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Context of 'January 18, 2006: Bush Administration Broke Law in Failing to Properly Inform Congress of Domestic Surveillance Program'

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NSA servers used to collect and sift data.NSA servers used to collect and sift data. [Source: FrancesFarmersRevenge.com]The National Security Agency (see 1952) begins building a massive data-mining system, code-named “Trailblazer,” that is intended to sift through reams of digital communications intercepts and find nuggets of information relevant to national security. The program’s task is huge—to sort through the 2 million bits of data the NSA collects every hour—and one made even more complex by the relatively new types of wireless, Internet, cell phone, and instant messaging communications now becoming ever more commonplace. Trailblazer is strongly embraced by General Michael Hayden, who became the NSA’s director in March 1999. Hayden recognizes from the outset that the NSA is years behind the technological curve, and casts Trailblazer as the future of the agency’s intelligence gathering and sorting. In November 1999, Hayden makes Trailblazer the centerpiece of his “100 Days of Change,” his plan to transform the agency into a leaner, more efficient organization, fast-tracking the program to vault it ahead of other initiatives. “It was going to structure us to handle the digital revolution,” a former intelligence official will recall. But from the outset the program has problems: a meeting between NSA and other government officials in December 1999 is unpromising, and, according to one government oversight official, the program “kicked off with not a real great definition of what it was trying to achieve.” Program managers fail to define standard data formats to allow for the proper sorting of information. After six years, $1.2 billion in expenditures, and endless man-hours of work, the utterly failed program will be recognized as the “biggest boondoggle… in the intelligence community” (see January 2006). [Baltimore Sun, 1/29/2006]

Entity Tags: Trailblazer, National Security Agency, Michael Hayden

Timeline Tags: Civil Liberties

Mike Frost.Mike Frost. [Source: NineMSN]One of the few commercial media reports about Echelon, the NSA’s global surveillance network (see April 4, 2001), appears on CBS’s 60 Minutes. The report is disturbing in its portrayal of Echelon as a surveillance system capable of, in host Steve Kroft’s words, capturing “virtually every electronic conversation around the world.” Kroft continues, “[V]irtually every signal radiated across the electromagnetic spectrum is being collected and analyzed,” including land line and cell phone signals, ATM transactions, fax machines,public and private radio broadcasts, even baby monitors. Mike Frost, a former intelligence officer for the CSE, the Canadian equivalent of the National Security Agency which often works closely with the NSA, says, “The entire world, the whole planet” is being surveilled. “Echelon covers everything that’s radiated worldwide at any given instant.… Every square inch is covered.” Listening stations around the world transmit their data to the NSA’s headquarters at Fort Meade, Maryland, where, as Kroft says, “acres of supercomputers scan millions of transmissions word by word, looking for key phrases and, some say, specific voices that may be of major significance.” Frost adds, “Everything is looked at. The entire take is looked at. And the computer sorts out what it is told to sort out, be it, say, by key words such as ‘bomb’ or ‘terrorist’ or ‘blow up,’ to telephone numbers or—or a person’s name. And people are getting caught, and—and that’s great.” Echelon is so secret that even its successes are not publicly documented, though it is believed that, among other successes, it helped capture international terrorist “Carlos the Jackal,” and helped identify two Libyans accused of planting a bomb on PanAm Flight 103 [CBS News, 2/27/2000] which exploded over Lockerbie, Scotland in 1988, killing 270 people. [Washington Post, 12/22/1988] “I say, never over-exaggerate the capacity of a system such as Echelon,” Frost noted in a 1999 interview with the Australian press. “Never ever over-exaggerate the power that these organizations have to abuse a system such as Echelon. Don’t think it can’t happen in Australia. Don’t think it can’t happen in Canada, because it does.” [NineMSN, 5/23/1999]
Monitoring Legal Conversations - As successful as Echelon has been in capturing terrorists, international drug dealers, and various criminals, it has raised serious concerns for its capability of monitoring ordinary, innocent civilians. Frost says that such monitoring happens every day: “Not only possible, not only probable, but factual. While I was at CSE, a classic example: A lady had been to a school play the night before, and her son was in the school play and she thought he did a—a lousy job. Next morning, she was talking on the telephone to her friend, and she said to her friend something like this, ‘Oh, Danny really bombed last night,’ just like that. The computer spit that conversation out. The analyst that was looking at it was not too sure about what the conversation w—was referring to, so erring on the side of caution, he listed that lady and her phone number in the database as a possible terrorist.” Though the NSA has a long and checkered history of spying on American citizens, including extensive monitoring of antiwar and civil rights protesters during the 1970s, the agency refuses to provide any information about its activities—not to the public and not even to Congress. Congressman Bob Barr (R-GA) has for years pressed for more information about the program, which he recently said “engages in the interception of literally millions of communications involving United States citizens.” Even the chairman of the House Intelligence Committee, Porter Goss (R-FL) had trouble getting information when he requested it last year. At the time, Goss said, “[T]here was some information about procedures in how the NSA people would employ some safeguards, and I wanted to see all the correspondence on that to make sure that those safeguards were being completely honored. At that point, one of the counsels of the NSA said, ‘Well, we don’t think we need to share this information with the Oversight Committee.’ And we said, ‘Well, we’re sorry about that. We do have the oversight, and you will share the information with us,’ and they did.” Goss had to threaten to cut the NSA’s budget before the agency would share even limited information with him. When asked how he can be sure the NSA isn’t listening in on ordinary citizens’ communications, Goss merely says, “We do have methods for that, and I am relatively sure that those procedures are working very well.”
Princess Diana, Human Rights Organizations Monitored - Evidence presented in the broadcast also suggests the NSA was monitoring Princess Diana (see November 30, 1998), as well as Amnesty International, Greenpeace, and other groups (see February 27, 2000). [CBS News, 2/27/2000]
British Ministers Monitored - Frost cites an instance where then-Prime Minister Margaret Thatcher monitored two of her own ministers (see 1983).
Americans Monitored - Former NSA contractor Margaret Newsham recalls hearing a monitored conversation featuring then-Senator Strom Thurmond (see April, 1988). Frost is not surprised. “Oh, of course it goes on,” he says. “Been going on for years. Of course it goes on.” Kroft asks, “You mean the National Security Agency spying on politicians in… in the United States?” Frost replies, “Sounds ludicrous, doesn’t it? Sounds like the world of fiction. It’s not; not the world of fiction. That’s the way it works. I’ve been there. I was trained by you guys” (see 1980s). Goss seems less concerned. He says that it is “[c]ertainly possible that something like that could happen. The question is: What happened next?… It is certainly possible that somebody overheard me in a conversation. I have just been in Europe. I have been talking to people on a telephone and elsewhere. So it’s very possible somebody could have heard me. But the question is: What do they do about it? I mean, I cannot stop the dust in the ether; it’s there. But what I can make sure is that it’s not abused—the capability’s not abused, and that’s what we do.”
Used for Corporate Advantage - In 2001, the European Parliament released a report listing many of Echelon’s surveillance stations around the world and detailing their capabilities (see July 11, 2001). Kroft notes, “The report says Echelon is not just being used to track spies and terrorists. It claims the United States is using it for corporate and industrial espionage as well, gathering sensitive information on European corporations, then turning it over to American competitors so they can gain an economic advantage.”
Encryption Effective? - European governments and corporations are encrypting more and more of their phone, fax, and e-mail transmissions to keep Echelon from listening in. In response, the US government is pressuring the Europeans to give US law enforcement and intelligence agencies software keys so that they can unlock the code in matters of national security. Parliament member Glyn Ford is not opposed to the idea in principle: “[I]f we are not assured that that is n—not going to be abused, then I’m afraid we may well take the view, ‘Sorry, no.’ In [Britain], it’s traditional for people to leave a key under the doormat if they want the neighbors to come in and—and do something in their house. Well, we’re neighbors, and we’re not going to leave the electronic key under the doormat if you’re going to come in and steal the family silver.” The NSA, CSE, and even Echelon are necessary evils, Ford acknowledges, but, “My concern is no accountability and nothing—no safety net in place for the innocent people that fall through the cracks. That’s my concern.” [CBS News, 2/27/2000]

Entity Tags: Greenpeace, Wayne Madsen, Glyn Ford, Echelon, Communications Security Establishment, Central Intelligence Agency, Amnesty International, Strom Thurmond, Electronic Privacy Information Center, Steve Kroft, Princess Diana, Mike Frost, Margaret Thatcher, Margaret Newsham, National Security Agency, Robert “Bob” Barr, House Intelligence Committee, Porter J. Goss, Ilich Ramírez Sanchez

Timeline Tags: Civil Liberties

The NSA completes a report for the incoming Bush administration entitled “Transition 2000” that tells how the NSA is planning to improve its intelligence gathering. More importantly, it tells incoming White House officials that in the process of improving its intelligence gathering, some US citizens will inevitably be targeted for surveillance, though, according to a former NSA official, analysts were supposed to “delete the name of the” citizen being surveilled. Such inadvertent surveillance of US citizens took place even during the Clinton administration, says that former official, but the citizens’ names were always deleted from the transcripts of the communications intercepts. The law expressly prohibits the NSA from spying on US citizens, US corporations, or even permanent US residents. (With the permission of the Foreign Intelligence Surveillance Court (FISC), the NSA can spy on diplomats and foreigners inside US borders.) An NSA official will tell the Boston Globe in October 2001, “If, in the course of surveillance, NSA analysts learn that it involves a US citizen or company, they are dumping that information right then and there.” However, once President Bush takes office in January 2001, that practice will undergo a radical change (see Spring 2001). [Truthout (.org), 1/17/2006] In the same transition report, agency officials say that the NSA must become a “powerful, permanent presence” on the commercial communications networks, a goal they admit will raise legal and privacy issues. [New York Times, 12/16/2007]

Entity Tags: Bush administration (43), National Security Agency

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 National Security Agency (NSA) engages in apparently illegal surveillance of US citizens beginning shortly after the inauguration of George W. Bush as president. This will not be revealed to the public until media reports in January 2006, a month after the press revealed that the NSA had engaged in similar illegal wiretaps and surveillance of American citizens after the 9/11 attacks, using those attacks as justification for the surveillance (see December 15, 2005). The former NSA and counterterrorism officials who reveal the pre-9/11 spying will claim that the wiretaps, e-mail monitoring, and Internet surveillance were all “inadvertent,” as NSA computers “unintentionally” intercepted US citizens’ international phone calls and e-mails when the computers flagged keywords. NSA protocol demands that such “inadvertent” surveillance end as soon as NSA analysts realize they are spying on those citizens, and the names of the monitored citizens are supposed to be deleted from the NSA databases. Instead, the NSA is instructed to continue monitoring some citizens that are characterized as “of interest” to White House officials. Those officials include President Bush, Vice President Cheney, and Defense Secretary Donald Rumsfeld, say the former NSA and counterterrorism officials. In December 2000, the NSA told the incoming Bush administration that some US citizens are being inadvertently targeted for surveillance, but the names of the citizens are deleted because the law expressly prohibits the NSA from spying on US citizens, US corporations, or even permanent US residents (see December 2000). However, once Bush takes office in January 2001, that practice undergoes a radical change. In the first few months of the administration, President Bush assigns Vice President Cheney to make himself more of a presence at the various US intelligence agencies, particularly the CIA, NSA, and DIA. Cheney, along with other officials at the State and Defense Departments, begins making repeated requests to the NSA to reveal the identities of those Americans which had previously been deleted, so that administration officials can more fully understand the context and scope of the intelligence. Such requests are technically legal. But Cheney goes well beyond the law when he requests, as he frequently does, that the NSA continue monitoring specific Americans already caught up in the NSA’s wiretaps and electronic surveillance. A former White House counterterrorism official will later claim that Cheney advised Bush of what he was learning from the NSA. “What’s really disturbing is that some of those people the vice president was curious about were people who worked at the White House or the State Department,” says another former counterterrorism official. “There was a real feeling of paranoia that permeated from the vice president’s office and I don’t think it had anything to do with the threat of terrorism. I can’t say what was contained in those taps that piqued his interest. I just don’t know.” [Truthout (.org), 1/17/2006]

Entity Tags: Richard (“Dick”) Cheney, Central Intelligence Agency, Defense Intelligence Agency, George W. Bush, Donald Rumsfeld, US Department of Defense, National Security Agency, US Department of State

Timeline Tags: Civil Liberties

In July 2001, NSA director Michael Hayden tells a reporter that the NSA does not monitor any US citizens without court warrants from the Foreign Intelligence Surveillance Court (FISC). “We don’t do anything willy-nilly,” Hayden says. “We’re a foreign intelligence agency. We try to collect information that is of value to American decision-makers, to protect American values, America—and American lives. To suggest that we’re out there, on our own, renegade, pulling in random communications, is—is simply wrong. So everything we do is for a targeted foreign intelligence purpose. With regard to the—the question of industrial espionage, no. Period. Dot. We don’t do that.” When asked how Americans could verify that, Hayden says that they should simply trust the NSA to police and monitor itself, along with oversight from the White House and from Congress. However, it will later come to light that the NSA began illegally monitoring US citizens from the start of the Bush administration (see Spring 2001). A former NSA official will later dispute Hayden’s account. “What do you expect him to say?” the official says. “He’s got to deny it. I agree. We weren’t targeting specific people, which is what the President’s executive order does. However, we did keep tabs on some Americans we caught if there was an interest [by the White House.] That’s not legal. And I am very upset that I played a part in it.” [Truthout (.org), 1/17/2006] Hayden also denies persistent allegations from European government officials that the agency has engaged in economic espionage to help American companies against European competitors (see April 4, 2001). In March 2001, the American Civil Liberties Union’s Barry Steinhardt says that “since there is no real check on [the NSA], there is no way to know” if they are following the law. Steinhardt says that Congress is the only real check on possible NSA abuses, but it has consistently failed to exercise any sort of aggressive oversight on the agency. [CNN, 3/31/2001]

Entity Tags: National Security Agency, Barry Steinhardt, Michael Hayden, American Civil Liberties Union

Timeline Tags: Civil Liberties

An illustration of the NIMD dataflow.An illustration of the NIMD dataflow. [Source: LibertyThink.com] (click image to enlarge)Shortly after the 9/11 attacks, the NSA awards $64 million in research contracts for a program called Novel Intelligence from Massive Data (NIMD). [New York Times, 5/21/2003; National Journal, 1/20/2006] NIMD is one of several cutting-edge data mining technologies that not only has the capability of finding keywords among millions of electronically monitored communications, but can find hidden relationships among data points, and even critique the thinking and biases of a particular analyst and suggest alternative hypotheses differing from the human analysts’ conclusion. Like other data-mining technologies, the NSA will steadfastly refuse to discuss whether NIMD is used to analyze data from domestic surveillance operations. NIMD is designed as an preliminary sort program, to keep human analysts from becoming overwhelmed by raw data. In essence, NIMD is an early-warning system. “NIMD funds research to…help analysts deal with information-overload, detect early indicators of strategic surprise, and avoid analytic errors,” according to the “Call for 2005 Challenge Workshop Proposals” released by the Advanced Research and Development Activity (ARDA). ARDA was founded in 1998 to create, design, and field new technologies for US intelligence agencies, particularly the NSA. A selected few Congressional lawmakers (see January 18, 2006) were informed that the warrantless surveillance program authorized by President George W. Bush (see Early 2002) was designed to be an early-warning system for possible terrorist attacks or plans. Assistant Attorney General William Moschella will inform the top Democrats and Republicans on the House and Senate Intelligence committees in December 2002 that the “president determined that it was necessary following September 11 to create an early-warning detection system” to prevent more attacks. He will justify the use of programs such as NIMD by claiming, as NSA director Michael Hayden and other administration officials have repeatedly claimed, that the Foreign Intelligence Surveillance Act (FISA), which allows the government to obtain warrants to conduct domestic eavesdropping or wiretapping, “could not have provided the speed and agility required for the early-warning detection system.” Many experts outside of the Bush administration feel that NIMD and other programs do not have to operate outside of the Foreign Intelligence Surveillance Act (FISA) because of limitations in the law, but because of the fact that the programs cannot meet the law’s minimum requirements for surveillance. FISA requires that any such surveillance must have a probable cause that the target is a terrorist. NIMD has no such threshold. Steven Aftergood, an expert on intelligence and government secrecy with the Federation of American Scientists, will say in 2006, “Logistically speaking, the early-warning approach may involve a significant increase in the number of surveillance actions. It may be that neither the Justice Department nor the [Foreign Intelligence Surveillance Court, which approves wiretapping warrants] is prepared to prepare and process several thousand additional FISA applications per year, beyond the 1,700 or so approved in 2004.” [National Journal, 1/20/2006] Some experts will later express the opinion that NIMD is the controversial Total Information Awareness program in a slightly different form (see February 2003 and September 2002).

