EPIC Spotlight on Surveillance

January 2006:
Legality of NSA’s Secret Eavesdropping Program Is Suspect and Cost is Unknown

The federal government is spending an increasing amount of taxpayer money on surveillance technology and projects at the expense of other government programs. EPIC’s “Spotlight on Surveillance” scrutinizes these surveillance projects. For more information, see previous Spotlights on Surveillance.

Last month, the New York Times reported that President George W. Bush had issued an order in 2002 allowing the National Security Agency unprecedented authority to conduct domestic surveillance.¹ This month, the National Security Agency, the largest intelligence organization in the federal government, is under the Spotlight.

The National Security Agency was created under a directive by President Harry S. Truman in 1952.⁵ James Risen explains in his 2006 book “State of War: The Secret History of the CIA and the Bush Administration,” which details President Bush’s secret NSA order in 2002, that President Truman created the agency “in order to consolidate the government’s code-breaking and code-making capabilities, and initially there were few legal limits on the NSA’s ability to conduct domestic surveillance in the United States.”⁶ This changed after congressional investigations in 1975 and 1976.

In 1975, the Senate Select Committee to Study Governmental Operations With Respect to Intelligence Activities (more commonly known as the Church committee because it was headed by Idaho Sen. Frank Church) and House Select Intelligence Committee (called the Pike committee after its chairman, N.Y. Rep. Otis Pike) began investigating reports of possible illegal, improper, or unethical activities conducted by the FBI, the CIA, and the NSA.⁷ The committees learned of two important NSA domestic surveillance operations: Minaret and Shamrock.

The NSA, originally created to spy on foreign enemies, began a domestic watch list program called Minaret in the 1960s.⁸ The FBI, Secret Service, the military and the CIA added names to this list of threats to national security.⁹ This list included U.S. citizens or groups involved in civil rights and anti-war activities -- including civil rights leader and minister Dr. Martin Luther King, Jr.¹⁰ In 1975, NSA Director Lt. Gen. Lew Allen Jr., testified before the Church committee and revealed that the NSA intercepted the phone calls of 1,200 Americans citizens’ over six years.¹¹

The congressional committees also learned of another domestic surveillance operation conducted during the 1950s and 1960s called “Shamrock.” This involved an agreement where the major U.S. telegraph companies gave the NSA every single telegram sent to or from the United States.¹² This surveillance was conducted with a warrant – the NSA merely asked the companies for the records and they complied.¹³


NSA employees were discouraged from discussing the warrantless eavesdropping program with news media, according to documents obtained earlier this month by EPIC under the Freedom of Information Act. Source: National Security Agency

These revelations led to the passage of the Foreign Intelligence Surveillance Act (FISA) in 1978.¹⁴ FISA established a separate legal regime for foreign intelligence surveillance information in furtherance of U.S. counterintelligence. (Title III, also called the “Wiretap Statute,” outlined the strict guidelines regulating ordinary law enforcement surveillance.¹⁵) Congress specifically stated that FISA and Title III “shall be the exclusive means by which electronic surveillance ... and the interception of domestic wire, oral, and electronic communications may be conducted.”¹⁶

James Bamford, in his 2001 book “Body of Secrets: Anatomy of the Ultra-Secret National Security Agency,” explains that FISA “for the first time outlined what NSA was and was not permitted to do. The new statute outlawed wholesale, warrantless acquisition of raw telegrams such as had been provided under Shamrock. It also outlawed the arbitrary compilation of watch list containing the names of Americans. Under FISA, a secret federal court was set up, the Foreign Intelligence Surveillance Court. In order for NSA to target an American citizen or a permanent resident alien -- a “green card” holder -- within the United States, a secret warrant must be obtained from the court. To get the warrant, NSA officials must show that the person they wish to target is either an agent of a foreign power or involved in espionage or terrorism.”¹⁷ Subsequent executive orders further limited the role of the NSA in the United States.¹⁸

James Risen’s book, the New York Times report last month, and subsequent media reports have detailed President Bush’s secret 2002 order allowing the NSA to conduct warrantless surveillance of international telephone and Internet communications on American soil.¹⁹ President Bush disclosed the order to only a few Congressional leaders and the presiding judge of the Foreign Intelligence Surveillance Court, which issues warrants for domestic surveillance.²⁰ These officials were told not to discuss the secret surveillance program with anyone else, making it difficult to question or provide oversight for the program.²¹

