五年前，国会在美国否决了被认为的一个实验性五角大楼反恐怖主义节目吸尘电子数据关于人。 搜寻可疑样式。 对手在美国人称它太宽广的闯入’保密性，在9月以后。 11次恐怖分子攻击。

但数据过滤的努力没有消失。 国家安全代办处，一次被限制到外国监视，根本上建立同一个系统。

NSA在国内智力汇聚来占领的主角公开地从未被透露。 但询问在美国显露它的努力演变更加宽广地到达入数据关于人的通信，移动和财务。 比国内监视节目发现了从2001年恐怖分子攻击。

国会根据治理美国的主要法律热烈现在辩论国内暗中侦察的力量。 监视瞄准的外国威胁。 那些力量扩展上个月到期了并且等候更新，在众院里可能投票这个星期。 最大的问题的角逐在法律，外国情报机构监视行动，是否应该由责任使成为电信和其他公司免疫为协助政府监视。

大错过从公开讨论是高度隐隐藏藏的NSA的角色在分析那数据，收集通过可能弄脏线在国内和外国情报机构汇聚之间的罕知的安排。 NSA担当一个关键舷墙反对外国恐怖分子的支持者言，并且那它是鲁莽的压抑代办处的使命。 NSA认为它一丝不苟地遵循所有可适用的法律，并且那它保持国会充分被通知它的活动。

根据当前和前情报官员，间谍机构现在监测国内电子邮件纪录的巨大的容量，并且互联网搜寻以及银行汇款，信用卡交易、旅行和电话纪录。 NSA从其他代办处或私人公司接受这所谓的“交易上的”数据，并且它的老练软件程序分析各种各样的交易为可疑样式。 然后他们吐带领由反恐怖主义节目探索横跨美国。 government, such as the NSA’s own Terrorist Surveillance Program, formed to intercept phone calls and emails between the U.S. and overseas without a judge’s approval when a link to al Qaeda is suspected.

The NSA’s enterprise involves a cluster of powerful intelligence-gathering programs, all of which sparked civil-liberties complaints when they came to light. They include a Federal Bureau of Investigation program to track telecommunications data once known as Carnivore, now called the Digital Collection System, and a U.S. arrangement with the world’s main international banking clearinghouse to track money movements.

The effort also ties into data from an ad-hoc collection of so-called “black programs” whose existence is undisclosed, the current and former officials say. Many of the programs in various agencies began years before the 9/11 attacks but have since been given greater reach. Among them, current and former intelligence officials say, is a longstanding Treasury Department program to collect individual financial data including wire transfers and credit-card transactions.

It isn’t clear how many of the different kinds of data are combined and analyzed together in one database by the NSA. An intelligence official said the agency’s work links to about a dozen antiterror programs in all.

A number of NSA employees have expressed concerns that the agency may be overstepping its authority by veering into domestic surveillance. And the constitutional question of whether the government can examine such a large array of information without violating an individual’s reasonable expectation of privacy “has never really been resolved,” said Suzanne Spaulding, a national-security lawyer who has worked for both parties on Capitol Hill.

NSA officials say the agency’s own investigations remain focused only on foreign threats, but it’s increasingly difficult to distinguish between domestic and international communications in a digital era, so they need to sweep up more information.

The Fourth Amendment

In response to the Sept. 11 attacks, then NSA-chief Gen. Michael Hayden has said he used his authority to expand the NSA’s capabilities under a 1981 executive order governing the agency. Another presidential order issued shortly after the attacks, the text of which is classified, opened the door for the NSA to incorporate more domestic data in its searches, one senior intelligence official said.

The NSA “strictly follows laws and regulations designed to preserve every American’s privacy rights under the Fourth Amendment to the U.S. Constitution,” agency spokeswoman Judith Emmel said in a statement, referring to the protection against unreasonable searches and seizures. The Office of the Director of National Intelligence, which oversees the NSA in conjunction with the Pentagon, added in a statement that intelligence agencies operate “within an extensive legal and policy framework” and inform Congress of their activities “as required by the law.” It pointed out that the 9/11 Commission recommended in 2004 that intelligence agencies analyze “all relevant sources of information” and share their databases.

Two former officials familiar with the data-sifting efforts said they work by starting with some sort of lead, like a phone number or Internet address. In partnership with the FBI, the systems then can track all domestic and foreign transactions of people associated with that item — and then the people who associated with them, and so on, casting a gradually wider net. An intelligence official described more of a rapid-response effect: If a person suspected of terrorist connections is believed to be in a U.S. city — for instance, Detroit, a community with a high concentration of Muslim Americans — the government’s spy systems may be directed to collect and analyze all electronic communications into and out of the city.

The haul can include records of phone calls, email headers and destinations, data on financial transactions and records of Internet browsing. The system also would collect information about other people, including those in the U.S., who communicated with people in Detroit.

The information doesn’t generally include the contents of conversations or emails. But it can give such transactional information as a cellphone’s location, whom a person is calling, and what Web sites he or she is visiting. For an email, the data haul can include the identities of the sender and recipient and the subject line, but not the content of the message.

Intelligence agencies have used administrative subpoenas issued by the FBI — which don’t need a judge’s signature — to collect and analyze such data, current and former intelligence officials said. If that data provided “reasonable suspicion” that a person, whether foreign or from the U.S., was linked to al Qaeda, intelligence officers could eavesdrop under the NSA’s Terrorist Surveillance Program.

The White House wants to give companies that assist government surveillance immunity from lawsuits alleging an invasion of privacy, but Democrats in Congress have been blocking it. The Terrorist Surveillance Program has spurred 38 lawsuits against companies. Current and former intelligence officials say telecom companies’ concern comes chiefly because they are giving the government unlimited access to a copy of the flow of communications, through a network of switches at U.S. telecommunications hubs that duplicate all the data running through it. It isn’t clear whether the government or telecom companies control the switches, but companies process some of the data for the NSA, the current and former officials say.

