BRANCACCIO: Welcome to Los Angeles, where they make all those spy movies.
Well it turns out there's a reality show version of the political thriller playing out in this country right now…
so what's the deal? If I call up my friend Jack in London and say, "Hi, Jack" then someone at the National Security Agency might secretly mine my call for data on terrorism? Let's hope not.
We're going to take a look into this whole government-eavesdropping-without-a-warrant story that erupted after the NEW YORK TIMES printed it, despite pleading by the Bush administration to keep it quiet. Why weren't the courts &3151; and for that matter, Congress — let in on the extent of this domestic spying? And does the president really have the power to do this in the first place?
Producer Steve Brand and Senior Correspondent Maria Hinojosa have been looking into it.
MICHAEL WOODS:
in the immediate aftermath of the attack there was a tremendous demand for information from all sources of intelligence, criminal investigations, anything.
MARIA HINOJOSA: In the days following September 11th,
the nation was reeling. Inside the FBI, Michael Woods, chief of its National Security Law Unit, was scrambling, working round the clock.
MICHAEL WOODS: The whole process sped up.
You know, do what's required to-to protect the country.
MARIA HINOJOSA: Enter the National Security Agency, the nation's highly secretive eavesdropping entity, which has vast capabilities to sweep up phone calls, faxes and emails. Up until now the agency had been restricted to spying on foreign suspects.
MICHAEL WOODS: I became aware of the information that there had been some change in the rules at NSA.
MARIA HINOJOSA:
Soon after the September 11th attacks, NSA head Michael Hayden had quietly ordered a change. Over at the FBI, Woods started hearing rumors.
MICHAEL WOODS:
I guessed, as did others, that the changes probably had to do with the NSA's ability to look at communications in which one party to the communication is a U.S. person.
MARIA HINOJOSA:
A U.S. person — it's a curious term. It means either an American citizen or an immigrant with a legal green card. Generally, only the FBI was allowed to spy in the U.S. and could do so only with a court order.
But in time, as cell phones and computers belonging to terrorists were being seized by the CIA in Afghanistan and elsewhere, American intelligence was amassing a treasure trove of phone numbers and email addresses, many of them in the United States.
In early 2002, President Bush issued a top secret executive order to the NSA.
JAMES RISEN:
What The National Security Agency is doing under the orders of President Bush is eavesdropping on conversations of people inside the United States as they communicate with other people around the world, and as other people around the world communicate back to them.
MARIA HINOJOSA:
NEW YORK TIMES investigative reporter James Risen broke the story last month, and describes the secret program in his new book, STATE OF WAR.
MARIA HINOJOSA:
Is this, in fact, a domestic spying program? 'Cause there are those who say it's not.
JAMES RISEN:
No, I think it's the right term.
MARIA HINOJOSA:
It appears to be the first time in 30 years that the NSA has been given a green light to eavesdrop on American citizens, without having to obtain a court order.
In Congress, members of both parties were outraged. Some said the president had broken the law.
SEN. RUSS FEINGOLD (D-WI):
And you know what. That's not our system of govt. We have a president not a king.
SEN. ARLEN SPECTER (R-PA), JUDICIARY CHAIRMAN:
It is inexcusable to have spying on people in the United States without court surveillance, in violation of our law.
MARIA HINOJOSA:
In an unprecedented move, President Bush admitted he had ordered the secret program and held a news conference to defend it.
PRES. BUSH (12/19/05):
I just want to assure the American people that, one, I've got the authority to do this; two, it is a necessary part of my job to protect you; and three, we're guarding your civil liberties.
BOB BARR:
The central issue, and it's been the same for over two and a quarter centuries, are we a nation of laws, ruled by laws, or are we a nation of men ruled by personality and cult of personality.
MARIA HINOJOSA:
Former Congressman Bob Barr, a Republican, believes the president has gone too far.
BOB BARR:
I think that we ought to stand up and say Mr. President we're not attacking your motives. And I'm not. But what we are saying Mr. President is you were elected not just to protect this country but you were elected to operate within the rule of law.
MARIA HINOJOSA:
Congressman, are you saying that you believe that President Bush has authorized the breaking of laws in this country?
BOB BARR:
That certainly seems to me to be the case.
MARIA HINOJOSA:
The law that Bob Barr is referring to is the Foreign Intelligence Surveillance Act, known as FISA. Passed by Congress in 1978, it was a response to the domestic surveillance abuses carried out by the Kennedy, Johnson and Nixon administrations.
They had been using intelligence agencies, including the NSA, to plant bugs on and wiretap political enemies, to spy on anti-Vietnam War protesters like Jane Fonda, and to wiretap Martin Luther King. All without any court supervision or Congressional oversight.
