Bush Lets U.S. Spy on Callers Without Courts

By JAMES RISEN and ERIC LICHTBLAU
December 16, 2005

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.

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In Speech, Bush Says He Ordered Domestic Spying

By DAVID E. SANGER
December 18, 2005

WASHINGTON, Dec. 17 - President Bush acknowledged on Saturday that he had
ordered the National Security Agency to conduct an electronic eavesdropping
program in the United States without first obtaining warrants, and said he would
continue the highly classified program because it was "a vital tool in our war
against the terrorists."

In his weekly radio address from the White House, which, in an unusual step, he
delivered live, Mr. Bush also lashed out at senators - both Democrats and
Republicans - who voted on Friday to block the reauthorization of the USA
Patriot Act, which expanded the president's power to conduct surveillance in the
aftermath of the Sept. 11 attacks.

The revelation that Mr. Bush had secretly instructed the security agency to
intercept the communications of Americans and suspected terrorists inside the
United States, without first obtaining warrants from a secret court that
oversees intelligence matters, was cited by several senators as a reason for
their vote.

"In the war on terror, we cannot afford to be without this law for a single
moment," Mr. Bush said from behind a lectern in the Roosevelt Room, next to the
Oval Office.

He said the Senate's action "endangers the lives of our citizens," and added
that "the terrorist threat to our country will not expire in two weeks," a
reference to the approaching deadline of Dec. 31, when critical provisions of
the current law will end.

Mr. Bush's public confirmation Saturday morning of the existence of one of the
country's most secret intelligence programs, which had been known to only a
select number of his aides, was a rare moment in the presidency. But he linked
it with a forceful assertion of his own authority to act without court approval,
making it clear that he planned to resist any effort to infringe on his powers.

As recently as Friday, when he was interviewed by Jim Lehrer of PBS, Mr. Bush
refused to confirm the report that day in The New York Times that in 2002 he
authorized the domestic spying operation by the security agency, which is
usually barred from intercepting domestic communications.

But as the clamor over the revelation rose and Vice President Dick Cheney went
to Capitol Hill to counter charges that the program was an illegal assumption of
presidential powers, even in a time of war, Mr. Bush and his senior aides
decided that it was futile to dismiss the report as "speculation," the word he
used in his interview.

In his radio address, Mr. Bush sharply criticized the leak of the information,
saying that it had been "improperly provided to news organizations." As a result
of the report, he said, "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. Revealing classified information is
illegal, alerts our enemies, and endangers our country."

But Mr. Bush did not address the main question directed at him by some members
of Congress on Friday: why he felt it necessary to circumvent the system
established under current law, which allows the president to seek emergency
warrants, in secret, from the court that oversees intelligence operations. His
critics said that under that law, the administration could have obtained the
same information.

Senator Arlen Specter, the Pennsylvania Republican who is chairman of the Senate
Judiciary Committee, said on Friday that "there is no doubt this is
inappropriate" and that he would conduct hearings to determine why Mr. Bush took
the action.

The president said on Saturday that he acted in the aftermath of the Sept. 11
attacks because the United States had failed to detect communications that might
have tipped them off to the plot. He said that two of the hijackers who flew a
jet into the Pentagon, Nawaf al-Hamzi and Khalid al-Mihdhar, "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."

As a result, "I authorized the National Security Agency, consistent with
U.S. law and the Constitution, to intercept the international communications of
people with known links to Al Qaeda and related terrorist organizations,"
Mr. Bush said. "This is a highly classified program that is crucial to our
national security."

Mr. Bush said that every 45 days the program was reviewed, based on "a fresh
intelligence assessment of terrorist threats to the continuity of our government
and the threat of catastrophic damage to our homeland." That review involves the
attorney general, Alberto R. Gonzales, and Mr. Bush's counsel, Harriet E. Miers,
whom Mr. Bush unsuccessfully tried to nominate to the Supreme Court this year.

"I have reauthorized this program more than 30 times since the Sept. 11 attacks,
and I intend to do so for as long as our nation faces a continuing threat from
Al Qaeda and related groups," the president said. He said Congressional leaders
had been repeatedly briefed on the program, and that intelligence officials
"receive extensive training to ensure they perform their duties consistent with
the letter and intent of the authorization."

The Patriot Act vote in the Senate, coming a day after Mr. Bush was forced to
accept an amendment sponsored by Senator John McCain, Republican of Arizona,
that places limits on interrogation techniques that can be used by Central
Intelligence Agency officers and other non-military personnel, was a setback to
the president's assertion of broad powers. In both cases, he lost a number of
Republicans along with almost all Democrats.

"This reflects a complete transformation of the debate in America over torture,"
said Tom Malinowski, the Washington advocacy director of Human Rights
Watch. "After the attacks, no politician was heard expressing any questions
about the executive branch's treatment of captured terrorists." That has now
"changed fundamentally," Mr. Malinowski said, a view that even some of
Mr. Bush's aides and former aides echoed.

Mr. Bush's unusual radio address is part of a broader effort this weekend to
regain the initiative, after weeks in which the political ground has shifted
under his feet. On Sunday evening he has scheduled a live television address
from the Oval Office to celebrate the success of the elections in Iraq, and to
declare that they are evidence that he made the right decision to depose Saddam
Hussein.

The last time Mr. Bush delivered such an address, in the formal setting that he
usually tries to avoid, was in March 2003, when he informed the world that he
had ordered the Iraq invasion.

As part of the planned address, Mr. Bush appears ready to at least hint at
reductions in the troop levels in Iraq, which he has said in a series of four
recent speeches on Iraq strategy could be the ultimate result if Iraqi security
forces are able to begin to perform more security operations currently conducted
by American forces.

Currently, there are roughly 160,000 American troops in Iraq, a number that was
intended to keep order for Friday's parliamentary elections, which were
conducted with little violence and an unexpectedly heavy turnout of Sunnis, the
ethnic minority that ruled the country under Mr. Hussein's reign. The American
troop level was already scheduled to decline to 138,000 - what the military
calls its "baseline" level of troops - after the election.

But on Friday, as the debate in Washington swirled over the president's order to
the N.S.A., Gen. George W. Casey Jr., the top American commander in Iraq, hinted
that further reductions may be on the way. "We're doing our assessment, and I
make some recommendations in the coming weeks about whether I think it's prudent
to go below the baseline," Gen. Casey told reporters in Baghdad.

In Washington, officials said that could enable Mr. Bush to point to deeper cuts
in coming months, assuming that the new government forms and the insurgency is
held in check. The Army, for example, has prepared plans to hold back one
brigade that was scheduled to enter Iraq and to assign some soldiers from
another brigade to train Iraqis and guard utilities and other public
infrastructure, Pentagon civilian and military officials say. Under these plans,
a Germany-based brigade of the First Armored Division, now in Kuwait, would
remain there as a quick-reaction force; all or part of the brigade also could be
sent home from Kuwait should the security in Iraq situation settle down in the
weeks after the vote, officials said. An Army brigade is 3,000 to 5,000 troops,
but can have additional supporting units attached to it.

A brigade of the First Infantry Division based at Fort Riley, Kan., would be
sent to Iraq in smaller units, and not all at once, under the proposals. Some
soldiers from the brigade could be sent to Iraq to help train Iraqi security
forces, while others might be sent to Iraq subsequently to guard utilities,
infrastructure and other important locations as required next year, Pentagon
civilian and military officials said.

It is unclear how far Mr. Bush may be prepared to go in his Oval Office speech
to committing to troop reductions; in his four recent speeches on Iraq he said
repeatedly that troop levels would decline only as Iraqi and American forces
accomplished several objectives: Breaking the back of the insurgency, protecting
the new government, and making sure that terror groups cannot use Iraq as a
launching pad for new attacks.

--------------------------------------------------------

Bush reportedly authorized agency to spy on Americans
NSA's actions tied to Al Qaeda

By Dan Eggen, Washington Post  |  December 16, 2005

WASHINGTON -- President Bush signed a secret order in 2002 authorizing the
National Security Agency to eavesdrop on US citizens and foreign nationals in
the United States, despite previous legal prohibitions against such domestic
spying, sources with knowledge of the program said last night.

The secretive NSA, which had generally been forbidden from domestic spying
except in narrow circumstances involving foreign nationals, has monitored the
e-mails, telephone calls, and other communications of hundreds, and perhaps
thousands, of people under the program, The New York Times reported last night.

The aim of the program was to rapidly monitor the phone calls and other
communications of people in the United States believed to have contact with
suspected associates of Al Qaeda and other terrorist groups overseas, according
to two former senior administration officials. Authorities, including General
Michael V. Hayden, the former NSA director, were worried that vital information
could be lost in the time it took to secure a warrant from a special
surveillance court, sources said.

But the program's ramifications also prompted concerns from some quarters,
including from Senator Jay Rockefeller, Democrat of West Virginia, and from the
presiding judge of the surveillance court, which oversees lawful domestic
spying, according to the Times.

The Times said it delayed publishing its story about the NSA program for a year
after administration officials said its disclosure would harm national security.

The White House made no comment last night. A senior official reached by phone
said the issue was too sensitive to talk about.

Congressional sources familiar with limited aspects of the program would not
discuss any classified details but made clear serious questions existed
regarding the legality of the NSA actions. The sources, who would not be
identified, said there were conditions under which it would be possible to
gather information on Americans if it were part of an investigation into foreign
intelligence.

But those cases are supposed to be minimized. The sources said the actual work
of the NSA is so closely held that it is difficult to determine under which
circumstances the information is being used within the intelligence community
and whether it comports with current law.

Kate Martin, director of the Center for National Security Studies at George
Washington University, said the secret order may amount to the president
authorizing criminal activity.

The law governing clandestine surveillance in the United States, the Foreign
Intelligence Surveillance Act, prohibits conducting electronic surveillance not
authorized by statute.

''This is as shocking a revelation as we have ever seen from the Bush
administration," said Martin, who has been critical of the administration's
surveillance policies. ''It is, I believe, the first time a president has
authorized government agencies to violate a specific criminal prohibition and
eavesdrop on Americans."

------------------------------------------

Senate to probe report of US spying
Furor on surveillance boosts Patriot Act foes

By Charlie Savage, Globe Staff  |  December 17, 2005

WASHINGTON -- Senate Judiciary Committee chairman Arlen Specter declared
yesterday that Congress would launch hearings to investigate a report that
President Bush secretly authorized warrantless spying on US citizens following
the terrorist attacks of Sept. 11, 2001.

''There is no doubt that this is inappropriate," said Specter, Republican of
Pennsylvania. He added that the hearings would be ''a very, very high priority"
when Congress returns from its winter break in January.

The report galvanized opposition to the USA Patriot Act, the counterterrorism
law that is set to expire at the end of December. Opponents in the Senate,
including some Republicans, invoked the issue of domestic spying to block a vote
on extending the Patriot Act. They called for greater oversight and restrictions
on government powers to search citizens without their knowledge.

''I don't want to hear again from the attorney general or anyone on this floor
that this government has shown it can be trusted to use the power we give it
with restraint and care," said Senator Russell Feingold, Democrat of
Wisconsin. ''This shocking revelation [of warrantless domestic spying] ought to
send a chill down the spine of every senator and every American."

And Senator Edward M. Kennedy, Democrat of Massachusetts, said: ''This is Big
Brother run amok. . . . With these new developments, we must take a step back
and not rush the Patriot Act, further risking our civil protections."

The New York Times reported yesterday that Bush had secretly ordered the
National Security Agency to intercept international phone calls and e-mails by
US citizens. The report said Bush authorized the NSA to spy on as many as 500
citizens at a time without obtaining warrants.

In 1978, Congress passed a law requiring the government to obtain a warrant
before planting bugs or tapping the phone of a US citizen. The law was a
response to evidence that President Richard M. Nixon had used federal agents to
spy on his domestic enemies in the name of protecting national security.

The law declares that a judicial warrant ''shall be the exclusive means by which
electronic surveillance . . . and the interception of domestic wire and oral
communications may be conducted."

Presidents since 1978 have claimed to honor the law, but executive-branch
lawyers have also argued that the president has sweeping power to protect
national security and is not bound to follow congressional restrictions.

Bush's lawyers have invoked the president's powers to protect national security
to justify many of the administration's detention policies.

Still, civil libertarians yesterday argued that any presidential order
sidestepping the 1978 law would be both ''illegal and unconstitutional," said
Caroline Fredrickson, Washington director of the American Civil Liberties Union.

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

Bush, in an interview yesterday on the PBS program ''NewsHour With Jim Lehrer,"
declined to comment on the report but insisted that his administration was doing
everything ''within the law" to stop terrorism.

''After 9/11, I told the American people I would do everything in my power to
protect the country, within the law, and that's exactly how I conduct my
presidency," Bush said.

Legal specialists said yesterday that the Supreme Court has never defined the
scope of the president's power to put Americans under surveillance without a
warrant.

After the 2001 attacks, the Bush administration's legal team adopted an
aggressive view of its powers to fight terrorism. But these legal theories,
outlined in internal memos that later became public, have drawn widespread
criticism.

''Once you begin with the twin assumptions that an emergency justifies
suspension of constitutional rights and that the president cannot be bound by
the rule of law when he acts as commander in chief, there is very little left to
restrain the president," said Yale constitutional law professor Jack
Balkin. ''And so he has not been restrained."

The administration's broad reading of Bush's executive powers has led to a host
of disputed policies. The administration contended that Bush could hold
Afghanistan war prisoners at the US naval prison at Guantanamo Bay, Cuba,
without oversight by courts, but the Supreme Court ruled in 2004 that the
detainees must be allowed to challenge their imprisonment in federal court.

And Bush's lawyers declared that the United Nations Convention Against Torture
did not apply to interrogators working overseas. Congress this week forced Bush
to accept a law making clear that the torture convention standards apply
everywhere.

Yesterday's report that Bush sidestepped the 1978 surveillance law also seems
likely to cause trouble for the administration. Representative George Miller,
Democrat of California, called for the appointment of a special counsel to
investigate whether Bush broke the law and violated the Constitution.

But specialists on national security law said yesterday that the administration
can cite at least one court ruling to support any assertion that Bush had the
power to sidestep the 1978 surveillance law and authorize spying without a
warrant.

Under the 1978 law, a special court operates out of the Justice Department to
review requests for warrants in cases involving national security. In 2002, an
appeals panel of the court concluded that the president has ''inherent
constitutional authority to conduct warrantless foreign intelligence
surveillance."

It added that ''a crucial factor" in determining whether a search is reasonable
is ''the threat to society."

Still, some specialists on national security law discounted the special court's
opinion, noting that the Supreme Court has never ruled on the matter.

Elizabeth Rindskopf Parker, a former general counsel to the NSA, said the
special court's opinion ''got my blood boiling because in one fell swoop a group
of judges with no particular claim of experience, and who had never sat before,
swept away three decades of rulings and policies about how to interpret these
things."

------------------------------------------------------

A Half-Century of Surveillance

December 16, 2005

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.

-----------------------------------------------

GOP suffers blow as Senate blocks Patriot Act extension
Vote underscores bipartisan worries over civil liberties

By Rick Klein, Globe Staff  |  December 17, 2005

WASHINGTON -- The Senate yesterday refused to extend expiring portions of the
Patriot Act, shocking Republican leaders who had confidently predicted victory
and marking another repudiation of the Bush administration's tactics in
combating terrorism.

The vote came amid rising tensions in Congress over disclosures that President
Bush gave the National Security Agency permission to spy on US citizens
following the Sept. 11 terrorist attacks -- and a day after Bush was forced to
accept a blanket ban on torture, legislation that he had long pushed to scuttle.

In rejecting the extension, lawmakers from both parties reflected deepening
questions about the Bush administration's methods in its war on terrorism.

Senator Chuck Hagel, a Nebraska Republican, said Congress must set a new
''equilibrium" between national security and personal freedoms. ''Confidence and
trust in one's government is the only currency there is in life in a democracy,"
said Hagel, one of four Republicans to join nearly all Senate Democrats in
voting against the extension.

''If citizens do not have confidence and trust in their government -- that their
government is protecting their rights, and those that they send to represent
them in Washington are protecting their rights -- then there will be a very
severe breakdown in society," he said.

The filibuster, triggered by a bipartisan group of senators worried about
protections for civil liberties, leaves major provisions of the Patriot Act in
danger of expiring at the end of the year. The White House and majority leader
Bill Frist, a Tennessee Republican, rejected a short-term extension of the law,
which would have allowed time to negotiate changes early next year.

Before the vote, Frist and his leadership team were sure that they could get the
60 votes needed to end debate on the Patriot Act extension and bring the bill to
a vote. But rank-and-file senators, some of them angry over a New York Times
report that Bush had personally authorized the NSA to eavesdrop on Americans'
conversations and e-mails, didn't comply.

Frist mustered 53 votes -- seven short of the number he needed; besides Hagel,
Republican senators John Sununu of New Hampshire, Larry E. Craig of Idaho, and
Lisa Murkowski of Alaska joined with the Democrats. Senate minority leader Harry
Reid, appearing at a rally with House and Senate Democrats after the vote, said
his party upheld the law as currently written.

''We killed the Patriot Act," declared Reid, Democrat of Nevada. Later in the
day, he gave a speech on the Senate floor explaining that Democrats don't want
to kill the Patriot Act outright, but want to guarantee more safeguards.

The vote sent the White House and Republican Senate leaders scrambling for a
fallback strategy. The White House immediately dispatched Vice President Dick
Cheney and Andrew H. Card Jr., the president's chief of staff, to the Capitol to
plot with Senate Republicans.

Frist said he would keep the Senate in session through the weekend to pass the
Patriot Act extension. If the law expires, he said, Democrats who voted to hold
it up would be responsible. Still, he predicted that senators who oppose the
extension will change their minds when they realize their stance could endanger
lives.

''We will pass this bill. It just looks like it's going to take a little bit
longer," said Frist. ''Advance or retreat, it's as simple or that. . . . A vote
against the Patriot Act amounts to retreat."

Republicans warned that a failure to reach a deal will prevent law enforcement
authorities from sharing foreign-intelligence information, and will rob
investigators of a crucial weapon in the war on terrorism. Bush issued a
statement last night urging senators to ''stop their delaying tactics so that we
are not without this critical law for even a single moment."

''These senators need to understand that the Patriot Act expires in 15 days, but
the terrorist threat to America will not expire on that schedule," Bush said.

The bill's opponents demand that, if the Patriot Act is reauthorized, it must
include new provisions, such as allowing the targets of investigations to have
their cases heard by judges, and to appeal gag orders in court. ''The standard
should be to put in place measures that will protect civil liberties no matter
who holds the power," said Sununu, a leader in efforts to insert more safeguards
into the Patriot Act. Speaking on the Senate floor, Sununu paraphrased Benjamin
Franklin: ''Those that would give up essential liberty in pursuit of a little
temporary security deserve neither liberty nor security."

The Patriot Act passed with little opposition after the Sept. 11 attacks, as the
Bush administration pushed to give federal authorities broad new powers to
gather intelligence on potential terrorists.

But the law has emerged as a flashpoint between civil libertarians and the
administration's allies. The FBI's authority to secretly search library and
hospital records -- and to use classified ''national security letters" to demand
documents without a judge's permission -- has been particularly controversial.

Lawmakers who want the act revamped got a boost from the disclosure of the
warrantless wiretaps on US citizens conducted by the NSA, which is charged with
monitoring activities by foreign citizens communicating in other countries.

''I don't want to hear again from the attorney general or anyone on this floor
that this government has shown it can be trusted to use the power we give it
with restraint and care," said Russell Feingold, a Wisconsin Democrat.

Republicans went on the offensive immediately after the vote.

Ken Mehlman, the chairman of the Republican National Committee, issued a
statement with an oblique reference to former senator Max Cleland, a Georgia
Democrat and decorated Vietnam veteran voted out of office three years ago in
part because he opposed creation of the Department of Homeland Security.

''In 2002, the American people rejected politicians who blocked the Department
of Homeland Security to appease public employee unions," Mehlman
said. ''Democrats who blocked the Patriot Act to appease the hard left should
beware."

But Hagel appealed to his fellow Republicans to tone down such rhetoric. ''The
American people generally are pretty fed up with all of this," Hagel said.

Senator Patrick J. Leahy of Vermont, the top Democrat on the judiciary
committee, noted that Democrats are more than willing to extend the law
temporarily until their concerns are addressed.

''Our goal has been to mend the Patriot Act, not to end it," Leahy said.

-----------------------------------------------

December 18, 2005
Editorial
This Call May Be Monitored ...

On Oct. 17, 2002, the head of the National Security Agency, Lt. Gen. Michael
Hayden, made an eloquent plea to a joint House-Senate inquiry on intelligence
for a sober national discussion about whether the line between liberty and
security should be shifted after the 9/11 attacks, and if so, precisely how
far. He reminded the lawmakers that the rules against his agency's spying on
Americans, carefully written decades earlier, were based on protecting
fundamental constitutional rights.

If they were to be changed, General Hayden said, "We need to get it right. We
have to find the right balance between protecting our security and protecting
our liberty." General Hayden spoke of having a "national dialogue" and added:
"What I really need you to do is talk to your constituents and find out where
the American people want that line between security and liberty to be."

