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Context of 'Spring-Summer 2008: New Church Committee Suggested to Investigate Possible Abuses of Power during Bush Administration and Before'

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The NSA, working with British intelligence, begins secretly intercepting and reading millions of telegraph messages between US citizens and international senders and recipients. The clandestine program, called Operation Shamrock and part of a larger global surveillance network collectively known as Echelon (see April 4, 2001 and Before September 11, 2001), begins shortly after the end of World War II, and continues through 1975, when it is exposed by the “Church Committee,” the Senate investigation of illegal activities by US intelligence organizations (see April, 1976). [Telepolis, 7/25/2000] The program actually predates the NSA, originating with the Armed Forces Security Agency (AFSA) then continuing when that turned into NSA (see 1952). [Pensito Review, 5/13/2006] The program operates in tandem with Project Minaret (see 1967-1975). Together, the two programs spy on both foreign sources and US citizens, especially those considered “unreliable,” such as civil rights leaders and antiwar protesters, and opposition figures such as politicians, diplomats, businessmen, trades union leaders, non-government organizations like Amnesty International, and senior officials of the Catholic Church. The NSA receives the cooperation of such telecommunications firms as Western Union, RCA, and ITT. [Telepolis, 7/25/2000] (Those companies are never required to reveal the extent of their involvement with Shamrock; on the recommendations of Defense Secretary Donald Rumsfeld and presidential chief of staff Dick Cheney, in 1975 President Ford extends executive privilege to those companies, precluding them from testifying before Congress.) [Pensito Review, 5/13/2006] In the 1960s, technological advances make it possible for computers to search for keywords in monitored messages instead of having human analysts read through all communications. In fact, the first global wide-area network, or WAN, is not the Internet, but the international network connecting signals intelligence stations and processing centers for US and British intelligence organizations, including the NSA, and making use of sophisticated satellite systems such as Milstar and Skynet. (The NSA also builds and maintains one of the world’s first e-mail networks, completely separate from public e-mail networks, and highly secret.) At the program’s height, it operates out of a front company in Lower Manhattan code-named LPMEDLEY, and intercepts 150,000 messages a month. In August 1975, NSA director Lieutenant General Lew Allen testifies to the House of Representatives’ investigation of US intelligence activities, the Pike Committee (see January 29, 1976), that “NSA systematically intercepts international communications, both voice and cable.” He also admits that “messages to and from American citizens have been picked up in the course of gathering foreign intelligence,” and acknowledges that the NSA uses “watch lists” of US citizens “to watch for foreign activity of reportable intelligence interest.” [Telepolis, 7/25/2000] The Church Committee’s final report will will call Shamrock “probably the largest government interception program affecting Americans ever undertaken.” [Church Committee, 4/23/1976] Shortly after the committee issues its report, the NSA terminates the program. Since 1978, the NSA and other US intelligence agencies have been restrained in their wiretapping and surveillance of US citizens by the Foreign Intelligence Surveillance Act (see 1978). Admiral Bobby Ray Inman, who will become the NSA’s director in 1977, and who testifies before the Church Committee as director of Naval Intelligence, will later say that he worked actively to help pass FISA: “I became convinced that for almost anything the country needed to do, you could get legislation to put it on a solid foundation. There was the comfort of going out and saying in speeches, ‘We don’t target US citizens, and what we do is authorized by a court.’” [Pensito Review, 5/13/2006] Shamrock is considered unconstitutional by many US lawmakers, and in 1976 the Justice Department investigates potential criminal offenses by the NSA surrounding Shamrock. Part of the report will be released in 1980; that report will confirm that the Shamrock data was used to further the illegal surveillance activities of US citizens as part of Minaret. [Telepolis, 7/25/2000]
bullet After 9/11, the NSA will once again escalate its warrantless surveillance of US citizens, this time monitoring and tracking citizens’ phone calls and e-mails (see After September 11, 2001). It will also begin compiling an enormous database of citizens’ phone activities, creating a “data mine” of information on US citizens, ostensibly for anti-terrorism purposes (see October 2001).

Entity Tags: Western Union, Pike Committee, National Security Agency, Bobby Ray Inman, Church Committee, International Telephone and Telegraph, Radio Corporation of America

Timeline Tags: Civil Liberties

The CIA’s Technical Services Division (TSD) considers plans to undermine Fidel Castro’s charismatic appeal by sabotaging his speeches. At one point, there is discussion of spraying Castro’s broadcasting studio with a hallucinogenic chemical. The plan is taken of the shelf because the chemical is deemed unreliable. During this period, the TSD laces a box of cigars with a chemical that would produce temporary disorientation, hoping that he will smoke one of the cigars before giving a speech. In another instance, the TSD comes up with a scheme to dust Castro’s shoes with thallium salts during a trip outside of Cuba. The salts would cause his beard to fall out. The plan is abandoned when Castro cancels the trip. [US Congress, 12/18/1975]

Entity Tags: Fidel Castro, Technical Services Division (TSD)

Timeline Tags: US-Cuba (1959-2005)

The CIA works with a high-level Cuban official, codenamed “AM/LASH,” on a plan to assassinate Fidel Castro and overthrow his government. In June 1965, the CIA ends its contact with AM/LASH and his associates, citing security concerns. [US Congress, 12/18/1975; Central Intelligence Agency Inspector General, 1/1996]

Timeline Tags: US-Cuba (1959-2005)

The CIA’s Task Force W devises two plans to assassinate Fidel Castro. The first one, involving an exploding sea shell that would be placed where Castro regularly dives, is dismissed by the CIA’s Technical Services Division (TSD) as impractical. In the second plan, James Donovan (who has been negotiating with Castro for the release of prisoners taken during the Bay of Pigs operation) would present Castro with a contaminated diving suit. TSD decides to give the plan a try. It purchases a diving suit and laces its breathing apparatus with tubercule bacillus. The suit itself is dusted with a fungus that is known to cause a chronic skin disease. But the suit never leaves the laboratory. [US Congress, 12/18/1975; Central Intelligence Agency Inspector General, 1/1996]

Entity Tags: Technical Services Division (TSD), James Donovan, Fidel Castro

Timeline Tags: US-Cuba (1959-2005)

US intelligence agencies, including the NSA, the CIA, and the FBI, run a clandestine and highly illegal surveillance operation called Project MINARET that uses “watch lists” to electronically and physically spy on “subversive” activities by civil rights and antiwar leaders such as Dr. Martin Luther King, Jr, Jane Fonda, Malcolm X, Dr. Benjamin Spock, and Joan Baez—all members of Richard Nixon’s infamous “enemies list.” [Patrick S. Poole, 8/15/2000; Pensito Review, 5/13/2006] MINARET operates in tandem with a much more extensive electronic surveillance operation, SHAMROCK, run by the NSA (see 1945-1975). Almost 6,000 foreigners and nearly 1,700 organizations and US citizens are monitored as part of MINARET. In August 1975, NSA director Lew Allen testifies before the Senate’s investigative commission on US intelligence activities, the Church Committee (see April, 1976), that the NSA has issued over 3,900 reports on the US citizens on MINARET’s watch lists, and the NSA’s Office of Security Services has maintained reports on at least 75,000 citizens between 1952 and 1975, reports that later became part of MINARET’s operations. MINARET, like SHAMROCK, will be terminated shortly after the Church Committee goes public with its information about the illegal surveillance program. [Bamford, 1983; Pensito Review, 5/13/2006]

Entity Tags: Malcolm Little, Central Intelligence Agency, Church Committee, Lew Allen, National Security Agency, Martin Luther King, Jr., Office of Security Services, Joan Baez

Timeline Tags: Civil Liberties

1974 New York Times headline.1974 New York Times headline. [Source: New York Times]The Central Intelligence Agency (CIA) has repeatedly, and illegally, spied on US citizens for years, reveals investigative journalist Seymour Hersh in a landmark report for the New York Times. Such operations are direct violations of the CIA’s charter and the law, both of which prohibit the CIA from operating inside the United States. Apparently operating under orders from Nixon officials, the CIA has conducted electronic and personal surveillance on over 10,000 US citizens, as part of an operation reporting directly to then-CIA Director Richard Helms. In an internal review in 1973, Helms’s successor, James Schlesinger, also found dozens of instances of illegal CIA surveillance operations against US citizens both past and present (see 1973). Many Washington insiders wonder if the revelation of the CIA surveillance operations tie in to the June 17, 1972 break-in of Democratic headquarters at Washington’s Watergate Hotel by five burglars with CIA ties. Those speculations were given credence by Helms’s protests during the Congressional Watergate hearings that the CIA had been “duped” into taking part in the Watergate break-in by White House officials.
Program Beginnings In Dispute - One official believes that the program, a successor to the routine domestic spying operations during the 1950s and 1960s, was sparked by what he calls “Nixon’s antiwar hysteria.” Helms himself indirectly confirmed the involvement of the Nixon White House, during his August 1973 testimony before the Senate Watergate investigative committee (see August 1973).
Special Operations Carried Out Surveillance - The domestic spying was carried out, sources say, by one of the most secretive units in CI, the special operations branch, whose employees carry out wiretaps, break-ins, and burglaries as authorized by their superiors. “That’s really the deep-snow section,” says one high-level intelligence expert. The liaison between the special operations unit and Helms was Richard Ober, a longtime CI official. “Ober had unique and very confidential access to Helms,” says a former CIA official. “I always assumed he was mucking about with Americans who were abroad and then would come back, people like the Black Panthers.” After the program was revealed in 1973 by Schlesinger, Ober was abruptly transferred to the National Security Council. He wasn’t fired because, says one source, he was “too embarrassing, too hot.” Angleton denies any wrongdoing.
Supposition That Civil Rights Movement 'Riddled' With Foreign Spies - Moscow, who relayed information about violent underground protesters during the height of the antiwar movement, says that black militants in the US were trained by North Koreans, and says that both Yasser Arafat, of the Palestinian Liberation Organization, and the KGB were involved to some extent in the antiwar movement, a characterization disputed by former FBI officials as based on worthless intelligence from overseas. For Angleton to make such rash accusations is, according to one member of Congress, “even a better story than the domestic spying.” A former CIA official involved in the 1969-70 studies by the agency on foreign involvement in the antiwar movement says that Angleton believes foreign agents are indeed involved in antiwar and civil rights organizations, “but he doesn’t know what he’s talking about.”
'Cesspool' of Illegality Distressed Schlesinger - According to one of Schlesinger’s former CIA associates, Schlesinger was distressed at the operations. “He found himself in a cesspool,” says the associate. “He was having a grenade blowing up in his face every time he turned around.” Schlesinger, who stayed at the helm of the CIA for only six months before becoming secretary of defense, informed the Department of Justice (DOJ) about the Watergate break-in, as well as another operation by the so-called “plumbers,” their burglary of Daniel Ellsberg’s psychiatrist’s office after Ellsberg released the “Pentagon Papers” to the press. Schlesinger began a round of reforms of the CIA, reforms that have been continued to a lesser degree by Colby. (Some reports suggest that CIA officials shredded potentially incriminating documents after Schlesinger began his reform efforts, but this is not known for sure.) Intelligence officials confirm that the spying did take place, but, as one official says, “Anything that we did was in the context of foreign counterintelligence and it was focused at foreign intelligence and foreign intelligence problems.”
'Huston Plan' - But the official also confirms that part of the illegal surveillance was carried out as part of the so-called “Huston plan,” an operation named for former White House aide Tom Charles Huston (see July 26-27, 1970) that used electronic and physical surveillance, along with break-ins and burglaries, to counter antiwar and civil rights protests, “fomented,” as Nixon believed, by so-called black extremists. Nixon and other White House officials have long denied that the Huston plan was ever implemented. “[O]bviously,” says one government intelligence official, the CIA’s decision to create and maintain dossiers on US citizens “got a push at that time.…The problem was that it was handled in a very spooky way. If you’re an agent in Paris and you’re asked to find out whether Jane Fonda is being manipulated by foreign intelligence services, you’ve got to ask yourself who is the real target. Is it the foreign intelligence services or Jane Fonda?” Huston himself denies that the program was ever intended to operate within the United States, and implies that the CIA was operating independently of the White House. Government officials try to justify the surveillance program by citing the “gray areas” in the law that allows US intelligence agencies to encroach on what, by law, is the FBI’s bailiwick—domestic surveillance of criminal activities—when a US citizen may have been approached by foreign intelligence agents. And at least one senior CIA official says that the CIA has the right to engage in such activities because of the need to protect intelligence sources and keep secrets from being revealed.
Surveillance Program Blatant Violation of Law - But many experts on national security law say the CIA program is a violation of the 1947 law prohibiting domestic surveillance by the CIA and other intelligence agencies. Vanderbilt University professor Henry Howe Ransom, a leading expert on the CIA, says the 1947 statute is a “clear prohibition against any internal security functions under any circumstances.” Ransom says that when Congress enacted the law, it intended to avoid any possibility of police-state tactics by US intelligence agencies; Ransom quotes one Congressman as saying, “We don’t want a Gestapo.” Interestingly, during his 1973 confirmation hearings, CIA Director Colby said he believed the same thing, that the CIA has no business conducting domestic surveillance for any purpose at any time: “I really see less of a gray area [than Helms] in that regard. I believe that there is really no authority under that act that can be used.” Even high-level government officials were not aware of the CIA’s domestic spying program until very recently. “Counterintelligence!” exclaimed one Justice Department official upon learning some details of the program. “They’re not supposed to have any counterintelligence in this country. Oh my God. Oh my God.” A former FBI counterterrorism official says he was angry upon learning of the program. “[The FBI] had an agreement with them that they weren’t to do anything unless they checked with us. They double-crossed me all along.” Many feel that the program stems, in some regards, from the long-standing mistrust between the CIA and the FBI. How many unsolved burglaries and other crimes can be laid at the feet of the CIA and its domestic spying operation is unclear. In 1974, Rolling Stone magazine listed a number of unsolved burglaries that its editors felt might be connected with the CIA. And Senator Howard Baker (R-TN), the vice chairman of the Senate Watergate investigative committee, has alluded to mysterious links between the CIA and the Nixon White House. On June 23, 1972, Nixon told his aide, H.R. Haldeman, “Well, we protected Helms from a hell of a lot of things.” [New York Times, 12/22/1974 pdf file]

