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.
But he based that claim on two things. (He also quoted former NSA encryption specialists who appeared to be referring to a different kind of surveillance.) A Slate article that quoted telecom executives saying the NSA started collecting call data before 9/11.
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.
And a Transitions 2001 document, dated December 2000, saying that NSA had to "live on the network."
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."
I was particularly confused how a December 2000 document--from before Bush was President was evidence that Bush ordered domestic surveillance before 9/11.
I raise these details because I had a bit of deja vu when reading the Bloomberg article reporting a plaintiff's lawyer stating:
"The Bush Administration asserted this became necessary after 9/11," plaintiff's lawyer Carl Mayer said in a telephone interview. "This undermines that assertion."
As with the Leopold article, this Bloomberg article cites something that predates Bush's presidency as evidence that this program predates 9/11.
The NSA initiative, code-named ``Pioneer Groundbreaker,'' asked AT&T unit AT&T Solutions to build exclusively for NSA use a network operations center which duplicated AT&T's Bedminster, New Jersey facility, the court papers claimed. That plan was abandoned in favor of the NSA acquiring the monitoring technology itself, plaintiffs' lawyers Bruce Afran said.
The NSA says on its Web site that in June 2000, the agency was seeking bids for a project to ``modernize and improve its information technology infrastructure.'' The plan, which included the privatization of its ``non-mission related'' systems support, was said to be part of Project Groundbreaker.
The NSA solicited bids for the physical infrastructure of this in 2000. And, well, sure, 2000 is definitely before 9/11. But if I remember correctly, a guy named Clinton was President in 2000.
Now I'm still looking for Bush comments on the collection of call data via the switches, as distinct from his comments on tapping calls between the US and Pakistan. Has he commented directly on the call data collection?
Update: Here's an excerpt of Bush's radio address following the USAT article.
This week, new claims have been made about other ways we are tracking down al Qaeda to prevent attacks on America. It is important for Americans to understand that our activities strictly target al Qaeda and its known affiliates. Al Qaeda is our enemy, and we want to know their plans. The intelligence activities I have authorized are lawful and have been briefed to appropriate members of Congress, both Republican and Democrat. The privacy of all Americans is fiercely protected in all our activities. The government does not listen to domestic phone calls without court approval. We are not trolling through the personal lives of millions of innocent Americans. Our efforts are focused on links to al Qaeda terrorists and its affiliates who want to harm the American people.
Bush says the activities strictly target Al Qaeda (which, given how he ignored and denied the existence of Al Qaeda before 9/11, suggests post-9/11). But he doesn't say anything about when or how he authorized this. It seems the big question, regarding this, is why they started data mining before Bush believed in Al Qaeda??
But I suspect there is a distinction that is important. There are multiple domestic spying programs we know of at this point. Many of them (though not all--in some cases they're using plain old physical surveillance) rely on having access to our communications data. That is, getting access from the switches is the physical condition that permits a lot of the data mining and tapping based on data mining that get more directly into spying.
And it appears the collection of call data may have been dreamt up under Clinton. It was executed under Bush, with some changes from the Clinton-era plan (though I can't tell whether those changes are more or less intrusive). And one of those changes may have been the decision to data mine the data. From the Slate article again:
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.
That is, in the implementation that occured in early 2001, the NSA had data mining in mind. But this is a detail we need to clarify.
Now don't get me wrong. I don't like the fact that the NSA is vacuuming up all the digital communication data in the country and providing it to the NSA. I like even less that Bush has used that data to pursue people he determines are a threat.
But it's also important to maintain the distinctions between the the different steps of the domestic surveillance programs. Apparently, a precursor to Bush's spying was the agreement with phone companies (some with contracts, some without) to let the NSA access their call data via their switches. The foundation (the RFP, anyway) for this agreement apparently preceded the Bush administration. Which suggests there was some perceived reason to do so, though even this seems to violate regulations regarding pen registers. BushCo may have expanded on the use of that data, to incorporate data mining (that is, Bush went from the plan for the hardware to using that hardware to collect information). And then, after the NSA started collecting our phone data, and after 9/11, BushCo put it to use that pretty clearly violates FISA, data mining the data to pick which phone calls to monitor.