On Friday, the House Energy and Commerce Committee released a letter warning colleagues to look more deeply into how telecommunications data are being accessed, citing an allegation by the head of a New York-based computer security firm that a wireless carrier that hired him was giving unfettered access to data to an entity called “Quantico Circuit.” Quantico is a Marine base that houses the FBI Academy; senior FBI official Anthony DiClemente said the bureau “does not have ‘unfettered access’ to any communication provider’s network.”

The political debate over the telecom information comes as intelligence agencies seek to change traditional definitions of how to balance privacy rights against investigative needs. Donald Kerr, the deputy director of national intelligence, told a conference of intelligence officials in October that the government needs new rules. Since many people routinely post details of their lives on social-networking sites such as MySpace, he said, their identity shouldn’t need the same protection as in the past. Instead, only their “essential privacy,” or “what they would wish to protect about their lives and affairs,” should be veiled, he said, without providing examples.

Social-Network Analysis

The NSA uses its own high-powered version of social-network analysis to search for possible new patterns and links to terrorism. The Pentagon’s experimental Total Information Awareness program, later renamed Terrorism Information Awareness, was an early research effort on the same concept, designed to bring together and analyze as much and as many varied kinds of data as possible. Congress eliminated funding for the program in 2003 before it began operating. But it permitted some of the research to continue and TIA technology to be used for foreign surveillance.

Some of it was shifted to the NSA — which also is funded by the Pentagon — and put in the so-called black budget, where it would receive less scrutiny and bolster other data-sifting efforts, current and former intelligence officials said. “When it got taken apart, it didn’t get thrown away,” says a former top government official familiar with the TIA program.

Two current officials also said the NSA’s current combination of programs now largely mirrors the former TIA project. But the NSA offers less privacy protection. TIA developers researched ways to limit the use of the system for broad searches of individuals’ data, such as requiring intelligence officers to get leads from other sources first. The NSA effort lacks those controls, as well as controls that it developed in the 1990s for an earlier data-sweeping attempt.

Sen. Ron Wyden, an Oregon Democrat and member of the Senate Intelligence Committee who led the charge to kill TIA, says “the administration is trying to bring as much of the philosophy of operation Total Information Awareness as it can into the programs they’re using today.” The issue has been overshadowed by the fight over telecoms’ immunity, he said. “There’s not been as much discussion in the Congress as there ought to be.”

Opportunity for Debate

But Sen. Kit Bond of Missouri, the ranking Republican on the committee, said by email his committee colleagues have had “ample opportunity for debate” behind closed doors and that each intelligence program has specific legal authorization and oversight. He cautioned against seeing a group of intelligence programs as “a mythical ‘big brother’ program,” adding, “that’s not what is happening today.”

The legality of data-sweeping relies largely on the government’s interpretation of a 1979 Supreme Court ruling allowing records of phone calls — but not actual conversations — to be collected without a judge issuing a warrant. Multiple laws require a court order for so-called “transactional’” records of electronic communications, but the 2001 Patriot Act lowered the standard for such an order in some cases, and in others made records accessible using FBI administrative subpoenas called “national security letters.” (Read the ruling.)

A debate is brewing among legal and technology scholars over whether there should be privacy protections when a wide variety of transactional data are brought together to paint what is essentially a profile of an individual’s behavior. “You know everything I’m doing, you know what happened, and you haven’t listened to any of the contents” of the communications, said Susan Landau, co-author of a book on electronic privacy and a senior engineer at Sun Microsystems Laboratories. “Transactional information is remarkably revelatory.”

Ms. Spaulding, the national-security lawyer, said it’s “extremely questionable” to assume Americans don’t have a reasonable expectation of privacy for data such as the subject-header of an email or a Web address from an Internet search, because those are more like the content of a communication than a phone number. “These are questions that require discussion and debate,” she said. “This is one of the problems with doing it all in secret.”

Gen. Hayden, the former NSA chief and now Central Intelligence Agency director, in January 2006 publicly defended the activities of the Terrorist Surveillance Program after it was disclosed by the New York Times. He said it was “not a driftnet over Lackawanna or Fremont or Dearborn, grabbing all communications and then sifting them out.” Rather, he said, it was carefully targeted at terrorists. However, some intelligence officials now say the broader NSA effort amounts to a driftnet. A portion of the activity, the NSA’s access to domestic phone records, was disclosed by a USA Today article in 2006.

The NSA, which President Truman created in 1952 through a classified presidential order to be America’s ears abroad, has for decades been the country’s largest and most secretive intelligence agency. The order confined NSA spying to “foreign governments,” and during the Cold War the NSA developed a reputation as the world’s premier code-breaking operation. But in the 1970s, the NSA and other intelligence agencies were found to be using their spy tools to monitor Americans for political purposes. That led to the original FISA legislation in 1978, which included an explicit ban on the NSA eavesdropping in the U.S. without a warrant.

Big advances in telecommunications and database technology led to unprecedented data-collection efforts in the 1990s. One was the FBI’s Carnivore program, which raised fears when it was in disclosed in 2000 that it might collect telecommunications information about law-abiding individuals. But the ground shifted after 9/11. Requests for analysis of any data that might hint at terrorist activity flooded from the White House and other agencies into NSA’s Fort Meade, Md., headquarters outside Washington, D.C., one former NSA official recalls. At the time, “We’re scrambling, trying to find any piece of data we can to find the answers,” the official said.