Entity Tags: US Department of Justice, William Colby, Seymour Hersh, Rolling Stone, Richard Ober, Tom Charles Huston, Richard M. Nixon, Daniel Ellsberg, Federal Bureau of Investigation, Richard Helms, Central Intelligence Agency, Black Panthers, Howard Baker, James Angleton, New York Times, H.R. Haldeman, KGB, James R. Schlesinger, Jane Fonda, Henry Howe Ransom

Timeline Tags: Civil Liberties, Nixon and Watergate

Vice President Nelson Rockefeller (see December 19, 1974 and After) is instrumental in keeping Senate Democrats from finding out too much about the intelligence community’s excesses. When the New York Times reveals the existence of a decades-old illegal domestic surveillance program run by the CIA (see December 21, 1974), President Ford heads off calls from Democrats to investigate the program by appointing the “Rockefeller Commission” to investigate in the Democrats’ stead. Senate Democrats, unimpressed with the idea, create the Church Committee to investigate the intelligence community (see April, 1976). Rockefeller is adept at keeping critical documents out of the hands of the Church Committee and the press. When Senator Frank Church asks for materials from the White House, he is told that the Rockefeller Commission has them; when he asks Rockefeller for the papers, he is told that he cannot have them because only the president can authorize access. One Church aide later calls Rockefeller “absolutely brilliant” in denying them access in a friendly manner. “He winked and smiled and said, ‘Gee, I want to help you but, of course I can’t—not until we’ve finished our work and the president approves it,’” the aide recalls. Senator John Tower (R-TX), the vice chairman of the committee, will later reflect, “We were very skillfully finessed.” But even Rockefeller, who has his own history of involvement with the CIA, is taken aback at the excesses of the CIA, particularly its history of assassinating foreign leaders. Rockefeller will eventually turn that information over to the Church Committee, giving that body some of the most explosive evidence as yet made public against the agency. [US Senate, 7/7/2007]

Entity Tags: John Tower, Church Committee, Nelson Rockefeller, Central Intelligence Agency, Frank Church, Gerald Rudolph Ford, Jr, ’Rockefeller Commission’

Timeline Tags: Nixon and Watergate

Bella Abzug.Bella Abzug. [Source: Spartacus Educational]Staffers from the Church Committee (see April, 1976), slated with investigating illegal surveillance operations conducted by the US intelligence community, approach the NSA for information about Operation Shamrock (see 1945-1975). The NSA ostensibly closes Shamrock down the very same day the committee staffers ask about the program. Though the Church Committee focuses on a relatively narrow review of international cables, the Pike Committee in the House (see January 29, 1976) is much more far-ranging. The Pike Committee tries and fails to subpoena AT&T, which along with Western Union collaborated with the government in allowing the NSA to monitor international communications to and from the US. The government protects AT&T by declaring it “an agent of the United States acting under contract with the Executive Branch.” A corollary House subcommittee investigation led by Bella Abzug (D-NY)—who believes that Operation Shamrock continues under a different name—leads to further pressure on Congress to pass a legislative remedy. The Ford administration’s counterattack is given considerable assistance by a young lawyer at the Justice Department named Antonin Scalia. The head of the Office of Legal Counsel, Scalia’s arguments in favor of continued warrantless surveillance and the unrestricted rights and powers of the executive branch—opposed by, among others, Scalia’s boss, Attorney General Edward Levi—do not win out this time; Ford’s successor, Jimmy Carter, ultimately signs into law the Foreign Intelligence Surveillance Act (see 1978). But Scalia’s incisive arguments win the attention of powerful Ford officials, particularly Chief of Staff Donald Rumsfeld and Rumsfeld’s assistant, Dick Cheney. [Dubose and Bernstein, 2006, pp. 36-37] Scalia will become a Supreme Court Justice in 1986 (see September 26, 1986).

Entity Tags: Foreign Intelligence Surveillance Act, Church Committee, Bella Abzug, Antonin Scalia, AT&T, Donald Rumsfeld, Ford administration, National Security Agency, Western Union, James Earl “Jimmy” Carter, Jr., Edward Levi, Office of Legal Counsel (DOJ), Pike Committee, Richard (“Dick”) Cheney, US Department of Justice

Timeline Tags: Civil Liberties

Investigative journalist Seymour Hersh publishes an explosive story in the New York Times, revealing that US submarines are tapping into Soviet communications cables inside the USSR’s three-mile territorial limit. Hersh notes that his inside sources gave him the information in hopes that it would modify administration policy: they believe that using submarines in this manner violates the spirit of detente and is more risky than using satellites to garner similar information. The reaction inside both the Pentagon and the White House is predictably agitated. Chief of Staff Donald Rumsfeld, traveling in Europe with President Ford, delegates his deputy Dick Cheney to formulate the administration’s response. Cheney goes farther than most administration officials would have predicted. He calls a meeting with Attorney General Edward Levi and White House counsel Philip Buchan to discuss options. Cheney’s first thought is to either engineer a burglary of Hersh’s home to find classified documents, or to obtain search warrants and have Hersh’s home legally ransacked. He also considers having a grand jury indict Hersh and the Times over their publication of classified information. “Will we get hit with violating the 1st amendment to the constitution[?]” Cheney writes in his notes of the discussion. Levi manages to rein in Cheney; since the leak and the story do not endanger the spying operations, the White House ultimately decides to let the matter drop rather than draw further attention to it. Interestingly, Cheney has other strings to his bow; he writes in his notes: “Can we take advantage of [the leak] to bolster our position on the Church committee investigation (see April, 1976)? To point out the need for limits on the scope of the investigation?” [Dubose and Bernstein, 2006, pp. 34-35]

Entity Tags: Seymour Hersh, US Department of Defense, Ford administration, Edward Levi, Donald Rumsfeld, Church Committee, Richard (“Dick”) Cheney, Philip Buchan, New York Times, Gerald Rudolph Ford, Jr

Timeline Tags: Civil Liberties

The Senate Select Committee to Study Governmental Operations releases its report, “Alleged Assassination Plots Involving Foreign Leaders,” which finds “concrete evidence of at least eight plots involving the CIA to assassinate Fidel Castro from 1960 to 1965.” [US Congress, 12/18/1975]

Entity Tags: Fidel Castro, US Congress

Timeline Tags: US-Cuba (1959-2005)

Representative Otis Pike.Representative Otis Pike. [Source: Spartacus Educational]A House of Representatives committee, popularly known as the Pike Committee after its chairman, Otis Pike (D-NY), investigates questionable US intelligence activities. The committee operates in tandem with the Senate’s investigation of US intelligence activities, the Church Committee (see April, 1976). Pike, a decorated World War II veteran, runs a more aggressive—some say partisan—investigation than the more deliberate and politically balanced Church Committee, and receives even less cooperation from the White House than does the Church investigation. After a contentious year-long investigation marred by inflammatory accusations and charges from both sides, Pike refuses demands from the CIA to redact huge portions of the report, resulting in an accusation from CIA legal counsel Mitchell Rogovin that the report is an “unrelenting indictment couched in biased, pejorative and factually erroneous terms.” Rogovin also tells the committee’s staff director, Searle Field, “Pike will pay for this, you wait and see…. There will be a political retaliation…. We will destroy him for this.” (It is hard to know exactly what retaliation will be carried out against Pike, who will resign from Congress in 1978.)
Battle to Release Report - On January 23, 1976, the investigative committee voted along party lines to release the report unredacted, sparking a tremendous outcry among Republicans, who are joined by the White House and CIA Director William Colby in an effort to suppress the report altogether. On January 26, the committee’s ranking Republican, Robert McCory, makes a speech saying that the report, if released, would endanger national security. On January 29, the House votes 246 to 124 not to release the report until it “has been certified by the President as not containing information which would adversely affect the intelligence activities of the CIA.” A furious Pike retorts, “The House just voted not to release a document it had not read. Our committee voted to release a document it had read.” Pike threatens not to release the report at all because “a report on the CIA in which the CIA would do the final rewrite would be a lie.” The report will never be released, though large sections of it will be leaked within days to reporter Daniel Schorr of the Village Voice, and printed in that newspaper. Schorr himself will be suspended from his position with CBS News and investigated by the House Ethics Committee (Schorr will refuse to disclose his source, and the committee will eventually decide, on a 6-5 vote, not to bring contempt of Congress charges against him). [Spartacus Educational, 2/16/2006] The New York Times will follow suit and print large portions of the report as well. The committee was led by liberal Democrats such as Pike and Ron Dellums (D-CA), who said even before the committee first met, “I think this committee ought to come down hard and clear on the side of stopping any intelligence agency in this country from utilizing, corrupting, and prostituting the media, the church, and our educational system.” The entire investigation is marred by a lack of cooperation from the White House and the CIA. [Gerald K. Haines, 1/20/2003]
Final Draft Accuses White House, CIA of 'Stonewalling,' Deception - The final draft of the report says that the cooperation from both entities was “virtually nonexistent,” and accuses both of practicing “foot dragging, stonewalling, and deception” in their responses to committee requests for information. CIA archivist and historian Gerald Haines will later write that the committee was thoroughly deceived by Secretary of State Henry Kissinger, who officially cooperated with the committee but, according to Haines, actually “worked hard to undermine its investigations and to stonewall the release of documents to it.” [Spartacus Educational, 2/16/2006] The final report accuses White House officials of only releasing the information it wanted to provide and ignoring other requests entirely. One committee member says that trying to get information out of Colby and other CIA officials was like “pulling teeth.” For his part, Colby considers Pike a “jackass” and calls his staff “a ragtag, immature, and publicity-seeking group.” The committee is particularly unsuccessful in obtaining information about the CIA’s budget and expenditures, and in its final report, observes that oversight of the CIA budget is virtually nonexistent. Its report is harsh in its judgments of the CIA’s effectiveness in a number of foreign conflicts, including the 1973 Mideast war, the 1968 Tet offensive in Vietnam, the 1974 coups in Cyprus and Portugal, the 1974 testing of a nuclear device by India, and the 1968 invasion of Czechoslovakia by the Soviet Union, all of which the CIA either got wrong or failed to predict. The CIA absolutely refused to provide any real information to either committee about its involvement in, among other foreign escapades, its attempt to influence the 1972 elections in Italy, covert actions in Angola, and covert aid to Iraqi Kurds from 1972 through 1975. The committee found that covert actions “were irregularly approved, sloppily implemented, and, at times, had been forced on a reluctant CIA by the President and his national security advisers.” Indeed, the Pike Committee’s final report lays more blame on the White House than the CIA for its illegal actions, with Pike noting that “the CIA does not go galloping off conducting operations by itself…. The major things which are done are not done unilaterally by the CIA without approval from higher up the line.… We did find evidence, upon evidence, upon evidence where the CIA said: ‘No, don’t do it.’ The State Department or the White House said, ‘We’re going to do it.’ The CIA was much more professional and had a far deeper reading on the down-the-road implications of some immediately popular act than the executive branch or administration officials.… The CIA never did anything the White House didn’t want. Sometimes they didn’t want to do what they did.” [Gerald K. Haines, 1/20/2003]

Entity Tags: William Colby, Village Voice, Otis G. Pike, Robert McCory, Pike Committee, US Department of State, New York Times, Mitchell Rogovin, Ron Dellums, House Ethics Committee, Gerald Haines, Church Committee, Searle Field, Daniel Schorr, Henry A. Kissinger, Central Intelligence Agency, CBS News

Timeline Tags: Civil Liberties

President Ford issues Executive Order 11905, which limits the power of the CIA, the NSA, and military intelligence to engage in surveillance of US citizens. Perhaps its most well-known provision is a total ban on “political assassinations” by US government personnel. [Gerald R. Ford, 2/18/1976; Roberts, 2008, pp. 38] The provision is sparked by the Church Commission’s finding (see April, 1976) that assassination is “unacceptable in our society,” and a political embarassment, especially botched attempts such as the CIA’s efforts to kill Cuba’s Fidel Castro. [Grant J. Lilly, 4/6/2006]

Entity Tags: Church Commission, Gerald Rudolph Ford, Jr, National Security Agency, Central Intelligence Agency

