Summary: In this post, I review Jason Leopold's claim that Bush authorized domestic surveillance before 9/11. Leopold relies heavily on a December 2000 document to make his claim and cites it out of context. He includes three other sources to support his claim, but these sources are talking about different programs, not the domestic surveillance program James Risen first exposed. While Leopold collects several incidences of disconcerting surveillance, he doesn't prove his central claim, purportedly disproving that Bush started the Risen program in response to 9/11.
Jason Leopold came out with what seemed to be a real scoop yesterday--the news that Bush ordered NSA surveillance of Americans before 9/11. Leopold quotes "people who worked at the NSA as encryption specialists" and James Risen's book, but most of his scoop relies on a declassified agency report called "Transitions 2001." Now frankly, two of the quotes Leopold includes refute the claim that the NSA was illegally spying. For example, Leopold cites...
Director of the National Security Agency is obligated by law to keep Congress fully and currently formed of intelligence activities.
...and later cites NSA's limitations under the Fourth Amendment (see below). But Leopold suggests the citations from the document support his contention that:
the document contradicts [Bush's] assertion that the 9/11 attacks prompted him to take the unprecedented step of signing a secret executive order authorizing the NSA to monitor a select number of American citizens thought to have ties to terrorist groups.
NSA's "Transitions 2001"
Before I look at the individual passages Leopold quotes, let me point out something very basic. This document is titled Transitions 2001. But it is dated--right there on the front cover--December 2000. Anything reported in this document is a report on what Clinton authorized, not what Bush authorized.
Here are the citations on which Leopold bases his claim:
In its "Transition 2001" report, the NSA said that the ever-changing world of global communication means that "American communication and targeted adversary communication will coexist."
"Make no mistake, NSA can and will perform its missions consistent with the Fourth Amendment and all applicable laws," the document says.
However, it adds that "senior leadership must understand that the NSA's mission will demand a 'powerful, permanent presence' on global telecommunications networks that host both 'protected' communications of Americans and the communications of adversaries the agency wants to target."
Now a word of background. The document explains NSA's multiple tasks--cryptology, SIGINT (which it describes in a strictly foreign context), and protection against cyber-attacks. One of the reasons the document refers to protected communication and targeted communication is because part of its job is to protect our communication networks--to prevent some hacker from bringing down our communications systems or corrupting government data. With that in mind, take a look at the full context of the passages Leopold cites (I've bolded the bits he quotes):
The National Security Agency is prepared organizationally, intellectually and--with sufficient investment--technologically, to exploit in an unprecedented way the explosion in global communications. This represents an Agency very different from the one we inherited from the Cold War. It also demands a policy recognition that the NSA will be a legal but also a powerful and permanent presence on a global telecommunications infrastructure where protected American communications and targeted adversary communications will coexist. (31)
The passage goes on to describe the difference between point-to-point analog communications and digital and wireless communications. It explains:
The volumes and routing of data make finding and processing nuggets of intelligence information more difficult. To perform both its offensive and defensive missions, NSA must "live on the network." (31; emphasis mine)
The document goes on to explain how this new technological environment requires a change in approach. It says:
The volume, velocity and variety of information today demands a fresh approach to the way NSA has traditionally done its business. This new approach is well under way. Significant effort and investment are being applied to mastering the global network, both to protect our nation's communications and to exploit those of our targets. (32; emphasis mine)
It elaborates on the difference between "SIGINT in the Industrial Age" and "eSIGINT," including the reality that communication is no longer point-to-point from known fixed points and data is often encrypted. It notes:
The Fourth Amendment is as applicable to eSIGINT as it is to the SIGINT of yesterday and today. The Information Age will however cause us to rethink and reapply the procedures, policies and authorities born in an earlier electronic surveillance environment.
Make no mistake, NSA can and will perform its missions consistent with the Fourth Amendment and all applicable laws. But senior leadership must understand that today's and tomorrow's mission will demand a powerful, permanent presence on a global telecommunications network that will host the "protected" communications of Americans as well as the targeted communications of adversaries. (32)
Put aside the slight inaccuracies in citation. Put aside the fact that the changes this document describes pre-date the Bush Administration. There's simply no evidence that this passage refers to the domestic surveillance program first revealed in Risen's NYT article. Rather, the passage is referring to the very real ways that digitized communication changes the way NSA must approach its job. NSA is referring to a permanent presence on telecommunications networks because that's the only way to protect against cyber-attacks and because that's the only way to be able to intercept communication that is sent in bits of data rather than discrete analog messages. It's worth noting, too, that the document mentions the controversy surrounding and Congressional hearings on the Carnivore program in another section. Carnivore, a Clinton-era program, is precisely the kind of permanent presence the NSA document describes here.
We've long known that NSA has technical access to all telecommunications. The question Risen's reporting raises is what the Bush Administration is doing with that data.
Leopold's Other Sources
So what about Leopold's other sources? Do those support his claim that Bush started the program Risen has exposed before 9/11?
Leopold supplements the NSA document with references to three other sources (in addition to the several sources he cites to discuss the programs legality):
- Risen's book
- A Slate article from last year
- "People who worked at the NSA as encryption specialists"
Now, I haven't yet bought Risen's book, so I can't attest to the context of the passage Leopold cites.
