign Intelligence Surveillance Court, New York Times, William E. Moschella, Richard (“Dick”) Cheney, Tom Daschle
Timeline Tags: Civil Liberties
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
Al Gore speaks to the Liberty Coalition and the American Constitution Society. [Source: American Constitution Society]Former Vice President Al Gore delivers a long, impassioned speech on civil liberties and constitutional issues to the Liberty Coalition and the American Constitution Society. Gore joins former Representative Bob Barr (R-GA) in speaking out against the Bush administration’s infringement on American civil liberties. Gore and Barr have what Gore calls a “shared concern that America’s Constitution is in grave danger.”
Patently Illegal Domestic Surveillance - Gore’s speech is sparked by recent revelations that the NSA has been spying on American citizens for years (see December 15, 2005), and in response, the administration “has brazenly declared that it has the unilateral right to continue without regard to the established law enacted by Congress precisely to prevent such abuses.” As the Foreign Intelligence and Surveillance Act (FISA) is perfectly sufficient, there was no need for the Bush administration to circumvent that law. “At present, we still have much to learn about the NSA’s domestic surveillance,” Gore says. “What we do know about this pervasive wiretapping virtually compels the conclusion that the president of the United States has been breaking the law, repeatedly and insistently. A president who breaks the law is a threat to the very structure of our government.” Gore says he agrees with Bush on the threat of terrorism, but disagrees that the US has to “break the law or sacrifice our system of government” to protect itself, as this will make it “weaker and more vulnerable.” In addition, he says, “once violated, the rule of law is itself in danger,” and, “Unless stopped, lawlessness grows, the greater the power of the executive grows, the more difficult it becomes for the other branches to perform their constitutional roles.” It is patently obvious that the Bush administration has broken the law in conducting and approving its warrantless wiretaps, Gore says, regardless of what arguments and defenses administration officials may put forth (see September 12-18, 2001 and Early 2002). So, Gore says, “When President Bush failed to convince Congress to give him the power he wanted when this measure was passed, he secretly assumed that power anyway, as if Congressional authorization was a useless bother. But as [Supreme Court] Justice [Felix] Frankfurter once wrote, ‘To find authority so explicitly withheld 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 the president and the Congress.‘… And the disrespect embodied in these apparent mass violations of the law is part of a larger pattern of seeming indifference to the Constitution that is deeply troubling to millions of Americans in both political parties.”
Illegal Seizure of American Citizens - Gore notes that Bush has declared that he has “a heretofore unrecognized inherent power to seize and imprison any American citizen that he alone determines to be a threat to our nation, and that notwithstanding his American citizenship that person in prison has no right to talk with a lawyer, even if he wants to argue that the president or his appointees have made a mistake and imprisoned the wrong person” (see November 13, 2001 and March 5, 2002). He says: “The president claims that he can imprison that American citizen—any American citizen he chooses—indefinitely, for the rest of his life, without even an arrest warrant, without notifying them of what charges have been filed against them, without even informing their families that they have been imprisoned.” Gore then says: “No such right exists in the America that you and I know and love. It is foreign to our Constitution. It must be rejected.”
Specious Authority to Torture - Neither does the executive branch have the right to authorize torture, Gore says. After citing horrific examples from Guantanamo and Abu Ghraib, he calls it “a shameful exercise of power that overturns a set of principles that you’re nation has observed since General George Washington first enunciated them during our Revolutionary War. They have been observed by every president since then until now. They violate the Geneva Conventions, the International Convention Against Torture, and our own laws against torture.”
Unlawful Kidnapping of Foreign Citizens - The president has no right to have foreign citizens kidnapped from their homes and brought to the US for interrogation and imprisonment, or worse, delivered to other nations for harsh interrogations and torture, says Gore. The closest allies of the US have been shocked by such claims.
No Restraint in the Constitution? - Gore asks whether the president really has such powers under the Constitution and, if so, “are there any acts that can on their face be prohibited?” He quotes the dean of Yale’s law school, Harold Koh, who said, “If the president has commander in chief power to commit torture, he has the power to commit genocide, to sanction slavery, to promote apartheid, to license summary execution.” Gore is “deeply troubl[ed]” that “our normal American safeguards have thus far failed to contain this unprecedented expansion of executive power.” He cites the numerous usage of “signing statements” by Bush that signal his intent “not to comply” with particular legislation (see December 30, 2005). When the Supreme Court struck down Bush’s indefinite detention of “enemy combatants” (see June 28, 2004), “the president then engaged in legal maneuvers designed to prevent the court from providing any meaningful content to the rights of the citizens affected.”
Historical Cycles - Since the founding of America, Gore says, the country has abrogated its citizens’ rights in one circumstance or another, and cites numerous examples. But those abrogations were always rectified to some degree in a repeated cycle of what he calls “excess and regret.” Gore is worried that the country may not be in such a cycle now. Instead, he says, the US may be on a path to permanent, state-sanctioned authoritarianism, with the constitutional safeguards American citizens have come to expect eroded and undermined to the point of irretrievability. Gore specifically cites the administration’s support for the so-called “unitary executive” theory of government, which he says “ought to be more accurately described as the unilateral executive.” That theory “threatens to expand the president’s powers until the contours of the Constitution that the framers actually gave us become obliterated beyond all recognition.”
Stark Authoritarianism - Why are Bush and his top officials doing this? Gore says that “[t]he common denominator seems to be based on an instinct to intimidate and control. The same pattern has characterized the effort to silence dissenting views within the executive branch, to censor information that may be inconsistent with its stated ideological goals, and to demand conformity from all executive branch employees.” Gore continues: “Intellectually, it is possible to carry on this process for an indefinite time. The only check on it is that, sooner or later, a false belief bumps up against solid reality, usually on a battlefield. Two thousand two hundred American soldiers have lost their lives as this false belief bumped into a solid reality.”
Gutting Congress - Though serious damage has been done to the judicial branch, Gore acknowledges, “the most serious damage in our constitutional framework has been to the legislative branch. The sharp decline of Congressional power and autonomy in recent years has been almost as shocking as the efforts by the executive to attain this massive expansion of its power.… [T]he legislative branch of government as a whole, under its current leadership, now operates as if it were entirely subservient to the executive branch.… [T]he whole process is largely controlled by the incumbent president and his political organization” (see February 1, 2004). Gore says each member of Congress, Republican and Democrat, must “uphold your oath of office and defend the Constitution. Stop going along to get along. Start acting like the independent and co-equal branch of American government that you are supposed to be under the Constitution of our country.”
We the People - The American people still, for the moment, have the power to enforce the Constitution, Gore says, quoting former President Dwight Eisenhower, who said, “Any who act as if freedom’s defenses are to be found in suppression and suspicion and fear confess a doctrine that is alien to America.” Gore continues: “Fear drives out reason. Fear suppresses the politics of discourse and opens the door to the politics of destruction.… The founders of our country faced dire threats. If they failed in their endeavors, they would have been hung as traitors. The very existence of our country was at risk. Yet in the teeth of those dangers, they insisted on establishing the full Bill of Rights. Is our Congress today in more danger than were their predecessors when the British army was marching on the Capitol? Is the world more dangerous than when we faced an ideological enemy with tens of thousands of nuclear missiles ready to be launched on a moment’s notice to completely annihilate the country?” [Congressional Quarterly, 1/16/2006; American Constitutional Society, 1/16/2006]
Entity Tags: National Security Agency, Liberty Coalition, US Supreme Court, Harold Koh, George W. Bush, Albert Arnold (“Al”) Gore, Jr., American Constitution Society, Bush administration (43), Convention Against Torture, Felix Frankfurter, George Washington, Geneva Conventions, Foreign Intelligence Surveillance Act, Robert “Bob” Barr
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 ; 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
In a public speech, former National Security Agency chief Michael Hayden claims that everything the NSA does is with authorization from the White House, specifically the warrantless wiretapping program that spies on US citizens (see Early 2002). “I didn’t craft the authorization,” he says. “I am responding to a lawful order.” Hayden claims that while the NSA continues to use court warrants from the Foreign Intelligence Surveillance Court (FISC), technological advances and terrorist threats have made the law that created and supports FISC, the Foreign Intelligence Surveillance Act of 1978 (see 1978), obsolete. Therefore, the NSA has carried out domestic surveillance operations with or without FISC warrants. Hayden says the warrantless surveillance operations are “operationally more relevant, operationally more effective” than anything FISA can handle. Hayden repeatedly denies, in the face of reams of evidence collected by journalists and others to the contrary, that the NSA is spying on domestic antiwar groups and religious organizations like the Quakers who publicly advocate nonviolence and peace. [Michael Hayden, 1/23/2006]
In his State of the Union address, President Bush insists that his authority to wiretap Americans’ phones without warrants (see December 15, 2005 and December 18, 2005) is validated by previous administrations’ actions, saying that “previous presidents have used the same constitutional authority I have.” He fails to note that those presidents authorized warrantless wiretaps before court orders were required for such actions (see June 19, 1972 and 1973). Since the Foreign Intelligence Surveillance Act passed (see 1978), no president except Bush has ever defied the law. Law professor David Cole calls Bush’s assertion of authority “either intentionally misleading or downright false.” Fellow law professor Richard Epstein predicts that the Supreme Court will strike down any such assertions, if it ever addresses the issue. “I find every bit of this legal argument disingenuous,” he says. Even many conservatives refuse to support Bush, with columnist George Will calling his arguments “risible” and a “monarchical doctrine” that is “refuted by the plain text of the Constitution.” David Keene, the chairman of the American Conservative Union, says the legal powers claimed by Bush and his officials can be used to justify anything: “Their argument is extremely dangerous.… The American system was set up on the assumption that you can’t rely on the good will of people with power.” Conservative activist Grover Norquist says flatly, “There is no excuse for violating the rule of law.” And former Justice Department official Bruce Fein says Bush and his officials have “a view that would cause the Founding Fathers to weep. The real conservatives are the ones who treasure the original understanding of the Constitution, and clearly this is inconsistent with the separation of powers.” Even former George H. W. Bush official Brent Scowcroft says that Bush’s interpretation of the Constitution is “fundamentally in error.” [Savage, 2007, pp. 203-204]
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]
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]
In an interview with PBS’s Gwen Ifill, Representative Jane Harman (D-CA), the ranking Democrat on the House Intelligence Committee, says she supports the administration’s warrantless wiretapping program (see Spring 2001), a position that places her at odds with most Congressional Democrats. “Well, I said then and I say now that I support the program,” she tells Ifill. Harman is critical of the insider leaks that led to the public divulgance of the program (see December 15, 2005), saying, “Well, I think the leaks have done a lot of damage, and I deplore the leaks of this critical program.” She goes on to complain that the administration “says it adequately oversees this program,” but “the system of checks and balances that we have… requires that Congress as an independent branch of government pass the laws, fund the programs, and oversee how all that works.” In addition to requesting greater cooperation on oversight with Congress, she adds that “the courts need to be cut back in,” and thinks the “entire program” should be brought under the Foreign Intelligence Surveillance Act. [PBS, 2/8/2006] Four days later, Harman reiterates her position on NBC’s Meet the Press. She tells moderator Tim Russert, “If the press was part of the process of delivering classified information, there have to be some limits on press immunity.” Russert asks, “But if [the NSA leak] came from a whistleblower, should the New York Times reporter be prosecuted?” Harman answers: “Well, it’s not clear it was a whistleblower. You have to prove that first. If it’s protected by the whistleblower statute, then it’s protected.… By the way, I deplore that leak. This is a very valuable foreign [intelligence] collection program. I think it is tragic that a lot of our capabilities are now [spread] across the pages of the newspapers.” [MSNBC, 2/12/2006; NewsMax, 2/12/2006]
