Report of NSA Spying Prompts Call for Probe
By JENNIFER LOVEN, Associated Press Writer
Fri Dec 16,12:04 PM ET

LINK

A key Republican committee chairman put the Bush administration on notice Friday that his panel would hold hearings into a report that the National Security Agency eavesdropped without warrants on people inside the United States.

Sen. Arlen Specter R-Pa., said he would make oversight hearings by his panel next year "a very, very high priority."

"There is no doubt that this is inappropriate," said Specter, a Pennsylvania Republican and chairman of the Judiciary Committee.

Other key bipartisan members of Congress also called on the administration to explain and said a congressional investigation may be necessary.

Sen. John McCain, R-Ariz., appeared annoyed that the first he had heard of such a program was through a New York Times story published Friday. He said the report was troubling.

Neither Secretary of State Condoleeza Rice nor White House press secretary Scott McClellan, asked about the story earlier Friday, would confirm or deny that the super-secret NSA had spied on as many as 500 people at any given time since 2002.

That year, following the Sept. 11 attacks, Bush authorized the NSA to monitor the international phone calls and international e-mails of hundreds  perhaps thousands  of people inside the United States, the Times reported.

Before the program began, the NSA typically limited its domestic surveillance to foreign embassies and missions and obtained court orders for such investigations. Overseas, 5,000 to 7,000 people suspected of terrorist ties are monitored at one time.

"We need to look into that," McCain told reporters at the White House after a meeting on Iraq with President Bush. "Theoretically, I obviously wouldn't like it. But I don't know the extent of it and I don't know enough about it to really make an informed comment. Ask me again in about a week."

McCain said it's not clear whether a congressional probe is warranted. He said the topic had not come up in the meeting with Bush.

"We should be informed as to exactly what is going on and then find out whether an investigation is called for," he said.

Sen. Joe Lieberman, D-Conn., also said he needed more information.

"Of course I was concerned about the story," said Lieberman, who also attended the White House Iraq meeting. "I'm going to go back to the office and see if I can find out more about it."

Other Democrats were more harsh.

"This is Big Brother run amok," declared Sen. Edward Kennedy (news, bio, voting record), D-Mass. "We cannot protect our borders if we cannot protect our ideals." Sen. Russell Feingold, D-Wis., called it a "shocking revelation" that he said "ought to send a chill down the spine of every senator and every American."

Administration officials reacted to the report by asserting that the president has respected the Constitution while striving to protect the American people.

Rice said Bush has "acted lawfully in every step that he has taken." And McClellan said Bush "is going to remain fully committed to upholding our Constitution and protect the civil liberties of the American people. And he has done both."

The report surfaced in an untimely fashion as the administration and its GOP allies on Capitol Hill were fighting to save provisions of the expiring USA Patriot Act that they believe are key tools in the fight against terrorism.

The Times said reporters interviewed nearly a dozen current and former administration officials about the program and granted them anonymity because of the classified nature of the program.

Government officials credited the new program with uncovering several terrorist plots, including one by Iyman Faris, an Ohio trucker who pleaded guilty in 2003 to supporting al-Qaida by planning to destroy the Brooklyn Bridge, the report said.

Faris' lawyer, David B. Smith, said on Friday the news puzzled him because none of the evidence against Faris appeared to have come from surveillance, other than officials eavesdropping on his cell phone calls while he was in FBI custody.

Some NSA officials were so concerned about the legality of the program that they refused to participate, the Times said. Questions about the legality of the program led the administration to temporarily suspend it last year and impose new restrictions.

Asked about this on NBC's "Today" show, Rice said, "I'm not going to comment on intelligence matters."

Caroline Fredrickson, director of the Washington legislative office of the American Civil Liberties Union, said the group's initial reaction to the NSA disclosure was "shock that the administration has gone so far in violating American civil liberties to the extent where it seems to be a violation of federal law."

Asked about the administration's contention that the eavesdropping has disrupted terrorist attacks, Fredrickson said the ACLU couldn't comment until it sees some evidence. "They've veiled these powers in secrecy so there's no way for Congress or any independent organizations to exercise any oversight."

Earlier this week, the Pentagon said it was reviewing its use of a classified database of information about suspicious people and activity inside the United States after a report by NBC News said the database listed activities of anti-war groups that were not a security threat to Pentagon property or personnel.

Pentagon spokesman Bryan Whitman said that while it appears that some information may have been left in the database longer than it should have been, it was not clear yet whether mistakes were made. A written statement issued by the department implied  but did not explicitly acknowledge  that some information had been handled improperly.

