In the days after 9/11, General Michael Hayden, the director of the N.S.A., was under intense pressure to intercept communications between Al Qaeda leaders abroad and potential terrorists inside the U.S. According to the inspector general’s report, George Tenet, the director of the C.I.A., told Hayden that Vice-President Dick Cheney wanted to know “if N.S.A. could be doing more.” Hayden noted the limitations of the fisa law, which prevented the N.S.A. from indiscriminately collecting electronic communications of Americans. The agency was legally vacuuming up just about any foreign communications it wanted. But when it targeted one side of a call or an e-mail that involved someone in the U.S. the spy agency had to seek permission from the fisa court to conduct surveillance. Tenet later called Hayden back: Cheney wanted to know what else the N.S.A. might be able to do if Hayden was given authority that was not currently in the law.Officials apparently believed that, because the U.S. numbers were hidden, even from the analysts, the idea might pass legal scrutiny. But the Justice Department thought otherwise, and in December of 1999 it advised the N.S.A. that the plan was tantamount to electronic surveillance under fisa: it was illegal for the N.S.A. to rummage through the phone records of Americans without a probable cause. Nonetheless, the concept of bulk collection and analysis of metadata was born. During several meetings at the White House in the fall of 2001, Hayden told Cheney that the fisa law was outdated. To collect the content of communications (what someone says in a phone call or writes in an e-mail) or the metadata of phone and Internet communications if one or both parties to the communication were in the U.S., he needed approval from the fisa court. Obtaining court orders usually took four to six weeks, and even emergency orders, which were sometimes granted, took a day or more. Hayden and Cheney discussed ways the N.S.A. could collect content and metadata without a court order.
The Vice-President’s lawyer, David Addington, drafted language authorizing the N.S.A. to collect four streams of data without the fisa court’s permission: the content of Internet and phone communications, and Internet and phone metadata. The White House secretly argued that Bush was allowed to circumvent the fisa law governing domestic surveillance thanks to the extraordinary power granted by Congress’s resolution, on September 14th, declaring war against Al Qaeda. On October 4th, Bush signed the surveillance authorization. It became known inside the government as the P.S.P., the President’s Surveillance Program. Tenet authorized an initial twenty-five million dollars to fund it. Hayden stored the document in his office safe.
Over the weekend of October 6, 2001, the three major telephone companies—A. T. & T., Verizon, and BellSouth, which for decades have had classified relationships with the N.S.A.—began providing wiretap recordings of N.S.A. targets. The content of e-mails followed shortly afterward. By November, a couple of weeks after the secret computer servers were delivered, phone and Internet metadata from the three phone companies began flowing to the N.S.A. servers over classified lines or on compact disks. Twenty N.S.A. employees, working around the clock in a new Metadata Analysis Center, at the agency’s headquarters, conducted the kind of sophisticated contact chaining of terrorist networks that the Clinton Justice Department had disallowed. On October 31st, the cover term for the program was changed to stellarwind.
Nearly everyone involved wondered whether the program was legal. Hayden didn’t ask his own general counsel, Robert Deitz, for his opinion until after Bush signed the order. (Deitz told Hayden he believed that it was legal.) John Yoo, a Justice Department lawyer, wrote a legal opinion, the full text of which has never been disclosed, arguing that the plan was legal. When Deitz tried to obtain the text, Addington refused his request but read him some excerpts over the phone. Hayden never asked for the official legal opinion and never saw it, according to the inspector general’s report. In May, 2002, the N.S.A. briefed Judge Colleen Kollar-Kotelly, the incoming chief of the Foreign Intelligence Surveillance Court, about the program. She was shown a short memo from the Department of Justice defending its legality, but wasn’t allowed to keep a copy. The N.S.A.’s inspector general later said he found it “strange that N.S.A. was told to execute a secret program that everyone knew presented legal questions, without being told the underpinning legal theory.”
by Ryan Lizza, New Yorker | Read more:
Image: Heads of State
