Early NSA Snooping: Had the General Gone Off the Reservation?

During the Clinton administration, the NSA, under its director, Lieutenant General Michael Hayden, had been ramping up its technological capability to do large-scale electronic snooping. The NSA also changed its public posture, from the secret "No Such Agency," to a P.R. conscious organization more willing to discuss and admit what it does; willing to itself raise and discuss the inherent conflict of a powerful and secretive spy agency with American values; and willing and able to meaningfully and reasonably discuss the letter and spirit of the Foreign Intelligence Surveillance Act and other law as public safeguard on its power.

On October 1, 2001, three weeks after the attacks, General Hayden gave his last-ever briefing to the full House intelligence committee. The President cast aside full intelligence committee notification, which has been legally required since 1947, on October 5.

General Hayden spoke, in his briefing, of his "expansive view" of his authority to the conduct electronic surveillance. He was waving about a copy of Reagan-era Executive Order 12333 as "authorization" of this expansive snooping ability.

Rep. Nancy Pelosi picked up, hey, the guy doesn't have even Presidential authority for this, he is doing it on his own say so. So she wrote him a letter asking about authorization.

The unitary executive is an oddly bureaucratic thing. The process of passing laws is spelled out by the Constitution, but what's a new-school C.E.O. of America to do? A C.E.O. writes memos to his staff. The memo authorizing something secret is called a finding. "I, George W. Bush, under the authority granted to me by the Constitution, find it necessary to the security of the United States, and do hereby order the dogs of war unleashed on the Muslim taxi drivers and/or terrorist insurgents held in our prison camps in Afghanistan, Iraq, Cuba, or anyplace else on the globe we might have such things."

Congresswoman Pelosi picked up that General Hayden had gotten no memo from President Bush, no finding, telling him he now had this expansive power of electronic surveillance. Had the General really gone off the reservation in this way; did he not have even so much as Presidential approval to get the spying program started?

The Argument Against

The exchange with Pelosi clearly implies he had no authorization. But that's not how this administration operates. Illegal plans come from and are approved very near the top. Some newspaper articles have vague references to an October 2001 spying directive. Hayden must have been lying or some such, to cover up what was going on. We just know, intuitively, that the President had to have approved it.

The Argument For

The exchange with Pelosi clearly shows he had no authorization. The especially strong we-can-do-whatever-we-want philosophy had started taking hold by this time, the John Yoo memo of September 25, but on torture, it doesn't seem to have taken solid hold, there was some back and forth about it, until early 2002.

Official illegal detention and torture approval January 2002, official illegal spying approval about the same time: it seems a reasonable timeline. The Pelosi-Hayden exchange may be taken at face value. Hayden's only authorization in October, when he had technology ready to unleash, but legally restrained, was his own say so under, I'm guessing, a very twisted reading to find a loophole in section 1.8(e) of E.O. 12333. The philosophy behind his twisted reading, that with the authorization to use force, the DoD of its own may do anything, is very much counter to the administration's own philosophy, that with the authorization to use force, the President may do anything.

Illegal warrantless spying of U.S. persons started with the NSA in October 2001. Illegal warrantless spying of U.S. persons did not get presidential approval until early 2002.

•  NSA claims to be a "Responsible Citizen"

  Pre their public site: http://www.nsa.gov/...

  Americans expect NSA to conduct its missions within the law. But given the inherently secret nature of those missions, how can Americans be sure that the Agency does not invade their privacy?

  The 4th Amendment of the Constitution demands it... oversight committees within all three branches of the U.S. government ensure it... and NSA employees, as U.S. citizens, have a vested interest in upholding it. Respecting the law is only a part of gaining Americans' trust.

  

  by dannybill on Sun Jan 22, 2006 at 03:41:23 PM PDT

•  Thanks for this

  Any relation to Sterling Hayden, who played Brig. Gen. Jack D. Ripper? I know, probably not, but wouldn't it be poetic?

  For "The Argument Against" do you mean to write: "The exchange with Pelosi clearly implies he had no authorization"?

  by MarkC on Sun Jan 22, 2006 at 03:44:49 PM PDT

  •  Yes, thank you,

    for "The Argument Against," saying "The exchange with Pelosi clearly implies he had no authorization" is a better way to express it.

    by Garrett on Sun Jan 22, 2006 at 04:01:04 PM PDT

  •  ..Obviously he is..

    ..one and the same!

