"U.S. Spying Is Much Wider, Some Suspect" from the Los Angeles Times, Sunday December 25, 2005. ©2005 Los Angeles Times. Reprinted with permission.
U.S. Spying Is Much Wider, Some Suspect
December 25, 2005
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For The Record
Los Angeles Times Wednesday December 28, 2005 Home Edition Main News Part A Page 2 National Desk 1 inches; 40 words Type of Material: Correction
Domestic spying -- An article in Sunday's Section A about the National Security Agency's domestic spying activities said an FBI "data mining" program called Carnivore was created after the Sept. 11, 2001, terrorist attacks. It was created in June 2000.
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Home Edition, Main News, Page A-1
By Josh Meyer and Joseph Menn, Times Staff Writers
WASHINGTON -- President Bush has acknowledged that several hundred targeted Americans were wiretapped without warrants under the National Security Agency's domestic spying program, and now some U.S. officials and outside experts say they suspect that the government is engaged in a far broader U.S. surveillance operation.
Although these experts have no specific evidence, they say that the NSA has a vast array of satellites and other high-tech tools that it could be using to eavesdrop on a much larger cross-section of people in the United States without permission from a court.
The suspicion is quietly gaining currency among current and former U.S. intelligence officials and among outside experts familiar with how the NSA operates.
The NSA conducts such "wholesale" surveillance continuously almost everywhere else in the world. It does so by using a sprawling network of land-based satellite transponder stations and friendly foreign intelligence agencies and telecommunication companies to collect millions of phone calls, e-mails and other communications.
Powerful NSA supercomputers search this "sigint" -- short for signals intelligence -- for words that might suggest terrorist plots, such as "bomb," then pass the information to intelligence and law enforcement agencies.
Gen. Michael V. Hayden, former head of the NSA and now the No. 2 U.S. intelligence official, has said the NSA does not use the same technologies to purposely spy on Americans. The agency is prohibited from doing so by federal laws enacted after the domestic spying scandals of the 1970s.
Rare exceptions must be approved by a special court overseeing the Foreign Intelligence Surveillance Act of 1978. The top-secret tribunal considers requests for warrants when the NSA or FBI believes such surveillance is needed to protect national security.
This month it was disclosed that the Bush administration has circumvented the Foreign Intelligence Surveillance Court to monitor hundreds of Americans since the Sept. 11 attacks without any warrants. Bush and his inner circle said the practice is limited to occasions when an individual in the U.S. is communicating with someone overseas who has a known link to Al Qaeda, other terrorist groups or their supporters.
But some officials and other experts believe the top-secret program may be doing more than that.
"It's really obvious to me that it's a look-at-everything type program," said cryptography expert Bruce Schneier, who has written several books about security.
Schneier and others suspect that the NSA may be turning its satellites toward the United States and gathering vast streams of raw data from many more people than disclosed -- potentially including all e-mails and phone calls from the United States to certain other countries.
These experts were chiefly talking about satellite surveillance, but the NSA can use other means to eavesdrop. The New York Times reported Saturday that the NSA has collected large volumes of telephone and Internet communications since the Sept. 11 attacks by "tapping directly into some of the American telecommunication system's main arteries."
Leading telecommunication companies have been saving information on calling patterns and passing it along to the government, the newspaper said. The companies have also given the NSA access to electronic switches that connect U.S. and overseas communications networks, a "significant expansion" of NSA capabilities, it said.
Phone companies and others have cooperated with U.S. agencies including the NSA for years. In the early 1990s, AT&T agreed to use an NSA-designed chip to ensure that law enforcement had access to phone calls.
And AT&T has a database code-named Daytona that keeps track of phone numbers on both ends of calls as well as the duration of all land-line calls, according to a business executive who has been briefed on the system.
"This started as a way for phone companies to dig out fraud," the executive said Saturday. After Sept. 11, intelligence agencies began to view it as a potential investigative tool, and the NSA has had a direct hookup into the database, he said.
After such massive volumes of information are collected, they are searched for suspicious language. The administration could thus argue that only hundreds of people were monitored because those conversations were the ones that were flagged because they contained suspicious words, Schneier said.
"If a computer looks at all e-mail and says 'bing' once, is that monitoring one person or millions?" Schneier asked. "The Bush numbers are depending on that subterfuge."
One former senior Pentagon official who has overseen such "data mining" said he also believed the NSA was probably conducting such wholesale surveillance.
"It's a reasonable hypothesis," the official said, adding that he believed it was necessary against savvy terrorists who would otherwise remain undetected.
One former NSA signals-intelligence analyst, Russell D. Tice, said the agency has long had such ability.
