U.S. spies monitored domestic callers
By James Risen and Eric Lichtblau The New York Times
WEDNESDAY, DECEMBER 21, 2005
WASHINGTON A surveillance program approved by President George W. Bush to
conduct eavesdropping without court warrants has captured what are purely
domestic communications in some cases, despite a requirement by the White House
that one end of the intercepted conversations take place on foreign soil,
officials say.
The officials say the interception by the National Security Agency, or
NSA, of a small number of communications between people within the United
States was apparently accidental and was caused by technical glitches at the
agency in determining whether a communication was in fact "international."
Telecommunications experts say the issue brings up troubling logistical
questions about the program.
At a time when communications networks are increasingly globalized, it is
sometimes difficult even for the NSA to determine whether someone is inside or
outside the United States when making a cellular phone call or sending an
e-mail message. As a result, people that the NSA may think are outside the
United States can actually be on U.S. soil.
Eavesdropping on communications between two people who are both inside
the United States is prohibited under Bush's order allowing some domestic
surveillance.
But in at least one instance, someone using an international cellphone
was mistakenly thought to be outside the United States when in fact both people
in the conversation were in the country. Officials, who spoke on condition of
anonymity because the program remains classified, would not discuss the number
of accidental intercepts, but the total is thought to represent a very small
fraction of the total number of wiretaps that Bush has authorized without
getting warrants.
In all, officials say the program has been used to eavesdrop on as many
as 500 people at any one time, with the total number of people reaching perhaps
into the thousands in the past three years.
Bush and his senior aides have stressed since the disclosure of the
program's existence last week that the president's executive order applied only
to cases where one party on a call or e-mail message was outside the United
States.
General Michael Hayden, the former NSA director who is now the
second-ranking intelligence official in the country, was asked at a White House
briefing this week whether there had been any "purely domestic" intercepts
under the program.
"The authorization given to NSA by the president requires that one end of
these communications has to be outside the United States," Hayden answered. "I
can assure you, by the physics of the intercept, by how we actually conduct our
activities, that one end of these communications are always outside the United
States."
Attorney General Alberto Gonzales also stressed that the order only
applied to international communications. "People are running around saying that
the United States is somehow spying on American citizens calling their
neighbors," he said. "Very, very important to understand that one party to the
communication has to be outside the United States."
A spokeswoman for the office of national intelligence declined comment on
whether the NSA has intercepted any purely domestic communications. "We'll
stand by what General Hayden said in his statement," said the spokeswoman, Judy
Emmel.
The Bush administration has not released the guidelines that the NSA uses
in determining who is suspected of having links to al Qaeda and may be targeted
under the program. Hayden said the determination was made by operational people
at the agency and "must be signed off by a shift supervisor," with the process
closely scrutinized by officials at the agency, the Justice Department and
elsewhere.
But questions about the legal and operational oversight of the program
last year prompted the administration to suspend aspects of it temporarily and
put in place tighter restrictions on the procedures used to target suspects,
said people with knowledge of the program.
The judge who oversees the secret court that authorizes intelligence
warrants - and which has been largely bypassed by the program - also raised
concerns about aspects of the program.
The concerns led to a secret audit, which did not reveal any abuses in
the targeting of suspects or instances in which purely domestic communications
were monitored, said officials familiar with the classified findings.
National security and telecommunications experts said that even if the
NSA seeks to adhere closely to the rules that Bush has set, the logistics of
the program may make it difficult to ensure that the rules are being followed.
With roaming cellphones, internationally routed e-mails, and voice-over
Internet technology, "it's often tough to find out where a call started and
ended," said Robert Morris, a former senior scientist at the NSA who is now
retired. "The NSA is good at it, but it's difficult even for them. Where a call
actually came from is often a mystery."
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