James Risen, author of the book State of War and credited with first breaking the story about the NSA's domestic surveillance operations, said President Bush personally authorized a change in the agency's long-standing policies shortly after he was sworn in in 2001.
"The president personally and directly authorized new operations, like the NSA's domestic surveillance program, that almost certainly would never have been approved under normal circumstances and that raised serious legal or political questions," Risen wrote in the book. "Because of the fevered climate created throughout the government by the president and his senior advisers, Bush sent signals of what he wanted done, without explicit presidential orders" and "the most ambitious got the message."
It's not clear whether Risen is referring to the NSA program he first exposed on December 16 or some other NSA programs. But I've got my doubts. After all, Risen makes it pretty clear in his original article that this program started after 9/11:
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.
So it seems Risen, in the book passage cited, is talking about something else. And it's not clear whether this something else is the "eavesdropping on Americans" Leopold makes it out to be.
Then there's the Slate article. This article clearly does refer to something going on before 9/11. But it's not eavesdropping per se. Rather, it's getting telecommunications companies to allow NSA to collect data off commercial broadband.
A former telecom executive told us that efforts to obtain call details go back to early 2001, predating the 9/11 attacks and the president's now celebrated secret executive order. The source, who asked not to be identified so as not to out his former company, reports that the NSA approached U.S. carriers and asked for their cooperation in a "data-mining" operation, which might eventually cull "millions" of individual calls and e-mails.
Like the pressure applied to ITT a half-century ago, our source says the government was insistent, arguing that his competitors had already shown their patriotism by signing on. The NSA would not comment on the issue, saying that, "We do not discuss details of actual or alleged operational issues."
I'm not saying this news isn't troubling. But collecting data is different than monitoring what's in that data. Collecting the data makes eavesdropping and data-mining possible. But it doesn't say anything about what the NSA is actually doing with the data. Incidentally, this activity--collecting data bits--sounds a lot more like what the NSA document is referring to. So it may be that by coercing telecom companies to share their data, Bush is expanding the "permanent presence" the NSA described in its December 2000 document.
And finally, there are Leopold's own sources:
But according to people who worked at the NSA as encryption specialists during this time, that's not what happened. On orders from Defense Department officials and President Bush, the agency kept a running list of the names of Americans in its system and made it readily available to a number of senior officials in the Bush administration, these sources said, which in essence meant the NSA was conducting a covert domestic surveillance operation in violation of the law.
Again, this is something entirely different than the Risen scoop. It apparently refers to the frequency with which (apparently) legally obtained NSA intercepts were being distributed without obscuring the name of the American citizen involved in the intercept. The best known example of this practice involves John Bolton, who ordered the NSA to reveal the name of at least ten Americans whose communications had been legally intercepted overseas. But as Newsweek revealed last May, the practice is much more common than previously known.
According to information obtained by NEWSWEEK, since January 2004 NSA received—and fulfilled—between 3,000 and 3,500 requests from other agencies to supply the names of U.S. citizens and officials (and citizens of other countries that help NSA eavesdrop around the world, including Britain, Canada and Australia) that initially were deleted from raw intercept reports. Sources say the number of names disclosed by NSA to other agencies during this period is more than 10,000. About one third of such disclosures were made to officials at the policymaking level; most of the rest were disclosed to other intel agencies and, perhaps surprisingly, only a small proportion to law-enforcement agencies. Civil libertarians expressed dismay at the numbers. An official familiar with NSA procedures insisted the agency maintains careful logs of all requests for U.S. names and doles out such info only after agency officials are satisfied "that the requester needs the information [and that it's] necessary to understand the foreign intelligence or assess its importance."
Again, don't get me wrong. This practice concerns me. But it's not the same program as the one Risen first scooped on December 16. Nor is it clear that Bush issued an executive order to make the practice legal. In fact, there's no indication that this practice is new with the Bush Administration.
The central assertion of Leopold's article is that Bush lied when he said he authorized the NSA domestic surveillance in response to 9/11.
Still, one thing that appears to be indisputable is that the NSA surveillance began well before 9/11 and months before President Bush claims Congress gave him the power to use military force against terrorist threats, which Bush says is why he believed he had the legal right to bypass the judicial process.
Yet Leopold proves no such thing. He does catalogue three troubling kinds of surveillance that have been going on since before 9/11 (and in the case of the NSA document he cites, before Bush was even in office). These three are: the "permanent presence on global telecom networks," the collection of domestic data using the cooperation of commercial telecommunications providers, and the circulation of legally-collected foreign intercepts without obscuring the name of American citizens involved. While the first two of these no doubt facilitate the program James Risen first exposed (that is, the collection of the data makes the actual eavesdropping possible), they do not by themselves equate to the Risen program. Further, it's not clear what the legal status of these programs is. Certainly, the first and third are programs Congress knows something about.
We need to be able to make a credible case to the American people that the Risen-exposed NSA program is an abuse of power. Perhaps we also need to make a credible case that these other programs go too far. But we're never going to be able to make a credible case if we conflate the several different programs the NSA uses or accuse Bush of things we can't prove.