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
Bruce Fein, a former deputy attorney general in the Reagan administration, testifies before the Senate Judiciary Committee on the subject of the president’s wartime authority and the illegal wiretapping of American citizens (see December 15, 2005). “This is a defining moment in the constitutional history of the United States,” Fein tells the committee. “The theory invoked by the president to justify eavesdropping by the NSA in contradiction to FISA (see April 30, 1986 and October 23, 2001) would equally justify mail openings, burglaries, torture, or internment camps, all in the name of gathering foreign intelligence. Unless rebuked it will lie around like a loaded weapon, ready to be used by any incumbent who claims an urgent need.” In 2007, author and reporter Charlie Savage will write concerning Fein’s statement: “[A] president had secretly claimed the power to ignore a law, and then he had acted on that power. In so doing, the Bush-Cheney administration unleashed imperial power. Even if they had not personally abused their power, there was no guarantee that future presidents would show the same restraint. Moreover, there was no difference in principle between the warrant law [FISA] and any other law that regulates how the president can carry out his national security responsibilities. By demonstrating that a president can set aside a statute or treaty at will, the administration had set a precedent that future presidents, liberal and conservative alike, would be able to cite when they, too, wanted to violate a legal restriction on their power.” [Savage, 2007, pp. 133-134]
President Bush signs the USA Patriot Improvement and Reauthorization Act of 2005 into law. The bill, which extends and modifies the original USA Patriot Act (see October 26, 2001), was driven through Congress primarily by the Republican majorities in both Houses. However, Senator Dianne Feinstein (D-CA) cosponsored the Senate bill, numerous Democrats in both Houses voted with the Republicans in favor of the bill, and the final bill sailed through the Senate by an 89-10 vote on March 2. [GovTrack, 3/9/2006; Library of Congress, 3/9/2006] In the signing ceremony, Bush calls the Reauthorization Act “a really important piece of legislation… that’s vital to win the war on terror and to protect the American people.” He repeatedly evokes the 9/11 attacks as a reason why the new law is needed. [Government Printing Office, 3/9/2006]
Provisions for Oversight Added - One of the reasons why the reauthorization bill received such support from Congressional moderates on both sides of the aisle is because Congress added numerous provisions for judicial and Congressional oversight of how government and law enforcement agencies conduct investigations, especially against US citizens. Representative Butch Otter (R-ID) said in 2004 that Congress came “a long way in two years, and we’ve really brought an awareness to the Patriot Act and its overreaches that we gave to law enforcement.” He adds, “We’ve also quieted any idea of Patriot II, even though they snuck some of Patriot II in on the intelligence bill” (see February 7, 2003). [Associated Press, 1/23/2004]
Opposition From Both Sides - Liberal and conservative organizations joined together in unprecedented cooperation to oppose several key provisions of the original reauthorization and expansion of the Patriot Act, including easing of restrictions on government and law enforcement agencies in obtaining financial records of individuals and businesses, “sneak-and-peek” searches without court warrants or the target’s knowledge, and its “overbroad” definition of the term “terrorist.” Additionally, lawmakers in Congress insisted on expiration dates for the various surveillance and wiretapping methodologies employed by the FBI and other law enforcement agencies (see Early 2002). [Associated Press, 5/23/2005] The final bill mandates that anyone subpoenaed for information regarding terrorist investigations has the right to challenge the requirement that they not reveal anything about the subpoena, those recipients will not be required to tell the FBI the name of their lawyer, and libraries that are not Internet service providers will not be subject to demands from “national security letters” for information about their patrons. Many of the bill’s provisions will expire in four years. [Christian Science Monitor, 3/3/2006]
Reauthorizing Original Provisions - The bill does reauthorize many expiring provisions of the original Patriot Act, including one that allows federal officials to obtain “tangible items,” such as business records from libraries and bookstores, in connection with foreign intelligence and international terrorism investigations. Port security provisions are strengthened, and restrictions on the sale of over-the-counter cold and allergy medicine that can be used in the illegal manufacture of methamphetamine are imposed, forcing individuals to register their purchases of such medicines and limiting the amounts they can buy. [CBS News, 3/9/2006]
Bush Signing Statement Says He Will Ignore Oversight Mandates - But when he signs the bill into law, Bush also issues a signing statement that says he has no intention of obeying mandates that enjoin the White House and the Justice Department to inform Congress about how the FBI is using its new powers under the bill. Bush writes that he is not bound to tell Congress how the new Patriot Act powers are being used, and in spite of what the law requires, he can and will withhold information if he decides that such disclosure may “impair foreign relations, national security, the deliberative process of the executive, or the performance of the executive’s constitutional duties.” [Statement on Signing the USA PATRIOT Improvement and Reauthorization Act, 3/9/2006; Boston Globe, 3/24/2006] Senator Patrick Leahy (D-VT) says that Bush’s assertion that he can ignore provisions of the law as he pleases, under the so-called “unitary executive” theory, are “nothing short of a radical effort to manipulate the constitutional separation of powers and evade accountability and responsibility for following the law.” Law professor David Golove says the statement is illustrative of the Bush administration’s “mind-bogglingly expansive conception” of executive power, and its low regard for legislative power. [Boston Globe, 3/24/2006] Author and legal expert Jennifer Van Bergen warns of Bush using this signing statement to avoid accountability about the NSA’s warrantless wiretapping program, writing: “[I]t is becoming clearer every day that Bush has no qualms about violating either international laws and obligations or domestic laws. The recent revelations about the secret NSA domestic surveillance program revealed Bush flagrantly violating the Foreign Intelligence Surveillance Act which was specifically enacted to prevent unchecked executive branch surveillance. … His signing statements, thus, are nothing short of an attempt to change the very face of our government and our country.” [Institute for Public Accuracy, 3/27/2006]
Request to Rescind Signing Statement - In late March, Democratic House members Jane Harman and John Conyers will write to Attorney General Alberto Gonzales requesting that the administration rescind the signing statement, writing: “As you know, ‘signing statements’ do not have the force of law. Legislation passed by both Houses and signed by the president does. As Article 1, Section 7, of the Constitution states: ‘Every bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States; If he approve he shall sign it, but if not he shall return it.’” Bush and Gonzales will ignore the request. [US House of Representatives, 3/29/2006]
Entity Tags: US Department of Justice, Domestic Security Enhancement Act of 2003, David Golove, Alberto R. Gonzales, Butch Otter, Dianne Feinstein, Patrick J. Leahy, USA Patriot Act, John Conyers, Federal Bureau of Investigation, National Security Agency, Foreign Intelligence Surveillance Act, Jennifer Van Bergen, Jane Harman, George W. Bush
Timeline Tags: Civil Liberties
Judges Harold Baker, Allan Kornblum, and Stanley Brotman. [Source: New York Times]Five former judges on the secretive Foreign Intelligence Surveillance Court (FISC) speak out against the continued use of warrantless wiretaps against US citizens, and urge that Congress give the court a formal role in overseeing the program. The five judges include James Robertson, who resigned from the court in apparent protest over the domestic eavesdropping program (see December 21, 2005). Four of the five judges speak at hearings by the Senate Judiciary Committee; Robertson is absent, but parts of a letter by Robertson are entered into testimony. The judges tell the senators that they are skeptical at best about Bush administration claims of inherent presidential authority to order surveillance of US citizens without court approval, and suggest that any evidence obtained through the program might taint criminal prosecutions growing out of the wiretaps. Former FISC judge Harold Baker says Bush is bound by the law “like everybody else.” If a law such as the Foreign Intelligence Surveillance Act (FISA) is passed by Congress and considered constitutional by the courts, then, Baker says, “the president ignores it at the president’s peril.” The other judges, whose identities as FISC judges has until recently been kept from the public, include Stanley Brotman, John Keenan, and William Stafford. Magistrate judge Allan Kornblum, who supervised Justice Department wiretap applications for years, and who also testifies before the committee, calls the public discussion of the FISA court “unprecedented.” Robertson’s statements, from a March 23 letter to committee chairman Arlen Specter, are perhaps the most telling of anything disclosed in the hearings. Robertson agrees with Specter’s proposal “to give approval authority over the administration’s electronic surveillance program” to the court; that proposal is opposed by the Bush administration, and White House-favored legislation by Senator Mike DeWine (R-OH) would not only exempt the program from FISA, but would give President Bush the authority to order wiretaps for 45 days without any Congressional or judicial oversight or authorization. Robertson strongly disagrees with the Bush/DeWine position. “Seeking judicial approval for government activities that implicate constitutional protections is, of course, the American way,” he wrote. Robertson also wrote that the FISA court should not conduct a “general review” of the surveillance operation, as Specter has also proposed. Instead, he wrote that the court should rule on individual warrant applications for eavesdropping under the program lasting 45 or 90 days. FISC is “best situated” for such matters because of the secretive nature of the court. “Its judges are independent, appropriately cleared, experienced in intelligence matters, and have a perfect security record,” he notes. None of the judges directly answer questions about whether the program is legal or not. Baker’s response is emblematic of the judges’ reticence on that issue: he says he feels more comfortable talking about legislative changes to strengthen FISA. “Whether something’s legal or illegal goes beyond that,” he says, “and that’s why I’m shying away from answering that.” [New York Times, 3/29/2006]
Entity Tags: US Department of Justice, Stanley Brotman, Senate Judiciary Committee, William Stafford, Mike DeWine, James Robertson, Bush administration (43), Arlen Specter, Allan Kornblum, John Keenan, George W. Bush, Foreign Intelligence Surveillance Court, Harold Baker, Foreign Intelligence Surveillance Act
Timeline Tags: Civil Liberties
John Dean. [Source: Truthdig.com]Nixon White House counsel and Watergate veteran John Dean says that President Bush’s domestic spying program is worse than anything his former boss, Richard Nixon, did while he occupied the Oval Office. Testifying before the Senate Judiciary Committee during a hearing on Senator Russ Feingold’s (D-WI) motion to censure Bush over the program (see March 12, 2006 and After), Dean says Bush “needs to be told he cannot simply ignore a law with no consequences.” Republican committee leaders grudgingly agreed to hold the hearing over the censure motion, but dismiss the motion as little more than an election-year stunt designed by Democrats to, in committee member Orrin Hatch’s (R-UT) words, “weaken the commander in chief” in a time of war. Feingold’s measure, if passed, would condemn Bush’s “unlawful authorization of wiretaps of Americans within the United States without obtaining the court orders required” by the Foreign Intelligence Surveillance Act (FISA). The measure has little chance of passing, with even most Senate Democrats refusing to get behind the resolution. “To me, this is not really and should not be a partisan question,” Dean says. “I think it’s a question of institutional pride of this body, of the Congress of the United States.… [T]he president needs to be reminded that separation of powers does not mean an isolation of powers.” Dean has previously suggested, in his book Worse Than Watergate and in op-eds, that Bush may deserve impeachment over the surveillance program. [Associated Press, 3/31/2006]
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
Ira Winkler. [Source: Canadian Broadcasting Corporation]Former NSA analyst Ira Winkler, author of the 2005 book Spies Among Us, writes of his disgust with the NSA’s domestic surveillance program, saying that because it is warrantless, it is illegal. He argues the program violates both the NSA’s rules of engagement and its long-term missions.