Entity Tags: Senate Intelligence Committee, US Department of Justice, Total Information Awareness, William E. Moschella, Tom Armour, Novel Intelligence from Massive Data, Steven Aftergood, Michael Hayden, National Security Agency, Advanced Capabilities for Intelligence Analysis, Advanced Research and Development Activity, John Poindexter, Foreign Intelligence Surveillance Act, George W. Bush, Federation of American Scientists (FAS), House Intelligence Committee

Timeline Tags: Civil Liberties

The US Congress adopts a joint resolution, the Authorization for Use of Military Force (AUMF), that determines that “the president is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.” Congress also states that the “grave acts of violence” committed on the US “continue to pose an unusual and extraordinary threat to [its] national security and foreign policy.” [US Congress, 9/14/2001] President Bush signs the resolution into law on September 18. [White House, 9/18/2001] The passage of the AUMF served another purpose: to extend presidential power. While the Defense Department and the Joint Chiefs of Staff intended the AUMF to define the conflict in narrow terms, and authorize the US to move militarily against al-Qaeda and its confederates, and the Taliban, Vice President Dick Cheney and his chief of staff, David Addington, had a larger goal. Attorney Scott Horton, who has written two major studies on interrogation of terrorism suspects for the New York City Bar Association, says in 2005 that Cheney and Addington “really wanted [the AUMF defined more broadly], because it provided the trigger for this radical redefinition of presidential power.” Addington helped draft a Justice Department opinion in late 2001, written by lawyer John Yoo (see Late September 2001), that asserted Congress cannot “place any limits on the president’s determinations as to any terrorist threat, the amount of military force to be used in response, or the method, timing, and nature of the response.” [US News and World Report, 5/21/2006]

Entity Tags: US Department of Defense, Taliban, Scott Horton, Joint Chiefs of Staff, Richard (“Dick”) Cheney, David S. Addington, George W. Bush, John C. Yoo, Al-Qaeda, Authorization to Use Military Force (AUMF)

Timeline Tags: Torture of US Captives, Complete 911 Timeline, 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

In a memo to the Secretaries of State, Treasury, and Defense, and to the Attorney General, the Director of Central Intelligence, and the Director of the FBI, President Bush mandates that they strictly control and oversee information from their departments disclosed to members of Congress. In order to “protect military operational security, intelligence sources and methods, and sensitive law enforcement investigations,” Bush orders, “your departments should adhere to the following procedures when providing briefings to the Congress relating to the information we have or the actions we plan to take: (i) Only you or officers expressly designated by you may brief Members of Congress regarding classified or sensitive law enforcement information; and (ii) The only Members of Congress whom you or your expressly designated officers may brief regarding classified or sensitive law enforcement information are the Speaker of the House, the House Minority Leader, the Senate Majority and Minority Leaders, and the Chairs and Ranking Members of the Intelligence Committees in the House and Senate.” [George W. Bush, 10/5/2001] In 2006, the Congressional Research Service (CRS) will conclude that the Bush administration is in violation of the law by refusing to inform any other members of Congress aside from the so-called “Gang of Eight” about the NSA warrantless wiretapping program (see January 18, 2006).

Entity Tags: “Gang of Eight”, Senate Intelligence Committee, George W. Bush

Timeline Tags: Civil Liberties

NSA Director Michael Hayden responds to an October 11 letter from Representative Nancy Pelosi (see October 11, 2001), expressing concerns about the NSA’s post-9/11 surveillance expansion (see After September 11, 2001) that Hayden outlined for the House Intelligence Committee on October 1 (see October 1, 2001), and asking whether the president authorized it. The substance of Hayden’s October 18 reply will be redacted, except for this statement: “In my briefing, I was attempting to emphasize that I used my authorities to adjust NSA’s collection and reporting.” [Nancy Pelosi, 1/6/2006] A January 4, 2006 report in the Washington Post will cite “intelligence official close to Hayden” as saying that “[Hayden’s] appearance on Oct. 1, 2001, before the House committee had been to discuss Executive Order 12333, and not the new NSA program,” and that “Pelosi’s concerns had been answered in writing and again several weeks later during a private briefing.” [Washington Post, 1/4/2006] In a January 23, 2006 public briefing, Hayden will say, “September 2001, I asked to update the Congress on what NSA had been doing, and I briefed the entire House Intelligence Committee on the 1st of October on what we had done under our previously existing authorities,” and, “These decisions were easily within my authorities as the director of NSA under and [sic] executive order; known as Executive Order 12333.” [Michael Hayden, 1/23/2006]
Nature of Hayden's EO 12333 Surveillance Program - The full scope of Hayden’s surveillance program is unclear, but some sources indicate it includes the wholesale collection and data-mining of phone records provided by telecom companies and placement of pen registers (call trackers) on domestic phone numbers (see After September 11, 2001, October 11, 2001, After September 11, 2001, Late September, 2001, October 2001), and October 31, 2001). Some sources indicate the NSA began large-scale domestic surveillance activities prior to the 9/11 attacks (see Late 1999, February 27, 2000, December 2000, February 2001, February 2001, Spring 2001, and July 2001).

Entity Tags: Michael Hayden, House Intelligence Committee, Nancy Pelosi, National Security Agency

Timeline Tags: Civil Liberties

Concerned that NSA post-9/11 surveillance operations violated the US Constitution, a senior NSA official reports on the program to House Intelligence Committee staff (see Before October 31, 2001), then retires. William Binney, a crypto-mathematician, had served in the NSA for 36 years. In 1997 he was made technical director of the World Geopolitical and Military Analysis Reporting Group, a 6000-employee unit that focused on signals intelligence (SIGINT) reporting and analysis. In the last part of his NSA career, Binney focused on dealing with the NSA’s problem of information overload, co-founding the Signals Intelligence Automation Research Center (SARC) and leading a 20-member team to develop a data-mining and analysis program called ThinThread. This program made it possible to “correlate data from financial transactions, travel records, Web searches, GPS equipment, and any other ‘attributes’ that an analyst might find useful,” and “could chart relationships among people in real time.” Unlike the NSA’s existing centralized data processing systems, ThinThread was able to identify useful or useless data as it was collected, reducing the overload problem. However, though it targeted foreign communications, ThinThread also intercepted those of Americans, and “continued documenting signals when a trail crossed into the US.” Binney incorporated measures to protect privacy, but NSA lawyers still considered the program too invasive, according to a 2011 article by Jane Mayer based on interviews with Binney and another NSA whistleblower, Thomas Drake. In 1999, NSA Director General Michael Hayden decided to fund a rival program, Trailblazer, which would be developed by defense contractors (see Late 1999). Trailblazer will be abandoned in 2006 as unworkable, after costing $1.2 billion (see January 2006). [New Yorker, 5/23/2011; Wired News, 2/15/2012; Democracy Now!, 4/20/2012]
Post-9/11 NSA Surveillance Expansion - Binney will tell Mayer that, after the 9/11 attacks, his people began coming to him, saying things like: “They’re getting billing records on US citizens! They’re putting pen registers [call logs] on everyone in the country!” James Bamford will interview Binney in 2012 and write, “At the outset the program recorded 320 million calls a day, [Binney] says, which represented about 73 to 80 percent of the total volume of the agency’s worldwide intercepts.” Binney has not been personally “read in” to this domestic surveillance program, but some members of his SARC team have, as their knowledge of ThinThread code was needed to set it up. Binney became convinced elements of ThinThread were being used, but without privacy protections, meaning US persons could be targeted. Soon after learning these things, Binney takes his concerns to the House Intelligence Committee (see Before October 31, 2001), and retires on October 31. He will tell Mayer, “I couldn’t be an accessory to subverting the Constitution.” Other sources support Binney’s account of this NSA data-mining and monitoring program (see After September 11, 2001, October 11, 2001, After September 11, 2001, Late September, 2001, and October 2001). However, the claim that NSA domestic surveillance was initiated only after, and in response to, 9/11 is contradicted by information indicating that domestic monitoring programs and activities were established and conducted prior to 9/11 (see Late 1999, February 27, 2000, December 2000, February 2001, February 2001, Spring 2001, and July 2001). [New Yorker, 5/23/2011; Wired News, 2/15/2012; Democracy Now!, 4/20/2012]

Entity Tags: William Binney, World Geopolitical and Military Analysis Reporting Group, Thinthread, Signals Intelligence Automation Research Center, House Intelligence Committee, James Bamford, Jane Mayer, Michael Hayden, National Security Agency, Thomas Drake, Trailblazer

Timeline Tags: Civil Liberties

John Yoo, the Justice Department’s (DOJ) Office of Legal Counsel (OLC) deputy assistant attorney general, sends a classified memo to Attorney General John Ashcroft justifying warrantless surveillance of US persons. The National Security Agency (NSA)‘s domestic surveillance authorized by President Bush (see October 4, 2001, Early 2002, and December 15, 2005) will come to be publicly referred to as the President’s Surveillance Program (PSP). This is not the first Yoo memo supporting warrantless surveillance (see September 25, 2001), but a 2009 report on the PSP jointly issued by the inspectors general (IGs) of the Department of Defense (DOD), DOJ, CIA, National Security Agency (NSA), and Office of the Director of National Intelligence (ODNI) will refer to it as “[t]he first OLC opinion directly supporting the legality of the PSP.” The IGs’ report will quote from and comment on the memo, noting that “deficiencies in Yoo’s memorandum identified by his successors in the Office of Legal Counsel and the Office of the Deputy Attorney General later became critical to DOJ’s decision to reassess the legality of the program in 2003.” According to the IGs’ report, Yoo asserts that warrantless surveillance is constitutional as long as it is “reasonable” under the Fourth Amendment, which only protects against “unreasonable searches and siezures.” On this point, the IGs’ report will note that Yoo’s successors were troubled by his failure to discuss the Supreme Court’s decision in Youngstown Sheet & Tube Co. v. Sawyer (1952), which found the president’s wartime authority to be limited. His memo does acknowledge that the Foreign Intelligence Surveillance Act (FISA) “purports to be the exclusive statutory means for conducting electronic surveillance for foreign intelligence,” but asserts that it is only a “safe harbor for electronic surveillance” because it cannot “restrict the president’s ability to engage in warrantless searches that protect the national security.” Yoo also writes that Congress has not “made a clear statement in FISA that it sought to restrict presidential authority to conduct warrantless searches in the national security area.” The IGs’ report will state that Yoo’s successors considered this problematic because Yoo has omitted discussion of the fact that FISA explicitly authorizes the president to conduct warrantless surveillance during the first 15 days following a declaration of war by Congress, which they considered an expression of Congress’s intent to restrict warrantless surveillance to a limited period of time and specific circumstances. The IGs’ report will also state that Yoo’s memo discusses “the legal rationale for Other Intelligence Activities authorized as part of the PSP,” and that Yoo concludes, “[W]e do not believe that Congress may restrict the president’s inherent constitutional powers, which allow him to gather intelligence necessary to defend the nation from direct attack.” The IGs’ report will say that “Yoo’s discussion of some of the Other Intelligence Activities did not accurately describe the scope of these activities,” and that Yoo’s successors considered his discussion of these other activities to be “insufficient and presenting a serious impediment to recertification of the program as to form and legality.” [Inspectors General, 7/10/2009, pp. pp. 11-13]
Memo's Existence Revealed by ACLU Lawsuit - On December 15, 2005, the New York Times will report that Bush authorized an NSA warrantless domestic surveillance program after the 9/11 attacks (see December 15, 2005). The American Civil Liberties Union (ACLU) will request records pertaining to the program under the Freedom of Information Act (FOIA) and then sue the Justice Department for the release of records. The existence of Yoo’s November 2 memo will first be revealed in an October 19, 2007 deposition filed by then head of the OLC Steven Bradbury in response to the ACLU lawsuit, which says that it “[concerns] the legality of certain communications intelligence activities.” After the 2009 release of the IGs’ report the ACLU will notify the court and the government will agree to reprocess four OLC memos, including Yoo’s November 2 memo. This memo and a May 6, 2004 memo by Yoo’s OLC successor Jack Goldsmith that disputes many of Yoo’s conclusions will be released in heavily redacted form on March 18, 2011. [ACLU.org, 2/7/2006; United States District Court of DC, 10/19/2007; American Civil Liberties Union, 3/19/2011]
Constitutional Experts Dispute Yoo's Legal Rationale - Numerous authorities on the law will question or reject the legal bases for warrantless domestic surveillance. In 2003, Yoo will leave the OLC. Goldsmith will begin a review of the PSP, after which he will conclude it is probably illegal in some respects and protest, within the executive branch, its continuation (see Late 2003-Early 2004 and December 2003-June 2004). Following the public disclosure of its existence, a January 5, 2006 report by the Congressional Research Service will find it to be of dubious legality (see January 5, 2006). On January 19, 2006, the DOJ will issue a 42-page white paper laying out the legal bases for the program (see January 19, 2006). These bases will be reviewed and rejected by 14 constitutional scholars and former government officials in a joint letter to Congress on February 2, 2006. [al [PDF], 2/2/2006 pdf file] The American Bar Association will adopt a resolution on February 13, 2006 that rejects DOJ’s arguments and calls on Congress to investigate the program. [Delegates, 2/13/2006 pdf file] On August 17, 2006, in the case ACLU v. NSA, US district judge Anna Diggs Taylor will reject the government’s invocation of the “state secrets privilege” and its argument that plaintiffs’ lack standing due to their being unable to prove they were surveilled, and will rule that warrantless surveillance is in violation of “the separation of powers doctrine, the Administrative Procedures Act, the First and Fourth Amendments to the United States Constitution, the FISA, and Title III” (see August 17, 2006). Taylor’s ruling will be overturned on appeal, on the grounds that the plaintiffs lack standing as they cannot prove that surveillance has occurred. In another case, Al Haramain v. Barack Obama, the government will make the same arguments, but US district judge Vaughn Walker will reject these and conclude in 2010 that illegal surveillance occurred (see March 31, 2010). [Al-Haramain v. Obama, 3/31/2010]

Entity Tags: Steven Bradbury, Vaughn Walker, Ronald Dworkin, George W. Bush, John C. Yoo, American Bar Association, Office of Legal Counsel (DOJ), American Civil Liberties Union, John Ashcroft, Anna Diggs Taylor, US Department of Justice

Timeline Tags: Civil Liberties

Sometime in early 2002, President Bush signs a secret executive order authorizing the National Security Agency (NSA) to wiretap phone conversations and read e-mails to and from US citizens. The order extends an operation set into motion at least as early as October 2001 to begin wiretapping US citizens’ phones in a response to the 9/11 attacks. When the program is revealed by the US media in late 2005 (see December 15, 2005), Bush and his officials will say the program is completely legal, though it ignores the requirements of the Foreign Intelligence Surveillance Act (FISA) that requires the government to obtain court-issued warrants to mount surveillance against US citizens. They will insist that only those suspected of having ties to al-Qaeda are monitored, and only when those individuals make or receive international communications. [New York Times, 12/15/2005; Washington Post, 12/22/2005; Newsweek, 12/22/2008] Bush’s order authorizes the NSA to monitor international telephone conversations and international e-mails of hundreds, and perhaps thousands, of US citizens without court warrants, in an effort to track what officials call “dirty numbers” linked to al-Qaeda. When the program is finally revealed by the New York Times over three years later (see December 15, 2005), officials will say that the NSA still seeks warrants to monitor domestic communications. But there is little evidence of this (see, for example, Spring 2001). The presidential order is a radical shift in US surveillance and intelligence-gathering policies, and a major realignment for the NSA, which is mandated to only conduct surveillance abroad. Some officials believe that the NSA’s domestic eavesdropping crosses constitutional limits on legal searches. “This is really a sea change,” a former senior official who specializes in national security law will say in December 2005. “It’s almost a mainstay of this country that the NSA only does foreign searches.” [New York Times, 12/15/2005] Some sources indicate that NSA domestic surveillance activities, such as data-mining, the use of information concerning US persons intercepted in foreign call monitoring, and possibly direct surveillance of US persons, took place prior to 9/11 (see Late 1999, February 27, 2000, December 2000, February 2001, February 2001, Spring 2001, and July 2001).