The 2002 congressional inquiry into the 9/11 attacks criticized the NSA for holding back information, which NSA officials said they were doing to protect the privacy of U.S. citizens. “NSA did not want to be perceived as targeting individuals in the United States” and considered such surveillance the FBI’s job, the inquiry concluded.

FBI-NSA Projects

The NSA quietly redefined its role. Joint FBI-NSA projects “expanded exponentially,” said Jack Cloonan, a longtime FBI veteran who investigated al Qaeda. He pointed to national-security letter requests: They rose from 8,500 in 2000 to 47,000 in 2005, according to a Justice Department inspector general’s report last year. It also said the letters permitted the potentially illegal collection of thousands of records of people in the U.S. from 2003-05. Last Wednesday, FBI Director Robert Mueller said the bureau had found additional instances in 2006.

It isn’t known how many Americans’ data have been swept into the NSA’s systems. The Treasury, for instance, built its database “to look at all the world’s financial transactions” and gave the NSA access to it about 15 years ago, said a former NSA official. The data include domestic and international money flows between bank accounts and credit-card information, according to current and former intelligence officials.

The NSA receives from Treasury weekly batches of this data and adds it to a database at its headquarters. Prior to 9/11, the database was used to pursue specific leads, but afterward, the effort was expanded to hunt for suspicious patterns.

Through the Treasury, the NSA also can access the database of the Society for Worldwide Interbank Financial Telecommunication, or Swift, the Belgium-based clearinghouse for records of international transactions between financial institutions, current and former officials said. The U.S. acknowledged in 2006 that the CIA and Treasury had access to Swift’s database, but said the NSA’s Terrorism Surveillance Program was separate and that the NSA provided only “technical assistance.” A Treasury spokesman said the agency had no comment.

Through the Department of Homeland Security, airline passenger data also are accessed and analyzed for suspicious patterns, such as five unrelated people who repeatedly fly together, current and former intelligence officials said. Homeland Security shares information with other agencies only “on a limited basis,” spokesman Russ Knocke said.

NSA gets access to the flow of data from telecommunications switches through the FBI, according to current and former officials. It also has a partnership with FBI’s Digital Collection system, providing access to Internet providers and other companies. The existence of a shadow hub to copy information about AT&T Corp. telecommunications in San Francisco is alleged in a lawsuit against AT&T filed by the civil-liberties group Electronic Frontier Foundation, based on documents provided by a former AT&T official. In that lawsuit, a former technology adviser to the Federal Communications Commission says in a sworn declaration that there could be 15 to 20 such operations around the country. Current and former intelligence officials confirmed a domestic network of hubs, but didn’t know the number. “As a matter of policy and law, we can not discuss matters that are classified,” said FBI spokesman John Miller.

The budget for the NSA’s data-sifting effort is classified, but one official estimated it surpasses $1 billion. The FBI is requesting to nearly double the budget for the Digital Collection System in 2009, compared with last year, requesting $42 million. “Not only do demands for information continue to increase, but also the requirement to facilitate information sharing does,” says a budget justification document, noting an “expansion of electronic surveillance activity in frequency, sophistication, and linguistic needs.”

SIOBHAN GORMAN

Cyber attack fear used to expand spy grid

By Ashlee Vance in Mountain View

Not content with spying on other countries, the NSA (National Security Agency) will now turn on the US’s own government agencies thanks to a fresh directive from president George Bush.

Under the new guidelines, the NSA and other intelligence agencies can bore into the internet networks of all their peers. The Bush administration pulled off this spy expansion by pointing to an increase in the number of cyber attacks directed against the US, possibly from foreign nations. The Office of the Director of National Intelligence (ODNI) will spearhead the effort around identifying the source of these attacks, while the Department of Homeland Security and Pentagon will concentrate on retaliation.

The Washington Post appears to have broken the news about the new Bush-led joint directive, which remains classified. The paper reported that the directive - National Security Presidential Directive 54/Homeland Security Presidential Directive 23 - was signed on Jan. 8. Earlier reports from the Baltimore Sun documented the NSA’s plans to add US spying to its international snooping duties.

The new program will - of course - drains billions of dollars out of US coffers and be part of Bush’s 2009 budget.

During Bush’s presidency, US citizens have come under an unprecedented spying regime. In addition to upping its focus on suspected criminals, the administration permitted a system for wiretapping the phone calls of Average Joes and Janes. The government is also funding specialized computers from companies such as Cray that can search through enormous databases at incredible speed. Ah, if only Stalin could see us now.

The government points to cyber attacks against the State, Commerce, Defense and Homeland Security departments as the impetus for expanding the NSA’s powers. “U.S. officials and cyber-security experts have said Chinese Web sites were involved in several of the biggest attacks back to 2005, including some at the country’s nuclear-energy labs and large defense contractors,” the Post reported.

Critics of the new directive will point to the NSA’s ability to operate in total secrecy as cause for concern.

More troubling, however, may be the Pentagon and Homeland Security’s aspirations to hit attackers with counter-strikes.

Proving that a nation rather than a rogue set of attackers are behind a cyber attack will likely be very difficult. In addition, the international community has yet to address the rules of cyber war in any meaningful way. ®

Just learned following within the past few days:

Certain privacy/full session SSL email hosting services have been purchased/changed operational control by NSA and affiliates within the past few months, through private intermediary entities.

Hushmail: now fully owned by private entity NSA affiliate; has had informal relationship with NSA for a number of years that effectively provided NSA with real time access to Hushmail’s hosting servers.

Safe-mail.net: Israeli-based, ironically privately lauded by NSA and US military several years ago for its sound implementation of SendMail with SSL webmail GUI frontend. Now provides mail server info to NSA in real time.