Warrantless Surveillance is Illegal - Securing warrants under the Foreign Intelligence Surveillance Act is easily done, Winkler says: “FISA blocks no legitimate acquisition of knowledge. It doesn’t even slow the process down.” The problem, Winkler says, is that the program is so large that securing FISA warrants for every communication the NSA monitors “would [take] an army of lawyers to get all the warrants they’d need to be in compliance with FISA.” However: “[T]he law is the law. No president has the right to pick and choose which laws they find convenient to follow.” President Bush could have asked Congress to amend the FISA laws: “After all, after 9/11 Congress passed a wide variety of laws (without, for the most part, reading them) that were supposed to prevent another attack. They could have easily slipped something modifying FISA into all of that legislation. They did not, though recent revelations about this administration’s use of signing statements may indicate that they simply didn’t want to raise the possibility of questions.” Merely ignoring FISA “is illegal,” Winkler writes.
Weakens National Security - Another issue is national security. Not obtaining warrants actually weakens natural security, he argues, “since the process of obtaining the warrants has an effect on quality control.” For example: “To date, FBI agents have been sent out to do thousands of investigations based on this warrantless wiretapping. None of those investigations turned up a legitimate lead. I have spoken to about a dozen agents, and they all roll their eyes and indicate disgust with the man-years of wasted effort being put into physically examining NSA ‘leads.’ This scattershot attempt at data mining drags FBI agents away from real investigations, while destroying the NSA’s credibility in the eyes of law enforcement and the public in general. That loss of credibility makes the NSA the agency that cried wolf—and after so many false leads, should they provide something useful, the data will be looked at skeptically and perhaps given lower priority by law enforcement than it would otherwise have been given.” Winkler says the NSA’s claim that it does not retain any personal information is ludicrous. “Frankly, you have to be a complete moron to believe that,” he writes. “It is trivial to narrow down access to a phone number to just a few members of a household, if not in fact to exactly one person.”
Extortion - And the warrantless surveillance is not the only illegal action taken by the government. If the government did threaten one telecom firm, Qwest, for not cooperating (see February 2001), “[t]hat’s extortion—another crime.” Winkler writes that both Congress and the American people must demand answers, or the White House and the NSA will continue to usurp our freedom under the cloak of protecting freedoms.
Arguments For Program are Specious - Winkler says the arguments for the program that he hears are groundless. He hears three main threads:
“I have nothing to worry about so I don’t care if they investigate me.” Winkler points out that plenty of people have been investigated and incarcerated in the US and abroad without doing anything wrong: “I believe that Saddam Hussein would cheerfully agree with the tired allegation that if you did nothing wrong, you shouldn’t mind the government looking at your calls. I think Lenin, Stalin, Hitler and the Chinese government would also agree with that line of thought. Is this the company we consent to keep in the name of safety?”
“[W]e need to do everything we can to protect ourselves.” Protecting ourselves, Winkler argues, means letting law enforcement work to protect US citizens against real, ongoing crimes. The government is “watching for dragons while very real snakes multiply freely in our midst.”
“[T]he NSA isn’t listening to the content of the calls, so there’s no harm.” Aside from the fact that Winkler believes the NSA is lying about not listening to the calls themselves, he says: “[The NSA] doesn’t need to hear your chatter to invade your privacy. By simply tying numbers together—an intelligence discipline of traffic analysis—I assure you I can put together a portrait of your life. I’ll know your friends, your hobbies, where your children go to school, if you’re having an affair, whether you plan to take a trip and even when you’re awake or asleep. Give me a list of whom you’re calling and I can tell most of the critical things I need to know about you.” The NSA is made up of mostly “good and honest people,” but it has “more than its share of bitter, vindictive mid- and senior-level bureaucrats. I would not trust my personal information with these people, since I have personally seen them use internal information against their enemies.” Winkler reminds his readers that the Bush administration deliberately outed CIA agent Valerie Plame Wilson because her husband dared debunk an administration claim about Iraq (see November 20, 2007), and tried to undermine the credibility of former counterterrorism chief Richard Clarke when he spoke out against the administration (see March 24, 2004). The NSA could easily provide the administration with damaging information about other administration enemies.
'Against Everything I Was Taught' - “NSA domestic spying is against everything I was ever taught working at the NSA,” Winkler writes. “I might be more for it if there was any credible evidence that this somehow provides useful information that couldn’t otherwise be had. However, the domestic spying program has gotten so massive that the well-established process of getting a warrant cannot be followed—and quantity most certainly doesn’t translate to quality. Quite the opposite.” The terrorists number in the hundreds, Winkler writes, but “the NSA is collecting data on hundreds of millions of people who are clearly not the enemy. These numbers speak for themselves.” [Computerworld, 5/16/2006]
Entity Tags: Qwest, George W. Bush, Foreign Intelligence Surveillance Act, Federal Bureau of Investigation, Ira Winkler, National Security Agency, Valerie Plame Wilson, Saddam Hussein, Richard A. Clarke, Vladimir Lenin, Josef Stalin
Timeline Tags: Civil Liberties
George Terwilliger, a former deputy attorney general under George H. W. Bush, argues that the current Bush administration’s controversial data mining program (see Late 1999 and After September 11, 2001) is not illegal. Terwilliger tells the conservative National Review, “I think it’s fair to say that the statutes contemplate the transfer of this generic type of data much more on a case-by-case rather than a wholesale basis,” meaning that the law calls for a court order only in cases when the government is making a targeted request for information. But, he adds, “I don’t see anything in the statute that forbids such a wholesale turnover.” Terwilliger’s argument echoes the arguments of the Bush Justice Department, which argues that the data mining program—part of the NSA’s “Stellar Wind” surveillance program (see Spring 2004 and December 15, 2005)—does not technically constitute “electronic surveillance” under the law. Both the Fourth Amendment and the Foreign Intelligence Surveillance Act, as interpreted by the courts, define such actions as “electronic surveillance,” according to a number of legal experts, including law professor Orin Kerr. And, Ars Technica reporter Julian Sanchez notes in 2009, “the Stored Communications Act explicitly makes it a crime to ‘knowingly divulge a record or other information pertaining to a subscriber to or customer of such service… to any governmental entity.’” Sanchez will call Terwilliger’s argument “very strange,” but will note that Terwilliger is the attorney for then-Attorney General Alberto Gonzales and “a prominent defender of the administration’s surveillance policies.” Sanchez will conclude that while the argument “might pass for clever in a high school debate round… [i]t would be deeply unsettling if it [passes] for anything more in the halls of power.” [National Review, 6/5/2006; Ars Technica, 12/16/2008]
Civil liberties lawyer and columnist Glenn Greenwald states that the recent Supreme Court ruling in Hamdan v. Rumsfeld (see June 30, 2006), finding that the Bush administration’s Guantanamo Bay military commissions violate both federal law and the Geneva Conventions, also proves that the NSA’s warrantless wiretapping program is illegal (see December 15, 2005). “To arrive at its decision,” Greenwald writes, “the Court emphatically rejected the administration’s radical theories of executive power, and in doing so, rendered entirely discredited the administration’s only defenses for eavesdropping on Americans without the warrants required by law. Actual compliance with the Court’s ruling, then, compels the administration to immediately cease eavesdropping on Americans in violation of FISA,” the Foreign Intelligence Surveillance Act (see 1978). “If the administration continues these programs now, then they are openly defying the Court and the law with a brazeness and contempt for the rule of law that would be unprecedented even for them.” Greenwald notes that FISA prohibits any surveillance of American citizens without judicial approval and oversight. The Bush administration has already admitted to conducting just such surveillance (see December 17, 2005 and December 21, 2005), and President Bush has even stated his intention to expand the program (see December 19, 2005). The Justice Department and a number of administration officials have attempted to claim the NSA surveillance program is both legal and necessary (see December 19, 2005, December 19, 2005, December 21-22, 2005, and Early 2006); Greenwald writes that the Hamdan decision “decimated” those claims, a conclusion shared by a number of legal experts (see January 9, 2006). Moreover, he writes, there is no remaining excuse for Democratic senators not to endorse Senator Russ Feingold’s resolution to censure Bush for violating FISA (see March 12, 2006 and After). The argument advanced by, among others, Senator Barack Obama (D-IL), that Bush believed he was complying with the law because his lawyers told him he was in compliance, is no longer relevant in light of Hamdan, Greenwald argues. “[T]here is no longer any good faith basis left for violating FISA. Ongoing warrantless eavesdropping can only be ordered by the president with a deliberate intent to break the law. After Hamdan, there are no more excuses left for the president to violate FISA, and there is therefore no more excuse left for Democratic senators to refuse to take a stand with Sen. Feingold against the administration’s lawbreaking.” Bush has two clear choices, Greenwald writes: either to comply with FISA or openly defy the Supreme Court. “If we are a country that continues to operate under the rule of law, compliance with the Supreme Court’s ruling compels the immediate cessation of the president’s warrantless eavesdropping program, as well as what are undoubtedly the other, still-secret programs prohibited by law but which have been justified by these same now-rejected theories of unlimited executive power. Put simply, after Hamdan, there are no more excuses left for the president’s refusal to comply with the law.” [Crooks and Liars, 7/8/2006]
Federal district court judge Anna Diggs Taylor rules that the NSA’s warrantless wiretapping program (see Early 2002) is unconstitutional and orders it ended. She amends her ruling to allow the program to continue while the Justice Department appeals her decision. The decision is a result of a lawsuit filed by the American Civil Liberties Union (ACLU) and other civil liberties groups. Taylor rules that the NSA program violates US citizens’ rights to privacy and free speech, the Constitutional separation of powers among the three branches of government, and the Foreign Intelligence Surveillance Act (see 1978). Taylor writes: “It was never the intent of the framers to give the president such unfettered control, particularly where his actions blatantly disregard the parameters clearly enumerated in the Bill of Rights. There are no hereditary Kings in America and no powers not created by the Constitution. So all ‘inherent powers’ must derive from that Constitution.” [Verdict in ACLU et al v. NSA et al, 8/17/2006 ; Washington Post, 8/18/2006] The program “violates the separation of powers doctrine, the Administrative Procedures Act, the First and Fourth amendments to the United States Constitution, the FISA and Title III,” Taylor writes, and adds, “[T]he president of the United States… has undisputedly violated the Fourth in failing to procure judicial orders.” [CNN, 8/17/2006]
Judge Lets One Portion Stand - Taylor rejects one part of the lawsuit that seeks information about the NSA’s data mining program (see October 2001), accepting the government’s argument that to allow that portion of the case to proceed would reveal state secrets (see March 9, 1953). Other lawsuits challenging the program are still pending. Some legal scholars regard Taylor’s decision as poorly reasoned: national security law specialist Bobby Chesney says: “Regardless of what your position is on the merits of the issue, there’s no question that it’s a poorly reasoned decision. The opinion kind of reads like an outline of possible grounds to strike down the program, without analysis to fill it in.” The White House and its Republican supporters quickly attack Taylor, who was appointed to the bench by then-President Jimmy Carter, as a “liberal judge” who is trying to advance the agenda of Congressional Democrats and “weaken national security.” For instance, Senator Mike DeWine (R-OH) says that halting the program “would hamper our ability to foil terrorist plots.” [Washington Post, 8/18/2006]
Democrats, Civil Libertarians Celebrate Ruling - But Democrats defend the ruling. For instance, Senator John Kerry (D-MA) says the ruling provides a much-needed check on the unfettered power of the Bush White House. “[N]o one is above the law,” says Kerry. [Washington Post, 8/18/2006] Lawyers for some of the other cases against the NSA and the Bush administration laud the decision as giving them vital legal backing for their own court proceedings. “We now have a ruling on the books that upholds what we’ve been saying all along: that this wiretapping program violates the Constitution,” says Kevin Bankston, who represents the Electronic Frontier Foundation (EFF) in its class-action case against AT&T for its role in the NSA’s surveillance program (see January 31, 2006). [Washington Post, 8/18/2006] Legal expert and liberal commentator Glenn Greenwald writes that Taylor’s ruling “does not, of course, prohibit eavesdropping on terrorists; it merely prohibits illegal eavesdropping in violation of FISA. Thus, even under the court’s order, the Bush administration is free to continue to do all the eavesdropping on terrorists it wants to do. It just has to cease doing so using its own secretive parameters, and instead do so with the oversight of the FISA court—just as all administrations have done since 1978, just as the law requires, and just as it did very recently when using surveillance with regard to the [British] terror plot. Eavesdropping on terrorists can continue in full force. But it must comply with the law.” Greenwald writes: “[T]he political significance of this decision cannot be denied. The first federal court ever to rule on the administration’s NSA program has ruled that it violates the constitutional rights of Americans in several respects, and that it violates criminal law. And in so holding, the court eloquently and powerfully rejected the Bush administration’s claims of unchecked executive power in the area of national security.” [Salon, 8/17/2006]
White House Refuses to Comply - The Bush administration refuses to comply with Taylor’s ruling, asserting that the program is indeed legal and a “vital tool” in the “war on terrorism.” It will quickly file an appeal, and law professors on both sides of the issue predict that Taylor’s ruling will be overturned. [Savage, 2007, pp. 206]
Lawsuit Ends with White House 'Compromise' - The lawsuit will end when the White House announces a “compromise” between the wiretapping program and FISC (see January 17, 2007).
