In the weeks following 9/11, the NSA collected names and information on thousands of Americans, long before Bush gave them explicit authorization to wiretap without the need to obtain warrants from the FISA court. And then, out of fear that their illegal domestic spying would get them in trouble, they destroyed all the information they had gathered on Americans. This according to a January 5th report by Jason Leopold published at Truthout.org:
The National Security Agency, the top-secret spy shop that has been secretly eavesdropping on Americans under a plan authorized by President Bush four years ago, destroyed the names of thousands of Americans and US companies it collected on its own volition following 9/11, because the agency feared it would be taken to task by lawmakers for conducting unlawful surveillance on United States citizens without authorization from a court, according to a little known report published in October 2001 and intelligence officials familiar with the NSA’s operations.
NSA lawyers advised the agency to immediately destroy the names of thousands of American citizens and businesses it collected shortly after 9/11 in its quest to target terrorists in this country. NSA lawyers told the agency that the surveillance was illegal and that it could not share the data it collected with the CIA or other intelligence agencies.
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The revelation raises new questions about the legality of the NSA’s domestic spying initiative, authorized by President Bush in 2002, which has come under intense scrutiny by Republicans and Democrats and will likely lead to Congressional hearings.
The fact that the NSA has purged the names of thousands of Americans and businesses it collected after 9/11 suggests that at the time there were questions about the constitutionality of the agency’s efforts to combat terrorism by secretly spying on Americans.
Still, the intelligence destruction angered CIA and FBI officials as well as staff members of the House and Senate intelligence committees who feared that leads on potential terrorists would be permanently lost.
“In heated discussions with the CIA and congressional staff, NSA lawyers have turned down requests to preserve the intelligence because the agency’s regulations prohibit the collection of any information on US citizens,” the [Houston] Chronicle reported [in October, 2001].
It also appears that the NSA may have taken these steps as the result of direct criticism from Nancy Pelosi. This January 3, 2006 story in the Houston Chronicle suggests that it may have been her letter of October 11, 2001 that triggered the internal legal review by the NSA:
The letter from Pelosi, the House minority leader, also suggested that the National 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 Hayden, then head of the NSA, to express her concerns after she and other members of the House and Senate Intelligence Committees received a classified briefing from Hayden on Oct. 1, 2001.
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, Hayden suggested in his response to 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 NSA’s collection and reporting.”
Two things of note here. First, the NSA was certainly aware that their activities violated current law, since their own attorneys informed them of that fact. That they would take the dramatic step of purging their files of the information they illegally obtained without waiting for marching orders from the Bush administration first speaks volumes as to how serious they took the charge that they’d violated existing law.
Second, we may see here the genesis for Bush’s direct authorization ordering the NSA to undertake warrantless surveillance of American citizens. No doubt, Bush and Cheney determined that never again would they be stymied from obtaining intellegence information, domestic or foreign, based on what they must have conceived as trivial objections by Government lawyers and leading Democrats in Congress. We know that officials at both CIA and FBI were furious with the NSA for it “data dump” from this report in the Boston Globe, dated October 27, 2001:
”There are some people in law enforcement who are very unhappy about it, because they need investigative leads,” said Vincent Cannistraro, former director of counterterrorism at the CIA.
The NSA spies on foreigners and foreign governments, using high-tech operations to intercept phone calls, e-mail messages, and faxes around the world; collecting data from satellite operations; and translating documents in foreign languages.
By law, the NSA cannot spy on a citizen of the United States, an immigrant lawfully admitted to this country for permanent residence, or a US corporation. But it can, with court permission, target foreigners inside the United States, including diplomats.
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,” said the second official, speaking on condition of anonymity.
”There’s a view of a lot of people in the intelligence community who say, `Wait a minute, it could be useful to the FBI; let them look at it.’ It’s been the subject of some heated discussion between the agency [CIA] and the NSA,” said the official.
For Bush and Cheney, opposition from the FISA court to many of their post 9/11 wiretap requests must have only hardened their determination to avoid both Congressional and Judicial oversight with respect to their domestic intelligence gathering program. And so they found a compliant legal advisor in John Yoo, who was more than willing to justify warrantless surveillance on Americans in contravention of the law based on some grand and amorphous inherent power the President acquired in his role as Commander in Chief.
They then took that legal opinion and shoved it down the throat of anyone, at the NSA or elsewhere in the government, who might object to such an expansion of Executive Branch power. By allowing the President to spy on his fellow Americans without the force of any law, and without any check on that power (save what Bush himself determined was necessary), the Bush administration handed Osama bin Laden his first and greatest victory. He caused the United States to abandon its democratic and constitutional principles out of fear of a scattered band of extreme Islamic terrorists. He caused us to begin the slow slide from Republic to police state. Even the Soviets with their thousands of nuclear warheads could never manage that.