General Hayden was right. The mass murders of 9/11 revealed deadly gaps in
United States intelligence that needed to be closed. Most of those involved
failure of performance, not legal barriers. Nevertheless, Americans expected
some reasonable and carefully measured trade-offs between security and civil
liberties. They trusted their elected leaders to follow long-established
democratic and legal principles and to make any changes in the light of day. But
President Bush had other ideas. He secretly and recklessly expanded the
government's powers in dangerous and unnecessary ways that eroded civil
liberties and may also have violated the law.

In Friday's Times, James Risen and Eric Lichtblau reported that sometime in
2002, President Bush signed a secret executive order scrapping a painfully
reached, 25-year-old national consensus: spying on Americans by their government
should generally be prohibited, and when it is allowed, it should be regulated
and supervised by the courts. The laws and executive orders governing electronic
eavesdropping by the intelligence agency were specifically devised to uphold the
Fourth Amendment's prohibition of unreasonable searches and seizures.

But Mr. Bush secretly decided that he was going to allow the agency to spy on
American citizens without obtaining a warrant - just as he had earlier decided
to scrap the Geneva Conventions, American law and Army regulations when it came
to handling prisoners in the war on terror. Indeed, the same Justice Department
lawyer, John Yoo, who helped write the twisted memo on legalizing torture, wrote
briefs supporting the idea that the president could ignore the law once again
when it came to the intelligence agency's eavesdropping on telephone calls and
e-mail messages.

"The government may be justified in taking measures which in less troubled
conditions could be seen as infringements of individual liberties," he wrote.

Let's be clear about this: illegal government spying on Americans is a violation
of individual liberties, whether conditions are troubled or not. Nobody with a
real regard for the rule of law and the Constitution would have difficulty
seeing that. The law governing the National Security Agency was written after
the Vietnam War because the government had made lists of people it considered
national security threats and spied on them. All the same empty points about
effective intelligence gathering were offered then, just as they are now, and
the Congress, the courts and the American people rejected them.

This particular end run around civil liberties is also unnecessary. The
intelligence agency already had the capacity to read your mail and your e-mail
and listen to your telephone conversations. All it had to do was obtain a
warrant from a special court created for this purpose. The burden of proof for
obtaining a warrant was relaxed a bit after 9/11, but even before the attacks
the court hardly ever rejected requests.

The special court can act in hours, but administration officials say that they
sometimes need to start monitoring large batches of telephone numbers even
faster than that, and that those numbers might include some of American
citizens. That is supposed to justify Mr. Bush's order, and that is
nonsense. The existing law already recognizes that American citizens'
communications may be intercepted by chance. It says that those records may be
retained and used if they amount to actual foreign intelligence or
counterintelligence material. Otherwise, they must be thrown out.

President Bush defended the program yesterday, saying it was saving lives, hotly
insisting that he was working within the Constitution and the law, and
denouncing The Times for disclosing the program's existence. We don't know if he
was right on the first count; this White House has cried wolf so many times on
the urgency of national security threats that it has lost all credibility. But
we have learned the hard way that Mr. Bush's team cannot be trusted to find the
boundaries of the law, much less respect them.

Mr. Bush said he would not retract his secret directive or halt the illegal
spying, so Congress should find a way to force him to do it. Perhaps the
Congressional leaders who were told about the program could get the ball
rolling.

---------------------------------------------------

Bush calls leak of spy program 'shameful'
Eavesdropping program aids war on terror, he says
By Michael Kranish, Globe Staff  |  December 20, 2005

WASHINGTON -- President Bush used his year-end news conference yesterday to
resume his public relations offensive against his critics, saying he wants the
Justice Department to find out who committed the ''shameful act" of leaking word
that he secretly approved a special program to spy on US citizens, and blasting
senators who have blocked the renewal of the Patriot Act.

Meeting with reporters at the White House, Bush said he has the power as
commander in chief to repeatedly authorize the National Security Agency to
listen in on private domestic phone calls to crack terrorism cases, and that
program needs secrecy to avoid tipping off suspected terrorists. ''My personal
opinion is, it was a shameful act for someone to disclose this very important
program in a time of war. The fact that we're discussing this program is helping
the enemy."

Some Democrats and Republicans, however, want public hearings to determine if
the eavesdropping program, conducted without a warrant or a judge's permission,
violates the Constitution.

But Bush said his legal staff researched the issue and found he had the
authority to give the NSA permission to conduct wiretaps and surveillance
without warrants -- and he expects federal agents to look into who leaked word
about the program, first reported on Friday by The New York Times.

The program targeted people in the United States who were communicating with
people in other countries; the NSA chiefly monitors communications by foreign
agents overseas and in the United States.

Bush also had some tough talk for senators who are using a filibuster to keep
the Patriot Act -- which the White House considers a crucial law-enforcement
tool against terrorism -- from being renewed until concerns about civil
liberties are addressed.

If the filibuster continues, Bush said, ''I want senators from New York or Los
Angeles or Las Vegas to explain why these cities are safer" without the act.

His remark seemed to target three Senate Democrats who helped block the measure:
Hillary Clinton of New York, Barbara Boxer of California, and Harry Reid of
Nevada, minority leader.

Bush did not mention that four Republican senators have joined the Democrats in
sidetracking the Patriot Act: Chuck Hagel of Nebraska, John Sununu of New
Hampshire, Larry Craig of Idaho, and Lisa Murkowski of Alaska.

Bush took particular aim at Reid, noting that ''the Senate Democratic leader
boasted to a group of political supporters that the Senate Democrats had 'killed
the Patriot Act.' "

Reid said yesterday that he wanted to improve the act, which gives authorities
wide latitude in pursuing investigations of people suspected of terrorist ties.

''Let's be clear about who's killing the Patriot Act -- President Bush and the
Republican leadership," Reid said. ''Twice last week, a bipartisan group of
senators tried to move forward on a three-month extension, but instead of
joining us, the president and the Republican leadership decided they would
rather see the bill expire."

At the news conference, Bush bristled when asked if his actions would create a
''more or less permanent expansion of the unchecked power" of the presidency.

''I disagree with your assertion of 'unchecked power,' " Bush said. ''Hold on a
second, please. There is the check of people being sworn to uphold the law, for
starters. There is oversight. We're talking to Congress all the time, and on
this program, to suggest there's unchecked power is not listening to what I'm
telling you. I'm telling you, we have briefed the United States Congress on this
program a dozen times."

But Reid said yesterday that he learned about the NSA program -- launched after
the Sept. 11, 2001, terrorist attacks and renewed by Bush more than 30 times
since -- in a brief conversation earlier this year.

Reid surmised that 96 out of 100 senators learned about it from The New York
Times.

-----------------------------------

Bush bypassed compliant court on wiretapping
Warrants rarely denied
By Charlie Savage, Globe Staff  |  December 20, 2005

WASHINGTON -- The court that authorizes wiretaps on terrorism suspects had not
rejected a government request for a warrant in its 22-year existence to 2001,
when President Bush issued an order allowing agents to wiretap citizens without
judicial approval.

Bush's actions surprised many lawyers familiar with the court's workings,
because federal law allows the US attorney general to authorize wiretaps without
waiting for a warrant, as long as federal agents later present evidence to a
judge.

Bush and his advisers have argued that the need for rapid monitoring of
international telephone calls involving terrorism suspects had justified his
decision to allow agents to bypass the surveillance law.

The court ''doesn't provide the speed and the agility that we need in all
circumstances to deal with this new kind of threat," Attorney General Alberto
Gonzales said yesterday.

But many lawyers familiar with the Foreign Intelligence Surveillance Court, as
the group of judges who secretly authorize national security wiretaps is known,
challenged Gonzales's description of the court procedures as cumbersome. Records
showed that the court had rejected none of more than 11,000 requests for
warrants from 1979 through 2001. Since then, it has rejected just four of more
than 5,200 applications.

''It's a rubber stamp," said Marc Rotenberg, executive director of the
Electronic Privacy Information Center, a think tank that monitors electronic
government surveillance. Given the court's receptiveness to wiretapping, Bush's
decision to disregard the law ''is all the more extraordinary," he said.

Gonzales also said yesterday that the Bush administration had considered asking
Congress to give the government more flexibility in quickly planting wiretaps on
international calls, but that it had decided to avoid a political fight that
would draw attention to the domestic spying program.

''We've had discussions with . . . certain members of Congress about whether or
not we could get an amendment to [the surveillance law], and we were advised
that that was not something we could likely get, certainly not without
jeopardizing the existence of the program, and, therefore, killing the program,"
Gonzales said. He did not name any of the legislators who had been consulted.

Critics of the administration have noted that after the 2001 terrorist attacks,
Congress was eager to give the administration almost any counterterrorism tool
it asked for -- including relaxing standards for national security wiretaps.

For example, in the USA Patriot Act, passed in 2001, Congress expanded a program
allowing the attorney general to approve emergency wiretaps without warrants,
giving agents 72 hours to present evidence, rather than 24.

''We have changed aspects of that law at the request of the administration in
the USA Patriot Act to allow for a more aggressive but still lawful defense
against terror," Senator Dianne Feinstein, Democrat of California, said in a
Senate speech on Friday, criticizing Bush's decision to authorize wiretaps on
his own.

Congress set up the special electronic surveillance court in 1978 in response to
revelations that former President Richard M. Nixon had used the FBI to spy on
his domestic enemies. The law required the government to obtain a warrant from
the court before it could wiretap a phone line.

The court is composed of federal judges who are appointed by the Supreme Court's
chief justice to oversee wiretap requests on an ongoing basis.

A single judge can authorize a wiretap if the FBI shows evidence that there is
probable cause to believe that a target is affiliated with a foreign
power. Originally the main targets were Soviet spies, but in recent years much
of the focus has shifted to Al Qaeda members.

If FBI agents wanted to tap a telephone line as part of a national security
investigation, they would give a government lawyer information about the suspect
-- such as where the phone number came from and how the target might be linked
to a foreign power.

Lawyers may reject applications before taking them to a judge, but such
occurrences are rare, according to those familiar with the process.

General Michael V. Hayden, the former director of the National Security Agency,
which oversees Bush's secret wiretapping program, defended the administration's
bypassing of the court yesterday, arguing that the court's procedures were
inefficient.

Agents must move quickly when they come across phone numbers or e-mail addresses
associated with Al Qaeda, he said.

''The whole key here is agility," said Hayden, who is now Bush's deputy director
of national intelligence. He said that following the surveillance law ''involves
marshaling arguments [and] looping paperwork around, even in the case of
emergency authorizations from the attorney general."

But Michael Woods, who served as chief of the national security law unit at the
Federal Bureau of Investigation from 1997 to 2002, said yesterday that while
wiretap requests for routine investigations can take weeks for approval, wiretap
orders for urgent investigations can be obtained within hours. Sometimes agents
even go to the judges' homes in the middle of the night, he said.

''This process can be done very quickly," Woods said. ''If this is seen as a
very hot thing, it can be pushed through in days, or even hours.

''And," Woods added in his statement, ''on top of that there is the provision
that says that if it's a real emergency, the attorney general can authorize the
surveillance verbally, and then you have 72 hours to get everything in front of
a judge."

As national security specialists tried to understand why the administration had
felt a need to sidestep the surveillance law, members of Congress continued to
boil over the revelation that Bush believes he has the legal authority to do so.

There were signs that the dispute could spill over into next month's Supreme
Court confirmation hearings for Judge Samuel A. Alito Jr.

Alito, a former Reagan administration lawyer, has advocated a strong view of
presidential power.

Senators Arlen Specter of Pennsylvania and Patrick J. Leahy of Vermont, the GOP
chairman and the ranking Democrat on the Judiciary Committee, each sent letters
to Alito yesterday.

In the letters, both senators warned that his views on the limits of executive
power in wartime will be a focus of his hearing.

''Do you agree with Justice O'Connor's statement that 'war is not a blank check
for the president?' " Specter wrote.

''In light of Justice O'Connor's statement, what jurisprudential theory would
you invoke to evaluate the limits on the president's authority to conduct
surveillance on US citizens without going through the court system?"

Also yesterday, Senator John D. Rockefeller IV of West Virginia, the top
Democrat on the Senate Select Committee on Intelligence, released a copy of a
letter he had sent to Vice President Dick Cheney in July 2003, after Cheney had
briefed him on the outlines of the spying program. Rockefeller was not allowed
to talk about the program. In the letter, Rockefeller had said that Congress was
unable to conduct ''meaningful oversight" of the program, including whether it
was legal.

------------------------------------

The Truman precedent for Bush's eavesdropping
By Peter S. Canellos, Globe Columnist  |  December 20, 2005

WASHINGTON -- On the morning of April 9, 1952, American flags flew above 88
steel mills across the country, signaling a change in management. The president
of the United States, Harry S. Truman, had seized control of the mills, claiming
that the intransigence of the private owners would lead to a strike that would
cripple US efforts to win the Korean War.

''The president has the power to keep the country from going to hell," Truman
told his staff, according to David McCullough's 1992 biography.

Truman was wrong, according to the Supreme Court, in its most extensively
reasoned decision charting the limits of presidential power.

The so-called ''steel seizure case" is suddenly in the news again because
President Bush is now saying that his powers as president and commander-in-chief
-- the justifications cited by Truman -- permit him to authorize wiretaps on US
citizens.

Luckily for Bush, Americans who are being wiretapped don't know they're being
bugged, and thus can't challenge his powers in court. But when Congress holds
hearings on whether the president has exceeded his powers, the Supreme Court's
ruling in the steel seizure case will be the closest thing to settled law on the
matter.

And the story of the seizure of the steel mills isn't necessarily comforting to
Bush.

Truman, like many presidents, tended to view his critics as being incapable of
seeing the national interest. And by early 1952, Truman had a lot of
critics. His favorability had plunged below 30 percent, largely because of his
handling of the Korean War, and he could no longer count on Congress's support.

In addition, his distrust of corporations -- which dated back to his time as
head of a senatorial committee investigating World War II profiteering -- led
him to believe that owners of steel companies were pursuing policies that would
hamper the war effort. The steelworkers' union was engaged in bitter negotations
for pay increases, but management seemed only too willing to accept a strike.

By some accounts, Truman feared that a strike would be used by the owners to
drive up prices; the military, in the midst of a munitions buildup, was by far
the biggest customer of steel, and would be the biggest victim of a strike.

Congress considered taking action to block the strike but did not, though the
Taft-Hartley Act would have allowed Truman to order a three-month ''cooling-off"
period.

Declaring that both sides were sufficiently deadlocked as to make a cooling-off
period useless, Truman ordered a government takeover of the mills. He said
American lives depended on it.

Truman said he was acting to avert a wartime emergency. He cited Article II of
the Constitution, which says ''the executive power shall be vested in the
president," and that the president ''shall be Commander-in-Chief of the Army and
Navy of the United States."

The Supreme Court declared that Truman had exceeded his authority, but its
inability to reach a consensus reflected the extraordinary difficulty of setting
constitutional boundaries for a president's power. Three justices filed their
own concurring opinions, suggesting different ways to gauge the limits of
presidential power. Three justices dissented.

The majority opinion, by Justice Hugo Black, concentrated on separating the
president's powers from Congress's powers. Black made much of the fact that
Congress could have chosen to seize the mills and did not, suggesting Truman was
usurping Congress's ''lawmaking power."

The likely question for George W. Bush will be: Why not seek congressional
approval for wiretapping terrorist suspects without judicial warrants? Given
that so many other surveillance mechanisms were sweepingly approved by Congress
in the 2001 Patriot Act, why not include warrant-free wiretaps?

Perhaps sensing the need to address this question, Attorney General Alberto
Gonzales said yesterday that he believes Bush's wiretapping power came along
with Congress's grant of authority to pursue the perpetrators of the Sept. 11,
2001, attacks. But he also noted that when the president consulted members of
Congress about a separate wiretapping bill he was told that there would be so
much debate that terrorist suspects would be tipped off.

So Bush acted alone.

It's hard to predict whether a case challenging Bush's wiretaps might ever make
it to the Supreme Court; it's even harder to predict how the court might vote.

Truman fully expected the court to support him, and was crushed when it did
not. The steel mills went on strike for seven weeks, dramatically curtailing
production of munitions.

It's unknown whether the strike caused any lost lives on the battlefield.

Peter S. Canellos is the Globe's Washington bureau chief. National Perspective
is his weekly analysis of events in the capital and beyond.

------------------------------------------

Fear distorting the rule of law
By H.D.S. Greenway  |  December 20, 2005

IN MARCH OF 1933, Franklin Roosevelt, facing the crisis of the Great Depression,
said in his inaugural address that ''the only thing we have to fear is fear
itself -- nameless, unreasoning, unjustified terror which paralyzes needed
efforts to convert retreat into advance."

The fear people felt then was not nameless, unreasoning, nor unjustified, as
Roosevelt well knew. In fact, his address went on to say that ''the withered
leaves of industrial enterprise lie on every side; farmers find no markets for
their produce; the savings of many years in thousands of families are gone
. . . Only a foolish optimist can deny the dark realities of the moment."

What Roosevelt meant was that fear can distort judgment and cloud the mind's
ability to perceive right turns from wrong turns in the road to safety.

Roosevelt was not to avoid wrong turns. His incarceration of Japanese-American
citizens after Pearl Harbor is looked back on now as a national shame.

Roosevelt remembered the very real and dangerous disloyalty of some
German-Americans during World War I when he made his decision on
Japanese-Americans. He should have remembered, also, the unreasoning and
unjustified ''patriotic lunacy" of that time, as historian David Traxel calls it
in his new book ''Crusader Nation." ''Sauerkraut became liberty cabbage
. . . frankfurters were hot dogs, hamburgers liberty stakes."

I have no doubt that one day the Bush administration's curtailment of civil
liberties, especially the torture of prisoners, will be looked back on as a
national shame. I never would have thought I would live to see the day when the
president of the United States would threaten to veto a bill in Congress to ban
torture, or when the vice president would spend his days lobbying Congress in
favor of torture. That little shop of horrors, the vice president's office,
seems to be the place where fear regularly gains ascendancy over good judgment.

The Bush administration's predilection to torture was clearly a result of
mind-clouding fear caused by the greatest terrorist attack in history on
Sept. 11th, 2001. The same can be said of the excesses of the Patriot Act, and,
too, the decision to use the National Security Agency to spy on American
citizens without benefit of warrant as required by the Foreign Intelligence
Surveillance Act.

The Bush administration has shamelessly used fear to get its way. Both the
president and vice president have tried to picture a withdrawal from Iraq as
resulting in an Al Qaeda takeover of Iraq, and an Al Qaeda-led Caliphate
stretching across the Muslim world. In reality al Qaeda hasn't the remotest
chance of taking over Iraq, not with 80 percent of the population either Kurdish
or Shi'ite, and a timely end to American occupation might sooner lead to an
Iraqi-Sunni disenchantment with foreign terrorists.

But in this month of December we may have reached a tipping point. Last week the
American Congress finally stood up. President Bush, after expending so much
effort trying to find ways to circumvent Senator John McCain's heroic efforts to
ban torture, finally surrendered in the Oval Office last week.

''We've sent a message to the world that the United States is not like the
terrorists, " said McCain -- a message that had been badly diluted by Abu
Ghraib, Guantanamo, and the administration's efforts to justify the mistreatment
of prisoners.

Congress followed suit by refusing to reenact the Patriot Act as now
constituted, and, although the domestic spying case will be argued as to its
legality, Senate Judiciary Committee Chairman Arlen Specter promises
congressional hearings. Eavesdropping on citizens may be necessary in these
terrorist times, but, given how easy it is to obtain a warrant under the current
law -- even retroactively -- the wonder is why the Bush administration chose not
to comply.

In any event, Congress has put the president on notice that he no longer has a
blank check to erode civil liberties at his will.

Americans could take some comfort, too, in Bush's new willingness to admit to at
least some mistakes in the handling of his war in Iraq. Franklin Roosevelt, in
that first inaugural address, said: ''In every dark hour of our national life a
leadership of frankness and vigor has met with that understanding and support of
the people themselves which is essential to victory. " Bush may have the vigor,
but the frankness has been sorely lacking.

H.D.S. Greenway's column appears regularly in the Globe.

-------------------------------------------

Briefing expected for surveillance court
Judges concerned over spying policy
By Carol D. Leonnig and Dafna Linzer, Washington Post  |  December 22, 2005

WASHINGTON -- The presiding judge of a secret court that oversees government
surveillance in espionage and terrorism cases is arranging a classified briefing
for her fellow judges to address their concerns about the legality of President
Bush's domestic spying program, according to several intelligence and government
sources.

Several members of the Foreign Intelligence Surveillance Court said in
interviews that they want to know why the administration believed secretly
listening in on telephone calls and reading e-mails of US citizens without court
authorization was legal. Some of the judges said they are particularly concerned
that information gleaned from the president's eavesdropping program may have
been improperly used to gain authorized wiretaps from their court.

''The questions are obvious," said US District Judge Dee Benson of Utah. ''What
have you been doing, and how might it affect the reliability and credibility of
the information we're getting in our court?"

Such comments underscored the continuing questions among judges about the
program, which most of them learned about when it was disclosed last week by The
New York Times. On Monday, one of 10 FISA judges, federal judge James Robertson,
submitted his resignation -- in protest of the president's action, according to
two sources familiar with his decision. He will maintain his position on the US
District Court here.

Other judges contacted yesterday said they do not plan to resign but are seeking
more information about the president's initiative. Presiding Judge Colleen
Kollar-Kotelly, who also sits on the US District Court for the District of
Columbia, told fellow FISA court members by e-mail Monday that she is arranging
for them to convene in Washington, preferably early next month, for a secret
briefing on the program, several judges confirmed yesterday.