Entity Tags: John Kerry, Kevin Bankston, Mike DeWine, US Department of Justice, Peter Hoekstra, Glenn Greenwald, National Security Agency, George W. Bush, James Earl “Jimmy” Carter, Jr., Foreign Intelligence Surveillance Act, Alberto R. Gonzales, American Civil Liberties Union, AT&T, Anna Diggs Taylor, Bush administration (43), Bobby Chesney, Foreign Intelligence Surveillance Court, Electronic Frontier Foundation
Timeline Tags: Civil Liberties
In a second day of testimony (see January 17, 2007), Attorney General Alberto Gonzales tells the Senate Judiciary Committee that the president has always had the inherent authority to bypass or ignore statutory law if he is acting in the interest of national security. Gonzales is referring to a recent Bush administration decision to use a sympathetic FISC judge to sign off on the warrantless wiretapping program (see January 17, 2007). “We commenced down this road five years ago because of a belief that we could not do what we felt was necessary to protect this country under FISA [the Foreign Intelligence Surveillance Act],” Gonzales testifies. “That is why the president relied upon his inherent authority under the Constitution. My own judgment is, the president has shown maturity and wisdom here in this particular decision. He recognizes that there is an inherent reservoir of inherent power that belongs to every president. You use it only when you have to. In this case, we don’t have to [anymore].” Yale law professor Jack Balkin strenuously disagrees. He points to a “remarkable similarity between the administration’s behavior in the Padilla case (see October 9, 2005 and December 21, 2005) and its behavior here.… Once again, the goal is to prevent a court from stating clearly that the president acted illegally and that his theories of executive power are self-serving hokum.” Instead of going to Congress for the authority to conduct a warrantless wiretapping program, Balkin writes that the administration used FISA’s supposed deficiencies “as an excuse to disregard the law, so that it could make claims of unbridled presidential authority to ignore FISA.” [Savage, 2007, pp. 207-208; Jack Balkin, 1/18/2007]
Suzanne Spaulding. [Source: Bipartisan Security Group]Suzanne Spaulding, a national security expert with twenty years of experience in the CIA, on various Congressional oversight committees, and executive director of two separate commissions on terrorism and weapons of mass destruction, testifies before the Senate Judiciary Committee as part of that body’s hearings on the improper use of National Security Letters (NSLs) by the FBI (see October 25, 2005). Spaulding has spoken out before against the NSA’s wiretapping program (see December 25, 2005). She says that the nation’s law enforcement and intelligence agents need “the tools they need to do their job” and “clear guidance on just what it is that we want them to do on our behalf—and how we want them to do it. Clear rules and careful oversight provide essential protections for those on the front lines of our domestic counterterrorism efforts.” However, Spaulding testifies, “it appears both were lacking in the implementation of national security letter authorities.” Spaulding says that Congress should begin a much larger examination of domestic surveillance issues, saying, “The appropriateness of using FISA electronic surveillance to eavesdrop on Americans should be considered in light of other, less intrusive techniques that might be available to establish whether a phone number belongs to a suspected terrorist or the pizza delivery shop. It’s not the ‘all or nothing’ proposition often portrayed in some of the debates.” However, according to recent findings by the Justice Department’s Inspector General, Glenn A. Fine, “there is not sufficient guidance on how to apply that in the NSL context or in conjunction with other available collection techniques.” Therefore, there is a strong “need for a broader examination of domestic intelligence tools.”
Urges Congressional Review - Spaulding urges Congress “to undertake a comprehensive review of all domestic intelligence collection, not just by FBI but also by the other national security agencies engaged in domestic intelligence collection, including the Central Intelligence Agency, the Department of Defense, and the National Security Agency. A Joint Inquiry or Task Force could be established by the Senate leadership, with representation from the most relevant committees (Judiciary, Intelligence, Armed Services, and Homeland Security and Government Affairs), to carefully examine the nature of the threat inside the US and the most effective strategies for countering it. Then Congress, and the American public, can consider whether we have the appropriate institutional and legal framework for implementing those strategies with adequate safeguards and oversight.”
FBI's Expanded Powers Need Review - In addition, she testifies, the FBI’s expanded ability to use NSLs under the Patriot Act must be examined. Currently, the law seems to allow the FBI to use NSLs to obtain evidence pursuant to a FISA warrant, thus allowing “the government to get information about individuals who are not themselves the subject of an investigation”—“parties two or three steps removed from their subjects without determining if these contacts reveal suspicious connections,” Fine reported. Spaulding expands on Fine’s findings: “In fact, the most tenuous of connections would seem to suffice for this NSL standard. For example, it’s not clear why an ‘investigation to protect against international terrorism’ couldn’t justify demanding information about all residents of, say, Dearborn, Michigan [home to a large Arab-American community], so that you could run them through some logarithmic profile to identify ‘suspicious’ individuals. In fact, Congress should examine the facts surrounding the nine NSLs in one investigation that were, according to the IG Report, used to obtain information regarding over 11,000 different phone numbers.”
Data Mining Efforts Should Be Examined - Also, she says, data mining efforts by other law enforcement and intelligence agencies should be carefully examined and addressed: “NSLs should not become a mechanism for gathering vast amounts of information about individuals with no known connection to international terrorism for purposes of data mining.” Spaulding also notes that the Patriot Act allows FBI special agents in charge (SACs) to issue NSLs; instead, she says, only attorneys in the Justice Department’s National Security Division should be able to issue NSLs. Yet another problem Spaulding notes is the FBI’s policy of retention of data gathered on US citizens through NSLs, even when those citizens have no connection to terrorist activities. Spaulding expressed similar concerns in a previous op-ed for the Washington Post (see December 25, 2005). [Senate Judiciary Committee, 4/11/2007]
Eric Lichtblau. [Source: PBS]Jack Goldsmith, the former head of the Justice Department’s Office of Legal Counsel (see October 6, 2003 and June 17, 2004), is subpoenaed to testify in the Justice Department’s investigation of the leaks that resulted in the New York Times’s dramatic disclosure of the NSA domestic wiretapping program (see December 15, 2005). Goldsmith had spoken to one of the two Times reporters, Eric Lichtblau, in October 2004, three months after his resignation from the OLC, but lied to Lichtblau, saying he knew nothing of the program. He immediately alerted his former boss, Deputy Attorney General James Comey, of the interview.
'Stunned' By Subpoena - In his September 2007 book The Terror Presidency, Goldsmith will recall being “stunned” at the subpoena, though the two FBI agents who give him the subpoena—in public—say that they don’t suspect him as the source of the leak. Goldsmith later recalls, “What angered me most about the subpoena I received on that wet day in Cambridge was not the expense of lawyers or a possible perjury trap, but rather the fact that it was Alberto Gonzales’s Justice Department that had issued it. As [the two FBI agents] knew, I had spent hundreds of very difficult hours at OLC, in the face of extraordinary White House resistance, trying to clean up the legal mess that then-White House Counsel Gonzales, David Addington, John Yoo, and others had created in designing the foundations of the Terrorist Surveillance Program. It seemed rich beyond my comprehension for a Gonzales-led Department of Justice to be pursuing me for possibly illegal actions in connection with the Terrorist Surveillance Program….”