Entity Tags: George W. Bush, Al-Qaeda, Foreign Intelligence Surveillance Court, National Security Agency

Timeline Tags: Civil Liberties

The NSA’s enormous data mining program, Novel Intelligence from Massive Data (NIMD—see After September 11, 2001), closely resembles another data mining program, the Defense Department’s Total Information Awareness program (see March 2002). TIA, which will be suspended in 2003 after outcries from citizens and legal experts concerned over that program’s refusal to comply with fundamental Constitutional guarantees of privacy, was also designed as an early-warning system that not only compiled intelligence data, but mined through private financial databases for credit-card and other financial transactions. Six of the corporations and research institutions who win NIMD contracts also held contracts for the earlier TIA project. Much of their work with TIA duplicated the same aspects and protocols to be used by NIMD, including challenging analytic assumptions and building prototype data-mining devices. Both TIA and NIMD attempt to second-guess human analysts’ conclusions over a particular data schema by creating a database of what TIA creator John Poindexter once called “plausible futures,” or likely terrorism scenarios. NIMD is a creation of the Advanced Research and Development Activity agency (ARDA); another ARDA project, the Advanced Capabilities for Intelligence Analysis (ACIA) also envisions a similar database (see 2005). Though TIA focused more on counterterrorism than the more sweeping NIMD, the two projects coordinated closely with one another, according to former program manager Tom Armour, who worked in Poindexter’s office.
NIMD Survives In Other Agencies - Congress will eliminate funding for TIA and other Poindexter projects, but many of those projects, and related projects such as NIMD, do not disappear. Many are instead transferred to intelligence agencies such as the NSA. Although information about these projects is strictly classified, a former Army intelligence analyst familiar with the programs will confirm in 2006 that large elements of TIA were transferred to other agencies, where they will continue to be researched and implemented. It is highly likely that NIMD is an offshoot and outgrowth of TIA. Armour will say the two programs are specifically designed to analyze large amounts of phone and e-mail traffic: “That’s, in fact, what the interest is.” [National Journal, 1/20/2006]
Government 'Shell Game' - Steven Aftergood of the Federation of American Scientists says in 2004, “The whole congressional action looks like a shell game. There may be enough of a difference for them to claim TIA was terminated while for all practical purposes the identical work is continuing.” [Associated Press, 2/23/2004] Aftergood will note that NIMD has thrived in the shadows where TIA died of exposure: “Pursued with a minimal public profile and lacking a polarizing figure like Admiral Poindexter to galvanize opposition, NIMD has proceeded quietly even as TIA imploded.” [Defense Tech, 9/26/2003]

Entity Tags: Tom Armour, Total Information Awareness, Steven Aftergood, Novel Intelligence from Massive Data, John Poindexter, National Security Agency, Advanced Research and Development Activity, Federation of American Scientists (FAS), George W. Bush, Advanced Capabilities for Intelligence Analysis

Timeline Tags: Civil Liberties

Assistant Attorney General William Moschella informs the ranking members of the House and Senate Intelligence committees of the administration’s use of potentially unconstitutional data mining and electronic surveillance programs after the 9/11 attacks. Moschella tells the lawmakers, “The president determined that it was necessary following September 11 to create an early-warning detection system” to prevent more attacks. One such program is the Novel Intelligence from Massive Data (NIMD) initiative (see After September 11, 2001). Moschella echoes the claims of National Security Agency director Michael Hayden and other administration officials, saying that the Foreign Intelligence Surveillance Act (FISA), which allows the government to obtain warrants to conduct domestic eavesdropping or wiretapping, “could not have provided the speed and agility required for the early-warning detection system.” [National Journal, 1/20/2006]
Domestic Surveillance Began Before 9/11? - Though Bush officials eventually admit to beginning surveillance of US citizens only 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, July 2001, and Early 2002). Moschella informs the lawmakers of none of this.

Entity Tags: Senate Intelligence Committee, William E. Moschella, Michael Hayden, Bush administration (43), Foreign Intelligence Surveillance Act, Novel Intelligence from Massive Data, House Intelligence Committee

Timeline Tags: Civil Liberties

The NSA’s secret room in the AT&T switching center.The NSA’s secret room in the AT&T switching center. [Source: PBS]Veteran AT&T technician Mark Klein (see July 7, 2009) takes an informal tour of his company’s facility on San Francisco’s Folsom Street (see Late 2002), along with three other technicians from his Geary Street offices. The tour, Klein will later say, is to introduce the four technicians to the Folsom Street staff, “because they were obviously eventually planning to bring us over there.” Klein learns that the rumors of a “secret room” in the facility are true (see Fall 2002). The secret room is on the facility’s sixth floor and is being built to house some sort of equipment, but Klein is unsure exactly what that equipment might be. Klein and the others see the outer door of the secret room, and a workman working on the door “suddenly [began talking to Klein and his colleages in a] very low voice like he didn’t want to be overheard. He felt like this was something secret, you know, and he didn’t know much about it, and he was saying: ‘None of us can go in there. It’s all secret.’ This was not only an affront to the technicians; it was a violation of union rules, because they were obviously planning to install telecommunications equipment, which is supposed to be the jurisdiction of the union technicians. We had a contract. So the technicians were not only angry about this secret thing that they’re not let in on, but also the fact that there’s work there that they’re excluded from. And they were told nothing about it. So that was it.” Klein is further surprised to learn that only a single non-union technician (whom he only identifies as “Ski,” an AT&T “field support specialist” who has been granted a security clearance by the National Security Agency (NSA)), is allowed to work in the secure room. No union technicians are allowed in, even though the installation work being done is specifically contracted to the union workers. “The regular technician work force was not allowed in the room,” Klein will later state. Klein deduces that this secret room is the long-rumored NSA installation he has been hearing about. Moreover, he notes with some alarm that the room is next door to the 4ESS phone switch, “the traditional workhorse used for AT&T long-distance calls.” Klein will write, “Now my mental alarm bells were ringing, but for the moment there was nothing to do but take some mental notes, particularly since it was not clear exactly what they [the NSA and AT&T] were doing.” [Wired News, 4/7/2006; Democracy Now!, 5/12/2006; PBS Frontline, 5/15/2007; Klein, 2009, pp. 26-28] Klein will explain that he chooses not to say anything about his concerns because he is “scared for several reasons, one being, well, this is obviously secret. This is obviously some federal government secret operation that they don’t want nosy people nosing around in, and if I started asking questions I could get into trouble. Furthermore, our jobs were in jeopardy anyway, because [we] were always getting wind that they were planning to close our previous office at Geary Street, and I didn’t need to give them an excuse to fire me. So I thought after thinking about it that the best thing to do is not to say anything and just watch it.” [PBS Frontline, 5/15/2007] He later learns that similar cabinets are being installed in AT&T centers in other cities, including Seattle, San Jose, Los Angeles, and San Diego (see Late 2003). [Wired News, 4/7/2006] The Folsom Street facility is apparently connected to a more central surveillance facility operated out of one of AT&T’s main command centers in Missouri (see Late 2002-Early 2003).

Entity Tags: Bush administration (43), AT&T, Electronic Frontier Foundation, Mark Klein, Terrorist Surveillance Program, “Ski” (AT&T field support specialist), National Security Agency

Timeline Tags: Civil Liberties

Steven Aftergood of the Federation of American Scientists says that he is not sure that Congress’s public termination of the Total Information Awareness (TIA) project (see January 23, 2003) was as real and outrage-driven as it seemed at the time. “The whole congressional action looks like a shell game,” Aftergood says. “There may be enough of a difference for them to claim TIA was terminated while for all practical purposes the identical work is continuing.” While Congress terminated TIA with visible indignation, it also quietly funded the “National Foreign Intelligence Program,” and never identified which intelligence agency would do the work—which was also kept from the public eye. Congress did say that none of the research would be used against US citizens. No one in Congress will discuss how many of Poindexter’s programs survived, but knowledgeable sources will confirm that some 18 data-mining programs known as Evidence Extraction and Link Discovery in Poindexter’s research were preserved after TIA’s termination. These programs may well include the sprawling data mining program known as Novel Intelligence from Massive Data (NIMD) (see After September 11, 2001), though this cannot be confirmed. Former TIA chief John Poindexter’s vision of the technology behind NIMD envisioned software that can quickly analyze “multiple petabytes” of data. A single petabyte would fill the Library of Congress space for 18 million books more than 50 times, or could hold 40 pages of text for each of the more than 6.2 billion humans on Earth. Poindexter and his colleagues envisioned the program as handling a petabyte or more of data a month. [Associated Press, 2/23/2004] Concerns about the privacy rights of US citizens being damaged by the program are rife. “If they were to stick to strictly military-related research and development, there is less of an issue, but these technologies have much broader social implications,” says Barbara Simons, a computer scientist who is past president of the Association of Computing Machinery, an organization that has expressed concerns about TIA. [New York Times, 5/21/2003] At least one Senator is uncomfortable with the apparent resurgence of TIA. Jay Rockefeller (D-WV) will write Vice President Dick Cheney in June 2003 after receiving a briefing on the various secret surveillance programs (see July 17, 2003). Rockefeller will write, “As I reflected on the meeting today, John Poindexter’s TIA project sprung to mind, exacerbating my concern regarding the direction the administration is moving with regard to security, technology, and surveillance.” [National Journal, 1/20/2006]

Entity Tags: Steven Aftergood, Richard (“Dick”) Cheney, Total Information Awareness, Novel Intelligence from Massive Data, John D. Rockefeller, John Poindexter, Barbara Simons, Federation of American Scientists (FAS), Foreign Intelligence Surveillance Act, Association of Computing Machinery

Timeline Tags: Civil Liberties

The new head of the Justice Department’s Office of Legal Counsel (OLC), Jack Goldsmith, begins an internal review of the legality of the NSA’s warrantless wiretapping program (see December 15, 2005). The program is kept so secret that only four Justice officials even have access to information about its inner workings, a pattern of poor consultation he will call “the biggest legal mess I have ever encountered” when he testifies to the Senate about the program four years later (see October 2, 2007). Neither Attorney General John Ashcroft nor Justice’s top legal counsel know much about the program. When Goldsmith begins his legal review, the White House initially refuses to brief Deputy Attorney General James Comey about it. Goldsmith later testifies that he cannot find “a legal basis for some aspects of the program.” Upon completing the review, Goldsmith declares the program illegal, with the support of Ashcroft and Comey. However, White House officials are irate at Goldsmith’s findings. [Washington Post, 10/20/2007]

Entity Tags: Alberto R. Gonzales, Bush administration (43), Office of Legal Counsel (DOJ), US Department of Justice, John Ashcroft, James B. Comey Jr., Jack Goldsmith, National Security Agency

Timeline Tags: Civil Liberties

The White House and the Justice Department are at odds over the legality of the National Security Agency’s “data mining” program, which involves the NSA combing through enormous electronic databases containing personal information about millions of US citizens, ostensibly for anti-terrorism purposes and often without court warrants (see February 2001, Spring 2001, After September 11, 2001, After September 11, 2001, October 2001, and Early 2002). Such data mining by the NSA potentially threatens citizens’ constitutional right to privacy. This clash between the White House and the Justice Department is one of the reasons that White House counsel Alberto Gonzales and chief of staff Andrew Card will try to pressure Attorney General John Ashcroft, while Ashcroft is recuperating from surgery, to reauthorize the NSA program over the objections of Deputy Attorney General James Comey. That attempt to force reauthorization over Justice Department complaints will result in the protest resignations of Ashcroft, Comey, and other Justice officials (see March 10-12, 2004). In 2007, Gonzales will deny that any such attempt to pressure Ashcroft to overrule Comey ever happened (see July 24, 2007), and will deny that there was any such dispute between the White House and Justice Department over the NSA program. Those denials will lead to calls to investigate Gonzales for perjury (see May 16, 2007). In late 2005, President Bush will admit, after the New York Times reveals the existence of the NSA warrantless wiretapping program (see Early 2002), that the program indeed exists, but will not acknowledge the data mining. Several current and former administration officials, interviewed by reporters in 2007, refuse to go into detail about the dispute between the White House and Justice Department, but say that it involves other issues along with the data mining. They will also refuse to explain what modifications to the surveillance program Bush will authorize to mollify Justice Department officials. Bush and his officials, including Gonzales, who will ascend to the position of attorney general in 2005, will repeatedly insist that he has the authority, both under the Constitution and under Congress’s authorization to use military force against terrorists passed after the 9/11 attacks (see September 14-18, 2001), to bypass the requirements for court warrants to monitor US citizens. Critics will say that such surveillance is illegal under the Foreign Intelligence Surveillance Act. [New York Times, 7/29/2007]
Domestic Surveillance Began Before 9/11? - Though Bush officials eventually admit to beginning surveillance of US citizens only 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, July 2001, and Early 2002).

Entity Tags: US Department of Justice, National Security Agency, New York Times, James B. Comey Jr., Alberto R. Gonzales, Andrew Card, Bush administration (43), George W. Bush, John Ashcroft

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

Thomas Tamm.Thomas Tamm. [Source: Newsweek]Thomas Tamm, a veteran Justice Department prosecutor with a high-level security clearance, is finishing up a yearlong post with the Office of Intelligence Policy and Review (OIPR), a Justice Department unit handling wiretaps of suspected terrorists and spies. As his stint is coming to a close, Tamm learns of the existence of a highly classified National Security Agency (NSA) program that is electronically eavesdropping on American citizens—domestic wiretapping. He later learns that “the program,” as it is referred to by those few who know of it at all, is called “Stellar Wind.”
Concealment from FISA Judges - Tamm learns that the NSA program is being hidden from the Foreign Intelligence Surveillance Act (FISA) Court, a panel of federal judges who by law must approve and supervise such surveillance for intelligence purposes. OIPR lawyers ask the FISA Court for permission to implement national-security wiretaps. But, Tamm learns, some wiretaps—signed only by Attorney General John Ashcroft—are going to the chief FISA Court judge and not the other ten judges on the FISA panel. The “AG-only” requests are extraordinarily secretive, and involve information gleaned from what is only referred to as “the program”—Stellar Wind. Only a very few White House and US intelligence officials know the name and the nature of “the program.” Stellar Wind involves domestic wiretaps on telephones and computer e-mail accounts derived from, but not necessarily linked to, information secured from captured al-Qaeda computers and cell phones overseas. With the voluntary cooperation of American telecommunications companies (see 1997-August 2007 and After, February 2001, February 2001, and February 2001 and Beyond), the NSA program also collects vast amounts of personal data about US citizens’ phone and e-mail communications. The program also collects an enormous amount of financial information from the Treasury Department (see February 28, 2006), all collected as part of the NSA’s “data mining” efforts (see Late 1999 and After September 11, 2001).
Program Is 'Probably Illegal,' Says DOJ Official - Tamm, suspicious about the unusual requests, asks his supervisors about the program, and is told to drop the subject. “[N]o one wanted to talk about it,” he will recall. Tamm asks one of his supervisors, Lisa Farabee, “Do you know what the program is?” Farabee replies: “Don’t even go there.… I assume what they are doing is illegal.” Tamm is horrified. His first thought, he will later recall, is, “I’m a law enforcement officer and I’m participating in something that is illegal?” Tamm soon finds out from deputy OIPR counsel Mark Bradley that the chief FISA judge, Colleen Kollar-Kotelly, is raising unwanted questions about the warrant requests (see 2004 and 2005), and “the AG-only cases are being shut down.” Bradley adds, “This may be [a time] the attorney general gets indicted.”
Request for Guidance Turned Down - For weeks, Tamm agonizes over what to do. He seeks guidance from a former colleague, Sandra Wilkinson, who now works on the Senate Judiciary Committee. The two have coffee in the Senate cafeteria, and Tamm asks Wilkinson to ask if anyone on the committee knows anything about “the program.” Weeks go by without a response, and Tamm sends Wilkinson an e-mail from his OIPR computer—an e-mail that will later alert the FBI to Tamm’s interest in Stellar Wind. During a second conversation, Wilkinson refuses to give Tamm any information. “Well, you know, then,” he replies, “I think my only option is to go to the press.”
Contacting the New York Times - Tamm finally decides to contact the New York Times’s Eric Lichtblau, who has written several stories on the Justice Department that impressed Tamm. By this point he has transferred out of OIPR and back into a Justice Department office that would allow him to return to the courtroom. Tamm calls Lichtblau from a pay phone near the US District Courthouse in Washington. “My whole body was shaking,” he will recall. He identifies himself only as “Mark” (his middle name), and arranges to meet Lichtblau at a bookstore near the Justice Department. (In his 2008 book Bush’s Law: The Remaking of American Justice, Lichtblau describes Tamm as “a walk-in” source who was “agitated about something going on in the intelligence community.” Lichtblau will describe Tamm as wary and “maddeningly vague,” but as they continue to meet—usually in bookstores and coffee shops in the Capitol District—Tamm’s “credibility and his bona fides became clear and his angst appears sincere. Eighteen months later, after finally overriding a request and warning from President Bush not to print the story (see December 6, 2005), the Times reports on the existence of the NSA program (see December 15, 2005). [Ars Technica, 12/16/2008; Newsweek, 12/22/2008]

Entity Tags: Mark Bradley, Federal Bureau of Investigation, Eric Lichtblau, Colleen Kollar-Kotelly, Bush administration (43), ’Stellar Wind’, Foreign Intelligence Surveillance Court, Lisa Farabee, Senate Judiciary Committee, Thomas Tamm, Sandra Wilkinson, Office of Intelligence Policy and Review, New York Times, US Department of the Treasury, National Security Agency, US Department of Justice, John Ashcroft