Two intelligence sources familiar with the plan said Kollar- Kotelly expects
top-ranking officials from the National Security Agency and the Justice
Department to outline the classified program to the members.

The judges could, depending on their level of satisfaction with the answers,
demand that the Justice Department produce proof that previous wiretaps were not
tainted, according to government officials knowledgeable about the FISA
court. Warrants obtained through secret surveillance could be thrown into
question. One judge, speaking on the condition of anonymity, also said members
could suggest disbanding the court in light of the president's suggestion that
he has the power to bypass it.

The highly classified FISA court was set up in the 1970s to authorize secret
surveillance of espionage and terrorism suspects within the United States. Under
the law setting up the court, the Justice Department must show probable cause
that its targets are foreign governments or their agents. The FISA law does
include emergency provisions that allow eavesdropping without warrants for up to
72 hours if the attorney general certifies there is no other way to get the
information.

Still, Bush and his advisers have said they need to operate outside the FISA
system in order to move quickly against suspected terrorists. In explaining the
program, Bush has made the distinction between detecting threats and plots and
monitoring likely known targets, as FISA would allow.

Bush administrations officials believe it is not possible, in a large-scale
eavesdropping effort, to provide the kind of evidence the court requires to
approve a warrant. Sources knowledgeable with the program said there is no way
to secure a FISA warrant when the goal is to listen in on a vast array of
communications in the hopes of finding something that sounds
suspicious. Attorney General Alberto Gonzales said the White House had tried but
failed to find a way.

One government official, who spoke on condition of anonymity, said the
administration complained that the FISA process demanded too much: to name a
target and give a reason to spy on it.

The NSA program, and the technology on which it is based, makes it impossible to
meet that criterion because the program is designed to intercept selected
conversations in real time from among an enormous number relayed at any moment
through satellites.

The American Civil Liberties Union formally requested yesterday that Gonzales
appoint an outside special counsel to investigate and prosecute any criminal
acts and violations of laws as a result of the spying effort.

Also yesterday, John Negroponte, Bush's director of national intelligence, sent
an e-mail to the entire intelligence community defending the program. The
politically tinged memo referred to the disclosure as ''egregious" and called
the program a vital, constitutionally valid tool in the war against Al Qaeda.

------------------------------------------

Wiretaps said to sift all overseas contacts
Vast US effort seen on eavesdropping
By Charlie Savage, Globe Staff  |  December 23, 2005

WASHINGTON -- The National Security Agency, in carrying out President Bush's
order to intercept the international phone calls and e-mails of Americans
suspected of links to Al Qaeda, has probably been using computers to monitor all
other Americans' international communications as well, according to specialists
familiar with the workings of the NSA.

The Bush administration and the NSA have declined to provide details about the
program the president authorized in 2001, but specialists said the agency serves
as a vast data collection and sorting operation. It captures reams of data from
satellites, fiberoptic lines, and Internet switching stations, and then uses a
computer to check for names, numbers, and words that have been identified as
suspicious.

''The whole idea of the NSA is intercepting huge streams of communications,
taking in 2 million pieces of communications an hour," said James Bamford, the
author of two books on the NSA, who was the first to reveal the inner workings
of the secret agency.

''They have a capacity to listen to every overseas phone call," said Tom
Blanton, director of the National Security Archive at George Washington
University, which has obtained documents about the NSA using Freedom of
Information Act requests.

The NSA's system of monitoring e-mails and phone calls to check for search terms
has been used for decades overseas, where the Constitution's prohibition on
unreasonable searches does not apply, declassified records have shown.

But since Bush's order in 2001, Bamford and other specialists said, the same
process has probably been used to sort through international messages to and
from the United States, though humans have never seen the vast majority of the
data.

''The collection of this data by automated means creates new privacy risks,"
said Marc Rotenberg, executive director of the Electronic Privacy Information
Center, a watchdog group that has studied computer-filtered surveillance
technology through Freedom of Information Act lawsuits.

Among the risks, he said, is that the spy agency's computers will collect
personal information that has no bearing on national security, and that
intelligence agents programming those computers will be tempted to abuse their
power to eavesdrop for personal or political gain.

But even when no personal information intercepted by the NSA's computers make it
to human eyes and ears, Rotenberg said, the mere fact that spy computers are
monitoring the calls and e-mails may also violate the Fourth Amendment. The
Supreme Court has never ruled on whether automated surveillance of phone calls
and e-mails, without a warrant, is constitutional.

The closest comparisons, legal specialists said, are cases challenging the use
of dogs and infrared detectors to look for drugs without a warrant. The Supreme
Court approved the use of drug-sniffing dogs to examine luggage in an airport,
but said police could not use infrared scanners to check houses for heat
patterns that could signal an illegal drug operation.

''This is very much a developing field, and a lot of the law is not clear," said
Harvard Law School professor Bill Stuntz.

President Bush and his aides have refused to answer questions about the domestic
spying program, other than to insist that it was legal. Attorney General Alberto
Gonzales this week said the program only targeted messages ''where we have a
reasonable basis to conclude" that one of the parties is affiliated with Al
Qaeda.

And some legal scholars have maintained that a computer cannot violate other
Americans' Fourth Amendment rights simply by sorting through their messages, as
long as no human being ever looks at them.

Alane Kochems, a lawyer and a national security analyst at the conservative
Heritage Foundation, said, ''I don't think your privacy is violated when you
have a computer doing it as opposed to a human. It isn't a sentient being. It's
a machine running a program."

But Yale Law School professor Jack Balkin said that Fourth Amendment privacy
rights can still be violated without human contact if the NSA stores copies of
everyone's messages, raising the possibility that a human could access them
later. The administration has not revealed how long the NSA stores messages, and
the agency has refused to comment on the program.

Balkin added that as technology becomes ever more sophisticated, any legal
distinction between human agents and their tools is losing meaning. Under the
theory that only human beings can invade people's privacy, he said, the police
''could simply use robots to do their dirty work."

In 1978, following revelations that President Nixon had used the NSA to spy on
his domestic enemies, Congress enacted a law making it illegal to wiretap a US
citizen without permission from a secret national security court. The court
requires the government to show evidence that the target is a suspected spy or
terrorist.

Under the 1978 law, NSA officials have had to obtain a warrant from the secret
court before putting an American's information into their computers' search
terms.

The restrictions largely limited NSA to collecting messages from overseas
communications networks, but some Americans' messages were intercepted before
the 2001 terrorist attacks.

Occasionally, the interception was deliberate. In April 2000, the NSA's
then-director, General Michael Hayden, told Congress that since 1978 ''there
have been no more than a very few instances of NSA seeking [court] authorization
to target a US person in the United States."

More often, the interception was accidental. Because American international
calls travel through foreign networks, some of which are monitored by the NSA,
the agency's computers have sifted through some American international messages
all along.

''Long before 9/11, the NSA gathered from the ether mountains of [overseas]
phone calls and e-mail messages on a daily basis," said Columbia Law School
professor Deborah Livingston. ''If you have such an extensive foreign operation,
you'll gather a large amount of phone traffic and e-mails involving
Americans. That's something we've lived with for a long time."

But Bush's order cleared the way for the NSA computers to sift through
Americans' phone calls and e-mails.

According to a New York Times report last week, Bush authorized the NSA's human
analysts to look at the international messages of up to 500 Americans at a time,
with a changing list of targets.

Hayden, now the deputy director of national intelligence, told reporters this
week that under Bush's order, a ''shift supervisor" instead of a judge signs off
on deciding whether or not to search for an American's messages.

The general conceded that without the burden of obtaining warrants, the NSA has
used ''a quicker trigger" and ''a subtly softer trigger" when deciding to track
someone.

Bamford said that Hayden's ''subtly softer trigger" probably means that the NSA
is monitoring a wider circle of contacts around suspects than what a judge would
approve.

-------------------------------------------

The Agency That Could Be Big Brother 

By JAMES BAMFORD
December 25, 2005

Washington

DEEP in a remote, fog-layered hollow near Sugar Grove, W.Va., hidden by
fortress-like mountains, sits the country's largest eavesdropping bug. Located
in a "radio quiet" zone, the station's large parabolic dishes secretly and
silently sweep in millions of private telephone calls and e-mail messages an
hour.

Run by the ultrasecret National Security Agency, the listening post intercepts
all international communications entering the eastern United States. Another
N.S.A. listening post, in Yakima,Wash., eavesdrops on the western half of the
country.

A hundred miles or so north of Sugar Grove, in Washington, the N.S.A. has
suddenly taken center stage in a political firestorm. The controversy over
whether the president broke the law when he secretly ordered the N.S.A. to
bypass a special court and conduct warrantless eavesdropping on American
citizens has even provoked some Democrats to call for his impeachment.

According to John E. McLaughlin, who as the deputy director of the Central
Intelligence Agency in the fall of 2001 was among the first briefed on the
program, this eavesdropping was the most secret operation in the entire
intelligence network, complete with its own code word - which itself is secret. 

Jokingly referred to as "No Such Agency," the N.S.A. was created in absolute
secrecy in 1952 by President Harry S. Truman. Today, it is the largest
intelligence agency. It is also the most important, providing far more insight
on foreign countries than the C.I.A. and other spy organizations. 

But the agency is still struggling to adjust to the war on terror, in which its
job is not to monitor states, but individuals or small cells hidden all over the
world. To accomplish this, the N.S.A. has developed ever more sophisticated
technology that mines vast amounts of data. But this technology may be of
limited use abroad. And at home, it increases pressure on the agency to bypass
civil liberties and skirt formal legal channels of criminal
investigation. Originally created to spy on foreign adversaries, the N.S.A. was
never supposed to be turned inward. Thirty years ago, Senator Frank Church, the
Idaho Democrat who was then chairman of the select committee on intelligence,
investigated the agency and came away stunned. 

"That capability at any time could be turned around on the American people," he
said in 1975, "and no American would have any privacy left, such is the
capability to monitor everything: telephone conversations, telegrams, it doesn't
matter. There would be no place to hide." 

He added that if a dictator ever took over, the N.S.A. "could enable it to
impose total tyranny, and there would be no way to fight back." 

At the time, the agency had the ability to listen to only what people said over
the telephone or wrote in an occasional telegram; they had no access to private
letters. But today, with people expressing their innermost thoughts in e-mail
messages, exposing their medical and financial records to the Internet, and
chatting constantly on cellphones, the agency virtually has the ability to get
inside a person's mind. 

The N.S.A.'s original target had been the Communist bloc. The agency wrapped the
Soviet Union and its satellite nations in an electronic cocoon. Anytime an
aircraft, ship or military unit moved, the N.S.A. would know. And from 22,300
miles in orbit, satellites with super-thin, football-field-sized antennas
eavesdropped on Soviet communications and weapons signals. 

Today, instead of eavesdropping on an enormous country that was always
chattering and never moved, the N.S.A. is trying to find small numbers of
individuals who operate in closed cells, seldom communicate electronically (and
when they do, use untraceable calling cards or disposable cellphones) and are
constantly traveling from country to country.

During the cold war, the agency could depend on a constant flow of American-born
Russian linguists from the many universities around the country with Soviet
studies programs. Now the government is forced to search ethnic communities to
find people who can speak Dari, Urdu or Lingala - and also pass a security
clearance that frowns on people with relatives in their, or their parents',
former countries. 

According to an interview last year with Gen. Michael V. Hayden, then the
N.S.A.'s director, intercepting calls during the war on terrorism has become a
much more complex endeavor. On Sept. 10, 2001, for example, the
N.S.A. intercepted two messages. The first warned, "The match begins tomorrow,"
and the second said, "Tomorrow is zero hour." But even though they came from
suspected Al Qaeda locations in Afghanistan, the messages were never translated
until after the attack on Sept. 11, and not distributed until Sept. 12. 

What made the intercepts particularly difficult, General Hayden said, was that
they were not "targeted" but intercepted randomly from Afghan pay phones. 

This makes identification of the caller extremely difficult and slow. "Know how
many international calls are made out of Afghanistan on a given day? Thousands,"
General Hayden said. 

Still, the N.S.A. doesn't have to go to the courts to use its electronic
monitoring to snare Al Qaeda members in Afghanistan. For the agency to snoop
domestically on American citizens suspected of having terrorist ties, it first
must to go to the Foreign Intelligence Surveillance Court, or FISA, make a
showing of probable cause that the target is linked to a terrorist group, and
obtain a warrant.

The court rarely turns the government down. Since it was established in 1978,
the court has granted about 19,000 warrants; it has only rejected five. And even
in those cases the government has the right to appeal to the Foreign
Intelligence Surveillance Court of Review, which in 27 years has only heard one
case. And should the appeals court also reject the warrant request, the
government could then appeal immediately to a closed session of the Supreme
Court.

Before the Sept. 11 attacks, the N.S.A. normally eavesdropped on a small number
of American citizens or resident aliens, often a dozen or less, while the
F.B.I., whose low-tech wiretapping was far less intrusive, requested most of the
warrants from FISA.

Despite the low odds of having a request turned down, President Bush established
a secret program in which the N.S.A. would bypass the FISA court and begin
eavesdropping without warrant on Americans. This decision seems to have been
based on a new concept of monitoring by the agency, a way, according to the
administration, to effectively handle all the data and new information. 

At the time, the buzzword in national security circles was data mining: digging
deep into piles of information to come up with some pattern or clue to what
might happen next. Rather than monitoring a dozen or so people for months at a
time, as had been the practice, the decision was made to begin secretly
eavesdropping on hundreds, perhaps thousands, of people for just a few days or a
week at a time in order to determine who posed potential threats. 

Those deemed innocent would quickly be eliminated from the watch list, while
those thought suspicious would be submitted to the FISA court for a warrant. 

In essence, N.S.A. seemed to be on a classic fishing expedition, precisely the
type of abuse the FISA court was put in place to stop.At a news conference,
President Bush himself seemed to acknowledge this new tactic. "FISA is for
long-term monitoring," he said. "There's a difference between detecting so we
can prevent, and monitoring."

This eavesdropping is not the Bush administration's only attempt to expand the
boundaries of what is legally permissible. 

In 2002, it was revealed that the Pentagon had launched Total Information
Awareness, a data mining program led by John Poindexter, a retired rear admiral
who had served as national security adviser under Ronald Reagan and helped
devise the plan to sell arms to Iran and illegally divert the proceeds to rebels
in Nicaragua.

Total Information Awareness, known as T.I.A., was intended to search through
vast data bases, promising to "increase the information coverage by an
order-of-magnitude." According to a 2002 article in The New York Times, the
program "would permit intelligence analysts and law enforcement officials to
mount a vast dragnet through electronic transaction data ranging from credit
card information to veterinary records, in the United States and
internationally, to hunt for terrorists." After press reports, the Pentagon shut
it down, and Mr. Poindexter eventually left the government.

But according to a 2004 General Accounting Office report, the Bush
administration and the Pentagon continued to rely heavily on data-mining
techniques. "Our survey of 128 federal departments and agencies on their use of
data mining," the report said, "shows that 52 agencies are using or are planning
to use data mining. These departments and agencies reported 199 data-mining
efforts, of which 68 are planned and 131 are operational." Of these uses, the
report continued, "the Department of Defense reported the largest number of
efforts."

The administration says it needs this technology to effectively combat
terrorism. But the effect on privacy has worried a number of politicians.

After he was briefed on President Bush's secret operation in 2003, Senator Jay
Rockefeller, the Democratic vice chairman of the Senate Select Committee on
Intelligence, sent a letter to Vice President Dick Cheney. 

"As I reflected on the meeting today and the future we face," he wrote, "John
Poindexter's T.I.A. project sprung to mind, exacerbating my concern regarding
the direction the administration is moving with regard to security, technology,
and surveillance." 

Senator Rockefeller sounds a lot like Senator Frank Church. 

"I don't want to see this country ever go across the bridge," Senator Church
said. "I know the capacity that is there to make tyranny total in America, and
we must see to it that this agency and all agencies that possess this technology
operate within the law and under proper supervision, so that we never cross over
that abyss. That is the abyss from which there is no return."

James Bamford is the author of "Puzzle Palace" and"Body of Secrets: Anatomy of
the Ultra-Secret National Security Agency."

--------------------------------------------

Spy Agency Mined Vast Data Trove, Officials Report 

By ERIC LICHTBLAU and JAMES RISEN
December 24, 2005

WASHINGTON, Dec. 23 - The National Security Agency has traced and analyzed large
volumes of telephone and Internet communications flowing into and out of the
United States as part of the eavesdropping program that President Bush approved
after the Sept. 11, 2001, attacks to hunt for evidence of terrorist activity,
according to current and former government officials.

The volume of information harvested from telecommunication data and voice
networks, without court-approved warrants, is much larger than the White House
has acknowledged, the officials said. It was collected by tapping directly into
some of the American telecommunication system's main arteries, they said.

As part of the program approved by President Bush for domestic surveillance
without warrants, the N.S.A. has gained the cooperation of American
telecommunications companies to obtain backdoor access to streams of domestic
and international communications, the officials said. 

The government's collection and analysis of phone and Internet traffic have
raised questions among some law enforcement and judicial officials familiar with
the program. One issue of concern to the Foreign Intelligence Surveillance
Court, which has reviewed some separate warrant applications growing out of the
N.S.A.'s surveillance program, is whether the court has legal authority over
calls outside the United States that happen to pass through American-based
telephonic "switches," according to officials familiar with the matter.

"There was a lot of discussion about the switches" in conversations with the
court, a Justice Department official said, referring to the gateways through
which much of the communications traffic flows. "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."

Since the disclosure last week of the N.S.A.'s domestic surveillance program,
President Bush and his senior aides have stressed that his executive order
allowing eavesdropping without warrants was limited to the monitoring of
international phone and e-mail communications involving people with known links
to Al Qaeda. 

What has not been publicly acknowledged is that N.S.A. technicians, besides
actually eavesdropping on specific conversations, have combed through large
volumes of phone and Internet traffic in search of patterns that might point to
terrorism suspects. Some officials describe the program as a large data-mining
operation.

The current and former government officials who discussed the program were
granted anonymity because it remains classified. 

Bush administration officials declined to comment on Friday on the technical
aspects of the operation and the N.S.A.'s use of broad searches to look for
clues on terrorists. Because the program is highly classified, many details of
how the N.S.A. is conducting it remain unknown, and members of Congress who have
pressed for a full Congressional inquiry say they are eager to learn more about
the program's operational details, as well as its legality.

Officials in the government and the telecommunications industry who have
knowledge of parts of the program say the N.S.A. has sought to analyze
communications patterns to glean clues from details like who is calling whom,
how long a phone call lasts and what time of day it is made, and the origins and
destinations of phone calls and e-mail messages. Calls to and from Afghanistan,
for instance, are known to have been of particular interest to the N.S.A. since
the Sept. 11 attacks, the officials said.

This so-called "pattern analysis" on calls within the United States would, in
many circumstances, require a court warrant if the government wanted to trace
who calls whom. 

The use of similar data-mining operations by the Bush administration in other
contexts has raised strong objections, most notably in connection with the Total
Information Awareness system, developed by the Pentagon for tracking terror
suspects, and the Department of Homeland Security's Capps program for screening
airline passengers. Both programs were ultimately scrapped after public outcries
over possible threats to privacy and civil liberties.

But the Bush administration regards the N.S.A.'s ability to trace and analyze
large volumes of data as critical to its expanded mission to detect terrorist
plots before they can be carried out, officials familiar with the program
say. Administration officials maintain that the system set up by Congress in
1978 under the Foreign Intelligence Surveillance Act does not give them the
speed and flexibility to respond fully to terrorist threats at home.

A former technology manager at a major telecommunications company said that
since the Sept. 11 attacks, the leading companies in the industry 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,"
said the former manager, a telecommunications expert who did not want his name
or that of his former company used because of concern about revealing trade
secrets. 

Such information often proves just as valuable to the government as
eavesdropping on the calls themselves, the former manager said. 

"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," he said. "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."

Several officials said that after President Bush's order authorizing the
N.S.A. program, senior government officials arranged with officials of some of
the nation's largest telecommunications companies to gain access to switches
that act as gateways at the borders between the United States' communications
networks and international networks. The identities of the corporations involved
could not be determined.

The switches are some of the main arteries for moving voice and some Internet
traffic into and out of the United States, and, with the globalization of the
telecommunications industry in recent years, many international-to-international
calls are also routed through such American switches. 

One outside expert on communications privacy who previously worked at the
N.S.A. said that to exploit its technological capabilities, the American
government had in the last few years been quietly encouraging the
telecommunications industry to increase the amount of international traffic that
is routed through American-based switches.

The growth of that transit traffic had become a major issue for the intelligence
community, officials say, because it had not been fully addressed by 1970's-era
laws and regulations governing the N.S.A. Now that foreign calls were being
routed through switches on American soil, some judges and law enforcement
officials regarded eavesdropping on those calls as a possible violation of those
decades-old restrictions, including the Foreign Intelligence Surveillance Act,
which requires court-approved warrants for domestic surveillance. 

Historically, the American intelligence community has had close relationships
with many communications and computer firms and related technical
industries. But the N.S.A.'s backdoor access to major telecommunications
switches on American soil with the cooperation of major corporations represents
a significant expansion of the agency's operational capability, according to
current and former government officials.

Phil Karn, a computer engineer and technology expert at a major West Coast
telecommunications company, said access to such switches would be
significant. "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," he said.

