News of Surveillance Is Awkward for Agency
NY Times
By Scott Shane
Testifying before a Senate committee last April, Gen. Michael V. Hayden, then head of the National Security Agency, emphasized how scrupulously the agency was protecting Americans from its electronic snooping.
"We are, I would offer, the most aggressive agency in the intelligence community when it comes to protecting U.S. privacy," General Hayden said. "We just have to be that way."
It was one of General Hayden's favorite themes in public speeches and interviews: the agency's mammoth eavesdropping network was directed at foreigners, not Americans. As a PowerPoint presentation posted on the agency's Web site puts it, for an American to be a target, "Court Order Required in the United States."
In fact, since 2002, authorized by a secret order from President Bush, the agency has intercepted the international phone calls and e-mail messages of hundreds, possibly thousands, of American citizens and others in the United States without obtaining court orders. The discrepancy between the public claims and the secret domestic eavesdropping disclosed last week have put the N.S.A., the nation's largest intelligence agency, and General Hayden, now principal deputy director of national intelligence, in an awkward position.
While a few important members of Congress were informed of the special eavesdropping program, several lawmakers have said they and the public were misled.
The episode could revive old fears that the secret agency is a sort of high-tech Big Brother. It was such fears - based on genuine abuses before the mid-1970's, hyperbolic press reports and movie myths - that General Hayden worked to counter as the agency's director from 1999 until last April.
"The image of N.S.A. has been muddied considerably by this revelation," said Matthew M. Aid, an intelligence historian who is writing a multiple-volume history of the agency. Mr. Aid said several agency employees he spoke with on Friday were disturbed to learn of the special program, which was known to only a small number of officials.
"All the N.S.A. people I've talked to think domestic surveillance is anathema," Mr. Aid said.
An agency spokesman, Don Weber, declined to comment, saying, "We don't discuss actual or alleged operational issues."
At a news conference at the White House on Monday, General Hayden also emphasized that the program's operations had "intense oversight" by the agency's general counsel and inspector general as well as the Justice Department. He said decisions on targets were made by agency employees and required two people, including a shift supervisor, to sign off on them, recording "what created the operational imperative."
An intelligence official who was authorized to speak only on the condition of anonymity said, "It's probably the most scrutinized program at the agency." The official emphasized that people whose communications were intercepted under the special program had to have a link to Al Qaeda or a related group, even if indirectly. The official also said that only their international communications could be intercepted. Other officials have said, however, that some purely domestic communications have been captured because of the technical difficulties of determining where a phone call or e-mail message originated.
But many questions remain about the secret program, including some Mr. Aid said were raised pointedly by his contacts at the agency:
Did agency officials volunteer to perform the eavesdropping without warrants, or did the White House order it over agency objections?
Why was it not possible to use warrants, as the law appears to require, from the Foreign Intelligence Surveillance Court, which granted 1,754 such warrants last year and did not deny a single application?
Or, if the court was considered too slow or cumbersome, why did the agency not ask Congress to adjust the law and legalize what it wanted to do?
After all, officials who have been granted anonymity in describing the program because it is classified say the agency's recent domestic eavesdropping is focused on a limited group of people. Americans come to the program's attention only if they have received a call or e-mail message from a person overseas who is already suspected to be a member of certain terrorist groups or linked somehow to a member of such groups. And the agency still gets a warrant to intercept their calls or e-mail messages to other people in the United States.
Had the agency openly sought the increased power in the immediate aftermath of the Sept. 11, 2001, terrorist attacks, "I'm sure Congress would have approved," said Elizabeth Rindskopf Parker, a former general counsel of both the N.S.A. and the Central Intelligence Agency.
By concealing the new program, she said, the N.S.A. breathed new life into the worst imaginings about itself. "This makes it seem like the movies are right about N.S.A., and they're wrong," Ms. Parker said.
For anyone familiar with the agency's history, the revelations recalled the mid-1970's, when the Senate's Church Committee and the Rockefeller Commission exposed the agency's abuse of Americans' privacy.
Under one program, called Shamrock, the agency and its predecessors for decades collected copies of all international telegrams leaving or entering the United States from the major telegraph companies. Another, code-named Minaret, kept watch lists of Americans who caught the government's interest because of activism against the Vietnam War or other political stances. Information was kept on about 75,000 Americans from 1952, when agency was created, to 1974, according to testimony.
