NSA Initiated Expanded Spying Effort
Erich Lichtblau and Scott Shane report that the NSA started the post-9/11 expansion of electronic surveillance on its own initiative under existing law.
The National Security Agency acted on its own authority, without a formal directive from President Bush, to expand its domestic surveillance operations in the weeks after the Sept. 11 attacks, according to declassified documents released Tuesday.
The N.S.A. operation prompted questions from a leading Democrat, Representative Nancy Pelosi of California, who said in an Oct. 11, 2001, letter to a top intelligence official that she was concerned about the agency’s legal authority to expand its domestic operations, the documents showed. Ms. Pelosi’s letter, which was declassified at her request, showed much earlier concerns among lawmakers about the agency’s domestic surveillance operations than had been previously known. Similar objections were expressed by Senator John D. Rockefeller IV, Democrat of West Virginia, in a secret letter to Vice President Dick Cheney nearly two years later.
The letter from Ms. Pelosi, the House minority leader, also suggested that the security agency, whose mission is to eavesdrop on foreign communications, moved immediately after the Sept. 11 attacks to identify terror suspects at home by loosening restrictions on domestic eavesdropping. The congresswoman wrote to Lt. Gen. Michael V. Hayden, then head of the N.S.A., to express her concerns after she and other members of the House and Senate Intelligence Committees received a classified briefing from General Hayden on Oct. 1, 2001, about the agency’s operations. Ms. Pelosi, then the ranking Democrat on the House Intelligence Committee, said, “I am concerned whether, and to what extent, the National Security Agency has received specific presidential authorization for the operations you are conducting.” The answer, General Hayden suggested in his response to Ms. Pelosi a week later, was that it had not. “In my briefing,” he wrote, “I was attempting to emphasize that I used my authorities to adjust N.S.A.’s collection and reporting.” [emphasis added]
It is not clear whether General Hayden referred at the briefing to the idea of warrantless eavesdropping. Parts of the letters from Ms. Pelosi and General Hayden concerning other specific aspects of the spy agency’s domestic operation were blacked out because they remain classified. But officials familiar with the uncensored letters said they referred to other aspects of the domestic eavesdropping program. Bush administration officials said on Tuesday that General Hayden, now the country’s No. 2 intelligence official, had acted on the authority previously granted to the N.S.A., relying on an intelligence directive known as Executive Order 12333, issued by President Ronald Reagan in 1981. That order set guidelines for the collection of intelligence, including by the N.S.A. “He had authority under E.O. 12333 that had been given to him, and he briefed Congress on what he did under those authorities,” said Judith A. Emmel, a spokeswoman for the Office of the Director of National Intelligence. “Beyond that, we can’t get into details of what was done.”
Quite interesting, if a tad confusing. This doesn’t absolve President Bush of any blame, since he ultimately authorized the controversial warrantless interception of domestic communications. It does, however, further emphasize that appropriate leaders in Congress were in the loop and that there was a legitimate sense that what was being done was within the scope of executive authority.