Congress passed the FISA law to help protect Americans' constitutional rights from being trampled on, specifically the Bill of Rights' 4th Amendment, which guarantees:
'the right of the people to be secure … against unreasonable searches and seizures…'
With the new FISA law, the government now had to get a court warrant in order to eavesdrop on Americans.
MICHAEL WOODS:
Congress created a special court for the government to use, the Foreign Intelligence Surveillance Court, FISA Court. People refer to it as a secret court sometimes.
So, that if we need to do surveillance in the United States, the government says, "All right, here's the person. "Here's why the government believes this person is a spy, a terrorist, an agent of a foreign power."
And we show this to a third party, a court. And the court makes that decision.
MARIA HINOJOSA:
Woods, who's now in the private sector, knows all about getting FISA warrants. When he ran the FBI's National Security Law Unit, he did it hundreds of times.
MICHAEL WOODS:
In the days leading up to and following September 11th, we did many, many FISA applications on an emergency basis.
The statute itself allows for there to be a kind of verbal authorization. You know, as soon as you're aware, the Attorney General can simply authorize the surveillance.
MARIA HINOJOSA:
In those emergency situations agents are allowed to eavesdrop for 72 hours before they have to get a warrant.
And the FISA Court rarely refuses to grant one. Of 19,000 requests for warrants in the court's history, only
five have ever been turned down.
So what was the problem? Why would the Bush administration secretly use the NSA to make an end run around FISA?
PRESIDENT BUSH (12-19-05):
Of course we use FISAs. But FISAs is for long-term monitoring. What is needed in order to protect the American people is the ability to move quickly to detect.
MARIA HINOJOSA:
The warrantless eavesdropping on Americans was so secret that it came to be known only as "The Program."
JAMES RISEN:
The way the program kind of originated was with getting what they called dirty numbers out of laptops and other phone directories from captured al Qaeda people. They would take those numbers. And then they would searches of the people, you know, connected with those numbers.
And then they would kind of move outward from that looking at people that those people called.
MARIA HINOJOSA:
In addition to tracking dirty numbers says Risen, the NSA went much further, getting inside big phone companies' high volume switches.
JAMES RISEN:
By getting access to those switches, they then were kind of into the bloodstream of the volume of telecommunications coming in and out of the country.
MARIA HINOJOSA:
Russ Tice has an insider's view on all this. For 20 years he worked as an intelligence officer, and was a technical intelligence specialist on some of the NSA's most highly classified projects, so secret they're known only as "Black World."
Before September 11th, he says he and his colleagues would never have spied on their fellow countrymen.
RUSS TICE:
As intelligence officers, it is drilled into our heads from very early on in our careers that you will not spy on Americans. Over and over and over again, we are told, "You will not do this." It's engrained in us.
MARIA HINOJOSA:
Tice says while he didn't work on the so-called "Program," he knows all about eavesdropping.
He says the technology exists to use what he calls a vacuum approach — where all of those numbers and phone calls could be — in his words "sucked in."
Up until now this kind of technique was only used overseas but now American phone numbers could be brought in as well.
MARIA HINOJOSA:
Tell me how it works, exactly. I'm getting a phone call from a friend in Paris. And she says to me, "Oh, I'm working on my dissertation about Jihad." Does that word-- do you have the technology that that word kind of pops up?
RUSS TICE:
The technology exists to do that.
MARIA HINOJOSA:
Here's how it would work: Billions of communications travel around the world each day. The word jihad could trigger word recognition software at the NSA that flags suspicious phrases. Over time, if computers detect an ominous pattern, the NSA could then pin point that individual as having a possible terror link and eavesdrop on his or her conversations.
But the Bush administration insists that the program is limited to a small number of targets.
PRESIDENT BUSH (01-01-06):
The NSA program is one that listens to a few numbers.
MARIA HINOJOSA:
Do you agree with that? Is that what-- as far as you know is that the extent of the program.
RUSS TICE:
If that was the extent of the program. Once you have that name and you have the information that it came from a potential terrorist, it would be very easy to go to the FISA Court and say, "We have this" which would probably measure up to probable cause.
And, the FISA Court would very easily give you the warrant to do so. So, why ultimately was that not done? That-- that in my mind is the big question.
MARIA HINOJOSA:
What's the answer that you have. Why wasn't it done?
RUSS TICE:
If they decided to use the broad brush approach, in other words vacuum clean everything in and then work from there to winnow out, you know, what you don't want to look for what you do, then ultimately you've violated the Constitutional rights of hundreds of thousands, if not millions of American citizens.
MARIA HINOJOSA:
And, you believe that that approach was used?
RUSS TICE:
I can't say that it was or wasn't, but I certainly know that that's how I would do it if I didn't have any restraint.
