NSA Spied on Americans Without Presidential
Authority
NY Times
Files Say Agency Initiated Growth of Spying Effort
By ERIC LICHTBLAU and SCOTT SHANE
January 4, 2006
WASHINGTON, Jan. 3 - The National Security Agency acted on its own
authority, without a formal directive from President Bush, to expand its
domestic surveillance operations in the weeks after the Sept. 11 attacks,
according to declassified documents released Tuesday.
The N.S.A. operation prompted questions from a leading Democrat,
Representative Nancy Pelosi of California, who said in an Oct. 11, 2001, letter
to a top intelligence official that she was concerned about the agency's legal
authority to expand its domestic operations, the documents showed.
Ms. Pelosi's letter, which was declassified at her request, showed much
earlier concerns among lawmakers about the agency's domestic surveillance
operations than had been previously known. Similar objections were expressed by
Senator John D. Rockefeller IV, Democrat of West Virginia, in a secret letter
to Vice President Dick Cheney nearly two years later.
The letter from Ms. Pelosi, the House minority leader, also suggested that
the security agency, whose mission is to eavesdrop on foreign communications,
moved immediately after the Sept. 11 attacks to identify terror suspects at
home by loosening restrictions on domestic eavesdropping.
The congresswoman wrote to Lt. Gen. Michael V. Hayden, then head of the
N.S.A., to express her concerns after she and other members of the House and
Senate Intelligence Committees received a classified briefing from General
Hayden on Oct. 1, 2001, about the agency's operations.
Ms. Pelosi, then the ranking Democrat on the House Intelligence Committee,
said, "I am concerned whether, and to what extent, the National Security Agency
has received specific presidential authorization for the operations you are
conducting."
The answer, General Hayden suggested in his response to Ms. Pelosi a week
later, was that it had not. "In my briefing," he wrote, "I was attempting to
emphasize that I used my authorities to adjust N.S.A.'s collection and
reporting."
It is not clear whether General Hayden referred at the briefing to the idea
of warrantless eavesdropping. Parts of the letters from Ms. Pelosi and General
Hayden concerning other specific aspects of the spy agency's domestic operation
were blacked out because they remain classified. But officials familiar with
the uncensored letters said they referred to other aspects of the domestic
eavesdropping program.
Bush administration officials said on Tuesday that General Hayden, now the
country's No. 2 intelligence official, had acted on the authority previously
granted to the N.S.A., relying on an intelligence directive known as Executive
Order 12333, issued by President Ronald Reagan in 1981. That order set
guidelines for the collection of intelligence, including by the N.S.A.
"He had authority under E.O. 12333 that had been given to him, and he
briefed Congress on what he did under those authorities," said Judith A. Emmel,
a spokeswoman for the Office of the Director of National Intelligence. "Beyond
that, we can't get into details of what was done."
In 2002, President Bush signed an executive order specifically authorizing
the security agency to eavesdrop without warrants on the international
communications of Americans inside the United States who the agency believed
were connected to Al Qaeda. The disclosure of the domestic spying program last
month provoked an outcry in Washington, where Congressional hearings are
planned.
General Hayden's October 2001 briefing was one of the first glimpses into
the expanded but largely hidden role that the N.S.A. would assume in combating
terrorism over the last four years.
In the briefing, Ms. Pelosi wrote to General Hayden, "you indicated that you
had been operating since the Sept. 11 attacks with an expansive view of your
authorities" with respect to electronic surveillance and intelligence-gathering
operations.
"You seemed to be inviting expressions of concern from us, if there were
any," Ms. Pelosi wrote, but she said that the lack of specific information
about the agency's operations made her concerned about the legal rationale used
to justify it.
One step that the agency took immediately after the Sept. 11 attacks, Ms.
Pelosi wrote in her letter, was to begin forwarding information from foreign
intelligence intercepts to the F.B.I. for investigation without first receiving
a specific request from the bureau for "identifying information."
In the past, under so-called minimization procedures intended to guard
Americans' privacy, the agency's standard practice had been to require a
written request from a government official who wanted to know the name of an
American citizen or a person in the United States who was mentioned or
overheard in a wiretap.
In the weeks after the Sept. 11 attacks, the agency began monitoring
telephone calls and e-mail messages between the United States and Afghanistan
to track possible terror suspects. That program led to the broader
eavesdropping operation on other international communications, officials have
said.
The agency has also tapped into some of the nation's main telecommunications
arteries to trace and analyze large volumes of phone and e-mail traffic to look
for patterns of possible terrorist activity.
Marc Rotenberg, director of the Electronic Privacy Information Center, said
the new documents, along with previous reports of objections to the program
from Senator Rockefeller and James B. Comey, the former deputy attorney
general, underscored the need for a comprehensive investigation.
"There's an increasing picture of concern, if not outright opposition,
within the government," Mr. Rotenberg said. "But we can't second-guess anyone's
actions on a document-by-document basis," particularly if the documents are
released only in part, he added.
The way the N.S.A.'s role has expanded has prompted concern even from some
of its former leaders, like Bobby R. Inman, a retired admiral who was N.S.A.
director from 1977 to 1981. Admiral Inman said that while he supported the
decision to step up eavesdropping against potential terrorists immediately
after the 2001 attacks, the Bush administration should have tried to change the
Foreign Intelligence Surveillance Act to provide explicit legal authorization
for what N.S.A. was doing.
"What I don't understand is why when you're proposing the Patriot Act, you
don't set up an oversight mechanism for this?" Admiral Inman said in an
interview. "I would have preferred an approach to try to gain legislation to
try to operate with new technology and with an audit of how this technology was
used."
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