The administration had briefed congressional leaders about the NSA program and notified the judge in charge of the Foreign Intelligence Surveillance Court, the secret Washington court that handles national security issues.

Aides to National Intelligence Director John Negroponte and West Virginia Sen. Jay Rockefeller, the top Democrat on the Senate Intelligence Committee, declined to comment Thursday night.

The Times said it delayed publication of the report for a year because the White House said it could jeopardize continuing investigations and alert would-be terrorists that they might be under scrutiny. The Times said it omitted information from the story that administration officials argued could be useful to terrorists.

Bush Authorized Domestic Spying
Post-9/11 Order Bypassed Special Court

Bush approved eavesdropping, official says

December 16, 2005
Bush Lets U.S. Spy on Callers Without Courts
By JAMES RISEN and ERIC LICHTBLAU, NY TIMES

LINK

WASHINGTON, Dec. 15 - Months after the Sept. 11 attacks, President Bush secretly authorized the National Security Agency to eavesdrop on Americans and others inside the United States to search for evidence of terrorist activity without the court-approved warrants ordinarily required for domestic spying, according to government officials.

Under a presidential order signed in 2002, the intelligence agency has 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 previously undisclosed decision to permit some eavesdropping inside the country without court approval was a major shift in American intelligence-gathering practices, particularly for the National Security Agency, whose mission is to spy on communications abroad. As a result, some officials familiar with the continuing operation have questioned whether the surveillance has stretched, if not crossed, constitutional limits on legal searches.

"This is really a sea change," said a former senior official who specializes in national security law. "It's almost a mainstay of this country that the N.S.A. only does foreign searches."

Nearly a dozen current and former officials, who were granted anonymity because of the classified nature of the program, discussed it with reporters for The New York Times because of their concerns about the operation's legality and oversight.

According to those officials and others, reservations about aspects of the program have also been expressed by Senator John D. Rockefeller IV, the West Virginia Democrat who is the vice chairman of the Senate Intelligence Committee, and a judge presiding over a secret court that oversees intelligence matters. Some of the questions about the agency's new powers led the administration to temporarily suspend the operation last year and impose more restrictions, the officials said.

The Bush administration views the operation as necessary so that the agency can move quickly to monitor communications that may disclose threats to the United States, the officials said. Defenders of the program say it has been a critical tool in helping disrupt terrorist plots and prevent attacks inside the United States.

Administration officials are confident that existing safeguards are sufficient to protect the privacy and civil liberties of Americans, the officials say. In some cases, they said, the Justice Department eventually seeks warrants if it wants to expand the eavesdropping to include communications confined within the United States. The officials said the administration had briefed Congressional leaders about the program and notified the judge in charge of the Foreign Intelligence Surveillance Court, the secret Washington court that deals with national security issues.

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.

Dealing With a New Threat

While many details about the program remain secret, officials familiar with it say the N.S.A. eavesdrops without warrants on up to 500 people in the United States at any given time. The list changes as some names are added and others dropped, so the number monitored in this country may have reached into the thousands since the program began, several officials said. Overseas, about 5,000 to 7,000 people suspected of terrorist ties are monitored at one time, according to those officials.

Several officials said the eavesdropping program had helped uncover a plot by Iyman Faris, an Ohio trucker and naturalized citizen who pleaded guilty in 2003 to supporting Al Qaeda by planning to bring down the Brooklyn Bridge with blowtorches. What appeared to be another Qaeda plot, involving fertilizer bomb attacks on British pubs and train stations, was exposed last year in part through the program, the officials said. But they said most people targeted for N.S.A. monitoring have never been charged with a crime, including an Iranian-American doctor in the South who came under suspicion because of what one official described as dubious ties to Osama bin Laden.

The eavesdropping program grew out of concerns after the Sept. 11 attacks that the nation's intelligence agencies were not poised to deal effectively with the new threat of Al Qaeda and that they were handcuffed by legal and bureaucratic restrictions better suited to peacetime than war, according to officials. In response, President Bush significantly eased limits on American intelligence and law enforcement agencies and the military.

But some of the administration's antiterrorism initiatives have provoked an outcry from members of Congress, watchdog groups, immigrants and others who argue that the measures erode protections for civil liberties and intrude on Americans' privacy.