Guardster.com (SSH/SSL proxy): NSA contractors have “bought” full access rights to Guardster servers a few days ago. Separate but related: faciliated port sniffing of hosting servers at Everyones Internet, on NSA affiliates’ behalf, has been ongoing for a number of months now.

More info on industry Windows security software:

Zone Alarm, Symantec, MacAfee: All facilitate Microsoft’s NSA-controlled remote admin access via IP/TCP ports 1024 through 1030; ie will allow access without security flag. Unknown whether or not software port forward routing by these same programs will defeat NSA access.

I will continue to provide more info on the above and related topics upon discovery.

http://cryptome.org/nsa-ssl-email.htm

By Ralph Lopez 

Missing from the debate over expanding NSA authority in the War on Terror is the simple question, beyond our reflexive desire for privacy: why is expanding this authority such a bad idea? We know the Feds have done nasty, un-American things like spy on activists like Martin Luther King, but it comes out in the wash, doesn’t it? Did the Founders, who took pains to enshrine freedom from “unreasonable search and seizure,” without “probable cause,” understand what the Stasi, Hitler, and the KGB all understood? That knowledge is power, and absolute knowledge of peoples’ lives becomes absolute power?

The origin of the Fourth Amendment of the Bill of Rights, which Congress has been merrily gutting since the Patriot Act, was the hated “general warrant” which allowed British soldiers to enter a colonial’s home, barn, and property in search of anything suspicious. It was a principle cause of the Revolution. Could the Founding Fathers, a bunch of old white guys versed in the Greek and Latin classics, philosophy, mathematics, and history, have grasped the significance of a monopoly of information in the hands of the government, which already possesses a monopoly of force?

The Stasi Patriot Act was written long before 9/11. As Congressman Jim McDermott said, “they had all this on the shelf somewhere, ideas of things they would like to do and they got 9/11 and they said “its our chance, go for it!”"

Remember, what we are talking about is not the power to spy on terrorists. The government already has that. They can flip the switch immediately if they think anything is going down. They just have to get a warrant within 48 hours. That’s after the fact. Bush lies when he implies the Constitution is outdated because sometimes there’s no time to get a warrant. It shows what he really wants: no one looking over his shoulder whatsoever.

Wonkette

Hey, kids! Have you ever wanted to listen in on the conversations of other people without them knowing it? Create codes that allow spies in the field to get information about enhanced interrogation techniques without those killjoys at Amnesty International finding out?

Dress up as a totally extreme rapping turtle and get a blow job from a sexy lady squirrel? Well now you can, thanks to the Cryptokids— the NSA’s new program for young people and furfans.

The Web site, with detailed biographies of its cadre of rad furry spies, has had so much more effort put into it than we’re comfortable thinking about.

But it’s important to recruit children into the spy apparatus, as it’s the best way to get info on the parents. We call them “nature’s hidden listening devices”! As for the furries, well: do you want that fat sweaty guy in the raccoon suit working for us … or for the terrorists?

Do you have an FBI file?

You might! Many people do. So let’s talk about your past. Did you …

… ever participate in a civil rights march? How about a Vietnam war protest?

… ever sign an edgy political petition?

… ever know a guy named “Joey the Horse?” (Ever help him take out any heavy garbage bags?)

… ever hang out with a third-world dictator, retired or present?

Phil says: “The Freedom-of-Information-loving folks who brought you Get Grandpa’s FBI File have just launched a sister site: Get My FBI File . This site helps you automatically generate the letters you need to send in to get your own FBI file … and while you’re at it, you can also get your NSA, CIA, DIA, DSS, Secret Service, etc. files too, just by checking a few boxes. If you throw in UnSecureFlight.Com, we’re getting perilously close to one-stop shopping for all your government security file needs.”

See: http://www.getmyfbifile.com/ and http://www.getmyfbifile.com/form.php

The US National Security Agency now has the legal right to monitor some 38% of the world’s telephone, data and internet traffic without requiring a judicial warrant.By Ian Grant

George W Bush signed the relevant legislation last Sunday.

According to Telegeography, a research firm that monitors telecommunications traffic flows, some 38% of the world’s total telecommunications traffic starts or finishes in the US. This is down slightly from 43% in 2003.

“In 2005 (the latest year for which we currently have voice traffic data), approximately 29% of non-US voice traffic transited through a US hub. This is up noticeably from the 20% share in 2002,” said Tim Stronge, a Telegeography spokesman.

“This only includes traditional, circuit-switched international voice traffic. If one includes voice traffic carried as Voice-over-IP (VoIP), the number would likely be around 33%,” he added.

Stronge said his firm does not collect data on satellite traffic, but said no more than 1% or 2% of telecoms traffic went over satellite links.

“Fibre-optic network infrastructure is, bit-for-bit, far cheaper than satellites, and is the dominant medium for international telecommunications,” he said.

“Taking into account that not all satellite constellations are US-owned, my guess is that less than 1% of the world’s international traffic transits over US-owned satellites.”

MYTH: This is merely a “terrorist surveillance program.”
REALITY: When there is evidence a person may be a terrorist, both the criminal code and intelligence laws already authorize eavesdropping. This illegal program, however, allows electronic monitoring without any showing to a court that the person being spied upon in this country is a suspected terrorist.

MYTH: The program is legal.
REALITY: The program violates the Fourth Amendment and Foreign Intelligence Surveillance Act (FISA) and will chill free speech.

MYTH: The Authorization for the Use of Military Force (AUMF) allows this.
REALITY: The resolution about using force in Afghanistan doesn’t mention wiretaps and doesn’t apply domestically, but FISA does–it requires a court order.

MYTH: The president has authority as commander in chief of the military to spy on Americans without any court oversight.
REALITY: The Supreme Court recently found the administration’s claim of unlimited commander in chief powers during war to be an unacceptable effort to “condense power into a single branch of government,” contrary to the Constitution’s checks and balances.