Timeline Tags: Civil Liberties

At a speech in Hershey, Pennsylvania, supporting the USA Patriot Act (see October 26, 2001), President Bush tells listeners that all US surveillance efforts are done with warrants from the Foreign Intelligence Surveillance Act (FISA) Court: “For years, law enforcement used so-called roving wire taps to investigate organized crime. You see, what that meant is if you got a wire tap by court order—and, by the way, everything you hear about requires court order, requires there to be permission from a FISA court, for example.… See, with court approval, we have long used roving wire taps to lock up monsters—mobsters. Now [with the Patriot Act in effect] we have a chance to lock up monsters, terrorist monsters.” [White House, 4/19/2004] The next day, Bush makes a similar claim during another pro-Patriot Act speech in Buffalo. He tells listeners: “[T]here are such things as roving wiretaps. Now, by the way, any time you hear the United States government talking about wiretap, it requires—a wiretap requires a court order. Nothing has changed, by the way. When we’re talking about chasing down terrorists, we’re talking about getting a court order before we do so. It’s important for our fellow citizens to understand, when you think Patriot Act, constitutional guarantees are in place when it comes to doing what is necessary to protect our homeland, because we value the Constitution. But a roving wiretap means—it was primarily used for drug lords. A guy, a pretty intelligence drug lord would have a phone, and in old days they could just get a tap on that phone. So guess what he’d do? He’d get him another phone, particularly with the advent of the cell phones. And so he’d start changing cell phones, which made it hard for our DEA types to listen, to run down these guys polluting our streets. And that changed, the law changed on—roving wiretaps were available for chasing down drug lords. They weren’t available for chasing down terrorists, see? And that didn’t make any sense in the post-9/11 era. If we couldn’t use a tool that we’re using against mobsters on terrorists, something needed to happen. The Patriot Act changed that. So with court order, law enforcement officials can now use what’s called roving wiretaps, which will prevent a terrorist from switching cell phones in order to get a message out to one of his buddies.” [White House, 4/20/2004] Former AT&T senior technician Mark Klein (see July 7, 2009 and May 2004), who helped install the equipment used by the National Security Agency (NSA) and his firm to intercept foreign and domestic Internet communications (see January 16, 2004), will later say that Bush’s insistence that the administration gets court orders before wiretapping communications is false. AT&T, on behalf of the NSA, was monitoring “billions of messages a second,” Klein will write, all without court orders. [Klein, 2009, pp. 47-48] Klein will call Bush’s description of the surveillance program “disingenuous,” and continue: “They present it as about phone calls. They’re just watching a few bad people who make phone calls to al-Qaeda and the Middle East, and you notice they don’t talk about the Internet hardly at all. That part of it hasn’t been revealed, because if they did, Americans would realize it’s not just a few people; it’s everybody, because the data they’re handing over is not selected out. When you run fiber optics through a splitter and you send all that data to a secret room, there’s no selecting going on there at all.… They have no way of sifting it out unless they look through it later. Now they can claim, ‘Oh, we are right as rain; we’re only doing the legal thing and selecting out a few people that we’re legally entitled to,’ but that’s only after they get all the data. The analogy I use: If the government claims: ‘Well, when you do your taxes, why don’t you just write me a blank check and we’ll fill in the amount? Don’t worry. We’ll do it legal. We’ll fill in the right amount,’ would you do that? Nobody would trust the government by writing a blank check to them. It’s the same thing with the data we’re giving them.… [T]he Fourth Amendment specifically bans general warrants. It calls for specific warrants in which the things to be seized and the persons to be seized are specifically named. There’s a reason for that. It’s to protect against arbitrary government power. And what they’ve done is to trample over the Fourth Amendment by basically instituting a general warrant on the Internet.” [PBS Frontline, 5/15/2007]

Entity Tags: Foreign Intelligence Surveillance Court, Mark Klein, National Security Agency, George W. Bush

Timeline Tags: Civil Liberties

2005: NSA Proposes New Data Mining Program

The National Security Agency calls for proposals in regard to a new electronic surveillance program, the Advanced Capabilities for Intelligence Analysis (ACIA). Like its cousin, the Novel Intelligence from Massive Data (NIMD) project (see After September 11, 2001), ACIA will use a huge electronic database of information on US citizens and foreign nationals to track potential terrorists and terror plots. Like NIMD, ACIA will look for ways “to construct and use plausible futures in order to provide additional, novel interpretations for today’s collection” of intelligence information, according to the call for proposals. [National Journal, 1/20/2006]

Entity Tags: National Security Agency, Advanced Capabilities for Intelligence Analysis, Novel Intelligence from Massive Data

Timeline Tags: Civil Liberties

In a Columbus, Ohio, speech praising the USA Patriot Act (see October 26, 2001), President Bush claims that when US government agencies wiretap anyone’s phones or email communications, they do so with a court order. Bush says: “Before the Patriot Act, agents could use wiretaps to investigate a person committing mail fraud, but not to investigate a foreign terrorist. The Patriot Act corrected all these pointless double standards—and America is safer as a result. One tool that has been especially important to law enforcement is called a roving wiretap. Roving wiretaps allow investigators to follow suspects who frequently change their means of communications. These wiretaps must be approved by a judge, and they have been used for years to catch drug dealers and other criminals. Yet, before the Patriot Act, agents investigating terrorists had to get a separate authorization for each phone they wanted to tap. That means terrorists could elude law enforcement by simply purchasing a new cell phone. The Patriot Act fixed the problem by allowing terrorism investigators to use the same wiretaps that were already being using against drug kingpins and mob bosses. The theory here is straightforward: If we have good tools to fight street crime and fraud, law enforcement should have the same tools to fight terrorism.” [White House, 6/9/2005] Bush made almost identical claims a year ago (see April 19-20, 2004). The same day as Bush makes his speech, the White House issues a fact sheet making the same claims (see June 9, 2005). Former AT&T senior technician Mark Klein (see July 7, 2009 and May 2004), who helped install the equipment used by the National Security Agency (NSA) and his firm to intercept foreign and domestic Internet communications (see January 16, 2004), will later say that Bush’s insistence that the administration gets court orders before wiretapping communications is false. AT&T, on behalf of the NSA, was monitoring “billions of messages a second,” Klein will write, all without court orders. [Klein, 2009, pp. 47-48]

Entity Tags: Mark Klein, George W. Bush, National Security Agency, USA Patriot Act

Timeline Tags: Civil Liberties

New York Times headline from article revealing NSA surveillance.New York Times headline from article revealing NSA surveillance. [Source: CBS News]The New York Times reveals that after the 9/11 attacks, President Bush granted the National Security Agency (NSA) secret authorization to eavesdrop on Americans and others inside the US without going through the Foreign Intelligence Surveillance Act (FISA) court to obtain legal warrants (see Early 2002. The administration justifies its actions by claiming such eavesdropping, which includes wiretapping phones and reading e-mails, is necessary to find evidence of terrorist activities, and says the nation needs the program after the 9/11 attacks exposed deficiencies in the US intelligence community’s information gathering process, and because of what they characterize as the “handcuffing” of US intelligence agencies by restrictive laws. The Times has had the article for over a year; the White House prevailed on the Times not to publish its findings for that time, arguing that publication would jeopardize continuing investigations and warn potential terrorists that they were under scrutiny. Many believe that the White House wanted to delay the publication of the article until well after the 2004 presidential elections. The Times delayed publication for over a year, and agreed to suppress some information that administration officials say could be useful to terrorists. (Less than two weeks before the article is published, Bush tries to convince the Times not to print the article at all: see December 6, 2005.) Two days after the Times publishes its article, Bush will acknowledge the order, and accuse the Times of jeopardizing national security (see December 17, 2005). The NSA program eavesdrops without warrants on up to 500 people in the US at any given time, officials say; the overall numbers have likely reached into the thousands. Overseas, up to 7,000 people suspected of terrorist ties are being monitored. Officials point to the discovery of a plot by Ohio trucker and naturalized US citizen and alleged al-Qaeda supporter Iyman Faris to bring down the Brooklyn Bridge with blowtorches as evidence of the program’s efficacy. They also cite the disruption of an al-Qaeda plot to detonate fertilizer bombs outside of British pubs and train stations by the program. But, officials say, most people targeted by the NSA for warrantless wiretapping have never been charged with a crime, and many are targeted because of questionable evidence and groundless suspicion. Many raise an outcry against the program, including members of Congress, civil liberties groups, immigrant rights groups, and others who insist that the program undermines fundamental Constitutional protections of US citizens’ civil liberties and rights to privacy. Several other government programs to spy on Americans have been challenged, including the Federal Bureau of Investigation (FBI)‘s surveillance of US citizens’ library and Internet usage, the monitoring of peaceful antiwar protests, and the proposed use of public and private databases to hunt for terrorist links. In 2004, the Supreme Court overturned the administration’s claim that so-called “enemy detainees” were not entitled to judicial review of their indefinite detentions. Several senior officials say that when the warrantless wiretapping program began, it operated with few controls and almost no oversight outside of the NSA itself. The agency is not required to seek the approval of the Justice Department or anyone else outside the FISA court for its surveillance operations. Some NSA officials wanted nothing to do with a program they felt was patently illegal, according to a former senior Bush administration official. Internal concerns about the program prompted the Bush administration to briefly suspend the program while Justice Department officials audited it and eventually provided some guidelines for its operations. A complaint from Judge Colleen Kollar-Kotelly, the federal judge who oversees the FISA Court, helped spur the suspension, according to officials. Kollar-Kotelly questioned whether information obtained under the program was being improperly used as the basis for FISA wiretap warrant requests from the Justice Department. Some government lawyers say that the Justice Department may have deliberately misled Kollar-Kotelly and the FISA court about the program in order to keep the program under wraps. The judge insisted to Justice Department officials that any material gathered under the program not be used in seeking wiretap warrants from her court. The question also arose in the Faris case, when senior Justice Department officials worried that evidence obtained by warrantless wiretapping by the NSA of Faris could be used in court without having to lie to the court about its origins. [New York Times, 12/15/2005]

Entity Tags: US Supreme Court, George W. Bush, US Department of Justice, Iyman Faris, National Security Agency, New York Times, Al-Qaeda, Foreign Intelligence Surveillance Court, Colleen Kollar-Kotelly

Timeline Tags: Civil Liberties

President Bush acknowledges that he issued a 2002 executive order authorizing the National Security Agency (NSA) to wiretap US citizens’ phones and e-mails without proper warrants, and accuses the New York Times of jeopardizing national security by publishing its December 15 article (see Early 2002 and December 15, 2005). Bush says he was within the law to issue such an order, which many feel shatters fundamental Constitutional guarantees of liberty and privacy, but accuses the Times of breaking the law by publishing the article. Bush tells listeners during his weekly radio address that the executive order is “fully consistent” with his “constitutional responsibilities and authorities.” But, he continues, “Yesterday the existence of this secret program was revealed in media reports, after being improperly provided to news organizations. As a result, our enemies have learned information they should not have, and the unauthorized disclosure of this effort damages our national security and puts our citizens at risk.” He admits allowing the NSA to “to intercept the international communications of people with known links to al-Qaeda and related terrorist organizations” in a program designed to “detect and prevent terrorist attacks.” Under the law, the NSA must obtain warrants from the Foreign Intelligence Surveillance Act (FISA) Court, but after Bush’s executive order, it was no longer required to do so. Bush justifies the order by citing the example of two 9/11 hijackers, Khalid Almihdhar and Nawaf Alhazmi, who, he says, “communicated while they were in the United States to other members of al-Qaeda who were overseas, but we didn’t know they were here until it was too late.” Because of the unconstitutional wiretapping program, it is “more likely that killers like these 9/11 hijackers will be identified and located in time, and the activities conducted under this authorization have helped detect and prevent possible terrorist attacks in the United States and abroad.” Bush also admits to reauthorizing the program “more than thirty times,” and adds, “I intend to do so for as long as our nation faces a continuing threat from al-Qaeda and related groups.” [CNN, 12/16/2005] Bush fails to address the likelihood that the domestic surveillance program began well before 9/11 (see Late 1999, February 27, 2000, December 2000, February 2001, February 2001, Spring 2001, July 2001, and Early 2002).

Entity Tags: National Security Agency, George W. Bush, Khalid Almihdhar, Foreign Intelligence Surveillance Act, Nawaf Alhazmi, Al-Qaeda

Timeline Tags: Civil Liberties

After the NSA’s warrantless wiretapping program is revealed (see Early 2002 and December 15, 2005), some commentators criticize the program. Americans have fundamental Constitutional protections that are enforceable in court whether their conversations are domestic or international, says law scholar Geoffrey Stone. Stone says that President Bush’s emphasis that NSA wiretapping only takes place on US calls to overseas phones or overseas e-mails “is no different, as far as the law is concerned, from saying we only do it on Tuesdays.” Former FBI national security law chief Michael Woods, who served in the position when Bush signed the NSA directive, calls the program “very dangerous.” Though Woods says the program was justifiable in the immediate aftermath of 9/11, “[By now] we ought to be past the time of emergency responses. We ought to have more considered views now…. We have time to debate a legal regime and what’s appropriate.” [Washington Post, 12/18/2005] Kate Martin, director of the Center for National Security Studies, says the secret order may amount to Bush authorizing criminal activity in direct violation of FISA. “This is as shocking a revelation as we have ever seen from the Bush administration,” she says. “It is, I believe, the first time a president has authorized government agencies to violate a specific criminal prohibition and eavesdrop on Americans.” The American Civil Liberties Union’s Caroline Frederickson says of the program, “It’s clear that the administration has been very willing to sacrifice civil liberties in its effort to exercise its authority on terrorism, to the extent that it authorizes criminal activity.” [Washington Post, 12/16/2005]

Entity Tags: Center for National Security Studies, Geoffrey Stone, American Civil Liberties Union, National Security Agency, Caroline Frederickson

Timeline Tags: Civil Liberties

During a press conference, President Bush is asked if he will order an investigation into the leak that revealed the NSA’s domestic surveillance program (see December 15, 2005). Bush says he has not directly ordered an investigation, presuming the Justice Department is handling the matter, but he calls the leak “a shameful act for someone to disclose this very important program in a time of war.” And he implies that the leak, and the New York Times’s decision to print the resulting article, is treason: “The fact that we’re discussing this program is helping the enemy.… But it is a shameful act by somebody who has got secrets of the United States government and feels like they need to disclose them publicly.” When asked why he “skip[ped] the basic safeguards of asking courts for permission for the intercepts,” he answers: “[R]ight after September the 11th, I knew we were fighting a different kind of war. And so I asked people in my administration to analyze how best for me and our government to do the job people expect us to do, which is to detect and prevent a possible attack. That’s what the American people want. We looked at the possible scenarios. And the people responsible for helping us protect and defend came forth with the current program, because it enables us to move faster and quicker. And that’s important. We’ve got to be fast on our feet, quick to detect and prevent. We use FISA still—you’re referring to the FISA court in your question—of course, we use FISAs. But FISA is for long-term monitoring. What is needed in order to protect the American people is the ability to move quickly to detect. Now, having suggested this idea, I then, obviously, went to the question, is it legal to do so? I am—I swore to uphold the laws. Do I have the legal authority to do this? And the answer is, absolutely.… [T]he legal authority is derived from the Constitution, as well as the authorization of force by the United States Congress” (see September 14-18, 2001). A reporter asks why “has your administration not sought to get changes in the law instead of bypassing it, as some of your critics have said?” Bush responds by reiterating the point that the program is “limited in nature to those that are known al-Qaeda ties and/or affiliates.” He then reiterates another point: he believes he has the authority to bypass the law. He “share[s] the same concerns” about civil liberties that members of Congress have expressed (see December 16, 2005).” However, his reassurances that domestic calls are not being monitored are not absolute. “[I]f you’re calling from Houston to [Los Angeles], that call is not monitored. And if there was ever any need to monitor, there would be a process to do that.” He is asked: “You say you have an obligation to protect us. Then why not monitor those calls between Houston and LA? If the threat is so great, and you use the same logic, why not monitor those calls? Americans thought they weren’t being spied on in calls overseas—why not within the country, if the threat is so great?” Bush replies: “We will, under current law, if we have to. We will monitor those calls. And that’s why there is a FISA law. We will apply for the right to do so. And there’s a difference—let me finish—there is a difference between detecting so we can prevent, and monitoring. And it’s important to know the distinction between the two.” He concludes, “I just want to assure the American people that, one, I’ve got the authority to do this; two, it is a necessary part of my job to protect you; and, three, we’re guarding your civil liberties.” [White House, 12/19/2005]

Entity Tags: US Department of Justice, George W. Bush, New York Times, National Security Agency

