NSA electronic surveillance program

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The NSA electronic surveillance program was named Terrorist Surveillance Program by the George W. Bush administration[Fox still echoing administration's "terrorist surveillance program" label; regional newspapers follow suit] Media Matters, February 08, 2006 in response to the NSA warrantless surveillance controversy which followed the disclosure of the program. It is unknown if this is the original name of the program.

The National Security Agency (NSA), a signals intelligence agency of the executive branch of the United States government, implemented the program in the wake of the events of September 11, 2001 (or perhaps earlier[link]), allegedly to target al Qaeda communications involving at least one party in the United States in a search for communications allegedly threatening to the United States, as part of the broader War on Terrorism.

Description

On May 22, 2006, it was revealed by investigative reporter Seymour Hersh and Wired magazine that the program involved the NSA setting up splitters to the routing cores of many telecoms companies and to major Internet traffic hubs, that provided a direct connection to the NSA headquarters for most U.S. telecoms communications and all Internet traffic, and that the NSA had used this to eavesdrop and order police investigations of tens of thousands of ordinary Americans without judicial warrants.

The President has stated that he has reviewed and reauthorized the program approximately every 45 days since it was implemented. The leadership of the Intelligence Committees of both the House and Senate were briefed a number of times since initiation of the program. http://www.usdoj.gov/ag/speeches/2006/ag_speech_060206.html Statement of Hon. Alberto R. Gonzales, Attorney General, February 6, 2006 They were not, however, allowed to make notes or confer with others to determine the legal ramifications, or even to mention the existence of the program to the full membership of the Intelligence Committees. Further, the administration has even refused to identify to the public which members of the committees were briefed; it has however provided the complete list to those within the Senate Intelligence Committee. http://www.davidcorn.com/archives/2006/05/who_in_congress.php

Since several newsreports allege that numerous, possibly millions according to USA Today, innocent civilians are subject to the program, the term "Terrorist Surveillance Program" appears to be misleading according to LewRockwell.com.[Bush’s 'Probably Not a Terrorist Surveillance Program'] by Thomas R. Eddlem, LewRockwell.com Also, analysis conducted by J. Scott Marcus, internet pioneer and former FCC advisor, concludes that the "spy rooms" used by AT&T, are "in far more locations than would be required to catch the majority of international traffic", and that the technique used is insufficient to adequately determine what originates from outside the US.

• [DECLARATION OF J. SCOTT MARCUS IN SUPPORT OF PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION] PDF file
• [The Newbie's Guide to Detecting the NSA] by Ryan Singel and Kevin Poulsen

Wiretapping

Call database

On May 10, 2006, USA Today reported that the NSA has had a separate, prieviously undisclosed program in place since 9/11 to build a database of information about calls placed within the United States, including phone numbers, date, and duration of the calls. According to the article, phone companies AT&T, Verizon, and Bell South disclosed the records to the NSA, while Qwest did not. The article quotes an unnamed source that "it's the largest database ever assembled in the world."

The administration has not confirmed the existence of this aspect of the program. On Fox News, George Bush "refused to even confirm that he was refusing to confirm or deny reports that the government is maintaining a secret domestic telephone database."

News reporting

December 16, 2005

Under a presidential order signed in 2002, the intelligence agency monitored the international telephone calls and international e-mail messages of hundreds, perhaps thousands, of people inside the United States without warrants over the past three years in an effort to track possible "dirty numbers" linked to Al Qaeda, the officials said. The agency, they said, still seeks warrants to monitor entirely domestic communications.''

The White House asked The New York Times not to publish this article, arguing that it could jeopardize continuing investigations and alert would-be terrorists that they might be under scrutiny. After meeting with senior administration officials to hear their concerns, the newspaper delayed publication for a year to conduct additional reporting. Some information that administration officials argued could be useful to terrorists has been omitted.''

White House press secretary Scott McClellan refused to comment on the story on December 16, exclaiming "there’s a reason why we don’t get into discussing ongoing intelligence activities, because it could compromise our efforts to prevent attacks from happening."

The next morning, the President gave a live eight-minute television address instead of his normal weekly radio address, during which he addressed the wiretap story directly and admitted that he had in fact authorized domestic warrantless monitoring of calls originating or terminating overseas. He forcefully defended his actions as "crucial to our national security" and claimed that the American people expected him to "do everything in my power, under our laws and Constitution, to protect them and their civil liberties" as long as there was a "continuing threat" from al-Qaeda. The President also had harsh words for those who broke the story, saying that they acted illegally. "The unauthorized disclosure of this effort damages our national security and puts our citizens at risk," he said.

January 1, 2006

The Times had withheld the article from publication for over a year. Both editor in chief Bill Keller and publisher Arthur Sulzberger Jr. were summoned by the President and White House officials in order to persuade the paper not to publish the story. The Times ran the story shortly before they would have been scooped by publication of their own reporter's book. The Times ombudsman speculates that the reason the backstory isn't being revealed is to protect sources. Russ Tice claims he was a source for the story.

January 3, 2006

Tice says the technology exists to track and sort through every domestic and international phone call as they are switched through centers, such as one in New York, and to search for key words or phrases that a terrorist might use.

"If you picked the word 'jihad' out of a conversation," Tice said, "the technology exists that you focus in on that conversation, and you pull it out of the system for processing."

According to Tice, intelligence analysts use the information to develop graphs that resemble spiderwebs linking one suspect's phone number to hundreds or even thousands more.

"That would mean for most Americans that if they conducted, or you know, placed an overseas communication, more than likely they were sucked into that vacuum," Tice said.

January 17, 2006

February 5, 2006

Also on February 5, USA Today ran a story reporting that, according to seven telecommunications executives, the NSA had secured the cooperation of the main telecommunications companies in charge of international phone-calls, including AT&T, MCI and Sprint, in its efforts to eavesdrop without warrants on international calls .

May 10, 2006

May 22, 2006

On May 22 2006, Wired Magazine released the text of AT&T documents, currently under court seal in the EFF case, that allegedly describe NSA wiretap arrangements.

Legality of the program

However, this program occurred prior to the 1978 Foreign Intelligence Surveillance Act (FISA), which was passed into law after widespread concern over abuse of those prior domestic surveillance activities.

Controversy

When classified details were leaked to the press at some point in 2005, critics began to question the legality of the program. The crux of the debate is twofold, the main issues being:

1. Are the parameters of this program subject to FISA and
2. if so, did the president have authority, inherent or otherwise, to bypass FISA.

"The argument that conduct undertaken by the Commander in Chief that has some relevance to 'engaging the enemy' is immune from congressional regulation finds no support in, and is directly contradicted by, both case law and historical precedent. Every time the Supreme Court has confronted a statute limiting the Commander-in-Chief’s authority, it has upheld the statute. No precedent holds that the President, when acting as Commander in Chief, is free to disregard an Act of Congress, much less a criminal statute enacted by Congress, that was designed specifically to restrain the President as such." (Emphasis in original.)http://balkin.blogspot.com/FISA.AUMF.ReplytoDOJ.pdf Letter to Congress regarding FISA and NSA, fourteen constitutional law scholars, February 2, 2006; p. 5]

NATO members and allies

John Howard

Hamid Karzai