Not since the disclosures 30 years ago of illegal domestic spying by the US Intelligence Community (IC) has there been so much controversy over eavesdropping on domestic communications as there has been in the wake of the attacks of Sept. 11, 2001— only this time the spying isn’t the result of a delusional administration bent on keeping an eye on detractors and perceived enemies but, rather, of an administration frantically trying to stop terrorists from doing something worse than they did on 9/11. There’s a big difference between then and now, intelligence professionals say.

The debate over this substantive difference in spying hinges on the wartime legitimacy of the snooping. Although many authorities see the eavesdropping as a necessary encroachment on traditional restraints, many others do not. Thus, the legality of the eavesdropping by the National Security Agency (NSA) is going to be fought in Congress and, possibly, in the courts, some of which could, because of their leanings, issue the kind of restrictions on spying opponents seek. The question is: If the laws are changed, will they strengthen, or impair, America’s ability to prevent future 9/11s?

The furor over the legality of NSA’s domestic counterterror intelligence activities dramatizes the plight of post-9/11 America as it engages a paradigm shift in intelligence collection within the confines of an unchanged legal system that was designed to tolerate domestic spying in the hunt for Soviet spies and provocateurs. Because the laws weren’t written for the war on terrorism, they’ve had to be tweaked and reinterpreted. But critics and constitutionalists allege these “fixes” must be integrated into comprehensive new laws that specifically address the post-Cold War threats to the homeland.

Despite the best intentions of the IC to protect America in this dangerous new world of unconventional, asymmetrical threats, a bipartisan chorus of critics complains that this post-Cold War shift in the focus of intelligence has been done without first adequately addressing whether substantive changes need to be made in the laws governing domestic intelligence collection.

While some simply want to rewrite the laws to make the IC compliant with what it is doing, a formidable opposition wants the laws rewritten to prevent the IC from conducting the sort of domestic intelligence it sees as being required to forewarn, if not prevent, future acts of terrorism that could eclipse the attacks on Sept. 11.

In the middle

Earnestly working to break itself in after its first overhaul since 1947, the IC finds itself caught on the front line of a feud that has more to do with partisan politics and extremist privacy rights activism than it does with ensuring that counterterrorists have the tools they need to prevent a major American city from disappearing beneath a mushroom cloud. Many blame a “creeping complacency” that has settled over the land after five years of post-9/11 calm—never mind the IC’s thwarting of terrorist plots that indicate the US is at war.

In the cat-and-mouse game that is the war on terrorism, it is the IC’s unique surveillance technology that is giving the United States the upper hand. While numerous intelligence failures have made headlines, IC officials who regularly talk to HSToday on background assure us that there have been just as many successes—successes largely attributable to the eavesdropping technologies at their disposal.

“We can’t talk about the attacks we have prevented using intelligence provided by the kinds of surveillance we’re talking about here, but I can assure you of this: If we were to lose these capabilities; if we were to have prohibitions put on how we can use them, I’m afraid to have to say we would see our efforts dangerously set back,” one of the sources, a veteran terrorist hunter, told HSToday.

In anticipation of lawmakers’ efforts to reform post-9/11 domestic signals intelligence (SIGINT), IC officials made the rounds on Capitol Hill to explain their successes in the war on terrorism and the vital role homeland eavesdropping plays.

“Everything I have seen indicates [what NSA is doing] is being carried out by the book as objectively as possible,” declared Stanley Sporkin, a retired federal judge and former CIA general counsel, in his opening keynote address at the Second Annual National Intelligence Conference and Exposition (IntelCon) in early May.

Sporkin isn’t alone. Respected past and present senior IC officials also see nothing wrong with NSA’s so-called “warrantless” domestic SIGINT, or its much-maligned link analysis of telephone numbers and other communications databases. Nor do they believe any of these terrorist-hunting activities are being abused, as privacy rights advocates claim.

According to a career military intelligence officer who has had many important commands, including one under Gen. Michael Hayden, former NSA director and now director of Central Intelligence, “Gen. Hayden is one of the most scrupulous and fastidious people I’ve ever known … and can absolutely honestly say that he will only do what’s legal. … For me, it comes down to Gen. Hayden’s character: He’s no SECDEF [Secretary of Defense] stooge and no White House stooge. He calls them as he sees them, with no regard for his career. That’s good enough for me.”

Hayden was the architect of NSA’s domestic SIGINT that has provoked the debate on homeland surveillance by the IC.