Timeline Tags: Civil Liberties

Senator Frank Church.Senator Frank Church. [Source: Wally McNamee / Corbis]A Senate committee tasked to investigate the activities of US intelligence organizations finds a plethora of abuses and criminal behaviors, and recommends strict legal restraints and firm Congressional oversight. The “Church Committee,” chaired by Senator Frank Church (D-ID), a former Army intelligence officer with a strong understanding of the necessity for intelligence-gathering, notes in its final report that the CIA in particular had been overly cooperative with the Nixon administration in spying on US citizens for political purposes (see December 21, 1974); US intelligence agencies had also gone beyond the law in assassination attempts on foreign government officials in, among other places, Africa, Latin America, and Vietnam. Church himself accused the CIA of providing the White House with what, in essence, is a “private army,” outside of Congressional oversight and control, and called the CIA a “rogue elephant rampaging out of control.” The committee will reveal the existence of hitherto-unsuspected operations such as HT Lingual, which had CIA agents secretly opening and reading US citizens’ international mail, and other operations which included secret, unauthorized wiretaps, dossier compilations, and even medical experiments. For himself, Church, the former intelligence officer, concluded that the CIA should conduct covert operations only “in a national emergency or in cases where intervention is clearly in tune with our traditional principles,” and restrain the CIA from intervening in the affairs of third-world nations without oversight or consequence. CIA director William Colby is somewhat of an unlikely ally to Church; although he does not fully cooperate with either the Church or Pike commissions, he feels that the CIA’s image is badly in need of rehabilitation. Indeed, Colby later writes, “I believed that Congress was within its constitutional rights to undertake a long-overdue and thoroughgoing review of the agency and the intelligence community. I did not share the view that intelligence was solely a function of the Executive Branch and must be protected from Congressional prying. Quite the contrary.” Conservatives later blame the Church Commission for “betray[ing] CIA agents and operations,” in the words of American Spectator editor R. Emmett Tyrrell, Jr, referencing the 1975 assassination of CIA station chief Richard Welch in Greece. The chief counsel of the Church Committee accuses CIA defenders and other conservatives of “danc[ing] on the grave of Richard Welch in the most cynical way.” It is documented fact that the Church Commission exposed no agents and no operations, and compromised no sources; even Colby’s successor, George H.W. Bush, later admits that Welch’s death had nothing to do with the Church Committee. (In 1980, Church will lose re-election to the Senate in part because of accusations of his committee’s responsibility for Welch’s death by his Republican opponent, Jim McClure.) [American Prospect, 11/5/2001; History Matters Archive, 3/27/2002; Assassination Archives and Research Center, 11/23/2002]
Final Report Excoriates CIA - The Committee’s final report concludes, “Domestic intelligence activity has threatened and undermined the Constitutional rights of Americans to free speech, association and privacy. It has done so primarily because the Constitutional system for checking abuse of power has not been applied.” The report is particularly critical of the CIA’s successful, and clandestine, manipulation of the US media. It observes: “The CIA currently maintains a network of several hundred foreign individuals around the world who provide intelligence for the CIA and at times attempt to influence opinion through the use of covert propaganda. These individuals provide the CIA with direct access to a large number of newspapers and periodicals, scores of press services and news agencies, radio and television stations, commercial book publishers, and other foreign media outlets.” The report identifies over 50 US journalists directly employed by the CIA, along with many others who were affiliated and paid by the CIA, and reveals the CIA’s policy to have “their” journalists and authors publish CIA-approved information, and disinformation, overseas in order to get that material disseminated in the United States. The report quotes the CIA’s Chief of the Covert Action Staff as writing, “Get books published or distributed abroad without revealing any US influence, by covertly subsidizing foreign publicans or booksellers.…Get books published for operational reasons, regardless of commercial viability.…The advantage of our direct contact with the author is that we can acquaint him in great detail with our intentions; that we can provide him with whatever material we want him to include and that we can check the manuscript at every stage…. [The agency] must make sure the actual manuscript will correspond with our operational and propagandistic intention.” The report finds that over 1,000 books were either published, subsidized, or sponsored by the CIA by the end of 1967; all of these books were published in the US either in their original form or excerpted in US magazines and newspapers. “In examining the CIA’s past and present use of the US media,” the report observes, “the Committee finds two reasons for concern. The first is the potential, inherent in covert media operations, for manipulating or incidentally misleading the American public. The second is the damage to the credibility and independence of a free press which may be caused by covert relationships with the US journalists and media organizations.”
CIA Withheld Info on Kennedy Assassination, Castro Plots, King Surveillance - The committee also finds that the CIA withheld critical information about the assassination of President John F. Kennedy from the Warren Commission, information about government assassination plots against Fidel Castro of Cuba (see, e.g., November 20, 1975, Early 1961-June 1965, March 1960-August 1960, and Early 1963); and that the FBI had conducted a counter-intelligence program (COINTELPRO) against Dr. Martin Luther King, Jr. and the Southern Christian Leadership Conference. Mafia boss Sam Giancana was slated to testify before the committee about his organization’s ties to the CIA, but before he could testify, he was murdered in his home—including having six bullet wounds in a circle around his mouth. Another committee witness, union leader Jimmy Hoffa, disappeared before he could testify. Hoffa’s body has never been found. Mafia hitman Johnny Roselli was murdered before he could testify before the committee: in September 1976, the Washington Post will print excerpts from Roselli’s last interview, with journalist Jack Anderson, before his death; Anderson will write, “When [Kennedy assassin Lee Harvey] Oswald was picked up, the underworld conspirators feared he would crack and disclose information that might lead to them. This almost certainly would have brought a massive US crackdown on the Mafia. So Jack Ruby was ordered to eliminate Oswald.” (Anderson’s contention has not been proven.) The murders of Giancana and Roselli, and the disappearance and apparent murder of Hoffa, will lead to an inconclusive investigation by the House of the assassinations of Kennedy and King. [Spartacus Educational, 12/18/2002]
Leads to FISA - The findings of the Church Committee will inspire the passage of the Foreign Intelligence Surveillance Act (FISA) (see 1978), and the standing committees on intelligence in the House and Senate. [Assassination Archives and Research Center, 11/23/2002]
Simultaneous Investigation in House - The Church Committee operates alongside another investigative body in the House of Representatives, the Pike Committee (see January 29, 1976).
Church Committee Smeared After 9/11 - After the 9/11 attacks, conservative critics will once again bash the Church Committee; former Secretary of State James Baker will say within hours of the attacks that the Church report had caused the US to “unilaterally disarm in terms of our intelligence capabilities,” a sentiment echoed by the editorial writers of the Wall Street Journal, who will observe that the opening of the Church hearings was “the moment that our nation moved from an intelligence to anti-intelligence footing.” Perhaps the harshest criticism will come from conservative novelist and military historian Tom Clancy, who will say, “The CIA was gutted by people on the political left who don’t like intelligence operations. And as a result of that, as an indirect result of that, we’ve lost 5,000 citizens last week.” [Gerald K. Haines, 1/20/2003]

Entity Tags: Washington Post, Tom Clancy, William Colby, Southern Christian Leadership Conference, R. Emmett Tyrrell, Richard M. Nixon, HT Lingual, George Herbert Walker Bush, Jack Anderson, Frank Church, Church Committee, Central Intelligence Agency, Federal Bureau of Investigation, Sam Giancana, Jack Ruby, James R. Hoffa, Pike Committee, Martin Luther King, Jr., James A. Baker, Lee Harvey Oswald, John F. Kennedy, Jim McClure, Johnny Roselli, Warren Commission

Timeline Tags: Civil Liberties

Following the revelations of the Church Committee’s investigation into the excesses of the CIA (see April, 1976), and the equally revealing New York Times article documenting the CIA’s history of domestic surveillance against US citizens for political purposes (see December 21, 1974), Congress passes the Foreign Intelligence Surveillance Act (FISA). In essence, FISA prohibits physical and electronic surveillance against US citizens except in certain circumstances affecting national security, under certain guidelines and restrictions, with court warrants issued by the Foreign Intelligence Surveillance Court (FISC), operating within the Department of Justice as well as with criminal warrants. FISA restricts any surveillance of US citizens (including US corporations and permanent foreign residents) to those suspected of having contact with “foreign powers” and terrorist organizations. FISA gives a certain amount of leeway for such surveillance operations, requiring that the administration submit its evidence for warrantless surveillance to FISC within 24 hours of its onset and keeping the procedures and decisions of FISC secret from the public. [Electronic Frontier Foundation, 9/27/2001; Legal Information Institute, 11/30/2004] On September 14, 2001, Congress will pass a revision of FISA that extends the time period for warrantless surveillance to 72 hours. The revision, part of the Intelligence Authorization Act of 2002, will also lower the standard for the issuance of wiretap warrants and make legal “John Doe,” or generic, warrants that can be used without naming a particular target. FISA revisions will also expand the bounds of the technologies available to the government for electronic and physical surveillance, and broaden the definitions of who can legally be monitored. [US Senate, 9/14/2001; Senator Jane Harman, 2/1/2006]

Entity Tags: Foreign Intelligence Surveillance Court, New York Times, Foreign Intelligence Surveillance Act, US Department of Justice, Church Committee

Timeline Tags: Civil Liberties

President Jimmy Carter issues Executive Order 12129, “Exercise of Certain Authority Respecting Electronic Surveillance,” which implements the executive branch details of the recently enacted Foreign Intelligence Surveillance Act of 1978 (FISA) (see 1978). [Jimmy Carter, 5/23/1979] The order is issued in response to the Iranian hostage crisis (see November 4, 1979-January 20, 1981). [Hawaii Free Press, 12/28/2005] While many conservatives will later misconstrue the order as allowing warrantless wiretapping of US citizens in light of the December 2005 revelation of George W. Bush’s secret wiretapping authorization (see Early 2002), [Think Progress, 12/20/2005] the order does not do this. Section 1-101 of the order reads, “Pursuant to Section 102(a)(1) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1802(a)), the Attorney General is authorized to approve electronic surveillance to acquire foreign intelligence information without a court order, but only if the Attorney General makes the certifications required by that Section.” The Attorney General must certify under the law that any such warrantless surveillance must not contain “the contents of any communication to which a United States person is a party.” The order does not authorize any warrantless wiretapping of a US citizen without a court warrant. [Jimmy Carter, 5/23/1979; 50 U.S.C. 1802(a); Think Progress, 12/20/2005] The order authorizes the Attorney General to approve warrantless electronic surveillance to obtain foreign intelligence, if the Attorney General certifies that, according to FISA, the communications are exclusively between or among foreign powers, or the objective is to collect technical intelligence from property or premises under what is called the “open and exclusive” control of a foreign power. There must not be a “substantial likelihood” that such surveillance will obtain the contents of any communications involving a US citizen or business entity. [Federal Register, 2/4/2006]

Entity Tags: Foreign Intelligence Surveillance Act, George W. Bush, James Earl “Jimmy” Carter, Jr.

Timeline Tags: Civil Liberties

The National Security Agency seeks the assistance of global telecommunications corporation AT&T to help it set up a domestic call monitoring site to eavesdrop on US citizens’ phone communications, according to court papers filed in June 2006 as part of a lawsuit against AT&T (see October 2001). The NSA is expressly forbidden from spying on US citizens within US borders unless authorized by the Foreign Surveillance Intelligence Court (FISC) (see 1978). When the NSA program, which wiretaps phone and email communications often without court warrants, becomes public knowledge well over four years later (see December 15, 2005), President Bush, NSA Director Michael Hayden, and other White House and government officials will assert that the program was set up in response to the September 11, 2001 terrorist attacks. If the claims made in the lawsuit are accurate, these assertions are provably false. “The Bush administration asserted this became necessary after 9/11,” lawyer Carl Mayer will claim in 2006. “This undermines that assertion.” Unbeknownst to most Americans, the NSA is operating a secret “data mining” operation that, by 2006, will have compiled phone records and contact information on millions of domestic phone and email communications. The NSA project is code-named “Project Groundbreaker,” and is ostensibly an above-board attempt announced in June 2000 to have AT&T and other firms help modernize its technological capabilities. The project originally seeks to have AT&T build a network operations center that duplicates AT&T’s facility in Bedminster, New Jersey; this plan will be altered when the NSA decides it will be better served by acquiring the monitoring technology itself. The agency is seeking bids for a project to “modernize and improve its information technology infrastructure,” including the privatization of its “non-mission related” systems support. [TechWeb, 6/13/2000; Bloomberg, 6/30/2006] Groundbreaker’s privatization project is expected to provide up to $5 billion in government contracts to various private firms such as AT&T, Computer Sciences Corporation, and OAO Corporation, [Computerworld, 12/4/2000; Government Executive, 9/1/2001] and up to 750 NSA employees will become private contractors. Hayden, who has aggressively instituted a corporate management protocol to enhance productivity and has brought in numerous senior managers and agency executives from private defense firms, is a strong proponent of privatizing and outsourcing much of the NSA’s technological operations, and in 2001 will say that he wants the agency to focus on its primary task of breaking codes and conducting surveillance. Hayden does not admit that Groundbreaker is part of a larger NSA domestic surveillance program, [Government Executive, 9/1/2001] and publicly, NSA officials say that the project is limited to administrative and logistics functions. [Computerworld, 12/4/2000] The covert data mining portion of the project is code-named “Pioneer.” A former, unnamed employee of the NSA, [Bloomberg, 6/30/2006] and a former AT&T technician, Mark Klein, will provide the key information about Groundbreaker (see Late 2002, July 7, 2009 and December 15-31, 2005). Klein will say in 2006 that he saw the NSA construct a clandestine area within its switching center in San Francisco, and saw NSA technicians shunt fiber optic cable carrying Internet traffic into that area, which contains a large data bank and secret data mining hardware (see April 6, 2006). Klein will say he knew that the NSA built other such facilities in other switching locations. He will go on to say that the NSA did not work with just AT&T traffic; when AT&T’s network connected with other networks, the agency acquired access to that traffic as well. [Democracy Now!, 5/12/2006] The information about AT&T and the NSA will become public knowledge after the 2006 filing of a lawsuit against AT&T and other telecommunications firms (see May 12, 2006 and June 26, 2006).

Entity Tags: Mark Klein, Michael Hayden, George W. Bush, Foreign Intelligence Surveillance Court, Bush administration (43), Carl Mayer, Computer Sciences Corporation, AT&T, National Security Agency, OAO Corporation

Timeline Tags: Civil Liberties

The FBI dramatically escalates its warrantless wiretaps of US citizens, most without the proper paperwork or oversight. The public will not learn of the FBI wiretapping program until October 2005, when classified documents will be made available to the Electronic Privacy Information Center (EPIC), an advocacy group that will sue the Justice Department for records relating to the Patriot Act. According to those documents, which are heavily redacted, the FBI conducts clandestine surveillance on some US residents for 18 months and even longer. The FBI will also internally investigate at least 287 violations of its use of secret surveillance against US citizens. One target will be kept under surveillance for over five years, including a 15-month stretch where the FBI fails to notify Justice Department lawyers after the subject moves from New York to Detroit. According to an FBI investigation, that delay is a violation of department guidelines and will prevent the department “from exercising its responsibility for oversight and approval of an ongoing foreign counterintelligence investigation of a US person.” Other cases involve agents obtaining e-mails after warrants expire, seizing bank records without authorization, and conducting improper “unconsented physical search(es).” EPIC’s general counsel, David Sobel, will say in October 2005 that the classified documents indicate possible misconduct by the FBI in counterintelligence investigations, and highlight the need for greater congressional oversight of clandestine surveillance within the United States. “We’re seeing what might be the tip of the iceberg at the FBI and across the intelligence community,” Sobel will say. “It indicates that the existing mechanisms do not appear adequate to prevent abuses or to ensure the public that abuses that are identified are treated seriously and remedied.” The FBI will counter by insisting that all of the infractions are minor, mostly what it calls administrative errors, and that any information obtained improperly is quarantined and eventually destroyed. One senior FBI official will say, “Every investigator wants to make sure that their investigation is handled appropriately, because they’re not going to be allowed to keep information that they didn’t have the proper authority to obtain. But that is a relatively uncommon occurrence. The vast majority of the potential [violations] reported have to do with administrative timelines and time frames for renewing orders.” Catherine Lotrionte, the counsel for the President’s Foreign Intelligence Advisory Board, which is tasked with overseeing the FBI’s domestic surveillance operations, will refuse to disclose any details of any of the FBI violations, saying most of its work is classified and covered by executive privilege. The surveillance operations are conducted under the aegis of the Foreign Intelligence Surveillance Act (see 1978), whose threshold for such surveillance is lower than for criminal warrants. In 2004 alone, over 1,700 new cases will be opened by the secret Foreign Intelligence Surveillance Court. [Washington Post, 10/24/2005] Though Bush officials eventually admit to beginning surveillance of US citizens after the 9/11 attacks, that assertion is disputed by evidence suggesting that the domestic surveillance program began well before 9/11 (see Late 1999, February 27, 2000, December 2000, February 2001, February 2001, Spring 2001, and July 2001).