Opponents have challenged provisions of the USA Patriot Act, the focus of contentious debate on Capitol Hill this week, that expand domestic surveillance by giving the Federal Bureau of Investigation more power to collect information like library lending lists or Internet use. Military and F.B.I. officials have drawn criticism for monitoring what were largely peaceful antiwar protests. The Pentagon and the Department of Homeland Security were forced to retreat on plans to use public and private databases to hunt for possible terrorists. And last year, the Supreme Court rejected the administration's claim that those labeled "enemy combatants" were not entitled to judicial review of their open-ended detention.

Mr. Bush's executive order allowing some warrantless eavesdropping on those inside the United States - including American citizens, permanent legal residents, tourists and other foreigners - is based on classified legal opinions that assert that the president has broad powers to order such searches, derived in part from the September 2001 Congressional resolution authorizing him to wage war on Al Qaeda and other terrorist groups, according to the officials familiar with the N.S.A. operation.

The National Security Agency, which is based at Fort Meade, Md., is the nation's largest and most secretive intelligence agency, so intent on remaining out of public view that it has long been nicknamed "No Such Agency." It breaks codes and maintains listening posts around the world to eavesdrop on foreign governments, diplomats and trade negotiators as well as drug lords and terrorists. But the agency ordinarily operates under tight restrictions on any spying on Americans, even if they are overseas, or disseminating information about them.

What the agency calls a "special collection program" began soon after the Sept. 11 attacks, as it looked for new tools to attack terrorism. The program accelerated in early 2002 after the Central Intelligence Agency started capturing top Qaeda operatives overseas, including Abu Zubaydah, who was arrested in Pakistan in March 2002. The C.I.A. seized the terrorists' computers, cellphones and personal phone directories, said the officials familiar with the program. The N.S.A. surveillance was intended to exploit those numbers and addresses as quickly as possible, they said.

In addition to eavesdropping on those numbers and reading e-mail messages to and from the Qaeda figures, the N.S.A. began monitoring others linked to them, creating an expanding chain. While most of the numbers and addresses were overseas, hundreds were in the United States, the officials said.

Under the agency's longstanding rules, the N.S.A. can target for interception phone calls or e-mail messages on foreign soil, even if the recipients of those communications are in the United States. Usually, though, the government can only target phones and e-mail messages in the United States by first obtaining a court order from the Foreign Intelligence Surveillance Court, which holds its closed sessions at the Justice Department.

Traditionally, the F.B.I., not the N.S.A., seeks such warrants and conducts most domestic eavesdropping. Until the new program began, the N.S.A. typically limited its domestic surveillance to foreign embassies and missions in Washington, New York and other cities, and obtained court orders to do so.

Since 2002, the agency has been conducting some warrantless eavesdropping on people in the United States who are linked, even if indirectly, to suspected terrorists through the chain of phone numbers and e-mail addresses, according to several officials who know of the operation. Under the special program, the agency monitors their international communications, the officials said. The agency, for example, can target phone calls from someone in New York to someone in Afghanistan.

Warrants are still required for eavesdropping on entirely domestic-to-domestic communications, those officials say, meaning that calls from that New Yorker to someone in California could not be monitored without first going to the Federal Intelligence Surveillance Court.

A White House Briefing

After the special program started, Congressional leaders from both political parties were brought to Vice President Dick Cheney's office in the White House. The leaders, who included the chairmen and ranking members of the Senate and House intelligence committees, learned of the N.S.A. operation from Mr. Cheney, Lt. Gen. Michael V. Hayden of the Air Force, who was then the agency's director and is now a full general and the principal deputy director of national intelligence, and George J. Tenet, then the director of the C.I.A., officials said.

It is not clear how much the members of Congress were told about the presidential order and the eavesdropping program. Some of them declined to comment about the matter, while others did not return phone calls.

Later briefings were held for members of Congress as they assumed leadership roles on the intelligence committees, officials familiar with the program said. After a 2003 briefing, Senator Rockefeller, the West Virginia Democrat who became vice chairman of the Senate Intelligence Committee that year, wrote a letter to Mr. Cheney expressing concerns about the program, officials knowledgeable about the letter said. It could not be determined if he received a reply. Mr. Rockefeller declined to comment. Aside from the Congressional leaders, only a small group of people, including several cabinet members and officials at the N.S.A., the C.I.A. and the Justice Department, know of the program.

Some officials familiar with it say they consider warrantless eavesdropping inside the United States to be unlawful and possibly unconstitutional, amounting to an improper search. One government official involved in the operation said he privately complained to a Congressional official about his doubts about the program's legality. But nothing came of his inquiry. "People just looked the other way because they didn't want to know what was going on," he said.