Timeline Tags: Civil Liberties

DARPA logo.DARPA logo. [Source: Duke University]The computer and technology experts at Ars Technica, a well-regarded Web publication which describes itself as focusing on “the art of technology,” speculate on the technology behind the NSA warrantless wiretapping program recently revealed to the public (see December 15, 2005). The Ars Technica experts believe that Senator Jay Rockefeller (D-WV)‘s 2003 comparison between the program and the Total Information Awareness (TIA) project (see March 2002) is the most apt. They believe that the NSA wiretapping program may be built upon the foundation of a shadowy, highly classified surveillance program called Echelon. They write, “This system’s purpose would be to monitor communications and detect would-be terrorists and plots before they happen… This project is not interested in funding ‘evolutionary’ changes in technology, e.g., bit-step improvements to current data mining and storage techniques. Rather, the amount of data that the directors are anticipating (petabytes!) would require massive leaps in technology (and perhaps also some massive leaps in surveillance laws).” [Ars Technica, 12/20/2005; Ars Technica, 2007] Data storage measured in petabytes is a colossal capacity; a petabyte is 1,024 terabytes, and a single terabyte is 1,024 gigabytes, the usual measurement for hard drive capacity. [TechTerms, 2007] The Ars Technica experts continue, “According to DARPA, such data collection ‘increases information coverage by an order of magnitude,’ and ultimately ‘requires keeping track of individuals and understanding how they fit into models.’” They go on to note that the NSA wiretapping program was instituted shortly after the TIA project was quashed by Congress, and say they believe the NSA program is an extension and an outgrowth of TIA. They note that “the FBI requested the legal authorization to do very high-volume monitoring of digital calls” in 1995, that there is “no way for the judicial system to approve warrants for the number of calls that the FBI wanted to monitor,” and that the FBI “could never hire enough humans to be able to monitor that many calls simultaneously, which means that they’d have to use voice recognition technology to look for ‘hits’ that they could then follow up on with human wiretaps.” The Ars Technica experts believe the NSA is using “some kind of high-volume, automated voice recognition and pattern matching system,” employing a form of “smart filtering” that would weed through perhaps hundreds of thousands of computer-monitored calls and turning a fraction of those calls over to human analysts for evaluation: “[Y]es, this kind of real-time voice recognition, crude semantic parsing and pattern matching is doable with today’s technology, especially when you have a budget like the NSA.” In a follow-up, Ars Technica technology specialist and self-described conservative and “privacy nazi” Jon Stokes writes of his own concerns over the program, noting that the program is too wide-reaching and too blunt to actually catch many real terrorists, and that the program is a tremendous intrusion into Americans’ fundamental privacy: “The problem is not that such large-scale industrial fishing invariably catches a few dolphins along with the tuna, but that between 99.999 and 100 percent of what you’re going to get is dolphin.” Stokes also warns that such an intrusive surveillance program will not only violate privacy rights, but be quite ineffective: “As the TSA, with its strip-searching of people’s elderly grandparents, abundantly proves every holiday season, blunt instruments and scorched earth tactics are of dubious value in catching genuine bad actors. In fact, blunt instruments and wide nets are the easiest for professional bad guys to evade. All you need to beat such surveillance tools is patience and know-how.…Blunt instruments like airport facial recognition software and random subway bag searches produce much more noise than they do signal, and any engineer or computer scientist worth his or her salt will tell you that an intelligent, targeted, low-tech approach beats a brute-force high-tech approach every time. There is no high-tech substitute for human intelligence gathering. In fact…an overload of crudely processed information is actually more likely to lead an analyst astray than it is to produce any useful insight.…In the end, brute force security techniques are not only corrosive to democratic values but they’re also bad for national security. They waste massive resources that could be spent more effectively elsewhere, and they give governments and countries a false sense of security that a savvy enemy can exploit to devastating effect.…[I]t’s not just enough to have sound intelligence; you also need political leaders who have the wisdom to use that intelligence appropriately.” [Ars Technica, 12/20/2005]

Entity Tags: Transportation Safety Administration, Total Information Awareness, Federal Bureau of Investigation, John D. Rockefeller, Defense Advanced Research Projects Agency, Jon Stokes, National Security Agency

Timeline Tags: Civil Liberties

Former Senate Majority Leader Tom Daschle (D-SD) writes that Congress explicitly rejected several attempts by the Bush administration to provide him with war-making authority and the authority to wiretap and monitor US citizens “in the United States” when it approved the September 18, 2001 authorization to use military force (AUMF) against terrorists (see September 14-18, 2001). Instead, the Bush administration merely usurped that authority and launched—or expanded (see Spring 2001)—its warrantless wiretapping program, conducted by the NSA. Since then, the Bush administration and the Justice Department have both repeatedly asserted that the AUMF gave them the right to conduct the wiretapping program, an assertion that Daschle says is flatly wrong. On December 21, the Justice Department admitted in a letter that the October 2001 presidential order authorizing warrantless eavesdropping on US citizens did not comply with “the ‘procedures’ of” the law that has regulated domestic espionage since 1978, known as the Foreign Intelligence Surveillance Act (FISA). FISA established a secret intelligence court and made it a criminal offense to conduct electronic surveillance without a warrant from that court, “except as authorized by statute.” However, the letter, signed by Assistant Attorney General William Moschella, argues that the AUMF gave the administration the authority to conduct the program. [Washington Post, 12/22/2005] The letter continues the argument that Congress gave President Bush the implict authority to create an exception to FISA’s warrant requirements, though the AUMF resolution did not mention surveillance and made no reference to the president’s intelligence-gathering authority. The Bush administration kept the program secret until it was revealed by the New York Times on December 15, 2005. Moschella argues that secret intelligence-gathering, even against US citizens, is “a fundamental incident to the use of military force” and that its absence from the resolution “cannot be read to exclude this long-recognized and essential authority to conduct communications intelligence targeted at the enemy.” Such eavesdropping, he argued, must by necessity include conversations in which one party is in the United States. [William Moschella, 12/22/2005 pdf file] Daschle, one of the primary authors of the resolution, says that Moschella and the Bush administration are wrong in their assertions: “I did not and never would have supported giving authority to the president for such wiretaps. I am also confident that the 98 senators who voted in favor of authorization of force against al-Qaeda did not believe that they were also voting for warrantless domestic surveillance” (see September 12-18, 2001). [Washington Post, 12/23/2005]

Entity Tags: National Security Agency, Bush administration (43), Authorization to Use Military Force (AUMF), Al-Qaeda, Foreign Intelligence Surveillance Act, George W. Bush, Osama bin Laden, US Department of Justice, Foreign Intelligence Surveillance Court, New York Times, William E. Moschella, Richard (“Dick”) Cheney, Tom Daschle

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

Suzanne Spaulding, a former counsel for the CIA, the Senate and House intelligence commission, and executive director of the National Terrorism Commission from 1999 through 2000, writes an op-ed criticizing the Bush administration for its domestic surveillance program. She writes that the three main sources of oversight and restraint on Bush’s unfettered efforts to monitor US citizens—Congress, the judiciary, and the American people—have failed to halt what she calls “this extraordinary exercise of presidential power.” Spaulding, who will testify along similar lines before the Senate over a year later (see April 11, 2007), writes, “Ironically, if it is ultimately determined that this domestic surveillance program reflects the exercise of unchecked power in contravention of law, it will wind up weakening the presidency. Once again, we will confront the challenge of restoring Americans’ faith in the rule of law and our system of checks and balances.” The pretense of oversight by the administration, in providing limited and perhaps misleading briefings on the program only to the so-called “Gang of Eight” Congressional leaders, is superficial and ineffective, she writes; the entire process “effectively eliminates the possibility of any careful oversight.” She notes that because of the severe restrictions both in the information doled out to these Congressional leaders, and their strict prohibition on discussing the information with anyone else, even other intelligence panel members, “[i]t is virtually impossible for individual members of Congress, particularly members of the minority party, to take any effective action if they have concerns about what they have heard in one of these briefings. It is not realistic to expect them, working alone, to sort through complex legal issues, conduct the kind of factual investigation required for true oversight and develop an appropriate legislative response.” Congressional oversight is key to retaining the trust of the US citizenry, she writes, and adds that that particular principle was well understood at the CIA while she was there. Oversight “is vital for a secret agency operating in a democracy. True oversight helps clarify the authority under which intelligence professionals operate. And when risky operations are revealed, it is important to have members of Congress reassure the public that they have been overseeing the operation. The briefings reportedly provided on the National Security Agency (NSA) surveillance program reflect, instead, a ‘check the box’ mentality—allowing administration officials to claim that they had informed Congress without having really achieved the objectives of oversight.” While those few members of Congress are given little real information, the judiciary, particularly the Foreign Intelligence Surveillance Court (FISC), is cut out of the process entirely. “Instead of going to a judge on the secret court that was specifically established to authorize foreign intelligence surveillance inside the United States, we are told that an NSA shift supervisor was able to sign off on the warrantless surveillance of Americans,” she writes. “That’s neither a check nor a balance. The primary duty of the NSA shift supervisor, who essentially works for the president, is to collect intelligence. The task of the judge is to ensure that the legal standards set out in the 1978 Foreign Intelligence Surveillance Act (FISA) have been met. Which one has stronger independence to say no, if no needs to be said? The objectives of the surveillance program, as described in news reports, seem laudable. The government should be running to ground the contacts listed in a suspected terrorist’s cell phone, for example. What is troubling is that this domestic spying is being done in apparent contravention of FISA, for reasons that still are not clear.” In her piece she takes issue with the Bush administration’s insistence that its surveillance program is legal and necessary. She makes the following case:
Specious Arguments to Duck FISA Court - The argument that the FISA Court is too slow to respond to immediate needs for domestic surveillance is specious, she says. “FISA anticipates situations in which speed is essential. It allows the government to start eavesdropping without a court order and to keep it going for a maximum of three days. And while the FISA application process is often burdensome in routine cases, it can also move with remarkable speed when necessary, with applications written and approved in just a few hours.” Instead, she says that the Bush administration must have dodged FISC because their wiretaps didn’t meet FISA standards of probable cause. Since FISC is staffed by judges hand-picked by conservative then-Supreme Court Chief Justice William Rehnquist, “who presumably felt that they had the right temperament and expertise to understand the national security imperatives as well as the need to protect civil liberties,” and since FISC has granted all but four of the more than 5,645 requests for wiretaps and surveillance made by the administration since 2001, to argue that FISC is unresponsive is simply wrong-headed. And, she notes, if the administration felt that FISA’s standards were too strict, it could have moved to amend the law to allow more leniency in obtaining such warrants. It has not done so since the passage of the 2001 Patriot Act. She writes, “The administration reportedly did not think it could get an amendment without exposing details of the program. But this is not the first time the intelligence community has needed a change in the law to allow it to undertake sensitive intelligence activities that could not be disclosed. In the past, Congress and the administration have worked together to find a way to accomplish what was needed. It was never previously considered an option to simply decide that finding a legislative solution was too hard and that the executive branch could just ignore the law rather than fix it.”
No Justification for Keeping Program Secret - In addition, the administration has consistently failed to make a case for keeping the domestic wiretapping policy secret for four years. US-designated terrorist groups already know that the government listens to their cell phone conversations whenever possible, and they are well aware of the various publicly known programs to search through millions of electronic communications, such as the NSA’s Echelon program (see April 4, 2001). “So what do the terrorists learn from a general public discussion about the legal authority being relied upon to target their conversations?” she asks. “Presumably very little. What does the American public lose by not having the public discussion? We lose the opportunity to hold our elected leaders accountable for what they do on our behalf.”
Assertions that Program Authorized by Congress Fallacious - The argument advanced by Attorney General Alberto Gonzales that says the program does not violate the law because Congress’s post-9/11 authorization of force against terrorists gives the administration the right to circumvent FISA is equally specious, she argues. “FISA does provide for criminal penalties if surveillance is conducted under color of law ‘except as authorized by statute.’ This is a reference to either FISA or the criminal wiretap statute. A resolution, such as the Use of Force resolution, does not provide statutory authority. Moreover, FISA specifically provides for warrantless surveillance for up to 15 days after a declaration of war. Why would Congress include that provision if a mere Use of Force resolution could render FISA inapplicable? The law clearly states that the criminal wiretap statute and FISA are ‘the exclusive means by which electronic surveillance…and the interception of domestic wire, oral, and electronic communications may be conducted.’ If these authorities are exclusive, there is no other legal authority that can authorize warrantless surveillance. Courts generally will not view such a clear statutory statement as having been overruled by a later congressional action unless there is an equally clear indication that Congress intended to do that.” Therefore, by any legal standard, the administration’s program is, apparently, illegal.
No Inherent Presidential Authority - The ultimate argument by Bush officials, that the president has some sort of inherent authority as commander-in-chief to authorize illegal wiretaps, is the same groundless legal argument recently used to justify the use of torture by US intelligence and law enforcement agents (see December 28, 2001). That argument was withdrawn, Spaulding notes, after it became publicly known. While the courts have not specifically ruled on this particular argument, Spaulding notes that the Supreme Court refused to recognize then-President Harry Truman’s attempt to seize control of the nation’s steel mills to avert a possible strike during the Korean War. The Supreme Court ruled “that the president’s inherent authority is at its weakest in areas where Congress has already legislated. It ruled that to find inherent presidential authority when Congress has explicitly withheld that authority—as it has in FISA—‘is not merely to disregard in a particular instance the clear will of Congress. It is to disrespect the whole legislative process and the constitutional division of authority between president and Congress.’” She notes that in 2004, the Supreme Court rejected the argument for unchecked presidential power in the Hamdi case (see June 28, 2004), with Justice Sandra Day O’Connor writing for the court, “We have long since made clear that a state of war is not a blank check for the president when it comes to the rights of the Nation’s citizens. …Whatever power the United States Constitution envisions for the Executive in its exchanges with… enemy organizations in times of conflict, it most assuredly envisions a role for all three branches when individual liberties are at stake.” Spaulding concludes, “The rule of law and our system of checks and balances are not a source of weakness or a luxury of peace. As O’Connor reminded us in Hamdi, ‘It is during our most challenging and uncertain moments…that we must preserve our commitment at home to the principles for which we fight abroad.’” [Washington Post, 12/25/2005]

Entity Tags: Sandra Day O’Connor, William Rehnquist, USA Patriot Act, Suzanne Spaulding, National Security Agency, US Supreme Court, Harry S. Truman, Alberto R. Gonzales, “Gang of Eight”, National Commission on Terrorism, Central Intelligence Agency, Foreign Intelligence Surveillance Act, Foreign Intelligence Surveillance Court, Echelon, Bush administration (43)

Timeline Tags: Civil Liberties

Retired AT&T technician Mark Klein (see July 7, 2009 and May 2004), angered by the Bush administration’s counterattack against government and media members who have helped to expose its warrantless wiretapping operation (see December 15-31, 2005), decides to go public with a memo he wrote about his own knowledge of the collusion between AT&T and the National Security Agency (NSA) in eavesdropping on American citizens’ communications (see January 16, 2004). He updates the memo with a brief preface, selects eight pages of the 121 pages of AT&T documentation he possesses which he believes gives a good overview of the NSA’s surveillance equipment installation, and includes the two photographs he has taken of the NSA’s “secret room” at the AT&T facility in San Francisco and the Internet research he has done on the Narus STA 6400 equipment the NSA is using to sort the communications being captured and recorded (see Late 2003). Instead of entrusting his newly refurbished memo to the Internet, he uses the PGP (Pretty Good Privacy) security protocol for anticipated dissemination, burns the data onto a CD, and begins searching online for civil liberties groups that might be interested in his work. [Wired News, 5/17/2006; Klein, 2009, pp. 53-55]

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

Timeline Tags: Civil Liberties

Attorney General Alberto Gonzales testifies before the Senate Judiciary Committee that the new “reasonable belief” standard for wiretaps is just another term for “probable cause.” Gonzales’s claim is legally false. The difference between the two standards is significant: while administration officials must present relatively compelling evidence that a US citizen has ties to US-designated terrorist organizations or is involved in terror plots to meet the “probable cause” standard for authorizing electronic surveillance, the “reasonable belief” standard is far more lenient. Gonzales also repeats for the committee President Bush’s claims that the Foreign Intelligence Surveillance Court (FISC) isn’t “agile” or “nimble” enough to assist the Justice Department and the US intelligence community in finding and arresting terrorists, a claim that FISC judges find baffling. FISC routinely approves almost all warrant requests, and FISA allows the government to conduct surveillance for 72 hours before even applying for a warrant. Additionally, FISC has consistently worked with the government to expedite requests and streamline the warrant-issuance procedure. For example, in March 2002, when the FBI and Pakistani police arrested al-Qaeda operative Abu Zubaida, agents found that almost all of Zubaida’s contacts were already being monitored under FISA warrants or through international surveillance efforts (see March 28, 2002). One government official says that the Zubaida discovery gave them “some comfort” that surveillance efforts were working as needed. [Washington Post, 2/9/2006]

Entity Tags: Foreign Intelligence Surveillance Court, Abu Zubaida, Al-Qaeda, Alberto R. Gonzales, US Department of Justice, Senate Judiciary Committee

Timeline Tags: Civil Liberties

President Bush’s rationale for authorizing warrantless surveillance against US citizens is of questionable legality and “may represent an exercise of presidential power at its lowest ebb,” according to a Congressional analysis. The Congressional Research Service (CRS), the independent and nonpartisan research bureau of the legislature, answers the question raised around the nation since the revelation of the secret program by the New York Times (see Early 2002): did Bush break the law when he ordered the National Security Agency to eavesdrop on US citizens without court orders or judicial oversight? The CRS report does not give a definitive yes or no answer to that question, but finds Bush’s legal rationale dubious at best. That rationale “does not seem to be as well-grounded” as administration lawyers have claimed, and the report finds that, despite assertions to the contrary by Bush and administration officials, Congress did not authorize warrantless wiretaps when it gave the executive branch the authority to wage war against al-Qaeda in the days after the 9/11 attacks. Unsurprisingly, Bush administration officials criticize the report. But some Republicans and Democrats find the report’s conclusions persuasive, and hold up the report as further evidence that Bush overextended his authority by authorizing the wiretaps. For instance, Republican Thomas Kean, the former chairman of the 9/11 commission (see January 27, 2003, says he doubts the program’s legality. Kean, who has not spoken publicly about the program until now, says the 9/11 commission was never told about the program, and he strongly doubts its legality. “We live by a system of checks and balances, and I think we ought to continue to live by a system of checks and balances,” Kean says. [Congressional Research Service, 1/5/2006 pdf file; New York Times, 1/6/2006]