MYTH: The president has the power to say what the law is.
REALITY: The courts have this power under our system of government, and no person is above the law, not even the president, or the rule of law means nothing.

MYTH: These warrantless wiretaps could never happen to you.
REALITY: Without court oversight, there is no way to ensure innocent people’s everyday communications are not monitored or catalogued by the NSA or other agencies.

MYTH: This illegal program could have prevented the 9/11 attacks.
REALITY: This is utter manipulation. Before 9/11, the federal government had gathered intelligence, without illegal NSA spying, about the looming attacks and at least two of the terrorists who perpetrated them, but failed to act.

MYTH: This illegal program has saved thousands of lives.
REALITY: Because the program is secret the administration can assert anything it wants and then claim the need for secrecy excuses its failure to document these claims, let alone reveal all the times the program distracted intelligence agents with dead ends that wasted resources and trampled individual rights.

MYTH: FISA takes too long.
REALITY: FISA allows wiretaps to begin immediately in emergencies, with three days afterward to go to court. Even without an emergency, FISA orders can be approved very quickly and FISA judges are available at all hours.

MYTH: Only liberals disagree with the president about the program.
REALITY: The serious concerns that have been raised transcend party labels and reflect genuine and widespread worries about the lack of checks on the president’s claim of unlimited power to illegally spy on Americans without any independent oversight.

(Download a printable version of the full ACLU report. Download a printable version of this summary.)

By Ryan Singel

The Bush Administration’s hard press for emergency wiretapping powers from Congress before the August break now has an explanation: a secret court decided several months ago that at least one portion of the NSA wiretapping program is illegal, according to MSNBC Newsweek.  That program operated for four years without court supervision, until the Administration bowed to public pressure in January 2007 and allowed the secret Foreign Intelligence Surveillance Court to review it.

In short, prior to the Patriot Act passage, the Administration launched a series of secret, warrantless wiretapping operations, which included snooping on Americans and wholesale data mining of innocent Americans’ communications records (the latter only according to press reports).  The Administration believes it can do this surveillance since it is a King in wartime and thus never asked Congress to make any of this legal in the Patriot Act for fear it would be turned down.

Years later, a part of this secret surveillance is revealed by the New York Times.  After a year of criticism and revelations, the Administration agrees to let a super-secret and very compliant court oversee the program using some very super secret, and legally dubious program warrants.  A few months later, a judge from this court finds portions of the program illegal. The administration refuses to make this decision public. Instead, it goes on offense and says it needs the power to wiretap anyone overseas including Americans. A Republican Congressman accidentally leaks the a hint of the decision on Fox News, while saying that Democrats are putting the country at risk.  Newsweek’s Michael Isikoff and Mark Hosenball (published on MSNBC.com) followed up with good reporting.

The order by a judge on the top-secret Foreign Intelligence Surveillance Act court has never been publicly acknowledged by administration officials—and the details of it (including the identity of the judge who wrote it) remain highly classified. But the judge, in an order several months ago, apparently concluded that the administration had overstepped its legal authorities in conducting warrantless eavesdropping even under the scaled-back surveillance program that the White House first agreed to permit the FISA court to review earlier this year, said one lawyer who has been briefed on the order but who asked not to be publicly identified because of its sensitivity.

Now, we know why there’s an intelligence gap. Democrats afraid of looking soft on terrorism are now at work to give more spying power to the government to fill the mineshaft gap.

Once again: a secret court judge found that the Bush Administration’s formerly warrantless wiretapping program was illegal.

And that was the program AFTER it was scaled down in March 2004 after Justice Department officials revolted.  I wonder what judges would have made of the earlier program — the one so bad that then-Attorney General John Ashcroft was ready to resign.

If there’s an intelligence gap, and I’m not sure there is, it’s only due to the Administration’s hubris.

Reuters

The Bush administration’s top intelligence official has acknowledged that a controversial domestic surveillance program was only one part of a much broader spying effort, The Washington Post reported in its Wednesday edition.

Director of National Intelligence Mike McConnell wrote in a letter that other aspects of the National Security Agency’s domestic spying program remain classified, the Post said.

“That is the only aspect of the NSA activities that can be discussed publicly because it is the only aspect of those various activities whose existence has been officially acknowledged,” McConnell wrote, according to the Post.

Bush acknowledged the existence of a program that monitored domestic phone calls and e-mails without court oversight in December 2005. The administration has not confirmed other secret spying efforts reported by news outlets, such as one that searched millions of telephone records.

Bush signed an executive order that authorized “a number of … intelligence activities” following the hijacking attacks of September 11, 2001, McConnell wrote.

The warrantless wiretapping program was put under court supervision in January but the administration now wants Congress to allow it to do many of the same activities without a court order.

The letter was sent on Tuesday to Pennsylvania Sen. Arlen Specter, the top Republican on the Senate Judiciary Committee.

The letter was written to defend Attorney General Alberto

Gonzales, who has been under attack over his testimony to Congress about the warrantless spying program, the Post said.

A House committee is requesting Justice Department documents on a data-mining project that identified the senders and recipients of calls and e-mails intercepted via the National Security Agency’s eavesdropping program.

In a Monday letter, Rep. John Conyers, chairman of the House Judiciary Committee, asked Attorney General Alberto Gonzales to hand over “all opinions, memoranda and background materials, as well as any dissenting views, materials, and opinions” about the data-mining program.

While the Bush administration has acknowledged OK’ing the controversial program in which the government wiretapped phone calls without obtaining a warrant, it has remained mum on whether it authorized the NSA to use computers to sift through databases to identify who participated in intercepted communications. (The computers reportedly do not identify the contents of the communications.)