-----------------------------------

Justice Deputy Resisted Parts of Spy Program

By ERIC LICHTBLAU and JAMES RISEN
January 1, 2006

WASHINGTON, Dec. 31 - A top Justice Department official objected in 2004 to
aspects of the National Security Agency's domestic surveillance program and
refused to sign on to its continued use amid concerns about its legality and
oversight, according to officials with knowledge of the tense internal
debate. The concerns appear to have played a part in the temporary suspension of
the secret program.

The concerns prompted two of President Bush's most senior aides - Andrew H. Card
Jr., his chief of staff, and Alberto R. Gonzales, then White House counsel and
now attorney general - to make an emergency visit to a Washington hospital in
March 2004 to discuss the program's future and try to win the needed approval
from Attorney General John Ashcroft, who was hospitalized for gallbladder
surgery, the officials said.

The unusual meeting was prompted because Mr. Ashcroft's top deputy, James
B. Comey, who was acting as attorney general in his absence, had indicated he
was unwilling to give his approval to certifying central aspects of the program,
as required under the White House procedures set up to oversee it.

With Mr. Comey unwilling to sign off on the program, the White House went to
Mr. Ashcroft - who had been in the intensive care unit at George Washington
University Hospital with pancreatitis and was housed under unusually tight
security - because "they needed him for certification," according to an official
briefed on the episode. The official, like others who discussed the issue, spoke
on the condition of anonymity because of the classified nature of the program.

Mr. Comey declined to comment, and Mr. Gonzales could not be reached.

Accounts differed as to exactly what was said at the hospital meeting between
Mr. Ashcroft and the White House advisers. But some officials said that
Mr. Ashcroft, like his deputy, appeared reluctant to give Mr. Card and
Mr. Gonzales his authorization to continue with aspects of the program in light
of concerns among some senior government officials about whether the proper
oversight was in place at the security agency and whether the president had the
legal and constitutional authority to conduct such an operation.

It is unclear whether the White House ultimately persuaded Mr. Ashcroft to give
his approval to the program after the meeting or moved ahead without it.

The White House and Mr. Ashcroft, through a spokeswoman, declined to comment
Saturday on the hospital meeting. A White House spokeswoman, Jeannie Mamo, said
she could not discuss any aspect of the meeting or the internal debate
surrounding it, but said: "As the president has stated, the intelligence
activities that have been under way to prevent future terrorist attacks have
been approved at the highest levels of the Justice Department."

The domestic eavesdropping program was publicly disclosed in mid-December by The
New York Times. President Bush, in acknowledging the existence of the program in
a televised appearance two weeks ago, said that tight controls had been imposed
over the surveillance operation and that the program was reviewed every 45 days
by top government officials, including at the Justice Department.

"The review includes approval by our nation's top legal officials, including the
attorney general and the counsel to the president," Mr. Bush said, adding that
he had personally reauthorized the program's use more than 30 times since it
began. He gave no indication of any internal dissent over the reauthorization.

Questions about the surveillance operation are likely to be central to a
Congressional hearing planned by Senator Arlen Specter, the Pennsylvania
Republican who heads the Judiciary Committee. Mr. Specter, like some other
Republicans and many Democrats in Congress, has voiced deep concerns about the
program and Mr. Bush's legal authority to bypass the courts to order domestic
wiretaps without warrants.

What is known is that in early 2004, about the time of the hospital visit, the
White House suspended parts of the program for several months and moved ahead
with more stringent requirements on the security agency on how the program was
used, in part to guard against abuses.

The concerns within the Justice Department appear to have led, at least in part,
to the decision to suspend and revamp the program, officials said. The Justice
Department then oversaw a secret audit of the surveillance program.

The audit examined a selection of cases to see how the security agency was
running the program. Among other things, it looked at how agency officials went
about determining that they had probable cause to believe that people in the
United States, including American citizens, had sufficient ties to Al Qaeda to
justify eavesdropping on their phone calls and e-mail messages without a court
warrant. That review is not known to have found any instances of abuses.

The warrantless domestic eavesdropping program was first authorized by President
Bush in the months after the Sept. 11, 2001, attacks, officials said. Initially,
it was focused on communications into and out of Afghanistan, including calls
between Afghanistan and the United States, people familiar with the operation
said. But the program quickly expanded.

Several senior government officials have said that when the special operation
first began, there were few controls on it. Some agency officials wanted nothing
to do with it, apparently fearful of participating in an illegal operation,
officials have said.

At its outset in 2002, the surveillance operation was so highly classified that
even Larry Thompson, the deputy attorney general to Mr. Ashcroft, who was active
in most of the government's most classified counterterrorism operations, was not
given access to the program.

That led to uncertainties about the chain of command in overseeing law
enforcement activities connected to the program, officials said, and it appears
to have spurred concerns within the Justice Department over its
use. Mr. Thompson's successor, Mr. Comey, was eventually authorized to take part
in the program and to review intelligence material that grew out of it, and
officials said he played a part in overseeing the reforms that were put in place
in 2004.

But even after the imposition of the new restrictions last year, the agency
maintained the authority to choose its eavesdropping targets and did not have to
get specific approval from the Justice Department or other Bush officials before
it began surveillance on phone calls or e-mail messages. The decision on whether
someone is believed to be linked to Al Qaeda and should be monitored is left to
a shift supervisor at the agency, the White House has said.

The White House has vigorously defended the legality and value of the domestic
surveillance program, saying it has saved many American lives by allowing the
government to respond more quickly and flexibly to threats. The Justice
Department, meanwhile, said Friday that it had opened a criminal investigation
into the unauthorized disclosure of the existence of the program.

-----------------------------------


Bush Defends Spy Program and Denies Misleading Public

By ERIC LICHTBLAU
January 2, 2006

WASHINGTON, Jan. 1 - President Bush continued on Sunday to defend both the
legality and the necessity of the National Security Agency's domestic
eavesdropping program, and he denied that he misled the public last year when he
insisted that any government wiretap required a court order.

"I think most Americans understand the need to find out what the enemy's
thinking, and that's what we're doing," Mr. Bush told reporters in San Antonio
as he visited wounded soldiers at the Brooke Army Medical Center.

"They attacked us before, they'll attack us again if they can," he said. "And
we're going to do everything we can to stop them."

Mr. Bush's strong defense of the N.S.A. program, which he authorized in 2002 to
allow some domestic eavesdropping without court warrants, came as a leading
Democratic lawmaker called on the administration to make available current and
former high-level officials to explain the evolution of the secret program.

Senator Arlen Specter, a Pennsylvania Republican and chairman of the Judiciary
Committee, has already pledged to make hearings into the program one of his
highest priorities.

In a letter to Mr. Specter on Sunday, Senator Charles E. Schumer, a New York
Democrat who is also on the committee, said the panel should also explore
"significant concern about the legality of the program even at the very highest
levels of the Department of Justice."

The New York Times reported Sunday that James B. Comey, then deputy attorney
general, refused to sign on to the recertification of the program in March 2004.

That prompted two of Mr. Bush's most senior aides - Andrew H. Card Jr., his
chief of staff, and Alberto R. Gonzales, then the White House counsel and now
the attorney general - to make an emergency hospital visit to John Ashcroft,
then the attorney general, to try to persuade him to give his authorization, as
required by White House procedures for the program.

Officials with knowledge of the events said that Mr. Ashcroft also appeared
reluctant to sign on to the continued use of the program, and that the Justice
Department's concerns appear to have led in part to the suspension of the
program for several months. After a secret audit, new protocols were put in
place at the N.S.A. to better determine how the agency established the targets
of its eavesdropping operations, officials have said.

Asked Sunday about internal opposition, President Bush said: "This program has
been reviewed, constantly reviewed, by people throughout my administration. And
it still is reviewed.

"Not only has it been reviewed by Justice Department officials, it's been
reviewed by members of the United States Congress," he said. "It's a vital,
necessary program."

But Mr. Schumer, in an appearance on "Fox News Sunday," said the White House
should have to explain the apparent internal dissent over the program.

"I hope the White House won't hide behind saying 'executive privilege, we can't
discuss this,' " Mr. Schumer said. "That's the wrong attitude."

"A discussion, perhaps a change in the law," he said, "those are all
legitimate. Unilaterally changing the law because the vice president or
president thinks it's wrong, without discussing the change, that's not the
American way."

But Senator Mitch McConnell of Kentucky, the second-ranking Republican in the
Senate, said on the same television program that Mr. Bush had acted within the
Constitution to protect the country from another terrorist attack. Mr. McConnell
said the focus now should be on identifying who disclosed the existence of the
classified operation.

The Justice Department said Friday that it had opened an investigation into the
disclosure of the N.S.A. program, which was first reported by The Times on
Dec. 15.

Mr. McConnell said of the disclosure, "This needs to be investigated, because
whoever leaked this information has done the U.S. and its national security a
great disservice."

As Mr. Bush continued to defend the program in San Antonio, he was asked about a
remark he made in Buffalo in 2004 at an appearance in support of the
antiterrorism law known as the USA Patriot Act, where he discussed government
wiretaps.

"Any time you hear the United States government talking about wiretap," Mr. Bush
said in Buffalo, "a wiretap requires a court order."

He added: "Nothing has changed, by the way. When we're talking about chasing
down terrorists, we're talking about getting a court order before we do so."

Democrats have seized on the remark, made more than two years after Mr. Bush
authorized the N.S.A. to conduct wiretaps without warrants, in charging that the
president had misled the public.

Asked about that charge on Sunday, Mr. Bush said: "I was talking about roving
wiretaps, I believe, involved in the Patriot Act. This is different from the
N.S.A. program.

"The N.S.A. program is a necessary program. I was elected to protect the
American people from harm. And on Sept. 11, 2001, our nation was attacked. And
after that day, I vowed to use all the resources at my disposal, within the law,
to protect the American people, which is what I have been doing and will
continue to do."

Mr. Bush also emphasized that the program was "limited" in nature and designed
to intercept communications from known associates of Al Qaeda to the United
States. He said several times that the eavesdropping was "limited to calls from
outside the United States to calls within the United States."

This assertion was at odds with press accounts and public statements of his
senior aides, who have said the authorization for the program required one end
of a communication - either incoming or outgoing - to be outside the United
States. The White House, clarifying the president's remarks after his
appearance, said later that either end of the communication could in fact be
outside the United States.

The Times has reported that despite a prohibition on eavesdropping on phone
calls or e-mail messages that are regarded as purely domestic, the N.S.A. has
accidentally intercepted what are thought to be a small number of communications
in which each end was on American soil, due to technical confusion over what
constitutes an "international" call.

Officials also say that the N.S.A., beyond eavesdropping on up to 500 phone
numbers and e-mail addresses at any one time, has conducted much larger
data-mining operations on vast volumes of communication within the United States
to identify possible terror suspects. To accomplish this, the agency has reached
agreements with major American telecommunications companies to gain access to
some of the country's biggest "switches" carrying phone and e-mail traffic into
and out of the country.

-----------------------------------

From the Los Angeles Times
EDITORIAL
The spy plan's spoiler

January 4, 2006

JAMES B. COMEY CAN HARDLY be considered soft on terrorism. As deputy attorney
general, he has been one of the Bush administration's chief prosecutors of the
war on terror, pursuing accused bombers and terrorists from Riyadh to
Chicago. So his refusal to approve the administration's warrantless wiretaps of
Americans cannot simply be dismissed as the rantings of an Al Qaeda apologist.

But Comey's objections, made in 2004 and first reported Sunday in the New York
Times, do more than rob the president and his defenders of one of their favorite
arguments. The article was based on the accounts of unnamed administration
officials, and Comey isn't giving the reasons for his opposition to the National
Security Agency's domestic surveillance program. But they're easy to guess.

First, the program is unnecessary. There is already a special court to approve
wiretaps of suspected terrorists, and it is notoriously obliging; in 2004, it
received 1,758 requests for warrants and denied none of them. It often issues
such warrants within hours and can approve them after the fact. (Details about
the court's activities are secret.) And the Patriot Act, almost all of which has
been renewed, gives law enforcement extraordinary powers to fight terrorists.

Second, the program is probably illegal. The Foreign Intelligence Surveillance
Act, which created that special court, specifically allows warrantless
surveillance in the case of war, but for only 15 days after that war has been
declared. If it had to conduct such surveillance for longer than that - Congress
authorized the use of force, which is tantamount to a declaration of war, one
week after 9/11 - the executive branch would need to change the law.

The administration has a novel response to this argument: We're at war, and we
don't have time to obey the law. Or, as an assistant attorney general put it in
a letter to Congress last month: We were worried that the special court that
grants secret warrants would not do so with sufficient "speed and agility," and
"any legislative change" to amend the system "would have tipped off our
enemies." So the administration went ahead with its spying program anyway.

Last, and most important, the NSA's surveillance program is an affront to the
American system of checks and balances - and Americans' right to privacy as
guaranteed by the 4th Amendment. The president fails to grasp this point. Asked
Sunday what he'd say to Americans worried about violations of their privacy,
Bush responded with a breathtaking non sequitur. "If somebody from Al Qaeda is
calling you," he said, "we'd like to know why."

So, no doubt, would James Comey. But at least he understands that, even in a
time of war, the government is not free to simply tap your phone to find out
who's calling you and why.

------------------------------

Files Say Agency Initiated Growth of Spying Effort

By ERIC LICHTBLAU and SCOTT SHANE
January 4, 2006

WASHINGTON, Jan. 3 - The National Security Agency acted on its own authority,
without a formal directive from President Bush, to expand its domestic
surveillance operations in the weeks after the Sept. 11 attacks, according to
declassified documents released Tuesday.

The N.S.A. operation prompted questions from a leading Democrat, Representative
Nancy Pelosi of California, who said in an Oct. 11, 2001, letter to a top
intelligence official that she was concerned about the agency's legal authority
to expand its domestic operations, the documents showed.

Ms. Pelosi's letter, which was declassified at her request, showed much earlier
concerns among lawmakers about the agency's domestic surveillance operations
than had been previously known. Similar objections were expressed by Senator
John D. Rockefeller IV, Democrat of West Virginia, in a secret letter to Vice
President Dick Cheney nearly two years later.

The letter from Ms. Pelosi, the House minority leader, also suggested that the
security agency, whose mission is to eavesdrop on foreign communications, moved
immediately after the Sept. 11 attacks to identify terror suspects at home by
loosening restrictions on domestic eavesdropping.

The congresswoman wrote to Lt. Gen. Michael V. Hayden, then head of the N.S.A.,
to express her concerns after she and other members of the House and Senate
Intelligence Committees received a classified briefing from General Hayden on
Oct. 1, 2001, about the agency's operations.

Ms. Pelosi, then the ranking Democrat on the House Intelligence Committee, said,
"I am concerned whether, and to what extent, the National Security Agency has
received specific presidential authorization for the operations you are
conducting."

The answer, General Hayden suggested in his response to Ms. Pelosi a week later,
was that it had not. "In my briefing," he wrote, "I was attempting to emphasize
that I used my authorities to adjust N.S.A.'s collection and reporting."

It is not clear whether General Hayden referred at the briefing to the idea of
warrantless eavesdropping. Parts of the letters from Ms. Pelosi and General
Hayden concerning other specific aspects of the spy agency's domestic operation
were blacked out because they remain classified. But officials familiar with the
uncensored letters said they referred to other aspects of the domestic
eavesdropping program.

Bush administration officials said on Tuesday that General Hayden, now the
country's No. 2 intelligence official, had acted on the authority previously
granted to the N.S.A., relying on an intelligence directive known as Executive
Order 12333, issued by President Ronald Reagan in 1981. That order set
guidelines for the collection of intelligence, including by the N.S.A.  [ME: The
Order specifically prohibits domestic surveillance without a warrant "unless the
attorney general has determined in each case that there is probable cause to
believe that the technique is directed against a foreign power or an agent of a
foreign power."]

"He had authority under E.O. 12333 that had been given to him, and he briefed
Congress on what he did under those authorities," said Judith A. Emmel, a
spokeswoman for the Office of the Director of National Intelligence. "Beyond
that, we can't get into details of what was done."

In 2002, President Bush signed an executive order specifically authorizing the
security agency to eavesdrop without warrants on the international
communications of Americans inside the United States who the agency believed
were connected to Al Qaeda. The disclosure of the domestic spying program last
month provoked an outcry in Washington, where Congressional hearings are
planned.

General Hayden's October 2001 briefing was one of the first glimpses into the
expanded but largely hidden role that the N.S.A. would assume in combating
terrorism over the last four years.

In the briefing, Ms. Pelosi wrote to General Hayden, "you indicated that you had
been operating since the Sept. 11 attacks with an expansive view of your
authorities" with respect to electronic surveillance and intelligence-gathering
operations.

"You seemed to be inviting expressions of concern from us, if there were any,"
Ms. Pelosi wrote, but she said that the lack of specific information about the
agency's operations made her concerned about the legal rationale used to justify
it.

One step that the agency took immediately after the Sept. 11 attacks, Ms. Pelosi
wrote in her letter, was to begin forwarding information from foreign
intelligence intercepts to the F.B.I. for investigation without first receiving
a specific request from the bureau for "identifying information."

In the past, under so-called minimization procedures intended to guard
Americans' privacy, the agency's standard practice had been to require a written
request from a government official who wanted to know the name of an American
citizen or a person in the United States who was mentioned or overheard in a
wiretap.

In the weeks after the Sept. 11 attacks, the agency began monitoring telephone
calls and e-mail messages between the United States and Afghanistan to track
possible terror suspects. That program led to the broader eavesdropping
operation on other international communications, officials have said.

Tncreasing picture of concern, if not outright opposition, within the
government," Mr. Rotenberg said. "But we can't second-guess anyone's actions on
a document-by-document basis," particularly if the documents are released only
in part, he added.

The way the N.S.A.'s role has expanded has prompted concern even from some of
its former leaders, like Bobby R. Inman, a retired admiral who was
N.S.A. director from 1977 to 1981. Admiral Inman said that while he supported
the decision to step up eavesdropping against potential terrorists immediately
after the 2001 attacks, the Bush administration should have tried to change the
Foreign Intelligence Surveillance Act to provide explicit legal authorization
for what N.S.A. was doing.

"What I don't understand is why when you're proposing the Patriot Act, you don't
set up an oversight mechanism for this?" Admiral Inman said in an interview. "I
would have preferred an approach to try to gain legislation to try to operate
with new technology and with an audit of how this technology was used."

-------------------------------------------------------

Report Questions Legal Basis for Bush's Spying Program

By ERIC LICHTBLAU
and SCOTT SHANE
January 6, 2006

WASHINGTON, Jan. 6 - President Bush's rationale for authorizing eavesdropping on
American citizens without warrants rests on questionable legal ground and "may
represent an exercise of presidential power at its lowest ebb," according to a
formal Congressional analysis released today.

The analysis, conducted by the Congressional Research Service, an independent
research arm of Congress, is the first formal assessment of a question that has
gripped Washington for the last three weeks: Did President Bush act within the
law when he ordered the National Security Agency to eavesdrop on Americans?

While the Congressional report reached no bottom-line conclusions on whether the
program is legal or not, it concluded that the legal rationale appears somewhat
dubious. The legal rationale "does not seem to be as well-grounded" as the Bush
administration's lawyers have suggested, and Congress did not appear to have
intended to authorize warrantless wiretaps when it gave President Bush the
authority to wage war against Al Qaeda in the days after the Sept. 11 attacks,
the report concluded.

Bush administration lawyers quickly took issue with the report's conclusions,
arguing that President Bush acted within his constitutional and statutory powers
in approving the N.S.A. program.

"The president has made clear that he will use his constitutional and statutory
authorities to protect the American people from further terrorist attacks," said
Brian Roehrkasse, a spokesman for the Justice Department.

"As the attorney general has stated numerous times, the National Security Agency
activities described by the president were conducted in accordance with the law
and provide a critical tool in the war on terror that saves lives and protects
civil liberties at the same time," Mr. Roehrkasse said.

But many Democrats and some Republicans said they found the doubts raised by
Congressional report persuasive, pointing to it as another indication that
President Bush may have overextended his authority in fighting terrorism.

Thomas H. Kean, the former chairman of the Sept. 11 commission, said he too
doubts the legality of the program. Weighing in for the first time on the
controversy, he said in an interview that the commission was never told of the
operation and that he has strong doubts about whether it is authorized under the
law.

Federal law under the Foreign Intelligence Surveillance Act, created in 1978,
"gives very broad powers to the president and, except in very rare
circumstances, in my view ought to be used," said Mr. Kean, a Republican and
former governor of New Jersey. "We live by a system of checks and balances, and
I think we ought to continue to live by a system of checks and balances."

Opinions on the N.S.A. domestic spying issue have broken down largely, though
not exclusively, along partisan lines, causing public rifts between the top
Republicans and Democrats on both the House and Senate Intelligence Committees.

But the analyses of the Congressional Research Service, part of the Library of
Congress, are generally seen as objective and without partisan taint, said
Eleanor Hill, who served as a Congressional staffer for 17 years and was staff
director of the joint Congressional inquiry into the Sept. 11, 2001, terrorist
attacks.

"My experience is that they're well respected in the Senate and House," said
Ms. Hill, now a Washington lawyer in private practice. "I don't remember anybody
attacking them for being partisan. They're more academic in approach."