Entity Tags: Foreign Intelligence Advisory Board, Federal Bureau of Investigation, Catherine Lotrionte, Electronic Privacy Information Center, David Sobel, US Department of Justice, Foreign Intelligence Surveillance Court

Timeline Tags: Civil Liberties

A self-styled White House “war council” begins meeting shortly after the 9/11 attacks, to discuss the administration’s response to the attacks and the methods it will use (see (After 10:00 a.m.) September 11, 2001). The ad hoc group is composed of White House counsel Alberto Gonzales, Justice Department lawyer John Yoo, Pentagon chief counsel William J. Haynes, and the chief aide to Vice President Dick Cheney, David Addington. According to Jack Goldsmith, who will become head of the Justice Department’s Office of Legal Counsel (OLC) in 2003 (see October 6, 2003), the four believe that the administration’s biggest obstacle to responding properly to the 9/11 attacks is the body of domestic and international law that arose in the 1970s to constrain the president’s powers after the criminal excesses of Richard Nixon’s White House. Chief among these restraints is the Foreign Intelligence Surveillance Act (FISA) of 1978 (see 1978). Though Addington tends to dominate the meetings with his imposing physical presence and aggressive personality, Yoo is particularly useful to the group; the head of the OLC, Jay Bybee (whom Goldsmith will replace) has little experience with national security issues, and delegates much of the responsibility for that subject to Yoo, even giving him the authority to draft opinions that are binding on the entire executive branch. Yoo agrees wholeheartedly with Addington, Gonzales, and Cheney about the need for vastly broadened presidential powers. According to Goldsmith, Yoo is seen as a “godsend” for the White House because he is eager to draft legal opinions that would protect Bush and his senior officials from any possible war crimes charges. However, Yoo’s direct access to Gonzales angers Attorney General John Ashcroft, who feels that the “war council” is usurping legal and policy decision-making powers that are legally his own. [New York Times Magazine, 9/9/2007] In 2009, Goldsmith will say, “[I]it was almost as if they [Cheney and Addington] were interested in expanding executive power for its own sake.” [Vanity Fair, 2/2009]

Entity Tags: Richard (“Dick”) Cheney, William J. Haynes, Richard M. Nixon, Office of Legal Counsel (DOJ), Jay S. Bybee, Jack Goldsmith, John C. Yoo, Bush administration (43), Foreign Intelligence Surveillance Act, Alberto R. Gonzales, David S. Addington

Timeline Tags: Civil Liberties

Former AT&T employee Mark Klein.Former AT&T employee Mark Klein. [Source: PBS]The National Security Agency, as part of its huge, covert, and possibly illegal wiretapping program directed at US citizens (see Spring 2001 and After September 11, 2001), begins collecting telephone records of tens of millions of Americans, using data provided by telecommunications firms such as AT&T, Verizon, and BellSouth (see February 5, 2006). The media will not report on this database until May 2006 (see May 11, 2006). The program collects information on US citizens not suspected of any crime or any terrorist connections. Although informed sources say the NSA is not listening to or recording actual conversations, the agency is using the data to analyze calling patterns in an effort to detect terrorist activity. “It’s the largest database ever assembled in the world,” says one anonymous source. The NSA intends “to create a database of every call ever made.” As a result, the NSA has detailed records of the phone activities of tens of millions of US citizens, from local calls to family and friends to international calls. The three telecommunications companies are working with the NSA in part under the Communications Assistance Act for Law Enforcement (CALEA) (see January 1, 1995 and June 13, 2006) and in part under contract to the agency.
Surveillance Much More Extensive Than Acknowledged - The wiretapping program, which features electronic surveillance of US citizens without court warrants or judicial oversight, is far more extensive than anything the White House or the NSA has ever publicly acknowledged. President Bush will repeatedly insist that the NSA focuses exclusively on monitoring international calls where one of the call participants is a known terrorist suspect or has a connection to terrorist groups (see December 17, 2005 and May 11, 2006), and he and other officials always insist that domestic calls are not monitored. This will be proven false. The NSA has become expert at “data mining,” sifting through reams of information in search of patterns. The warrantless wiretapping database is one source of information for the NSA’s data mining. As long as the NSA does not collect “personal identifiers”—names, Social Security numbers, street addresses, and the like—such data mining is legal. But the actual efficacy of the wiretapping program in learning about terrorists and possibly preventing terrorist attacks is unclear at best. And many wonder if the NSA is not repeating its activities from the 1950s and 1960s, when it conducted “Operation Shamrock” (see 1945-1975), a 20-year program of warrantless wiretaps of international phone calls at the behest of the CIA and other intelligence agencies. Operation Shamrock, among other things, led to the 1978 passage of the Foreign Intelligence Surveillance Act (see 1978). [USA Today, 5/11/2006] In May 2006, former NSA director Bobby Ray Inman will say, “[T]his activity is not authorized” (see May 12, 2006). [Democracy Now!, 5/12/2006]
Secret Data Mining Center - In May 2006, retired AT&T technician Mark Klein, a 22-year veteran of the firm, will file a court affidavit saying that he saw the firm construct a secret data-mining center in its San Francisco switching center that would let the NSA monitor domestic and international communications (see January 2003). And former AT&T workers say that, as early as 2002, AT&T has maintained a secret area in its Bridgeton, Missouri, facility that is likely being used for NSA surveillance (see Late 2002-Early 2003).
Domestic Surveillance Possibly Began Before 9/11 - Though Bush officials admit to beginning surveillance of US citizens only after the 9/11 attacks, some evidence indicates that the domestic surveillance program began some time before 9/11 (see Late 1999, February 27, 2000, December 2000, February 2001, February 2001, Spring 2001, and July 2001).

Entity Tags: Terrorist Surveillance Program, Verizon Communications, Mark Klein, George W. Bush, AT&T, BellSouth, Central Intelligence Agency, Communications Assistance for Law Enforcement Act (CALEA), Foreign Intelligence Surveillance Act, Qwest, National Security Agency

Timeline Tags: Civil Liberties

When al-Qaeda logistics manager Abu Zubaida is arrested in late March 2002 (see March 28, 2002), his computer is searched. According to the Washington Post: “When agents found Zubaida’s laptop computer, a senior law enforcement source said, they discovered that the vast majority of people he had been communicating with were being monitored under FISA warrants or international spying efforts. ‘Finally, we got some comfort’ that surveillance efforts were working, said a government official familiar with Zubaida’s arrest.” The fact some of his contacts are monitored under FISA warrants indicates that they are in the US, as FISA warrants are only used for US targets (see 1978). The monitoring of Abu Zubaida’s communications began in the mid-1990s, at the latest (see (Mid-1996) and October 1998 and After), and continued after 9/11 (see October 8, 2001). [Washington Post, 2/9/2006] Some will later suggest that Zubaida may have had mental problems (see Shortly After March 28, 2002), but this apparently did not stop him from being a key al-Qaeda contact point. FBI agent Dan Coleman, an expert on al-Qaeda, will later say that the FBI “all knew he was crazy, and they knew he was always on the damn phone.” [Washington Post, 12/18/2007] Vincent Cannistraro, former head of the CIA’s Counter Terrorism Center, says of Zubaida shortly after Zubaida’s capture, “He was the guy that had the direct contact with prominent al-Qaeda cell leaders abroad, and he knew where they all were. He would have been the guy co-ordinating new attacks.” [Observer, 4/7/2002]

Entity Tags: Dan Coleman, Vincent Cannistraro, Abu Zubaida

Timeline Tags: Complete 911 Timeline

The Foreign Intelligence Surveillance Court (FISC) turns down the Justice Department’s bid for sweeping new powers to monitor and wiretap US citizens. FISC judges rule that the government has misused the law and misled the court dozens of times. The court finds that Justice Department and FBI officials supplied false or misleading information to the court in over 75 applications for search warrants and wiretaps, including one signed by then-FBI director Louis Freeh. While the court does not find that the misrepresentations were deliberate, it does rule that not only were erroneous statements made, but important information was omitted from some FISA applications. The judges found so many inaccuracies and errors in FBI agent Michael Resnick’s affidavits that they bar him from ever appearing before the court again. The court cites “the troubling number of inaccurate FBI affidavits in so many FISA applications,” and says, “In virtually every instance, the government’s misstatements and omissions in FISA applications and violations of the Court’s orders involved information sharing and unauthorized disseminations to criminal investigators and prosecutors.” The court is also unhappy with the Justice Department’s failure to answer for these errors and omissions, writing, “How these misrepresentations occurred remains unexplained to the court.” The court finds that in light of such impropriety, the new procedures proposed by Attorney General John Ashcroft in March would give prosecutors too much control over counterintelligence investigations, and would allow the government to misuse intelligence information for criminal cases. The ruling is a severe blow to Ashcroft’s attempts since the 9/11 attacks to allow investigators working in terrorism and espionage to share more information with criminal investigators. (These limitations were put in place after the Church Commission’s findings of massive fraud and misuse of domestic surveillance programs during the 1950s, 60s, and 70s. See April, 1976, January 29, 1976, and December 21, 1974). The Justice Department says of the decision, “We believe the court’s action unnecessarily narrowed the Patriot Act and limited our ability to fully utilize the authority Congress gave us.” Interestingly, the Justice Department also opposed the public release of FISC’s decision not to grant the requested powers. Stewart Baker, former general counsel of the NSA, calls the opinion “a public rebuke. The message is you need better quality control. The judges want to ensure they have information they can rely on implicitly.” Bush officials have complained since the 9/11 attacks that FISA requirements hamper the ability of law enforcement and intelligence agents to track terrorist suspects, including alleged hijacking conspirator Zacarias Moussaoui (see August 16, 2001). Those requirements mandate that agents must show probable cause that the subject of a search or wiretap is an agent of a foreign government or terrorist group, and, because FISA standards for obtaining warrants is far lower than for ordinary criminal warrants, mandate strict limits on the distribution of information secured from such investigations. The FBI searched Moussaoui’s laptop computer and other belongings without a FISA warrant because some officials did not believe they could adequately show the court that Moussaoui had any connections to a foreign government or terrorist group. In its ruling, FISC suggests that if the Justice Department finds FISA too restrictive, they should ask Congress to update the law. Many senators on the Judiciary Committee say they are willing to enact such reforms, but have complained of resistance from Ashcroft and a lack of cooperation from the Bush administration. [Washington Post, 8/23/2002] In November 2002, the Foreign Intelligence Surveillance Court of Review will overturn the FISC decision and give the Justice Department what it asked for (see November 18, 2002).

Entity Tags: Foreign Intelligence Surveillance Court, Federal Bureau of Investigation, Charles Grassley, US Department of Justice, Stewart Baker, Zacarias Moussaoui, National Security Agency, John Ashcroft, Church Commission, USA Patriot Act, Louis J. Freeh, Michael Resnick