Entity Tags: George W. Bush, 9/11 Commission, Congressional Research Service, New York Times, National Security Agency, Thomas Kean

Timeline Tags: Civil Liberties

Fourteen law professors and former federal officials send a letter criticizing the Justice Department’s recent legal arguments supporting the legality of the secret NSA surveillance program (see December 19, 2005 and December 21-22, 2005). The letter is signed by law professors Curtis A. Bradley, a former State Department legal advisor; David Cole; Walter Dellinger, a former acting solicitor general and assistant attorney general; Ronald Dworkin; Richard Epstein; Harold Koh, a former assistant secretary of state and a former Justice Department official; Philip B. Heymann, a former deputy attorney general; Martin Lederman, a former Justice Department official; Beth Nolan, a former presidential counsel and a former Justice Department official; William S. Sessions, the former director of the FBI; Geoffrey R. Stone; Kathleen M. Sullivan; Laurence H. Tribe; and William Van Alstyne, a former Justice Department attorney. The letter is couched in legal language, but clearly states that the signees consider the NSA surveillance program entirely illegal: “[T]he program appears on its face to violate existing law.” The signees consider and reject the Justice Department’s argument that Congress “implicitly authorized the NSA program when it enacted the Authorization for Use of Military Force (AUMF) against al-Qaeda” in 2001 (see September 14-18, 2001), writing: “[T]he AUMF cannot reasonably be construed to implicitly authorize warrantless electronic surveillance in the United States during wartime, where Congress has expressly and specifically addressed that precise question in FISA and limited any such warrantless surveillance to the first 15 days of war.” The signees also reject the Justice Department’s argument that the president’s “inherent constitutional authority as commander in chief to collect ‘signals intelligence’” is not prohibited by FISA. The signees conclude that the Justice Department has failed “to offer a plausible legal defense of the NSA domestic spying program. If the administration felt that FISA was insufficient, the proper course was to seek legislative amendment, as it did with other aspects of FISA in the Patriot Act, and as Congress expressly contemplated when it enacted the wartime wiretap provision in FISA. One of the crucial features of a constitutional democracy is that it is always open to the president—or anyone else—to seek to change the law. But it is also beyond dispute that, in such a democracy, the president cannot simply violate criminal laws behind closed doors because he deems them obsolete or impracticable.” [Marty Lederman, 1/9/2006; Center for Democracy and Technology, 1/9/2006 pdf file]

Entity Tags: Harold Koh, William S. Sessions, William Van Alstyne, Curtis Bradley, Beth Nolan, Geoffrey Stone, US Department of Justice, Walter Dellinger, Richard Epstein, Martin (“Marty”) Lederman, Laurence Tribe, Kathleen M. Sullivan, Ronald Dworkin, National Security Agency, Philip Heymann, David D. Cole

Timeline Tags: Civil Liberties

Russell Tice.Russell Tice. [Source: ABC News]Former National Security Agency (NSA) official Russell Tice says that many of the wiretapping operations he once helped run were illegal. “I specialized in what’s called special access programs,” Tice tells ABC News. “We called them ‘black world’ programs and operations.” Tice is ready to testify before Congress about what he calls the illegal wrongdoings that are part of the Defense Department and the NSA’s wiretapping programs enacted after the 9/11 attacks. Many of these programs were targeted at innocent US citizens. “The mentality was we need to get these guys, and we’re going to do whatever it takes to get them,” he says. The technology used to track and sort through every domestic and international telephone center is impressive. “If you picked the word ‘jihad’ out of a conversation, the technology exists that you focus in on that conversation, and you pull it out of the system for processing.” Intelligence analysts use the information to develop graphs that resemble spiderwebs linking one suspect’s phone number to hundreds or even thousands more. While the president has admitted giving orders that allowed the NSA to eavesdrop on a small number of Americans without warrants, Tice says says the number of Americans subject to eavesdropping by the NSA could be in the millions if the full range of secret NSA programs is used. “That would mean for most Americans that if they conducted, or you know, placed an overseas communication, more than likely they were sucked into that vacuum.” Tice has been subjected to what appears to be bureaucratic punishment for his willingness to blow the whistle on the nation’s warrantless wiretapping programs; last year the NSA revoked his security clearance based on what it calls "psychological concerns," and later fired him. Tice says that is the way the NSA often deals with employees it considers troublemakers and whistleblowers (see January 25-26, 2006). [ABC News, 1/10/2006; ABC, 1/10/2006]

Entity Tags: US Department of Defense, National Security Agency, Russell Tice

Timeline Tags: Civil Liberties

The Congressional Research Service (CRS) finds that the Bush administration broke the law when it refused to provide timely and complete briefings to the appropriate members of Congress on the National Security Agency’s domestic wiretapping program. The CRS’s legal analysis concludes that the administration’s limited briefings are “inconsistent with the law.” The CRS performed the analysis at the request of Representative Jane Harman (D-CA), the ranking Democrat on the House Intelligence Committee and a member of the so-called “Gang of Eight,” the eight members of Congress that Bush allows to receive limited information on the NSA program. Harman, who calls the CRS report “a solid piece of work,” wrote to Bush on January 4, 2006, to inform him that she believes the information should be provided to all the members of the House and Senate Intelligence Committees. The briefings, which are intentionally limited in scope, are provided only to eight members of Congress: the Speaker of the House, the House Minority Leader, the Senate Majority and Minority Leaders, and the ranking members of the House and Senate Intelligence Committees. Harman says that an upcoming briefing, scheduled for February 6, should include all members of the intelligence committees. The briefings on the NSA program are held through the office of Vice President Dick Cheney. Though Harman is in agreement with the CRS that the briefings are legally inadequate, House Intelligence Committee chairman Peter Hoekstra (R-MI) has said he believes the briefings are adequate for Congressional oversight.
bullet The CRS finding is based on the requirements of the 1947 National Security Act, that mandates that all of the members of the House and Senate Intelligence Committees be “fully and currently informed” of intelligence activities. The Act says that “covert actions” can only be revealed to the “Gang of Eight,” but, the CRS finds, since the NSA’s domestic surveillance program does not appear to be covert, limiting the briefings to just eight members of Congress “would appear to be inconsistent with the law.” The memo gives several options for the administration to bring itself into compliance with the law, noting, for example, that “[t]he executive branch may assert that the mere discussion of the NSA program generally could expose certain intelligence sources and methods to disclosure.” [New York Times, 1/18/2006; Washington Post, 1/19/2006]

Entity Tags: Jane Harman, “Gang of Eight”, Bush administration (43), House Intelligence Committee, National Security Act, Peter Hoekstra, National Security Agency, Congressional Research Service, Richard (“Dick”) Cheney, Senate Intelligence Committee

Timeline Tags: Civil Liberties

The Justice Department (DOJ) issues a 42-page “white paper” detailing its arguments that the National Security Agency’s warrantless wiretapping program (see February 2001, Spring 2001, After September 11, 2001, After September 11, 2001, October 2001, Early 2002, September 2002, Late 2003-Early 2004, April 19-20, 2004, June 9, 2005, June 9, 2005, December 15, 2005, December 17, 2005, December 19, 2005, December 24, 2005, January 5, 2006, January 18, 2006, January 18, 2006, January 23, 2006, and January 30, 2006) is legal. The DOJ reiterates two previous arguments (see December 19, 2005 and December 21-22, 2005)—that Congress implicitly authorized the program in 2001 when it authorized the Bush administration to begin military actions against al-Qaeda (see September 14-18, 2001), and that the president has the authority as commander in chief to conduct such a program—even though these arguments have been thoroughly refuted (see January 9, 2006) and overridden by the Supreme Court’s recent Hamdan v. Rumsfeld ruling (see December 15, 2005 and July 8, 2006). In its paper, the DOJ declares that if necessary, it will attack the legality of the Foreign Intelligence Surveillance Act (FISA) in order to stop that law from “imped[ing]” the president’s power to order domestic surveillance. In essence, according to columnist and civil liberties lawyer Glenn Greenwald, the DOJ is asserting that the president’s powers are limitless as long as he or she declares a given action necessary to battle terrorism. “Because the president has determined that the NSA activities are necessary to the defense of the United States from a subsequent terrorist attack in the armed conflict with al-Qaeda, FISA would impermissibly interfere with the president’s most solemn constitutional obligation—to defend the United States against foreign attack,” the DOJ claims. Neither Congress nor the court system has the right to limit or even review the president’s powers, according to the DOJ. Greenwald calls the DOJ’s argument “a naked theory of limitless presidential power.” In fact, Greenwald argues, the DOJ is asserting that FISA itself is unconstitutional, because no law can in any way limit the president’s power to conduct foreign policy or protect the nation’s security. The document is part of a larger Bush administration defense of the USA Patriot Act, and part of the administration’s push to convince Congress to reauthorize that legislation. Attorney General Alberto Gonzales sends the document to Congress. Justice Department official Steven Bradbury says, “When it comes to responding to external threats to the country… the government would like to have a single executive who could act nimbly and agilely.” [US Department of Justice, 1/19/2006 pdf file; Glenn Greenwald, 1/20/2006; Washington Post, 1/20/2006]
Dubious Legality - The program has already been found to be of questionable legality by two reports recently released by the nonpartisan Congressional Research Service (see January 5, 2006 and January 18, 2006). And author James Bamford, a US intelligence expert who has written extensively about the NSA, says that the Justice Department’s arguments are specious in light of Congress’s clear intent in its 1978 passage of FISA to block warrantless wiretapping, and its demonstrated lack of intent to allow any such operations within US borders in the October 2001 legislation. “You could review the entire legislative history in the authorization to use military force and I guarantee you won’t find one word about electronic surveillance,” he says. “If you review the legislative history of FISA, you will find Attorney General Griffin Bell testifying before the intelligence committee saying this was specifically passed to prevent a president from claiming inherent presidential powers to do this again.” [Washington Post, 1/20/2006]
Self-Contradictory Justifications - In 2007, author and reporter Charlie Savage will write of the “shaky foundation” supporting the administration’s “two-pronged attacks on critics of the wiretapping program and the Patriot Act,” which some officials have claimed authorizes the program. “Beneath the simplistic rhetoric, the administration’s position was self-contradicting,” Savage will write. If Bush has the inherent presidential authority to order warrantless wiretapping, then he needs no authorization from the Patriot Act or any other legislation. But if Congress is endangering the nation by delaying in reauthorizing the Patriot Act and thusly not rendering the program legal, then the wiretapping program is illegal after all. The memo attempts to “paper… over” this problem by claiming that, while Bush has the inherent authority to do whatever he feels is necessary to protect the country, the Patriot Act’s extra police powers are still necessary in “contexts unrelated to terrorism.” Savage will write, “In other words, the administration’s own position, hidden in the fine print, was that the Patriot Act was superfluous and irrelevant to the war on terrorism—a somewhat absurd stance made necessary by their desire to say the wiretapping program was legal.” [Savage, 2007, pp. 315]
Failure to Address Probable Beginning of Program Before Attacks - The Justice Department says nothing about the program apparently beginning well before 9/11 (see Late 1999, February 27, 2000, December 2000, February 2001, February 2001, Spring 2001, July 2001, and Early 2002).

Entity Tags: National Security Agency, James Bamford, Steven Bradbury, US Department of Justice, Griffin Bell, Senate Judiciary Committee, Glenn Greenwald, Foreign Intelligence Surveillance Act, Alberto R. Gonzales, Arlen Specter, George W. Bush, Congressional Research Service, Charlie Savage

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

Current and former National Security Agency (NSA) employees say that the agency often retaliates against whistleblowers by labeling them “delusional,” “paranoid,” or “psychotic.” They say such labeling protects powerful superiors who might be incriminated by potentially criminal evidence provided by such whistleblowers, and helps to keep employees in line through fear and intimidation. One NSA whistleblower, former intelligence analyst Russell Tice, is currently the victim of such agency allegations. Tice, along with three other former analysts, Diane Ring, Thomas Reinbold, and another analyst who wishes to remain anonymous, make the allegations of unfounded psychological labeling by the agency; their allegations are corroborated by a current NSA officer who also wishes to remain anonymous. [Cybercast News Service, 1/25/2006]
Identifying a Potential Spy - Tice, a former signals intelligence (SIGINT) officer, is the first NSA whistleblower to capture the media’s attention, when in 2004, the Pentagon investigated possible NSA retaliation against him. In 2001, Tice reported that a co-worker at the Pentagon’s Defense Intelligence Agency (DIA) was possibly engaged in espionage for China, possibly connected to California Republican official and Chinese double agent Katrina Leung. [Democracy Now!, 1/3/2006; Cybercast News Service, 1/25/2006] Tice says, “I saw all the classic signs” in the DIA employee. After transferring to the NSA in November 2002, he reported his concerns again, this time adding criticisms of incompetence for the FBI, who in Tice’s view failed to properly investigate his allegations. Instead, Tice was ordered by NSA Security to undergo psychiatric evaluation. He was labeled “paranoid” and “psychotic” by NSA forensic psychologist Dr. John Michael Schmidt; Tice lost his top-secret security clearance as a result. [Cybercast News Service, 1/25/2006]
Fired - He was fired from the NSA in 2005 after spending his last years at the agency pumping gas and working in an agency warehouse. “I reported my suspicion and got blown off,” he says. “I pushed the issue and that ticked them off, the fact that I questioned their almighty wisdom.” [Cox News Service, 5/5/2005] Tice again made news on January 10, 2006 (see January 10, 2006), when he admitted to being a source for the New York Times’s article about a secret NSA electronic surveillance program against American citizens, a program carried out in the name of combating terrrorism. [ABC News, 1/10/2006]
No Evidence of Mental Instability - As for Tice’s own psychological evaluation by Schmidt, according to three other clinical psychologists, there is “no evidence” of either of the disorders in Tice’s mental makeup. And another NSA psychologist pronounced Tice mentally sound in 2002, though having a “somewhat rigid approach to situations.” Tice is described by five retired NSA and intelligence officials as “congenial,” “enthusiastic,” and “a scholar of high intellectual rigor [with] sound judgment [and] unparalleled professionalism.” Tice says of the NSA’s attempts to smear whistleblowers with apparently baseless psychological allegations, “This nonsense has to stop. It’s like Soviet-era torture. These people are vicious and sadistic. They’re destroying the lives of good people, and defrauding the public of good analysts and linguists.” But it has been effective in cowing others who were, in Tice’s words, “too afraid or ashamed to come forward.” [Cybercast News Service, 1/25/2006]
Further Allegations - Another former analyst, now employed by another federal agency and who only allows himself to be identified as “J,” describes similar targeting by the NSA. J is fluent in an unusually high number of languages, and is described by former colleagues as “brilliant” and possessed of “amazing” critical skills. “I believe the abuse is very widespread,” J says. “The targeted person suddenly is described as ‘not being a team player,’ as ‘disgruntled,’ and then they’re accused of all sorts of bizarre things. Soon they’re sent to the psych people.” J himself was targeted in September 1993 (see September 11, 1993) when he and other analysts concluded that the United States was being targeted by Islamic terrorists, and then again in early 2001 after predicting a terrorist attack using planes as weapons (see May 2001).
NSA Like the 'Gestapo' - A third whistleblower, a current NSA officer who refuses to be identified, confirms the allegations and says that baseless psychiatric allegations as a form of retaliation are “commonplace” at the agency. He says, “A lot of people who work there are going through the same thing. People live in fear here. They run it like some kind of Gestapo.” Those identified as “problems” are “yelled at, badgered and abused.…These are really good people, who start to be labeled crazy, but they’re telling the truth.” The official adds that the NSA often plants false evidence in personnel files as part of the intimidation campaign. Tice says the NSA maintains what he calls a “dirt database” of inconsequential but potentially embarrassing information on employees, gathered during routine clearance investigations and used as a form of leverage. The current officer says that an “underground network” has developed to discuss these issues. “It’s like the Nazis have taken over,” he says. [Cybercast News Service, 1/25/2006]
Personal Vendettas - Diane Ring is another former NSA official targeted by her superiors. Unlike Tice, a self-described conservative who believes President Bush should be impeached over the NSA’s illegal wiretapping program, Ring is a Bush supporter who believes the surveillance program is entirely proper. Ring, a former NSA computer scientist, says she was ordered to undergo psychiatric evaluations after coming into conflict with a colonel at the Pentagon. Ring is not a whistleblower per se like the others, but says she was targeted for retaliation because of a personal vendetta against her. The colonel “blew up” at Ring after she missed a meeting and explained that her branch chief had her working on a classified program that took priority over the meeting. Ring also was evaluated by Dr. Schmidt. When she complained about the apparent retaliation, her security clearance was, like Tice’s, revoked, and she was “red-badged,” or put on restricted access within the NSA offices. Ring says she received an excellent job evaluation just three months prior to the actions taken against her. She says her colleagues at the time were told not to talk to her, and she was restricted to working in a room filled with other red-badgers. She thinks she was isolated as part of an intentional campaign to force her to leave the agency. “They had these red-badgers spread out all over the place.” she recalls. “Some were sent to pump gas in the motor pool and chauffeur people around. In our room, some people brought sleeping bags in and slept all day long. Others read. I would think that would incense the taxpaying public.” Schmidt eventually reported that another doctor diagnosed Ring with a “personality disorder,” but Ring has a July 21, 2005 letter from that doctor, Lawrence Breslau, which reads in part, “On mental status examination including cognitive assessment she performs extremely well.” In the letter, Breslau says he never made such a diagnosis. She, like others in her position, went to the NSA Employee Assistance Service (EAS) for confidential counseling, but the current NSA officer says that though those sessions are supposed to be confidential, NSA officials can and do obtain “confidential” sessions for retaliatory purposes. “Their goal is to freak you out, to get inside your mind,” that officer says. Rice claims that NSA General Counsel Paul Caminos lied about her case before a judge, denying that he had sent an internal e-mail forbidding anyone from supporting Ring. Ring says she was “floored” by Caminos’s actions: “I served in Bosnia. We had mines going off all around us, all day long. That was nothing compared to this.” She is currently working on clearing her name with the NSA’s new director, Lieutenant General Keith Alexander. Ring believes that the problem at NSA involves a small number of people, “The whole lot of them is corrupt though. There is zero integrity in the process. And zero accountability.”
'Psychiatric Abuse' 'Very Widespread' - Like his fellow whistleblowers, former NSA officer Thomas Reinbold says the practice of “psychiatric abuse” inside the NSA is “very widespread.” Reinbold, who recelved 26 commendations and awards during his career at the NSA, including a medal for the intelligence he provided during the 1991 Gulf War, says, “They call it ‘doing a mental’ on someone.” Such practices have a “chilling effect” on other potential whistleblowers: “They fear for their careers because they fear someone will write up bad [psychological] fitness reports on them.” Reinhold was labeled “paranoid” and “delusional” by Schmidt after he complained to an inspector general on February 25, 1994, that the federal government was guilty of contract tampering; Schmidt’s evaluation contradicts a psychological evaluation he conducted on Reinbold eight months before that found he was mentally sound. At the time, Reinbold worked as a contracting officer representative for the Naval Security Group (NAVSECGRU) in Virginia. Reinbold had his high-level security clearance revoked, and was escorted off the grounds by armed security officers. Reinbold says NSA officials fabricated evidence in his personnel file to force him out; that evidence included allegations that he was a danger to himself and others, and that he had said “if [he] was going down, [he] would take everyone with him.” In September 1995, an administrative hearing found that the revocation of Reinbold’s security clearance was unjustified and recommended restoring his clearance, but did not allow the damaging information to be removed from his personnel file. He later sued the agency, and then retired because of diabetes. “I gave 29 years of my life to the intelligence community,” he recalls. “They couldn’t get me out the door fast enough. There are very good people, getting screwed and going through hell.”
Helping Those Who Come After - Some of the whistleblowers hope to gain the assistance of politicians to help their cases. But Tice is less optimistic. “Our time is over,” Tice says he told Ring. “But we can make a difference for those who come behind us.” The five whistleblowers have the support of the whistleblower advocacy group Integrity International. Its founder and director, Dr. Don Soeken, himself a whistleblower while he was with the US Public Health Service in the 1970s, says, “When this retaliation first starts, there’s a tendency by bosses to use code words like ‘delusional,’ ‘paranoid’ and ‘disgruntled’. Then they use psychiatric exams to destroy them. They kill the messenger and hope the PR spin will be bought by the public.” Tom Devine of the Government Accountability Project says that “psychiatric retaliation” is a knee-jerk reaction against whistleblowers: “It’s a classic way to implement the first rule of retaliation: shift the spotlight from the message to the messenger. We call it the ‘Smokescreen Syndrome.’” Superiors investigate and smear the whistleblower for anything from financial irregularities to family problems, sexual practices, bad driving records, or even failure to return library books, Devine says. “It’s a form of abuse of power.” The Whistleblower Protection Act was written to protect those like Tice, Ring, Reinbold, and Soeken, but, says Beth Daly of the Project on Government Oversight (POGO), the act has serious flaws. “You have to go through the inspector general or the director of the CIA to let them know if you’re going to Congress and what you’re going to disclose,” she says. “And inspector generals are notorious for revealing who whistleblowers are.”

