WASHINGTON, Dec. 15 - Months
after the Sept. 11 attacks, President Bush secretly authorized the National
Security Agency to eavesdrop on Americans and others inside the United States
to search for evidence of terrorist activity without
the court-approved warrants ordinarily required for domestic spying,
according to government officials.
Under a presidential order signed in 2002, the intelligence
agency has monitored the international telephone calls and international e-mail
messages of hundreds, perhaps thousands, of people inside the United States
without warrants over the past three years in an effort to track possible
"dirty numbers" linked to Al Qaeda, the officials said. The agency,
they said, still seeks warrants to monitor entirely domestic communications.
The previously undisclosed
decision to permit some eavesdropping inside the country without court approval
was a major shift in American intelligence-gathering practices, particularly
for the National Security Agency, whose mission is to spy on communications
abroad. As a result, some officials familiar with the continuing operation have
questioned whether the surveillance has stretched, if not crossed,
constitutional limits on legal searches.
"This is really a sea
change," said a former senior official who specializes in national
security law. "It's almost a mainstay of this country that the N.S.A. only
does foreign searches."
Nearly a dozen current and
former officials, who were granted anonymity because of the classified nature
of the program, discussed it with reporters for The New York Times because of
their concerns about the operation's legality and oversight.
According to those officials
and others, reservations about aspects of the program have also been expressed
by Senator John D. Rockefeller IV, the West Virginia Democrat who is the vice
chairman of the Senate Intelligence Committee, and a judge presiding over a
secret court that oversees intelligence matters. Some of the questions about
the agency's new powers led the administration to temporarily suspend the
operation last year and impose more restrictions, the officials said.
The Bush administration
views the operation as necessary so that the agency can move quickly to monitor
communications that may disclose threats to the United States, the officials
said. Defenders of the program say it has been a critical tool in helping
disrupt terrorist plots and prevent attacks inside the United States.
Administration officials are
confident that existing safeguards are sufficient to protect the privacy and
civil liberties of Americans, the officials say. In some cases, they said, the
Justice Department eventually seeks warrants if it wants to expand the
eavesdropping to include communications confined within the United States. The
officials said the administration had briefed Congressional leaders about the
program and notified the judge in charge of the Foreign Intelligence
Surveillance Court, the secret Washington court that deals with national
security issues.
The White House asked The
New York Times not to publish this article, arguing that it could jeopardize
continuing investigations and alert would-be terrorists that they might be
under scrutiny. After meeting with senior administration officials to hear
their concerns, the newspaper delayed publication for a year to conduct
additional reporting. Some information that administration officials argued
could be useful to terrorists has been omitted.
Dealing With a New
Threat.
While many details about the
program remain secret, officials familiar with it say the N.S.A. eavesdrops
without warrants on up to 500 people in the United States at any given time.
The list changes as some names are added and others dropped, so the number
monitored in this country may have reached into the thousands since the program
began, several officials said. Overseas, about 5,000 to 7,000 people suspected
of terrorist ties are monitored at one time, according to those officials.
Several officials said the
eavesdropping program had helped uncover a plot by Iyman Faris, an Ohio trucker
and naturalized citizen who pleaded guilty in 2003 to supporting Al Qaeda by
planning to bring down the Brooklyn Bridge with blowtorches. What appeared to
be another Qaeda plot, involving fertilizer bomb attacks on British pubs and
train stations, was exposed last year in part through the program, the
officials said. But they said most people targeted for N.S.A. monitoring have
never been charged with a crime, including an Iranian-American doctor in the
South who came under suspicion because of what one official described as
dubious ties to Osama bin Laden.
The eavesdropping program
grew out of concerns after the Sept. 11 attacks that the nation's intelligence
agencies were not poised to deal effectively with the new threat of Al Qaeda
and that they were handcuffed by legal and bureaucratic restrictions better
suited to peacetime than war, according to officials. In response, President Bush
significantly eased limits on American intelligence and law enforcement
agencies and the military.
But some of the
administration's antiterrorism initiatives have provoked an outcry from members
of Congress, watchdog groups, immigrants and others who argue that the measures
erode protections for civil liberties and intrude on Americans' privacy.
