NSA – Spying on Americans?

Rick Francona is an old friend and colleague.  He is an expert SIGINTer.  He has something to say.

Pat Lang

"A December 16 New York Times article, "Bush Lets U.S. Spy on Callers Without Courts" has caused an uproar around the country. Perhaps some background is in order.

The National Security Agency (NSA) is the largest agency in the U.S. intelligence community. Although nominally part of the Department of Defense, its operations are closely supervised by the Director of National Intelligence and support the entire executive branch. From its headquarters at Fort Meade, Maryland, it oversees a worldwide network of intercept stations operated by "the Fort" (as it is known in the business) and the military services, using the latest technologies to access communications of all types. You name it – telephone, radio, fax, email – NSA intercepts it.

NSA’s primary focus is on the collection of foreign communications in response to intelligence requirements, be they for military commanders deployed to combat zones, diplomats negotiating on behalf of the United States, etc. Generally, the communications intercepted by NSA take place outside the United States. And generally, NSA is prohibited from the intercept of communications between "U.S. persons, entities, corporations or organizations."

That is not to say that internal communications, or communications originating or terminating in the United States involving a U.S. person or entity cannot be collected by NSA. Collection of these communications, or those foreign communications involving U.S. persons (a much broader category than a U.S. citizen), entities, corporations or organizations abroad requires either a federal warrant or authorization from the Attorney General.

The governing document for this situation is United States Signals Intelligence Directive (USSID) 18. I worked in the U.S. SIGINT System for many years – this directive is taken seriously. From what I have observed, violation of USSID 18 is a career-ending event. NSA requires that its officers and military personnel assigned there to complete annual USSID 18 training.

The long-established mechanism to authorize the intercept of internal or US-entity communications is via a federal warrant issued under the provisions of the Foreign Intelligence Surveillance Act (FISA), most often referred to as "FISA warrant." It is the FISA court that provides oversight to ensure that NSA’s actions are in fact necessary and in keeping with U.S. law. USSID 18 also permits collection of these U.S. communications when authorized by the Attorney General in exceptional circumstances (emergencies, imminent danger, threat to life, etc.).

According to the New York Times article, the President issued an executive order after September 11, 2001, authorizing NSA to monitor without warrants certain international phone calls and e-mail messages to or from persons in the United States. (Note that intercept of internal U.S. communications still requires a federal warrant.) Many of the communications targeted under this executive order were discovered from exploitation of captured Al-Qa’idah and Taliban fighters and their computers and documents. According to government officials, the information collected has resulted in the disruption of terrorist operations.

Is all this against this law? I’m not a lawyer, but I doubt it. Having spent considerable time doing this for a living, I cannot contemplate NSA (or the parent Defense Department) undertaking this "special collection program" without concurrence of the NSA’s General Counsel. I would be surprised if the Justice Department was not consulted as well.

Was Congress notified? According to the New York Times article, the chairmen and ranking members of the Senate and House intelligence committees were briefed by then-director of NSA Air Force Lt. Gen. Mike Hayden and then Director of Central Intelligence George J. Tenet. This almost certainly happened. This activity, clandestine rather than covert, would be considered a "significant intelligence activity," thus requiring Congressional notification.

My question: Was an Executive Order needed? Were the existing provisions of FISA not sufficient to authorize NSA collection of these communications? Since very few FISA requests are turned down, what special situations arose that were not covered by the FISA?"

Lt Col Rick Francona, USAF (Retired) is an MSNBC Military Analyst. He served for over 15 years in the U.S. Signals Intelligence System, including tours at the National Security Agency.

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26 Responses to NSA – Spying on Americans?

  1. mainsailset says:

    Like all of us I’m curious as to why was it necessary to use the lowered bar created by Bush to do the wiretapping? After reading your piece I’m curious whether some of these taps were applied to Mosques or Muslim religious communities rather than simply individuals. I could see how getting a warrant to tap a mosque might be problematic using FISA likewise in the effort to trace the financing amongst groups.

  2. W. Patrick Lang says:

    I want to know if they tapped you and me. pl

  3. J says:

    Just ‘whom’ was Bolton eavesdropping on? ‘Whom’ (U.S. citizens within CONUS) did Bolton consider ‘enemies’ of the Bush admin.? Those who dared to call the Bush admin. ‘liars’ regarding their premise for an Iraq war maybe?

  4. Patrick Henry says:

    Pat.. I Wouldnt be Suprised..
    From what Ive been reading all along their methods have been t rrying to plumb everything they could..in and out of Office..
    Attack..anyone they consider an enemy or threat to thier organization & Objectives..
    Mainain a “LIST”
    Discredit..with Misinformation..
    Protect thier OPERATION..
    and ALABI Thier way Out..
    They are “SUSPECT'” in Light of thier Demonstrted Conduct..