Other denizens of the IC do question the legality of what NSA is doing, though, and they specifically question whether laws were deliberately broken by Hayden. The debate ignited a firestorm of recrimination that united Democrats, some Republicans and privacy rights advocates.

“It’s absolutely illegal, one, and, two, NSA’s mission is to target foreign, not domestic anything—that is specifically stated [by law],” a former senior NSA analyst told HSToday.

Chatting outside the conference room where Sporkin spoke, highly regarded former NSA Director Mike McConnell said this unfortunate debate comes at a time when “we are still reshaping the intelligence community—rethinking it; we’re not where we need to be yet.” McConnell said the debate over the right or wrong of what NSA is doing could, in the end, have a detrimental effect on counterterror intelligence collection.

Putting on pressure

As this is written, a contingent of lawmakers are pressing for a blue ribbon investigation of NSA under Hayden—several dozen senators have even asked for a special counsel to probe possible crimes—and several bills are pending that not only would amend laws governing NSA’s operations but also would give federal courts the power to rule on the legality of domestic eavesdropping.

Meanwhile, the National Association of Criminal Defense Lawyers joined the American Civil Liberties Union in its constitutional and statutory challenge to NSA’s surveillance programs, and the Center for Constitutional Rights sued NSA on behalf of itself and its legal staff who represent clients whom they assert fit official public descriptions of surveillance targets.

Additionally, four class-action lawsuits seeking billions in damages were filed against communications companies that reportedly cooperated with NSA as part of the spy agency’s link analysis of calls from domestic phone numbers to phone numbers used by known and suspected terrorists.

In each of the civil legal challenges to NSA’s authority, the government invoked its state secrets privilege, under which it withholds information from discovery when it asserts disclosure would do harm to national security. Although legal authorities have mixed opinions on the outcomes of this defense, William Weaver, a political scientist at the University of Texas, has said, “Once it’s asserted, in almost every instance it stops the case cold.”

Capitol Hill, ultimately, is the place where the most stringent restrictions on domestic intelligence are likely to emerge, and IC officials are already bracing for restraints on programs that could cripple the advances they say they have made in countering terrorism. Consequently, top intelligence officials have been doing their “damnedest” to explain to lawmakers the importance of what they are doing.

“The intelligence community must change to confront the global threats of the 21st century. Legal officials must support the community in achieving the goal of providing the president, Congress, the armed services and other organizations accurate, timely and objective intelligence that protects lives while safeguarding every American’s constitutional and statutory rights,” said Benjamin Powell during the July 19, 2005, hearing on his nomination as general counsel to the Office of Director of National Intelligence (ODNI). At the time, Powell was an associate counsel and special assistant to President George Bush, where, since 2002, he had advised the president on various initiatives related to reform of the IC and creation of the ODNI.

Federal Judge Royce Lamberth—who during his tenure as the chief judge of the Foreign Intelligence Surveillance Court (FISC oversees the IC’s domestic surveillance activities pursuant to the Foreign Intelligence Surveillance Act, or FISA) was the only member of the 11-judge panel to know the details of the NSA’s domestic SIGINT program—said at IntelCon that the program probably only needs a little “tweaking” to bring it into full compliance with FISA.

“The charges leveled against our leaders because of their use of random searches of telecommunications emanating from overseas in my view are misplaced,” Sporkin declared. “Instead of castigating them, they ought to be applauded for being creative in their discharge of their obligations.

“I’m not a rabid individual with leanings to either the far right or far left,” Sporkin said, noting, “I certainly believe that our government has proceeded appropriately in using the latest technology to obtain intelligence that is necessary to protect the well-being of our citizenry.”

A career military intelligence officer who spoke frankly to HSToday agreed. “I’m a die-hard Libertarian, as you know, and I strongly distrust any government intrusion into anything on principle alone. But if anyone thinks there are rooms full of analysts at NSA who have nothing better to do than look at your phone call metadata, they’re seriously naïve about how labor intensive this is. And they have no clue about call volume. What you’re looking for is patterns that allow you to use other tools. And if this helps nab someone before he kills 50,000 people someday, then it’s probably okay.”

“When [the NSA’s domestic SIGINT] program first came into public view, the charge was that the administration had been wholesale violating the basic constitutional rights of the citizenry,” Sporkin pointed out. “After those maligned responded by demonstrating the importance and impartiality of the program, the detractors stopped throwing up the Constitution and reduced their complaints to allegations that, while the administration did not violate the Constitution, they violated FISA by not getting approval of the program from the FISA court.”