Also posted at Daily Kos.
This is a terrific post — it pulls together what I think is the most interesting and heartening thing in all the horror of lawlessness we confront: there seem to be quite a few people inside the system whose instinct is to follow the law. I never assume that of government folks.
Anyway, off to dKos to recommend this as I didn’t see it up there an hour ago.
I don’t even blame Hayden for doing an internal sweep in Sept. 2001. I think they did the right thing. They took a quick look around, realized they were going doing the wrong path, and destroyed the resulting information.
It’s how Bush reacted to that that is so troubling.
I don’t blame him either. He was following the law. Not something admired in the Bush administration however.
They covered a lot of trails by destroying that evidence. Does anyone really believe that they destroyed that information? It sounds good and we’ll never know for sure but I doubt it.
I have begun including in all telephone calls, and most emails, a big shout-out and “Hi!” to the nice folks at the NSA, busily subborning the Constitution. And a pleasant “good morning, Karl,” as well.
The woman at the library yesterday sounded a bit surprised, but she got it. I have such outrage fatigue and am in such deep depression over the law-breaking of this administration that in order to save what’s left of my sanity (not much), I have to laugh at them.
Imagine what would happen if everyone did, millions and millions of telephone calls saying “hi” to the NSA, all over the country, all over the world. At the very least, it would make lots more people aware of what’s going on.
It’s been going on for a long time and it would be a different issue if it’s power had not been abused and the trust placed in government destroyed by those abusing the trust.
9/11 changed everything
You know, and I know, that it’s been going on for a long time, but Mr. & Mrs. America don’t. So the more the NSA story is in the news, the greater the chance that the law-breaking and abuse of trust will seep down into their consciousness, and they’ll start to wonder whether they, too, have been listened in on.
And we know the answer to that, too.
Once the word starts spreading through all of those churches that everyone’s email has all been saved…and not in the good way saved.
Yes, now the government can identify your spouse by the porn sites in your logfiles, trapped, indexed and cross-referenced to peculiar penchants.
When the minister turns red as you try to shake his hand, consider the possibility that he was served with a National Security Letter on your behalf.
The FISA permits the government to monitor foreign communications, even if they are with U.S. citizens. A FISA warrant is only needed if the subject communications are wholly contained in the United States and involve a foreign power or an agent of a foreign power. Today’s Los Angeles Times writes that the program “was designed to enable the NSA to monitor communications between Americans in the U.S. and people overseas suspected of having ties to terrorist networks.” That’s not illegal or even unusual. The part that addresses the threat from foreign security services was the marketing; the real concerns are the weakening of oversight and potential for abuse.
The truth is that we have no idea of the contents of the president’s executive order and, therefore, we have no idea what conduct we’re supposed to be offended about. The order should be made public. If (over-)classified, it could be sanitized, although I doubt the WH would release it.
The NSA’s activities under this authorization are thoroughly reviewed by the Justice Department and NSA’s top legal officials, including NSA’s general counsel and inspector general. Leaders in Congress have been briefed more than a dozen times on this authorization and the activities conducted under it. Intelligence officials involved in this activity also receive extensive training to ensure they perform their duties consistent with the letter and intent of the authorization.
Preening Congressmen might want to ask colleagues on the Senate Intelligence Committee what they know before stomping all over their congressional-oversight turf. But for a brief mention of Jay Rockefeller’s knowledge of the program in yesterday’s New York Times, we’ve hear nothing from the relevant committee members. Indeed, their silence, if anything, suggests their likely awareness of the program, consistent with the president’s statement that Congress was aware.
In 1978, Congress passed the Foreign Intelligence Surveillance Act (FISA), which establishes a separate legal regime for “foreign intelligence” surveillance. Title III (the “Wiretap Statute) outlines the strict guidelines regulating ordinary law enforcement surveillance, while FISA regulates the government’s collection of “foreign intelligence” information in furtherance of U.S. counterintelligence. FISA was initially limited to electronic eavesdropping and wiretapping. In 1994 it was amended to permit covert physical entries in connection with “security” investigations, and in 1998, it was amended to permit pen/trap orders. FISA can also be used to obtain some business records.
We’re not supposed to have to “trust” the government, we’re supposed to know what it’s doing, considering that it’s acting as an agent of the american people. If you want to say that this is all well and good then the executive order should be de-classified and made public.
Sorry if we lose some “advantage” over the terrorists by having to have transparancy of government (as if Al Qaeda has a legal department that reacts to US legal policy), but the fact remains that we are a democracy and we have to play within our own laws.
Perhaps intelligence organizations need to be able to track communications in and out of the US, and even between internally US citizens. But such behavior must be heavily scrutinized, because it provides for a great potential of abuse of power. Additionally, if the government would like to grant itself new powers over the American people, it really ought to check with said people beforehand.