LISTENING INby
Seymour M. HershPosted 2006-05-22
After the attacks of
September 11, 2001, it was clear that the intelligence community needed to get more aggressive and improve its performance. The Administration, deciding on a quick fix, returned to the tactic that got intelligence agencies in trouble thirty years ago: intercepting large numbers of electronic communications made by Americans. The
N.S.A.'s carefully constructed rules were set aside.
The N.S.A. also programmed computers to map the connections between telephone numbers in the United States and suspect numbers abroad, sometimes focussing on a geographic area, rather than on a specific person-for example, a region of Pakistan. Such calls often triggered a process, known as
"chaining," in which subsequent calls to and from the American number were monitored and linked. The way it worked, one high-level Bush Administration intelligence official told me, was for the agency "
to take the first number out to two, three, or more levels of separation, and see if one of them comes back"-if, say,
someone down the chain was also calling the original, suspect number. As the chain grew longer,
more and more Americans inevitably were drawn in.
But the point, obviously, was to identify terrorists.
"After you hit something, you have to figure out what to do with it," the Administration intelligence official told me. The next step, theoretically, could have been to get a suspect’s name and go to the fisa court for a warrant to listen in.
One problem, however, was the volume and the ambiguity of the data that had already been generated. ("There's too many calls and not enough judges in the world," the former senior intelligence official said.) The agency
would also have had to reveal how far it had gone, and
how many Americans were involved. And there was a
risk that the court could shut down the program.
Instead, the
N.S.A. began, in some cases,
to eavesdrop on callers (often using computers to
listen for key words) or to investigate them using traditional police methods. A government consultant told me that tens of thousands of Americans had had their calls monitored in one way or the other. "In the old days, you needed probable cause to listen in," the consultant explained. "But you could not listen in to generate probable cause.
What they're doing is a violation of the spirit of the law." One C.I.A. officer told me that the Administration,
by not approaching the FISA court early on, had made it much harder to go to the court later.
On May 11th, President Bush, responding to the
USA Today story, said, "If Al Qaeda or their associates are making calls into the United States, or out of the United States, we want to know what they are saying." That is valid, and a well-conceived,
properly supervised intercept program would be an important asset. "Nobody disputes the value of the tool," the former senior intelligence official told me. "
It's the unresolved tension between the operators saying, 'Here's what we can build,' and the legal people saying, 'Just because you can build it doesn't mean you can use it.' "It's a tension that the President and his advisers have not even begun to come to terms with.
Note :: Added emphasis - mine