Opponents have challenged
provisions of the USA Patriot Act, the focus of contentious debate on Capitol
Hill this week, that expand domestic surveillance by giving the Federal Bureau
of Investigation more power to collect information like library lending lists
or Internet use. Military and F.B.I. officials have drawn criticism for
monitoring what were largely peaceful antiwar protests. The Pentagon and the
Department of Homeland Security were forced to retreat on plans to use public
and private databases to hunt for possible terrorists. And last year, the
Supreme Court rejected the administration's claim that those labeled
"enemy combatants" were not entitled to judicial review of their
open-ended detention.
Mr. Bush's executive order
allowing some warrantless eavesdropping
on those inside the United States - including
American citizens, permanent legal residents, tourists and other
foreigners - is based on classified legal opinions that
assert that the president has broad powers to order such searches, derived in
part from the September 2001 Congressional resolution authorizing him to wage
war on Al Qaeda and other terrorist groups, according to the officials familiar
with the N.S.A. operation.
The National Security
Agency, which is based at Fort Meade, Md., is the nation's largest and most
secretive intelligence agency, so intent on remaining out of public view that
it has long been nicknamed "No Such Agency." It breaks codes and
maintains listening posts around the world to eavesdrop on foreign governments,
diplomats and trade negotiators as well as drug lords and terrorists. But the
agency ordinarily operates under tight restrictions on any spying on Americans,
even if they are overseas, or disseminating information about them.
What the agency calls a
"special collection program" began soon after the Sept. 11 attacks,
as it looked for new tools to attack terrorism. The program accelerated in
early 2002 after the Central Intelligence Agency started capturing top Qaeda
operatives overseas, including Abu Zubaydah, who was arrested in Pakistan in
March 2002. The C.I.A. seized the terrorists' computers, cellphones and
personal phone directories, said the officials familiar with the program. The
N.S.A. surveillance was intended to exploit those numbers and addresses as
quickly as possible, they said.
In addition to eavesdropping
on those numbers and reading e-mail messages to and from the Qaeda figures, the
N.S.A. began monitoring others linked to them, creating an expanding chain.
While most of the numbers and addresses were overseas, hundreds were in the
United States, the officials said.
Under the agency's
longstanding rules, the N.S.A. can target for interception phone calls or
e-mail messages on foreign soil, even if the recipients of those communications
are in the United States. Usually, though, the
government can only target phones and e-mail messages in the United States by
first obtaining a court order from the Foreign Intelligence Surveillance
Court, which holds its closed sessions at the Justice Department.
Traditionally, the
F.B.I., not the N.S.A., seeks such warrants and conducts most domestic
eavesdropping. Until the new program began, the N.S.A. typically limited its
domestic surveillance to foreign embassies and missions in Washington, New York
and other cities, and obtained court orders to do so.
Since 2002, the agency has
been conducting some warrantless eavesdropping
on people in the United States who are linked, even if indirectly, to suspected
terrorists through the chain of phone numbers and e-mail addresses, according
to several officials who know of the operation. Under the special program, the
agency monitors their international communications, the officials said. The
agency, for example, can target phone calls from someone in New York to someone
in Afghanistan.
Warrants are still required
for eavesdropping on entirely domestic-to-domestic communications, those
officials say, meaning that calls from that New Yorker to someone in California
could not be monitored without first going to the Federal Intelligence
Surveillance Court.
A White House
Briefing.
After the special program
started, Congressional leaders from both political parties were brought to Vice
President Dick Cheney's office in the White
House. The leaders, who included the chairmen and ranking members of the Senate
and House intelligence committees, learned of the N.S.A. operation from Mr.
Cheney, Lt. Gen. Michael V. Hayden of the Air Force, who was then the agency's
director and is now a full general and the principal deputy director of national
intelligence, and George J. Tenet, then the
director of the C.I.A., officials said.
It is not clear how much the
members of Congress were told about the presidential order and the
eavesdropping program. Some of them declined to comment about the matter, while
others did not return phone calls.
Later briefings were held
for members of Congress as they assumed leadership roles on the intelligence
committees, officials familiar with the program said. After a 2003 briefing,
Senator Rockefeller, the West Virginia Democrat who became vice chairman of the
Senate Intelligence Committee that year, wrote a letter to Mr. Cheney
expressing concerns about the program, officials knowledgeable about the letter
said. It could not be determined if he received a reply. Mr. Rockefeller
declined to comment. Aside from the Congressional leaders, only a small group
of people, including several cabinet members and officials at the N.S.A., the
C.I.A. and the Justice Department, know of the program.