Timeline Tags: Civil Liberties

A sample page from Mark Klein’s AT&T documentation.A sample page from Mark Klein’s AT&T documentation. [Source: Mark Klein / Seattle Times]Senior AT&T technician Mark Klein (see July 7, 2009), gravely concerned by the National Security Agency (NSA) spying operation going on in AT&T’s San Francisco facility (see October 2003) and now in possession of documents which prove the nature and scope of the telecommunications surveillance activities (see Fall 2003 and Late 2003), writes a memo summarizing his findings and conclusions. He appends eight pages of the unclassified documents he has in his possession, along with two photographs and some material from the Internet which documents the sophisticated surveillance equipment being used to gather data from AT&T’s electronic transmissions. The NSA and AT&T were, he later says, “basically sweeping up, vacuum-cleaning the Internet through all the data, sweeping it all into this secret room.… It’s the sort of thing that very intrusive, repressive governments would do, finding out about everybody’s personal data without a warrant. I knew right away that this was illegal and unconstitutional, and yet they were doing it.… I think I’m looking at something Orwellian. It’s a government, many-tentacled operation to gather daily information on what everybody in the country is doing. Your daily transactions on the Internet can be monitored with this kind of system, not just your Web surfing. All kinds of business that people do on the Internet these days—your bank transactions, your email, everything—it sort of opens a window into your entire private life, and that’s why I thought of the term ‘Orwellian.’ As you know, in [George] Orwell’s story [1984], they have cameras in your house, watching you. Well, this is the next best thing.… So I was not only angry about it; I was also scared, because I knew this authorization came from very high up—not only high up in AT&T, but high up in the government. So I was in a bit of a quandary as to what to do about it, but I thought this should be halted.”
Gathering 'the Entire Data Stream' - In his memo, Klein concludes that the NSA is using “splitter” equipment to copy “the entire data stream [emphasis in the original] and sent it to the [NSA’s] secret room for further analysis.” Klein writes that the splitters actually “split off a percentage of the light signal [from the fiber optic circuits] so it can be examined. This is the purpose of the special cabinet… circuits are connected into it, the light signal is split into two signals, one of which is diverted to the ‘secret room.’ The cabinet is totally unnecessary for the circuit to perform—in fact, it introduces problems since the signal level is reduced by the splitter—its only purpose is to enable a third party [the NSA] to examine the data flowing between sender and recipient on the Internet.” (Emphasis in the original.) In his book, Klein will explain that “each separate signal,” after being split, “contains all the information, nothing is lost, so in effect the entire data stream has been copied.” He will continue: “What screams out at you when examining this physical arrangement is that the NSA was vacuuming up everything flowing in the Internet stream: email, Web browsing, voice-over-Internet phone calls, pictures, streaming video, you name it. The splitter has no intelligence at all, it just makes a blind copy.” Klein later explains to a reporter: “The signals that go across fiber optics are laser light signals. It’s light basically that runs through a fiber optic, which is a clear glass fiber, and it has to be at a certain level for the routers to see the light and interpret the data correctly. If the light gets too low, just as if you get a weak flashlight with bad batteries, at a certain point it doesn’t work. If the light level drops too low, the router starts dropping bits and getting errors, and eventually you get loss of signal, and it just doesn’t work at all.… The effect of the splitter is to reduce the strength of the signal, and that may or may not cause a problem, depending on how much the signal is reduced.” A telecommunications company would not, as a rule, use such a splitter on its backbone Internet traffic because of the risk of degraded signal quality. “You want to have as few connections on your main data lines as possible,” Klein will say, “because each connection reduces the signal strength, and a splitter is a connection, and if you can avoid that, all the better.”
Inherently Illegal - Klein will explain that there is no way these activities are legal: “There could not possibly be a legal warrant for this, since according to the Fourth Amendment, warrants have to be specific, ‘particularly describing the place to be searched and the persons or things to be seized.’ It was also a blatant violation of the 1978 Foreign Intelligence Surveillance Act [FISA—see 1978], which calls for specific warrants as required by the Fourth Amendment. This was a massive blind copying of the communications of millions of people, foreign and domestic, randomly mixed together. From a legal standpoint, it does not matter what they claim to throw away later in their secret rooms, the violation has already occurred at the splitter.” [AT&T, 12/10/2002; AT&T, 1/13/2003; AT&T, 1/24/2003; Wired News, 5/22/2006; PBS Frontline, 5/15/2007; Klein, 2009, pp. 37, 119-133]
The Narus STA 6400 - Klein discusses one key piece of equipment in the NSA’s secret room, the Narus STA 6400 (see Late 2003). Narus is a firm that routinely sells its equipment not only to telecom firms such as AT&T, “but also to police, military, and intelligence officials” (see November 13-14, 2003). Quoting an April 2000 article in Telecommunications magazine, Klein writes that the STA 6400 is a group of signal “traffic analyzers that collect network and customer usage information in real time directly from the message.… These analyzers sit on the message pipe into the ISP [Internet Service Provider] cloud rather than tap into each router or ISP device.” Klein quotes a 1999 Narus press release that says its Semantic Traffic Analysis (STA) technology “captures comprehensive customer usage data… and transforms it into actionable information… [it] is the only technology that provides complete visibility for all Internet applications.” The Narus hardware allows the NSA “to look at the content of every data packet going by, not just the addressing information,” Klein will later write.
A 'Dream Machine for a Police State' - Klein later writes of the Narus STA 6400: “It is the dream machine of a police state, one that even George Orwell could not imagine. Not only does it enable the government to see what millions of people are saying and doing every day, but it can build up a database which reveals the connections among social groups—who’s calling and emailing whom. Such a device can easily be turned against all dissident protest groups, and even the Democratic and Republican parties, with devastating effect. And it’s in the hands of the executive power, in total secrecy.” [AT&T, 12/10/2002; AT&T, 1/13/2003; AT&T, 1/24/2003; Wired News, 5/22/2006; Klein, 2009, pp. 37-40] In support of the memo and an ensuing lawsuit against AT&T (see January 31, 2006), Klein will later write: “Despite what we are hearing, and considering the public track record of this administration, I simply do not believe their claims that the NSA’s spying program is really limited to foreign communications or is otherwise consistent with the NSA’s charter or with FISA. And unlike the controversy over targeted wiretaps of individuals’ phone calls, this potential spying appears to be applied wholesale to all sorts of Internet communications of countless citizens.” [Wired News, 4/7/2006]

Entity Tags: National Security Agency, Narus, Mark Klein, Foreign Intelligence Surveillance Act, AT&T

Timeline Tags: Civil Liberties

Jonathan Alter.Jonathan Alter. [Source: Publicity photo via Greater Talent Network]Reporter and political pundit Jonathan Alter writes that President Bush’s attempt to kill the New York Times domestic wiretapping story (see December 15, 2005 and December 6, 2005), which the Times delayed for over a year at the White House’s request, is not an attempt to protect national security, as Bush will say in his response to the article (see December 17, 2005), but “because he knew that it would reveal him as a law-breaker.” Alter continues, “He insists he had ‘legal authority derived from the Constitution and Congressional resolution authorizing force.’ But the Constitution explicitly requires the president to obey the law. And the post-9/11 congressional resolution authorizing ‘all necessary force’ in fighting terrorism was made in clear reference to military intervention. It did not scrap the Constitution and allow the president to do whatever he pleased in any area in the name of fighting terrorism.” Alter is puzzled that Bush felt the need for the program when the 1978 Foreign Intelligence Surveillance Act (see 1978) “allows the government to eavesdrop on its own, then retroactively justify it to the court, essentially obtaining a warrant after the fact.” Alter says that only four of “tens of thousands” of FISA requests have ever been rejected, and, “There was no indication the existing system was slow—as the president seemed to claim in his press conference—or in any way required extra-constitutional action.” He concludes: “[Bush] knew publication would cause him great embarrassment and trouble for the rest of his presidency. It was for that reason—and less out of genuine concern about national security—that George W. Bush tried so hard to kill the New York Times story. …We’re seeing clearly now that Bush thought 9/11 gave him license to act like a dictator, or in his own mind, no doubt, like Abraham Lincoln during the Civil War.” [Newsweek, 12/21/2005]

Entity Tags: Abraham Lincoln, Bush administration (43), National Security Agency, New York Times, George W. Bush, Foreign Intelligence Surveillance Court, Foreign Intelligence Surveillance Act, Jonathan Alter

Timeline Tags: Civil Liberties

Chart showing NSA surveillance network.Chart showing NSA surveillance network. [Source: NSA Watch] (click image to enlarge)The National Security Agency has built a far larger database of information collected from warrantless surveillance of telephone and Internet communications to and from US citizens than the NSA or the Bush administration has acknowledged (see October 2001). On December 15, the New York Times exposed the NSA’s program (see December 15, 2005), which was authorized by President Bush in early 2002 (see Early 2002), but which actually began far earlier (see Spring 2001). The NSA built its database with the cooperation of several major American telecommunications firms (see June 26, 2006), and much of the information was mined directly into the US telecommunications system’s major connections. Many law enforcement and judicial officials question the legality of the program (see May 12, 2006 and December 18, 2005), and many say the program goes beyond the bounds of the Foreign Intelligence Surveillance Act (see 1978). One question is whether the FISA Court, or FISC, can authorize monitoring of international communications that pass through US-based telephonic “switches,” which handle much of the US’s electronic communications traffic. “There was a lot of discussion about the switches” in conversations with FISC, says a Justice Department official. “You’re talking about access to such a vast amount of communications, and the question was, How do you minimize something that’s on a switch that’s carrying such large volumes of traffic? The court was very, very concerned about that.” While Bush and his officials have insisted that the warrantless wiretaps only target people with known links to al-Qaeda, they have not acknowledged that NSA technicials have not only eavesdropped on specific conversations between people with no known links to terrorism, but have combed through huge numbers of electronic communications in search of “patterns” that might point to terrorism suspects. Such “pattern analysis” usually requires court warrants before surveillance can begin, but in many cases, no such warrants have been obtained or even requested. Other, similar data-mining operations, such as the Total Information Awareness program, developed by the Defense Department to track terror suspects (see March 2002), and the Department of Homeland Security’s CAPPS program, which screened airline passengers (see (6:20 a.m.-7:48 a.m.) September 11, 2001), were subjected to intense public scrutiny and outrage, and were publicly scrapped. The Bush administration has insisted that it has no intention of scrapping the NSA’s warrantless wiretapping program, because, as its officials have said, it is necessary to identify and track terrorism suspects and foil terrorist plots before they can be hatched. Administration officials say that FISC is not quick enough to respond to its need to respond to potential terrorist acts. A former technology manager at a major telecommunications company says that after 9/11, the leading telecom firms have been storing information on calling patterns and giving it to the federal government to aid in tracking possible terrorists. “All that data is mined with the cooperation of the government and shared with them, and since 9/11, there’s been much more active involvement in that area,” says the former manager. “If they get content, that’s useful to them too, but the real plum is going to be the transaction data and the traffic analysis. Massive amounts of traffic analysis information—who is calling whom, who is in Osama Bin Laden’s circle of family and friends—is used to identify lines of communication that are then given closer scrutiny.” And, according to a government expert on communications privacy who used to work at the NSA, says that in the last few years, the government has quietly encouraged the telecom firms to rout more international traffic through its US-based switches so it can be monitored. Such traffic is not fully addressed by 1970s-era laws that were written before the onset of modern communications technology; neither does FISA adequately address the issues surrounding that technology. Computer engineer Phil Karn, who works for a major West Coast telecom firm, says access to those switches is critical: “If the government is gaining access to the switches like this, what you’re really talking about is the capability of an enormous vacuum operation to sweep up data.” [New York Times, 12/24/2005]

Entity Tags: US Department of Defense, US Department of Justice, Total Information Awareness, New York Times, US Department of Homeland Security, Computer Assisted Passenger Prescreening System, Bush administration (43), Foreign Intelligence Surveillance Act, Foreign Intelligence Surveillance Court, George W. Bush, National Security Agency, Phil Karn

Timeline Tags: Civil Liberties

In a public speech, former National Security Agency chief Michael Hayden claims that everything the NSA does is with authorization from the White House, specifically the warrantless wiretapping program that spies on US citizens (see Early 2002). “I didn’t craft the authorization,” he says. “I am responding to a lawful order.” Hayden claims that while the NSA continues to use court warrants from the Foreign Intelligence Surveillance Court (FISC), technological advances and terrorist threats have made the law that created and supports FISC, the Foreign Intelligence Surveillance Act of 1978 (see 1978), obsolete. Therefore, the NSA has carried out domestic surveillance operations with or without FISC warrants. Hayden says the warrantless surveillance operations are “operationally more relevant, operationally more effective” than anything FISA can handle. Hayden repeatedly denies, in the face of reams of evidence collected by journalists and others to the contrary, that the NSA is spying on domestic antiwar groups and religious organizations like the Quakers who publicly advocate nonviolence and peace. [Michael Hayden, 1/23/2006]

Entity Tags: Foreign Intelligence Surveillance Court, Al-Qaeda, Foreign Intelligence Surveillance Act, Religious Society of Friends (Quakers), Terrorist Surveillance Program, National Press Club, Bush administration (43), National Security Agency, Michael Hayden, George W. Bush

Timeline Tags: Civil Liberties

In his State of the Union address, President Bush insists that his authority to wiretap Americans’ phones without warrants (see December 15, 2005 and December 18, 2005) is validated by previous administrations’ actions, saying that “previous presidents have used the same constitutional authority I have.” He fails to note that those presidents authorized warrantless wiretaps before court orders were required for such actions (see June 19, 1972 and 1973). Since the Foreign Intelligence Surveillance Act passed (see 1978), no president except Bush has ever defied the law. Law professor David Cole calls Bush’s assertion of authority “either intentionally misleading or downright false.” Fellow law professor Richard Epstein predicts that the Supreme Court will strike down any such assertions, if it ever addresses the issue. “I find every bit of this legal argument disingenuous,” he says. Even many conservatives refuse to support Bush, with columnist George Will calling his arguments “risible” and a “monarchical doctrine” that is “refuted by the plain text of the Constitution.” David Keene, the chairman of the American Conservative Union, says the legal powers claimed by Bush and his officials can be used to justify anything: “Their argument is extremely dangerous.… The American system was set up on the assumption that you can’t rely on the good will of people with power.” Conservative activist Grover Norquist says flatly, “There is no excuse for violating the rule of law.” And former Justice Department official Bruce Fein says Bush and his officials have “a view that would cause the Founding Fathers to weep. The real conservatives are the ones who treasure the original understanding of the Constitution, and clearly this is inconsistent with the separation of powers.” Even former George H. W. Bush official Brent Scowcroft says that Bush’s interpretation of the Constitution is “fundamentally in error.” [Savage, 2007, pp. 203-204]

Entity Tags: David D. Cole, Brent Scowcroft, American Conservative Union, Bruce Fein, Richard Epstein, Grover Norquist, Foreign Intelligence Surveillance Act, David Keene, George Will, George W. Bush

Timeline Tags: Civil Liberties

Retired AT&T technician Mark Klein (see December 15-31, 2005 and July 7, 2009), working with a civil liberties group and a reporter to expose the collusion of AT&T and the National Security Agency in pushing the government’s illegal surveillance program (see Early January 2006 and January 23, 2006 and After), contacts the office of Senator Dianne Feinstein (D-CA) at the advice of Electronic Frontier Foundation lawyer Kevin Bankston. Klein talks to Feinstein’s chief attorney in Washington, DC, Steven Cash. Klein will later write: “I instinctively recoiled at the thought of trying to approach her as my memory of her record told me she was no friend of civil liberties, though she plays one on TV. My instinct was not wrong.” After an initial discussion with Cash, Klein emails him his packet of documentation (see December 31, 2005). On the afternoon of February 3, Cash calls Klein and says he is very interested in his story, though Feinstein’s staff rates the probability of the NSA performing illegal acts at somewhere around “50-50,” according to Klein. Cash promises to get back in touch with Klein on February 6, but fails to do so. Neither Klein nor his attorneys (see Early January 2006) are able to talk to anyone on Feinstein’s staff from here on. Klein later writes: “The silent message was unmistakable: the senator did not want to sully her political skirts by having contact with a whistleblower. And this was a foretaste of her behavior and voting for the next two and a half years. At every turn, she was there pushing for immunity for the telecom companies in the Senate Intelligence and Judiciary Committees; peddling her toothless restatement of the ‘exclusive means’ clause of FISA [the Foreign Intelligence Surveillance Act—see 1978] as a substitute for any confrontation with the president over ongoing illegal NSA spying; ushering former NSA Director Michael Hayden through his nomination for CIA director; and backing Michael Mukasey as a clone replacement for the resigning Attorney General [Alberto] Gonzales. Moreover, this ultimately turned out to be the attitude of virtually the entire Democratic Party leadership, not to mention the Republicans.” Klein will explain that FISA’s “exclusive means” clause states that FISA should be the “exclusive means” for the federal government to conduct surveillance. Congress’s duty under the law was, Klein will state, to enforce the law against President Bush, “who openly flouted the law.” Instead, Klein will claim, Feinstein uses the “exclusive means” clause to protect the Bush administration and the telecom firms. [Klein, 2009, pp. 57-60]

