NSA accused of spying on US citizens

When he was asked about the National Security Agency's (NSA) controversial domestic surveillance program on May 8, US intelligence chief John D. Negroponte objected to the question and said the government was "absolutely not" monitoring domestic calls without warrants. It is illegal for the agency to spy on US citizens without court approval. Three days later, USA Today divulged details of the NSA's effort to log a majority of the telephone calls made within the United States since the Sept. 11, 2001, attacks–amassing the domestic call records of tens of millions of US households and businesses in an attempt to sift them for clues about terrorist threats. To many lawmakers and civil liberties advocates, the revelation seemed to fly in the face of months of public statements and assurances from President Bush and his aides, who repeatedly sought to characterize the NSA's effort as a narrowly tailored "terrorist surveillance program" that had little impact on US citizens. But the USA Today report on May 11 suggests the program is vastly more expansive than the secret, warrantless wiretapping program revealed in December 2005 which involved monitoring calls and emails in which one party was abroad. According to the report, the NSA program reaches into homes and businesses across the nation by amassing information about the calls of ordinary US citizens–most of whom aren't suspected of any crime. This program supposedly does not involve the NSA listening to or recording conversations. But the spy agency is using the data to analyze calling patterns in an effort to detect terrorist activity. In defending the previously disclosed program, Bush insisted that the NSA was focused exclusively on international calls. "In other words," Bush explained, "one end of the communication must be outside the United States." As a result, domestic call records–those of calls that originate and terminate within US borders–were believed to be private. The USA Today report, however, suggests that is not the case. With access to records of billions of domestic calls, the NSA has gained a secret window into the communications habits of millions of US citizens. Customer names, street addresses and other personal information are not being handed over as part of NSA's domestic program, the sources said. But the phone numbers the NSA collects can easily be cross-checked with other databases to obtain that information. In a sign of how seriously the White House viewed the potential fallout, Bush appeared on television the day after the story appeared to read a hastily prepared statement in which he did not deny the allegations, but insisted that his administration had not broken any laws. "We are not mining or trawling through the personal lives of millions of innocent Americans. Our efforts are focused on al-Qaida and their known affiliates," he said. But the President conspicuously failed to deny what USA Today actually reported. On Capitol Hill the article was met with outrage from Republican and Democratic members of Congress. "The idea of collecting millions or thousands of phone numbers–how does that fit into following the enemy?" Senator Lindsey Graham (R-SC) asked Fox television. A Senate Judiciary Committee hearing that had been due to discuss judicial nominations was dominated by the USA Today revelations. Patrick Leahy, the senior Democrat on the committee, said: "Are you telling me that tens of millions of Americans are involved with al-Qaida? These are… Americans who are not suspected of anything–where does it stop?" President Bush later insisted on May 16 that the United States does not listen in on domestic telephone conversations among "ordinary" US citizens. But he declined to specifically discuss the government's alleged compiling of phone records. "We do not listen to domestic phone calls without court approval," Bush said. Bush previously acknowledged that he had secretly authorized the NSA to intercept phone calls and emails between US residents and terror suspects abroad without the court approval required by the 1978 Foreign Intelligence Surveillance Act (FISA). The White House has said that Bush, in his role as commander in chief, has the authority to allow the NSA to bypass that law requiring the government to secure permission from the special FISA court before placing US residents under electronic surveillance for intelligence purposes. But Constitutional experts have called the practice illegal, and also have argued that the White House was required by the 1947 National Security Act to provide a full briefing on all aspects of the program to the full House and Senate Intelligence committees. BellSouth denied it gave customer calling records to the NSA en masse but didn't rule out the possibility that its records found their way to the agency indirectly. Verizon also said that it had not provided local phone records to the NSA. But Verizon's statement left open the possibility that MCI, the long-distance carrier the company bought in January, did turn over such records–or that the unit, once absorbed into Verizon, had continued to do so. "We're confident in our coverage of the phone database story," said USA Today spokesman Steve Anderson, adding that his newspaper "will look closely into the issues raised by BellSouth's and Verizon's statements." The telecommunications company Qwest said it refused to cooperate with the NSA after determining that doing so would violate privacy law. Qwest was approached in the fall of 2001 to permit government access to private phone records, according to an attorney for Joseph Nacchio, who at the time was Qwest's chairman and CEO. Nacchio refused because the government had failed to obtain a warrant or cross other legal hurdles to obtain the data, according to the lawyer, Herbert Stern. "Mr. Nacchio concluded that these requests violated the privacy requirements of the Telecommunications Act," Stern said. According to USA Today, the NSA pushed back hard. NSA representatives pointedly told Qwest that it was the lone holdout among the big telecommunications companies. It also tried appealing to Qwest's patriotic side: In one meeting, an NSA representative suggested that Qwest's refusal to contribute to the database could compromise national security, one person recalled. In addition, the agency suggested that Qwest's