In reaction to the abuses, Congress in 1978 passed the Foreign Intelligence Surveillance Act, which banned eavesdropping on Americans unless there was reason to believe they were agents of a foreign country or an international terrorist group. In such cases, N.S.A. - or the Federal Bureau of Investigation, which usually takes the lead in domestic wiretaps - had to present its evidence to a judge from the Foreign Intelligence Surveillance Court, which then issued a warrant.
Loch K. Johnson, an intelligence historian now teaching at Yale who served on the Church Committee staff, said the 1978 reforms were the result of lengthy bipartisan negotiations. "To pick up the paper and see that all of the carefully crafted language, across party lines, to put together FISA, has been dismissed by secret executive order is very disheartening," Mr. Johnson said.
Mr. Johnson said he saw a link between the intelligence excesses of the 1970's and the N.S.A. program: fear. "Then the fear was of communism," he said. "Now it's terrorism."
Even after the overhaul of the surveillance act, the N.S.A.'s combination of secrecy, power and size continued to produce intrigue. Movies like "Enemy of the State" (1998), in which the agency is portrayed as an out-of-control surveillance operation that carries out political assassinations and destroys the life of a lawyer played by Will Smith, distorted the agency's purpose and capabilities. Exaggerated reports on an agency program called Echelon asserted that the agency and its counterparts in the United Kingdom, Canada, New Zealand and Australia somehow intercepted all world communications.
But in real life, before the Sept. 11 attacks, N.S.A. officials, still stung by the Church Committee's findings, hewed closely to the law, according to many who worked there. "We used to say, 'Keep it simple: We don't collect against U.S. persons, and we don't do law enforcement,' " said Ms. Parker, the agency's top lawyer from 1984 to 1989.
In fact, the national commission on the 9/11 attacks criticized the agency for being too cautious about pursuing terrorists on United States soil. But by the time of the commission's report in July 2004, the eavesdropping program had been operating for roughly two years.
By Scott Shane
Testifying before a Senate committee last April, Gen. Michael V. Hayden, then head of the National Security Agency, emphasized how scrupulously the agency was protecting Americans from its electronic snooping.
"We are, I would offer, the most aggressive agency in the intelligence community when it comes to protecting U.S. privacy," General Hayden said. "We just have to be that way."
It was one of General Hayden's favorite themes in public speeches and interviews: the agency's mammoth eavesdropping network was directed at foreigners, not Americans. As a PowerPoint presentation posted on the agency's Web site puts it, for an American to be a target, "Court Order Required in the United States."
In fact, since 2002, authorized by a secret order from President Bush, the agency has intercepted the international phone calls and e-mail messages of hundreds, possibly thousands, of American citizens and others in the United States without obtaining court orders. The discrepancy between the public claims and the secret domestic eavesdropping disclosed last week have put the N.S.A., the nation's largest intelligence agency, and General Hayden, now principal deputy director of national intelligence, in an awkward position.
While a few important members of Congress were informed of the special eavesdropping program, several lawmakers have said they and the public were misled.
The episode could revive old fears that the secret agency is a sort of high-tech Big Brother. It was such fears - based on genuine abuses before the mid-1970's, hyperbolic press reports and movie myths - that General Hayden worked to counter as the agency's director from 1999 until last April.
"The image of N.S.A. has been muddied considerably by this revelation," said Matthew M. Aid, an intelligence historian who is writing a multiple-volume history of the agency. Mr. Aid said several agency employees he spoke with on Friday were disturbed to learn of the special program, which was known to only a small number of officials.
"All the N.S.A. people I've talked to think domestic surveillance is anathema," Mr. Aid said.
An agency spokesman, Don Weber, declined to comment, saying, "We don't discuss actual or alleged operational issues."
At a news conference at the White House on Monday, General Hayden also emphasized that the program's operations had "intense oversight" by the agency's general counsel and inspector general as well as the Justice Department. He said decisions on targets were made by agency employees and required two people, including a shift supervisor, to sign off on them, recording "what created the operational imperative."
