King-George-gate: More on illegal spying on Americans prior to 9/11

by eriposte

[This is part of my ongoing coverage on King-George-gate: Myths v. Realities]

Jason Leopold has a major new article at Truthout - "NSA Spying Evolved Pre-9/11" - that clarifies and updates a rather terse and confusing original version he published a few days ago. His new article, which is sourced to information from NSA and former Bush administration officials (see Truthout editor Marc Ash's blog post on this), says that some degree of illegal spying/wiretapping on Americans started prior to 9/11. This is not the first story to hint at this and I've discussed an earlier one (from Slate) previously. This article however is the first to provide some necessary detail lacking in previous reports.

Let's start with this extract (emphasis mine):

In the months before 9/11, thousands of American citizens were inadvertently swept up in wiretaps, had their emails monitored, and were being watched as they surfed the Internet by spies at the super-secret National Security Agency, former NSA and counterterrorism officials said.

The NSA, with full knowledge of the White House, crossed the line from routine surveillance of foreigners and suspected terrorists into illegal activity by continuing to monitor the international telephone calls and emails of Americans without a court order. The NSA unintentionally intercepts Americans' phone calls and emails if the agency's computers zero in on a specific keyword used in the communication. But once the NSA figures out that they are listening in on an American, the eavesdropping is supposed to immediately end, and the identity of the individual is supposed to be deleted. While the agency did follow protocol, there were instances when the NSA was instructed to keep tabs on certain individuals that became of interest to some officials in the White House.

What sets this type of operation apart from the unprecedented covert domestic spying activities the NSA had been conducting after 9/11 is a top secret executive order signed by President Bush in 2002 authorizing the NSA to target specific American citizens. Prior to 9/11, American citizens were the subject of non-specific surveillance by the NSA that was condoned and approved by President Bush, Vice President Dick Cheney, and Secretary of Defense Donald Rumsfeld, according to former NSA and counterterrorism officials.

So much for that "illegal spying on Americans could have prevented 9/11" BS, huh?

Leopold goes on to highlight how senior WH officials (especially The New Tricky Dick) were pushing for more spying on specific people identified in raw NSA transcripts - including other WH officials and people in the State Department (now why does that sound familiar?):

But after Bush was sworn in as president, the way the NSA normally handled those issues started to change dramatically. Vice President Cheney, as Bob Woodward noted in his book Plan of Attack, was tapped by Bush in the summer of 2001 to be more of a presence at intelligence agencies, including the CIA and NSA.

"Given Cheney's background on national security going back to the Ford years, his time on the House Intelligence Committee, and as secretary of defense, Bush said at the top of his list of things he wanted Cheney to do was intelligence," Woodward wrote in his book about the buildup to the Iraq war. "In the first months of the new administration, Cheney made the rounds of the intelligence agencies - the CIA, the National Security Agency, which intercepted communications, and the Pentagon's Defense Intelligence Agency. "

It was then that the NSA started receiving numerous requests from Cheney and other officials in the state and defense departments to reveal the identities of the Americans blacked out or deleted from intelligence reports so administration officials could better understand the context of the intelligence.

Separately, at this time, Cheney was working with intelligence agencies, including the NSA, to develop a large-scale emergency plan to deal with any biological, chemical or nuclear attack on US soil.

Requesting that the NSA reveal the identity of Americans caught in wiretaps is legal as long as it serves the purpose of understanding the context of the intelligence information.

But the sources said that on dozens of occasions Cheney would, upon learning the identity of the individual, instruct the NSA to continue monitoring specific Americans caught in the wiretaps if he thought more information would be revealed, which crossed the line into illegal territory.

Cheney advised President Bush of what had turned up in the raw NSA reports, said one former White House official who worked on counterterrorism related issues.

"What's really disturbing is that some of those people the vice president was curious about were people who worked at the White House or the State Department," one former counterterrorism official said. "There was a real feeling of paranoia that permeated from the vice president's office and I don't think it had anything to do with the threat of terrorism. I can't say what was contained in those taps that piqued his interest. I just don't know." [emphasis mine]

An NSA spokesperson would not comment for this story.

This is a significant story. I suggest you read it in its entirety here. The wording of it is still slightly confusing though - so I've sent Leopold an email asking him to clarify the contents a bit. Specifically, I've asked him the following:

Can you confirm that these requests from Cheney and others pertained to names of people that were caught in wiretapping that was not specifically authorized by FISA?

This is a general question that applies to the whole article because as you say warrantless wiretapping was legal as long as the names of the U.S. persons caught in the tapping were destroyed. Are you saying that during the Clinton years those names were indeed destroyed, but after 9/11 these names were sometimes not destroyed even though there was no FISA warrant to retain their names or continue spying on them?

I'll post an update once I hear back from him. But, let me add that it is clear that something changed at the NSA in early 2001 and William Arkin hinted at this (using rather vague wording) on his Washington Post blog Early Warning:

In the spring of 2001, NSA began to change direction in its counter-terrorism targeting under Lt. Gen. Hayden: rather than analyzing the mass of what was collected hoping for the gem in the growing mass of available material, NSA began a methodical process of dissecting terrorist target communications practices and network to determine what to collect. This is commonly referred to at NSA as hunting rather than gathering.  It was a procedure that was in its infancy on 9/11. 

So what happened? The perceived shackles of domestic collection were removed, the gathering process began again to overwhelm the hunting process, new software, data-mining and link analysis methods were applied to isolate potential domestic targets.  The beginnings of an era of greater openness and candidness about NSA's challenges were halted and the agency disappeared into the administration's secret war. 

Is Arkin also suggesting that increased domestic spying occurred prior to 9/11? If so, was it illegal? It's not entirely clear.

UPDATE 2/14/06: Jason Leopold wrote back and confirmed the following:

The names of people caught in the wiretapping WERE NOT included in any FISA request.

and

I have no evidence to suggest that Clinton folks did not go through the FISA court process when requesting taps on people they wanted to spy on. Janet Reno, from what I was told, was very diligent in making sure the FISA process was followed by DOJ and FBI.