At the end of last year, with the appearance of James Risen's State of War: The Secret History of the CIA and the Bush Administration (Free Press), it was revealed that after 9/11 President George W. Bush authorized the National Security Agency--the low-profile but huge intelligence outfit based in Maryland at Fort George C. Meade that monitors electronic communications--to eavesdrop on communications between individuals outside the United States and citizens inside the country. Previously such wiretapping could be done only with the authorization of a special court established by a 1978 law, the Foreign Intelligence Surveillance Act (FISA).
The Bush White House has argued that the wiretapping was justified by circumstances and was both legal--under the congressional resolution that authorized military action against Iraq--and constitutional, as part of the inherent powers of the president as commander in chief [see photo, " "]. Critics argue that the wiretapping was unequivocally contrary to the 1978 law, as well as unconstitutional. In an open letter to Congress, 14 constitutional scholars said that "it is always open to the president...to seek to change the law," but that "the president cannot simply violate criminal laws behind closed doors because he deems them obsolete or impracticable."
Journalist James Bamford [ ] is the author of two books about the ultrasecretive NSA, The Puzzle Palace (Houghton-Mifflin, 1982), and Body of Secrets (Doubleday, 2001). His A Pretext for War (Doubleday), about the decision to invade Iraq, was published in 2004. For the record: he is party, with four other people, in a lawsuit brought against the Bush administration by the American Civil Liberties Union (ACLU), in New York. The suit seeks to halt the NSA's warrantless domestic eavesdropping and to determine whether the electronic communications of parties to the suit have been monitored.
Were you surprised by the disclosure that President Bush had in effect authorized wiretapping of people in the United States without court warrant?
Yes, because for 30 years the NSA had managed to go about its eavesdropping obeying the laws.
Had your NSA sources told you that after 9/11 they were staying well within the limits of the 1978 law?
I interviewed the director of the NSA a number of times, and I've talked to a lot of people there, and none of them indicated that they were unhappy with FISA or going around it.
So, did you feel betrayed?
I don't know if "betrayed" is the right word. I felt concerned, because I had spent a lot of time defending the NSA in front of the European Parliament [in Strasbourg, France] and other places where I felt that the agency was being accused wrongly. I felt a sense of disillusionment, I guess.
What do you think prompted the president to authorize warrantless surveillance of U.S. citizens living in the United States?
After 9/11, there were a number of meetings within the intelligence community. I think that the NSA came up with the idea that the one area where they're not able to tap into very efficiently is the American citizenry, because they have to go through the FISA court. That means every time the agency wants to eavesdrop on somebody, they have to show probable cause that the individual is somehow connected to terrorism. Apparently the NSA suggested dropping that standard and instead using a much lower standard, called "reasonable belief."
Do you feel this 1978 law and the court it established was an impediment to the efficient collection of intelligence, even though that law permits warrants to be obtained after the fact?
I don't think it was; I'm saying I think the NSA thought it was. They thought it impeded [collecting intelligence] on the large numbers [of people] they were looking for. The average number of people in the United States that the NSA was targeting normally was about a dozen at any one time, but according to The Washington Post recently, the numbers are up to about 5000 now. Whether that's at one time or cumulatively, those numbers have obviously expanded greatly because of the criteria by which they now target people.
Risen says in his book that because of the enormous growth in transit telephone traffic in the United States--let's say phone calls originating in Europe and terminating in Asia, without any U.S. citizens being involved--the NSA already has standing arrangements with all the major telephone companies to tap into that transit traffic. Do you think Risen is correct?
Yes. Congress has been moving in that direction for the last decade. It passed the Communications Assistance for Law Enforcement Act (CALEA) in 1994.
CALEA requires the major telecom companies to establish a kind of back door for authorized wiretapping, does it not?
That's right. It requires telecommunication companies to take the U.S. government's electronic eavesdropping capabilities into consideration when planning future telecommunication advances.
Does the NSA have equipment at the major exchange points of the various carrier systems, like where a call is routed from one carrier's network into the other's, let's say from Verizon's network into AT&T's network, or at the, so-called carrier hotels, like 1 Wilshire, in Los Angeles, or 60 Hudson St., in New York City?
I think the NSA has always had cooperation [from the major carriers] to get a lot of the international communications--the calls into and out of the United States--at certain key hubs, and I think they had equipment there to do that.
So when George Bush gave the agency the new authorization to listen in on U.S. citizens, all they had to do was throw some switches at those hubs to start picking up on communications that previously were barred?
Yes. CALEA didn't eliminate the requirements to get a warrant, but it did make it physically easier for the law enforcement intelligence agencies to gain access.
What about so-called metadata, things like what's in the header fields of e-mail?
If the NSA is just targeting headers for certain suffixes--you know, dot-whatever for a particular country--they can do that. But if they're targeting my personal e-mail address, because it's a personal identifier and because I'm a U.S. citizen, they would have to get a FISA warrant for it.
So before 9/11, let's say they had been looking at that header traffic and noticed a funny-looking pattern of intensive e-mailing going on among 20 people of Saudi extraction at flight schools in the United States and some parties outside the United States. Could they then have gone to the FISA court and said, "We want to get authority to look and see what's in those messages"?
Sure, plus the FISA law applies to only a very limited number of people: it applies to U.S citizens in the United States and to green card holders. If you're a visitor, someone in the country who's just visiting, and you're not a U.S. citizen, and you don't hold a green card, then you're fair game under existing FISA rules.
Going back to the numbers tapped without warrant under the new presidential authorization, if, say, the actual number is about 500 at any one time, as Risen suggests, would it be such an encumbrance to seek a warrant from the FISA court for each tap?
I think the issue is that the people they're listening to have nothing or very little to do with terrorism. The NSA isn't able to go into court and show probable cause that these 500 people are connected in some way to a foreign government or to a terrorist organization.
With this reduced standard, the agency may be starting to listen in on conversations that have nothing to do with terrorism?
It's exactly what they did before the FISA court was created. They eavesdropped on antiwar protesters, people like [the pediatrician] Dr. Benjamin Spock and [the folk singer] Joan Baez; they eavesdropped on journalists and writers who were writing about the NSA.
Do you have any reason to think that you personally have been tapped?
I fit into all the hot-button categories: journalists who write about intelligence and communicate with sources outside the United States.
What do you hope to accomplish with the ACLU suit?
The No. 1 goal is to shut this program of unwarranted surveillance down. The Fourth Amendment to the U.S. Constitution mentions that phrase "probable cause"; that's a constitutional requirement, and if you reduce it you're not only violating a FISA court statute, you're also violating the Constitution.
You're a person who has worked for many years to build up a network of outstanding contacts and connections at agencies like the NSA and the CIA. In joining this ACLU lawsuit, don't you jeopardize your relations with your sources?
My sources don't talk to me because I'm friendly with them; they talk to me because they feel I'm independent. I don't write to curry favor, and most of what I've written in the past has angered somebody in that community.