Bush Lets U.S. Spy on Callers Without Courts
By JAMES RISEN and ERIC LICHTBLAU
York Times" -- -- WASHINGTON, Dec. 15 - Months after
the Sept. 11 attacks, President Bush secretly authorized the
National Security Agency to eavesdrop on Americans and others inside
the United States to search for evidence of terrorist activity
without the court-approved warrants ordinarily required for domestic
spying, according to government officials.
Under a presidential order signed in 2002, the intelligence agency
has monitored the international telephone calls and international
e-mail messages of hundreds, perhaps thousands, of people inside the
United States without warrants over the past three years in an
effort to track possible "dirty numbers" linked to Al Qaeda, the
officials said. The agency, they said, still seeks warrants to
monitor entirely domestic communications.
The previously undisclosed decision to permit some eavesdropping
inside the country without court approval was a major shift in
American intelligence-gathering practices, particularly for the
National Security Agency, whose mission is to spy on communications
abroad. As a result, some officials familiar with the continuing
operation have questioned whether the surveillance has stretched, if
not crossed, constitutional limits on legal searches.
"This is really a sea change," said a former senior official who
specializes in national security law. "It's almost a mainstay of
this country that the N.S.A. only does foreign searches."
Nearly a dozen current and former officials, who were granted
anonymity because of the classified nature of the program, discussed
it with reporters for The New York Times because of their concerns
about the operation's legality and oversight.
According to those officials and others, reservations about aspects
of the program have also been expressed by Senator John D.
Rockefeller IV, the West Virginia Democrat who is the vice chairman
of the Senate Intelligence Committee, and a judge presiding over a
secret court that oversees intelligence matters. Some of the
questions about the agency's new powers led the administration to
temporarily suspend the operation last year and impose more
restrictions, the officials said.
The Bush administration views the operation as necessary so that the
agency can move quickly to monitor communications that may disclose
threats to the United States, the officials said. Defenders of the
program say it has been a critical tool in helping disrupt terrorist
plots and prevent attacks inside the United States.
Administration officials are confident that existing safeguards are
sufficient to protect the privacy and civil liberties of Americans,
the officials say. In some cases, they said, the Justice Department
eventually seeks warrants if it wants to expand the eavesdropping to
include communications confined within the United States. The
officials said the administration had briefed Congressional leaders
about the program and notified the judge in charge of the Foreign
Intelligence Surveillance Court, the secret Washington court that
deals with national security issues.
The White House asked The New York Times not to publish this
article, arguing that it could jeopardize continuing investigations
and alert would-be terrorists that they might be under scrutiny.
After meeting with senior administration officials to hear their
concerns, the newspaper delayed publication for a year to conduct
additional reporting. Some information that administration officials
argued could be useful to terrorists has been omitted.
Dealing With a New Threat
While many details about the program remain secret, officials
familiar with it say the N.S.A. eavesdrops without warrants on up to
500 people in the United States at any given time. The list changes
as some names are added and others dropped, so the number monitored
in this country may have reached into the thousands since the
program began, several officials said. Overseas, about 5,000 to
7,000 people suspected of terrorist ties are monitored at one time,
according to those officials.
Several officials said the eavesdropping program had helped uncover
a plot by Iyman Faris, an Ohio trucker and naturalized citizen who
pleaded guilty in 2003 to supporting Al Qaeda by planning to bring
down the Brooklyn Bridge with blowtorches. What appeared to be
another Qaeda plot, involving fertilizer bomb attacks on British
pubs and train stations, was exposed last year in part through the
program, the officials said. But they said most people targeted for
N.S.A. monitoring have never been charged with a crime, including an
Iranian-American doctor in the South who came under suspicion
because of what one official described as dubious ties to Osama bin
The eavesdropping program grew out of concerns after the Sept. 11
attacks that the nation's intelligence agencies were not poised to
deal effectively with the new threat of Al Qaeda and that they were
handcuffed by legal and bureaucratic restrictions better suited to
peacetime than war, according to officials. In response, President
Bush significantly eased limits on American intelligence and law
enforcement agencies and the military.
But some of the administration's antiterrorism initiatives have
provoked an outcry from members of Congress, watchdog groups,
immigrants and others who argue that the measures erode protections
for civil liberties and intrude on Americans' privacy.