MARIA HINOJOSA:
You should know that Tice's story is complicated — he was fired from the NSA last May. On the day the Risen story broke in the NEW YORK TIMES he wrote to members of Congress saying he wanted to testify about serious abuses inside the NSA. It isn't often that employees of the ultra-secret agency want to speak publicly. But Tice said he felt compelled.
RUSS TICE:
To find out that you're own leadership has betrayed, you know, what you've been taught as a SIGIN officer your entire career, it's-- it's very disappointing.
MARIA HINOJOSA:
Before firing him, the NSA sent Tice for a psychiatric evaluation. The diagnosis: paranoid ideation.
MARIA HINOJOSA:
Some might say that you, Russ Tice, you're speaking out because the NSA fired you.
RUSS TICE:
Well, I mean, that's a valid concern, you know. When -- when that happened to me-- I was not a happy camper-- I know. You know, basically they-- they pulled me in and-falsely accused me of being, you know, mentally ill. They've destroyed my career. The question is would I slander-- would-- would I, you know, bring false charges, you know, because of something like that? The answer is "no."
MARIA HINOJOSA:
We wanted to hear from the administration directly and requested interviews with Vice President Dick Cheney, Attorney General Alberto Gonzales, former Attorney General John Ashcroft, and General Michael Hayden, who was head of the NSA at the time the program started and is now President Bush's Deputy Director of National Intelligence.
All refused to speak with us.
VICTORIA TOENSING:
They're not violating the law. They're just not complying with FISA. But, the President has power beyond FISA to do certain things--
MARIA HINOJOSA:
Victria Toensing was a Deputy Assistant Attorney General in the Reagan administration, and is a strong supporter of President Bush's secret program, which she says is legal because of the president's inherent authority.
VICTORIA TOENSING:
He has extra, for want of a better word, extracurricular powers that he doesn't have-- he couldn't come in and shut down and say, "I'm not gonna comply with Title Nine He can't do that in any other area, but national security. The Constitution gives him expanded powers of acquiring information to protect the country. It's the only area where it does. So, he's not violating the law.
MARIA HINOJOSA:
Who defines the limits of the inherent power of the presidency?
VICTORIA TOENSING:
The Supreme Court defines the limits of the inherent powers of the president.
MARIA HINOJOSA:
Supreme Court Justice Sandra Day O'Conner said, "We have long since made clear that a state of war is not a blank check for the President when it comes to the rights of the nation's citizens."
VICTORIA TOENSING:
I agree completely that there's no blank check for the President. It's fine with me if the Supreme Court decides whether the President has inherent Constitution authority to-- to carry out this program. But, I don't believe that the President should have to explain to everyone in this country how it is he's going about acquiring this intelligence.
MARIA HINOJOSA:
What's more, Toensing and the administration's supporters contend, Congress signed off on allowing the president to order warrantless eavesdropping inside the United States when it all but unanimously passed a joint resolution days after September 11th.
That resolution authorized the president "to use all necessary and appropriate force against those" who "planned, authorized, committed or aided" the terrorist attacks.
FORMER SENATOR TOM DASCHLE:
Well, they haven't been given that authority.
Tom Daschle strongly disagrees with the administration's interpretation of that resolution. Now a Senior Fellow at the Center for American Progress, he was the Senate Majority Leader and in the room when the language of the resolution was negotiated.
TOM DASCHLE:
We had reached an agreement. And, then just a couple of hours prior to time we voted, they came to us with one last request, "Would you add 'in the United States?'" And, we said, "No." They asked, because they apparently felt they didn't have that authority that they were looking for, as unlimited as it was already, in the United States.
MARIA HINOJOSA:
What was your reaction?
TOM DASCHLE:
Well, my reaction was this is outrageous. This is unacceptable.
MARIA HINOJOSA:
So, when Vice President Cheney says that the President was granted by Congress the authority to use all means necessary to take on the terrorists and Vice President Cheney says, "That's what we've done," Isn't that what they've done?
SENATOR TOM DASCHLE:
I think that Congress has been quite clear. You've gotta use FISA. You've got to use the authority that we've delegated and no more.
MARIA HINOJOSA:
At least one of the FISA judges apparently agrees. Three days after Risen's article on the NSA eavesdropping, Judge James Robertson resigned his seat on the FISA court.
Meanwhile, on Capitol Hill, the debate over all this won't be ending anytime soon. Hearings are being scheduled in both the Senate intelligence and judiciary committees because Risen's reporting on the existence of the secret program raises as many questions as it answers.
MARIA HINOJOSA:
You've seen this country go through any number of changes. How do you rate your level of concern about what's happening now in terms of what you've seen in the past?
BOB BARR:
I'm more concerned about fundamental freedom and the survival of our Constitution and what it represents right now more than I ever have been in the past. And part of that is because every time we have a problem like this it becomes a precedent for the next president to move a little bit further, to move the bar a little bit further in the direction of government power and away from personal freedom.
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