NSA employees also were discouraged from discussing the warrantless eavesdropping program with news media, according to documents obtained earlier this month by EPIC under the Freedom of Information Act.²² The documents, internal messages from the agency’s director to staff, also defended the domestic surveillance program.²³

The current NSA program echoes the Shamrock surveillance program – including the cooperation of U.S. communications companies. “Following President Bush’s order, U.S. intelligence officials secretly arranged with top officials of major telecommunications companies to gain access to large telecommunications switches carrying the bulk of America’s phone calls. The NSA also gained access to the vast majority of American e-mail traffic that flows through the U.S. telecommunications system,” according to Risen.²⁴


Last year, the average cost of a wiretap was $63,011, up 1 percent from the average cost in 2003. Source: Administrative Office of the United States Courts

In a national radio address on Dec. 17, 2005, a day after the first media reports about the program, President Bush defended the warrantless surveillance program. He said top administration officials, including the attorney general and White House counsel, review the program every 45 days.²⁵ After the review, President Bush must then reauthorize the program to keep it active.²⁶ He has reauthorized the domestic surveillance program more than 30 times, and he said, “I intend to do so for as long as our nation faces a continuing threat from al Qaeda and related groups.”²⁷

A December 22, 2005 letter from the Department of Justice to members of the House and Senate Intelligence Committees discussed the purported legal authority for President Bush’s secret order. The letter contends that the President has the authority to “order foreign intelligence surveillance within the United States” and “[t]he President’s constitutional authority to direct the NSA to conduct the activities he described is supplemented by statutory authority under the AUMF [Authorized Use of Military Force resolution, passed by Congress, September 18, 2001].”²⁸ The Justice Department also stated that the order was consistent with FISA.²⁹

However, analyses by the nonpartisan Congressional Research Office and a group of 13 legal experts and former government officials questioned the Justice Department’s assessment. Both analyses concluded that the Congress expressly intended for the government to seek warrants from a special Foreign Intelligence Surveillance Court before engaging in such surveillance when it passed legislation creating the court in 1978.³⁰ President Bush’s assertion that Congress authorized such eavesdropping to detect and fight terrorists does not appear to be supported by the special resolution that Congress approved after the Sept. 11, 2001, terrorist attacks, which focused on authorizing the president to use military force, the analyses said.

“It appears unlikely that a court would hold that Congress has expressly or impliedly authorized the NSA electronic surveillance operations here,” and the Justice Department’s legal justification “does not seem to be as well-grounded as the tenor of that letter suggests,” according to the CRS report.³¹ The legal scholars and former government officials stated, “Although the program’s secrecy prevents us from being privy to all of its details, the Justice Department’s defense of what it concedes was secret and warrantless electronic surveillance of persons within the United States fails to identify any plausible legal authority for such surveillance. Accordingly the program appears on its face to violate existing law.”³²

If such surveillance of phone calls and e-mail is necessary, permission can be obtained from the Foreign Intelligence Surveillance Court, which reviews applications and grants orders for foreign intelligence gathering. Administration officials have said that the requirement to apply for warrants from the FISC hampers its intelligence operations and that sometimes they cannot afford the delay created by the warrant applications.³³ However, FISA allows for retroactive warrant requests – up to 72 hours after they’ve begun.³⁴ The standard of proof required for warrants from the FISC is low; applicants need only show probable cause that the subject is an “agent of a foreign power.”³⁵ Also, historically, the FISC only has rejected a handful of requests; in fact, it rejected none of the applications for secret surveillance in 2004.³⁶

Another justification administration officials have put forth for bypassing the FISC with the NSA domestic surveillance program has to do with the vastness of the operation. Because the number of telephone and Internet communications being monitored was so large, the officials did not believe that they could obtain fast approval for all of them.³⁷ The secret program did create a large list of phone numbers and e-mail addresses linked to possible terrorists. This list regularly was sent to the FBI, but virtually all of that data led to dead ends or innocent Americans, according to officials interviewed by the New York Times.³⁸ “F.B.I. officials repeatedly complained to the spy agency that the unfiltered information was swamping investigators,” according to the New York Times.³⁹