He continued: “An objective view of the subject demonstrates that the random, unspecific nature of the program does not lend itself to the traditional matters that are brought before the FISA court. With respect to matters of this kind, the FISA court is really musclebound.”

SIGINT defenders

However, in an open letter to Congress in February published in The New York Review of Books, a group of constitutional law scholars and former government officials pointed out that, although in 2002 the FISA Court of Review suggested in dictum that Congress cannot “encroach on the President’s constitutional power” to conduct foreign intelligence surveillance, it relied on the case of United States v. Truong Dihn Hung, which did not suggest the President’s powers are beyond congressional control. In fact, the Truong case indicated FISA’s restrictions were constitutional and that “the imposition of a warrant requirement, beyond the constitutional minimum described in this opinion, should be left to the intricate balancing performed in the course of the legislative process by Congress and the President.”

During consideration of FISA, the letter’s authors argued, the House noted that “the decision as to the standards governing when and how foreign intelligence electronic surveillance should be conducted is and should be a political decision ... properly made by the political branches of Government together, not adopted by one branch on its own and with no regard for the other.”

“With minor exceptions, FISA authorizes electronic surveillance only upon certain specified showings, and only if approved by a court,” the group contended. “The statute specifically allows for warrantless wartime domestic electronic surveillance—but only for the first fifteen days of a war. It makes criminal any electronic surveillance not authorized by statute; and it expressly establishes FISA and specified provisions of the federal criminal code (which govern wiretaps for criminal investigation) as the ‘exclusive means by which electronic surveillance … may be conducted.’”

The letter’s authors continued: “The Department of Justice concedes that the NSA program was not authorized by any of the above provisions. It maintains, however, that the program did not violate existing law because Congress implicitly authorized the NSA program when it enacted the Authorization for Use of Military Force (AUMF) against al-Qaeda. But the AUMF cannot reasonably be construed to implicitly authorize warrantless electronic surveillance in the United States during wartime, where Congress has expressly and specifically addressed that precise question in FISA and limited any such warrantless surveillance to the first fifteen days of war.”

Pointed arguments—thus, the debate continues.

The political football

“Here is the crux of the problem,” Sporkin said at IntelCon: “Today, virtually everything becomes a political issue. If the national security of this nation is not something that transcends politics, then this nation has serious problems.

“If we had great leaders with the right set of priorities, there is absolutely no need to make the NSA program a political football. What is needed is for the statesmen of this nation to step forward and to come to an agreement on a solution to fix the problem, if one is needed. I submit this is easily remedied. All we need is for a FISC judge to be on duty 24/7 to assure that the program is being administered impartially. It is that simple. Although there may be even better solutions, all that is needed is for a group of bipartisan legislators to get together and workout a satisfactory solution.”

Agreeing with Sporkin was a panoply of veteran heavy-hitting IC officials who candidly discussed intelligence issues following his speech. Each nodded in accord with Sporkin’s notion that having at least one FISC judge on call 24/7 would have gone a long way to alleviate the administration’s need to initiate domestic SIGINT without first obtaining a warrant from FISC. It’s the administration’s position that terrorist communications are time-sensitive and there’s no time to go through the often lengthy, time-consuming process of applying to FISC for a warrant.

“We’re not dealing with Soviet spies here, where we’ve got time to build a case and to learn what they’re up to,” a senior intelligence official said at the conference. “Terrorists’ conversations, on the other hand, are potentially immediate, actionable intelligence there’s not time to get a warrant to listen to.”

Bobby Inman, the former NSA director who in 1978 helped spearhead the effort to pass FISA, doesn’t contest the administration’s claim the FISA court can’t keep up with NSA’s contemporary requirement for real-time SIGINT. But, he said during a public discussion in New York, “my problem is not going to Congress to revise the statute to deal with the problems I didn’t think of in ‘78. We can do what the country needs and work within the law.”

McConnell agreed that Congress should have been more engaged by the administration at the outset on whether FISA needed to be updated, but nevertheless believes NSA’s programs comport with law and are necessary.

“It’s very hard, from what’s been said publicly, for me to figure out why they didn’t try to go to the court. Because when we were there, when we first set up the court, we had a policy of going to the court even if the statute didn’t authorize us to go to court,” former FISC counsel Kenneth Bass told MSNBC “Hardball” host Chris Matthews.