Critics have said the surveillance program violates a 1978 act requiring a special court’s approval before eavesdropping on communications in intelligence cases.

In his letter, Conyers wrote that his committee is considering changes to the Foreign Intelligence Surveillance Act and therefore must be “fully apprised of these controversial, and possibly unlawful, programs.”

The Michigan Democrat continued, “It is difficult to craft appropriate legislative responses unless we have all of the relevant facts concerning these programs.”

The embattled Gonzales is at the center of the controversy and is presently defending himself against allegations that he lied to Congress about a dispute between the White House and Justice Department over the eavesdropping program’s legality.

Gonzales has denied there was any significant dissent over the program in the Justice Department, but former Deputy Attorney General James Comey and FBI Director Robert Mueller have indicated otherwise.

At issue is a 2004 late-night hospital visit to then-Attorney General John Ashcroft, which Gonzales claims did not involve discussion of “the terrorist surveillance program that the president announced to the American people.” Mueller testified last week that Ashcroft told him it did involve the program.

A former government official familiar with the program said over the weekend that the dispute was so contentious some officials, including Comey, threatened to resign from the administration in protest.

Last week, Gonzales told a Senate committee that the dispute involved “other intelligence activities,” which he declined to discuss. The former government official said that the dispute centered on data mining, not eavesdropping.

Gonzales will lean heavily on this distinction as he defends himself against perjury charges.

Democrats, however, say it doesn’t matter because the data-mining project was a facet of the NSA eavesdropping program. Also, the former government official who confirmed the existence of the data-mining program has said Gonzales “may have been splitting hairs.”

In his letter to Gonzales, Conyers questioned whether the White House leaked classified information about the data-mining program “to rehabilitate previous controversial testimony by you.” Conyers further said that the Judiciary Committee wants to know if the Justice Department knew about the leaks or authorized them.

National Intelligence Director Mike McConnell and other top administration officials briefed a group of lawmakers on the issue Monday. Gonzales’ testimony was discussed during that session, said Sen. Arlen Specter, the ranking Republican on the Senate Judiciary Committee.

Specter added that the Bush administration has agreed to address the matter in writing by noon Tuesday, but the senator would not disclose what else was discussed during the 80-minute briefing, nor would he divulge which lawmakers were in attendance.

The White House is “preparing” the letter requested by Specter, spokesman Tony Snow said Tuesday. He would not comment on the noon deadline or the letter’s contents but said it would be delivered Tuesday.

President Bush acknowledged the NSA eavesdropping program in December 2005 and defended it as a vital counterterrorism tool. The program was authorized to intercept communications coming into or out of the United States involving people suspected of having links to al Qaeda, Bush said.

But the administration has not acknowledged using computers to identify who sent or received millions of Americans’ phone calls and e-mails.

Gonzales’ disputed statements — coupled with an ongoing controversy over the allegedly political dismissals of eight U.S. attorneys last year — have sparked bipartisan calls for the attorney general’s resignation or ouster.

One Republican, Rep. Christopher Shays of Connecticut, said Gonzales doesn’t have much credibility “and he would do us all a favor if he stepped down and allowed the president to select someone else.”

Last week, four Democratic senators called for the appointment of a special prosecutor to determine if Gonzales has committed perjury.

But the president has stood by his longtime ally, who has been alongside him since 1995, during Bush’s days as Texas governor. Vice President Dick Cheney also has run to Gonzales’ defense.

“I think Al has done a good job under difficult circumstances,” Cheney told CBS Radio on Monday. “The debate between he and the Senate is something they’re going to have to resolve, but I think he has testified truthfully.”

Cheney said he disagreed with Specter, who called Sunday for Gonzales to step down.

“I think the key is whether or not [Gonzales] has the confidence of the president, and he clearly does,” Cheney said.

© 2007 Cable News Network

by Adam Thomas

US President George W. Bush today asked for more powers to wiretap without warrants, in effect retroactively legalizing the unlawful National Security Agency wiretapping, which the President ordered in 2002.

The NSA wiretapping order is illegal under the terms of the The Foreign Intelligence Surveillance Act, but Bush administration, led by Attorney General Alberto Gonzales, has proposed a Intelligence Authorization Act for Fiscal Year 2008 that would make President’s actions retroactively legal.

In his weekly radio, address Bush told Americans that he needs these powers to stop terrorist network that struck America on September the 11th wants to strike US again.

“To stop them, our military, law enforcement, and intelligence professionals need the best possible information about who the terrorists are, where they are, and what they are planning,” the President said. “One of the most important ways we can gather that information is by monitoring terrorist communications.”

Bush claimed that the current statute is two old to be relevant and called for a “modernization” of the Act.

“Our intelligence community warns that under the current statute, we are missing a significant amount of foreign intelligence that we should be collecting to protect our country,” he said. “Congress needs to act immediately to pass this bill, so that our national security professionals can close intelligence gaps and provide critical warning time for our country.”

Civil rights groups including American Civil Liberties Union and Electronic Frontier Foundation have criticized President Bush’s statements claiming that he is using the word “modernize” to describe the removal of safeguards found in the FISA.

“It takes an enormous amount of hubris to ask for more power on the heels of revelations that the President tried to go around his own attorney general on his NSA domestic electronic eavesdropping program,” Caroline Fredrickson, Director of the Washington Legislative Office of the American Civil Liberties Union said. “The already-shaky legal ground on which this domestic spying program stood is crumbling beneath those who defend it.”

The group pointed out the hidden provision in the bill that grants total immunity against criminal and civil liability for the telecom companies’ participation in the NSA’s warrantless wiretapping program.

“It is unprecedented and undemocratic to give retroactive and sweeping immunity to an entire industry,” Fredrickson added. “Not to mention, giving blanket immunity before a full and public airing of the facts.”