"I'm not allowed to say one way or another what the NSA is or is not doing. But the technology exists," said Tice, who left the NSA this year.
"Say Aunt Molly in Oklahoma calls her niece at an Army base in Germany and says, 'Isn't it horrible about those terrorists and Sept. 11?' " Tice said: That conversation would not only be captured by NSA satellites listening in on Germany -- which is legal -- but flagged and listened to by NSA analysts and possibly transcribed for further investigation.
"All you would have to do is move the vacuum cleaner a little to the left and begin sucking up the other end of that conversation," Tice said. "You move it a little more and you could be picking up everything people are saying from California to New York."
The White House, Justice Department and NSA have refused to discuss the ongoing NSA program except to say that it conforms to U.S. law. The president has cited the powers given to him by Congress after Sept. 11 as well as his constitutional powers as commander in chief.
In interviews, current and former intelligence officials said communications technology was so advanced that it would probably be next to impossible for the NSA to filter out all of the U.S.-based electronic communications even if it wanted to when casting a wide net for terrorists.
Some administration critics in Congress have begun speculating that the administration is specifically directing the NSA to conduct such surveillance on people in the U.S.
Top-ranking senators from both parties are preparing questions for administration officials at upcoming hearings on the controversy. Some questions aim to pin down the administration on the issue of wholesale versus individual surveillance, according to congressional staffers.
"Based on how much their story keeps changing, I think there's more to the story," said Susan McCue, chief of staff to Senate Minority Leader Harry Reid (D-Nev.). "A lot of people on Capitol Hill think that."
Foreign Intelligence Surveillance Court members have also demanded an explanation, saying they are concerned that warrantless surveillance is producing illegally gathered evidence that is then used to seek warrants. One member resigned, reportedly because of the domestic spying program.
For some, the program recalls John M. Poindexter's ill-fated Total Information Awareness program, which he was developing for the Pentagon after the Sept. 11 attacks to use electronic transactions performed by millions of people daily to hunt for patterns and flag suspicious activity.
After being briefed on the domestic spying program in summer 2003, Sen. John D. Rockefeller IV (D-W.Va.) wrote to Vice President Dick Cheney: "As I reflected on the meeting today, and the future we face, John Poindexter's TIA project sprung to mind, exacerbating my concern regarding the direction the administration is moving with regard to security, technology and surveillance."
Total Information Awareness was essentially killed by Congress in February 2003 over privacy concerns. But parts of it were quietly moved elsewhere and continue to receive classified funding, according to Poindexter.
In the business world, where customer information and other records are used to look for unexpected patterns and trends in people's buying habits, data mining is not particularly controversial.
But in the hands of a powerful government, critics say, data mining raises serious concern about privacy and civil liberties, and the Bush administration has used the practice aggressively.
After Sept. 11, the FBI created a data-mining program called Carnivore but shelved it after critics said it was too intrusive. A Pentagon program, Able Danger, created controversy with its pre-Sept. 11 attempts to uncover terrorist sleeper cells in the U.S. Recently, a Pentagon program aimed at protecting U.S.-based military installations has come under fire for gathering information on protest groups.
Defending Data Mining
The Foreign Intelligence Surveillance Act was not designed to accommodate data-mining projects, and some experts and knowledgeable former U.S. officials suspect that that is why the administration is circumventing it.
Because data mining entails tracing potentially millions of innocent links to find a few suspicious ones, authorities would immediately encounter problems establishing probable cause to proceed. Then, the experts say, authorities would have to obtain warrants under the surveillance act for vast numbers of phone numbers and e-mail addresses.
John Yoo, a former Justice Department lawyer appointed by Bush who was centrally involved in crafting the administration's legal strategy in the war on terrorism, declined to comment on the NSA program. But in 2003 congressional testimony, Yoo seemed to support such broad surveillance when he said: "It appears clear that the 4th Amendment's warrant requirement does not apply to surveillance and searches undertaken to protect the national security from external threats."
Yoo also said that the 4th Amendment protects against "unreasonable" searches and seizures, not all of them.
On Friday, Yoo said he still holds that position: "I believe that the 4th Amendment itself allows the government to conduct warrantless searches that are 'reasonable.' "
The NSA's wholesale collection of signals intelligence overseas has given the Bush administration some of its biggest successes in the war on terrorism.
U.S. intelligence and counterterrorism officials confirmed to the Los Angeles Times that NSA intercepts were instrumental in capturing such high-value Al Qaeda chieftains as Khalid Shaikh Mohammed and Ramzi Binalshibh, who had both boasted shortly before their capture in 2003 of being masterminds of the Sept. 11 attacks. NSA intercepts also placed Osama bin Laden at the battle of Tora Bora in Afghanistan.