A senior government official recalled that he was taken aback when he first learned of the operation. "My first reaction was, 'We're doing what?' " he said. While he said he eventually felt that adequate safeguards were put in place, he added that questions about the program's legitimacy were understandable.

Some of those who object to the operation argue that is unnecessary. By getting warrants through the foreign intelligence court, the N.S.A. and F.B.I. could eavesdrop on people inside the United States who might be tied to terrorist groups without skirting longstanding rules, they say.

The standard of proof required to obtain a warrant from the Foreign Intelligence Surveillance Court is generally considered lower than that required for a criminal warrant - intelligence officials only have to show probable cause that someone may be "an agent of a foreign power," which includes international terrorist groups - and the secret court has turned down only a small number of requests over the years. In 2004, according to the Justice Department, 1,754 warrants were approved. And the Foreign Intelligence Surveillance Court can grant emergency approval for wiretaps within hours, officials say.

Administration officials counter that they sometimes need to move more urgently, the officials said. Those involved in the program also said that the N.S.A.'s eavesdroppers might need to start monitoring large batches of numbers all at once, and that it would be impractical to seek permission from the Foreign Intelligence Surveillance Court first, according to the officials.

The N.S.A. domestic spying operation has stirred such controversy among some national security officials in part because of the agency's cautious culture and longstanding rules.

Widespread abuses - including eavesdropping on Vietnam War protesters and civil rights activists - by American intelligence agencies became public in the 1970's and led to passage of the Foreign Intelligence Surveillance Act, which imposed strict limits on intelligence gathering on American soil. Among other things, the law required search warrants, approved by the secret F.I.S.A. court, for wiretaps in national security cases. The agency, deeply scarred by the scandals, adopted additional rules that all but ended domestic spying on its part.

After the Sept. 11 attacks, though, the United States intelligence community was criticized for being too risk-averse. The National Security Agency was even cited by the independent 9/11 Commission for adhering to self-imposed rules that were stricter than those set by federal law.

Concerns and Revisions

Several senior government officials say that when the special operation began, there were few controls on it and little formal oversight outside the N.S.A. The agency can choose its eavesdropping targets and does not have to seek approval from Justice Department or other Bush administration officials. Some agency officials wanted nothing to do with the program, apparently fearful of participating in an illegal operation, a former senior Bush administration official said. Before the 2004 election, the official said, some N.S.A. personnel worried that the program might come under scrutiny by Congressional or criminal investigators if Senator John Kerry, the Democratic nominee, was elected president.

In mid-2004, concerns about the program expressed by national security officials, government lawyers and a judge prompted the Bush administration to suspend elements of the program and revamp it.

For the first time, the Justice Department audited the N.S.A. program, several officials said. And to provide more guidance, the Justice Department and the agency expanded and refined a checklist to follow in deciding whether probable cause existed to start monitoring someone's communications, several officials said.

A complaint from Judge Colleen Kollar-Kotelly, the federal judge who oversees the Federal Intelligence Surveillance Court, helped spur the suspension, officials said. The judge questioned whether information obtained under the N.S.A. program was being improperly used as the basis for F.I.S.A. wiretap warrant requests from the Justice Department, according to senior government officials. While not knowing all the details of the exchange, several government lawyers said there appeared to be concerns that the Justice Department, by trying to shield the existence of the N.S.A. program, was in danger of misleading the court about the origins of the information cited to justify the warrants.

One official familiar with the episode said the judge insisted to Justice Department lawyers at one point that any material gathered under the special N.S.A. program not be used in seeking wiretap warrants from her court. Judge Kollar-Kotelly did not return calls for comment.

A related issue arose in a case in which the F.B.I. was monitoring the communications of a terrorist suspect under a F.I.S.A.-approved warrant, even though the National Security Agency was already conducting warrantless eavesdropping.

According to officials, F.B.I. surveillance of Mr. Faris, the Brooklyn Bridge plotter, was dropped for a short time because of technical problems. At the time, senior Justice Department officials worried what would happen if the N.S.A. picked up information that needed to be presented in court. The government would then either have to disclose the N.S.A. program or mislead a criminal court about how it had gotten the information.

