Bush may have bypassed federal wiretap law to deploy more high-tech methods of surveillance.
When President Bush directed the National Security Agency to secretly eavesdrop on American citizens, he transferred an authority previously under the purview of the Justice Department to the Defense Department and bypassed the very laws put in place to protect Americans against widespread government eavesdropping. The reason may have been to tap the NSA’s capability for data mining and widespread surveillance.
Illegal wiretapping of Americans is nothing new. In the 1950s and ’60s, in a program called “Project Shamrock,” the NSA intercepted every single telegram coming in or going out of the United States. It conducted eavesdropping without a warrant on behalf of the CIA and other agencies. Much of this became public during the 1975 Church Committee hearings and resulted in the now famous Foreign Intelligence Surveillance Act (FISA) of 1978.
The purpose of this law was to protect the American people by regulating government eavesdropping. Like many laws limiting the power of government, it relies on checks and balances: one branch of the government watching the other. The law established a secret court, the Foreign Intelligence Surveillance Court (FISC), and empowered it to approve national-security-related eavesdropping warrants. The Justice Department can request FISA warrants to monitor foreign communications as well as communications by American citizens, provided that they meet certain minimal criteria.
The FISC issued about 500 FISA warrants per year from 1979 through 1995, a rate that has slowly increased since — 1,758 were issued in 2004. The process is designed for speed and even has provisions by which the Justice Department can wiretap first and ask for permission later. In all that time, only four warrant requests were ever rejected, all in 2003. (We don’t know any details, of course, as the court proceedings are secret.)
FISA warrants are carried out by the FBI, but in the days immediately after the terrorist attacks, there was a widespread perception in Washington that the FBI wasn’t up to dealing with the new threats — they couldn’t uncover plots in a timely manner. So, instead, the Bush administration turned to the NSA. It had the tools, the expertise, the experience, and so was given the mission.
The NSA’s ability to eavesdrop on communications is exemplified by a technological capability called Echelon. Echelon is the world’s largest information “vacuum cleaner,” sucking up a staggering amount of voice, fax and data communications — satellite, microwave, fiber-optic, cellular and everything else — from all over the world: an estimated 3 billion communications per day. These communications are then processed through sophisticated data-mining technologies, which look for simple phrases like “assassinate the president” as well as more complicated communications patterns.
Supposedly Echelon only covers communications outside of the United States. Although there is no evidence that the Bush administration has employed Echelon to monitor communications to and from the U.S., this surveillance capability is probably exactly what the president wanted and may explain why the administration sought to bypass the FISA process of acquiring a warrant for searches.
Perhaps the NSA just didn’t have any experience submitting FISA warrants, so Bush unilaterally waived that requirement. And perhaps Bush thought FISA was a hindrance — in 2002 there was a widespread but false belief that the FISC got in the way of the investigation of Zacarias Moussaoui (the presumed “20th hijacker”) — and bypassed the court for that reason.
Most likely, Bush wanted a whole new surveillance paradigm. You can think of the FBI’s capabilities as “retail surveillance”: It eavesdrops on a particular person or phone. The NSA, on the other hand, conducts “wholesale surveillance.” It, or more exactly its computers, listens to everything. An example might be to feed the computers every voice, fax, and email communication, looking for the name “Ayman al-Zawahiri.” This type of surveillance is more along the lines of Project Shamrock, and not legal under FISA. As Sen. Jay Rockefeller wrote in a secret memo after being briefed on the program, it raises “profound oversight issues.”
It is also unclear whether Echelon-style eavesdropping would prevent terrorist attacks. In the months before 9/11, Echelon noticed considerable “chatter”: bits of conversation suggesting some sort of imminent attack. But because much of the planning for 9/11 occurred face-to-face, analysts were unable to learn details.
The fundamental issue here is security, but it’s not the security most people think of. James Madison famously said: “If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary.” Terrorism is a serious risk to our nation, but an even greater threat is the centralization of American political power in the hands of any single branch of the government.
Over 200 years ago, the Framers of the U.S. Constitution established an ingenious security device against tyrannical government: They divided government power among three different bodies. A carefully thought out system of checks and balances in the executive branch, the legislative branch and the judicial branch ensured that no single branch became too powerful.
After watching tyrannies rise and fall throughout Europe, this seemed like a prudent way to form a government. Courts monitor the actions of police. Congress passes laws that even the president must follow. Since 9/11, the United States has seen an enormous power grab by the executive branch. It’s time we brought back the security system that has protected us from government for over 200 years.
Bruce Schneier writes, speaks and consults on computer security. His latest book is "Secrets and Lies: Digital Security in a Networked World." More Bruce Schneier.
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