December 16, 2005 | Spying on American Soil

The National Security Agency has long prided itself on restricting the use of its awesome snooping powers to foreign agents and foreign countries. Now, according to reports in the New York Times and the Washington Post, the NSA has turned its ears to listening in on American soil, without having gotten judicial approval first.

Instead, according to NSA expert James Risen and the Washington Post's Dan Eggen, President Bush signed a secret order in 2002 allowing the NSA to track communications originating in the United States on up to 500 people at a time.

Under a presidential order signed in 2002, the intelligence agency has monitored the international telephone calls and international e-mail messages of hundreds, perhaps thousands, of people inside the United States without warrants over the past three years in an effort to track possible "dirty numbers" linked to Al Qaeda, the officials said. The agency, they said, still seeks warrants to monitor entirely domestic communications.

The previously undisclosed decision to permit some eavesdropping inside the country without court approval was a major shift in American intelligence-gathering practices, particularly for the National Security Agency, whose mission is to spy on communications abroad. As a result, some officials familiar with the continuing operation have questioned whether the surveillance has stretched, if not crossed, constitutional limits on legal searches.

Full story in New York Times by Risen.

This is the second time in a week that the government has been shown to be conducting surveillance on American soil without judicial oversight.

Earlier this week, NBC revealed that a Pentagon spying unit was keeping a secret database that included information on, among other groups, an anti-war Quaker group.

The government has long had the authority to wiretap and track foreign agents and spies, through the ultra-secret Foreign Intelligence Surveillance court, which almost never rejects applications and the Patriot Act specifically made these orders easier to get. In 2004 alone, the court authorized 1,754 wiretap orders.

It's also hard to understand how the order was necessary since in a time of war, the FISA court routinely authorizes emergency orders.

Senator Dianne Feinstein, a hawkish Democrat, had this to say today:

In the absence of authority under FISA, Americans have, until now, been confident that such surveillance was prohibited. This is made explicit in Chapter 119 of Title 18 of the Criminal Code, which makes it a crime for any person, without authorization, to intentionally intercept any wire, oral or electronic communication.

As a member of the Intelligence and Judiciary Committees, I have been repeatedly assured by this Administration that their efforts to combat terrorism were being conducted within the law - specifically, within the parameters of the Foreign Intelligence Surveillance Act.

In fact, we have changed that law, at the request of the Administration in the USA-Patriot Act, to allow for a more aggressive, but still lawful, defense against terrorism.

I have never been more disturbed than I am by this story. If true, it calls into question the integrity and credibility of our nation’s commitment to the rule of law.

We have always been a nation governed by laws, and these allegations, if true, fly in the face of this bedrock constitutional principle.

I turn your attention to my first real blog post, which argued, ala the 9/11 Commission, that a powerful civil liberties board was necessary to keep tabs on anti-terrorism projects because Congress has failed to do so.

Such a board somewhat exists in name, but it is underfunded, toothless and staffed by non-experts and at least one member with a conflict-of-interest.

Here's what I wrote then and I stand by those words even more today:

Regardless of one's position on the Patriot Act and the necessity of increased anti-terrorism powers, it is impossible to ignore that many people fear that the government is abusing its newfound powers.

That perception is only strengthened by the Bush Administration's unwillingness to share information.

How often and for what reasons has the FBI used the National Security Letters provisions of the Patriot Act? That provision gives the FBI wide authority to issue itself administrative subpoenas in order to compel businesses (including ISPs) to provide evidence and business documents to investigators.

How many times has the FBI used that provision? (editor note: The Washington Post reports in 2005 that the FBI has used NSLs some 30,000 times.) We don't know, since the FBI has decided that even aggregate statistics about the use of NSLs are classified. The ACLU, which is suing the FBI over the use of NSLs, has heavily redacted FBI documents that indicate the NSLs are widely used. Now just because they are widely used, that does not mean the FBI is abusing that power.

But how are we to know, given the Attorney General has decided to share as little information as possible? We know how often the government uses regular wiretaps, but that is only because a 25 year old law forces the FBI to report to Congress about how it is using that power every year.

Yet, Congress has been unwilling to require similar public reports about other powers and programs. Their oversight of anti-terrorism programs and powers has been abysmal and the executive branch has continually stonewalled and resisted their meager efforts.

This is exactly why an independent, powerful and balanced civil liberties board is necessary.

There is no real debate that the government should be fighting militant Islamic extremism (which is how I think the government defines the war on terrorism, explicitly excluding domestic right-wing anti-abortion, anti-federal government militants).

If that movement is left unchecked and allowed to grow, millions around the world could lose their lives and liberty to religious extremists who hate modernity.

Our civil liberties, not our economic system, are what should define us as a nation -- the right to petition for the redress of grievances, the right to travel without undue restriction, the right to worship any or no god, the right to be safe in our homes and papers from unjustified government searches, our right to walk the streets without the fear of a cop demanding identification and our right to speak freely in opposition to government.

So to the extent the government needs expanded powers to fight terrorists, so too do we need expanded powers to protect our civil liberties.

For more on this story from a smart lawyer (and a spirited debate in the comments), check Orin Kerr's post.

Posted by Ryan Singel at December 16, 2005 11:19 AM

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Tracked on December 17, 2005 09:26 AM