----------------------------------------

Spy Agency Data After Sept. 11 Led F.B.I. to Dead Ends

By LOWELL BERGMAN, ERIC LICHTBLAU, SCOTT SHANE and DON VAN NATTA Jr.
January 17, 2006

WASHINGTON, Jan. 16 - In the anxious months after the Sept. 11 attacks, the
National Security Agency began sending a steady stream of telephone numbers,
e-mail addresses and names to the F.B.I. in search of terrorists. The stream
soon became a flood, requiring hundreds of agents to check out thousands of tips
a month.

But virtually all of them, current and former officials say, led to dead ends or
innocent Americans.

F.B.I. officials repeatedly complained to the spy agency that the unfiltered
information was swamping investigators. The spy agency was collecting much of
the data by eavesdropping on some Americans' international communications and
conducting computer searches of phone and Internet traffic. Some
F.B.I. officials and prosecutors also thought the checks, which sometimes
involved interviews by agents, were pointless intrusions on Americans' privacy.

As the bureau was running down those leads, its director, Robert S. Mueller III,
raised concerns about the legal rationale for a program of eavesdropping without
warrants, one government official said. Mr. Mueller asked senior administration
officials about "whether the program had a proper legal foundation," but
deferred to Justice Department legal opinions, the official said.

President Bush has characterized the eavesdropping program as a "vital tool"
against terrorism; Vice President Dick Cheney has said it has saved "thousands
of lives."

But the results of the program look very different to some officials charged
with tracking terrorism in the United States. More than a dozen current and
former law enforcement and counterterrorism officials, including some in the
small circle who knew of the secret program and how it played out at the F.B.I.,
said the torrent of tips led them to few potential terrorists inside the country
they did not know of from other sources and diverted agents from
counterterrorism work they viewed as more productive.

"We'd chase a number, find it's a schoolteacher with no indication they've ever
been involved in international terrorism - case closed," said one former
F.B.I. official, who was aware of the program and the data it generated for the
bureau. "After you get a thousand numbers and not one is turning up anything,
you get some frustration."

Intelligence officials disagree with any characterization of the program's
results as modest, said Judith A. Emmel, a spokeswoman for the office of the
director of national intelligence. Ms. Emmel cited a statement at a briefing
last month by Gen. Michael V. Hayden, the country's second-ranking intelligence
official and the director of the N.S.A. when the program was started.

"I can say unequivocally that we have gotten information through this program
that would not otherwise have been available," General Hayden said. The White
House and the F.B.I. declined to comment on the program or its results.

The differing views of the value of the N.S.A.'s foray into
intelligence-gathering in the United States may reflect both bureaucratic
rivalry and a culture clash. The N.S.A., an intelligence agency, routinely
collects huge amounts of data from across the globe that may yield only tiny
nuggets of useful information; the F.B.I., while charged with fighting
terrorism, retains the traditions of a law enforcement agency more focused on
solving crimes.

"It isn't at all surprising to me that people not accustomed to doing this would
say, 'Boy, this is an awful lot of work to get a tiny bit of information,' "
said Adm. Bobby R. Inman, a former N.S.A. director. "But the rejoinder to that
is, Have you got anything better?"

Several of the law enforcement officials acknowledged that they might not know
of arrests or intelligence activities overseas that grew out of the domestic
spying program. And because the program was a closely guarded secret, its role
in specific cases may have been disguised or hidden even from key investigators.

Still, the comments on the N.S.A. program from the law enforcement and
counterterrorism officials, many of them high level, are the first indication
that the program was viewed with skepticism by key figures at the Federal Bureau
of Investigation, the agency responsible for disrupting plots and investigating
terrorism on American soil.

All the officials spoke on condition of anonymity because the program is
classified. It is coming under scrutiny next month in hearings on Capitol Hill,
which were planned after members of Congress raised questions about the legality
of the eavesdropping. The program was disclosed in December by The New York
Times.

The law enforcement and counterterrorism officials said the program had
uncovered no active Qaeda networks inside the United States planning
attacks. "There were no imminent plots - not inside the United States," the
former F.B.I. official said.

Some of the officials said the eavesdropping program might have helped uncover
people with ties to Al Qaeda in Albany; Portland, Ore.; and Minneapolis. Some of
the activities involved recruitment, training or fund-raising.

But, along with several British counterterrorism officials, some of the
officials questioned assertions by the Bush administration that the program was
the key to uncovering a plot to detonate fertilizer bombs in London in 2004. The
F.B.I. and other law enforcement officials also expressed doubts about the
importance of the program's role in another case named by administration
officials as a success in the fight against terrorism, an aborted scheme to
topple the Brooklyn Bridge with a blow torch.

Some officials said that in both cases, they had already learned of the plans
through interrogation of prisoners or other means.

Immediately after the Sept. 11 attacks, the Bush administration pressed the
nation's intelligence agencies and the F.B.I. to move urgently to thwart any
more plots. The N.S.A., whose mission is to spy overseas, began monitoring the
international e-mail messages and phone calls of people inside the United States
who were linked, even indirectly, to suspected Qaeda figures.

Under a presidential order, the agency conducted the domestic eavesdropping
without seeking the warrants ordinarily required from the secret Foreign
Intelligence Surveillance Court, which handles national security matters. The
administration has defended the legality of the program, pointing to what it
says is the president's inherent constitutional power to defend the country and
to legislation passed by Congress after the Sept. 11 attacks.

Administration officials told Mr. Mueller, the F.B.I. director, of the
eavesdropping program, and his agency was enlisted to run down leads from it,
several current and former officials said.

While he and some bureau officials discussed the fact that the program bypassed
the intelligence surveillance court, Mr. Mueller expressed no concerns about
that to them, those officials said. But another government official said
Mr. Mueller had questioned the administration about the legal authority for the
program.

Officials who were briefed on the N.S.A. program said the agency collected much
of the data passed on to the F.B.I. as tips by tracing phone numbers in the
United States called by suspects overseas, and then by following the domestic
numbers to other numbers called. In other cases, lists of phone numbers appeared
to result from the agency's computerized scanning of communications coming into
and going out of the country for names and keywords that might be of
interest. The deliberate blurring of the source of the tips caused some
frustration among those who had to follow up.

F.B.I. field agents, who were not told of the domestic surveillance programs,
complained that they often were given no information about why names or numbers
had come under suspicion. A former senior prosecutor who was familiar with the
eavesdropping programs said intelligence officials turning over the tips "would
always say that we had information whose source we can't share, but it indicates
that this person has been communicating with a suspected Qaeda operative." He
said, "I would always wonder, what does 'suspected' mean?"

"The information was so thin," he said, "and the connections were so remote,
that they never led to anything, and I never heard any follow-up."

In response to the F.B.I. complaints, the N.S.A. eventually began ranking its
tips on a three-point scale, with 3 being the highest priority and 1 the lowest,
the officials said. Some tips were considered so hot that they were carried by
hand to top F.B.I. officials. But in bureau field offices, the N.S.A. material
continued to be viewed as unproductive, prompting agents to joke that a new
bunch of tips meant more "calls to Pizza Hut," one official, who supervised
field agents, said.

The views of some bureau officials about the value of the N.S.A.'s domestic
surveillance offers a revealing glimpse of the difficulties law enforcement and
intelligence agencies have had cooperating since Sept. 11.

The N.S.A., criticized by the national Sept. 11 commission for its "avoidance of
anything domestic" before the attacks, moved aggressively into the domestic
realm after them. But the legal debate over its warrantless eavesdropping has
embroiled the agency in just the kind of controversy its secretive managers
abhor. The F.B.I., meanwhile, has struggled over the last four years to expand
its traditional mission of criminal investigation to meet the larger menace of
terrorism.

Admiral Inman, the former N.S.A. director and deputy director of C.I.A., said
the F.B.I. complaints about thousands of dead-end leads revealed a chasm between
very different disciplines. Signals intelligence, the technical term for
N.S.A.'s communications intercepts, rarely produces "the complete information
you're going to get from a document or a witness" in a traditional
F.B.I. investigation, he said.

Some F.B.I. officials said they were uncomfortable with the expanded domestic
role played by the N.S.A. and other intelligence agencies, saying most
intelligence officers lacked the training needed to safeguard Americans' privacy
and civil rights. They said some protections had to be waived temporarily in the
months after Sept. 11 to detect a feared second wave of attacks, but they
questioned whether emergency procedures like the eavesdropping should become
permanent.

That discomfort may explain why some F.B.I. officials may seek to minimize the
benefits of the N.S.A. program or distance themselves from the agency. "This
wasn't our program," an F.B.I. official said. "It's not our mess, and we're not
going to clean it up."

The N.S.A.'s legal authority for collecting the information it passed to the
F.B.I. is uncertain. The Foreign Intelligence Surveillance Act requires a
warrant for the use of so-called pen register equipment that records American
phone numbers, even if the contents of the calls are not intercepted. But
officials with knowledge of the program said no warrants were sought to collect
the numbers, and it is unclear whether the secret executive order signed by
Mr. President Bush in 2002 to authorize eavesdropping without warrants also
covered the collection of phone numbers and e-mail addresses.

Aside from the director, F.B.I. officials did not question the legal status of
the tips, assuming that N.S.A. lawyers had approved. They were more concerned
about the quality and quantity of the material, which produced "mountains of
paperwork" often more like raw data than conventional investigative leads.

"It affected the F.B.I. in the sense that they had to devote so many resources
to tracking every single one of these leads, and, in my experience, they were
all dry leads," the former senior prosecutor said. "A trained investigator never
would have devoted the resources to take those leads to the next level, but
after 9/11, you had to."

By the administration's account, the N.S.A. eavesdropping helped lead
investigators to Iyman Faris, an Ohio truck driver and friend of Khalid Shaikh
Mohammed, who is believed to be the mastermind of the Sept. 11
attacks. Mr. Faris spoke of toppling the Brooklyn Bridge by taking a torch to
its suspension cables, but concluded that it would not work. He is now serving a
20-year sentence in a federal prison.

But as in the London fertilizer bomb case, some officials with direct knowledge
of the Faris case dispute that the N.S.A. information played a significant role.

By contrast, different officials agree that the N.S.A.'s domestic operations
played a role in the arrest of an imam and another man in Albany in August 2004
as part of an F.B.I. counterterrorism sting investigation. The men, Yassin Aref,
35, and Mohammed Hossain, 49, are awaiting trial on charges that they attempted
to engineer the sale of missile launchers to an F.B.I. undercover informant.

In addition, government officials said the N.S.A. eavesdropping program might
have assisted in the investigations of people with suspected Qaeda ties in
Portland and Minneapolis. In the Minneapolis case, charges of supporting
terrorism were filed in 2004 against Mohammed Abdullah Warsame, a Canadian
citizen. Six people in the Portland case were convicted of crimes that included
money laundering and conspiracy to wage war against the United States.

Even senior administration officials with access to classified operations
suggest that drawing a clear link between a particular source and the unmasking
of a potential terrorist is not always possible.

When Michael Chertoff, the homeland security secretary, was asked last week on
"The Charlie Rose Show" whether the N.S.A. wiretapping program was important in
deterring terrorism, he said, "I don't know that it's ever possible to attribute
one strand of intelligence from a particular program."

But Mr. Chertoff added, "I can tell you in general the process of doing whatever
you can do technologically to find out what is being said by a known terrorist
to other people, and who that person is communicating with, that is without a
doubt one of the critical tools we've used time and again."

William K. Rashbaum contributed reporting from New York for this article.

----------------------------------------------------------

US spying isn't new

By Sanford Gottlieb  |  January 19, 2006

GOVERNMENT SPYING on Americans didn't start with President George W. Bush and
the National Security Agency. I was spied on in the 1960s and 1970s.

While working in 1961 for the National Committee for a Sane Nuclear Policy, or
SANE, a citizens group organized to halt nuclear testing, I spoke to a small
gathering of people at a private home in Skokie, Ill. One of them was an
undercover FBI agent.

He wrote a report about the meeting, which I received years later with my
extensive FBI files through the Freedom of Information Act. His muddled report
managed to convey that I spoke about nuclear testing and the Kennedy
administration's tentative plans for a civil defense program. Had I been a
teacher grading the agent's sloppy paper, I would have given him an F.

My CIA file, also courtesy of the Freedom of Information Act, revealed that the
CIA had opened my domestic mail. The target of the agency's mail snoopers was a
letter I had sent to Rennie Davis, a radical leader in the anti-Vietnam War
movement. By the mid-'60s, SANE had become the anchor of the movement's moderate
wing, and I was urging Davis to drop his radical tactics.

I have no idea what the snoopers made of this correspondence, but I know that
domestic spying by the CIA was illegal then and remains illegal today.

One day in 1971, the SANE office in Washington received a phone call from
someone who had recently been discharged from Army Intelligence. He suggested
that we check our mailing list for the name of R. Allen Lee Associates of
Alexandria, Va., a cover for Army Intelligence.

Sure enough, the name was there. In response we conducted a bit of guerrilla
theater at the Bethesda home of then-Defense Secretary Melvin Laird. With
cameras, notepads, and our ''SANE spy scope," we placed his home under our
surveillance. The old Washington Star published photos of the caper with the
headline, ''When turnabout is fair play."

Spying on civilians, however, is not fun and games. It's a violation of our
freedoms whose origin dates back over half a century. Anxiety about aggressive
communism in the early Cold War years led to a host of government measures
presumably designed to prevent espionage and sabotage. These measures soon
spilled over into assaults on free speech and association.

President Truman's loyalty program to purge communists from government
designated the files of the notorious House Un-American Activities Committee,
filled with hearsay, as an official source of evidence on federal employees'
political ties. The Attorney General's List, a checklist of organizations
accused of communist, fascist, or subversive views, was used to deny public
employment to anyone associated with these groups. Right-wing groups then used
the list to deny private employment to these individuals.

The Smith Act made it a crime to advocate or teach the violent overthrow of the
US government. Under the act, 11 leaders of the Communist Party were convicted
of conspiracy to teach the violent overthrow of the government. Guilty they were
of abject obedience to the Kremlin, but conspiracy to teach?

Truman directed the FBI in 1950 to ''take charge of investigative work in
matters relating to espionage, sabotage, subversive activities and related
matters." Subversive activities remained ill-defined. But J. Edgar Hoover
revealed what he had in mind: ''(Communists) utilize cleverly camouflaged
movements, such as some peace groups and civil rights organizations, to achieve
their sinister purposes." Within 10 years the FBI, whose director was feared by
successive presidents, was infiltrating and disrupting some of these groups. The
FBI went on to wiretap Martin Luther King Jr.

Now we learn that such groups as the ACLU, Greenpeace, and People for the
Ethical Treatment of Animals have been under FBI surveillance. If this is the
danger we face, it's our intelligence agencies that need scrutiny.

Sanford Gottlieb was executive director of SANE and is author of ''Defense
Addiction: Can America Kick the Habit?" He was on President Richard Nixon's
''Enemies List."

---------------------------------

Legal Rationale by Justice Dept. on Spying Effort

By ERIC LICHTBLAU and JAMES RISEN
January 20, 2006

WASHINGTON, Jan. 19 - The Bush administration offered its fullest defense to
date Thursday of the National Security Agency's domestic eavesdropping program,
saying that authorization from Congress to deter terrorist attacks "places the
president at the zenith of his powers in authorizing the N.S.A. activities."

In a 42-page legal analysis, the Justice Department cited the Constitution, the
Federalist Papers, the writings of presidents both Republican and Democratic,
and dozens of scholarly papers and court cases in justifying President Bush's
power to order the N.S.A. surveillance program.

With the legality of the program under public attack since its disclosure last
month, officials said Attorney General Alberto R. Gonzales ordered up the
analysis partly in response to what administration lawyers felt were unfair
conclusions in a Jan. 6 report by the nonpartisan Congressional Research
Service. The Congressional report challenged virtually all the main legal
justifications the administration had cited for the program.

Vice President Dick Cheney, meanwhile, once again defended the
N.S.A. eavesdropping operation in a speech Thursday as "critical to the national
security of the United States," even as House Democrats prepared to hold an
unofficial hearing on Friday into a program that they charge is illegal and
unconstitutional. Mr. Cheney is also scheduled to meet with Congressional
leaders on Friday at a separate, closed-door briefing on the program.

When the Senate Judiciary Committee conducts an open hearing on the
eavesdropping on Feb. 6, Attorney General Gonzales is expected to testify. The
session organized for Friday by Democrats is intended to spotlight critics of
the program; administration officials will not use that forum to offer a
defense. The White House has invited some members of the House and Senate
Intelligence Committees to attend a briefing on Friday, according to Rep. Jane
Harman of California, the ranking Democrat on the House Intelligence Committee.

The analysis released Thursday by the Justice Department, with comments from
lawyers throughout the department, expanded on the legal arguments made in two
still-classified legal opinions as well as in a slimmer letter that the
department sent to Congress last month.

The basic thrust of the legal justification was the same - that the president
has inherent authority as commander in chief to order wiretaps without warrants
and that the N.S.A. operation does not violate either a 1978 law governing
intelligence wiretaps or the Fourth Amendment ban on unreasonable searches.

This month's Congressional Research Service report was particularly critical of
the administration's claim that the N.S.A. program was justified by a resolution
passed by Congress three days after the Sept. 11, 2001, attacks, authorizing the
use of "all necessary and appropriate force" against those responsible for the
terrorist acts.

The research service report found there was no indication that Congress intended
to authorize warrantless wiretaps when it gave President Bush the authority to
fight Al Qaeda and invade Afghanistan. But the Justice Department did not back
away from its position in Thursday's report, saying the type of "signals
intelligence" used in the N.S.A. operation clearly falls under the Congressional
use-of-force authorization.

"The president has made clear that he will exercise all authority available to
him, consistent with the Constitution, to protect the people of the United
States," the report said.

The Congressional authorization on the use of force, it added, "places the
president at the zenith of his powers in authorizing the N.S.A. activities."

But many critics of the program, which allows the agency to eavesdrop on
international phone calls and e-mail messages to and from American citizens and
others within the United States, said that they remained unconvinced.

"The administration's latest justification for circumventing the law to spy on
Americans falls far short of answering the many questions Congress and the
American people have about this activity," said Senator Harry Reid of Nevada,
the Democratic leader. "That is why there have been bipartisan calls for
administration officials to come to Congress to answer these questions and
ensure that the Judiciary and Intelligence Committees can thoroughly investigate
the administration's actions."

Attorney General Gonzales sent Thursday's document to Mr. Reid and to Senator
Bill Frist of Tennessee, the majority leader. While the report did not go into
many operational details of the program, it sought to bolster the case for the
president to retain inherent power to order warrantless searches in the United
States as part of the seeking of information on foreign agents.

That authority, the Justice Department analysis said, is consistent with a
three-part test established by the Supreme Court in a 1952 case, Youngstown
Sheet and Tube Company v. Sawyer, which struck down President Harry S. Truman's
authority to seize the nation's steel mills in the name of national security.

Nor does the N.S.A. program conflict, the Justice Department said, with what
many legal analysts had regarded as the exclusive authority for intelligence
wiretaps under the Foreign Intelligence Surveillance Act, passed by Congress in
1978 in response to Watergate-era political abuses. Some presidential powers,
particularly in the area of national security, are simply "beyond Congress'
ability to regulate," it said.

Vice President Cheney, who was actively involved in the creation of the
N.S.A. program and has been a vigorous advocate for expanded presidential power,
echoed that in a speech on Thursday before the Manhattan Institute for Policy
Research in New York.

While some current and former officials have challenged the value of the
N.S.A. program in deterring an attack on American soil, the vice president said:
"The activities conducted under this authorization have helped us to detect and
prevent possible terrorist attacks against the American people. As such, this
program is critical to the national security of the United States."

President Bush and Mr. Cheney have been critical of the public disclosure of the
program in The New York Times, and the Justice Department has opened an
investigation into the disclosure. Mr. Cheney acknowledged in his speech that "a
spirited debate is now under way, and our message to the American people is
clear and straightforward: These actions are within the president's authority
and responsibility under the Constitution and laws, and these actions are vital
to our security."

But Robert Reinstein, dean of the law school at Temple University, said in an
interview that he considered the eavesdropping program "a pretty straightforward
case where the president is acting illegally," and he said there appeared to be
a broad consensus among legal scholars and national security experts that the
administration's legal arguments were weak.

The foreign intelligence law passed by Congress in 1978 represents the Bush
administration's biggest legal hurdle, he said. "When Congress speaks on
questions that are domestic in nature, I really can't think of a situation where
the president has successfully asserted a constitutional power to supersede
that," he said.

Two leading civil rights groups brought lawsuits this week aimed at ending the
N.S.A. program, and several lawyers representing defendants in terrorism cases
are also seeking to challenge the program on the grounds that it may have been
improperly used in criminal prosecutions.

Mr. Reinstein predicted that the court would ultimately declare the program
unconstitutional. "This is domestic surveillance over American citizens for whom
there is no evidence or proof that they are involved in any illegal activity,
and it is in contravention of a statute of Congress specifically designed to
prevent this," he said.

----------------------------------------------------

Spies, Lies and Wiretaps

January 29, 2006
NYT Editorial

A bit over a week ago, President Bush and his men promised to provide the legal,
constitutional and moral justifications for the sort of warrantless spying on
Americans that has been illegal for nearly 30 years. Instead, we got the
familiar mix of political spin, clumsy historical misinformation, contemptuous
dismissals of civil liberties concerns, cynical attempts to paint dissents as
anti-American and pro-terrorist, and a couple of big, dangerous lies.