Opponents have challenged provisions of the USA Patriot Act, the
focus of contentious debate on Capitol Hill this week, that expand
domestic surveillance by giving the Federal Bureau of Investigation
more power to collect information like library lending lists or
Internet use. Military and F.B.I. officials have drawn criticism for
monitoring what were largely peaceful antiwar protests. The Pentagon
and the Department of Homeland Security were forced to retreat on
plans to use public and private databases to hunt for possible
terrorists. And last year, the Supreme Court rejected the
administration's claim that those labeled "enemy combatants" were
not entitled to judicial review of their open-ended detention.
Mr. Bush's executive order allowing some warrantless eavesdropping
on those inside the United States - including American citizens,
permanent legal residents, tourists and other foreigners - is based
on classified legal opinions that assert that the president has
broad powers to order such searches, derived in part from the
September 2001 Congressional resolution authorizing him to wage war
on Al Qaeda and other terrorist groups, according to the officials
familiar with the N.S.A. operation.
The National Security Agency, which is based at Fort Meade, Md., is
the nation's largest and most secretive intelligence agency, so
intent on remaining out of public view that it has long been
nicknamed "No Such Agency." It breaks codes and maintains listening
posts around the world to eavesdrop on foreign governments,
diplomats and trade negotiators as well as drug lords and
terrorists. But the agency ordinarily operates under tight
restrictions on any spying on Americans, even if they are overseas,
or disseminating information about them.
What the agency calls a "special collection program" began soon
after the Sept. 11 attacks, as it looked for new tools to attack
terrorism. The program accelerated in early 2002 after the Central
Intelligence Agency started capturing top Qaeda operatives overseas,
including Abu Zubaydah, who was arrested in Pakistan in March 2002.
The C.I.A. seized the terrorists' computers, cellphones and personal
phone directories, said the officials familiar with the program. The
N.S.A. surveillance was intended to exploit those numbers and
addresses as quickly as possible, they said.
In addition to eavesdropping on those numbers and reading e-mail
messages to and from the Qaeda figures, the N.S.A. began monitoring
others linked to them, creating an expanding chain. While most of
the numbers and addresses were overseas, hundreds were in the United
States, the officials said.
Under the agency's longstanding rules, the N.S.A. can target for
interception phone calls or e-mail messages on foreign soil, even if
the recipients of those communications are in the United States.
Usually, though, the government can only target phones and e-mail
messages in the United States by first obtaining a court order from
the Foreign Intelligence Surveillance Court, which holds its closed
sessions at the Justice Department.
Traditionally, the F.B.I., not the N.S.A., seeks such warrants and
conducts most domestic eavesdropping. Until the new program began,
the N.S.A. typically limited its domestic surveillance to foreign
embassies and missions in Washington, New York and other cities, and
obtained court orders to do so.
Since 2002, the agency has been conducting some warrantless
eavesdropping on people in the United States who are linked, even if
indirectly, to suspected terrorists through the chain of phone
numbers and e-mail addresses, according to several officials who
know of the operation. Under the special program, the agency
monitors their international communications, the officials said. The
agency, for example, can target phone calls from someone in New York
to someone in Afghanistan.
Warrants are still required for eavesdropping on entirely
domestic-to-domestic communications, those officials say, meaning
that calls from that New Yorker to someone in California could not
be monitored without first going to the Federal Intelligence
A White House Briefing
After the special program started, Congressional leaders from both
political parties were brought to Vice President Dick Cheney's
office in the White House. The leaders, who included the chairmen
and ranking members of the Senate and House intelligence committees,
learned of the N.S.A. operation from Mr. Cheney, Lt. Gen. Michael V.
Hayden of the Air Force, who was then the agency's director and is
now a full general and the principal deputy director of national
intelligence, and George J. Tenet, then the director of the C.I.A.,
It is not clear how much the members of Congress were told about the
presidential order and the eavesdropping program. Some of them
declined to comment about the matter, while others did not return
Later briefings were held for members of Congress as they assumed
leadership roles on the intelligence committees, officials familiar
with the program said. After a 2003 briefing, Senator Rockefeller,
the West Virginia Democrat who became vice chairman of the Senate
Intelligence Committee that year, wrote a letter to Mr. Cheney
expressing concerns about the program, officials knowledgeable about
the letter said. It could not be determined if he received a reply.
Mr. Rockefeller declined to comment. Aside from the Congressional
leaders, only a small group of people, including several cabinet
members and officials at the N.S.A., the C.I.A. and the Justice
Department, know of the program.