Entity Tags: Paul Caminos, Project for Government Oversight, Naval Security Group, Russell Tice, Tom Devine, Thomas Reinbold, National Security Agency, US Public Health Service, Keith Alexander, Lawrence Breslau, Diane Ring, Defense Intelligence Agency, Beth Daly, Don Soeken, House National Security Subcommittee, Government Accountability Project, John Michael Schmidt, Integrity International, “J”

Timeline Tags: Civil Liberties

Washington Post reporter William Arkin reveals that the National Security Agency (NSA) is “building a new warning hub and data warehouse” in Aurora, Colorado, just outside of Denver, on the grounds of Buckley Air Force Base. The agency is transferring many key personnel from its Fort Meade, Maryland, headquarters to Aurora. Arkin calls the new NSA facility, named the Aerospace Data Facility (ADF), “massive,” and says he believes it is the hub of the NSA’s data mining operation (see January 16, 2004). According to Government Executive magazine, the NSA’s new data storage facility “will be able to hold the electronic equivalent of the Library of Congress every two days.” While the NSA explains that the new facility is a cost-cutting measure and part of the agency’s post-9/11 decentralization—“This strategy better aligns support to national decision makers and combatant commanders,” an NSA spokesman tells one reporter—Arkin says that the “NSA is aligning its growing domestic eavesdropping operations—what the administration calls ‘terrorist warning’ in its current PR campaign—with military homeland defense organizations, as well as the CIA’s new domestic operations [in] Colorado.… Colorado is now the American epicenter for national domestic spying.” Arkin notes that previous news reports have said that the CIA is planning to move much of its domestic National Resources Division to Aurora as well. He also notes that Colorado is the home of the US military’s Northern Command (NORTHCOM), the military arm responsible for homeland defense. The move also allows the NSA to better coordinate its efforts with private contractors such as Lockheed Martin, Northrup Grumman Mission Systems, and Raytheon, all of which have presences in Colorado. Arkin names all three firms as partners with the NSA in building the ADF. Former senior AT&T technician Mark Klein (see July 7, 2009 and May 2004) will later write, “Over months and years, the database would be huge, ready for data mining whenever the government wants to go after someone.” [Washington Post, 1/31/2006; Klein, 2009, pp. 40-41]

Entity Tags: National Security Agency, Aerospace Data Facility, Government Executive Magazine, Mark Klein, Northrup Grumman Mission Systems, William Arkin, Lockheed Martin Corporation, Raytheon, US Northern Command

Timeline Tags: Civil Liberties

Electronic Frontier Foundation logo.Electronic Frontier Foundation logo. [Source: Flickr.com]The Electronic Frontier Foundation (EFF), a civil liberties and privacy-advocacy organization, files a lawsuit against telecommunications giant AT&T for allegedly violating the law and the privacy of its citizens by cooperating with the National Security Agency in the NSA’s construction of what the EFF calls a “massive, illegal program to wiretap and data-mine Americans’ communications.” EFF lawyer Kevin Bankston says: “Our goal is to go after the people who are making the government’s illegal surveillance possible. They could not do what they are doing without the help of companies like AT&T. We want to make it clear to AT&T that it is not in their legal or economic interests to violate the law whenever the president asks them to.”
Unprecedented Access to Communications System - EFF alleges that as part of the NSA’s domestic spying program, AT&T has allowed the NSA direct access to the phone and Internet communications passing over its network, and has given the government “unfettered access to its over 300 terabyte ‘Daytona’ database of caller information—one of the largest databases in the world.” One of AT&T’s databases, nicknamed “Hawkeye,” contains 312 terabytes of data detailing nearly every telephone communication on AT&T’s domestic network since 2001, the lawsuit alleges. The suit goes on to claim that AT&T allowed the NSA to use the company’s powerful Daytona database management software to quickly search this and other communication databases. AT&T, the suit claims, is in violation of the First and Fourth Amendments, federal wiretapping statutes, telecommunications laws, and the Electronic Communications Privacy Act. The suit requests fines up to $22,000 for each AT&T customer, and punitive fines—damages that could potentially reach into the billions of dollars. The EFF lawsuit is one of over 30 lawsuits filed for similar reasons (see June 26, 2006). The lawsuit will survive a number of initial legal challenges by the Justice Department and AT&T, including AT&T’s contention that “whatever we did, the government told us to do” and therefore it should be immune from such lawsuits, and the Justice Department’s invocation of “national security” and the possibility of the revelation of “state secrets” (see March 9, 1953). EFF retorts, “In this country we follow the law, we don’t just follow orders.” Bankston tells a reporter, “If state secrecy can prevent us from preserving the rights of millions upon millions of people, then there is a profound problem with the law.”
Suit Alleges Criminal Actions, Does Not Challenge Government's Right to Wiretap - The lawsuit does not challenge the government’s right to electronically monitor legitimate terrorism suspects, nor does it challenge the judicial right to issue warrants for such surveillance. Rather, EFF writes: “Wiretaps on terrorists are allowed under the law, and this lawsuit is not challenging the wiretap laws. We have sued AT&T for breaking those laws—the telecommunications giant gave the government access to its communications switches and its huge databases of information on millions of ordinary Americans. These are AT&T customers who have not even been accused of affiliations with terrorists. Americans can be both safe and free: if the government truly believes it has cause to wiretap a suspect, it can order AT&T to provide information under FISA [the Foreign Intelligence Surveillance Act]—for up to 72 hours before going to the court. But AT&T has no business providing direct access to the communications of millions of ordinary Americans, without the checks and balances of Congress or the courts.” [Electronic Frontier Foundation, 1/31/2006; Wired News, 1/31/2006]

Entity Tags: Electronic Frontier Foundation, Foreign Intelligence Surveillance Act, National Security Agency, AT&T, US Department of Justice, Kevin Bankston

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 Justice Department’s Office of Professional Responsibility (OPR) opens an internal investigation into the department’s role in approving the Bush administration’s domestic warrantless wiretapping program. OPR counsel Marshall Jarrett informs Representative Maurice Hinchey (D-NY) of the investigation into the program, initiated after the 9/11 attacks by the National Security Agency and authorized via a secret executive order from President Bush shortly thereafter (see Early 2002). Jarrett writes that the OPR probe will include “whether such activities are permissible under existing law.” Justice Department spokeswoman Tasia Scolinos says the inquiry will be quite limited: “They will not be making a determination on the lawfulness of the NSA program but rather will determine whether the department lawyers complied with their professional obligations in connection with that program.” Scolinos calls the OPR probe “routine.” Hinchey says he welcomes the probe, which may determine “how President Bush went about creating this Big Brother program.” [Washington Post, 2/16/2006] The OPR inquiry is derailed after the NSA, with Bush’s authorization, refuses to give routine security clearances to OPR lawyers that would allow them to examine the relevant documents (see May 9, 2006).

Entity Tags: US Department of Justice, Tasia Scolinos, H. Marshall Jarrett, National Security Agency, George W. Bush, Bush administration (43), Maurice Hinchey, Office of Professional Responsibility

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 about his knowledge of governmental illegality in eavesdropping on Americans’ telephone and Internet communications (see Early January 2006), has contacted Los Angeles Times reporter Joseph Menn about publishing an article expising AT&T’s collusion with the National Security Agency (NSA) to illegally conduct surveillance against American citizens (see January 23, 2006 and After). Klein believed Menn was enthusiastic about exposing AT&T and the NSA in his newspaper. Instead, Klein is shocked to hear from Menn that the Times’s “top guy” is preparing to meet with Director of National Intelligence John Negroponte to discuss any such publication. “I nearly fell down in shock,” Klein will later write. “[T]hey were actually negotiating with the government on whether to publish!” Menn describes himself to Klein as “demoralized,” and says the chances of getting the story published are “grim.” In his seven years at the Times, Menn tells Klein, he has never seen a story “spiked” for “nefarious reasons,” implying that the reason behind the story’s non-publication are “nefarious.” Klein is also dismayed that the Times has now revealed his existence as a whistleblower to Negroponte, and by extension to the US intelligence apparatus. Two days ago, Klein began emailing a New York Times reporter, James Risen, the co-author of a 2005 expose about the NSA’s surveillance program (see December 15, 2005). After hearing from Menn, Klein emails Risen to inform him of the Los Angeles Times’s decision to “consult” with Negroponte, and also of the lack of interest he has received from Senator Dianne Feinstein’s office (see February 1-6, 2006). Risen calls in fellow reporter Eric Lichtblau, his co-author on the 2005 story, and the two begin working on their own story. Klein remains worried about his personal and professional safety, since, as he will write, “[t]he government was on to me, but I did not yet have a published article and the protection that comes with publicity. I had visions, perhaps paranoid in hindsight, of being disappeared in the night, like [nuclear industry whistleblower] Karen Silkwood.” The Los Angeles Times story will drag on until March 29, when Menn will inform Klein that it is officially dead, blocked by Times editor Dean Baquet. Klein will later learn that Baquet had not only been in contact with Negroponte, but with NSA Director Michael Hayden. In 2007, Baquet will tell ABC News reporters that “government pressure played no part in my decision not to run with the story,” and will say that he and managing editor Doug Frantz decided “we did not have a story, that we could not figure out what was going on” with Klein’s documentation (see March 26, 2007). Klein will call Baquet’s explanation an “absurd and flimsy excuse,” and will say it is obvious that the Los Angeles Times “capitulated to government pressure.” [PBS Frontline, 5/15/2007; Klein, 2009, pp. 59-62]

Entity Tags: James Risen, Dean Baquet, AT&T, Dianne Feinstein, Eric Lichtblau, Joseph Menn, Michael Hayden, John Negroponte, Douglas Frantz, National Security Agency, Los Angeles Times, Mark Klein

Timeline Tags: Civil Liberties

Senator Russell Feingold (D-WI) tells reporters that he intends to push through legislation that would censure President Bush because of his domestic surveillance program (see February 2001, Spring 2001, After September 11, 2001, After September 11, 2001, October 2001, Early 2002, September 2002, Late 2003-Early 2004, April 19-20, 2004, June 9, 2005, June 9, 2005, December 15, 2005, December 17, 2005, December 19, 2005, December 24, 2005, January 5, 2006, January 18, 2006, January 18, 2006, January 23, 2006, and January 30, 2006). “What the president did by consciously and intentionally violating the Constitution and laws of this country with this illegal wiretapping has to be answered,” Feingold tells an interviewer. “Proper accountability is a censuring of the president, saying, ‘Mr. President, acknowledge that you broke the law, return to the law, return to our system of government.‘… The president has broken the law and, in some way, he must be held accountable.… Congress has to reassert our system of government, and the cleanest and the most efficient way to do that is to censure the president. And, hopefully, he will acknowledge that he did something wrong.” Senate Majority Leader Bill Frist (R-TN) calls Feingold’s proposal “a crazy political move.” The Senate Intelligence Committee, following the Bush administration’s lead, has rejected some Democrats’ call for a full investigation of the surveillance program (see February 1-6, 2006). Instead, the committee has adopted a Republican plan for a seven-member subcommittee to conduct oversight. Feingold says his censure motion is not “a harsh approach, and it’s one that I think should lead to bipartisan support.” Frist, however, says: “I think it, in part, is a political move because here we are, the Republican Party, the leadership in the Congress, supporting the president of the United States as commander in chief who is out there fighting al-Qaeda and the Taliban and Osama bin Laden and the people who have sworn—have sworn—to destroy Western civilization and all the families listening to us.… The signal that it sends that there is in any way a lack of support for our commander in chief who is leading us with a bold vision in a way that we know is making our homeland safer is wrong. And it sends a perception around the world.” Only once in history has a president been censured by Congress: Andrew Jackson in 1834. In the House, Representative John Conyers (D-MI) is exploring the idea of introducing impeachment legislation against Bush. [New York Times, 3/12/2006; Associated Press, 3/12/2006] Feingold says on the Senate floor: “The president has violated the law and Congress must respond. A formal censure by Congress is an appropriate and responsible first step to assure the public that when the president thinks he can violate the law without consequences, Congress has the will to hold him accountable.” Most Congressional Democrats want nothing to do with either Feingold’s or Conyers’s legislative ideas, and some Republicans seem to be daring Democrats to vote for the proposal. Vice President Dick Cheney tells a Republican audience in Feingold’s home state of Wisconsin, “Some Democrats in Congress have decided the president is the enemy.” Democratic leaders in the Senate thwart an immediate vote as requested by Frist, and Senator Richard Durbin (D-IL) says he is not sure the proposal will ever come to a vote. Senate Minority Leader Harry Reid (D-NV) says he does not support it and has not read it. Senator Joseph Lieberman (D-CT) makes a similar assertion. In the House, Minority Leader Nancy Pelosi (D-CA) refuses to support such a proposal, saying in a statement that she “understands Senator Feingold’s frustration that the facts about the NSA domestic surveillance program have not been disclosed appropriately to Congress. Both the House and the Senate must fully investigate the program and assign responsibility for any laws that may have been broken.” [Associated Press, 3/14/2006] Former Nixon aide John Dean testifies in support of Feingold’s censure motion (see March 31, 2006). However, the censure motion, lacking support from Democratic leaders and being used by Republicans as a means to attack Democrats’ patriotism, never comes to a vote. [Klein, 2009, pp. 84]