ACLU called on the Congress to stand firm against the Executive Branch’s unconstitutional actions.

“This is not the time to hand even more power to an administration that has permitted the wholesale abuse of civil liberties; has denied the legislative branch’s constitutionally mandated oversight role and refused to hold the attorney general accountable for a series of conflicting claims that defy logic, the law and common sense,” Fredrickson said. “The only thing more outrageous than the administration’s call for even more unfettered power is a Congress that would consider giving it to them.”

By SCOTT SHANE and DAVID JOHNSTON

A 2004 dispute over the National Security Agency’s secret surveillance program that led top Justice Department officials to threaten resignation involved computer searches through massive electronic databases, according to current and former officials briefed on the program.

It is not known precisely why searching the databases, or data mining, raised such a furious legal debate. But such databases contain records of the phone calls and e-mail messages of millions of Americans, and their examination by the government would raise privacy issues.

The N.S.A.’s data mining has previously been reported. But the disclosure that concerns about it figured in the March 2004 debate helps to clarify the clash this week between Attorney General Alberto R. Gonzales and senators who accused him of misleading Congress and called for a perjury investigation.

The confrontation in 2004 led to a showdown in the hospital room of then Attorney General John Ashcroft, where Mr. Gonzales, the White House counsel at the time, and Andrew H. Card Jr., then the White House chief of staff, tried to get the ailing Mr. Ashcroft to reauthorize the N.S.A. program.

Mr. Gonzales insisted before the Senate this week that the 2004 dispute did not involve the Terrorist Surveillance Program “confirmed” by President Bush, who has acknowledged eavesdropping without warrants but has never acknowledged the data mining.

If the dispute chiefly involved data mining, rather than eavesdropping, Mr. Gonzales’ defenders may maintain that his narrowly crafted answers, while legalistic, were technically correct.

But members of the Senate Intelligence Committee, who have been briefed on the program, called the testimony deceptive.

“I’ve had the opportunity to review the classified matters at issue here, and I believe that his testimony was misleading at best,” said Senator Russ Feingold, Democrat of Wisconsin, joining three other Democrats in calling Thursday for a perjury investigation of Mr. Gonzales.

“This has gone on long enough,” Mr. Feingold said. “It is time for a special counsel to investigate whether criminal charges should be brought.”

The senators’ comments, along with those of other members of Congress briefed on the program, suggested that they considered the eavesdropping and data mining so closely tied that they were part of a single program. Both activities, which ordinarily require warrants, were started without court approval as the Bush administration intensified counterterrorism efforts soon after the Sept. 11 attacks.

A half-dozen officials and former officials interviewed for this article would speak only on the condition of anonymity, in part because unauthorized disclosures about the classified program are already the subject of a criminal investigation. Some of the officials said the 2004 dispute involved other issues in addition to the data mining, but would not provide details. They would not say whether the differences were over how the databases were searched or how the resulting information was used.

Nor would they explain what modifications to the surveillance program President Bush authorized to head off the threatened resignations by Justice Department officials.

An agency spokesman declined to comment on the data mining issue but referred a reporter to a statement issued earlier that Mr. Gonzales had testified truthfully.

The Justice Department announced in January that eavesdropping without warrants under the Terrorist Surveillance Program had been halted, and that a special intelligence court was again overseeing the wiretapping. The N.S.A., the nation’s largest intelligence agency, generally eavesdrops on communications in foreign countries. Since the 1978 passage of the Foreign Intelligence Surveillance Act, known as FISA, any eavesdropping to gather intelligence on American soil has required a warrant from the special court.

In addition, court approval is required for the N.S.A. to search the databases of telephone calls or e-mail records, usually compiled by American phone and Internet companies and including phone numbers or e-mail addresses, as well as dates, times and duration of calls and messages. Sometimes called metadata, such databases do not include the content of the calls and e-mail messages — the actual words spoken or written.

Government examination of the records, which allows intelligence analysts to trace relationships between callers and identify possible terrorist cells, is considered less intrusive than actual eavesdropping. But the N.S.A.’s eavesdropping targeted international calls and e-mail messages of people inside the United States, while the databases contain primarily domestic records. The conflict in 2004 appears to have turned on differing interpretations of the president’s power to bypass the FISA law and obtain access to the records.

President Bush has asserted that both his constitutional powers as commander in chief and the authorization for the use of military force passed by Congress after the Sept. 11 attacks gave him legal justification for skirting the warrant requirement. Critics have called the surveillance illegal because it does not comply with the FISA law.

The first known assertion by administration officials that there had been no serious disagreement within the government about the legality of the N.S.A. program came in talks with New York Times editors in 2004. In an effort to persuade the editors not to disclose the eavesdropping program, senior officials repeatedly cited the lack of dissent as evidence of the program’s lawfulness.

In December 2005, The Times published articles describing the program, the data mining and the internal legal debate. The newspaper reported that the N.S.A. had combed large volumes of telephone and Internet traffic in search of patterns that might point to terrorism suspects.

Civil liberties groups, Congressional Democrats and some Republicans reacted to the disclosures with outrage, accusing the administration of operating an illegal surveillance program inside the United States. The uproar grew when USA Today reported in May 2006 more details of the N.S.A.’s acquisition from telephone companies of the phone call databases. In response to the articles, Mr. Bush confirmed the eavesdropping, saying it was limited to communications in and out of the United States involving people suspected of ties to Al Qaeda. He did not, however, confirm the data mining, nor has any other official done so publicly.

Mr. Gonzales defended the surveillance in an appearance before the Senate Judiciary Committee in February 2006, saying there had been no internal dispute about its legality. He told the senators: “There has not been any serious disagreement about the program that the president has confirmed. There have been disagreements about other matters regarding operations, which I cannot get into.”