  5. avedis says:

    I would like to see the “list”.
    I would like my elected reps to demand the list be made public.
    Also, I am thinking that the infrastructure necessary to carry out an operation of the scope and nature by which we would be most offended would have to have been something that was developed and implemented pre 9/11. Probably even pre Bush II.
    So, if the spying was both widespread and general then this was an operation with roots reaching further back than Bush.
    And then the raison d’etre for all that infrastructure should be examined.

  6. W. Patrick Lang says:

    NSA has a very large capability developed for the cold war. pl

  7. Minnesotachuck says:

    Here’s a link to a post by a 1st Amendment lawyer who begs to differ with your friend Rick Francon. http://glenngreenwald.blogspot.com/2005/12/purposely-misquoting-fisa-to-defend.html
    If he’s correct in his interpretation, Bush was definitely over the line.
    Rep. Pelosi and Sen. Reid were apparently briefed on this and as noted in the National Journal link above, Pelosi allegedly ‘expressed reservations’ to the administration at the time. My question: Was briefing them an attempt to buy their silence?

  8. W. Patrick Lang says:

    Rick’s opinion is his own. He said that he believed that the GC of NSA must have been consulted and the implication for him seems to be that they would not have made a mistake.
    That does not do it for me. GCs are just more government bureaucrats looking to please.

  9. Patrick Henry says:

    The Rove/Libby/Plame investigation alone indicates they Do obtain Information on thier Critics and have attempted to Both Covertly and Overtly Attack/Discredit them..
    Because they were Provoked/Aggitated/Concerned people might question thier actions if they(the people) listen to the Critics..
    This apparently is done behind the Presidents back with the attitude of >>”What He doesn’t know wont Hurt Him.’.if we are to believe His Suprise at the Outcome of Mr. Fitzpatricks Investigations..
    Hard core political Battles Have Been Fought..
    Some more Unfair and Dangerous than Others..
    you Just can’t ignore the Facts..or Want to know the Facts..
    Right..Sgt Joe Friday..??

  10. Geoff says:

    I know next to nothing about any of this so I’ll say only one thing.
    I don’t like it.
    Legal or illegal, it makes me very uncomfortable.

  11. bygraves says:

    this is wrong and it under mines what this country is about. I am very bothered with the way things are going in this country. I would never belive that we would be invading countries, holding people with out charges, treating other human beings in sinfull ways. Some one needs to be held resonsable for what has been done to our country.

  12. Some Guy says:

    If the FISA court has operated as a rubber stamp for warrants (1 refused out of thousands over 27 years is a rubber stampt if ever there was one), why would anyone need a lower standard? Could it be what was contemplated would make even a rubber stamp court balk? I don’t know but that is certainly a rational inference.

  13. Curious says:

    ~~Is all this against this law? I’m not a lawyer, but I doubt it. Having spent considerable time doing this for a living, I cannot contemplate NSA (or the parent Defense Department) undertaking this “special collection program” without concurrence of the NSA’s General Counsel. I would be surprised if the Justice Department was not consulted as well.~~~
    I got the feeling he will lose office pools.

  14. RJJ says:

    From what I am reading, the media bloviators are sounding a mite perturbed. Perhaps these careerists are beginning to grasp the fact that they too can be monitored for [dis]loyalty to The Regime?

  15. searp says:

    The only good argument for being within the law in this area is to have your actions monitored by a judge, even a FISA judge.
    Rick Francona is an insider, and it is good to have his insights, but I doubt very much that the GC at NSA would remain in the job very long if he/she dug in their heels over a presidential order.
    Why not go to a FISA judge? Simplest explanation is best: the judge wouldn’t have approved.

  16. Curious says:

    The qustions:
    Bush said, he authorized it at least 30 times. (I bet he is lying and parsing)
    So somebody did the dirty deed 30 times… which agency? who? It’s not Bush himself who is doing it, I can tell ya that much.
    To say ‘i can’t imagine they do it’ obviously is not going to fly, since it already happens. All we have now is the cover up and parsing game.

