Spying Program Snared U.S.
Calls
NY Times
By JAMES RISEN and ERIC LICHTBLAU
Published: December 21, 2005
WASHINGTON, Dec. 20 - A surveillance program approved by President Bush to
conduct eavesdropping without warrants has captured what are purely domestic
communications in some cases, despite a requirement by the White House that one
end of the intercepted conversations take place on foreign soil, officials
say.
The officials say the National Security Agency's interception of a small
number of communications between people within the United States was apparently
accidental, and was caused by technical glitches at the National Security
Agency in determining whether a communication was in fact "international."
Telecommunications experts say the issue points up troubling logistical
questions about the program. At a time when communications networks are
increasingly globalized, it is sometimes difficult even for the N.S.A. to
determine whether someone is inside or outside the United States when making a
cellphone call or sending an e-mail message. As a result, people that the
security agency may think are outside the United States are actually on
American soil.
Vice President Dick Cheney entered the debate over the legality of the
program on Tuesday, casting the program as part of the administration's efforts
to assert broader presidential powers.
Eavesdropping on communications between two people who are both inside the
United States is prohibited under Mr. Bush's order allowing some domestic
surveillance.
But in at least one instance, someone using an international cellphone was
thought to be outside the United States when in fact both people in the
conversation were in the country. Officials, who spoke on condition of
anonymity because the program remains classified, would not discuss the number
of accidental intercepts, but the total is thought to represent a very small
fraction of the total number of wiretaps that Mr. Bush has authorized without
getting warrants. In all, officials say the program has been used to eavesdrop
on as many as 500 people at any one time, with the total number of people
reaching perhaps into the thousands in the last three years.
Mr. Bush and his senior aides have emphasized since the disclosure of the
program's existence last week that the president's executive order applied only
to cases where one party on a call or e-mail message was outside the United
States.
Gen. Michael V. Hayden, the former N.S.A. director who is now the
second-ranking intelligence official in the country, was asked at a White House
briefing this week whether there had been any "purely domestic" intercepts
under the program.
"The authorization given to N.S.A. by the president requires that one end of
these communications has to be outside the United States," General Hayden
answered. "I can assure you, by the physics of the intercept, by how we
actually conduct our activities, that one end of these communications are
always outside the United States."
Attorney General Alberto R. Gonzales also emphasized that the order only
applied to international communications. "People are running around saying that
the United States is somehow spying on American citizens calling their
neighbors," he said. "Very, very important to understand that one party to the
communication has to be outside the United States."
A spokeswoman for the office of national intelligence declined comment on
whether the N.S.A. had intercepted any purely domestic communications. "We'll
stand by what General Hayden said in his statement," said the spokeswoman, Judy
Emmel.
The Bush administration has not released the guidelines that the N.S.A. uses
in determining who is suspected of having links to Al Qaeda and may be a target
under the program. General Hayden said the determination was made by
operational people at the agency and "must be signed off by a shift
supervisor," with the process closely scrutinized by officials at the agency,
the Justice Department and elsewhere.
But questions about the legal and operational oversight of the program last
year prompted the administration to suspend aspects of it temporarily and put
in place tighter restrictions on the procedures used to focus on suspects, said
people with knowledge of the program. The judge who oversees the secret court
that authorizes intelligence warrants - and which has been largely bypassed by
the program - also raised concerns about aspects of the program.
The concerns led to a secret audit, which did not reveal any abuses in
focusing on suspects or instances in which purely domestic communications were
monitored, said officials familiar with the classified findings.
General Hayden, at this week's briefing, would not discuss many technical
aspects of the program and did not answer directly when asked whether the
program was used to eavesdrop on people who should not have been. But he
indicated that N.S.A. operational personnel sometimes decide to stop
surveillance of a suspect when the eavesdropping has not produced relevant
leads on terror cases.
"We can't waste resources on targets that simply don't provide valuable
information, and when we decide that is the case," the decision on whether a
target is "worthwhile" is usually made in days or weeks, he said.
National security and telecommunications experts said that even if the
N.S.A. seeks to adhere closely to the rules that Mr. Bush has set, the
logistics of the program may make it difficult to ensure that the rules are
being followed.
With roaming cellphones, internationally routed e-mail, and voice-over
Internet technology, "it's often tough to find out where a call started and
ended," said Robert Morris, a former senior scientist at the N.S.A. who is
retired. "The N.S.A. is good at it, but it's difficult even for them. Where a
call actually came from is often a mystery."
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