On Sunday, President George W. Bush, justifying his decision to behave as if the Foreign Intelligence Surveillance Act of 1978 applied only to other people (when in fact it was passed specifically to restrain the executive), told reporters: "I was elected to protect the American people from harm."[1] -- Where on earth did he get this pernicious idea? -- The only thing George W. Bush was elected to do -- if in fact he was lawfully elected, but that is a separate question -- is to perform the duties laid out in Article II of the U.S. Constitution, among them to "take Care that the Laws be faithfully executed," which he has manifestly failed to do. -- On Tuesday, Rep. Nancy Pelosi of California, released the (redacted) text of an Oct. 11, 2001, letter she wrote to the NSA director expressing concern about the NSA's domestic operations.[2] -- The response she received from Lt. Gen. Michael V. Hayden, then the agency's head, revealed that the NSA was already expanding its activities, independently of orders from the president, in the aftermath of September 11....
1.
Washington
BUSH DEFENDS SPY PROGRAM AND DENIES MISLEADING PUBLIC
By Eric
Lichtblau
New York Times
January 2, 2006
Page A1
http://www.nytimes.com/2006/01/02/politics/02spy.html
WASHINGTON -- President Bush continued on Sunday to defend both the legality and the necessity of the National Security Agency's domestic eavesdropping program, and he denied that he misled the public last year when he insisted that any government wiretap required a court order.
"I think most Americans understand the need to find out what the enemy's thinking, and that's what we're doing," Mr. Bush told reporters in San Antonio as he visited wounded soldiers at the Brooke Army Medical Center.
"They attacked us before, they'll attack us again if they can," he said. "And we're going to do everything we can to stop them."
Mr. Bush's strong defense of the N.S.A. program, which he authorized in 2002 to allow some domestic eavesdropping without court warrants, came as a leading Democratic lawmaker called on the administration to make available current and former high-level officials to explain the evolution of the secret program.
Senator Arlen Specter, a Pennsylvania Republican and chairman of the Judiciary Committee, has already pledged to make hearings into the program one of his highest priorities.
In a letter to Mr. Specter on Sunday, Senator Charles E. Schumer, a New York Democrat who is also on the committee, said the panel should also explore "significant concern about the legality of the program even at the very highest levels of the Department of Justice."
The New York Times reported Sunday that James B. Comey, then deputy attorney general, refused to sign on to the recertification of the program in March 2004.
That prompted two of Mr. Bush's most senior aides -- Andrew H. Card Jr., his chief of staff, and Alberto R. Gonzales, then the White House counsel and now the attorney general -- to make an emergency hospital visit to John Ashcroft, then the attorney general, to try to persuade him to give his authorization, as required by White House procedures for the program.
Officials with knowledge of the events said that Mr. Ashcroft also appeared reluctant to sign on to the continued use of the program, and that the Justice Department's concerns appear to have led in part to the suspension of the program for several months. After a secret audit, new protocols were put in place at the N.S.A. to better determine how the agency established the targets of its eavesdropping operations, officials have said.
Asked Sunday about internal opposition, President Bush said: "This program has been reviewed, constantly reviewed, by people throughout my administration. And it still is reviewed.
"Not only has it been reviewed by Justice Department officials, it's been reviewed by members of the United States Congress," he said. "It's a vital, necessary program."
But Mr. Schumer, in an appearance on "Fox News Sunday," said the White House should have to explain the apparent internal dissent over the program.
"I hope the White House won't hide behind saying 'executive privilege, we can't discuss this,' " Mr. Schumer said. "That's the wrong attitude."
"A discussion, perhaps a change in the law," he said, "those are all legitimate. Unilaterally changing the law because the vice president or president thinks it's wrong, without discussing the change, that's not the American way."
But Senator Mitch McConnell of Kentucky, the second-ranking Republican in the Senate, said on the same television program that Mr. Bush had acted within the Constitution to protect the country from another terrorist attack. Mr. McConnell said the focus now should be on identifying who disclosed the existence of the classified operation.
