Post-9/11 Order Bypassed Special Court
By Dan Eggen
Washington Post Staff Writer
Friday, December 16, 2005; A01
President Bush signed a secret order in 2002 authorizing the National Security
Agency to eavesdrop on U.S. citizens and foreign nationals in the United States,
despite previous legal prohibitions against such domestic spying, sources with
knowledge of the program said last night.
The super-secretive NSA, which has generally been barred from domestic spying
except in narrow circumstances involving foreign nationals, has monitored the
e-mail, telephone calls and other communications of hundreds, and perhaps
thousands, of people under the program, the New York Times disclosed last night.
The aim of the program was to rapidly monitor the phone calls and other
communications of people in the United States believed to have contact with
suspected associates of al Qaeda and other terrorist groups overseas, according to
two former senior administration officials. Authorities, including a former NSA
director, Gen. Michael V. Hayden, were worried that vital information could be lost
in the time it took to secure a warrant from a special surveillance court, sources
said.
But the program's ramifications also prompted concerns from some quarters,
including Sen. John D. Rockefeller IV (W.Va.), the ranking Democrat on the
intelligence committee, and the presiding judge of the surveillance court, which
oversees lawful domestic spying, according to the Times.
The Times said it held off on publishing its story about the NSA program for a year
after administration officials said its disclosure would harm national security.
The White House made no comment last night. A senior official reached by
telephone said the issue was too sensitive to talk about. None of several press
officers responded to telephone or e-mail messages.
Congressional sources familiar with limited aspects of the program would not
discuss any classified details but made it clear there were serious questions about
the legality of the NSA actions. The sources, who demanded anonymity, said there
were conditions under which it would be possible to gather and retain information
on Americans if the surveillance were part of an investigation into foreign
intelligence.
But those cases are supposed to be minimized. The sources said the actual work
of the NSA is so closely held that it is difficult to determine whether it is acting
within the law.
The revelations come amid a fierce congressional debate over reauthorization of the
USA Patriot Act, an anti-terrorism law passed after the Sept. 11, 2001, attacks.
The Patriot Act granted the FBI new powers to conduct secret searches and
surveillance in the United States.
Most of the powers covered under that law are overseen by a secret court that
meets at Justice Department headquarters and must approve applications for
wiretaps, searches and other operations. The NSA's operation is outside that
court's purview, and according to the Times report, the Justice Department may
have sought to limit how much that court was made aware of NSA activities.
Public disclosure of the NSA program also comes at a time of mounting concerns
about civil liberties over the domestic intelligence operations of the U.S. military,
which have also expanded dramatically after the Sept. 11 attacks.
For more than four years, the NSA tasked other military intelligence agencies to
assist its broad-based surveillance effort directed at people inside the country
suspected of having terrorist connections, even before Bush signed the 2002 order
that authorized the NSA program, according to an informed U.S. official.
The effort, which began within days after the attacks, has consisted partly of
monitoring domestic telephone conversations, e-mail and even fax communications
of individuals identified by the NSA as having some connection to al Qaeda events
or figures, or to potential terrorism-related activities in the United States, the
official said.
It has also involved teams of Defense Intelligence Agency personnel stationed in
major U.S. cities conducting the type of surveillance typically performed by the FBI:
monitoring the movements and activities -- through high-tech equipment -- of
individuals and vehicles, the official said.
The involvement of military personnel in such tasks was provoked by grave anxiety
among senior intelligence officials after the 2001 suicide attacks that additional
terrorist cells were present within U.S. borders and could only be discovered with
the military's help, said the official, who had direct knowledge of the events.
Kate Martin, director of the Center for National Security Studies, said the secret
order may amount to the president authorizing criminal activity.
The law governing clandestine surveillance in the United States, the Foreign
Intelligence Surveillance Act, prohibits conducting electronic surveillance not
authorized by statute. A government agent can try to avoid prosecution if he can
show he was "engaged in the course of his official duties and the electronic
surveillance was authorized by and conducted pursuant to a search warrant or
court order of a court of competent jurisdiction," according to the law.
"This is as shocking a revelation as we have ever seen from the Bush
administration," said Martin, who has been sharply critical of the administration's
surveillance and detention policies. "It is, I believe, the first time a president has
authorized government agencies to violate a specific criminal prohibition and
eavesdrop on Americans."
Caroline Fredrickson, director of the Washington legislative office of the American
Civil Liberties Union, said she is "dismayed" by the report.
"It's clear that the administration has been very willing to sacrifice civil liberties in its
effort to exercise its authority on terrorism, to the extent that it authorizes
criminal activity," Fredrickson said.
The NSA activities were justified by a classified Justice Department legal opinion
authored by John C. Yoo, a former deputy in the Office of Legal Counsel who
argued that congressional approval of the war on al Qaeda gave broad authority to
the president, according to the Times.
That legal argument was similar to another 2002 memo authored primarily by Yoo,
which outlined an extremely narrow definition of torture. That opinion, which was
signed by another Justice official, was formally disavowed after it was disclosed by
the Washington Post.
Justice Department spokeswoman Tasia Scolinos would not comment on the report
last night.
Staff writers Dafna Linzer and Peter Baker contributed to this report.