Entity Tags: Electronic Frontier Foundation, AT&T, Dianne Feinstein, Mark Klein, National Security Agency, Steven Cash, Kevin Bankston

Timeline Tags: Civil Liberties

The Al Haramain Islamic Foundation, a now-defunct Saudi Arabian charitable organization that once operated in Oregon, sues the Bush administration [Associated Press, 2/28/2006] over what it calls illegal surveillance of its telephone and e-mail communications by the National Security Agency, the so-called Terrorist Surveillance Program. The lawsuit may provide the first direct evidence of US residents and citizens being spied upon by the Bush administration’s secret eavesdropping program, according to the lawsuit (see December 15, 2005). According to a source familiar with the case, the NSA monitored telephone conversations between Al Haramain’s director, then in Saudi Arabia, and two US citizens working as lawyers for the organization and operating out of Washington, DC. The lawsuit alleges that the NSA violated the Foreign Intelligence Surveillance Act (see 1978), the US citizens’ Fourth Amendment rights, and the attorney-client privilege. FISA experts say that while they are unfamiliar with the specifics of this lawsuit, they question whether a FISA judge would have allowed surveillance of conversations between US lawyers and their client under the circumstances described in the lawsuit. Other lawsuits have been filed against the Bush administration over suspicions of illegal government wiretapping, but this is the first lawsuit to present classified government documents as evidence to support its contentions. The lawsuit alleges that the NSA illegally intercepted communications between Al Haramain officer Suliman al-Buthe in Saudi Arabia, and its lawyers Wendell Belew and Asim Ghafoor in Washington. One of its most effective pieces of evidence is a document accidentally turned over to the group by the Treasury Department, dated May 24, 2004, that shows the NSA did indeed monitor conversations between Al Haramain officials and lawyers. When Al Haramain officials received the document in late May, 2004, they gave a copy to the Washington Post, whose editors and lawyers decided, under threat of government prosecution, to return the document to the government rather than report on it (see Late May, 2004). [Washington Post, 3/2/2006; Washington Post, 3/3/2006] Lawyer Thomas Nelson, who represents Al Haramain and Belew, later recalls he didn’t realize what the organization had until he read the New York Times’s December 2005 story of the NSA’s secret wiretapping program (see December 15, 2005). “I got up in the morning and read the story, and I thought, ‘My god, we had a log of a wiretap and it may or may not have been the NSA and on further reflection it was NSA,’” Nelson will recall. “So we decided to file a lawsuit.” Nelson and other lawyers were able to retrieve one of the remaining copies of the document, most likely from Saudi Arabia, and turned it over to the court as part of their lawsuit. [Wired News, 3/5/2007]
Al Haramain Designated a Terrorist Organization - In February 2004, the Treasury Department froze the organization’s US financial assets pending an investigation, and in September 2004, designated it a terrorist organization, citing ties to al-Qaeda and alleging financial ties between Al Haramain and the 1998 bombings of two US embassies in Africa (see 10:35-10:39 a.m., August 7, 1998). The organization was disbanded by the Saudi Arabian government in June 2004 and folded into an “umbrella” private Saudi charitable organization, the Saudi National Commission for Relief and Charity Work Abroad (see March 2002-September 2004). In February 2005, the organization was indicted for conspiring to funnel money to Islamist fighters in Chechnya. The charges were later dropped. [US Treasury Department, 9/9/2004; Washington Post, 3/2/2006] The United Nations has banned the organization, saying it has ties to the Taliban. [United Nations, 7/27/2007]
Challenging Designation - In its lawsuit, Al Haramain is also demanding that its designation as a terrorist organization be reversed. It says it can prove that its financial support for Chechen Muslims was entirely humanitarian, with no connections to terrorism or violence, and that the Treasury Department has never provided any evidence for its claims that Al Haramain is linked to al-Qaeda or has funded terrorist activities. [Associated Press, 8/6/2007] The lawsuit also asks for $1 million in damages, and the unfreezing of Al Haramain’s US assets. [Associated Press, 8/5/2007]
Administration Seeks to Have Lawsuit Dismissed - The Bush administration will seek to have the lawsuit thrown out on grounds of national security and executive privilege (see Late 2006-July 2007, Mid-2007).

Entity Tags: Wendell Belew, Suliman al-Buthe, Taliban, Washington Post, United Nations, Saudi National Commission for Relief and Charity Work Abroad, US Department of the Treasury, National Security Agency, Thomas Nelson, Foreign Intelligence Surveillance Act, Al Haramain Islamic Foundation, Al-Qaeda, Al Haramain Islamic Foundation (Oregon branch), Foreign Intelligence Surveillance Court, Asim Ghafoor, Bush administration (43)

Timeline Tags: Civil Liberties

USA Today headline.USA Today headline. [Source: CBS News]USA Today reports that “[t]he National Security Agency (NSA) has been secretly collecting the phone call records of tens of millions of Americans, using data provided by the nation’s three biggest telecommunications providers, AT&T, Verizon, and BellSouth,” according to “people with direct knowledge of the arrangement.” None of the sources would allow USA Today to identify them by name, job, or affiliation. The USA Today story claims that the NSA program “does not involve the NSA listening to or recording conversations,” but does use “the data to analyze calling patterns in an effort to detect terrorist activity,” according to their sources. One source says that the NSA program is compiling “the largest database ever assembled in the world,” with the goal of creating “a database of every call ever made” within US borders. President Bush has said that the NSA program is focused exclusively on international calls, and for the calls to be recorded, “one end of the communication must be outside the United States.” However, this is now shown not to be the case (see January 16, 2004). A US intelligence official says that the NSA program is not recording the actual phone calls themselves, but is collecting what he calls “external” data about the communications to allow the agency to emply “social network analysis” for insight into how terrorist networks are connected with one another. Another large telecommunications company, Qwest, has refused to help the NSA eavesdrop on customer calls (see February 2001, February 2001 and Beyond, and February 27, 2001). USA Today’s sources say that the NSA eavesdropping program began after the 9/11 attacks, a claim that is not bolstered by the facts (see 1997, February 27, 2000, February 27, 2000, December 2000, February 2001, February 2001, February 2001 and Beyond, February 2001, Spring 2001, April 2001, April 4, 2001, July 2001, Before September 11, 2001, and Early 2002). The sources say that the three companies agreed to provide “call-detail records,” lists of their customers’ calling histories, and updates, which would allow the agency to track citizens’ calling habits. In return, the sources say, the NSA offered to pay the firms for their cooperation. After the three firms agreed to help the agency, USA Today writes, “the NSA’s domestic program began in earnest” (see After September 11, 2001, After September 11, 2001, October 2001, September 2002, and Spring 2004). NSA spokesman Don Weber says the agency is operating strictly “within the law,” but otherwise refuses to comment. Former US prosecutor Paul Butler says that the Foreign Intelligence Surveillance Act (FISA), which governs surveillance operations by US intelligence agencies, “does not prohibit the government from doing data mining” (see 1978). White House press spokesman Dana Perino says, “There is no domestic surveillance without court approval,” and all surveillance activities undertaken by government agencies “are lawful, necessary, and required for the pursuit of al-Qaeda and affiliated terrorists.” All government-sponsored intelligence activities “are carefully reviewed and monitored,” she adds, and says that “all appropriate members of Congress have been briefed on the intelligence efforts of the United States” (see October 11, 2001 and October 25, 2001 and November 14, 2001). Don Weber, a senior spokesman for the NSA, refuses to discuss the agency’s operations, saying: “Given the nature of the work we do, it would be irresponsible to comment on actual or alleged operational issues; therefore, we have no information to provide. However, it is important to note that NSA takes its legal responsibilities seriously and operates within the law.” All three firms released similar comments saying that they would not discuss “matters of national security,” but were complying with the law in their alleged cooperation with the NSA. The Electronic Frontier Foundation (EFF) is suing AT&T for what it calls its complicity in the NSA’s “illegal” domestic surveillance program (see January 31, 2006). [USA Today, 5/11/2006]

Entity Tags: Verizon Communications, USA Today, Qwest, Paul Butler, Foreign Intelligence Surveillance Act, Jane Harman, AT&T, BellSouth, National Security Agency, Dana Perino, Don Weber

Timeline Tags: Civil Liberties

Civil liberties lawyer and columnist Glenn Greenwald states that the recent Supreme Court ruling in Hamdan v. Rumsfeld (see June 30, 2006), finding that the Bush administration’s Guantanamo Bay military commissions violate both federal law and the Geneva Conventions, also proves that the NSA’s warrantless wiretapping program is illegal (see December 15, 2005). “To arrive at its decision,” Greenwald writes, “the Court emphatically rejected the administration’s radical theories of executive power, and in doing so, rendered entirely discredited the administration’s only defenses for eavesdropping on Americans without the warrants required by law. Actual compliance with the Court’s ruling, then, compels the administration to immediately cease eavesdropping on Americans in violation of FISA,” the Foreign Intelligence Surveillance Act (see 1978). “If the administration continues these programs now, then they are openly defying the Court and the law with a brazeness and contempt for the rule of law that would be unprecedented even for them.” Greenwald notes that FISA prohibits any surveillance of American citizens without judicial approval and oversight. The Bush administration has already admitted to conducting just such surveillance (see December 17, 2005 and December 21, 2005), and President Bush has even stated his intention to expand the program (see December 19, 2005). The Justice Department and a number of administration officials have attempted to claim the NSA surveillance program is both legal and necessary (see December 19, 2005, December 19, 2005, December 21-22, 2005, and Early 2006); Greenwald writes that the Hamdan decision “decimated” those claims, a conclusion shared by a number of legal experts (see January 9, 2006). Moreover, he writes, there is no remaining excuse for Democratic senators not to endorse Senator Russ Feingold’s resolution to censure Bush for violating FISA (see March 12, 2006 and After). The argument advanced by, among others, Senator Barack Obama (D-IL), that Bush believed he was complying with the law because his lawyers told him he was in compliance, is no longer relevant in light of Hamdan, Greenwald argues. “[T]here is no longer any good faith basis left for violating FISA. Ongoing warrantless eavesdropping can only be ordered by the president with a deliberate intent to break the law. After Hamdan, there are no more excuses left for the president to violate FISA, and there is therefore no more excuse left for Democratic senators to refuse to take a stand with Sen. Feingold against the administration’s lawbreaking.” Bush has two clear choices, Greenwald writes: either to comply with FISA or openly defy the Supreme Court. “If we are a country that continues to operate under the rule of law, compliance with the Supreme Court’s ruling compels the immediate cessation of the president’s warrantless eavesdropping program, as well as what are undoubtedly the other, still-secret programs prohibited by law but which have been justified by these same now-rejected theories of unlimited executive power. Put simply, after Hamdan, there are no more excuses left for the president’s refusal to comply with the law.” [Crooks and Liars, 7/8/2006]

Entity Tags: Geneva Conventions, Barack Obama, Bush administration (43), Foreign Intelligence Surveillance Act, Glenn Greenwald, US Department of Justice, US Supreme Court, George W. Bush, National Security Agency

Timeline Tags: Civil Liberties

Federal district court judge Anna Diggs Taylor rules that the NSA’s warrantless wiretapping program (see Early 2002) is unconstitutional and orders it ended. She amends her ruling to allow the program to continue while the Justice Department appeals her decision. The decision is a result of a lawsuit filed by the American Civil Liberties Union (ACLU) and other civil liberties groups. Taylor rules that the NSA program violates US citizens’ rights to privacy and free speech, the Constitutional separation of powers among the three branches of government, and the Foreign Intelligence Surveillance Act (see 1978). Taylor writes: “It was never the intent of the framers to give the president such unfettered control, particularly where his actions blatantly disregard the parameters clearly enumerated in the Bill of Rights. There are no hereditary Kings in America and no powers not created by the Constitution. So all ‘inherent powers’ must derive from that Constitution.” [Verdict in ACLU et al v. NSA et al, 8/17/2006 pdf file; Washington Post, 8/18/2006] The program “violates the separation of powers doctrine, the Administrative Procedures Act, the First and Fourth amendments to the United States Constitution, the FISA and Title III,” Taylor writes, and adds, “[T]he president of the United States… has undisputedly violated the Fourth in failing to procure judicial orders.” [CNN, 8/17/2006]
Judge Lets One Portion Stand - Taylor rejects one part of the lawsuit that seeks information about the NSA’s data mining program (see October 2001), accepting the government’s argument that to allow that portion of the case to proceed would reveal state secrets (see March 9, 1953). Other lawsuits challenging the program are still pending. Some legal scholars regard Taylor’s decision as poorly reasoned: national security law specialist Bobby Chesney says: “Regardless of what your position is on the merits of the issue, there’s no question that it’s a poorly reasoned decision. The opinion kind of reads like an outline of possible grounds to strike down the program, without analysis to fill it in.” The White House and its Republican supporters quickly attack Taylor, who was appointed to the bench by then-President Jimmy Carter, as a “liberal judge” who is trying to advance the agenda of Congressional Democrats and “weaken national security.” For instance, Senator Mike DeWine (R-OH) says that halting the program “would hamper our ability to foil terrorist plots.” [Washington Post, 8/18/2006]
Democrats, Civil Libertarians Celebrate Ruling - But Democrats defend the ruling. For instance, Senator John Kerry (D-MA) says the ruling provides a much-needed check on the unfettered power of the Bush White House. “[N]o one is above the law,” says Kerry. [Washington Post, 8/18/2006] Lawyers for some of the other cases against the NSA and the Bush administration laud the decision as giving them vital legal backing for their own court proceedings. “We now have a ruling on the books that upholds what we’ve been saying all along: that this wiretapping program violates the Constitution,” says Kevin Bankston, who represents the Electronic Frontier Foundation (EFF) in its class-action case against AT&T for its role in the NSA’s surveillance program (see January 31, 2006). [Washington Post, 8/18/2006] Legal expert and liberal commentator Glenn Greenwald writes that Taylor’s ruling “does not, of course, prohibit eavesdropping on terrorists; it merely prohibits illegal eavesdropping in violation of FISA. Thus, even under the court’s order, the Bush administration is free to continue to do all the eavesdropping on terrorists it wants to do. It just has to cease doing so using its own secretive parameters, and instead do so with the oversight of the FISA court—just as all administrations have done since 1978, just as the law requires, and just as it did very recently when using surveillance with regard to the [British] terror plot. Eavesdropping on terrorists can continue in full force. But it must comply with the law.” Greenwald writes: “[T]he political significance of this decision cannot be denied. The first federal court ever to rule on the administration’s NSA program has ruled that it violates the constitutional rights of Americans in several respects, and that it violates criminal law. And in so holding, the court eloquently and powerfully rejected the Bush administration’s claims of unchecked executive power in the area of national security.” [Salon, 8/17/2006]
White House Refuses to Comply - The Bush administration refuses to comply with Taylor’s ruling, asserting that the program is indeed legal and a “vital tool” in the “war on terrorism.” It will quickly file an appeal, and law professors on both sides of the issue predict that Taylor’s ruling will be overturned. [Savage, 2007, pp. 206]
Lawsuit Ends with White House 'Compromise' - The lawsuit will end when the White House announces a “compromise” between the wiretapping program and FISC (see January 17, 2007).