  17. ikonoklast says:

    First, if you really wanted to get around the 72-hour FISA rule – going to ridiculous lengths here – you could stop the process anytime before 71h 59m, at a point where no pertinent information was likely to be gathered, and then restart it and be arguably tapdancing within the letter of the law. Too much trouble, I suppose, and “it would be wrong,” as Mr. Nixon once observed.
    There is no obviously compelling argument for time sensitivity, despite the President’s sputtering defense of his actions during this morning’s dog and pony show. A bruited explanation for the urgency, that they were tracking multiple cell numbers taken from computers and phones, is unlikely. I wouldn’t think this is an insuperable obstacle for the NSA?
    So what real reasons do they have?
    a) The information they are gathering is so sensitive that even the FISA court set up to handle just this eventuality is not secure enough
    b) That some aspect of the court approval mechanism is insecure, thus untrustworthy, and that this problem can not be remedied for some reason
    c) You suspect that a person associated with the mechanism or with the court itself is leaking information, and that there are further reasons that prevent you from removing that person.
    d) The chance of court approval is so vanishingly small that there is no point in attempting to make a case
    e) You don’t care if you have approval or not
    Based on this administration’s track record, some combination of arrogance, fear, and willful ignorance, (d) or (e), seems the most likely.
    (Then you can edge into the realm of paranoia and conspiracy and have: f) God told Bush to do it that way; and g) The coincidence that at the same time these surveillances were initiated the only commercial flights allowed in the US were carrying select Saudis out of the country, for some still secret reason, and we couldn’t take a chance on letting them find out they were being monitored …)
    If all this was done by our strong and wise daddy shepherd to protect poor little sheep me from terrorists, why do I feel more like early-stage lamb kebab?
    “Necessity is the plea for every infringement of human freedom. It is the argument of tyrants; it is the creed of slaves.” — William Pitt

  18. john says:

    Arguments over legalities does not address the main point: some employee(s) of the NSA felt uncomfortable enough with the situation to leak the story and risk prosecution. Some employee(s) at the NYT bowed to pressure and held the story. The Achilles heal for President Bush and those who push the envelope is conscience–a Daniel Ellsberg or Deep Throat type will step forward sooner or later and drop a dime. All that remains is to see how public opinion firms up over this latest revelation.
    “Mistakes were made; others were blamed.”

  19. Newsweek is now reporting that Bush tried to kill the story on Dec. 6th of this year by inviting the New York Times to the Oval Office.

  20. Sally says:

    It’s wonderful to read many of us are not buying “I cannot contemplate NSA (or the parent Defense Department) undertaking this ‘special collection program’ without concurrence of the NSAs General Counsel.” We’ve seen how very many people there are in every facet of our goverment who are quite willing to subvert our democracy at the bidding of this undemocratic administration. I’m awfully close to using the term “fascist administration.”

  21. orionATL says:

    i have a question that might, or might not, make a case study in the misuse or the new technology that may be behind bush’s spy activities.
    remember the democrat state legislators who took off for parts unknown (which turned out to be new mexico) to try to stop a tom delay inspired congressional redistricting plan in texas?
    my recollection is that their hideout was discovered by the u.s. dept of homeland security at the request of tom delay.
    is there any info that would rule out, or rule in, the possibility that nsa data collection techniques (whether ordinary or the new-fangled) were used to discovered the legislartors’ hideout?
    as i recall, media reports said they were tracked by their use of their cell phones.

  22. orionATl says:

    even better:
    i just visited No Quarter and read larry johnson’s post “spying on americans and john bolton”. i now recall reading it posted elsewhere.
    another good case study in misusing nsa capability might be:
    was bolton given material gathered by nsa on american citizens?
    does anyone have any specifics on this? thhis shouold be easier to ferret out than info directly from or about fortress nsa.

  23. Patrick Henry says:

    Remember that GWB Told the Aerican People that He Has “POLITICAL CAPITOL” and He’s going to Spend it..
    Right now..these guys control all Levels and Assets of the Government..
    Top to Bottom..
    Potential for Abuses Out of Loyalty to the Boss’s..
    You Bet..!
    Potential for certain names and numbers to be droped into the hands of certain Yes Men Operators..
    You Bets..
    No paper Trails..Eyes Only Stuff.. Right up the pipe Line..
    Thats why we Need Checks and Balances and Oversight..
    Our Tools and Assets belong to the People…We `Paid for them in the First Place..
    They are to be Used as Intended for Legitament National security Purposes..
    an Must Never be Abuses by ANYONE for political or personal reasons beyond those they were legally intended for..

  24. Norbert Schulz says:

    The LA Times tells me that the reason of the Bush crew to bypass FISA and order the NSA to spy was the insistence of the courts to have ‘probably cause’ of a terrorist connection.
    The hurdle of proof seems to have been too high for the tastes of the administration.
    A FISA Court judge just resigned, and it is said he did so in protest.
    Robertson indicated privately to colleagues in recent conversations that he was concerned that information gained from warrantless NSA surveillance could have then been used to obtain FISA warrants. FISA court Presiding Judge Colleen Kollar-Kotelly, who had been briefed on the spying program by the administration, raised the same concern in 2004 and insisted that the Justice Department certify in writing that it was not occurring.
    Interesting to know would be wether the Bush crew lied to the FISA court about where they got their evidence for probable cause from.
    If they did, that would be perjury then, if I am not mistaken – a concerted, provable and impeachable offense by the administration.

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