“Why do you think the president chose not to go to the court that was established with your help?” Matthews asked. Bass replied, “We wanted to have the blessing of the courts. I mean, the whole issue is, [is] what you’re doing reasonable? And if you can subject what you’re doing to the judgment of somebody else, an independent judge, who also looks at it [and] says it’s reasonable, you’re just in much better shape, legally, politically, from a moral standpoint, every other way.”

Continuing, Bass, who helped establish FISC in 1978, explained that the administration “didn’t have to go to the courts. There was a 72-hour emergency provision. And then for 72 hours they could have done surveillances and then gone to the court if what they had was something that showed [an] agent of a foreign power.

“There are always provisions built into FISA to try and deal with the horribles, the hypotheticals. There’s a war provision in there, for example, that the president could also have invoked in those early hours.

“The problem,” Bass told Matthews, “is it has gone on for four years, and it’s gone on for four years without Congress knowing about it and without knowing the details and without being in a position to assess its reasonableness.”

Congress in the loop?

Both Republican and Democratic lawmakers said following the disclosure of NSA’s domestic surveillance that they would have supported the program at the outset had the administration simply been up front with them in making the case for rewriting the laws. But the fact is the administration had briefed them, repeatedly.

Documents declassified as part of former Deputy DNI Hayden’s confirmation hearings on his nomination to be CIA director show senior congressional intelligence committee members and other lawmakers received numerous briefings on NSA’s activities. Some, like Sen. Jay Rockefeller (D-W.Va.), vice chairman of the Senate Intelligence Committee, did indeed express concerns about the SIGINT program early on, but no lawmaker acted to amend FISA to address whatever concerns were expressed during the many classified briefings on it.

“Don’t you find it odd that the senators who were actually read into the program had no issues with it? And that the moment they read in the rest of the senators, the quibbling stopped? The real bitching about it was that they weren’t briefed, not that it was illegal,” said the career military intelligence officer, who often works closely with NSA.

In May, the administration next briefed the full House and Senate intelligence committees. Director of National Intelligence John Negroponte even declassified a list of 30 congressional briefings held since the program began that shows more than a dozen members attended each briefing, with 31 members in all having been briefed since the program got underway.

House Intelligence Chairman Rep. Pete Hoekstra (R-Mich.) said the government clearly “has a legal framework for what this program is doing.’’

But the ranking committee Democrat, Rep. Jane Harman (D-Calif.), said the administration’s rationale is wobbly and doesn’t appear to comply with FISA.

NSA’s supporters and detractors have dug in their heels, largely along party lines, with both trotting out expert opinions and supportive evidence to make their respective cases. The sentiments run deep. Fifty-four House members have called for a special counsel to investigate perceived NSA abuses, declaring “the Bush Administration’s actions are a direct violation of the law and a gross misuse of the executive branch’s power that upsets the checks and balances which underpin our system of government.”

Conversely, supporters argue just as forcefully that the administration is on solid legal ground, although most concede the administration should have had the foresight to see the need to change the IC’s legal bulwark and proactively seek to change outdated laws in order to let the IC do its job and not risk a forced showdown with Congress or the courts.

The past and present intelligence chieftains who proffered off-the-cuff sentiments following Sporkin’s address agreed that if the appropriate congressional oversight committees had been doing their job, the legal issues now being debated would already have been addressed during classified sessions. They also tersely criticized Congress for failing to reform its oversight process as recommended by the 9/11 Commission.

A former director of a military intelligence agency was particularly critical of lawmakers. “Congress screwed up by not streamlining oversight as the [9/11] Commission recommended—they only went halfway with post 9/11 reforms.” This “bogs down oversight and, ultimately, the functioning of intelligence.”

According to Attorney General Alberto Gonzales, Congress has been reluctant to change the laws, further complicating the situation and dragging out the legality debate. “We have had discussions with Congress in the past as to whether or not FISA could be amended to allow us to adequately deal with this kind of threat, and we were advised that that would be difficult, if not impossible,” Gonzales stated during a press briefing last December.

Congress has come across as wishy-washy on the matter. It didn’t vocally raise a ruckus until after the NSA’s domestic SIGINT programs, of which they already were aware, were made public. Then, during Hayden’s confirmation hearings in May, senators indicated they are less concerned about the legality of what NSA is doing than over Hayden’s qualifications.