By limiting his remarks to “the program the president has confirmed,” Mr. Gonzales skirted any acknowledgment of the heated arguments over the data mining. He said the Justice Department had issued a legal analysis justifying the eavesdropping program.

Mr. Bush and other officials also have repeatedly cited Justice Department reviews as evidence of their care in overseeing the program, never mentioning the bitter conflict that unfolded behind the scenes.

Mr. Gonzales’s 2006 testimony went unchallenged publicly until May of this year, when James B. Comey, the former deputy attorney general, described the March 2004 confrontation to the Senate Judiciary Committee.

Mr. Comey had refused to sign a reauthorization for the N.S.A. program when he was standing in for Mr. Ashcroft, who was hospitalized for gall bladder surgery.

Mr. Comey described an intense fight that prompted the top leaders of the Justice Department to consider resigning in protest. Mr. Gonzales and Mr. Card visited the bedside of Mr. Ashcroft, who was in pain and under sedation, to seek his signature on the reauthorization.

Mr. Ashcroft refused to do so. Mr. Comey testified that he thought the White House officials were trying to take advantage of a sick man.

On Tuesday, to respond to Mr. Comey’s account, Mr. Gonzales testified in a Senate appearance that he went to the hospital only after meeting with Congressional leaders about the impending deadline for the reauthorization. He said the consensus was that the program should go on, so he felt he had no choice but to seek Mr. Ashcroft’s approval.

At the hearing, Mr. Gonzales faced harsh questioning about why he had not previously acknowledged the 2004 standoff. In response, he asserted once again that there had not been disagreements about the surveillance program, insisting that the dispute involved “other intelligence activities.”

After the hearing, Senator Patrick J. Leahy, Democrat of Vermont and chairman of the Judiciary Committee, sent Mr. Gonzales a transcript of his testimony with pointed instructions — to “correct, clarify or supplement your answers so that, consistent with your oath, they are the whole truth.”

UPI

A U.S. bipartisan group Wednesday said the National Security Agency’s warrantless surveillance program is illegal.

The Liberty and Security Committee of the Constitution Project said in a statement that the U.S. Congress should finish its probe into the warrantless surveillance program before it heeds the urging of the Bush administration to beef up laws on electronic surveillance.

Those signing the statement included: David Keene, chairman of the American Conservative Union; Walter Cronkite, former managing editor of CBS Evening News; former Rep. Mickey Edwards, R-Okla., the chairman of the Republican Party Policy Committee; Harold Koh, dean of Yale Law School; and William S. Sessions, former FBI director under Presidents Reagan, Bush and Clinton.

“The NSA’s warrantless surveillance program has stood for too long as an affront to America’s rule of law,” said Keene, a co-chair of the Constitution Project’s Liberty and Security Committee. “The American people deserve to know why and to what extent the NSA has been tapping Americans’ phones without a warrant.”

The committee said the administration’s surveillance program “upends separate, balanced powers by thwarting the will of Congress and preventing any opportunity for judicial review.

“Congress should be applauded for taking steps to uncover the truth about the spying program,” said Sharon Bradford Franklin, senior counsel at the Constitution Project. “Congress must complete its investigation before considering any changes to the law governing electronic surveillance.”

The statement was published one week after a deadline for the White House and the Department of Justice to comply with Senate Judiciary Committee subpoenas to provide documents about the NSA’s domestic surveillance program. The White House has asked for and been given an extension on the deadline.

By Ryan Singel

Dems want to know more about the NSA’s secret warrantless eavesdropping on Americans. They drop a subpoena on Attorney General Alberto Gonzales and President Bush. Both claim the documents are protected by executive privilege or too classified. This is a very likely future scenario and presumably its one the Administration is attempting to head off with its call yesterday for Congress to explicitly legalize the program.

But what happens next? That’s what Jeffrey Rosen (author of The Unwanted Gaze: The Destruction of Privacy in America) asks over the New Republic today (reg. req.) The surprising and not so-surprising conclusion: well, someone could end up in the little known jail inside Congress and the government mired in a Constitutional battle.

Restraint, however, may not be enough to prevent a constitutional confrontation that could make Monicagate look tame. That’s because any conflict could escalate quickly when the White House, invoking its radical theory of unilateral executive authority, refuses to cooperate with Democratic investigations. Congress may then hold the White House officials in contempt, setting up legal battles that could make their way to the Supreme Court while paralyzing the government in the process. […]

The Judiciary Committee, followed by the full House, votes to hold Gonzales in contempt of Congress–a federal crime with a punishment of up to a year in prison. After Nancy Pelosi, the speaker of the House, certifies the contempt citation, she then forwards it along to the U.S. attorney for the District of Columbia, demanding that he haul Gonzales before a grand jury. […]

Regardless of how the Supreme Court ruled in Conyers v. Gonzales (ed. note: the hypothetical case where Rep. John Conyers issued the subpoena), there would be subsidiary legal battles raging for months as the contempt case made its way up to the Supreme Court. Democrats and Republicans would fight about whether to force Gonzales to testify by granting him the necessary immunity–immunity grants require a two-thirds vote by the relevant committee–and the scope of his immunity might provoke lawsuits of its own. All these fires would be raging from a single investigation into the NSA scandal. At the same time, a series of related battles and lawsuits might be erupting from parallel investigations into Iraq war intelligence, Halliburton cronyism, and the misuse of presidential signing statements.

The more I think about it the more I think Rosen might be right. The question then becomes how far will the new Democratic leadership go to hold back investigations, because despite the election results, I don’t believe the administration is going to change its stance on secrecy and executive power.

All I know is that I need to get my typing fingers in shape real soon to keep up.