WASHINGTON – Days after the Sept. 11 attacks, the head of the National Security Agency met his work force at the nation’s eavesdropping and code-breaking headquarters at Fort Meade, Md., near Washington, for a pep talk.
“I told them that free people always had to decide where to draw the line between their liberty and their security,” Air Force Lt. Gen. Michael Hayden told lawmakers a year later. “I noted that the attacks would almost certainly push us as a nation more toward security.”
What Hayden, now the deputy director of national intelligence, didn’t say then was how far President Bush had pushed the NSA. Saturday, Bush confirmed a New York Times report that the agency was using its immense eavesdropping power on targets within the USA without getting the warrants required by a 1978 law.
“This authorization is a vital tool in our war against the terrorists,” Bush said, adding that it was legal and constitutional.
Lawmakers of both parties have disputed that last point.
For the NSA, Bush’s executive order authorizing the interception of electronic communication without warrants, signed in late 2001, represents a dramatic shift from restrictions on domestic spying imposed after exposure in the mid-1970s of NSA operations against U.S. citizens.
The White House says the president has legal authority granted by a congressional joint resolution passed Sept. 14, 2001, that allows the president to use whatever force he deems necessary to stop acts of terrorism. A 2002 legal brief by the Justice Department argued the president has authority to conduct wiretaps in cases of national security.
Opponents note that the Constitution’s Fourth Amendment prohibits “unreasonable searches and seizures” and requires a show of probable cause before warrants are issued. Also, the Telecommunications Act of 1934 and Title 18 of the U.S. Criminal Code have provisions limiting or outlawing the interception of electronic communications.
The Supreme Court has never precisely determined the line between presidential powers in wartime and legal protections, said Elizabeth Rindskopf Parker, dean of the University of the Pacific McGeorge School of Law and the NSA’s former general counsel. Bush’s order, Parker said, was “a serious mistake” on political and practical grounds.
“Whether or not his theory is correct, the thing that is most important … is that you must go forward in a way that ensures you have public confidence and trust,” Parker said.
Before Bush’s secret order, the NSA operated under strict limits on domestic intelligence collection. The Foreign Intelligence Surveillance Act of 1978 set up a secret federal court that must approve requests for the NSA to conduct surveillance against anyone in the USA suspected of being an “agent of a foreign power,” such as a terrorist group.
In 2000, Hayden made the first appearance by an NSA chief in decades before a congressional committee, presenting briefing charts declaring the agency “operates under the rule of law” and conducts surveillance on U.S. targets only with a warrant. At that time, NSA faced public accusations that new technology enabled it to sift through huge quantities of electronic communications looking for terrorists, drug dealers or other potential threats. After Sept. 11, the criticism came from the opposite direction, as NSA was accused of failing to collect and translate intercepts aggressively enough to catch the 9/11 plotters.