Some officials familiar with it say they consider warrantless
eavesdropping inside the United States to be unlawful and possibly
unconstitutional, amounting to an improper search. One government
official involved in the operation said he privately complained to a
Congressional official about his doubts about the program's
legality. But nothing came of his inquiry. "People just looked the
other way because they didn't want to know what was going on," he
A senior government official recalled that he was taken aback when
he first learned of the operation. "My first reaction was, 'We're
doing what?' " he said. While he said he eventually felt that
adequate safeguards were put in place, he added that questions about
the program's legitimacy were understandable.
Some of those who object to the operation argue that is unnecessary.
By getting warrants through the foreign intelligence court, the
N.S.A. and F.B.I. could eavesdrop on people inside the United States
who might be tied to terrorist groups without skirting longstanding
rules, they say.
The standard of proof required to obtain a warrant from the Foreign
Intelligence Surveillance Court is generally considered lower than
that required for a criminal warrant - intelligence officials only
have to show probable cause that someone may be "an agent of a
foreign power," which includes international terrorist groups - and
the secret court has turned down only a small number of requests
over the years. In 2004, according to the Justice Department, 1,754
warrants were approved. And the Foreign Intelligence Surveillance
Court can grant emergency approval for wiretaps within hours,
Administration officials counter that they sometimes need to move
more urgently, the officials said. Those involved in the program
also said that the N.S.A.'s eavesdroppers might need to start
monitoring large batches of numbers all at once, and that it would
be impractical to seek permission from the Foreign Intelligence
Surveillance Court first, according to the officials.
The N.S.A. domestic spying operation has stirred such controversy
among some national security officials in part because of the
agency's cautious culture and longstanding rules.
Widespread abuses - including eavesdropping on Vietnam War
protesters and civil rights activists - by American intelligence
agencies became public in the 1970's and led to passage of the
Foreign Intelligence Surveillance Act, which imposed strict limits
on intelligence gathering on American soil. Among other things, the
law required search warrants, approved by the secret F.I.S.A. court,
for wiretaps in national security cases. The agency, deeply scarred
by the scandals, adopted additional rules that all but ended
domestic spying on its part.
After the Sept. 11 attacks, though, the United States intelligence
community was criticized for being too risk-averse. The National
Security Agency was even cited by the independent 9/11 Commission
for adhering to self-imposed rules that were stricter than those set
by federal law.
Concerns and Revisions
Several senior government officials say that when the special
operation began, there were few controls on it and little formal
oversight outside the N.S.A. The agency can choose its eavesdropping
targets and does not have to seek approval from Justice Department
or other Bush administration officials. Some agency officials wanted
nothing to do with the program, apparently fearful of participating
in an illegal operation, a former senior Bush administration
official said. Before the 2004 election, the official said, some
N.S.A. personnel worried that the program might come under scrutiny
by Congressional or criminal investigators if Senator John Kerry,
the Democratic nominee, was elected president.
In mid-2004, concerns about the program expressed by national
security officials, government lawyers and a judge prompted the Bush
administration to suspend elements of the program and revamp it.
For the first time, the Justice Department audited the N.S.A.
program, several officials said. And to provide more guidance, the
Justice Department and the agency expanded and refined a checklist
to follow in deciding whether probable cause existed to start
monitoring someone's communications, several officials said.
A complaint from Judge Colleen Kollar-Kotelly, the federal judge who
oversees the Federal Intelligence Surveillance Court, helped spur
the suspension, officials said. The judge questioned whether
information obtained under the N.S.A. program was being improperly
used as the basis for F.I.S.A. wiretap warrant requests from the
Justice Department, according to senior government officials. While
not knowing all the details of the exchange, several government
lawyers said there appeared to be concerns that the Justice
Department, by trying to shield the existence of the N.S.A. program,
was in danger of misleading the court about the origins of the
information cited to justify the warrants.
One official familiar with the episode said the judge insisted to
Justice Department lawyers at one point that any material gathered
under the special N.S.A. program not be used in seeking wiretap
warrants from her court. Judge Kollar-Kotelly did not return calls
A related issue arose in a case in which the F.B.I. was monitoring
the communications of a terrorist suspect under a F.I.S.A.-approved
warrant, even though the National Security Agency was already
conducting warrantless eavesdropping.
According to officials, F.B.I. surveillance of Mr. Faris, the
Brooklyn Bridge plotter, was dropped for a short time because of
technical problems. At the time, senior Justice Department officials
worried what would happen if the N.S.A. picked up information that
needed to be presented in court. The government would then either
have to disclose the N.S.A. program or mislead a criminal court
about how it had gotten the information.