The Justice Department said Friday that it had opened an investigation into the disclosure of the N.S.A. program, which was first reported by the Times on Dec. 15.
Mr. McConnell said of the disclosure, "This needs to be investigated, because whoever leaked this information has done the U.S. and its national security a great disservice."
As Mr. Bush continued to defend the program in San Antonio, he was asked about a remark he made in Buffalo in 2004 at an appearance in support of the antiterrorism law known as the USA Patriot Act, where he discussed government wiretaps.
"Any time you hear the United States government talking about wiretap," Mr. Bush said in Buffalo, "a wiretap requires a court order."
He added: "Nothing has changed, by the way. When we're talking about chasing down terrorists, we're talking about getting a court order before we do so."
Democrats have seized on the remark, made more than two years after Mr. Bush authorized the N.S.A. to conduct wiretaps without warrants, in charging that the president had misled the public.
Asked about that charge on Sunday, Mr. Bush said: "I was talking about roving wiretaps, I believe, involved in the Patriot Act. This is different from the N.S.A. program.
"The N.S.A. program is a necessary program. I was elected to protect the American people from harm. And on Sept. 11, 2001, our nation was attacked. And after that day, I vowed to use all the resources at my disposal, within the law, to protect the American people, which is what I have been doing and will continue to do."
Mr. Bush also emphasized that the program was "limited" in nature and designed to intercept communications from known associates of Al Qaeda to the United States. He said several times that the eavesdropping was "limited to calls from outside the United States to calls within the United States."
This assertion was at odds with press accounts and public statements of his senior aides, who have said the authorization for the program required one end of a communication -- either incoming or outgoing -- to be outside the United States. The White House, clarifying the president's remarks after his appearance, said later that either end of the communication could in fact be outside the United States.
The Times has reported that despite a prohibition on eavesdropping on phone calls or e-mail messages that are regarded as purely domestic, the N.S.A. has accidentally intercepted what are thought to be a small number of communications in which each end was on American soil, due to technical confusion over what constitutes an "international" call.
Officials also say that the N.S.A., beyond eavesdropping on up to 500 phone numbers and e-mail addresses at any one time, has conducted much larger data-mining operations on vast volumes of communication within the United States to identify possible terror suspects. To accomplish this, the agency has reached agreements with major American telecommunications companies to gain access to some of the country's biggest "switches" carrying phone and e-mail traffic into and out of the country.
2.
Washington
FILES SAY AGENCY INITIATED GROWTH OF SPYING EFFORT
By Eric
Lichtblau and Scott Shane
New York Times
January 4, 2006
Page A1
http://www.nytimes.com/2006/01/04/politics/04nsa.html
WASHINGTON -- The National Security Agency acted on its own authority, without a formal directive from President Bush, to expand its domestic surveillance operations in the weeks after the Sept. 11 attacks, according to declassified documents released Tuesday.
The N.S.A. operation prompted questions from a leading Democrat, Representative Nancy Pelosi of California, who said in an Oct. 11, 2001, letter to a top intelligence official that she was concerned about the agency's legal authority to expand its domestic operations, the documents showed.
Ms. Pelosi's letter, which was declassified at her request, showed much earlier concerns among lawmakers about the agency's domestic surveillance operations than had been previously known. Similar objections were expressed by Senator John D. Rockefeller IV, Democrat of West Virginia, in a secret letter to Vice President Dick Cheney nearly two years later.
The letter from Ms. Pelosi, the House minority leader, also suggested that the security agency, whose mission is to eavesdrop on foreign communications, moved immediately after the Sept. 11 attacks to identify terror suspects at home by loosening restrictions on domestic eavesdropping.
The congresswoman wrote to Lt. Gen. Michael V. Hayden, then head of the N.S.A., to express her concerns after she and other members of the House and Senate Intelligence Committees received a classified briefing from General Hayden on Oct. 1, 2001, about the agency's operations.