Some officials familiar with
it say they consider warrantless eavesdropping inside the United States to be
unlawful and possibly unconstitutional, amounting to an improper search. One
government official involved in the operation said he privately complained to a
Congressional official about his doubts about the program's legality. But
nothing came of his inquiry. "People just looked the other way because
they didn't want to know what was going on," he said.
A senior government official
recalled that he was taken aback when he first learned of the operation.
"My first reaction was, 'We're doing what?' " he said. While he said
he eventually felt that adequate safeguards were put in place, he added that
questions about the program's legitimacy were understandable.
Some of those who object to
the operation argue that is unnecessary. By getting warrants through the
foreign intelligence court, the N.S.A. and F.B.I. could eavesdrop on people
inside the United States who might be tied to terrorist groups without skirting
longstanding rules, they say.
The standard of proof required
to obtain a warrant from the Foreign Intelligence Surveillance Court is
generally considered lower than that required for a criminal warrant -
intelligence officials only have to show probable cause that someone may be
"an agent of a foreign power," which includes
international terrorist groups - and the secret court has turned down only a
small number of requests over the years. In 2004, according to the Justice
Department, 1,754 warrants were approved. And the Foreign Intelligence
Surveillance Court can grant emergency approval for wiretaps within hours,
officials say.
Administration officials
counter that they sometimes need to move more urgently, the officials said.
Those involved in the program also said that the N.S.A.'s eavesdroppers might
need to start monitoring large batches of numbers all at once, and that it
would be impractical to seek permission from the Foreign Intelligence
Surveillance Court first, according to the officials.
The N.S.A. domestic spying
operation has stirred such controversy among some national security officials
in part because of the agency's cautious culture and longstanding rules.
Widespread abuses -
including eavesdropping on Vietnam War protesters and civil rights activists -
by American intelligence agencies became public in the 1970's and led to
passage of the Foreign Intelligence Surveillance Act, which imposed strict
limits on intelligence gathering on American soil. Among other things, the law
required search warrants, approved by the secret F.I.S.A. court, for wiretaps
in national security cases. The agency, deeply scarred by the scandals, adopted
additional rules that all but ended domestic spying on its part.
After the Sept. 11 attacks,
though, the United States intelligence community was criticized for being too
risk-averse. The National Security Agency was even cited by the independent
9/11 Commission for adhering to self-imposed rules that were stricter than
those set by federal law.
Concerns and
Revisions.
Several senior government
officials say that when the special operation began, there were few controls on
it and little formal oversight outside the N.S.A. The agency can choose its
eavesdropping targets and does not have to seek approval from Justice
Department or other Bush administration officials. Some agency officials
wanted nothing to do with the program, apparently fearful of participating in
an illegal operation, a former senior Bush administration official said. Before
the 2004 election, the official said, some N.S.A. personnel worried that the
program might come under scrutiny by Congressional or criminal investigators if
Senator John Kerry, the Democratic nominee, was elected president.
In mid-2004, concerns about
the program expressed by national security officials, government lawyers and a
judge prompted the Bush administration to suspend elements of the program and
revamp it.
For the first time, the
Justice Department audited the N.S.A. program, several officials said. And to
provide more guidance, the Justice Department and the agency expanded and
refined a checklist to follow in deciding whether probable cause existed to
start monitoring someone's communications, several officials said.
A complaint from Judge
Colleen Kollar-Kotelly, the federal judge who oversees the Federal Intelligence
Surveillance Court, helped spur the suspension, officials said. The judge
questioned whether information obtained under the N.S.A. program was being
improperly used as the basis for F.I.S.A. wiretap warrant requests from the
Justice Department, according to senior government officials. While not knowing
all the details of the exchange, several government lawyers said there appeared
to be concerns that the Justice Department, by trying to shield the existence
of the N.S.A. program, was in danger of misleading the court about the origins
of the information cited to justify the warrants.
One official familiar with
the episode said the judge insisted to Justice Department lawyers at one point
that any material gathered under the special N.S.A. program not be used in
seeking wiretap warrants from her court. Judge Kollar-Kotelly did not return
calls for comment.
A related issue arose in a
case in which the F.B.I. was monitoring the communications of a terrorist
suspect under a F.I.S.A.-approved warrant, even though the National Security
Agency was already conducting warrantless eavesdropping.