Several national security officials say the powers granted the N.S.A. by President Bush go far beyond the expanded counterterrorism powers granted by Congress under the USA Patriot Act, which is up for renewal. The House on Wednesday approved a plan to reauthorize crucial parts of the law. But final passage has been delayed under the threat of a Senate filibuster because of concerns from both parties over possible intrusions on Americans' civil liberties and privacy.

Under the act, law enforcement and intelligence officials are still required to seek a F.I.S.A. warrant every time they want to eavesdrop within the United States. A recent agreement reached by Republican leaders and the Bush administration would modify the standard for F.B.I. wiretap warrants, requiring, for instance, a description of a specific target. Critics say the bar would remain too low to prevent abuses.

Bush administration officials argue that the civil liberties concerns are unfounded, and they say pointedly that the Patriot Act has not freed the N.S.A. to target Americans. "Nothing could be further from the truth," wrote John Yoo, a former official in the Justice Department's Office of Legal Counsel, and his co-author in a Wall Street Journal opinion article in December 2003. Mr. Yoo worked on a classified legal opinion on the N.S.A.'s domestic eavesdropping program.

At an April hearing on the Patriot Act renewal, Senator Barbara A. Mikulski, Democrat of Maryland, asked Attorney General Alberto R. Gonzales and Robert S. Mueller III, the director of the F.B.I., "Can the National Security Agency, the great electronic snooper, spy on the American people?"

"Generally," Mr. Mueller said, "I would say generally, they are not allowed to spy or to gather information on American citizens."

President Bush did not ask Congress to include provisions for the N.S.A. domestic surveillance program as part of the Patriot Act and has not sought any other laws to authorize the operation. Bush administration lawyers argued that such new laws were unnecessary, because they believed that the Congressional resolution on the campaign against terrorism provided ample authorization, officials said.

The Legal Line Shifts

Seeking Congressional approval was also viewed as politically risky because the proposal would be certain to face intense opposition on civil liberties grounds. The administration also feared that by publicly disclosing the existence of the operation, its usefulness in tracking terrorists would end, officials said.

The legal opinions that support the N.S.A. operation remain classified, but they appear to have followed private discussions among senior administration lawyers and other officials about the need to pursue aggressive strategies that once may have been seen as crossing a legal line, according to senior officials who participated in the discussions.

For example, just days after the Sept. 11, 2001, attacks on New York and the Pentagon, Mr. Yoo, the Justice Department lawyer, wrote an internal memorandum that argued that the government might use "electronic surveillance techniques and equipment that are more powerful and sophisticated than those available to law enforcement agencies in order to intercept telephonic communications and observe the movement of persons but without obtaining warrants for such uses."

Mr. Yoo noted that while such actions could raise constitutional issues, in the face of devastating terrorist attacks "the government may be justified in taking measures which in less troubled conditions could be seen as infringements of individual liberties."

The next year, Justice Department lawyers disclosed their thinking on the issue of warrantless wiretaps in national security cases in a little-noticed brief in an unrelated court case. In that 2002 brief, the government said that "the Constitution vests in the President inherent authority to conduct warrantless intelligence surveillance (electronic or otherwise) of foreign powers or their agents, and Congress cannot by statute extinguish that constitutional authority."

Administration officials were also encouraged by a November 2002 appeals court decision in an unrelated matter. The decision by the Foreign Intelligence Surveillance Court of Review, which sided with the administration in dismantling a bureaucratic "wall" limiting cooperation between prosecutors and intelligence officers, cited "the president's inherent constitutional authority to conduct warrantless foreign intelligence surveillance."

But the same court suggested that national security interests should not be grounds "to jettison the Fourth Amendment requirements" protecting the rights of Americans against undue searches. The dividing line, the court acknowledged, "is a very difficult one to administer."

Barclay Walsh contributed research for this article.

'New York Times' Gets Strong Blog Response to Holding, and Running, Domestic Spying Story--As Keller Offers Explanation
Bill Keller




By E&P Staff

Published: December 16, 2005 1:55 PM ET

NEW YORK The New York Times' revelation on Friday of a presidential order signed in 2002 allowing the National Security Agency to spy on hundreds of people inside the U.S.and the newspaper's decision to hold off on the report for a year at the request of the White House--has inspired a wide reaction, including at the paper's Web site itself.

For one of the first, if not the first, time with a major story, the Times has included a prominent link right under a bombshell story that takes readers to a variety of postings by bloggers. The Washington Post online has been carrying blog reactions for some time.