Entity Tags: Joseph Lieberman, George W. Bush, Bush administration (43), Bill Frist, Harry Reid, John Dean, Russell D. Feingold, Senate Intelligence Committee, Richard (“Dick”) Durbin, Richard (“Dick”) Cheney, Nancy Pelosi, John Conyers

Timeline Tags: Civil Liberties

John Dean.John Dean. [Source: Truthdig.com]Nixon White House counsel and Watergate veteran John Dean says that President Bush’s domestic spying program is worse than anything his former boss, Richard Nixon, did while he occupied the Oval Office. Testifying before the Senate Judiciary Committee during a hearing on Senator Russ Feingold’s (D-WI) motion to censure Bush over the program (see March 12, 2006 and After), Dean says Bush “needs to be told he cannot simply ignore a law with no consequences.” Republican committee leaders grudgingly agreed to hold the hearing over the censure motion, but dismiss the motion as little more than an election-year stunt designed by Democrats to, in committee member Orrin Hatch’s (R-UT) words, “weaken the commander in chief” in a time of war. Feingold’s measure, if passed, would condemn Bush’s “unlawful authorization of wiretaps of Americans within the United States without obtaining the court orders required” by the Foreign Intelligence Surveillance Act (FISA). The measure has little chance of passing, with even most Senate Democrats refusing to get behind the resolution. “To me, this is not really and should not be a partisan question,” Dean says. “I think it’s a question of institutional pride of this body, of the Congress of the United States.… [T]he president needs to be reminded that separation of powers does not mean an isolation of powers.” Dean has previously suggested, in his book Worse Than Watergate and in op-eds, that Bush may deserve impeachment over the surveillance program. [Associated Press, 3/31/2006]

Entity Tags: Senate Judiciary Committee, Russell D. Feingold, John Dean, Orrin Hatch, Foreign Intelligence Surveillance Act, Richard M. Nixon, George W. Bush

Timeline Tags: Civil Liberties

Retired AT&T technician and incipient whistleblower Mark Klein (see December 15-31, 2005 and July 7, 2009) issues his first press release, summarizing his knowledge of AT&T’s complicity with the National Security Agency (NSA) in that agency’s illegal domestic wiretapping program (see December 31, 2005). Klein has given documentation supporting his claims to the Electronic Frontier Foundation (EFF) in support of that organization’s lawsuit against AT&T (see January 31, 2006). Klein’s press release tells of the NSA’s “secret room” in AT&T’s Folsom Street, San Francisco, facility (see January 2003) and reveals for the first time the NSA’s use of the Narus STA 6400 to comb through the wiretapped data (see January 16, 2004). The release reads in part: “Based on my understanding of the connections and equipment at issue, it appears the NSA is capable of conducting what amounts to vacuum-cleaner surveillance of all the data crossing the Internet—whether that be people’s email, Web surfing, or any other data. Given the public debate about the constitutionality of the Bush administration’s spying on US citizens without obtaining a FISA warrant (see December 18, 2005, December 20, 2005, December 21, 2005, December 21, 2005, December 25, 2005, January 5, 2006, January 10, 2006, January 18, 2006, January 18, 2006, and January 31, 2006), I think it is critical that this information be brought out into the open, and that the American people be told the truth about the extent of the administration’s warrantless surveillance practices, particularly as it relates to the Internet. Despite what we are hearing (see December 19, 2005, December 19, 2005, December 21-22, 2005, and January 19, 2006), and considering the public track record of this administration (see December 24, 2005, Early 2006, January 23, 2006, January 25-26, 2006, and February 2, 2006), I simply do not believe their claims that the NSA’s spying program is really limited to foreign communications or 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.” Klein issues the press release in part to give himself some publicity, and the protection from government harassment such publicity might entail (see February 11, 2006 and After). [Wired News, 4/7/2006; Wired News, 4/7/2006; Klein, 2009, pp. 66-67]

Entity Tags: Electronic Frontier Foundation, AT&T, Bush administration (43), National Security Agency, Mark Klein

Timeline Tags: Civil Liberties

The New York Times publishes its first report on the allegations by former AT&T technician Mark Klein (see December 15-31, 2005 and July 7, 2009), who is providing evidence and documentation to the Electronic Frontier Foundation (EFF) for that organization’s lawsuit against AT&T (see December 31, 2005 and January 31, 2006). The three-paragraph squib, buried deep in the pages of the “A” section, says that AT&T “cooperated with the National Security Agency in 2003 to install equipment capable of ‘vacuum-cleaner surveillance’ of email messages and other Internet traffic.” The report is based in part on a recent press release issued by Klein (see April 6, 2006), and notes the EFF lawsuit in passing. It admits that Klein has provided some of the documentation to the press, if not to the Times itself (see Mid-February - Late March, 2006), but simply writes that Klein’s documents “describe a room at the AT&T Internet and telephone hub in San Francisco that contained a piece of equipment that could sift through large volumes of Internet traffic.” Klein later calls the brevity and incompleteness of the report “puzzling,” and will say, “Their only purpose seemed to be to signal the government that I had ‘provided’ the New York Times with the documents, while minimizing the story for everyone else.” Klein will speculate, “It looked like some kind of backroom brawl was going on, but the public could not know the details.” [New York Times, 4/7/2006; Klein, 2009, pp. 70] A week later, the Times will publish a more in-depth article (see April 12, 2006).

Entity Tags: Mark Klein, AT&T, Electronic Frontier Foundation, New York Times, National Security Agency

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

George Terwilliger, a former deputy attorney general under George H. W. Bush, argues that the current Bush administration’s controversial data mining program (see Late 1999 and After September 11, 2001) is not illegal. Terwilliger tells the conservative National Review, “I think it’s fair to say that the statutes contemplate the transfer of this generic type of data much more on a case-by-case rather than a wholesale basis,” meaning that the law calls for a court order only in cases when the government is making a targeted request for information. But, he adds, “I don’t see anything in the statute that forbids such a wholesale turnover.” Terwilliger’s argument echoes the arguments of the Bush Justice Department, which argues that the data mining program—part of the NSA’s “Stellar Wind” surveillance program (see Spring 2004 and December 15, 2005)—does not technically constitute “electronic surveillance” under the law. Both the Fourth Amendment and the Foreign Intelligence Surveillance Act, as interpreted by the courts, define such actions as “electronic surveillance,” according to a number of legal experts, including law professor Orin Kerr. And, Ars Technica reporter Julian Sanchez notes in 2009, “the Stored Communications Act explicitly makes it a crime to ‘knowingly divulge a record or other information pertaining to a subscriber to or customer of such service… to any governmental entity.’” Sanchez will call Terwilliger’s argument “very strange,” but will note that Terwilliger is the attorney for then-Attorney General Alberto Gonzales and “a prominent defender of the administration’s surveillance policies.” Sanchez will conclude that while the argument “might pass for clever in a high school debate round… [i]t would be deeply unsettling if it [passes] for anything more in the halls of power.” [National Review, 6/5/2006; Ars Technica, 12/16/2008]

Entity Tags: US Department of Justice, Alberto R. Gonzales, ’Stellar Wind’, Bush administration (43), National Security Agency, Foreign Intelligence Surveillance Act, Julian Sanchez, George Terwilliger, Orin S. Kerr

Timeline Tags: Civil Liberties

Lawyers file court documents alleging that the National Security Agency (NSA) worked with AT&T to set up a domestic wiretapping site seven months before the 9/11 attacks. The papers are filed as part of a lawsuit, McMurray v. Verizon Communications, which cites as plaintiffs AT&T, Verizon, and BellSouth customers whose privacy was allegedly violated by the NSA warrantless wiretapping program (see May 12, 2006); it also alleges that the firms, along with the NSA and President Bush, violated the Telecommunications Act of 1934 and the US Constitution. AT&T, Verizon, and BellSouth have been accused of working with the NSA to set up domestic call monitoring sites (see October 2001). Evidence that the NSA set up domestic surveillance operations at least seven months before the 9/11 attacks is at the core of the lawsuit (see Spring 2001). The suit is similar to one filed against AT&T by the Electronic Frontier Foundation (EFF—see January 31, 2006) and other such lawsuits. A lawyer for the plaintiffs in McMurray, Carl Mayer, says: “The Bush administration asserted this [the warrantless wiretapping program] became necessary after 9/11. This undermines that assertion.” AT&T spokesman Dave Pacholczyk responds, “The US Department of Justice has stated that AT&T may neither confirm nor deny AT&T’s participation in the alleged NSA program because doing so would cause ‘exceptionally grave harm to national security’ and would violate both civil and criminal statutes.” Verizon has denied being asked by the NSA for its customer phone records, and has refused to confirm or deny “whether it has any relationship to the classified NSA program.” BellSouth spokesman Jeff Battcher says: “We never turned over any records to the NSA. We’ve been clear all along that they’ve never contacted us. Nobody in our company has ever had any contact with the NSA.” The NSA domestic wiretapping program is known as “Pioneer Groundbreaker,” a part of the larger “Project Groundbreaker” (see February 2001). According to Mayer and his fellow lawyer Bruce Afran, an unnamed former employee of AT&T provided them with information about NSA’s approach to AT&T. (That former employee will later be revealed as retired technician Mark Klein—see Late 2002, July 7, 2009, December 15-31, 2005, and April 6, 2006). The lawsuit is on a temporary hiatus while a judicial panel rules on a government request to assign all of the telecommunications lawsuits to a single judge. [Bloomberg, 6/30/2006]

Entity Tags: Verizon Wireless, US Department of Justice, National Security Agency, George W. Bush, Jeff Battcher, Bruce Afran, BellSouth, AT&T, Mark Klein, Carl Mayer, Electronic Frontier Foundation, Dave Pacholczyk

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

Judge Vaughn Walker of the US District Court of Northern California rejects a request by the Justice Department to dismiss a lawsuit by the Electronic Frontier Foundation (EFF—see January 31, 2006) against AT&T. The EFF argues that AT&T violated its customers’ privacy by colluding with the National Security Agency (NSA) in that agency’s allegedly illegal domestic wiretapping project. The government has asserted that the lawsuit would jeopardize “state secrets” if permitted to go forward (see May 22, 2006 and June 23, 2006). According to AT&T whistleblower Mark Klein, working with the EFF in the lawsuit, Walker “ridicule[s]” the government’s request for dismissal on state secrets grounds, finding that “[t]he government has opened the door for judicial inquiry by publicly confirming and denying material information about its monitoring of communications content.… AT&T and the government have for all practical purposes already disclosed that AT&T assists the government in monitoring communication content. [T]he government has publicly admitted the existence of a ‘terrorist surveillance program’ (see After September 11, 2001, After September 11, 2001, October 2001, and September 2002).… Considering the ubiquity of AT&T telecommunications services, it is unclear whether this program could even exist without AT&T’s acquiescence and cooperation.” EFF had given Walker the ammunition for his finding by providing him with a raft of media stories about AT&T’s involvement in the NSA surveillance program, as well as media coverage of Klein’s assertions (see April 12, 2006 and May 17, 2006). “The very subject matter of this action is hardly a secret” any longer, Walker finds (see May 24, 2006). “[D]ismissing this case at the outset would sacrifice liberty for no apparent enhancement of security.” Walker also rejects a separate motion to dismiss by AT&T, which had argued that its relationship with the government made it immune from prosecution. Marc Rotenberg of the Electronic Privacy Information Center (EPIC) says: “This cases arises against the backdrop of the accountability of the government as it pursues its surveillance program. This is a significant victory for the principle of government accountability.” AT&T spokesman Walt Sharp refuses to give a direct comment about the ruling, but says that AT&T has always protected its customers’ privacy (see February 2001 and Beyond, February 2001, and Late 2002-Early 2003). The government will obtain a stay of Walker’s ruling while it files an appeal, preventing the EFF documents from being publicly disseminated. [New York Times, 7/21/2006; Klein, 2009, pp. 78-79]

Entity Tags: Mark Klein, AT&T, Electronic Frontier Foundation, Marc Rotenberg, US Department of Justice, Walter Sharp, Vaughn Walker, National Security Agency

Timeline Tags: Civil Liberties

Microsoft logo.Microsoft logo. [Source: Your Logo Collection (.com)]The National Security Agency (NSA) reveals plans to build an enormous new data center in San Antonio, Texas, three months after Microsoft announced plans to build a $550 million data center in the same area. [National Security Agency, 4/19/2007] The NSA previously acknowledged building a similar data storage facility in Colorado (see January 30, 2006). Reporter and author James Bamford will later write in his book The Shadow Factory that “[t]he timing of the move was interesting,” because the NSA had leased a building in San Antonio in 2005, but had not done anything further. The NSA only announces plans to move forward with the data center after Microsoft revealed plans to build a 470,000 square foot cloud data center that would handle Internet search data, emails, and instant messages. Bamford will quote Bexar County judge Nelson Wolff’s statement to the San Antonio Express-News, “We told [the NSA] we were going to get Microsoft, and that really opened up their eyes,” and write, “For an agency heavily involved in data harvesting, there were many advantages to having their miners next door to the mother lode of data centers” (see 1997, February 27, 2000, February 2001), Spring 2001, April 4, 2001, After September 11, 2001, After September 11, 2001, October 2001, Early 2002, September 2002, and December 15, 2005). Microsoft’s operation will be largely automated and employ only 75 people. In contrast, the NSA’s facility is to be the same size, but employ 1,500. Bamford will write that this is “far more than was needed to babysit a warehouse of routers and servers but enough to analyze the data passing across them.” [Data Center Knowledge, 1/19/2007; San Antonio Express-News, 4/18/2007; Bamford, 2008, pp. 317-318] Former senior AT&T technician and warrantless surveillance whistleblower Mark Klein (see December 15-31, 2005 and July 7, 2009) will reference Bamford’s book and agree that this “suggests a massive data mining operation.” [Klein, 2009, pp. 41]

Entity Tags: James Bamford, Microsoft Corporation, National Security Agency, Mark Klein

Timeline Tags: Civil Liberties

Former Vice President Dick Cheney says that because of the Obama administration’s new policies, there is what he calls a “high probability” that terrorists will attempt a catastrophic nuclear or biological attack in coming years. “If it hadn’t been for what we did—with respect to the terrorist surveillance program (see After September 11, 2001 and December 15, 2005), or enhanced interrogation techniques for high-value detainees (see September 16, 2001 and November 14, 2001, among others), the Patriot Act (see October 26, 2001), and so forth—then we would have been attacked again,” says Cheney. “Those policies we put in place, in my opinion, were absolutely crucial to getting us through the last seven-plus years without a major-casualty attack on the US.” The situation has changed, he says. “When we get people who are more concerned about reading the rights to an al-Qaeda terrorist (see January 22, 2009) than they are with protecting the United States against people who are absolutely committed to do anything they can to kill Americans, then I worry,” he says. Protecting the country’s security is “a tough, mean, dirty, nasty business,” he continues. “These are evil people. And we’re not going to win this fight by turning the other cheek.” He calls the Guantanamo detention camp, which President Obama has ordered shut down (see January 22, 2009), a “first-class program” and a “necessary facility” that is operated legally and provides inmates better living conditions than they would get in jails in their home countries. But the Obama administration is worried more about its “campaign rhetoric” than it is protecting the nation: “The United States needs to be not so much loved as it needs to be respected. Sometimes, that requires us to take actions that generate controversy. I’m not at all sure that that’s what the Obama administration believes.” Cheney says “the ultimate threat to the country” is “a 9/11-type event where the terrorists are armed with something much more dangerous than an airline ticket and a box cutter—a nuclear weapon or a biological agent of some kind” that is deployed in the middle of an American city. “That’s the one that would involve the deaths of perhaps hundreds of thousands of people, and the one you have to spend a hell of a lot of time guarding against. I think there’s a high probability of such an attempt. Whether or not they can pull it off depends whether or not we keep in place policies that have allowed us to defeat all further attempts, since 9/11, to launch mass-casualty attacks against the United States.” [Politico, 2/4/2009] Cheney has warned of similarly dire consequences to potential Democratic political victories before, before the 2004 presidential elections (see September 7, 2004) and again before the 2006 midterm elections (see October 31, 2006).

Entity Tags: Barack Obama, Al-Qaeda, Obama administration, Richard (“Dick”) Cheney

Timeline Tags: Complete 911 Timeline, Domestic Propaganda, 2010 Elections

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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