Entity Tags: John Kerry, Kevin Bankston, Mike DeWine, US Department of Justice, Peter Hoekstra, Glenn Greenwald, National Security Agency, George W. Bush, James Earl “Jimmy” Carter, Jr., Foreign Intelligence Surveillance Act, Alberto R. Gonzales, American Civil Liberties Union, AT&T, Anna Diggs Taylor, Bush administration (43), Bobby Chesney, Foreign Intelligence Surveillance Court, Electronic Frontier Foundation

Timeline Tags: Civil Liberties

The Protect America Act (PAA) (see August 5, 2007), an amendment to the Foreign Intelligence Surveillance Act (FISA—see 1978), is introduced in Congress. With limited debate and no committee hearings, it passes both houses with substantial majorities. [US Senate, 8/5/2007; Boston Globe, 8/6/2007; House Judiciary Committee, 9/18/2007 pdf file] Congressional Democrats quickly capitulate on the bill, submitting to what the Washington Post later calls “a high-pressure campaign by the White House to change the nation’s wiretap law, in which the administration capitalized on Democrats’ fears of being branded weak on terrorism and on Congress’s desire to act on the issue before its August recess.” [Washington Post, 8/5/2007] Indeed, one Republican senator, Trent Lott, warns during the initial debate that lawmakers should pass the law quickly and get out of Washington before they could be killed in a terrorist attack (see August 2, 2007). McConnell tells the Senate, “Al-Qaeda is not going on vacation this month.” And Democrat Joseph Lieberman (D-CT), a supporter of the bill, told his colleagues: “We’re at war. The enemy wants to attack us. This is not the time to strive for legislative perfection.” [Slate, 8/6/2007]
Some Democrats Unhappy - One Democratic lawmaker responds angrily: “There are a lot of people who felt we had to pass something. It was tantamount to being railroaded.” Many House Democrats feel betrayed by the White House; Democratic leaders had reached what they believed was a deal on the bill with the Director of National Intelligence, Mike McConnell, only to have the White House throw out the deal and present a new list of conditions at the last minute. Both McConnell and the White House deny that any such deal was reached. Jan Schakowsky (D-IL), a member of the House Intelligence Committee, says, “I think the White House didn’t want to take ‘yes’ for an answer from the Democrats.” Representative Jerrold Nadler (R-NY) says lawmakers were “stampeded by fear-mongering and deception” into voting for the bill. Fellow House Democrat Jane Harman (D-CA) warns that the PAA will lead to “potential unprecedented abuse of innocent Americans’ privacy.” [Washington Post, 8/5/2007] The ACLU’s Caroline Fredrickson has a succinct explanation of why the Democrats folded so quickly: “Whenever the president says the word terrorism, they roll over and play dead.” [Slate, 8/6/2007]
AT&T Whistleblower: Democratic Leadership Colluded in Passing PAA - AT&T whistleblower Mark Klein (see July 7, 2009 and December 15-31, 2005) will later write that the Democrats played a far more active role in getting the PAA passed than others acknowledge. He will quote a 2008 column by liberal civil liberties advocate Glenn Greenwald, who will write: “[I]n 2006, when the Congress was controlled by [then-Senate Majority Leader] Bill Frist [R-TN] and [then-House Speaker] Denny Hastert [R-IL], the administration tried to get a bill passed legalizing warrantless eavesdropping and telecom amnesty, but was unable. They had to wait until the Congress was controlled by [House Majority Leader] Steny Hoyer [D-MD], [House Speaker] Nancy Pelosi [D-CA], and [Senate Majority Leader] Harry Reid [D-NV] to accomplish that.” According to Klein, once the Democrats took control of Congress in January 2007, they engaged in “pure theater, posturing as opponents of the illegal NSA program while seeking a way to protect the president.” The few principled Democrats to actively oppose the legislation, such as Senator Christopher Dodd (D-CT), were, Klein will write, “hamstrung by their own leadership.” The PAA passage was accompanied by refusals from the Democratic leaders of “the relevant Intelligence and Judiciary Committees, which were now led by Democrats such as [John D.] Rockefeller, [Dianne] Feinstein (see February 1-6, 2006), and [Patrick] Leahy in the Senate, and John Conyers and Sylvestre Reyes in the House,” who “quickly decided not to launch any serious investigations into the NSA spying.” Klein will later add that at the time of the PAA passage, he was unaware of how thoroughly Democrats had been briefed on the NSA program (see October 1, 2001, October 11, 2001, October 25, 2001 and November 14, 2001, July 17, 2003, and March 10, 2004), “and thus were in on the secret but took no action to stop it.” [Salon, 6/19/2008; Klein, 2009, pp. 86-87]

Entity Tags: Trent Lott, Mike McConnell, Protect America Act, Joseph Lieberman, Mitch McConnell, Jane Harman, Jerrold Nadler, Caroline Fredrickson, Bush administration (43), Jan Schakowsky, House Intelligence Committee

Timeline Tags: Civil Liberties

Mitch McConnell.Mitch McConnell. [Source: US Senate]President Bush signs the controversial Protect America Act (PAA) into law. The bill, which drastically modifies the Foreign Intelligence Surveillance Act (FISA) of 1978 (see 1978), was sponsored by two Senate Republicans, Mitch McConnell (R-KY) and Christopher Bond (R-MO), but written by the Bush administration’s intelligence advisers. [US Senate, 8/5/2007; Washington Post, 8/5/2007] It passed both houses of Congress with little debate and no hearings (see August 1-4, 2007). “This more or less legalizes the NSA [domestic surveillance] program,” says Kate Martin, director of the Center for National Security Studies. [New York Times, 8/6/2007] Slate’s Patrick Radden Keefe adds ominously, “The Foreign Intelligence Surveillance Act is now dead, and it’s never coming back.” [Slate, 8/6/2007] The PAA expires in six months, the only real concession Congressional Democrats were able to secure. Though the Bush administration and its allies in Congress insist that the law gives the government “the essential tools it needs” to conduct necessary surveillance of foreign-based terrorists while protecting Americans’ civil liberties, many Democrats and civil liberties organizations say the bill allows the government to wiretap US residents in communication with overseas parties without judiciary or Congressional oversight. Bush calls the bill “a temporary, narrowly focused statute to deal with the most immediate shortcomings in the law” that needs to be expanded and made permanent by subsequent legislation. The administration says that the lack of judiciary oversight in the new law will be adequately covered by “internal bureaucratic controls” at the National Security Agency. [Associated Press, 8/5/2007; Washington Post, 8/5/2007]
Reining in FISA - The PAA allows FISA to return “to its original focus on protecting the rights of Americans, while not acting as an obstacle to conducting foreign intelligence surveillance on foreign targets located overseas.” Before the PAA, the White House says, FISA created unnecessary obstacles in allowing US intelligence to “gain real-time information about the intent of our enemies overseas,” and “diverted scarce resources that would be better spent safeguarding the civil liberties of people in the United States, not foreign terrorists who wish to do us harm.” The PAA no longer requires the government to obtain FISA warrants to monitor “foreign intelligence targets located in foreign countries” who are contacting, or being contacted by, US citizens inside US borders. FISA will continue to review the procedures used by US intelligence officials in monitoring US citizens and foreign contacts by having the attorney general inform the FISA Court of the procedures used by the intelligence community to determine surveillance targets are outside the United States.”
Allows Third Parties to Assist in Surveillance, Grants Immunity - The PAA also allows the director of national intelligence and the attorney general to secure the cooperation of “third parties,” particularly telecommunications firms and phone carriers, to “provide the information, facilities, and assistance necessary to conduct surveillance of foreign intelligence targets located overseas.” It provides these firms with immunity from any civil lawsuits engendered by such cooperation.
Short Term Legislation - The White House says that Congress must pass further legislation to give telecommunications firms permanent and retroactive immunity against civil lawsuits arising from their cooperation with the government’s domestic surveillance program. [White House, 8/6/2006]
Temporary Suspension of the Constitution? - Representative Rush Holt (D-NJ), a member of the House Intelligence Committee, says: “I’m not comfortable suspending the Constitution even temporarily. The countries we detest around the world are the ones that spy on their own people. Usually they say they do it for the sake of public safety and security.” [Washington Post, 8/5/2007]

Entity Tags: Christopher (“Kit”) Bond, National Security Agency, Foreign Intelligence Surveillance Act, George W. Bush, Foreign Intelligence Surveillance Court, Mitch McConnell, Al-Qaeda, Terrorist Surveillance Program, Kate Martin, Patrick Radden Keefe, Rush Holt, Protect America Act

Timeline Tags: Civil Liberties

Director of National Intelligence Michael McConnell says that the 9/11 hijackers could not be monitored in the US because they did not commit any crimes. He says in a speech: “[I]f Mohamed Atta had been in Pakistan and we were tracking him, some way to track him—he went to Turkey, went to Europe, got over to Canada, we’d track him as foreign intelligence target, and he crosses into the United States, he’s now a US person; he gets all of the rights and privileges that you get. He’s invisible to your intelligence community. As long as he doesn’t break the law, law enforcement can’t conduct surveillance because they don’t have a probable cause. Al-Qaeda recognized that and that is why 9/11 happened in my view.” [Director of National Intelligence, 1/17/2008 pdf file] The 9/11 hijackers committed various offenses for which they could have been arrested in the US, such as lying on visa application forms (see August 29, 2001), overstaying their visas (see January 18, 2001, May 20, 2001 and January 10, 2001), driving without a license (note: a warrant for Mohamed Atta’s arrest was even issued in the summer of 2001—see June 4, 2001), and having a known role in blowing up the USS Cole, thereby murdering 17 US servicemen (see Around October 12, 2000). The Foreign Intelligence Surveillance Act was also specifically designed so that the FBI and other agencies could monitor agents of foreign powers in the US even if they did not commit a crime (see 1978).

Entity Tags: Foreign Intelligence Surveillance Act, Federal Bureau of Investigation, Mike McConnell, Mohamed Atta, Al-Qaeda

Timeline Tags: Complete 911 Timeline, 9/11 Timeline

President Bush again demands that Congress reinstate the Protect America Act (PAA) (see August 5, 2007), with new provisions providing the nation’s telecommunications industry retroactive legal immunity from criminal and civil prosecution for possible crimes committed in the administration’s domestic wiretapping program (see May 12, 2006). Bush says that without such immunity, US telecom firms will be reluctant to help the administration spy on potential terrorists. The PAA is a central part of the legislative update of the 1978 Foreign Intelligence Surveillance Act (FISA) (see 1978) which mandates that any wiretaps must receive the approval of the FISA Court. Bush insists that he will veto an update to FISA without the immunity provisions, even as he asserts the country is at risk of further terrorist attacks without the FISA updates, and after letting the PAA lapse without signing an extension of the legislation into law. However, Bush blames Congress for not passing the FISA update with an immunity clause: “Congress’ failure to pass this legislation was irresponsible,” he says. “In other words, the House’s refusal to act is undermining our ability to get cooperation from private companies. And that undermines our efforts to protect us from terrorist attack.” He explains why the Democrats don’t want his bill: “House leaders are blocking this legislation, and the reason can be summed up in three words: class action lawsuits.” A spokesman for Congressional Democrats retorts: “They cannot have it both ways. If it is true that the expiration of the [surveillance law] has caused gaps in intelligence, then it was irresponsible for the president and Congressional Republicans to openly oppose an extension of the law.”
Democrats Put Trial Lawyers Before National Security? - Bush says: “The Senate bill would prevent plaintiffs’ attorneys from suing companies believed to have helped defend America after the 9/11 attacks. More than 40 of these lawsuits have been filed, seeking hundreds of billions of dollars in damages from these companies.… It is unfair and unjust to threaten these companies with financial ruin only because they are believed to have done the right thing and helped their country.” The lawsuits (see June 26, 2006) seek damages based upon violations of FISA, the Wiretap Act, the Communications Act, and the Stored Communications Act, among other laws. Bob Edgar of Common Cause says neither money nor punishment is the issue: “Innocent Americans who have had their rights violated by the telecoms deserve their day in court. If these companies did nothing wrong, then they have nothing to fear.” Bush is apparently attempting to refocus the issue as an attack on trial lawyers—traditionally a group supportive of Democrats—in saying: “Members of the House have a choice to make: They can empower the trial bar—or they can empower the intelligence community. They can help class action trial lawyers sue for billions of dollars—or they can help our intelligence officials protect millions of lives. They can put our national security in the hands of plaintiffs’ lawyers—or they can entrust it to the men and women of our government who work day and night to keep us safe.” House member John Conyers (D-MI) calls such characterizations “irresponsible” and “inaccurate.” [CBS News, 2/23/2008]

Entity Tags: Protect America Act, John Conyers, Foreign Intelligence Surveillance Court, Mike McConnell, George W. Bush, Michael Mukasey, Common Cause, Bob Edgar, Foreign Intelligence Surveillance Act, Dana Rohrbacher