The first was that the domestic spying program is carefully aimed only at people
who are actively working with Al Qaeda, when actually it has violated the rights
of countless innocent Americans. And the second was that the Bush team could
have prevented the 9/11 attacks if only they had thought of eavesdropping
without a warrant.


** Sept. 11 could have been prevented.
This is breathtakingly cynical. The nation's guardians did not miss the 9/11
plot because it takes a few hours to get a warrant to eavesdrop on phone calls
and e-mail messages. They missed the plot because they were not looking. The
same officials who now say 9/11 could have been prevented said at the time that
no one could possibly have foreseen the attacks. We keep hoping that Mr. Bush
will finally lay down the bloody banner of 9/11, but Karl Rove, who emerged from
hiding recently to talk about domestic spying, made it clear that will not
happen --- because the White House thinks it can make Democrats look as though
they do not want to defend America. "President Bush believes if Al Qaeda is
calling somebody in America, it is in our national security interest to know who
they're calling and why," he told Republican officials. "Some important
Democrats clearly disagree."

Mr. Rove knows perfectly well that no Democrat has ever said any such thing ---
and that nothing prevented American intelligence from listening to a call from
Al Qaeda to the United States, or a call from the United States to Al Qaeda,
before Sept. 11, 2001, or since. The 1978 Foreign Intelligence Surveillance Act
simply required the government to obey the Constitution in doing so. And FISA
was amended after 9/11 to make the job much easier.

** Only bad guys are spied on.
Bush officials have said the surveillance is tightly focused only on contacts
between people in this country and Al Qaeda and other terrorist groups. Vice
President Dick Cheney claimed it saved thousands of lives by preventing
attacks. But reporting in this paper has shown that the National Security Agency
swept up vast quantities of e-mail messages and telephone calls and used
computer searches to generate thousands of leads. F.B.I. officials said
virtually all of these led to dead ends or to innocent Americans. The biggest
fish the administration has claimed so far has been a crackpot who wanted to
destroy the Brooklyn Bridge with a blowtorch --- a case that F.B.I. officials
said was not connected to the spying operation anyway.

** The spying is legal.
The secret program violates the law as currently written. It's that simple. In
fact, FISA was enacted in 1978 to avoid just this sort of abuse. It said that
the government could not spy on Americans by reading their mail (or now their
e-mail) or listening to their telephone conversations without obtaining a
warrant from a special court created for this purpose. The court has approved
tens of thousands of warrants over the years and rejected a handful.

As amended after 9/11, the law says the government needs probable cause, the
constitutional gold standard, to believe the subject of the surveillance works
for a foreign power or a terrorist group, or is a lone-wolf terrorist. The
attorney general can authorize electronic snooping on his own for 72 hours and
seek a warrant later. But that was not good enough for Mr. Bush, who lowered the
standard for spying on Americans from "probable cause" to "reasonable belief"
and then cast aside the bedrock democratic principle of judicial review.

** Just trust us.
Mr. Bush made himself the judge of the proper balance between national security
and Americans' rights, between the law and presidential power. He wants
Americans to accept, on faith, that he is doing it right. But even if the United
States had a government based on the good character of elected officials rather
than law, Mr. Bush would not have earned that kind of trust. The domestic spying
program is part of a well-established pattern: when Mr. Bush doesn't like the
rules, he just changes them, as he has done for the detention and treatment of
prisoners and has threatened to do in other areas, like the confirmation of his
judicial nominees. He has consistently shown a lack of regard for privacy, civil
liberties and judicial due process in claiming his sweeping powers. The founders
of our country created the system of checks and balances to avert just this sort
of imperial arrogance.

** The rules needed to be changed.
In 2002, a Republican senator --- Mike DeWine of Ohio --- introduced a bill that
would have done just that, by lowering the standard for issuing a warrant from
probable cause to "reasonable suspicion" for a "non-United States person." But
the Justice Department opposed it, saying the change raised "both significant
legal and practical issues" and may have been unconstitutional. Now, the
president and Attorney General Alberto Gonzales are telling Americans that
reasonable suspicion is a perfectly fine standard for spying on Americans as
well as non-Americans --- and they are the sole judges of what is reasonable.

So why oppose the DeWine bill? Perhaps because Mr. Bush had already secretly
lowered the standard of proof --- and dispensed with judges and warrants --- for
Americans and non-Americans alike, and did not want anyone to know.

** War changes everything.
Mr. Bush says Congress gave him the authority to do anything he wanted when it
authorized the invasion of Afghanistan. There is simply nothing in the record to
support this ridiculous argument.

The administration also says that the vote was the start of a war against
terrorism and that the spying operation is what Mr. Cheney calls a "wartime
measure." That just doesn't hold up. The Constitution does suggest expanded
presidential powers in a time of war. But the men who wrote it had in mind wars
with a beginning and an end. The war Mr. Bush and Mr. Cheney keep trying to sell
to Americans goes on forever and excuses everything.

** Other presidents did it.
Mr. Gonzales, who had the incredible bad taste to begin his defense of the
spying operation by talking of those who plunged to their deaths from the
flaming twin towers, claimed historic precedent for a president to authorize
warrantless surveillance. He mentioned George Washington, Woodrow Wilson and
Franklin D. Roosevelt. These precedents have no bearing on the current
situation, and Mr. Gonzales's timeline conveniently ended with F.D.R., rather
than including Richard Nixon, whose surveillance of antiwar groups and other
political opponents inspired FISA in the first place. Like Mr. Nixon, Mr. Bush
is waging an unpopular war, and his administration has abused its powers against
antiwar groups and even those that are just anti-Republican.  \u2022


The Senate Judiciary Committee is about to start hearings on the domestic
spying. Congress has failed, tragically, on several occasions in the last five
years to rein in Mr. Bush and restore the checks and balances that are the
genius of American constitutional democracy. It is critical that it not betray
the public once again on this score.

---------------------------------------------

Senator calls spy program 'most extensive' in history
By Charlie Savage, Globe Staff  |  February 3, 2006

WASHINGTON -- A senator who has been briefed on President Bush's domestic spying
said yesterday that it is the ''the most extensive and aggressive" National
Security Agency program in history, offering a new assessment of the scope of
the secretive policy.

Shortly after the 2001 terrorist attacks, Bush authorized the NSA to wiretap
Americans' international phone calls and e-mails without a warrant, despite a
law requiring warrants. Bush claims that his wartime powers give him the
authority to override the law, an assertion disputed by most legal
scholars. Since the program was disclosed in December, the White House has
insisted that it is ''limited and targeted" only at Americans who are connected
to Al Qaeda.

Yesterday, during a rare open hearing of the Senate Intelligence Committee,
Senator Jay Rockefeller IV of West Virginia described the domestic surveillance
program as the largest undertaking in the NSA's 54-year history. Rockefeller,
the committee's ranking Democrat, is one of four members of Congress who
regularly received briefings about the program. He also accused the Bush
administration of ''selectively" declassifying information about the program,
but offered no details.

''The intelligence community has become a public relations arm of the White
House in recent weeks," he said. ''The selective declassification of
intelligence information -- which has undoubtedly occurred in recent weeks -- in
support of the administration's defense of the NSA program hearkens back to the
troubling runup to the war in Iraq."

He made his comments during a hearing officially devoted to the intelligence
community's annual review of global threats. National Intelligence Director John
Negroponte stressed that the purpose of the spying program, which he believes
was legal, was to protect the country from terrorists ''in the most agile and
effective way possible."

Chairman Pat Roberts, Republican of Kansas, criticized those who questioned the
program despite the ongoing threat of a terrorist attack, saying ''you really
don't have any civil liberties if you're dead." Rockefeller, however, countered
that the issue is the rule of law. ''I am strongly for the goal [of detecting Al
Qaeda plots], but I want it to be done under the law," he said.

------------------------------------------------

Convict challenges NSA warrantless spying
February 3, 2006

COLUMBUS, Ohio --A lawyer for an Ohio trucker who pleaded guilty to plotting to
destroy the Brooklyn Bridge has prepared a motion asking a federal judge to
throw out the case on the grounds that the government illegally spied on him.

Iyman Faris' challenge is among the first to seek evidence of warrantless
electronic eavesdropping by the National Security Agency, a practice that began
after the terrorist attacks of Sept. 11, 2001. Government officials have
reportedly credited the practice with uncovering Faris' terrorist plot and
several others.

Faris' attorney David Smith said he planned to file the motion Friday in
U.S. District Court in Alexandria, Va. It will argue that investigators
improperly obtained evidence against Faris and that his trial lawyer was
ineffective.

Faris, 36, pleaded guilty in 2003 to conspiracy and aiding and abetting
terrorism, and was sentenced to 20 years in prison. He has tried to withdraw his
plea, saying everything in his agreement with prosecutors was false.

According to prosecutors, Faris traveled to Pakistan and Afghanistan, carrying
out low-level missions for terrorists.

Prosecutors said he investigated, but ultimately ruled out, the possibility of
using a gas cutter to burn through the Brooklyn Bridge's suspension cables, and
that he received attack instructions from top terrorist leader Khalid Shaikh
Mohammed for what they suggested might have been a second wave of terror attacks
in New York and Washington.

At his sentencing, prosecutors acknowledged that federal agents were led to
Faris by a telephone call intercepted in another investigation.

Critics say the NSA tactics are unconstitutional, contending that the government
must go through a secretive court set up to approve surveillance warrants in the
United States during national security investigations. The Bush administration
has staunchly defended the practice, saying the agency only monitors calls in
which one party is outside the United States and the call is believed to be
related to terrorism.

A lawyer for Ali al-Timimi, an Islamic scholar in northern Virginia convicted of
exhorting followers, has said he plans to challenge his case based on NSA
involvement. So has an attorney for Adham Amin Hassoun, a Lebanese-born
Palestinian who worked as a computer programmer in Broward County, Fla.

Al-Timimi is serving life in prison.

Hassoun is charged along with four others with being part of a North American
cell dedicated to supporting violent Muslim extremists worldwide. He is awaiting
trial in Miami.

On Tuesday, a civil liberties group sued AT&T Inc. for its alleged role in
helping the NSA spy on the phone calls and other communications of U.S. citizens
without warrants.

The class-action lawsuit, filed in U.S. District Court in San Francisco by the
Electronic Frontier Foundation, seeks an end to the surveillance program and
billions of dollars in damages. AT&T has declined to comment on that case.

--------------------------------------------------------------

Specter Says Surveillance Program Violated the Law

By BRIAN KNOWLTON,
International Herald Tribune

WASHINGTON, Feb. 5 -- The Republican who chairs the Senate Judiciary Committee
said today that he believed the Bush administration had violated the law with
its warrantless surveillance program and that its legal justifications for the
program were "strained and unrealistic."

The program "is in flat violation of the Foreign Intelligence Surveillance Act,"
said the chairman, Senator Arlen Specter of Pennsylvania, who will open
committee hearings on Monday.

But the deputy director of national intelligence, Gen. Michael Hayden of the Air
Force, who oversaw the program when he headed the National Security Agency,
defended it from assertions that it had cast too broad a net, intercepting the
calls of perhaps thousands of innocent Americans, and produced only modest
results in pursuit of the Qaeda terror network.

"It's about speed," General Hayden said on ABC. "It's about hot pursuit of Al
Qaeda communications."

Senator Specter said that his committee was trying to secure testimony from
former Attorney General John Ashcroft and other former Bush administration
officials, including some who are said to have questioned the legality of the
program in its initial years.

Democrats have urged Mr. Specter to ask the administration to waive executive
privilege to allow former officials to testify candidly.

For now, the only administration witness scheduled to appear is Mr. Ashcroft's
successor, Attorney General Alberto Gonzales.

Mr. Gonzales and other administration officials have asserted that a president's
inherent powers and the authority for the use of force that Congress granted
after Sept. 11, 2001, gave President Bush ample powers to permit eavesdropping
without warrants from the special court set up by the Foreign Intelligence
Surveillance Act.

Senator Specter said that he would ask Mr. Gonzales to seek the FISA court's own
assessment of whether the program is legal.

The senator, who has clashed with the administration before, said that it was
clear to him that the law had been violated. The program, he said on NBC, "is in
flat violation of the Foreign Intelligence Surveillance Act." But it remained to
be seen, Mr. Specter added, whether that statute is inconsistent with the
Constitution.

Of Democratic calls to subpoena notes of administration deliberations about the
legality of the program, Senator Specter said he would not immediately move to
do so. But "if the necessity arises," he added, "I won't be timid."

Mr. Specter's strong language reflects sharp concerns among many in Congress -
mainly Democrats, but also some Republicans - over the legality of the program,
the administration's decision to circumvent the FISA court rather than ask
Congress to change the law, and whether the administration kept Congress
adequately informed.

General Hayden, asked about a Washington Post report today that intelligence
officers had eavesdropped on thousands of Americans on overseas calls before
dismissing "nearly all" of them as potential suspects, said that he was "not
quite sure why that would be the metric of success."

He insisted again that the program was carefully focused.

Speaking on the Fox network, General Hayden said the program was aimed only at
people for whom there was, if not probable cause, then evidence "in that
probable cause range" to believe they had links to Al Qaeda.

But citing the secrecy of the program, the general was circumspect in answering
other questions.

Asked whether any of the eight members of Congress who had regularly been
briefed on the program had expressed concern or objections - as some say they
did - he replied, "I certainly never left the room believing we had to do
anything differently."

Last week, the CIA director, Porter Goss, complained that unauthorized
disclosures in the news media had harmed national security, but the general was
less pointed in his comments today. Asked whether national security had been
harmed by The New York Times's disclosure of the warrantless N.S.A. program, -
General Hayden said that it would be "very, very difficult for me to answer
that."

The Post reported that fewer than 10 American citizens or residents a year had
aroused sufficient suspicion during warrantless eavesdropping to justify
interception of their domestic calls, a further step requiring a warrant from a
federal judge.

Vice President Dick Cheney has said the secret program may have saved thousands
of American lives, but provided no details.

A Republican senator, Jeff Sessions of Alabama, said that the program did not
need to snare large numbers of terrorists to prove its worth. "One case of
identifying one sleeper cell can mean a matter of life and death," he said on
CBS. "It's not academic."

--------------------------------------------

On eve of hearing, split on spying
Some prominent conservatives break with Bush
By Charlie Savage, Globe Staff  |  February 5, 2006

WASHINGTON -- As hearings begin tomorrow on President Bush's domestic spying
program, increasing numbers of prominent conservatives are breaking with the
administration to say the program is probably illegal and to sharply criticize
Attorney General Alberto R. Gonzales's legal theory that a wartime president can
override a law.

The skeptics include leaders of conservative activist groups, well-known law
professors, veterans of Republican administrations, former GOP members of
Congress, and think tank analysts. The conservatives said they are speaking out
because they object to the White House's attempt to portray criticism of the
program as partisan attacks.

''My criteria for judging this stuff is what would a President Hillary do with
these same powers," said Paul M. Weyrich, the influential writer and leader of
the Free Congress Foundation, a think tank. ''And if I'm troubled by what she
would do, then I have to be troubled by what Bush could do, even though I have
more trust in Bush than I do in Hillary."

Shortly after the terrorist attacks of Sept. 11, 2001, Bush secretly authorized
the military to wiretap American's international phone calls and e-mails without
obtaining court permission, as a law requires. After the program's existence was
disclosed in December, Bush contended that his wartime powers give him the
authority to override the law requiring warrants.

The Senate Judiciary Committee is set to open a hearing into the legality of the
program tomorrow, with Gonzales scheduled to testify all day. In advance of his
testimony, White House spokeswoman Dana Perino defended the program against its
conservative critics.

Bush, she said, ''has received strong support for the program from many
different people. And while some may disagree, despite the extensive legal
analysis provided by the Department of Justice, the president is strongly
committed to this lawful program."

But the Bush administration's legal analysis has been met with contempt from an
increasingly vocal segment of the conservative movement.

Some of the conservative critics, such as Grover Norquist of Americans for Tax
Reform, contend that Bush should simply comply with the law requiring the
government to obtain a court order when it wants to wiretap an American. Bush's
aides have asserted that warrants take too long to obtain, but Norquist said the
law allows investigators to plant a wiretap first and seek permission up to
three days later.

''There is no excuse for violating the rule of law," Norquist said. ''You can
listen to [suspects] and get the warrant afterward. Not to do that appears to be
an expression of contempt for the idea of warrants."

Larry Pratt, executive director of Gun Owners of America, said that if
investigators need more time to fill out the warrant application, Congress
should change the law to extend the deadline. But, he said, court orders ought
to remain part of the process to ensure that government surveillance power is
never used against the political enemies of whomever is in power.

''Some liberals think of gun owners as terrorists," he said.

Other conservative critics, such as David Keene, the chairman of the American
Conservative Union -- which calls itself the largest grass-roots conservative
organization in the country -- say the president should simply get the House and
Senate to approve the program, rather than assert a right to bypass Congress in
times of war.

''Their argument is extremely dangerous in the long term because it can be used
to justify all kinds of things that I'm sure neither the president nor the
attorney general has thought about," Keene said. A president ''could just do
whatever [he] wants to do. . . . The American system was set up on the
assumption that you can't rely on the good will of people with power."

Bruce Fein, a former Justice Department official under President Reagan, said
that under Bush's theory a president could authorize internment camps for groups
of US citizens he deems suspicious. Congress outlawed such camps after President
Franklin D. Roosevelt interned Japanese-Americans in World War II. But under
Bush's theory, the president could invoke his wartime powers to override the law
in the name of protecting national security, Fein said.

''It's Bush's defenders who are embracing the most liberal and utopian view of
human nature with their 'trust me' argument, a view that would cause the
Founding Fathers to weep," Fein said. ''The real conservatives are the ones who
treasure the original understanding of the Constitution, and clearly this is
inconsistent with the separation of powers."

Some conservatives defend the legality of the surveillance program. Among the
most prominent has been David Rivkin, a former associate White House counsel in
the administration of George H.W. Bush, who has recently found himself debating
a series of conservatives who used to be his allies.

Rivkin said his fellow conservatives who call the surveillance program illegal
are mostly libertarians and other believers in small government. The critics, he
said, do not believe that the war on terrorism is a real war and that the nature
of terrorism requires treating the home front like a battlefield.

''Most of the critics don't really agree that this is war, or if they do, they
haven't thought through the implications," Rivkin said. ''The rules in war are
harsh rules, because the stakes are so high."

Rivkin also rejected Fein's contention that if Bush's legal theory is correct, a
president also could authorize internment camps. He said the president can do
things that are normal parts of war, including conducting military
surveillance. But it would still be illegal to detain citizens who aren't enemy
combatants, he said.  [ME: Ahhh, but if the president declares a large group of
people to be "enemy combatants," then he can form internment camps.  In fact,
that has already happened under the current President Bush.  And President Bush
is arguing that his designation of "enemy combatant" is not subject to judicial
review.]

But Robert Levy of the libertarian Cato Institute said conducting surveillance
on US soil without a warrant is one of the things that Bush cannot do, even in
wartime, because Congress passed a law making it a criminal offense to wiretap
Americans without a warrant, even in national security circumstances.

''If we had silence by Congress on warrants, then the administration's position
would be more powerful," Levy said. ''But the president is acting contrary to
the expressed will of Congress. That is what renders this program most legally
suspect."

Richard Epstein, a prominent conservative law professor at the University of
Chicago, said Rivkin and the other defenders of the president's legal theory are
misreading the Constitution. The president has broad powers to take immediate
steps to counter an invasion, he said, but has little authority to defy the will
of Congress after an initial emergency has receded.

Bob Barr, a onetime Republican representative from Georgia and a former
prosecutor, said the issue is whether the president can violate a law, not
whether this particular program makes sense from a policy perspective in the war
on terrorism.

Said Barr, ''If the American people see the conservative movement rolling over
and playing dead and buying into these specious arguments by the administration
-- that it's OK to violate the law as long as you do it for the right reasons
and because we might have a president that we like -- then the credibility of
the conservative movement on other issues will suffer greatly."

-------------------------------------------------

The truth behind the San Diego two
By Bob Graham  |  February 5, 2006

IN TUESDAY evening's State of the Union speech, President Bush defended his
warrantless wiretap program by giving one example of where it might have saved
American lives: ''It is said that prior to the attacks of Sept. 11, our
government failed to connect the dots of the conspiracy. We now know that two of
the hijackers in the United States placed telephone calls to Al Qaeda operatives
overseas. But we did not know about their plans until it was too late."

Vice President Dick Cheney made a similar assertion three weeks ago. Both refer
to two of the 19 hijackers who lived in San Diego in 2000: Nawaf al-Hazmi and
Khalid al-Midhar. In these two sentences the president has committed two
sins. He has stretched the truth, and he has distracted the American people from
the steps we need to take to truly make us more secure from terrorist attacks.

During the Joint Inquiry of the Congressional Intelligence Committees, which I
cochaired, we determined the following to be some of the major failures
involving the San Diego two: In December 1999, the CIA was alerted that a summit
of terrorists would be held at Kuala Lumpur, Malaysia, and that two Saudis,
Hazmi and Midhar, would participate.

The Kuala Lumpur CIA station decided to outsource the surveillance of the summit
to Malaysian intelligence, which was unable to place a listening device in the
meeting room. Had it done so, we probably would have heard of Al Qaeda's plans
to attack a US destroyer, which in October 2000 culminated in the bombing of the
USS Cole, and the initial preparations for 9/11.