An intelligence official who was authorized to speak only on the condition of anonymity said, "It's probably the most scrutinized program at the agency." The official emphasized that people whose communications were intercepted under the special program had to have a link to Al Qaeda or a related group, even if indirectly. The official also said that only their international communications could be intercepted. Other officials have said, however, that some purely domestic communications have been captured because of the technical difficulties of determining where a phone call or e-mail message originated.
But many questions remain about the secret program, including some Mr. Aid said were raised pointedly by his contacts at the agency:
Did agency officials volunteer to perform the eavesdropping without warrants, or did the White House order it over agency objections?
Why was it not possible to use warrants, as the law appears to require, from the Foreign Intelligence Surveillance Court, which granted 1,754 such warrants last year and did not deny a single application?
Or, if the court was considered too slow or cumbersome, why did the agency not ask Congress to adjust the law and legalize what it wanted to do?
After all, officials who have been granted anonymity in describing the program because it is classified say the agency's recent domestic eavesdropping is focused on a limited group of people. Americans come to the program's attention only if they have received a call or e-mail message from a person overseas who is already suspected to be a member of certain terrorist groups or linked somehow to a member of such groups. And the agency still gets a warrant to intercept their calls or e-mail messages to other people in the United States.
Had the agency openly sought the increased power in the immediate aftermath of the Sept. 11, 2001, terrorist attacks, "I'm sure Congress would have approved," said Elizabeth Rindskopf Parker, a former general counsel of both the N.S.A. and the Central Intelligence Agency.
By concealing the new program, she said, the N.S.A. breathed new life into the worst imaginings about itself. "This makes it seem like the movies are right about N.S.A., and they're wrong," Ms. Parker said.
For anyone familiar with the agency's history, the revelations recalled the mid-1970's, when the Senate's Church Committee and the Rockefeller Commission exposed the agency's abuse of Americans' privacy.
Under one program, called Shamrock, the agency and its predecessors for decades collected copies of all international telegrams leaving or entering the United States from the major telegraph companies. Another, code-named Minaret, kept watch lists of Americans who caught the government's interest because of activism against the Vietnam War or other political stances. Information was kept on about 75,000 Americans from 1952, when agency was created, to 1974, according to testimony.
In reaction to the abuses, Congress in 1978 passed the Foreign Intelligence Surveillance Act, which banned eavesdropping on Americans unless there was reason to believe they were agents of a foreign country or an international terrorist group. In such cases, N.S.A. - or the Federal Bureau of Investigation, which usually takes the lead in domestic wiretaps - had to present its evidence to a judge from the Foreign Intelligence Surveillance Court, which then issued a warrant.
Loch K. Johnson, an intelligence historian now teaching at Yale who served on the Church Committee staff, said the 1978 reforms were the result of lengthy bipartisan negotiations. "To pick up the paper and see that all of the carefully crafted language, across party lines, to put together FISA, has been dismissed by secret executive order is very disheartening," Mr. Johnson said.
Mr. Johnson said he saw a link between the intelligence excesses of the 1970's and the N.S.A. program: fear. "Then the fear was of communism," he said. "Now it's terrorism."
Even after the overhaul of the surveillance act, the N.S.A.'s combination of secrecy, power and size continued to produce intrigue. Movies like "Enemy of the State" (1998), in which the agency is portrayed as an out-of-control surveillance operation that carries out political assassinations and destroys the life of a lawyer played by Will Smith, distorted the agency's purpose and capabilities. Exaggerated reports on an agency program called Echelon asserted that the agency and its counterparts in the United Kingdom, Canada, New Zealand and Australia somehow intercepted all world communications.
But in real life, before the Sept. 11 attacks, N.S.A. officials, still stung by the Church Committee's findings, hewed closely to the law, according to many who worked there. "We used to say, 'Keep it simple: We don't collect against U.S. persons, and we don't do law enforcement,' " said Ms. Parker, the agency's top lawyer from 1984 to 1989.
In fact, the national commission on the 9/11 attacks criticized the agency for being too cautious about pursuing terrorists on United States soil. But by the time of the commission's report in July 2004, the eavesdropping program had been operating for roughly two years.
posted by Marko at 12/22/2005 07:13:00 PM
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