Similarly, when Powell was being considered as the ODNI General Counsel, Democratic senators deliberately held up his confirmation because of a feud that had nothing to do with his confirmation, stalling for months the IC reform process Congress had mandated, which infuriated Negroponte.

“We understand there is a long-running dispute, but it is unrelated to the nominee,” Negroponte scolded the Senate Intelligence Committee in a letter to its chairman. “In the meantime, the ODNI is without a General Counsel during the Office’s crucial formative months.”

He continued: “I am deeply troubled that the ODNI is forced to function without the General Counsel position. ... This is especially serious given that I am creating a new organization with coordination and oversight responsibilities across the organizations within the IC. Unlike the case with many long-standing agencies where a staffed legal infrastructure is in place, I am being denied my chief legal officer during a critical standup phase of a new office.”

Sen. Arlen Specter (R-Pa.), a vocal critic of what NSA is doing and who had threatened to hold up Hayden’s confirmation with his own hearings, introduced the National Security Surveillance Act of 2006 in March that would explicitly require FISC to sign off on all future and existing surveillance programs. The bill has been held up due to conservative opposition.

To placate this opposition, Specter agreed to allow the court to review NSA’s domestic SIGINT program only after hearing a challenge from a plaintiff with legal standing.

Capitol Hill observers say the agreement could allow the committee to approve Specter’s bill, as well as a bill sponsored by Sen. Mike DeWine (R-Ohio) that would give NSA’s surveillance program legal authority.

DeWine’s bill would not give Congress authority to order the administration to stop NSA’s surveillance, but instead would allow NSA to conduct domestic SIGINT for 45 days per case, after which the Justice Department would either have to discontinue the surveillance, seek a warrant from FISC or persuade House and Senate leaders that, although there is insufficient evidence for a warrant, continued surveillance “is necessary to protect the United States.” The bill also would allow peeved lawmakers to hold special oversight hearings, and even allow them to secretly slash funding for the programs under scrutiny.

Specter and Democrats object to allowing executive branch agencies the latitude for unrestricted action for 45 days, however.

Meanwhile, Senate Intelligence Committee Chairman Sen. Pat Roberts (R-Kan.) wants a newly appointed subcommittee to be given time “to complete their review of [NSA’s] program before moving ahead with legislation,” noting “procedural requirements included in the bill may limit the program’s effectiveness.”

Rockefeller said in a statement it is “too soon to consider legislation until the oversight subcommittee can answer critical questions about the program.”

Analysis

It’s not at all clear whether any of these bills will make it to the president’s desk this year.

Meanwhile, some very optimistic Democrat heavy-hitters are hoping pending legislation can be stonewalled until after the upcoming mid-term congressional elections, which they anticipate will add enough numbers to their ranks to give them the power to move legislation that would severely restrict the domestic activities of the IC—not an unreasonable expectation should Democrats gain significant control, and especially if they win the White House in 2008.

That sends shudders down the spines of counterterror officials. They fear that if the IC is reined in the way Democrats want, in a manner reminiscent of the flogging the IC was given in the 1960s and ’70s, the nation will be straddled with an IC overhauled for appropriate service in the post-Cold War era, but lacking the horsepower to do its job.

Expressing his frustration with the missteps that caused the furor over NSA’s domestic SIGINT in the first place, Sporkin said, “The citizens of this nation know what is taking place. We are not fools. The citizenry is sick and tired of all this political bickering, especially in areas involving the security of this nation, where politics has no place. So my message this afternoon is simply a request to our leaders that this nation’s security is much too precious to make it a political football.

“We are in a war against terrorism,” Sporkin reminded his listeners, noting that “bipartisanship was a major factor in our successful conduct of [World War II] and the peace that followed. … We need that kind of leadership at this juncture in our national history. The Constitution is a formidable document and its Bill of Rights provides great protections for our citizens. But as the Supreme Court had said, the Constitution of the United States ‘is not a suicide pact.’”

Sporkin said, “My crystal ball tells me that it is only a matter of time before there is another major terrorist attack in the United States. We must take extraordinary measures to prepare for that time.”

The senior military intelligence officer who spoke to HSToday added: “Ben Franklin was right about the line between liberty and security: You’re always safest to err on the side of liberty. In the abstract, that works. But when it’s your family at risk, you start to think harder about it and start to make intelligent tradeoffs.” HST