Timeline Tags: Civil Liberties

A new investigation modeled on the Church Committee, which investigated government spying (see April, 1976) and led to the passage of the Foreign Intelligence Surveillance Act (FISA - see 1978) in the 1970s, is proposed. The proposal follows an amendment to wiretapping laws that immunizes telecommunications companies from prosecution for illegally co-operating with the NSA. A detailed seven-page memo is drafted outlining the proposed inquiry by a former senior member of the original Church Committee.
Congressional Investigative Body Proposed - The idea is to have Congress appoint an investigative body to discover the full extent of what the Bush White House did in the war on terror that may have been illegal and then to implement reforms aimed at preventing future abuses—and perhaps to bring accountability for wrongdoing by Bush officials. Key issues to investigate include:
bullet The NSA’s domestic surveillance activities;
bullet The CIA’s use of rendition and torture against terrorist suspects;
bullet The U.S. government’s use of military assets—including satellites, Pentagon intelligence agencies, and U2 surveillance planes—for a spying apparatus that could be used against people in the US; and
bullet The NSA’s use of databases and how its databases, such as the Main Core list of enemies, mesh with other government lists, such as the no-fly list. A deeper investigation should focus on how these lists feed on each other, as well as the government’s “inexorable trend towards treating everyone as a suspect,” says Barry Steinhardt, the director of the Program on Technology and Liberty for the American Civil Liberties Union (ACLU).
Proposers - The proposal is a product of talks between civil liberties advocates and aides to Democratic leaders in Congress. People consulted about the committee include aides to House Speaker Nancy Pelosi (D-CA) and Judiciary Committee chairman John Conyers (D-MI). The civil liberties organizations include the ACLU, the Center for Democracy and Technology, and Common Cause. However, some Democrats, such as Pelosi, Senate Intelligence Committee chairman John D. Rockefeller (D-WV), and former House Intelligence chairwoman Jane Harman (D-CA), approved the Bush administration’s operations and would be made to look bad by such investigation.
Investigating Bush, Clinton Administrations - In order that the inquiry not be called partisan, it is to have a scope going back beyond the start of the Bush administration to include the administrations of Bill Clinton, George H. W. Bush, and Ronald Reagan. The memo states that “[t]he rise of the ‘surveillance state’ driven by new technologies and the demands of counter-terrorism did not begin with this administration.” However, the author later says in interviews that the scope of abuse under George W. Bush would likely be an order of magnitude greater than under preceding presidents.
'Imagine What We Don't Know' - Some of the people involved in the discussions comment on the rationale. “If we know this much about torture, rendition, secret prisons, and warrantless wiretapping despite the administration’s attempts to stonewall, then imagine what we don’t know,” says a senior Democratic congressional aide who is familiar with the proposal. Steinhardt says: “You have to go back to the McCarthy era to find this level of abuse. Because the Bush administration has been so opaque, we don’t know [the extent of] what laws have been violated.” “It’s not just the ‘Terrorist Surveillance Program,’” says Gregory Nojeim from the Center for Democracy and Technology. “We need a broad investigation on the way all the moving parts fit together. It seems like we’re always looking at little chunks and missing the big picture.”
Effect on Presidential Race Unknown - It is unknown how the 2008 presidential race may affect whether the investigation ever begins, although some think that Democratic candidate Barack Obama (D-IL), said to favor open government, might be more cooperative with Congress than his Republican opponent John McCain (R-AZ). However, a participant in the discussions casts doubt on this: “It may be the last thing a new president would want to do.” [Salon, 7/23/2008]

Entity Tags: Nancy Pelosi, Gregory Nojeim, Center for Democracy and Technology, American Civil Liberties Union, Barry Steinhardt, Bush administration (43), Common Cause, Jane Harman

Timeline Tags: Civil Liberties, Inslaw and PROMIS

President Bush signs the FISA Amendments Act of 2008 (FAA), a revamping and expansion of the original Foreign Intelligence Surveillance Act (see 1978). The legislation passed the House by a sweeping 293 to 129 votes, with most Democratic Congressional leaders supporting it over the opposition of the more liberal and civil liberties-minded Democrats. Republicans were almost unanimously supportive of the bill. Though Democratic Senators Russell Feingold (D-WI) and Christopher Dodd (D-CT) managed to delay the bill’s passage through the Senate, their attempt to modify the bill was thwarted by a 66-32 margin. (Dodd credits AT&T whistleblower Mark Klein (see December 15-31, 2005 and July 7, 2009) as one of the very few people to make the public aware of the illegal NSA wiretapping program, which the FISA amendment would protect. Without Klein, Dodd states, “this story might have remained secret for years and years, causing further erosion of our rights.”) Senator Barack Obama (D-IL), the party’s presumptive presidential nominee, gave his qualified support to the bill, stating: “Given the legitimate threats we face, providing effective intelligence collection tools with appropriate safeguards is too important to delay. So I support the compromise, but do so with a firm pledge that as president, I will carefully monitor the program.” Obama had opposed an earlier Senate version that would have given “blanket immunity” to the telecommunications companies for their participation in the illegal NSA wiretapping program (see December 15, 2005). House Speaker Nancy Pelosi (D-CA), who organized Democratic support for the bill in the House, said that she supported the bill primarily because it rejects Bush’s argument that a wartime chief executive has the “inherent authority” to conduct some surveillance activity he considers necessary to fight terrorism. It restores the legal notion that the FISA law is the exclusive rule on government spying, she said, and added: “This is a democracy. It is not a monarchy.” Feingold, however, said that the bill granted “retroactive immunity to the telecommunications companies that may have engaged in President Bush’s illegal wiretapping program.” The amendments restore many of the provisions of the expired Protect America Act (PAA—see August 5, 2007) that drastically modify the original FISA legislation and grant the government broad new surveillance powers. Like the PAA, the FAA grants “third parties” such as telecommunications firms immunity from prosecution for engaging in illegal surveillance of American citizens if they did so in partnership with government agencies such as the National Security Agency (NSA). [Washington Post, 6/20/2008; CNN, 6/26/2008; US Senate, 7/9/2008; White House, 7/10/2008; Klein, 2009, pp. 95-97] Senate Majority Leader Harry Reid (D-NV) actually refused to honor a “hold” placed on the bill by Dodd, a highly unusual move. Klein will later note that Reid has in the past always honored holds placed on legislation by Republicans, even if Democrats were strongly supportive of the legislation being “held.” Klein will write that Pelosi crafted a “showpiece” FISA bill without the immunity provisions, garnering much praise for her from civil liberties organizations; however, Pelosi’s colleague House Majority Leader Steny Hoyer (D-MD) had secretly worked with the White House to craft a bill that preserved immunity for telecoms, and on June 10, Pelosi “rammed” that bill through the House. The final bill actually requires the judiciary to dismiss lawsuits brought against telecom firms if those firms can produce evidence that they had worked in collusion with the NSA. Feingold later observes that the final bill is not a “compromise, it is a capitulation.” [Klein, 2009, pp. 101-103] Klein will write that Democrats and Republicans have worked together to “unw[ind] one of the main reforms of the post-Watergate era and accepted the outrageous criminal rationalizations of [President] Nixon himself.” Klein will quote Nixon as saying, “If the president does it, that means it’s not illegal” (see April 6, 1977), and will say that is “the essence of the FISA ‘compromise’” and turned Congress into the White House’s “rubber stamp.… It is the twisted judicial logic of a dictatorship.” [Klein, 2009, pp. 107]

Entity Tags: Nancy Pelosi, Foreign Intelligence Surveillance Act, FISA Amendments Act of 2008, Christopher Dodd, Barack Obama, George W. Bush, Mark Klein, Russell D. Feingold, Richard M. Nixon, Harry Reid, Steny Hoyer, National Security Agency, Protect America Act

Timeline Tags: Civil Liberties

Judge Vaughn Walker rules that “sufficient facts” exist to keep alive a lawsuit brought by the defunct Islamic charity Al Haramain, which alleges it was subjected to illegal, warrantless wiretapping by the US government (see February 28, 2006). The lawsuit centers on a Top Secret government document accidentally disclosed to plaintiffs’ lawyers Wendell Belew and Asim Ghafoo that allegedly proves the claim of illegal wiretapping; previous court rulings forced Belew and Ghafoo to return the document to the government and prohibited its use in the lawsuit. The lawsuit is widely viewed as a test case to decide in court whether the Bush administration abused its power by authorizing a secret domestic spying program (see Spring 2004 and December 15, 2005). Jon Eisenberg, the lawyer for Belew and Ghafoo, says it does not matter whether the case pertains to the Bush administration or the incoming Obama administration. “I don’t want President Obama to have that power any more than I do President Bush,” he says. Because the lawsuit contains sufficient evidence even without the Top Secret document, Walker rules, it can continue. “The plaintiffs have alleged sufficient facts to withstand the government’s motion to dismiss,” he writes. Therefore, he adds, the law demands that they be allowed to review the classified document, and others, to determine whether the lawyers were spied on illegally and whether Bush’s spy program was unlawful. “To be more specific, the court will review the sealed document ex parte and in camera,” Walker writes. “The court will then issue an order regarding whether plaintiffs may proceed—that is, whether the sealed document establishes that plaintiffs were subject to electronic surveillance not authorized by FISA” (the Foreign Intelligence Surveillance Act—see 1978). [Wired News, 1/5/2009]

Entity Tags: Vaughn Walker, Al Haramain Islamic Foundation, Asim Ghafoo, Jon Eisenberg, Bush administration (43), Wendell Belew, Foreign Intelligence Surveillance Act, Obama administration

Timeline Tags: Civil Liberties

Constitutional lawyer and author Bruce Fein, a former official in the Justice Department under Ronald Reagan, writes that if President Obama wants to “restore the rule of law and to prevent future wrongdoing by high-level government officials,” he “should investigate, among others, former President George W. Bush, former Vice President Dick Cheney, former Defense Secretary Donald Rumsfeld, former Attorney General John Ashcroft, former White House counsel and Attorney General Alberto Gonzales, and former White House political adviser Karl Rove. The crimes to be investigated should include complicity in torture, illegal surveillance, illegal detention, perjury, obstruction of justice, and contempt of Congress. Prosecutions should follow if the evidence convinces a grand jury to indict.” Fein states that “[t]he best way to deter government criminality and to teach citizens the rule of law is to punish the perpetrators who are unanimously found guilty beyond a reasonable doubt by independent and impartial jurors.”
FBI, CIA Feared Prosecution for Torture - He notes that the FBI refused to participate in “enhanced interrogation techniques,” including waterboarding, for fear of being charged with war crimes. And the CIA required specific legal opinions from the Bush Justice Department—the so-called “golden shield” (see August 1, 2002)—and specific presidential authorization before it would allow its agents to torture detainees. And the White House ordered an end to waterboarding after it was warned that such tactics left its officials open to charges of torture and war crimes.
Attorney General Feared Prosecution under FISA - He goes on to note that Justice Department officials such as acting Attorney General James Comey “balked at approving… Bush’s warrantless surveillance program without modification in March 2004 probably because he feared criminal prosecution under the Foreign Intelligence Surveillance Act” (see 1978).
'Unpunished Lawlessness by Government Officials Invites Lawlessness Generally' - Fein asserts that “unpunished lawlessness by government officials invites lawlessness generally.” He quotes former Supreme Court Justice Louis Brandeis: “Decency, security, and liberty alike demand that government officials shall be subjected to the same rules of conduct that are commands to the citizen. In a government of laws, existence of the government will be imperiled if it fails to observe the law scrupulously. Our government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy.” The best way to deter criminal behavior, he says, is to prosecute alleged criminals, and that process must start with government officials. [Washington Times, 1/20/2009]

Entity Tags: Bruce Fein

Timeline Tags: Civil Liberties

The cover of Mark Klein’s ‘Wiring Up the Big Brother Machine… and Fighting It.’The cover of Mark Klein’s ‘Wiring Up the Big Brother Machine… and Fighting It.’ [Source: BookSurge / aLibris (.com)]Former AT&T technician Mark Klein self-publishes his book, Wiring Up the Big Brother Machine… and Fighting It. In his acknowledgements, Klein writes that he chose to self-publish (through BookSurge, a pay-to-publish venue) because “[t]he big publishers never called me,” and the single small publishing house that offered to publish his book added “an unacceptable requirement to cut core material.” Klein based his book on his experiences as an AT&T engineer at the telecom giant’s San Francisco facility, where he primarily worked with AT&T’s Internet service. In 2002 and 2003, Klein witnessed the construction of of a “secret room,” a facility within the facility that was used by the National Security Agency (NSA) to gather billions of email, telephone, VoIP (voice over Internet Protocol), and text messages, most of which were sent by ordinary Americans. The NSA did its electronic surveillance, Klein writes, secretly and without court warrants. Klein describes himself as “wiring up the Big Brother machine,” and was so concerned about the potential illegality and constitutional violations of the NSA’s actions (with AT&T’s active complicity) that he retained a number of non-classified documents proving the extent of the communications “vacuuming” being done. Klein later used those documents to warn a number of reporters, Congressional members, and judges of what he considered a horrific breach of Americans’ right to privacy. [Klein, 2009, pp. 9-11, 21-24, 33, 35, 38, 40] In 2007, Klein described his job with the firm as “basically to keep the systems going. I worked at AT&T for 22 and a half years. My job was basically to keep the systems going. They were computer systems, network communication systems, Internet equipment, Voice over Internet [Protocol (VoIP)] equipment. I tested circuits long distance across the country. That was my job: to keep the network up.” He explained why he chose to become a “whistleblower:” “Because I remember the last time this happened.… I did my share of anti-war marches when that was an active thing back in the ‘60s, and I remember the violations and traffic transgressions that the government pulled back then for a war that turned out to be wrong, and a lot of innocent people got killed over it. And I’m seeing all this happening again, only worse. When the [NSA] got caught in the ‘70s doing domestic spying, it was a big scandal, and that’s why Congress passed the FISA [Foreign Intelligence Surveillance Act] law, as you know, to supposedly take care of that (see 1978). So I remember all that. And the only way any law is worth anything is if there’s a memory so that people can say: ‘Wait a minute. This happened before.’ And you’ve got to step forward and say: ‘I remember this. This is the same bad thing happening again, and there should be a halt to it.’ And I’m a little bit of that institutional memory in the country; that’s all.” [PBS Frontline, 5/15/2007]

Entity Tags: National Security Agency, AT&T, BookSurge, Mark Klein

Timeline Tags: Civil Liberties

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