Supported Surveillance of Terrorism - Goldsmith will continue, “I was not opposed to the leak investigation itself or to vigorous surveillance of terrorists. I agreed with President Bush that the revelations by [James] Risen and Lichtblau had alerted our enemies, put our citizens at risk, and done ‘great harm’ to the nation. I hoped the FBI would find and punish the leakers, and I had spent many hours trying to help them do so. I also shared many of the White House’s concerns with the Foreign Intelligence Surveillance Act (FISA), the 1978 domestic wiretapping law that required executive officers, on pain of jail, to get a court warrant before wiretapping suspected enemies in the United States. We were at war with terrorists who were armed with disposable cell phones and encrypted e-mails buried in a global multibillion-communications-per-day system. It seemed crazy to require the commander in chief and his subordinates to get a judge’s permission to listen to each communication under a legal regime that was designed before technological revolutions brought us high-speed fiber-optic networks, the public Internet, e-mail, and ten-dollar cell phones. But I deplored the way the White House went about fixing the problem. ‘We’re one bomb away from getting rid of that obnoxious [FISA] court,’ Addington had told me in his typically sarcastic style during a tense White House meeting in February of 2004 (see February 2004). The vice president’s counsel, who was the chief legal architect of the Terrorist Surveillance Program, was singing the White House tune on FISA. He and the vice president had abhorred FISA’s intrusion on presidential power ever since its enactment in 1978. After 9/11 they and other top officials in the administration dealt with FISA the way they dealt with other laws they didn’t like: They blew through them in secret based on flimsy legal opinions that they guarded closely so no one could question the legal basis for the operations. My first experience of this strict control, in fact, had come in a 2003 meeting when Addington angrily denied the NSA inspector general’s request to see a copy of OLC’s legal analysis in support of the Terrorist Surveillance Program. Before I arrived in OLC, not even NSA lawyers were allowed to see the Justice Department’s legal analysis of what NSA was doing.”
Difficult to Justify Legally - Goldsmith will write of the difficulties he found in finding legal justifications for the program. “I first encountered the program in 2003-2004, long after it had been integrated into the post-9/11 counterterrorism architecture. Putting it legally aright at that point, without destroying some of the government’s most important counterterrorism tools, was by far the hardest challenge I faced in government. And the whole ordeal could have been avoided.…In 2004, I and others in the Department of Justice had begun the process of working with the FISA court to give the commander in chief much more flexibility in tracking terrorists. From the beginning the administration could have taken these and other steps to ramp up terrorist surveillance in indisputably lawful ways that would have minimized the likelihood of a devastating national security leak. But only if it had been willing to work with the FISA court or Congress. The White House had found it much easier to go it alone, in secret.” [Slate, 9/10/2007]
Entity Tags: Richard (“Dick”) Cheney, US Department of Justice, New York Times, Terrorist Surveillance Program, John C. Yoo, Office of Legal Counsel (DOJ), James B. Comey Jr., Eric Lichtblau, David S. Addington, Alberto R. Gonzales, James Risen, Jack Goldsmith, Foreign Intelligence Surveillance Court, Foreign Intelligence Surveillance Act, Federal Bureau of Investigation, George W. Bush
Timeline Tags: Civil Liberties
Director of National Intelligence Mike McConnell asks Congress to allow the government to monitor overseas phone calls without warrants. In a letter to the chairman of the House Intelligence Committee, Silvestre Reyes (D-TX), McConnell says that Congress must “act immediately” to change the law, which he says now requires burdensome court orders that hinder the administration’s efforts to combat terrorism. McConnell is advocating a raft of changes in the Foreign Intelligence Surveillance Act (FISA) proposed by the Bush administration; Congress is studying the law pending any possible amendments. McConnell writes that “clarifications are urgently needed” in the law to enable the use of “our capabilities to collect foreign intelligence about foreign targets overseas without requirements imposed by an out-of-date FISA statute,” and says he has “deep concern[s]” about the nation’s ability to counter terrorist threats. At issue are overseas phone calls between two international sources, but which travel through US-based terminals or switches. Peter Hoekstra (R-MI), the ranking Republican on the committee, is also pushing for the changes in FISA, calling the proposals “simple fix[es]” that would expedite the US’s ability to monitor terrorist organizations without adversely affecting US civil liberties. But fellow committee member John Tierney (D-MI) disagrees, saying that FISA “already allows for foreign-to-foreign communications to be intercepted” but that the administration “has chosen to say that it wants a warrant nonetheless.” [Washington Post, 7/28/2007]
Congressional Democrats attempt to short-circuit the Protect America Act (see August 5, 2007) currently under debate. They introduce their own bill, the Improving Foreign Intelligence Surveillance to Defend the Nation and the Constitution Act, that would address the administration’s concerns that the Foreign Intelligence Surveillance Act imposed unwieldy limitations on the NSA’s ability to electronically monitor foreign communications that were transmitted through communications networks inside the US. The Democrats’ bill redefines “electronic surveillance” to allow the NSA to monitor such communications without a FISA warrant if it “reasonably believes” the targets of those communications to be outside the US. This would give the NSA new surveillance powers, so the Democrats’ bill provides for oversight by the FISA Court, audits by the Justice Department’s Inspector General, and restrictions on domestic surveillance. However, the Bush administration does not want the bill to become law. President Bush announces that he opposes the bill, and threatens to hold Congress in session past its August adjournment date until he can get the Protect America Act passed. The Democrats’ bill dies before ever coming up for a full vote in Congress. [US House of Representatives, 8/3/2007 ; Slate, 8/6/2007]
Mitch McConnell. [Source: US Senate]President Bush signs the controversial Protect America Act (PAA) into law. The bill, which drastically modifies the Foreign Intelligence Surveillance Act (FISA) of 1978 (see 1978), was sponsored by two Senate Republicans, Mitch McConnell (R-KY) and Christopher Bond (R-MO), but written by the Bush administration’s intelligence advisers. [US Senate, 8/5/2007; Washington Post, 8/5/2007] It passed both houses of Congress with little debate and no hearings (see August 1-4, 2007). “This more or less legalizes the NSA [domestic surveillance] program,” says Kate Martin, director of the Center for National Security Studies. [New York Times, 8/6/2007] Slate’s Patrick Radden Keefe adds ominously, “The Foreign Intelligence Surveillance Act is now dead, and it’s never coming back.” [Slate, 8/6/2007] The PAA expires in six months, the only real concession Congressional Democrats were able to secure. Though the Bush administration and its allies in Congress insist that the law gives the government “the essential tools it needs” to conduct necessary surveillance of foreign-based terrorists while protecting Americans’ civil liberties, many Democrats and civil liberties organizations say the bill allows the government to wiretap US residents in communication with overseas parties without judiciary or Congressional oversight. Bush calls the bill “a temporary, narrowly focused statute to deal with the most immediate shortcomings in the law” that needs to be expanded and made permanent by subsequent legislation. The administration says that the lack of judiciary oversight in the new law will be adequately covered by “internal bureaucratic controls” at the National Security Agency. [Associated Press, 8/5/2007; Washington Post, 8/5/2007]
Reining in FISA - The PAA allows FISA to return “to its original focus on protecting the rights of Americans, while not acting as an obstacle to conducting foreign intelligence surveillance on foreign targets located overseas.” Before the PAA, the White House says, FISA created unnecessary obstacles in allowing US intelligence to “gain real-time information about the intent of our enemies overseas,” and “diverted scarce resources that would be better spent safeguarding the civil liberties of people in the United States, not foreign terrorists who wish to do us harm.” The PAA no longer requires the government to obtain FISA warrants to monitor “foreign intelligence targets located in foreign countries” who are contacting, or being contacted by, US citizens inside US borders. FISA will continue to review the procedures used by US intelligence officials in monitoring US citizens and foreign contacts by having the attorney general inform the FISA Court of the procedures used by the intelligence community to determine surveillance targets are outside the United States.”
Allows Third Parties to Assist in Surveillance, Grants Immunity - The PAA also allows the director of national intelligence and the attorney general to secure the cooperation of “third parties,” particularly telecommunications firms and phone carriers, to “provide the information, facilities, and assistance necessary to conduct surveillance of foreign intelligence targets located overseas.” It provides these firms with immunity from any civil lawsuits engendered by such cooperation.
Short Term Legislation - The White House says that Congress must pass further legislation to give telecommunications firms permanent and retroactive immunity against civil lawsuits arising from their cooperation with the government’s domestic surveillance program. [White House, 8/6/2006]
Temporary Suspension of the Constitution? - Representative Rush Holt (D-NJ), a member of the House Intelligence Committee, says: “I’m not comfortable suspending the Constitution even temporarily. The countries we detest around the world are the ones that spy on their own people. Usually they say they do it for the sake of public safety and security.” [Washington Post, 8/5/2007]
Entity Tags: Christopher (“Kit”) Bond, National Security Agency, Foreign Intelligence Surveillance Act, George W. Bush, Foreign Intelligence Surveillance Court, Mitch McConnell, Al-Qaeda, Terrorist Surveillance Program, Kate Martin, Patrick Radden Keefe, Rush Holt, Protect America Act
Timeline Tags: Civil Liberties
AT&T attorney Michael Kellogg enters the courtroom. [Source: Wired News]The Ninth Circuit Court of Appeals in San Francisco hears two related cases: one a government appeal to dismiss a case brought against AT&T for its involvement in the National Security Agency (NSA)‘s domestic wiretapping program (see July 20, 2006), and the other a challenge to the government’s authority to wiretap overseas phone calls brought on behalf of a now-defunct Islamic charity, Al Haramain (see February 28, 2006). The AT&T lawsuit is brought by the Electronic Frontier Foundation (see January 31, 2006). Among the onlookers is AT&T whistleblower Mark Klein (see December 15-31, 2005 and July 7, 2009), who has provided key documentation for the EFF lawsuit (see Early January 2006).
Government Lawyer: Court Should Grant 'Utmost Deference' to Bush Administration - Deputy Solicitor General Gregory Garre, arguing on behalf of the US government, tells Judge Harry Pregerson, one of the three judges presiding over the court, that allowing the EFF lawsuit against AT&T to go forward would result in “exceptionally grave harm to national security in the United States,” even though a previous judge has ruled otherwise (see July 20, 2006) and the government itself has admitted that none of the material to be used by EFF is classified as any sort of state secret (see June 23, 2006). Pregerson says that granting such a request would essentially make his court a “rubber stamp” for the government, to which Garre argues that Pregerson should grant the “utmost deference” to the Bush administration. Pregerson retorts: “What does utmost deference mean? Bow to it?” [Wired News, 8/15/2007] Klein will later accuse Garre of using “scare tactics” to attempt to intimidate the judges into finding in favor of AT&T and the government. [Klein, 2009, pp. 79]
Government Refuses to Swear that Domestic Surveillance Program Operates under Warrant - Garre says that the goverment’s domestic surveillance program operates entirely under judicial warrant; he says the government is not willing to sign a sworn affidavit to that effect. Reporter Kevin Poulsen, writing for Wired News, says that Garre’s admission of the government’s reluctance to swear that its domestic surveillance program operates with warrants troubles all three judges. AT&T attorney Michael Kellogg argues that AT&T customers have no proof that their communications are being given over to the government without warrants, and therefore the EFF lawsuit should be dismissed. “The government has said that whatever AT&T is doing with the government is a state secret,” Kellogg says. “As a consequence, no evidence can come in whether the individuals’ communications were ever accepted or whether we played any role in it.” EFF attorney Robert Fram argues that the Foreign Intelligence Surveillance Act (FISA) allows citizens to challenge electronic surveillance by permitting courts to hear government evidence in chambers. He is careful, Poulsen writes, to note that EFF does not want specific information on the NSA’s sources and methods, and says that EFF already has enough evidence to prove its assertion that AT&T compromised its customers’ privacy by colluding with the NSA’s domestic surveillance program.