The bloggers who get links at the Times today include conservatives Glenn Reynolds ("a major shift in U.S. surveillance policies"), Hindrocket of Powerline and Michelle Malkin (she denounces the "civil liberties Chicken Littles" at the paper), as well as a sampling of liberals. The paper does not link to Matt Drudge, who today has been accusing the paper of only publishing the story now because co-author James Risen has a book on this general subject coming out soon.

It also does not link to Will Bunch, the award-winning Philadelphia Daily News reporter who writes the "Attytood" blog there. He charges that the Times likely had this shocking information before the November 2004 election, and if it had come out with it then it would have sunk Bush's chances for re-election. He also mentions that this comes on top of Times' reporter Judith Miller not coming forward in the Plame case last year, which allegedly also helped Bush win. The media got "gamed" in the election, he declares.

Referring to today's story, Bunch writes: "We'd like to know a lot more about how this all transpired -- who talked to whom at the Times, and when did they talk? Did the pleading come before Nov. 2, 2004, or after? Was anyone on the White House political side -- i.e., Karl Rove --involved? You would think that after the Judy Miller fiasco, the Times would be much, much more transparent in the backstory of how this story was published. But you would think wrong&."

Later in the day, however, the Times released a statement by Executive Editor Bill Keller, which read in part:

"We start with the premise that a newspaper's job is to publish information that is a matter of public interest. Clearly a secret policy reversal that gives an American intelligence agency discretion to monitor communications within the country is a matter of public interest. From the outset, the question was not why we would publish it, but why we would not.

"A year ago, when this information first became known to Times reporters, the administration argued strongly that writing about this eavesdropping program would give terrorists clues about the vulnerability of their communications and would deprive the government of an effective tool for the protection of the country's security. Officials also assured senior editors of the Times that a variety of legal checks had been imposed that satisfied everyone involved that the program raised no legal questions. As we have done before in rare instances when faced with a convincing national security argument, we agreed not to publish at that time.

"We also continued reporting, and in the ensuing months two things happened that changed our thinking.

"First, we developed a fuller picture of the concerns and misgivings that had been expressed during the life of the program. It is not our place to pass judgment on the legal or civil liberties questions involved in such a program, but it became clear those questions loomed larger within the government than we had previously understood.

"Second, in the course of subsequent reporting we satisfied ourselves that we could write about this program -- withholding a number of technical details -- in a way that would not expose any intelligence-gathering methods or capabilities that are not already on the public record."

Full Coverage: Espionage & Intelligence

LINK

Bush 'backed spying on Americans'
President Bush allowed security agents to eavesdrop on people inside the US without court approval after 9/11, the New York Times has reported.
Under a 2002 presidential order, the National Security Agency has been monitoring international communications of hundreds in the US, the paper says.

Before, the NSA had typically limited US surveillance to foreign embassies.

Questioned about the report, Condoleezza Rice said Mr Bush had never ordered anyone to do anything illegal.

But some NSA officials familiar with the operation have questioned whether the surveillance of calls and e-mails has crossed constitutional limits on legal searches, according to the Times.

American law usually requires a secret court, known as a Foreign Intelligence Surveillance Court, to give permission before intelligence officers can conduct surveillance on US soil.

When asked about the programme on US TV, the secretary of state, Condoleezza Rice, said: "The president acted lawfully in every step that he has taken".

"He takes absolutely seriously his constitutional responsibility both to defend Americans and to do it within the law," she said.

She declined to discuss details of the New York Times report.

'Sea change'

The newspaper said nearly a dozen current and former administration officials discussed the programme with reporters.

It's almost a mainstay of this country that the NSA only does foreign searches
Unnamed ex-senior official

They were granted anonymity because of the classified nature of the scheme.

Under the programme, the NSA has eavesdropped on as many as 500 people inside the US at any given time in its search for evidence of terrorist activity, the paper said.

Overseas, 5,000 to 7,000 people suspected of terrorist ties are monitored at one time.

"This is really a sea change," a former senior official who specialises in national security law told the paper.

"It's almost a mainstay of this country that the NSA only does foreign searches."

The New York Times said it delayed publishing the information on the move for a year, in response to White House concerns it could jeopardise investigations.

Some officials said the programme had helped to uncover several terror plots, including one by an Ohio lorry driver who was jailed in 2003 for supporting al-Qaeda and targeting a New York bridge for sabotage.

'Above the law'

Officials cited by the paper said the Bush administration saw the scheme as necessary to disclose terror threats.

However, the paper reported that questions about the legality of the scheme led the Bush administration to suspend it temporarily last year and impose new restrictions.