Ms. Pelosi, then the ranking Democrat on the House Intelligence Committee, said, "I am concerned whether, and to what extent, the National Security Agency has received specific presidential authorization for the operations you are conducting."
The answer, General Hayden suggested in his response to Ms. Pelosi a week later, was that it had not. "In my briefing," he wrote, "I was attempting to emphasize that I used my authorities to adjust N.S.A.'s collection and reporting."
It is not clear whether General Hayden referred at the briefing to the idea of warrantless eavesdropping. Parts of the letters from Ms. Pelosi and General Hayden concerning other specific aspects of the spy agency's domestic operation were blacked out because they remain classified. But officials familiar with the uncensored letters said they referred to other aspects of the domestic eavesdropping program.
Bush administration officials said on Tuesday that General Hayden, now the country's No. 2 intelligence official, had acted on the authority previously granted to the N.S.A., relying on an intelligence directive known as Executive Order 12333, issued by President Ronald Reagan in 1981. That order set guidelines for the collection of intelligence, including by the N.S.A.
"He had authority under E.O. 12333 that had been given to him, and he briefed Congress on what he did under those authorities," said Judith A. Emmel, a spokeswoman for the Office of the Director of National Intelligence. "Beyond that, we can't get into details of what was done."
In 2002, President Bush signed an executive order specifically authorizing the security agency to eavesdrop without warrants on the international communications of Americans inside the United States who the agency believed were connected to Al Qaeda. The disclosure of the domestic spying program last month provoked an outcry in Washington, where Congressional hearings are planned.
General Hayden's October 2001 briefing was one of the first glimpses into the expanded but largely hidden role that the N.S.A. would assume in combating terrorism over the last four years.
In the briefing, Ms. Pelosi wrote to General Hayden, "you indicated that you had been operating since the Sept. 11 attacks with an expansive view of your authorities" with respect to electronic surveillance and intelligence-gathering operations.
"You seemed to be inviting expressions of concern from us, if there were any," Ms. Pelosi wrote, but she said that the lack of specific information about the agency's operations made her concerned about the legal rationale used to justify it.
One step that the agency took immediately after the Sept. 11 attacks, Ms. Pelosi wrote in her letter, was to begin forwarding information from foreign intelligence intercepts to the F.B.I. for investigation without first receiving a specific request from the bureau for "identifying information."
In the past, under so-called minimization procedures intended to guard Americans' privacy, the agency's standard practice had been to require a written request from a government official who wanted to know the name of an American citizen or a person in the United States who was mentioned or overheard in a wiretap.
In the weeks after the Sept. 11 attacks, the agency began monitoring telephone calls and e-mail messages between the United States and Afghanistan to track possible terror suspects. That program led to the broader eavesdropping operation on other international communications, officials have said.
The agency has also tapped into some of the nation's main telecommunications arteries to trace and analyze large volumes of phone and e-mail traffic to look for patterns of possible terrorist activity.
Marc Rotenberg, director of the Electronic Privacy Information Center, said the new documents, along with previous reports of objections to the program from Senator Rockefeller and James B. Comey, the former deputy attorney general, underscored the need for a comprehensive investigation.
"There's an increasing picture of concern, if not outright opposition, within the government," Mr. Rotenberg said. "But we can't second-guess anyone's actions on a document-by-document basis," particularly if the documents are released only in part, he added.
The way the N.S.A.'s role has expanded has prompted concern even from some of its former leaders, like Bobby R. Inman, a retired admiral who was N.S.A. director from 1977 to 1981. Admiral Inman said that while he supported the decision to step up eavesdropping against potential terrorists immediately after the 2001 attacks, the Bush administration should have tried to change the Foreign Intelligence Surveillance Act to provide explicit legal authorization for what N.S.A. was doing.
"What I don't understand is why when you're proposing the Patriot Act, you don't set up an oversight mechanism for this?" Admiral Inman said in an interview. "I would have preferred an approach to try to gain legislation to try to operate with new technology and with an audit of how this technology was used."