Government Mocks Whistleblower's AT&T Documentation - Garre mocks Klein’s AT&T documents, saying that all they prove is that the NSA’s secret room in AT&T’s San Francisco facility (see Late 2002-Early 2003, January 2003, and October 2003) “has a leaky air conditioner and some loose cables in the room.” Fram counters that Klein’s documentation is specific and damning. It proves that the NSA housed a splitter cabinet in that secret room that “split” data signals, allowing the NSA to wiretap literally millions of domestic communications without the knowledge of AT&T customers (see February 2003, Fall 2003, Late 2003, and Late 2003). Fram says Klein’s documents, along with other non-classified documentation EFF has presented, proves “the privacy violation on the handover of the Internet traffic at the splitter into the secret room, which room has limited access to NSA-cleared employees. What is not part of our claim is what happens inside that room.” Klein’s documentation proves the collusion between AT&T and the NSA, Fram states, but Judge M. Margaret McKeown questions this conclusion. According to Poulsen, McKeown seems more willing to grant the government the argument that it must protect “state secrets” than Pregerson.
Government Argues for Dismissal of Al Haramain Case - As in the AT&T portion of the appeal hearing, the government, represented by Assistant US Attorney General Thomas Brody, argues for the Al Haramain lawsuit’s dismissal, saying, “The state secrets privilege requires dismissal of this case.” Even the determination as to whether Al Haramain was spied upon, he argues, “is itself a state secret.” The Top Secret government document that Al Haramain is using as the foundation of its case is too secret to be used in court, Brody argues, even though the government itself accidentally provided the charity with the document. Even the plaintiff’s memories of the document constitute “state secrets” and should be disallowed, Brody continues. “This document is totally non-redactable and non-segregable and cannot even be meaningfully described,” he says. A disconcerted Judge McKeown says, “I feel like I’m in Alice and Wonderland.” Brody concludes that it is possible the Al Haramain attorneys “think or believe or claim they were surveilled. It’s entirely possible that everything they think they know is entirely false.” [Wired News, 8/15/2007]
No Rulings Issued - The appeals court declines to rule on either case at this time. Klein will later write, “It was clear to everyone that this panel would, if they ever issued a ruling, deny the ‘state secrets’ claim and give the green light for the EFF lawsuit to go forward.” [Klein, 2009, pp. 79-81] Wired News’s Ryan Singel writes that the panel seems far more sympathetic to the EFF case than the Al Haramain case. The judges seem dismayed that the government fails to prove that no domestic surveillance program actually exists in the EFF matter. However, they seem far more willing to listen to the government’s case in the Al Haramain matter, even though McKeown says that the government’s argument has an “Alice in Wonderland” feel to it. Singel believes the government is likely to throw out the secret document Al Haramain uses as the foundation of its case. However, he writes, “all three judges seemed to believe that the government could confirm or deny a secret intelligence relationship with the nation’s largest telecom, without disclosing secrets to the world.… So seemingly, in the eyes of today’s panel of judges, in the collision between secret documents and the state secrets privilege, ‘totally secret’ documents are not allowed to play, but sort-of-secret documents—the AT&T documents—may be able to trump the power of kings to do as they will.” [Wired News, 8/15/2007] Wired News’s David Kravets notes that whichever way the court eventually rules, the losing side will continue the appeals process, probably all the way to the US Supreme Court. The biggest question, he says, is whether the NSA is still spying on millions of Americans. [Wired News, 8/15/2007]
Entity Tags: Foreign Intelligence Surveillance Act, US Supreme Court, Electronic Frontier Foundation, Bush administration (43), Al Haramain Islamic Foundation, AT&T, David Kravets, Ryan Singel, Thomas Brody, National Security Agency, Mark Klein, Kevin Poulsen, M. Margaret McKeown, Gregory Garre, Harry Pregerson, Robert Fram, Michael Kellogg
Timeline Tags: Civil Liberties
Room 641A, the NSA’s secret room at AT&T’s Folsom Street facility. [Source: Wired]Former AT&T network technician Mark Klein (see December 15-31, 2005 and July 7, 2009) gives a press conference with the Electronic Frontier Foundation (EFF) in Washington, DC, in an effort to lobby Congress and prevent an immunity bill for the telecoms from passing. The next day, Klein appears in the audience during a Senate Judiciary Committee meeting as part of his lobbying effort in Washington to reveal his knowledge of a secret NSA electronic surveillance operation at AT&T’s San Francisco operations center (see January 2003). The NSA has monitored an enormous volume of telephone and Internet traffic through this secret operation. “I have first-hand knowledge of the clandestine collaboration between one giant telecommunications company, AT&T, and the National Security Agency to facilitate the most comprehensive illegal domestic spying program in history,” Klein tells reporters. “I think they committed a massive violation not only of the law but of the Constitution. That’s not the way the Fourth Amendment is supposed to work.” [New York Times, 11/6/2007; BetaNews, 11/8/2007; Democracy Now!, 7/7/2008] Klein states his four main points of information: that AT&T provided the NSA with all varieties of electronic communications, from telephone conversations to emails, text messages, Web browsing activities, and more; AT&T provided the NSA with billions of purely domestic communications; the program involved everyone using the Internet and not just AT&T customers, because of the interconnected nature of the Internet; and AT&T had 15 to 20 NSA “spy rooms” in facilities across the nation. Brian Reid, a telecommunications and data networking expert who served as one of the New York Times’s experts on the NSA allegations (see April 12, 2006), appears with Klein at the press conference. Reid told Klein in the days before the conference, “My job is to make people believe you.” Reid tells reporters, “The most likely use of this [AT&T/NSA] infrastructure is wholesale, untargeted surveillance of ordinary Americans at the behest of the NSA.” Hours after the press conference, Klein appears as a guest on MSNBC’s political talk show Countdown, where host Keith Olbermann asks him if his experience “felt like finding yourself in a scene from the sci-fi flick Invasion of the Body Snatchers—did it have that sort of horror quality to it?” Klein replies, “My thought was George Orwell’s 1984 and here I am being forced to connect the Big Brother machine.” [Klein, 2009, pp. 93-100]
Key Witness - Klein is a key witness in the lawsuit against AT&T by the EFF (see January 31, 2006 and Early January 2006). He is offering to testify against efforts by the Bush administration and its Congressional Republican allies to amend the Foreign Intelligence Surveillance Act to grant immunity to telecom companies like AT&T from prosecution for surveillance acts. Such an immunity grant would likely result in the dismissal of such lawsuits. But no committee of Congress invites him to testify. [New York Times, 11/6/2007; BetaNews, 11/8/2007; Democracy Now!, 7/7/2008]
NSA Secure Room - Part of Klein’s information is from a deposition that was entered into evidence in the lawsuit, and is now made available to individual members of Congress (see February 23-28, 2006, June 26, 2006, and June 13, 2007). Klein relates that during a tour of the AT&T-controlled floors of the Folsom Street facility of what was then SBC Communications, he saw Room 641A, categorized as the “SG3Secure Room” (see October 2003 and Late 2003). That fall, when he was hired to work at the facility, he saw an NSA agent who came to interview a field support specialist for clearance to be able to work in the Secure Room. “To my knowledge, only employees cleared by the NSA were permitted to enter the SG3 Secure Room,” Klein says. “To gain entry to the SG3 Secure Room required both a physical key for the cylinder lock and a combination code number to be entered into an electronic keypad on the door. To my knowledge, only [two field support specialists] had both the key and the combination code.” Klein installed new circuits to a fiber-optic “splitter cabinet” that had only one purpose: to duplicate Internet traffic from WorldNet’s service into SG3, thereby allowing the NSA access to all traffic on that circuit. “What I saw is that everything’s flowing across the Internet to this government-controlled room,” he now says. [New York Times, 11/6/2007; BetaNews, 11/8/2007]
EFF Lobbyists - The EFF secures the services of two professional lobbyists, Adam Eisgrau and former Congressman Thomas Downey (D-NY), who escort Klein and EFF officials Cindy Cohn and Kevin Bankston around Capitol Hill during the two-day period. EFF also works with a professional media company to prepare the media for the November 7 press conference. After the conference, Klein is introduced to a number of Democratic lawmakers, though he says only a few are truly interested in his evidence; he names Senator Barbara Boxer (D-CA) and Representative Rush Holt (D-NJ), a former physicist who had actually worked with some of the technology Klein cites in his statements, as two of those willing to give him more than a handshake and a quick photo opportunity. Klein later regrets being unable to meet with Senator Christopher Dodd (D-CT), whom he considers to be one of the few real champions of civil liberties in Congress. Dodd cited Klein’s evidence, and Klein by name, in his unsuccessful filibuster of the FISA amendment bill (see July 10, 2008). [Klein, 2009, pp. 91-95] The lobbyists are able to gain access for Klein to the Congressional hearings. Some media outlets later report, mistakenly, that Klein actually testifies before the panel. [Klein, 2009, pp. 100-101]
A federal appellate court bars an Islamic charity accused of assisting terrorists from using a US government document to prove that it had been illegally spied upon (see February 28, 2006). The charity, the now-defunct Al Haramain Islamic Foundation (see Late May, 2004), has been accused by the government and the UN Security Council of being affiliated with al-Qaeda; the charity’s officials deny the charges. In its finding, the three-judge panel rules in favor of the government’s argument that protecting “state secrets” (see March 9, 1953) is of overriding importance in the case. Other courts have ruled that the Bush administration can refuse to disclose information if “there is a reasonable danger” it would affect national security. Al Haramain’s lawyers argued that the document is necessary to prove that it was illegally monitored. According to the ruling, the judges accept “the need to defer to the executive on matters of foreign and national security and surely cannot legitimately find ourselves second-guessing the executive in this arena.”
Reaction Divided - Opinion is divided on the ruling. Constitutional law professor Erwin Chemerinsky of Duke University says the court’s deference to the “executive branch in situations like this [is] very troubling.” Another constitutional law professor, Douglas Kmiec of Pepperdine, says “the opinion is consistent with” an earlier ruling that struck down a challenge to the government’s surveillance program filed by the American Civil Liberties Union; Kmiec says the rulings indicate that “federal courts recognize that the essential aspects of the Terrorist Surveillance Program both remain secret and are important to preserve as such.”