The American Civil Liberties Union (ACLU) said eavesdropping in the US without a court order and without complying with the procedures of the Foreign Intelligence Surveillance Act was "both illegal and unconstitutional".

"The administration is claiming extraordinary presidential powers at the expense of civil liberties and is putting the president above the law," director Caroline Fredrickson said.

The group called on Congress to investigate the report.

The Bush administration has faced opposition over some anti-terrorism initiatives in the past, such as the Patriot Act, which is up for renewal by Congress.

The law grants government agencies extraordinary powers to spy on and prosecute those suspected of terrorism.

Opponents say many of its provisions infringe civil liberties.

A Half-Century of Surveillance
HISTORY Created in 1952, the National Security Agency is the biggest American intelligence agency, with more than 30,000 employees at Fort Meade, Md., and listening posts around the world. Part of the Defense Department, it is the successor to the State Department's "Black Chamber" and American military eavesdropping and code-breaking operations that date to the early days of telegraph and telephone communications.

MISSION The N.S.A. runs the eavesdropping hardware of the American intelligence system, operating a huge network of satellites and listening devices around the world. Traditionally, its mission has been to gather intelligence overseas on foreign enemies by breaking codes and tapping into telephone and computer communications.

SUCCESSES Most of the agency's successes remain secret, but a few have been revealed. The agency listened to Soviet pilots and ground controllers during the shooting down of a civilian South Korean airliner in 1983; traced a disco bombing in Berlin in 1986 to Libya through diplomatic messages; and, more recently, used the identifying chips in cellphones to track terrorist suspects after the 2001 attacks.

DOMESTIC ACTIVITY The disclosure in the 1970's of widespread surveillance on political dissenters and other civil rights abuses led to restrictions at the N.S.A. and elsewhere on the use of domestic wiretaps. The N.S.A. monitors United Nations delegations and some foreign embassy lines on American soil, but is generally prohibited from listening in on the conversations of anyone inside the country without a special court order.

OFFICIAL RULES Since the reforms of the late 1970's, the N.S.A. has generally been permitted to target the communications of people on American soil only if they are believed to be "agents of a foreign power"  a foreign nation or international terrorist group  and a warrant is obtained from the Foreign Intelligence Surveillance Court.

EXPANDED ROLE Months after the terror attacks of Sept. 11, 2001, President Bush signed a secret executive order that relaxed restrictions on domestic spying by the N.S.A., according to officials with knowledge of the order. The order allows the agency to monitor without warrants the international phone calls and e-mail messages of some Americans and others inside the United States.

National Security Agency

Bush allowed spying on Americans in US after 9/11

US domestic spying row

Its Dirty Tricks All Over Again

Violating the Constitution
By Karen Kwiatkowski
t r u t h o u t | Perspective

Sunday 18 December 2005

Retired USAF lieutenant colonel Karen Kwiatkowski, who spent two years at NSA headquartes, discusses the fact that President Bush signed an executive order that allegedly allowed the collection and operational intelligence use of international telephone or electronic mail conversations, even if one or more participants were Americans. She says many questions must be asked and answered, including the most important one: "Is it right?"
The New York Times reports that the National Security Agency may have violated constitutional protections against unwarranted government intrusion into citizen's lives and confiscation of private property. In early 2002, President Bush signed an executive order that allegedly allowed the collection and operational intelligence use of international telephone or electronic mail conversations, even if one or more participants were Americans. This revelation, coming in advance of a related book by Times national security reporter James Risen entitled "State of War: The Secret History of the CIA and the Bush Administration" is disturbing.

In 1996 and 1997, I was stationed at NSA Headquarters, Fort Meade, Maryland, assigned to a unit of the Air Force Air Intelligence Agency, headquartered in San Antonio, Texas. Our commander at the time was Air Force Major General Michael Hayden. From my perspective, his reputation was sterling. I remember a visit he made to our detachment and to NSA. We listened to General Hayden eloquently share his theories about leadership and integrity. I remember it to this day because it was a breath of fresh air, in light of the Clinton administration appearances of national security incompetence and widely reported investigations by Special Prosecutor Ken Starr. Hayden told us that his family and his Catholic upbringing had instilled in him a strong sense of right and wrong. I came away from that briefing with my faith restored in Air Force flag officers, and a firm belief that here was a man with the innate courage to do the right thing.