According to officials,
F.B.I. surveillance of Mr. Faris, the Brooklyn Bridge plotter, was dropped for
a short time because of technical problems. At the time, senior Justice
Department officials worried what would happen if the N.S.A. picked up
information that needed to be presented in court. The government would then
either have to disclose the N.S.A. program or mislead a criminal court about
how it had gotten the information.
Several national security
officials say the powers granted the N.S.A. by President Bush go far beyond the
expanded counterterrorism powers granted by Congress under the USA Patriot Act,
which is up for renewal. The House on Wednesday approved a plan to reauthorize
crucial parts of the law. But final passage has been delayed under the threat
of a Senate filibuster because of concerns from both parties over possible
intrusions on Americans' civil liberties and privacy.
Under the act, law
enforcement and intelligence officials are still required to seek a F.I.S.A.
warrant every time they want to eavesdrop within the United States. A recent agreement reached
by Republican leaders and the Bush administration would modify the standard for
F.B.I. wiretap warrants, requiring, for instance, a description of a specific target.
Critics say the bar would remain too low to prevent abuses.
Bush administration
officials argue that the civil liberties concerns are unfounded, and they say
pointedly that the Patriot Act has not freed the N.S.A. to target Americans.
"Nothing could be further from the truth," wrote John Yoo, a former
official in the Justice Department's Office of Legal Counsel, and his co-author
in a Wall Street Journal opinion article in December 2003. Mr. Yoo worked on a
classified legal opinion on the N.S.A.'s domestic eavesdropping program.
At an April hearing on the
Patriot Act renewal, Senator Barbara A. Mikulski, Democrat of Maryland, asked
Attorney General Alberto R. Gonzales and Robert S. Mueller III,
the director of the F.B.I., "Can the National Security Agency, the great
electronic snooper, spy on the American people?"
"Generally," Mr. Mueller
said, "I would say generally, they are not allowed to spy or to gather
information on American citizens."
President Bush did not ask
Congress to include provisions for the N.S.A. domestic surveillance program as
part of the Patriot Act and has not sought any other laws to authorize the
operation. Bush administration lawyers argued that such new laws were
unnecessary, because they believed that the Congressional resolution on the
campaign against terrorism provided ample authorization, officials said.
The Legal Line
Shifts.
Seeking Congressional
approval was also viewed as politically risky because the proposal would be
certain to face intense opposition on civil liberties grounds. The
administration also feared that by publicly disclosing the existence of the
operation, its usefulness in tracking terrorists would end, officials said.
The legal opinions that
support the N.S.A. operation remain classified, but they appear to have
followed private discussions among senior administration lawyers and other
officials about the need to pursue aggressive strategies that once may have
been seen as crossing a legal line, according to senior officials who
participated in the discussions.
For example, just days after
the Sept. 11, 2001, attacks on New York and the Pentagon, Mr. Yoo, the Justice
Department lawyer, wrote an internal memorandum that argued that the government
might use "electronic surveillance techniques and equipment that are more
powerful and sophisticated than those available to law enforcement agencies in
order to intercept telephonic communications and observe the movement of
persons but without obtaining warrants for such uses."
Mr. Yoo noted that while
such actions could raise constitutional issues, in the face of devastating
terrorist attacks "the government may be justified in taking measures
which in less troubled conditions could be seen as infringements of individual
liberties."
The next year, Justice
Department lawyers disclosed their thinking on the issue of warrantless
wiretaps in national security cases in a little-noticed brief in an
unrelated court case. In that 2002 brief, the government said that "the
Constitution vests in the President inherent authority to conduct warrantless
intelligence surveillance (electronic or otherwise) of foreign powers or their
agents, and Congress cannot by statute extinguish that constitutional
authority."
Administration officials
were also encouraged by a November 2002 appeals court decision in an unrelated
matter. The decision by the Foreign Intelligence Surveillance Court of Review,
which sided with the administration in dismantling a bureaucratic
"wall" limiting cooperation between prosecutors and intelligence
officers, cited "the president's inherent constitutional authority to
conduct warrantless foreign intelligence surveillance."
But the same court suggested
that national security interests should not be grounds "to jettison the
Fourth Amendment requirements" protecting the rights of Americans against
undue searches. The dividing line, the court acknowledged, "is a very
difficult one to administer."