Under the federal wiretap laws, there are important reporting requirements that provide information about electronic surveillance in the United States. For example, the number of applications and orders for electronic surveillance must be reported annually to the Administrative Office of the United States Court and to Congress by the U.S. Attorney General.⁴⁰ Under Title III, the number and cost of interceptions of wire, oral, or electronic communication conducted by federal and state agencies must be reported to Congress annually by the Administrative Office of the United States Court.⁴¹

Last year’s reports showed that surveillance activity conducted by the United States has continued to rise dramatically since the Sept. 11, 2001 terrorist attacks, reaching an all-time high in 2004. According to the Department of Justice’s 2004 Foreign Intelligence Surveillance Act Annual Report, the Foreign Intelligence Surveillance Court granted 1,754 applications for secret surveillance in 2004, more than in any previous year.⁴² No applications were denied in whole or in part.⁴³

A report issued by the Administrative Office showed that state and federal courts authorized 1,710 interceptions of wire, oral, and electronic communications in 2004, an increase of 19 percent over intercepts approved in 2003 and the greatest number ever authorized in a single year.⁴⁴ Federal officials requested 730 wiretap applications in 2004, a 26 percent increase over the number requested in 2003.⁴⁵ However, there are no reports provided on the use of the NSA’s new surveillance authority to either the Congress or the public.

There are also public reporting requirements that document the cost of legal surveillance in the United States by federal agents. These annual reports provide information for the Congress and the public to assess the value of electronic surveillance. For example, The Administrative Office’s report showed that the average cost of state and federal wiretaps in 2004 was $63,011, up one percent from 2003.⁴⁶ The average cost of federal wiretaps (that were reported) was $75,527, an increase of 5 percent from 2003.⁴⁷ However, the NSA’s secret domestic eavesdropping program was not reported under the requirements of either Title III or FISA; therefore, as the agency’s budget is unknown and the agency fails to comply with the requirements of other federal agencies that conduct surveillance in the United States, the amount of taxpayer dollars spent by the NSA on this program is unknown.

In 1975, when Sen. Frank Church opened the committee hearings that would reveal the Shamrock and Minaret domestic surveillance programs, he said,

We have a particular obligation to examine the NSA, in light of its tremendous potential for abuse. . . . The interception of international communications signals sent through the air is the job of NSA; and, thanks to modern technological developments, it does its job very well. The danger lies in the ability of the NSA to turn its awesome technology against domestic communications.⁴⁸

The National Security Agency again will undergo Congressional scrutiny on February 6, when the Senate Judiciary Committee begins its hearings examining the justifications of the Bush administration and the actions of the NSA in conducting this secret domestic eavesdropping program.⁴⁹ Apart from the important questions raised by the Committee Members about the legality of the NSA program and the consequences of a possible determination that public officials violated the FISA, EPIC also urges the oversight committee to consider the importance of establishing reporting requirements for the NSA that are comparable to other federal agencies that conduct surveillance in the United States.

¹ James Risen and Eric Lichtblau, Bush Lets U.S. Spy on Callers Without Courts, N.Y. Times, Dec. 16, 2005 at A1.

² Aftergood ex rel. Fed’n of Am. Scientists v. CIA, No. 98-2107, 1999 U.S. Dist. LEXIS 18135 (D.D.C. Nov. 12, 1999).

³ Bob Woodward, Plan of Attack 213 (2004).

⁴ National Security Agency Frequently Asked Questions: About NSA, http://www.nsa.gov/about/about00018.cfm (last visited Jan. 16, 2006).

⁵ President Truman wrote a memorandum about intelligence activities and issued “National Security Council Intelligence Directive Number 9, Revised” on Oct. 24, 1952 (Memorandum on Communications Intelligence Activities (Oct. 24, 1952), available at http://www.nsa.gov/truman/truma00001.pdf); On Nov. 4, 1952, less than two weeks after President Truman issued the memorandum, the NSA was created (Thomas L. Burns, Center for Cryptologic History, The Origins of the National Security Agency 1940-1952, 107 (1990), available at http://www.thememoryhole.org/nsa/origins_of_nsa.htm).

⁶ James Risen, State of War: The Secret History of the CIA and the Bush Administration 42 (2006).

⁷ James Bamford, Body of Secrets: Anatomy of the Ultra-Secret National Security Agency 434 (2001).