A few years later, Lt General Hayden was appointed as NSA Director, in March 1999. I remember thinking that this could only be a good thing, given the pressures that NSA was under during my years there. In 1997 and early 1998, the NSA bureaucracy faced new demands, both technological and political. Technologically, commercially available software encryption had advanced significantly, and continued to advance at a rate that NSA, under constraints of budget and government personnel management systems, had been unable to match. The preferred approach, and something NSA had done for years, was to work hard to develop agreements with commercial hardware and software manufacturers for information sharing arrangements. These arrangements were designed such that if necessary for national security, the NSA could efficiently get what it needed from the massive sea of commercial communications.

Politically, the problem was far more difficult. Certain members of Congress were demanding access to NSA telephone conversation records between certain identified overseas residents and their American co-conversationalists. NSA was happy as always to provide the part of the intercept that related to overseas targets; but the domestic material, material on American citizens, was not legal to collect or use. When this material was inadvertently collected on known American citizens, often on the US territorial side of the conversation, it was not made available to anyone, and was presumably destroyed.

Certain members of Congress were particularly interested in campaign donations from Chinese individuals, and in determining possible national security breaches or lapses that may have resulted from these financial relationships. Specifically, the concerns among some Republicans and some Democrats were that Clinton had given away, or sold, the technology farm to China. Had trade policy generosity to China been due to legal or illegal campaign contributions and deals made between agents of the PRC and associates of the Clinton administration? Inquiring minds wanted to know, and congressional representatives wanted NSA to provide the US side of the intercepts.

Clearly, this information would have been useful to the Congress, the special prosecutor and others - but unfortunately, warrants weren't immediately available. My impression was (and I saw no indications to the contrary) that the NSA Director at the time pushed back, requiring the appropriate legal warrants and documentation be presented before handing over any material. In other words, the NSA Director, and all of us, and American citizens in the fifty states and elsewhere, were protected by the Constitution. The system worked. However, Congressmen were frustrated, including Porter Goss, Chairman of the House Permanent Select Committee on Intelligence.

Between this activity in 1997 and 1998, and the attacks of 9-11, I don't know how the debate between Congress, the Department of Justice and the NSA leadership progressed. However, some aspects are crystal clear. Hayden served as NSA Director from 1999 until 2005, and now serves as the deputy to John Negroponte in the Directorate of National Intelligence. His is an intelligence career success story. The fifteenth director of the NSA, he served a longer tenure than any previous director, by half. In the intelligence field, there are few four star general positions and they are fiercely coveted. The intelligence reorganization that installed a super-bureaucracy above the CIA Director also created a brand new four star position, and Hayden was promoted to General in April 2005 to assume that position.

There are many questions we need to ask and answer regarding the 2002 executive order. What security, privacy and accountability guarantees do we have, should we have, and should we pursue regarding the government's data collection and retention process? Is executive eavesdropping on American citizens constitutional, in any way? Is it legal? In times of real or surreal war, Congress invariably becomes a rubber stamp for the bully pulpit at Pennsylvania Avenue. But our legislators have the distinct responsibility, and hopefully the motivation, to work hard and sort this out for the rest of us.

I may have been wrong about the integrity and personal courage of General Mike Hayden. His immediate boss, Ambassador Negroponte is a man known for bending the rules, for shaping political reality to pursue a "perfect" political solution. Negroponte's style seems to have withstood the test of time, whether the "final solution" of the day is the defeat of communism in Central America, the creation of an American-dependent Iraqi colony where he recently served as ostensible U.S. Ambassador, or the increasingly mystical White House mission of "fighting global terror."

Apparently, the White House over a year ago asked the New York Times not to publish the facts of NSA eavesdropping on American citizens. True to character, the Times complied and cooperated. But now that we know about it, the media, every member of Congress and every concerned American, should be asking "Is this Constitutional?" and "Is this legal?" The executive branch itself should be asking these questions as well. Further, the executive branch would do well to ask, in a business sense, "Is this worthwhile?" and "Is it cost effective?" and "Does it work to improve national security?" I'd like to think that, in addition to these questions, my old boss Michael Hayden is asking the very simple, straightforward, and ultimately the most courageous question. "Is it right?"

Karen Kwiatkowski, Ph.D., a retired USAF lieutenant colonel who spent her final four and a half years in uniform working at the Pentagon's Near East/South Asia bureau. She lives with her freedom-loving family in the Shenandoah Valley, and among other things, has written on defense issues for militaryweek.com, hosts the call-in radio show American Forum on Saturday nights.