Several national security officials say the powers granted the
N.S.A. by President Bush go far beyond the expanded counterterrorism
powers granted by Congress under the USA Patriot Act, which is up
for renewal. The House on Wednesday approved a plan to reauthorize
crucial parts of the law. But final passage has been delayed under
the threat of a Senate filibuster because of concerns from both
parties over possible intrusions on Americans' civil liberties and
Under the act, law enforcement and intelligence officials are still
required to seek a F.I.S.A. warrant every time they want to
eavesdrop within the United States. A recent agreement reached by
Republican leaders and the Bush administration would modify the
standard for F.B.I. wiretap warrants, requiring, for instance, a
description of a specific target. Critics say the bar would remain
too low to prevent abuses.
Bush administration officials argue that the civil liberties
concerns are unfounded, and they say pointedly that the Patriot Act
has not freed the N.S.A. to target Americans. "Nothing could be
further from the truth," wrote John Yoo, a former official in the
Justice Department's Office of Legal Counsel, and his co-author in a
Wall Street Journal opinion article in December 2003. Mr. Yoo worked
on a classified legal opinion on the N.S.A.'s domestic eavesdropping
At an April hearing on the Patriot Act renewal, Senator Barbara A.
Mikulski, Democrat of Maryland, asked Attorney General Alberto R.
Gonzales and Robert S. Mueller III, the director of the F.B.I., "Can
the National Security Agency, the great electronic snooper, spy on
the American people?"
"Generally," Mr. Mueller said, "I would say generally, they are not
allowed to spy or to gather information on American citizens."
President Bush did not ask Congress to include provisions for the
N.S.A. domestic surveillance program as part of the Patriot Act and
has not sought any other laws to authorize the operation. Bush
administration lawyers argued that such new laws were unnecessary,
because they believed that the Congressional resolution on the
campaign against terrorism provided ample authorization, officials
The Legal Line Shifts
Seeking Congressional approval was also viewed as politically risky
because the proposal would be certain to face intense opposition on
civil liberties grounds. The administration also feared that by
publicly disclosing the existence of the operation, its usefulness
in tracking terrorists would end, officials said.
The legal opinions that support the N.S.A. operation remain
classified, but they appear to have followed private discussions
among senior administration lawyers and other officials about the
need to pursue aggressive strategies that once may have been seen as
crossing a legal line, according to senior officials who
participated in the discussions.
For example, just days after the Sept. 11, 2001, attacks on New York
and the Pentagon, Mr. Yoo, the Justice Department lawyer, wrote an
internal memorandum that argued that the government might use
"electronic surveillance techniques and equipment that are more
powerful and sophisticated than those available to law enforcement
agencies in order to intercept telephonic communications and observe
the movement of persons but without obtaining warrants for such
Mr. Yoo noted that while such actions could raise constitutional
issues, in the face of devastating terrorist attacks "the government
may be justified in taking measures which in less troubled
conditions could be seen as infringements of individual liberties."
The next year, Justice Department lawyers disclosed their thinking
on the issue of warrantless wiretaps in national security cases in a
little-noticed brief in an unrelated court case. In that 2002 brief,
the government said that "the Constitution vests in the President
inherent authority to conduct warrantless intelligence surveillance
(electronic or otherwise) of foreign powers or their agents, and
Congress cannot by statute extinguish that constitutional
Administration officials were also encouraged by a November 2002
appeals court decision in an unrelated matter. The decision by the
Foreign Intelligence Surveillance Court of Review, which sided with
the administration in dismantling a bureaucratic "wall" limiting
cooperation between prosecutors and intelligence officers, cited
"the president's inherent constitutional authority to conduct
warrantless foreign intelligence surveillance."
But the same court suggested that national security interests should
not be grounds "to jettison the Fourth Amendment requirements"
protecting the rights of Americans against undue searches. The
dividing line, the court acknowledged, "is a very difficult one to
Barclay Walsh contributed research for this article.
Copyright 2005The New York Times Company
(In accordance with Title 17
U.S.C. Section 107, this material is distributed without profit to
those who have expressed a prior interest in receiving the
included information for research and educational purposes.
Information Clearing House has no affiliation whatsoever with the
originator of this article nor is Information Clearing House
endorsed or sponsored by the originator.)