In January 2000, deaf but not blind, the CIA had secured photographs of all the
summit participants and the US visa of Midhar. None of this information was
included in the State Department's watch list of suspect persons, and neither
immigration and border control agencies nor the FBI were notified. Two weeks
after the summit ended, the two future hijackers entered the United States
through Los Angeles International Airport undetected.

By March 2000, the CIA also had information indicating that Hazmi had traveled
to Los Angeles, but information about the travel of either man was not given to
the FBI until late August 2001.

By June 2000, the two Saudis who had been living in San Diego for five months
were boarders in the home of Abdussattar Shaikh. Hazmi listed his number in the
San Diego telephone directory. Unknown to them, Shaikh was a paid informant of
the FBI, assigned to oversee and report on the activities of young Muslims in
San Diego.

Because the FBI did not know of the CIA's information on Midhar and Hazmi,
Shaikh was not tasked to keep an eye on the two. Shaikh's handling agent
testified that, had he known that the CIA had identified the two as Al Qaeda
operatives, he would have done a ''full court press" in terms of surveillance,
informant tasking, and investigation -- and believes he could have uncovered the
plot and potentially foiled the 9/11 attacks.

According to the San Diego Union Tribune, the director of the FBI office in San
Diego stated that the fundamental mistakes were a failure of his agency and the
CIA to communicate. ''If we knew what the CIA knew, we'd have been in an ideal
situation to locate these people." He made no suggestion that by following the
law, securing a search warrant before wiretapping, was a detriment.

It is wrong to suggest that the events of 2000 justify warrantless
eavesdropping. Just the opposite. It is by correcting institutional and personal
incompetence, rather than sacrificing the rights of Americans, that our safety
can be best secured.

Through the Patriot Act, passed in 2001 after the 9/11 attacks, Congress
modified or repealed laws that had constrained the sharing of information
between law enforcement and intelligence agencies. Other critical changes remain
-- neither of which was mentioned in the president's speech.

The FBI must install an information technology that will modernize its
antiquated internal and external communications, and the intelligence community
must recruit and train an adequate staff of culturally sensitive Middle Eastern
and Central Asian linguists to serve as agents and analysts.

These are two of the steps that will make us safer. These changes will bring us
closer to achieving the president's optimistic conclusion: ''We will renew the
defining moral commitments of this land. And so we move forward -- optimistic
about our country, faithful to its cause, and confident of the victories to
come."

Bob Graham, a former Florida senator, is a senior fellow at the Belfer Center
for Science and International Affairs at Harvard University's John F. Kennedy
School of Government.

----------------------------------------------------

Surveillance Net Yields Few Suspects; 
NSA's Hunt for Terrorists Scrutinizes Thousands of Americans, but Most Are Later
Cleared

Barton Gellman, Dafna Linzer and Carol D. Leonnig, Washington Post Staff Writers
February 5th, 2006

Intelligence officers who eavesdropped on thousands of Americans in overseas
calls under authority from President Bush have dismissed nearly all of them as
potential suspects after hearing nothing pertinent to a terrorist threat,
according to accounts from current and former government officials and
private-sector sources with knowledge of the technologies in use. 

Bush has recently described the warrantless operation as "terrorist
surveillance" and summed it up by declaring that "if you're talking to a member
of al Qaeda, we want to know why." But officials conversant with the program
said a far more common question for eavesdroppers is whether, not why, a
terrorist plotter is on either end of the call. The answer, they said, is
usually no. 

Fewer than 10 U.S. 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. 

The Bush administration refuses to say -- in public or in closed session of
Congress -- how many Americans in the past four years have had their
conversations recorded or their e-mails read by intelligence analysts without
court authority. Two knowledgeable sources placed that number in the thousands;
one of them, more specific, said about 5,000. 

The program has touched many more Americans than that. Surveillance takes place
in several stages, officials said, the earliest by machine. Computer-controlled
systems collect and sift basic information about hundreds of thousands of faxes,
e-mails 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. 

The scale of warrantless surveillance, and the high proportion of bystanders
swept in, sheds new light on Bush's circumvention of the courts. National
security lawyers, in and out of government, said the washout rate raised fresh
doubts about the program's lawfulness under the Fourth Amendment, because a
search cannot be judged "reasonable" if it is based on evidence that experience
shows to be unreliable. Other officials said the disclosures might shift the
terms of public debate, altering perceptions about the balance between privacy
lost and security gained. 

Air Force Gen. Michael V. Hayden, the nation's second-ranking intelligence
officer, acknowledged in a news briefing last month that eavesdroppers "have to
go down some blind alleys to find the tips that pay off." Other officials,
nearly all of whom spoke on the condition of anonymity because they are not
permitted to discuss the program, said the prevalence of false leads is
especially pronounced when U.S. citizens or residents are surveilled. No
intelligence agency, they said, believes that "terrorist . . . operatives inside
our country," as Bush described the surveillance targets, number anywhere near
the thousands who have been subject to eavesdropping. 

The Bush administration declined to address the washout rate or answer any other
question for this article about the policies and operations of its warrantless
eavesdropping. 

Vice President Cheney has made the administration's strongest claim about the
program's intelligence value, telling CNN in December that eavesdropping without
warrants "has saved thousands of lives." Asked about that Thursday, Hayden told
senators he "cannot personally estimate" such a figure but that the program
supplied information "that would not otherwise have been available." FBI
Director Robert S. Mueller III said at the same hearing that the information
helped identify "individuals who were providing material support to terrorists." 

Supporters speaking unofficially said the program is designed to warn of
unexpected threats, and they argued that success cannot be measured by the
number of suspects it confirms. Even unwitting Americans, they said, can take
part in communications -- arranging a car rental, for example, without knowing
its purpose -- that supply "indications and warnings" of an attack. Contributors
to the technology said it is a triumph for artificial intelligence if a fraction
of 1 percent of the computer-flagged conversations guide human analysts to
meaningful leads. 

Those arguments point to a conflict between the program's operational aims and
the legal and political limits described by the president and his advisers. For
purposes of threat detection, officials said, the analysis of a telephone call
is indifferent to whether an American is on the line. Since Sept. 11, 2001, a
former CIA official said, "there is a lot of discussion" among analysts "that we
shouldn't be dividing Americans and foreigners, but terrorists and
non-terrorists." But under the Constitution, and in the Bush administration's
portrait of its warrantless eavesdropping, the distinction is fundamental. 

Valuable information remains valuable even if it comes from one in a thousand
intercepts. But government officials and lawyers said the ratio of success to
failure matters greatly when eavesdropping subjects are Americans or
U.S. visitors with constitutional protection. The minimum legal definition of
probable cause, said a government official who has studied the program closely,
is that evidence used to support eavesdropping ought to turn out to be "right
for one out of every two guys at least." Those who devised the surveillance
plan, the official said, "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. 

Michael J. Woods, who was chief of the FBI's national security law unit until
2002, said in an e-mail interview that even using the lesser standard of a
"reasonable basis" requires evidence "that would lead a prudent, appropriately
experienced person" to believe the American is a terrorist agent. If a factor
returned "a large number of false positives, I would have to conclude that the
factor is not a sufficiently reliable indicator and thus would carry less (or
no) weight." 

Bush has said his program covers only overseas calls to or from the United
States and stated categorically that "we will not listen inside this country"
without a warrant. Hayden said the government goes to the intelligence court
when an eavesdropping subject becomes important enough to "drill down," as he
put it, "to the degree that we need all communications." 

Yet a special channel set up for just that purpose four years ago has gone
largely unused, according to an authoritative account. Since early 2002, when
the presiding judge of the federal intelligence court first learned of Bush's
program, he agreed to a system in which prosecutors may apply for a domestic
warrant after warrantless eavesdropping on the same person's overseas
communications. The annual number of such applications, a source said, has been
in the single digits. 

Many features of the surveillance program remain unknown, including what becomes
of the non-threatening U.S. e-mails and conversations that the NSA
intercepts. Participants, according to a national security lawyer who represents
one of them privately, are growing "uncomfortable with the mountain of data they
have now begun to accumulate." Spokesmen for the Bush administration declined to
say whether any are discarded. 

Recent interviews have described the program's origins after Sept. 11 in what
Hayden has called a three-way collision of "operational, technical and legal
imperatives." 

Intelligence agencies had an urgent mission to find hidden plotters before they
could strike again. 

About the same time, advances in technology -- involving acoustic engineering,
statistical theory and efficient use of computing power to apply them -- offered
new hope of plucking valuable messages from the vast flow of global voice and
data traffic. And rapidly changing commercial trends, which had worked against
the NSA in the 1990s as traffic shifted from satellites to fiber-optic cable,
now presented the eavesdroppers with a gift. Market forces were steering as much
as a third of global communications traffic on routes that passed through the
United States. 

The Bush administration had incentive and capabilities for a new kind of
espionage, but 23 years of law and White House policy stood in the way. 

FISA, passed in 1978, was ambiguous about some of the president's plans,
according to current and retired government national security lawyers. But other
features of the eavesdropping program fell outside its boundaries. 

One thing the NSA wanted was access to the growing fraction of global
telecommunications that passed through junctions on U.S. territory. According to
former senator Bob Graham (D-Fla.), who chaired the Intelligence Committee at
the time, briefers told him in Cheney's office in October 2002 that Bush had
authorized the agency to tap into those junctions. That decision, Graham said in
an interview first reported in The Washington Post on Dec. 18, allowed the NSA
to intercept "conversations that . . . went through a transit facility inside
the United States." 

According to surveys by TeleGeography Inc., nearly all voice and data traffic to
and from the United States now travels by fiber-optic cable. About one-third of
that volume is in transit from one foreign country to another, traversing
U.S. networks along its route. The traffic passes through cable landing
stations, where undersea communications lines meet the East and West coasts;
warehouse-size gateways where competing international carriers join their
networks; and major Internet hubs known as metropolitan area ethernets. 

Until Bush secretly changed the rules, the government could not tap into access
points on U.S. soil without a warrant to collect the "contents" of any
communication "to or from a person in the United States." But the FISA law was
silent on calls and e-mails that began and ended abroad. 

Even for U.S. communications, the law was less than clear about whether the NSA
could harvest information about that communication that was not part of its
"contents." 

"We debated a lot of issues involving the 'metadata,' " one government lawyer
said. Valuable for analyzing calling patterns, the metadata for telephone calls
identify their origin, destination, duration and time. E-mail headers carry much
the same information, along with the numeric address of each network switch
through which a message has passed. 

Intelligence lawyers said FISA plainly requires a warrant if the government
wants real-time access to that information for any one person at a time. But the
FISA court, as some lawyers saw it, had no explicit jurisdiction over wholesale
collection of records that do not include the content of communications. One
high-ranking intelligence official who argued for a more cautious approach said
he found himself pushed aside. Awkward silences began to intrude on meetings
that discussed the evolving rules. 

"I became aware at some point of things I was not being told about," the
intelligence official said. 

Hayden has described a "subtly softer trigger" for eavesdropping, based on a
powerful "line of logic," but no Bush administration official has acknowledged
explicitly that automated filters play a role in selecting American targets. But
Sen. Arlen Specter (R-Pa.), who chairs the Judiciary Committee, referred in a
recent letter to "mechanical surveillance" that is taking place before
U.S. citizens and residents are "subject to human surveillance." 

Machine selection would be simple if the typical U.S. eavesdropping subject took
part in direct calls to or from the "phone numbers of known al Qaeda"
terrorists, the only criterion Bush has mentioned. 

That is unusual. The NSA more commonly looks for less-obvious clues in the
"terabytes of speech, text, and image data" that its global operations collect
each day, according to an unclassified report by the National Science Foundation
soliciting research on behalf of U.S. intelligence. 

NSA Inspector General Joel F. Brenner said in 2004 that the agency's
intelligence officers have no choice but to rely on "electronic filtering,
sorting and dissemination systems of amazing sophistication but that are
imperfect." 

One method in use, the NSF report said, is "link analysis." It takes an
established starting point -- such as a terrorist just captured or killed -- and
looks for associated people, places, things and events. Those links can be far
more tenuous than they initially appear. 

In an unclassified report for the Pentagon's since-abandoned Total Information
Awareness program, consultant Mary DeRosa showed how "degrees of separation"
among the Sept. 11 conspirators concealed the significance of clues that linked
them. 

Khalid Almihdhar, one of the hijackers, was on a government watch list for
terrorists and thus a known suspect. Mohamed Atta, another hijacker, was linked
to Almihdhar by one degree of separation because he used the same contact
address when booking his flight. Wail M. Alshehri, another hijacker, was linked
by two degrees of separation because he shared a telephone number with
Atta. Satam M.A. Al Suqami, still another hijacker, shared a post office box
with Alshehri and, therefore, had three degrees of separation from the original
suspect. 

Those links were not obvious before the identity of the hijackers became
known. A major problem for analysts is that a given suspect may have hundreds of
links to others with one degree of separation, including high school classmates
and former neighbors in a high-rise building who never knew his name. Most
people are linked to thousands or tens of thousands of people by two degrees of
separation, and hundreds of thousands or millions by three degrees. 

Published government reports say the NSA and other data miners use mathematical
techniques to form hypotheses about which of the countless theoretical ties are
likeliest to represent a real-world relationship. 

A more fundamental problem, according to a high-ranking former official with
firsthand knowledge, is that "the number of identifiable terrorist entities is
decreasing." There are fewer starting points, he said, for link analysis. 

"At that point, your only recourse is to look for patterns," the official said. 

Pattern analysis, also described in the NSF and DeRosa reports, does not depend
on ties to a known suspect. It begins with places terrorists go, such as the
Pakistani province of Waziristan, and things they do, such as using disposable
cell phones and changing them frequently, which U.S. officials have publicly
cited as a challenge for counterterrorism. 

"These people don't want to be on the phone too long," said Russell Tice, a
former NSA analyst, offering another example. 

Analysts build a model of hypothetical terrorist behavior, and computers look
for people who fit the model. Among the drawbacks of this method is that nearly
all its selection criteria are innocent on their own. There is little precedent,
lawyers said, for using such a model as probable cause to get a court-issued
warrant for electronic surveillance. 

Jeff Jonas, now chief scientist at IBM Entity Analytics, invented a data-mining
technology used widely in the private sector and by the government. He
sympathizes, he said, with an analyst facing an unknown threat who gathers
enormous volumes of data "and says, 'There must be a secret in there.' " 

But pattern matching, he argued, will not find it. Techniques that "look at
people's behavior to predict terrorist intent," he said, "are so far from
reaching the level of accuracy that's necessary that I see them as nothing but
civil liberty infringement engines." 

Even with 38,000 employees, the NSA is incapable of translating, transcribing
and analyzing more than a fraction of the conversations it intercepts. For
years, including in public testimony by Hayden, the agency has acknowledged use
of automated equipment to analyze the contents and guide analysts to the most
important ones. 

According to one knowledgeable source, the warrantless program also uses those
methods. That is significant to the public debate because this kind of filtering
intrudes into content, and machines "listen" to more Americans than humans
do. NSA rules since the late 1970s, when machine filtering was far less capable,
have said "acquisition" of content does not take place until a conversation is
intercepted and processed "into an intelligible form intended for human
inspection." 

The agency's filters are capable of comparing spoken language to a "dictionary"
of key words, but Roger W. Cressey, a senior White House counterterrorism
official until late 2002, said terrorists and other surveillance subjects make
frequent changes in their code words. He said, " 'Wedding' was martyrdom day and
the 'bride' and 'groom' were the martyrs." But al Qaeda has stopped using those
codes. 

An alternative approach, in which a knowledgeable source said the NSA's work
parallels academic and commercial counterparts, relies on "decomposing an audio
signal" to find qualities useful to pattern analysis. Among the fields involved
are acoustic engineering, behavioral psychology and computational linguistics. 

A published report for the Defense Advanced Research Projects Agency said
machines can easily determine the sex, approximate age and social class of a
speaker. They are also learning to look for clues to deceptive intent in the
words and "paralinguistic" features of a conversation, such as pitch, tone,
cadence and latency. 

This kind of analysis can predict with results "a hell of a lot better than
chance" the likelihood that the speakers are trying to conceal their true
meaning, according to James W. Pennebaker, who chairs the psychology department
at the University of Texas at Austin. 

"Frankly, we'll probably be wrong 99 percent of the time," he said, "but 1
percent is far better than 1 in 100 million times if you were just guessing at
random. And this is where the culture has to make some decisions." 

Researcher Julie Tate and staff writer R. Jeffrey Smith contributed to this
report.

----------------------------------

Judges on Secretive Panel Speak Out on Spy Program

By ERIC LICHTBLAU
March 29, 2006

WASHINGTON, March 28 --- Five former judges on the nation's most secretive
court, including one who resigned in apparent protest over President Bush's
domestic eavesdropping, urged Congress on Tuesday to give the court a formal
role in overseeing the surveillance program.

In a rare glimpse into the inner workings of the secretive court, known as the
Foreign Intelligence Surveillance Court, several former judges who served on the
panel also voiced skepticism at a Senate hearing about the president's
constitutional authority to order wiretapping on Americans without a court
order. They also suggested that the program could imperil criminal prosecutions
that grew out of the wiretaps.

Judge Harold A. Baker, a sitting federal judge in Illinois who served on the
intelligence court until last year, said the president was bound by the law
"like everyone else." If a law like the Foreign Intelligence Surveillance Act is
duly enacted by Congress and considered constitutional, Judge Baker said, "the
president ignores it at the president's peril."

Judge Baker and three other judges who served on the intelligence court
testified at a Senate Judiciary Committee hearing in support of a proposal by
Senator Arlen Specter, Republican of Pennsylvania, to give the court formal
oversight of the National Security Agency's eavesdropping program. Committee
members also heard parts of a letter in support of the proposal from a fifth
judge, James Robertson, who left the court last December, days after the
eavesdropping program was disclosed.

The intelligence court, created by Congress in 1978, meets in a tightly guarded,
windowless office at the Justice Department. The court produces no public
findings except for a single tally to Congress each year on the number of
warrants it has issued --- more than 1,600 in 2004. Even its roster of judges
serving seven-year terms was, for a time, considered secret.

But Mr. Bush's decision effectively to bypass the court in permitting
eavesdropping without warrants has raised the court's profile. That was
underscored by the appearance on Tuesday of the four former FISA judges: Judge
Baker; Judge Stanley S. Brotman, who left the panel in 2004; Judge John
F. Keenan, who left in 2001; and Judge William H. Stafford Jr., who left in
2003. All four sit on the federal judiciary.

At a hearing lasting more than three hours, the former FISA judges discussed in
detail their views on the standards of proof required by the court, its
relations with the Justice Department, and the constitutional, balance-of-power
issues at the heart of the debate over the N.S.A. program. The agency monitored
the international communications of people inside the United States believed to
be linked to Al Qaeda.

The public broadcasting of the court's business struck some court watchers as
extraordinary. "This is unprecedented," said Magistrate Judge Allan Kornblum,
who supervised Justice Department wiretap applications to the court for many
years and testified alongside the four former judges.

But the most pointed testimony may have come from a man who was not at the
hearing: Judge Robertson.

A sitting federal judge in Washington, Judge Robertson resigned from the
intelligence court just days after the N.S.A. program was disclosed.

Colleagues say he resigned in frustration over the fact that none of the court's
11 judges, except for the presiding judge, were briefed on the program or knew
of its existence. But Judge Robertson has remained silent, declining all
requests for interviews, and his comments entered into The Congressional Record
on Tuesday represented his first public remarks on the controversy.

In a March 23 letter in response to a query from Mr. Specter, the judge said he
supported Mr. Specter's proposal "to give approval authority over the
administration's electronic surveillance program" to the court.

The Bush administration, in its continued defense of the program, maintains that
no change in the law is needed because the president has the inherent
constitutional authority to order wiretaps without warrants in defense of the
country.

Mr. Specter's proposal seeks to give the intelligence court a role in ruling on
the legitimacy of the program. A competing proposal by Senator Mike DeWine,
Republican of Ohio, would allow the president to authorize wiretaps for 45 days
without Congressional oversight or judicial approval.

Judge Robertson made clear that he believed the FISA court should review the
surveillance program. "Seeking judicial approval for government activities that
implicate constitutional protections is, of course, the American way," he wrote.

But Judge Robertson argued that the court should not conduct a "general review"
of the surveillance operation, as Mr. Specter proposed. Instead, he said the
court should rule on individual warrant applications for eavesdropping under the
program lasting 45 or 90 days.

Acknowledging the need for secrecy surrounding such a program, he said the FISA
court was "best situated" for the task. "Its judges are independent,
appropriately cleared, experienced in intelligence matters, and have a perfect
security record," Judge Robertson said.

He did not weigh in on the ultimate question of whether he considered the
N.S.A. program illegal. The judges at the committee hearing avoided that
politically charged issue despite persistent questioning from Democrats, even as
the judges raised concerns about how the program was put into effect.

Judge Baker said he felt most comfortable talking about possible changes to
strengthen the foreign intelligence law. "Whether something's legal or illegal
goes beyond that," he said, "and that's why I'm shying away from answering
that."

------------------------------------------

NSA has massive database of Americans' phone calls

By Leslie Cauley, USA TODAY
Updated 5/11/2006 10:38 AM ET

The National Security Agency has been secretly collecting the phone call records
of tens of millions of Americans, using data provided by AT&T, Verizon and
BellSouth, people with direct knowledge of the arrangement told USA TODAY.

