Bush Secretly Lifted Some Limits on Spying in U.S. After 9/11, Officials Say

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 represents 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

"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 this
country, 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.

While many details about the program remain secret, officials familiar with
it said the N.S.A. eavesdropped 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 over the past three years, 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.

Dealing With a New Threat

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, the officials 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 this
country by first obtaining a court order from the Foreign Intelligence
Surveillance Court, which holds its closed sessions at the Justice

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, Gen. Michael V. Hayden of the Air Force, who was then the
agency's director and is now 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 legality of the program. 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

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

Culture of Caution and Rules

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.

Several senior government officials say that when the special operation
first 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.

The Civil Liberties Question

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.

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, noted "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."

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