foot-dragging might affect its ability to get future classified work with the government. Like other big telecommunications companies, Qwest already had classified contracts and hoped to get more. Unable to get comfortable with what NSA was proposing, Qwest's lawyers asked NSA to take its proposal to the FISA court. According to the sources, the agency refused. The NSA's explanation did little to satisfy Qwest's lawyers. "They told [Qwest] they didn't want to do that because FISA might not agree with them," one person recalled. For similar reasons, this person said, NSA rejected Qwest's suggestion of getting a letter of authorization from the US attorney general's office. A second person confirmed this version of events. In June 2002, Nacchio resigned amid allegations that he had misled investors about Qwest's financial health. But Qwest's legal questions about the NSA request remained. Unable to reach agreement, Nacchio's successor, Richard Notebaert, finally pulled the plug on the NSA talks in late 2004, the sources said. AT&T, the country's largest long-distance company, has not denied involvement. While the company has avoided comment, the Bush administration has launched a multi-pronged attack on a lawsuit that accuses AT&T of collaborating with the US government in illegal electronic surveillance. The White House is arguing that customers can't prove their phones were tapped or that the company or the government broke the law–and that, in any event, the entire case "endangers national security." Those assertions in a move for dismissal were based on arguments and evidence that the government submitted to a federal judge under seal, keeping them secret from the public and from the privacy-rights group that filed the suit on behalf of AT&T customers. The sealed documents and a heavily edited public version were submitted in federal court in San Francisco along with declarations from Negroponte and NSA director Lt. Gen. Keith Alexander. Both officials emphasized the need for secrecy as a reason to keep the lawsuit, filed by the Electronic Frontier Foundation, from going forward. "Any attempt to proceed in this case will substantially risk disclosure of... privileged information and will cause exceptionally grave damage to the national security of the United States," Alexander said. The suit was accompanied by documents obtained by a former AT&T technician describing equipment installed in the company's San Francisco office that allegedly would enable the federal agency to sweep up huge amounts of data that it could screen for targeted information. The former employee, Mark Klein, handled problems on internet fiber optic circuits and said that the equipment was being attached to the circuits in San Francisco and other AT&T offices. The equipment allowed the NSA to conduct "vacuum-cleaner surveillance of all the data crossing the internet," he said. Without evidence of how the program operated and whom it targeted–evidence that the Justice Department argued can't be made public–the plaintiffs have no chance of proving the essential elements of their case, the government said. Those elements are: tThat President Bush exceeded his legal authority by authorizing wiretaps and email interception without a warrant; tThat innocent US citizens not in contact with al-Qaida or affiliated groups had their calls or messages intercepted; tThat AT&T participated in the program; tAnd that any participation by AT&T lacked authorization from the government. Kevin Bankston, a lawyer for the plaintiffs, said they were not arguing that the government had monitored particular calls or messages, only that their phone and internet records had been turned over to the government illegally, without a warrant or suspicion of wrongdoing. Twenty years ago, Congress made it illegal for telephone companies and computer service providers to turn over records to the government showing who their customers had dialed or emailed. Section 2702 of the Electronic Communications Privacy Act of 1986 says the providers of "electronic communications… shall not knowingly divulge a record or other information pertaining to a subscriber or customer… to any government entity." Companies that violate the law are subject to being sued and paying damages of at least $1,000 per violation per customer. Some of the nation's top experts in telecommunications law said phone companies that cooperated in the NSA program could be on the hook for billions of dollars in civil liability. Peter Swire, an Ohio State University law professor who was the Clinton administration's top adviser on privacy issues, said the law forbids such a turnover to the government without a warrant or court order. "If you've got 50 million people, that's potentially $50 billion," Swire said. "I can't figure out any defense here." "There seems to be a notion… that somehow we have to tell the entire world–we have to make intelligence-gathering transparent," said the president's new press secretary, ex-FOX News anchor Tony Snow. "Let me remind you, it's a war on terror.... Al-Qaida does not believe in transparency. What al-Qaida believes in is mayhem." A Senate confirmation hearing is scheduled for May 18 on Bush's nomination of Air Force Gen. Michael Hayden to head the CIA. As the NSA director from 1999-2005, Hayden oversaw the government's secret, warrantless surveillance program. By all accounts, Hayden was the principal architect of the plan. He might find himself fielding questions about whether the administration has reconstituted a heavily criticized data-collection effort known as Total Information Awareness (TIA) that was once run by the Defense Department. It swept up billions of pieces of consumer and personal data and analyzed them in an attempt to detect patterns possibly linked to terrorism. Following a public outcry over privacy concerns, the department said in 2003 it was dropping the program. The existence of a second covert information-gathering program suggests the administration has reconstituted at least parts of the TIA program, said former Sen. Bob Graham (D-FL), a former chairman of the Senate Intelligence Committee. Earlier in February, Intelligence Committee member Sen. Ron Wyden (D-OR) asked Hayden if several of the TIA programs had been shifted to other intelligence agencies. "Senator, I would like to answer you in closed session," Hayden replied.