⁸ Id. at 428-29; Cam Simpson, NSA uproar is ‘deja vu all over again,’ Chic. Trib., Jan. 9, 2006, at A8.

⁹ Cam Simpson, supra note 8.

¹⁰ Bamford at 428-29, supra note 7.

¹¹ Intelligence Activities – The National Security Agency and Fourth Amendment Rights: Hearings Before the Select Committee to Study Governmental Operations With Respect to Intelligence Activities, 94^th Cong. (1975) (hereinafter “Church Committee Hearings”).

¹² Bamford at 434, supra note 7.

¹⁴ 50 U.S.C. § 1801 et. seq. (1978).

¹⁵ 18 U.S.C. § 2510 et. seq. (1968).

¹⁷ Bamford at 440, supra note 7.

¹⁹ See Risen and Lichtblau, supra note 1; Dan Eggen, Bush Authorized Domestic Spying, Wash. Post, Dec. 16, 2005 at A1; Peter Baker, President Says He Ordered NSA Domestic Spying, Wash. Post, Dec. 18, 2005 at A1; Dan Eggen and Charles Lane, Hearings Demanded On Domestic Spying, Wash. Post, Dec. 18, 2005 at A4; Douglas Jehl, Among Those Told of Program, Few Objected, N.Y. Times, Dec. 23, 2005 at A1; Carol D. Leonnig, Surveillance Court Is Seeking Answers, Wash. Post, Jan. 5, 2006 at A2; and Carol D. Leonnig, Report Rebuts Bush on Spying, Wash. Post, Jan. 7, 2006 at A1.

²⁰ Risen and Lichtblau, supra note 1; Risen at 56, supra note 6.

²² Lt. Gen. Keith B. Alexander, NSA Director, Director’s Message “NSA in the Media – ‘Intelligence Gathering Practices’” (Dec. 16, 2005) and Director’s Message “NSA in the Media UPDATE – ‘Intelligence Gathering Practices’” (Dec. 22, 2005) obtained by EPIC under the Freedom of Information Act, available at http://www.epic.org/privacy/nsa/messages.pdf.

²⁴ Risen at 48, supra note 6.

²⁸ Letter from Assistant Attorney General William E. Moschella to Chairman Roberts and Vice Chairman Rockefeller of the Senate Select Committee on Intelligence and Chairman Hoekstra and Ranking Minority Member Harman of the House Permanent Select Committee on Intelligence (Dec. 22, 2005), available at http://www.epic.org/privacy/terrorism/fisa/nsaletter122205.pdf.

³⁰ Memorandum from Elizabeth B. Bazan and Jennifer K. Elsea on Presidential Authority to Conduct Warrantless Electronic Surveillance to Gather Foreign Intelligence Information (Jan. 5, 2006), available at http://www.epic.org/privacy/terrorism/fisa/crs_analysis.pdf; Letter from Curtis A. Bradley, Richard and Marcy Horvitz Professor of Law, Duke University, et. al, to the Hon. Bill Frist, Majority Leader, United States Senate, et. al, (Jan. 9, 2006), available at http://www.epic.org/privacy/terrorism/fisa/dojreply.pdf.

³¹ Bazan and Elsea Memorandum at 44, supra note 30.

³² Letter from Bradley, et. al, at 2, supra note 30.

³³ Risen and Lichtblau, supra note 1.

³⁶ Letter from Assistant Attorney General William E. Moschella to Speaker of the House of Representatives J. Dennis Hastert (Apr. 1, 2005), available at http://www.fas.org/irp/agency/doj/fisa/2004rept.pdf.

³⁷ Risen at 48, supra note 6.

³⁸ Lowell Bergman, Eric Lichtblau, Scott Shane, and Don Van Natta Jr., Spy Agency Data After Sept. 11 Led F.B.I. to Dead Ends, N.Y. Times, Jan. 17, 2006 at A1.

⁴² Moschella letter, supra note 40.

⁴⁴ Leonidas Ralph Mecham, Director, Administrative Office of the United States Courts, 2004 Wiretap Report at 7 (April 2005), available at http://www.uscourts.gov/wiretap04/contents.html.

⁴⁸ Church Committee Hearings, supra note 11.

⁴⁹ Dan Eggen, White House Dismissed ’02 Surveillance Proposal, Wash. Post, Jan. 26, 2006 at A4.