In the weeks following 9/11, the NSA collected names and information on thousands of Americans, long before Bush gave them explicit authorization to wiretap without the need to obtain warrants from the FISA court. And then, out of fear that their illegal domestic spying would get them in trouble, they destroyed all the information they had gathered on Americans. This according to a January 5th report by Jason Leopold published at Truthout.org:
The National Security Agency, the top-secret spy shop that has been secretly eavesdropping on Americans under a plan authorized by President Bush four years ago, destroyed the names of thousands of Americans and US companies it collected on its own volition following 9/11, because the agency feared it would be taken to task by lawmakers for conducting unlawful surveillance on United States citizens without authorization from a court, according to a little known report published in October 2001 and intelligence officials familiar with the NSA’s operations.
NSA lawyers advised the agency to immediately destroy the names of thousands of American citizens and businesses it collected shortly after 9/11 in its quest to target terrorists in this country. NSA lawyers told the agency that the surveillance was illegal and that it could not share the data it collected with the CIA or other intelligence agencies.
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The revelation raises new questions about the legality of the NSA’s domestic spying initiative, authorized by President Bush in 2002, which has come under intense scrutiny by Republicans and Democrats and will likely lead to Congressional hearings.
The fact that the NSA has purged the names of thousands of Americans and businesses it collected after 9/11 suggests that at the time there were questions about the constitutionality of the agency’s efforts to combat terrorism by secretly spying on Americans.
Still, the intelligence destruction angered CIA and FBI officials as well as staff members of the House and Senate intelligence committees who feared that leads on potential terrorists would be permanently lost.
“In heated discussions with the CIA and congressional staff, NSA lawyers have turned down requests to preserve the intelligence because the agency’s regulations prohibit the collection of any information on US citizens,” the [Houston] Chronicle reported [in October, 2001].
It also appears that the NSA may have taken these steps as the result of direct criticism from Nancy Pelosi. This January 3, 2006 story in the Houston Chronicle suggests that it may have been her letter of October 11, 2001 that triggered the internal legal review by the NSA:
The letter from Pelosi, the House minority leader, also suggested that the National Security Agency, whose mission is to eavesdrop on foreign communications, moved immediately after the Sept. 11 attacks to identify terror suspects at home by loosening restrictions on domestic eavesdropping.
The congresswoman wrote to Lt. Gen. Michael Hayden, then head of the NSA, to express her concerns after she and other members of the House and Senate Intelligence Committees received a classified briefing from Hayden on Oct. 1, 2001.
Pelosi, then the ranking Democrat on the House Intelligence Committee, said, “I am concerned whether, and to what extent, the National Security Agency has received specific presidential authorization for the operations you are conducting.” The answer, Hayden suggested in his response to Pelosi a week later, was that it had not.
“In my briefing,” he wrote, “I was attempting to emphasize that I used my authorities to adjust NSA’s collection and reporting.”
Two things of note here. First, the NSA was certainly aware that their activities violated current law, since their own attorneys informed them of that fact. That they would take the dramatic step of purging their files of the information they illegally obtained without waiting for marching orders from the Bush administration first speaks volumes as to how serious they took the charge that they’d violated existing law.
Second, we may see here the genesis for Bush’s direct authorization ordering the NSA to undertake warrantless surveillance of American citizens. No doubt, Bush and Cheney determined that never again would they be stymied from obtaining intellegence information, domestic or foreign, based on what they must have conceived as trivial objections by Government lawyers and leading Democrats in Congress. We know that officials at both CIA and FBI were furious with the NSA for it “data dump” from this report in the Boston Globe, dated October 27, 2001:
”There are some people in law enforcement who are very unhappy about it, because they need investigative leads,” said Vincent Cannistraro, former director of counterterrorism at the CIA.
The NSA spies on foreigners and foreign governments, using high-tech operations to intercept phone calls, e-mail messages, and faxes around the world; collecting data from satellite operations; and translating documents in foreign languages.
By law, the NSA cannot spy on a citizen of the United States, an immigrant lawfully admitted to this country for permanent residence, or a US corporation. But it can, with court permission, target foreigners inside the United States, including diplomats.
If, in the course of surveillance, NSA analysts learn that it involves a US citizen or company, ”they are dumping that information right then and there,” said the second official, speaking on condition of anonymity.
”There’s a view of a lot of people in the intelligence community who say, `Wait a minute, it could be useful to the FBI; let them look at it.’ It’s been the subject of some heated discussion between the agency [CIA] and the NSA,” said the official.
For Bush and Cheney, opposition from the FISA court to many of their post 9/11 wiretap requests must have only hardened their determination to avoid both Congressional and Judicial oversight with respect to their domestic intelligence gathering program. And so they found a compliant legal advisor in John Yoo, who was more than willing to justify warrantless surveillance on Americans in contravention of the law based on some grand and amorphous inherent power the President acquired in his role as Commander in Chief.
They then took that legal opinion and shoved it down the throat of anyone, at the NSA or elsewhere in the government, who might object to such an expansion of Executive Branch power. By allowing the President to spy on his fellow Americans without the force of any law, and without any check on that power (save what Bush himself determined was necessary), the Bush administration handed Osama bin Laden his first and greatest victory. He caused the United States to abandon its democratic and constitutional principles out of fear of a scattered band of extreme Islamic terrorists. He caused us to begin the slow slide from Republic to police state. Even the Soviets with their thousands of nuclear warheads could never manage that.