The NSA program reaches into homes and businesses across the nation by amassing
information about the calls of ordinary Americans --- most of whom aren't
suspected of any crime. This program does not involve the NSA listening to or
recording conversations. But the spy agency is using the data to analyze calling
patterns in an effort to detect terrorist activity, sources said in separate
interviews.

"It's the largest database ever assembled in the world," said one person, who,
like the others who agreed to talk about the NSA's activities, declined to be
identified by name or affiliation. The agency's goal is "to create a database of
every call ever made" within the nation's borders, this person added.

For the customers of these companies, it means that the government has detailed
records of calls they made --- across town or across the country --- to family
members, co-workers, business contacts and others.

The three telecommunications companies are working under contract with the NSA,
which launched the program in 2001 shortly after the Sept. 11 terrorist attacks,
the sources said. The program is aimed at identifying and tracking suspected
terrorists, they said.

The sources would talk only under a guarantee of anonymity because the NSA
program is secret.

Air Force Gen. Michael Hayden, nominated Monday by President Bush to become the
director of the CIA, headed the NSA from March 1999 to April 2005. In that post,
Hayden would have overseen the agency's domestic call-tracking program. Hayden
declined to comment about the program.

The NSA's domestic program, as described by sources, is far more expansive than
what the White House has acknowledged. Last year, Bush said he had authorized
the NSA to eavesdrop --- without warrants --- on international calls and
international e-mails of people suspected of having links to terrorists when one
party to the communication is in the USA. Warrants have also not been used in
the NSA's efforts to create a national call database.

In defending the previously disclosed program, Bush insisted that the NSA was
focused exclusively on international calls. "In other words," Bush explained,
"one end of the communication must be outside the United States."

As a result, domestic call records --- those of calls that originate and
terminate within U.S. borders --- were believed to be private.

Sources, however, say that is not the case. With access to records of billions
of domestic calls, the NSA has gained a secret window into the communications
habits of millions of Americans. Customers' names, street addresses and other
personal information are not being handed over as part of NSA's domestic
program, the sources said. But the phone numbers the NSA collects can easily be
cross-checked with other databases to obtain that information.

Don Weber, a senior spokesman for the NSA, declined to discuss the agency's
operations. "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," he said. "However, it is important to note that NSA
takes its legal responsibilities seriously and operates within the law."

The White House would not discuss the domestic call-tracking program. "There is
no domestic surveillance without court approval," said Dana Perino, deputy press
secretary, referring to actual eavesdropping.

She added that all national intelligence activities undertaken by the federal
government "are lawful, necessary and required for the pursuit of al-Qaeda and
affiliated terrorists." All government-sponsored intelligence activities "are
carefully reviewed and monitored," Perino said. She also noted that "all
appropriate members of Congress have been briefed on the intelligence efforts of
the United States."

The government is collecting "external" data on domestic phone calls but is not
intercepting "internals," a term for the actual content of the communication,
according to a U.S. intelligence official familiar with the program. This kind
of data collection from phone companies is not uncommon; it's been done before,
though never on this large a scale, the official said. The data are used for
"social network analysis," the official said, meaning to study how terrorist
networks contact each other and how they are tied together.

Carriers uniquely positioned

AT&T recently merged with SBC and kept the AT&T name. Verizon, BellSouth and
AT&T are the nation's three biggest telecommunications companies; they provide
local and wireless phone service to more than 200 million customers.

The three carriers control vast networks with the latest communications
technologies. They provide an array of services: local and long-distance
calling, wireless and high-speed broadband, including video. Their direct access
to millions of homes and businesses has them uniquely positioned to help the
government keep tabs on the calling habits of Americans.

Among the big telecommunications companies, only Qwest has refused to help the
NSA, the sources said. According to multiple sources, Qwest declined to
participate because it was uneasy about the legal implications of handing over
customer information to the government without warrants.

Qwest's refusal to participate has left the NSA with a hole in its database.
Based in Denver, Qwest provides local phone service to 14 million customers in
14 states in the West and Northwest. But AT&T and Verizon also provide some
services --- primarily long-distance and wireless --- to people who live in
Qwest's region. Therefore, they can provide the NSA with at least some access in
that area.

Created by President Truman in 1952, during the Korean War, the NSA is charged
with protecting the United States from foreign security threats. The agency was
considered so secret that for years the government refused to even confirm its
existence. Government insiders used to joke that NSA stood for "No Such Agency."

In 1975, a congressional investigation revealed that the NSA had been
intercepting, without warrants, international communications for more than 20
years at the behest of the CIA and other agencies. The spy campaign, code-named
"Shamrock," led to the Foreign Intelligence Surveillance Act (FISA), which was
designed to protect Americans from illegal eavesdropping.

Enacted in 1978, FISA lays out procedures that the U.S. government must follow
to conduct electronic surveillance and physical searches of people believed to
be engaged in espionage or international terrorism against the United States. A
special court, which has 11 members, is responsible for adjudicating requests
under FISA.

Over the years, NSA code-cracking techniques have continued to improve along
with technology. The agency today is considered expert in the practice of "data
mining" --- sifting through reams of information in search of patterns. Data
mining is just one of many tools NSA analysts and mathematicians use to crack
codes and track international communications.

Paul Butler, a former U.S. prosecutor who specialized in terrorism crimes, said
FISA approval generally isn't necessary for government data-mining
operations. "FISA does not prohibit the government from doing data mining," said
Butler, now a partner with the law firm Akin Gump Strauss Hauer & Feld in
Washington, D.C.

The caveat, he said, is that "personal identifiers" --- such as names, Social
Security numbers and street addresses --- can't be included as part of the
search. "That requires an additional level of probable cause," he said.

The usefulness of the NSA's domestic phone-call database as a counterterrorism
tool is unclear. Also unclear is whether the database has been used for other
purposes.

The NSA's domestic program raises legal questions. Historically, AT&T and the
regional phone companies have required law enforcement agencies to present a
court order before they would even consider turning over a customer's calling
data. Part of that owed to the personality of the old Bell Telephone System, out
of which those companies grew.

Ma Bell's bedrock principle --- protection of the customer --- guided the
company for decades, said Gene Kimmelman, senior public policy director of
Consumers Union. "No court order, no customer information --- period. That's how
it was for decades," he said.

The concern for the customer was also based on law: Under Section 222 of the
Communications Act, first passed in 1934, telephone companies are prohibited
from giving out information regarding their customers' calling habits: whom a
person calls, how often and what routes those calls take to reach their final
destination. Inbound calls, as well as wireless calls, also are covered.

The financial penalties for violating Section 222, one of many privacy
reinforcements that have been added to the law over the years, can be stiff. The
Federal Communications Commission, the nation's top telecommunications
regulatory agency, can levy fines of up to $130,000 per day per violation, with
a cap of $1.325 million per violation. The FCC has no hard definition of
"violation." In practice, that means a single "violation" could cover one
customer or 1 million.

In the case of the NSA's international call-tracking program, Bush signed an
executive order allowing the NSA to engage in eavesdropping without a
warrant. The president and his representatives have since argued that an
executive order was sufficient for the agency to proceed. Some civil liberties
groups, including the American Civil Liberties Union, disagree.

Companies approached

The NSA's domestic program began soon after the Sept. 11 attacks, according to
the sources. Right around that time, they said, NSA representatives approached
the nation's biggest telecommunications companies. The agency made an urgent
pitch: National security is at risk, and we need your help to protect the
country from attacks.

The agency told the companies that it wanted them to turn over their
"call-detail records," a complete listing of the calling histories of their
millions of customers. In addition, the NSA wanted the carriers to provide
updates, which would enable the agency to keep tabs on the nation's calling
habits.

The sources said the NSA made clear that it was willing to pay for the
cooperation. AT&T, which at the time was headed by C. Michael Armstrong, agreed
to help the NSA. So did BellSouth, headed by F. Duane Ackerman; SBC, headed by
Ed Whitacre; and Verizon, headed by Ivan Seidenberg.

With that, the NSA's domestic program began in earnest.

AT&T, when asked about the program, replied with a comment prepared for USA
TODAY: "We do not comment on matters of national security, except to say that we
only assist law enforcement and government agencies charged with protecting
national security in strict accordance with the law."

In another prepared comment, BellSouth said: "BellSouth does not provide any
confidential customer information to the NSA or any governmental agency without
proper legal authority."

Verizon, the USA's No. 2 telecommunications company behind AT&T, gave this
statement: "We do not comment on national security matters, we act in full
compliance with the law and we are committed to safeguarding our customers'
privacy."

Qwest spokesman Robert Charlton said: "We can't talk about this. It's a
classified situation."

In December, The New York Times revealed that Bush had authorized the NSA to
wiretap, without warrants, international phone calls and e-mails that travel to
or from the USA. The following month, the Electronic Frontier Foundation, a
civil liberties group, filed a class-action lawsuit against AT&T. The lawsuit
accuses the company of helping the NSA spy on U.S. phone customers.

Last month, U.S. Attorney General Alberto Gonzales alluded to that
possibility. Appearing at a House Judiciary Committee hearing, Gonzales was
asked whether he thought the White House has the legal authority to monitor
domestic traffic without a warrant. Gonzales' reply: "I wouldn't rule it out."
His comment marked the first time a Bush appointee publicly asserted that the
White House might have that authority.

Similarities in programs

The domestic and international call-tracking programs have things in common,
according to the sources. Both are being conducted without warrants and without
the approval of the FISA court. The Bush administration has argued that FISA's
procedures are too slow in some cases. Officials, including Gonzales, also make
the case that the USA Patriot Act gives them broad authority to protect the
safety of the nation's citizens.

The chairman of the Senate Intelligence Committee, Sen. Pat Roberts, R-Kan.,
would not confirm the existence of the program. In a statement, he said, "I can
say generally, however, that our subcommittee has been fully briefed on all
aspects of the Terrorist Surveillance Program. ... I remain convinced that the
program authorized by the president is lawful and absolutely necessary to
protect this nation from future attacks."

The chairman of the House Intelligence Committee, Rep. Pete Hoekstra, R-Mich.,
declined to comment.

One company differs

One major telecommunications company declined to participate in the program:
Qwest.

According to sources familiar with the events, Qwest's CEO at the time, Joe
Nacchio, was deeply troubled by the NSA's assertion that Qwest didn't need a
court order --- or approval under FISA --- to proceed. Adding to the tension,
Qwest was unclear about who, exactly, would have access to its customers'
information and how that information might be used.

Financial implications were also a concern, the sources said. Carriers that
illegally divulge calling information can be subjected to heavy fines. The NSA
was asking Qwest to turn over millions of records. The fines, in the aggregate,
could have been substantial.

The NSA told Qwest that other government agencies, including the FBI, CIA and
DEA, also might have access to the database, the sources said. As a matter of
practice, the NSA regularly shares its information --- known as "product" in
intelligence circles --- with other intelligence groups. Even so, Qwest's
lawyers were troubled by the expansiveness of the NSA request, the sources said.

The NSA, which needed Qwest's participation to completely cover the country,
pushed back hard.

Trying to put pressure on Qwest, NSA representatives pointedly told Qwest that
it was the lone holdout among the big telecommunications companies. It also
tried appealing to Qwest's patriotic side: In one meeting, an NSA representative
suggested that Qwest's refusal to contribute to the database could compromise
national security, one person recalled.

In addition, the agency suggested that Qwest's foot-dragging might affect its
ability to get future classified work with the government. Like other big
telecommunications companies, Qwest already had classified contracts and hoped
to get more.

Unable to get comfortable with what NSA was proposing, Qwest's lawyers asked NSA
to take its proposal to the FISA court. According to the sources, the agency
refused.

The NSA's explanation did little to satisfy Qwest's lawyers. "They told (Qwest)
they didn't want to do that because FISA might not agree with them," one person
recalled. For similar reasons, this person said, NSA rejected Qwest's suggestion
of getting a letter of authorization from the U.S. attorney general's office. A
second person confirmed this version of events.

In June 2002, Nacchio resigned amid allegations that he had misled investors
about Qwest's financial health. But Qwest's legal questions about the NSA
request remained.

Unable to reach agreement, Nacchio's successor, Richard Notebaert, finally
pulled the plug on the NSA talks in late 2004, the sources said.

Contributing: John Diamond

----------------------------------------

Questions and answers about the NSA phone record collection program

Thu May 11, 7:28 AM ET

The National Security Agency has been collecting domestic calling records from
major telecommunications companies, sources told USA TODAY. Answers to some
questions about the program, as described by those sources:

Q: Does the NSA's domestic program mean that my calling records have been
secretly collected?

A: In all likelihood, yes. The NSA collected the records of billions of domestic
calls. Those include calls from home phones and wireless phones.

Q: Does that mean people listened to my conversations?

A: Eavesdropping is not part of this program.

Q: What was the NSA doing?

A: The NSA collected "call-detail" records. That's telephone industry lingo for
the numbers being dialed. Phone customers' names, addresses and other personal
information are not being collected as part of this program. The agency,
however, has the means to assemble that sort of information, if it so chooses.

Q: When did this start?

A: After the Sept. 11 attacks.

Q: Can I find out if my call records were collected?

A: No. The NSA's work is secret, and the agency won't publicly discuss its
operations.

Q: Why did they do this?

A: The agency won't say officially. But sources say it was a way to identify,
and monitor, people suspected of terrorist activities.

Q: But I'm not calling terrorists. Why do they need my calls?

A: By cross-checking a vast database of phone calling records, NSA experts can
try to pick out patterns that help identify people involved in terrorism.

Q: How is this different from the other NSA programs?

A: NSA programs have historically focused on international communications. In
December, The New York Times disclosed that President Bush had authorized the
NSA to eavesdrop - without warrants - on international phone calls to and from
the USA. The call-collecting program is focused on domestic calls, those that
originate and terminate within U.S. borders.

Q: Is this legal?

A: That will be a matter of debate. In the past, law enforcement officials had
to obtain a court warrant before getting calling records. Telecommunications law
assesses hefty fines on phone companies that violate customer privacy by
divulging such records without warrants. But in discussing the eavesdropping
program last December, Bush said he has the authority to order the NSA to get
information without court warrants.

Q: Who has access to my records?

A: Unclear. The NSA routinely provides its analysis and other cryptological work
to the Pentagon and other government agencies.

Contributing: Leslie Cauley

----------------------------------

Specter wants to know about NSA phone database

53 minutes ago

The chairman of the Senate Judiciary Committee said on Thursday he would ask
U.S. phone companies whether they are providing phone records of tens of
millions of Americans to the National Security Agency.

Sen. Arlen Specter (news, bio, voting record), a Pennsylvania Republican, was
reacting to a report in USA Today saying the NSA was secretly collecting the
records and using the data to analyze calling patterns in an effort to detect
terrorist activity.

The disclosure, if confirmed, means the agency's domestic program would be far
larger than previously suspected. Last December following a New York Times
report, President George W. Bush said he had authorized the NSA to listen to
international calls of people suspected of having links to terrorists without
court approval.

Specter said U.S. lawmakers have been unable to determine if that domestic spy
program was legal.

"We've got to call on those telephone companies to provide some information to
figure out what is going on," he said.

USA Today reported the NSA database used records provided by three major phone
companies -- AT&T Inc, Verizon Communications Inc. and BellSouth Corp. -- but
that the program "does not involve the NSA listening to or recording
conversations."

Two of the companies said they would not discuss national security matters but
had acted lawfully. A White House spokeswoman declined to confirm or deny the
newspaper story.

NSA spokesman Don Weber said it would be "irresponsible to comment on actual or
alleged operational issues," but added: "It is important to note that NSA takes
it legal responsibilities seriously and operates within the law."

USA Today said its sources were "people with direct knowledge of the
arrangement," but it did not give their names or describe their affiliation.

White House spokeswoman Dana Perino said, "The intelligence activities of the
United States are lawful, necessary and required to protect Americans from
terrorist attack."

"All appropriate members of Congress are briefed on the intelligence activities
of the United States," Perino added.

Bush said last year the eavesdropping only targeted communications between a
person inside the United States and a person overseas. But USA Today said calls
originating and terminating within the United States have also been included in
the database.

LARGEST DATABASE EVER

"It's the largest database ever assembled in the world," the paper quoted one
source as saying. The agency's goal is "to create a database of every call ever
made" within U.S. borders, it added.

Specter, who will hold a fifth hearing on the spy program, said he had enough
Republican committee votes to pass a bill that would direct review of the
program by a special court.

"The Judiciary Committee has been unable to perform our constitutional oversight
authority to determine" if the program is legal, he added.

USA Today said the NSA has access to records of billions of domestic calls and
though customers' names and addresses were not handed over, the phone numbers
can easily be cross-checked with other databases.

Some Democratic senators said the revelation could complicate the confirmation
of Air Force Gen. Michael Hayden, who headed the NSA from 1999 to 2005 and was
nominated by Bush on Monday as director of the CIA. USA Today said Hayden would
have overseen the call-tracking program.

Congress should "reexamine the nomination of General Hayden who knew about these
things," said New York Democrat Charles Schumer.

Sen. Dianne Feinstein (news, bio, voting record) of California added: "I think
this is going to present a growing impediment to the confirmation."

USA Today said that among major U.S. telecommunications companies, only Qwest
Communications International Inc. has refused to help the NSA program.

Verizon Communications spokesman Bob Varettoni said, "We don't comment on
national security matters. We do act in full compliance with the law and we are
committed to safeguarding our customers privacy."

An AT&T Inc. statement said, "We do not comment on matters of national security,
except to say that we only assist law enforcement and government agencies
charged with protecting national security in strict accordance with the law."

BellSouth and Qwest were not immediately available for comment.

(Additional reporting by Vicki Allen and Matt Spetalnick)

-------------------------------------------

Bush blocked probe, AG testifies
Senate examines wiretap program

By Charlie Savage, Globe Staff  |  July 19, 2006

WASHINGTON -- President Bush personally blocked an ethics investigation by
Justice Department officials into his administration's warrantless wiretapping
program, Attorney General Alberto R. Gonzales testified yesterday.

The disclosure was made after the Senate Judiciary Committee chairman, Arlen
Specter , Republican of Pennsylvania, pressed Gonzales to explain why the
department's investigators were denied security clearance to look into the
program.

The department's Office of Professional Responsibility wanted to investigate
whether administration attorneys had provided bad legal advice when they said
Bush had the wartime authority to wiretap Americans' international phone calls
without a warrant, defying a 1978 law requiring warrants.

``It is very difficult to understand why OPR was not given clearance so they
could conduct their investigation . . . Many other lawyers in the Department of
Justice had clearance. " Specter said.

Gonzales said Bush decided not to grant the security clearances because the
program was ``highly classified" and there was a need to limit the number of
people who knew its details.

``In terms of who has access to the program, the president of the United States
makes the decision," Gonzales said.

The Justice Department also released a series of internal memos about the OPR
clearance dispute yesterday in connection to the hearing. In several, the head
of the ethics watchdog office, H. Marshall Jarrett, contended that his
investigators were being prevented from doing their job.

``Since its creation some 31 years ago, OPR has conducted many highly sensitive
investigations involving executive branch programs and has obtained access to
information classified at the highest levels," Jarrett wrote in an April 21,
2006, memo. ``In all those years, OPR has never been prevented from initiating
or pursuing an investigation."

The attorney general faced heated questioning from senators on issues beyond the
president's spying program, including the administration's efforts to try
detainees in the war on terrorism before military tribunals, which the Supreme
Court struck down last month.

Gonzales reiterated that the administration wants to work with Congress to pass
a law authorizing a new version of such tribunals.  [NB: Gonzales suggested that
Congress simply approve the tribunals already set up by Bush (and rejected by
the Court).]

In addition, Gonzales defended the president's practice of issuing ``signing
statements" to reserve the right to bypass laws he considers
unconstitutional. Bush has issued signing statements to challenge more than 750
laws, a figure cited in a series of Globe stories.

Gonzales testified that the Globe had retracted the figure. The news paper has
not retracted any stories or figures on Bush's signing statements. The paper
corrected an editing error in one follow-up story that referred to Bush
challenging 750 ``bills" instead of laws; a single bill often includes many
separate laws.

As of last week, Bush's signing statements covered 807 laws, according to
Christopher Kelley , a government professor at Miami University of Ohio who has
studied presidents' use of signing statements through history.

Gonzales made his comments about signing statements during an exchange with
Senator Patrick J. Leahy of Vermont, the ranking Democrat on the
committee. Leahy noted that Bush's numbers amounted to ``more than all other
presidents put together."

Gonzales responded that he believed Bush's numbers were ``closer to 125 to 110,"
and he asserted that Bill Clinton ``signed 382 signing statements in his eight
years in office."

Kelley questioned Gonzales' s figure for Clinton, saying the former president
had challenged 140 laws over eight years.

The number of challenges Gonzales said Bush had issued, 110 to 125, is close to
the number of bills to which Bush has attached signing statements, Kelley
added. However, focusing on the number of bills is misleading, he said, because
Congress often lumps many statutes together and passes them as a single bill.

Earlier in yesterday's hearing, Specter pressed Gonzales to justify Bush's
practice of declaring sections of bills unconstitutional in signing statements,
rather than vetoing them.

Gonzales told Specter that Bush was being respectful of Congress by preserving
the rest of the bill. But Specter accused Bush of cherry-picking which parts of
bills he wanted to obey.

``I think you're wrong on your evaluation of what the Congress would conclude
was respect for the Congress," Specter said. ``I think the Congress would prefer
a veto and battling it out within the constitutional confines of a veto as
opposed to the cherry-pick."