Mixed Results - The appellate court does not give the government everything it asked for. It rejects the Justice Department’s argument that “the very subject matter of the litigation is a state secret.” That finding may prove important in the other surveillance cases where the government is arguing that even to consider legal challenges to warrantless wiretapping endangers national security. The appeals court sends the case back to a lower court to consider whether or not the Foreign Intelligence Surveillance Act, which requires approval by a special court for domestic surveillance, preempts the state secrets privilege. The court also severs the Al Haramain case from other, similar lawsuits challenging the government’s secret surveillance program. [Los Angeles Times, 11/17/2007]
Michael McConnell, the director of national intelligence, writes an op-ed for the New York Times pushing for Congressional immunity for US telecommunications firms over their cooperation with the NSA’s warrantless wiretapping program. Under August’s Protect America Act, McConnell writes, the country is “safer” from terrorist attacks while the privacy of US citizens is protected (see August 5, 2007). The government has “greater understanding of international [al-]Qaeda networks, and the law has allowed us to obtain significant insight into terrorist planning.” But the Act expires in two months, and McConnell wants it re-enacted and significantly expanded “if we are to stay ahead of terrorists who are determined to attack the United States.” Echoing the arguments of Bush administration officials, McConnell attacks the “outdated” Foreign Intelligence Surveillance Act as significantly hindering the government’s “ability to collect timely foreign intelligence.” McConnell complains: “Our experts were diverted from tracking foreign threats to writing lengthy justifications to collect information from a person in a foreign country, simply to satisfy an outdated statute that did not reflect the ways our adversaries communicate. The judicial process intended to protect the privacy and civil liberties of Americans was applied instead to foreign intelligence targets in foreign countries. This made little sense, and the Protect America Act eliminated this problem.” McConnell calls for new legislation that would obviate the need for intelligence agencies such as the NSA to seek warrants to monitor US citizens’ telephone and e-mail communications: “The intelligence community should spend its time protecting our nation, not providing privacy protections to foreign terrorists and other diffuse international threats.” He also calls for retroactive immunity for “private parties”—i.e. the US telecommunications companies—that are subject to lawsuits over their cooperation with the NSA in monitoring US communications. “The intelligence community cannot go it alone,” he writes. “Those in the private sector who stand by us in times of national security emergencies deserve thanks, not lawsuits.” Two days later, new Attorney General Michael Mukasey will write a virtually identical op-ed for the Los Angeles Times (see December 12, 2007). [New York Times, 12/10/2007]
Michael Mukasey, the new Attorney General, writes an op-ed for the Los Angeles Times pushing for Congressional immunity for US telecommunications firms over their cooperation with the NSA’s warrantless wiretapping program. Mukasey supports the NSA program, echoing the administration’s long insistence that the surveillance program is “crucial” in protecting the country against terrorist attacks. He also reiterates the administration’s criticism of the “outdated” Foreign Intelligence Surveillance Act, which he says hampers the government’s ability to collect needed intelligence and does little to protect the privacy of US citizens. Mukasey calls for Congress to pass a Senate bill that would grant the telecommunications firms retroactive immunity to civil lawsuits and criminal charges surrounding their cooperation with the NSA, and would no longer require court orders for the government to “direct surveillance at foreign targets overseas”—surveillance that would target US citizens. Mukasey says the US will “need the full-hearted help of private companies in our intelligence activities; we cannot expect such cooperation to be forthcoming if we do not support companies that have helped us in the past.” Mukasey strongly opposes another Senate bill that would grant no immunity and would continue to require the government to obtain FISA Court warrants before wiretapping domestic communications. Two days earlier, the director of national intelligence, Michael McConnell, penned a virtually identical op-ed for the New York Times (see December 10, 2007). [Los Angeles Times, 12/12/2007]
Director of National Intelligence Michael McConnell says that the 9/11 hijackers could not be monitored in the US because they did not commit any crimes. He says in a speech: “[I]f Mohamed Atta had been in Pakistan and we were tracking him, some way to track him—he went to Turkey, went to Europe, got over to Canada, we’d track him as foreign intelligence target, and he crosses into the United States, he’s now a US person; he gets all of the rights and privileges that you get. He’s invisible to your intelligence community. As long as he doesn’t break the law, law enforcement can’t conduct surveillance because they don’t have a probable cause. Al-Qaeda recognized that and that is why 9/11 happened in my view.” [Director of National Intelligence, 1/17/2008 ] The 9/11 hijackers committed various offenses for which they could have been arrested in the US, such as lying on visa application forms (see August 29, 2001), overstaying their visas (see January 18, 2001, May 20, 2001 and January 10, 2001), driving without a license (note: a warrant for Mohamed Atta’s arrest was even issued in the summer of 2001—see June 4, 2001), and having a known role in blowing up the USS Cole, thereby murdering 17 US servicemen (see Around October 12, 2000). The Foreign Intelligence Surveillance Act was also specifically designed so that the FBI and other agencies could monitor agents of foreign powers in the US even if they did not commit a crime (see 1978).
MSNBC commentator Keith Olbermann lambasts President Bush’s State of the Union call to protect US telecom firms from liability in their cooperation with government surveillance of US citizens (see January 28, 2008): “President Bush has put protecting the telecom giants from the laws ahead of protecting you from the terrorists. He has demanded an extension of the FISA law—the Foreign Intelligence Surveillance Act—but only an extension that includes retroactive immunity for the telecoms who helped him spy on you.… This, Mr. Bush, is simple enough even for you to understand: If Congress approves a new FISA act without telecom immunity and sends it to your desk and you veto it—you, by your own terms and your own definitions, you will have just sided with the terrorists. Ya gotta have this law, or we’re all gonna die. But you might veto this law!” Olbermann terms Bush’s call for telecom immunity a “shameless, breathless, literal, textbook example of fascism—the merged efforts of government and corporations who answer to no government.” With heavy sarcasm Olbermann says: “[The telecom immunity] isn’t evil, it’s ‘to protect America.’ It isn’t indiscriminate, it’s ‘the ability to monitor terrorist communications.’ It isn’t unlawful, it’s just the kind of perfectly legal thing, for which you happen to need immunity.… This is not a choice of protecting the telecoms from prosecution, or protecting the people from terrorists, sir. It is a choice of protecting the telecoms from prosecution, or pretending to protect the people from terrorists.… The eavesdropping provisions of FISA have obviously had no impact on counter-terrorism, and there is no current or perceived terrorist threat, the thwarting of which could hinge on an e-mail or a phone call going through room 641-A at AT&T in San Francisco next week or next month. Because if there were, Mr. Bush, and you were to, by your own hand, veto an extension of this eavesdropping, and some terrorist attack were to follow, you would not merely be guilty of siding with the terrorists, you would not merely be guilty of prioritizing the telecoms over the people, you would not merely be guilty of stupidity, you would not merely be guilty of treason, but you would be personally, and eternally, responsible.” [MSNBC, 1/31/2008]
Senator John D. Rockefeller (D-WV) lets slip the news that changes proposed to US surveillance laws drastically increase the government’s ability to conduct electronic surveillance inside the US. While speaking against an amendment that would require the government to destroy non-emergency evidence procured through domestic surveillance if a court later finds the surveillance was illegal, Rockefeller reveals that the new laws will not just “make it easier for the NSA to wiretap terrorists,” as the argument goes, but will allow the NSA to, in reporter Ryan Singel’s words, “secretly and unilaterally install filters inside America’s phone and Internet infrastructure.” Rockefeller tells his fellow senators: “Unlike traditional [Foreign Intelligence Surveillance Act] application orders which involve collection on one individual target, the new FISA provisions create a system of collection. The courts role in this system of collection is not to consider probable cause on individual targets but to ensure that procedures used to collect intelligence are adequate. The courts’ determination of the adequacy of procedures therefore impacts all electronic communications gathered under the new mechanisms, even if it involves thousands of targets.” Singel puts it more plainly: “In short, the changes legalize Room 641A, the secret spying room inside AT&T’s San Francisco Internet switching center” (see November 7-8, 2007). FISA judges will, if the law is passed, no longer evaluate whether the government has sufficient cause to eavesdrop on someone inside the US. Instead, the judges will only be able to evaluate descriptions of what the NSA is doing with its “filters.” There is no provision in the new bill to penalize the NSA for conducting illegal surveillances. [Wired News, 2/5/2008]
With the Protect America Act expiring amid warnings of imminent terror attacks from Bush administration officials and Congressional Republicans (see February 16, 2008 and February 15-17, 2008), most experts outside the administration say its expiration will have little effect on national security. Under the PAA, the government could wiretap domestic phones and computer systems without a warrant, but the legislation was considered a temporary stopgap measure to give Congress and the White House a chance to work together to create new, permanent regulations covering domestic surveillance. The government’s domestic wiretapping program now reverts to the procedures followed for 30 years under the Foreign Intelligence Surveillance Act (FISA), which requires warrants from the FISA Court to engage in surveillance inside the US. Despite administration claims that the paperwork for those warrants is too cumbersome, many experts say that FISA gives the government the tools it needs to spy on terrorists. Timothy Lee from the conservative Cato Institute recalls that the last time FISA was revamped, after the 9/11 attacks, President Bush praised the overhaul, saying it “recognizes the realities and dangers posed by the modern terrorist.” Lee observes: “Those are the rules we’ll be living under after the Protect America Act expires this weekend. There’s no reason to think our nation will be in any more danger in 2008 than it was in 2002, 2003, 2004, 2005, or 2006.” Ben Wittes of the centrist Brookings Institution says that because existing warrantless surveillance begun under the temporary laws could continue for up to a year, the “sky is not falling at all.” Wittes says he is “somewhat bewildered by the apocalyptic rhetoric” of the Bush administration. Many experts note that emergency FISA warrants can, and have, been granted in a matter of minutes, and government eavesdroppers have up to three days to wiretap a phone or computer and then retroactively acquire a warrant. But administration officials have a different view. White House press secretary Dana Perino says the PAA’s expiration “will harm our ability to conduct surveillance to detect new threats to our security, including the locations, intentions and capabilities of terrorists and other foreign intelligence targets abroad.” Perino says that the PAA “temporarily closed” a “dangerous intelligence gap.” House Majority Leader Steny Hoyer (D-MD) calls that warning “categorically false.” Hoyer continues: “In fact, a wide range of national security experts has made clear that the president and our intelligence community have all the tools they need to protect our nation, if the Protect America Act—temporary legislation passed last August—expires.… We believe the president’s rhetoric is inaccurate and divisive, and an attempt to stampede the House of Representatives to rubber-stamp legislation by stoking the fears of the American people. We will not be stampeded.” [Washington Times, 2/16/2008]
President Bush again demands that Congress reinstate the Protect America Act (PAA) (see August 5, 2007), with new provisions providing the nation’s telecommunications industry retroactive legal immunity from criminal and civil prosecution for possible crimes committed in the administration’s domestic wiretapping program (see May 12, 2006). Bush says that without such immunity, US telecom firms will be reluctant to help the administration spy on potential terrorists. The PAA is a central part of the legislative update of the 1978 Foreign Intelligence Surveillance Act (FISA) (see 1978) which mandates that any wiretaps must receive the approval of the FISA Court. Bush insists that he will veto an update to FISA without the immunity provisions, even as he asserts the country is at risk of further terrorist attacks without the FISA updates, and after letting the PAA lapse without signing an extension of the legislation into law. However, Bush blames Congress for not passing the FISA update with an immunity clause: “Congress’ failure to pass this legislation was irresponsible,” he says. “In other words, the House’s refusal to act is undermining our ability to get cooperation from private companies. And that undermines our efforts to protect us from terrorist attack.” He explains why the Democrats don’t want his bill: “House leaders are blocking this legislation, and the reason can be summed up in three words: class action lawsuits.” A spokesman for Congressional Democrats retorts: “They cannot have it both ways. If it is true that the expiration of the [surveillance law] has caused gaps in intelligence, then it was irresponsible for the president and Congressional Republicans to openly oppose an extension of the law.”
Democrats Put Trial Lawyers Before National Security? - Bush says: “The Senate bill would prevent plaintiffs’ attorneys from suing companies believed to have helped defend America after the 9/11 attacks. More than 40 of these lawsuits have been filed, seeking hundreds of billions of dollars in damages from these companies.… It is unfair and unjust to threaten these companies with financial ruin only because they are believed to have done the right thing and helped their country.” The lawsuits (see June 26, 2006) seek damages based upon violations of FISA, the Wiretap Act, the Communications Act, and the Stored Communications Act, among other laws. Bob Edgar of Common Cause says neither money nor punishment is the issue: “Innocent Americans who have had their rights violated by the telecoms deserve their day in court. If these companies did nothing wrong, then they have nothing to fear.” Bush is apparently attempting to refocus the issue as an attack on trial lawyers—traditionally a group supportive of Democrats—in saying: “Members of the House have a choice to make: They can empower the trial bar—or they can empower the intelligence community. They can help class action trial lawyers sue for billions of dollars—or they can help our intelligence officials protect millions of lives. They can put our national security in the hands of plaintiffs’ lawyers—or they can entrust it to the men and women of our government who work day and night to keep us safe.” House member John Conyers (D-MI) calls such characterizations “irresponsible” and “inaccurate.” [CBS News, 2/23/2008]
Retired AT&T “whistleblower” Mark Klein (see December 15-31, 2005 and July 7, 2009) has a short essay published in Wired News, sharply criticizing the recently passed legislation that amended the Foreign Intelligence Surveillance Act (FISA—see July 10, 2008) and granted telecommunications firms immunity from prosecution for helping government agencies illegally spy on American citizens. Klein initially offered the essay in letter form to the New York Times, but although the editors there showed what Klein will call “some interest,” they rejected the letter. Instead, Wired News’s Ryan Singel accepted the letter for one of his “Threat Level” columns. Singel describes Klein as “furious” at the vote, and quotes Klein: “[Wednesday]‘s vote by Congress effectively gives retroactive immunity to the telecom companies and endorses an all-powerful president. It’s a Congressional coup against the Constitution. The Democratic leadership is touting the deal as a ‘compromise,’ but in fact they have endorsed the infamous Nuremberg defense: ‘Just following orders.’ The judge can only check their paperwork. This cynical deal is a Democratic exercise in deceit and cowardice.… Congress has made the FISA law a dead letter—such a law is useless if the president can break it with impunity. Thus the Democrats have surreptitiously repudiated the main reform of the post-Watergate era and adopted Nixon’s line: ‘When the president does it that means that it is not illegal.’ This is the judicial logic of a dictatorship. The surveillance system now approved by Congress provides the physical apparatus for the government to collect and store a huge database on virtually the entire population, available for data mining whenever the government wants to target its political opponents at any given moment—all in the hands of an unrestrained executive power. It is the infrastructure for a police state.” [Wired News, 6/27/2008; Klein, 2009, pp. 108]
President Bush signs the FISA Amendments Act of 2008 (FAA), a revamping and expansion of the original Foreign Intelligence Surveillance Act (see 1978). The legislation passed the House by a sweeping 293 to 129 votes, with most Democratic Congressional leaders supporting it over the opposition of the more liberal and civil liberties-minded Democrats. Republicans were almost unanimously supportive of the bill. Though Democratic Senators Russell Feingold (D-WI) and Christopher Dodd (D-CT) managed to delay the bill’s passage through the Senate, their attempt to modify the bill was thwarted by a 66-32 margin. (Dodd credits AT&T whistleblower Mark Klein (see December 15-31, 2005 and July 7, 2009) as one of the very few people to make the public aware of the illegal NSA wiretapping program, which the FISA amendment would protect. Without Klein, Dodd states, “this story might have remained secret for years and years, causing further erosion of our rights.”) Senator Barack Obama (D-IL), the party’s presumptive presidential nominee, gave his qualified support to the bill, stating: “Given the legitimate threats we face, providing effective intelligence collection tools with appropriate safeguards is too important to delay. So I support the compromise, but do so with a firm pledge that as president, I will carefully monitor the program.” Obama had opposed an earlier Senate version that would have given “blanket immunity” to the telecommunications companies for their participation in the illegal NSA wiretapping program (see December 15, 2005). House Speaker Nancy Pelosi (D-CA), who organized Democratic support for the bill in the House, said that she supported the bill primarily because it rejects Bush’s argument that a wartime chief executive has the “inherent authority” to conduct some surveillance activity he considers necessary to fight terrorism. It restores the legal notion that the FISA law is the exclusive rule on government spying, she said, and added: “This is a democracy. It is not a monarchy.” Feingold, however, said that the bill granted “retroactive immunity to the telecommunications companies that may have engaged in President Bush’s illegal wiretapping program.” The amendments restore many of the provisions of the expired Protect America Act (PAA—see August 5, 2007) that drastically modify the original FISA legislation and grant the government broad new surveillance powers. Like the PAA, the FAA grants “third parties” such as telecommunications firms immunity from prosecution for engaging in illegal surveillance of American citizens if they did so in partnership with government agencies such as the National Security Agency (NSA). [Washington Post, 6/20/2008; CNN, 6/26/2008; US Senate, 7/9/2008; White House, 7/10/2008; Klein, 2009, pp. 95-97] Senate Majority Leader Harry Reid (D-NV) actually refused to honor a “hold” placed on the bill by Dodd, a highly unusual move. Klein will later note that Reid has in the past always honored holds placed on legislation by Republicans, even if Democrats were strongly supportive of the legislation being “held.” Klein will write that Pelosi crafted a “showpiece” FISA bill without the immunity provisions, garnering much praise for her from civil liberties organizations; however, Pelosi’s colleague House Majority Leader Steny Hoyer (D-MD) had secretly worked with the White House to craft a bill that preserved immunity for telecoms, and on June 10, Pelosi “rammed” that bill through the House. The final bill actually requires the judiciary to dismiss lawsuits brought against telecom firms if those firms can produce evidence that they had worked in collusion with the NSA. Feingold later observes that the final bill is not a “compromise, it is a capitulation.” [Klein, 2009, pp. 101-103] Klein will write that Democrats and Republicans have worked together to “unw[ind] one of the main reforms of the post-Watergate era and accepted the outrageous criminal rationalizations of [President] Nixon himself.” Klein will quote Nixon as saying, “If the president does it, that means it’s not illegal” (see April 6, 1977), and will say that is “the essence of the FISA ‘compromise’” and turned Congress into the White House’s “rubber stamp.… It is the twisted judicial logic of a dictatorship.” [Klein, 2009, pp. 107]
Entity Tags: Nancy Pelosi, Foreign Intelligence Surveillance Act, FISA Amendments Act of 2008, Christopher Dodd, Barack Obama, George W. Bush, Mark Klein, Russell D. Feingold, Richard M. Nixon, Harry Reid, Steny Hoyer, National Security Agency, Protect America Act
Timeline Tags: Civil Liberties
The Electronic Frontier Foundation (EFF) files a lawsuit challenging the constitutionality of the recently passed amendment to the Foreign Intelligence Surveillance Act (FISA—see July 10, 2008). The EFF is particularly concerned with the portion of the legislation that grants retroactive immunity from prosecution to telecommunications firms that worked with government agencies to illegally conduct electronic surveillance against American citizens (see December 15, 2005). The FISA Amendments Act of 2008, or FAA, violates the Constitution’s separation of powers, according to the EFF, and, the organization writes, “robs innocent telecom customers of their rights without due process of law.” The lawsuit was triggered by Attorney General Michael Mukasey’s recent submission of a classified certification in another EFF lawsuit about illegal electronic certification (see January 31, 2006) that claimed the electronic surveillance conducted on behalf of the National Security Agency by AT&T did not happen. EFF senior attorney Kevin Bankston says: “The immunity law puts the fox in charge of the hen house, letting the attorney general decide whether or not telecoms like AT&T can be sued for participating in the government’s illegal warrantless surveillance. In our constitutional system, it is the judiciary’s role as a co-equal branch of government to determine the scope of the surveillance and rule on whether it is legal, not the executive’s. The attorney general should not be allowed to unconstitutionally play judge and jury in these cases, which affect the privacy of millions of Americans.” Mukasey’s certification claimed the government has no “content-dragnet” program that surveills millions of domestic communications, though it does not deny having acquired such communications. EFF has provided the court with thousands of pages of documents proving the falsity of Mukasey’s assertions, the organization writes. EFF attorney Kurt Opsahl says: “We have overwhelming record evidence that the domestic spying program is operating far outside the bounds of the law. Intelligence agencies, telecoms, and the administration want to sweep this case under the rug, but the Constitution won’t permit it.” EFF spokesperson Rebecca Jeschke tells a reporter that the FAA “violates the federal government’s separation of powers and violates the Constitution. We want to make sure this unconstitutional law does not deny telecom customers their day in court. They have legitimate privacy claims that should be heard by a judge. Extensive evidence proves the existence of a massive illegal surveillance program affecting millions of ordinary Americans. The telecoms broke the law and took part in this. The FISA Amendments Act and its immunity provisions were an attempt to sweep these lawsuits under the rug, but it’s simply unconstitutional.” EFF lawyers fear the FAA will render their lawsuit invalid. [Electronic Frontier Foundation, 10/17/2008; Salon, 10/17/2008] The EFF has filed a related lawsuit against the NSA and senior members of the Bush administration (see September 18, 2008).
Judge Vaughn Walker rules that “sufficient facts” exist to keep alive a lawsuit brought by the defunct Islamic charity Al Haramain, which alleges it was subjected to illegal, warrantless wiretapping by the US government (see February 28, 2006). The lawsuit centers on a Top Secret government document accidentally disclosed to plaintiffs’ lawyers Wendell Belew and Asim Ghafoo that allegedly proves the claim of illegal wiretapping; previous court rulings forced Belew and Ghafoo to return the document to the government and prohibited its use in the lawsuit. The lawsuit is widely viewed as a test case to decide in court whether the Bush administration abused its power by authorizing a secret domestic spying program (see Spring 2004 and December 15, 2005). Jon Eisenberg, the lawyer for Belew and Ghafoo, says it does not matter whether the case pertains to the Bush administration or the incoming Obama administration. “I don’t want President Obama to have that power any more than I do President Bush,” he says. Because the lawsuit contains sufficient evidence even without the Top Secret document, Walker rules, it can continue. “The plaintiffs have alleged sufficient facts to withstand the government’s motion to dismiss,” he writes. Therefore, he adds, the law demands that they be allowed to review the classified document, and others, to determine whether the lawyers were spied on illegally and whether Bush’s spy program was unlawful. “To be more specific, the court will review the sealed document ex parte and in camera,” Walker writes. “The court will then issue an order regarding whether plaintiffs may proceed—that is, whether the sealed document establishes that plaintiffs were subject to electronic surveillance not authorized by FISA” (the Foreign Intelligence Surveillance Act—see 1978). [Wired News, 1/5/2009]
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