    

    by sandmancan on Sun Jan 22, 2006 at 04:09:55 PM PDT

•  Read Risen's Book

  "State of War"

  by xrepub on Sun Jan 22, 2006 at 04:36:49 PM PDT

•  In the Reagan years,

  the internal culture at NSA was perhaps the most concientious of the snoop agencies about respecting such legal limits as existed on snooping against domestic dissent. Also i that period, they blew the whistle on Ollie North's operation, by delivering his "deleted" messages to the Congressional investigating Committees.

  by ben masel on Sun Jan 22, 2006 at 04:38:59 PM PDT

•  Text from 12333

  at beware of cookies!!!cia.gov

  1.12 Intelligence Components Utilized by the Secretary of Defense. In carrying out the responsibilities assigned in section 1.11, the Secretary of Defense is authorized to utilize the following:

  [snip]

   (b) National Security Agency, whose responsibilities shall include:

  (1) Establishment and operation of an effective unified organization for signals intelligence activities, except for the delegation of operational control over certain operations that are conducted through other elements of the Intelligence Community. No other department or agency may engage in signals intelligence activities except pursuant to a delegation by the Secretary of Defense;

  (2) Control of signals intelligence collection and processing activities, including assignment of resources to an appropriate agent for such periods and tasks as required for the direct support of military commanders;

  (3) Collection of signals intelligence information for national foreign intelligence purposes in accordance with guidance from the Director of Central Intelligence;

  (4) Processing of signals intelligence data for national foreign intelligence purposes in accordance with guidance from the Director of Central Intelligence;

  (5) Dissemination of signals intelligence information for national foreign intelligence purposes to authorized elements of the Government, including the military services, in accordance with guidance from the Director of Central Intelligence;

  (6) Collection, processing and dissemination of signals intelligence information for counterintelligence purposes;

  (7) Provision of signals intelligence support for the conduct of military operations in accordance with tasking, priorities, and standards of timeliness assigned by the Secretary of Defense. If provision of such support requires use of national collection systems, these systems will be tasked within existing guidance from the Director of Central Intelligence;

  (8) Executing the responsibilities of the Secretary of Defense as executive agent for the communications security of the United States Government;

  (9) Conduct of research and development to meet the needs of the United States for signals intelligence and communications security;

  (10) Protection of the security of its installations, activities, property, information, and employees by appropriate means, including such investigations of applicants, employees, contractors, and other persons with similar associations with the NSA as are necessary;

  (11) Prescribing, within its field of authorized operations, security regulations covering operating practices, including the transmission, handling and distribution of signals intelligence and communications security material within and among the elements under control of the Director of the NSA, and exercising the necessary supervisory control to ensure compliance with the regulations;

  (12) Conduct of foreign cryptologic liaison relationships, with liaison for intelligence purposes conducted in accordance with policies formulated by the Director of Central Intelligence; and

  (13) Conduct of such administrative and technical support activities within and outside the United States as are necessary to perform the functions described in sections (1) through (12) above, including procurement.

  But we also find, Section 1.4
  

  1.4 The Intelligence Community. The agencies within the Intelligence Community shall, in accordance with applicable United States law and with the other provisions of this Order, conduct intelligence activities necessary for the conduct of foreign relations and the protection of the national security of the United States, including:

  (a) Collection of information needed by the President, the National Security Council, the Secretaries of State and Defense, and other Executive Branch officials for the performance of their duties and responsibilities;

  (b) Production and dissemination of intelligence;

  (c) Collection of information concerning, and the conduct of activities to protect against, intelligence activities directed against the United States, international terrorist and international narcotics activities, and other hostile activities directed against the United States by foreign powers, organizations, persons, and their agents;

  (d) Special activities;

  (e) Administrative and support activities within the United States and abroad necessary for the performance of authorized activities; and

  (f) Such other intelligence activities as the President may direct from time to time.

  The <bolded> phrase would seem to shoot down Hayden's claim of independent authority to bypass FISA.

   

  by ben masel on Sun Jan 22, 2006 at 04:56:54 PM PDT

  •  I don't quite know what to make of Hayden

    He's very much an information warrior. He's also a professional careerist military guy, sometimes able to speak well about the necessity of congressional safeguards. What he's really done, secret, we just don't know.

    I think he really might have gone a bit unhinged just after 9/11. John Yoo himself wouldn't buy the idea the NSA head can just fire up the snooping equipment on an authorization to use force. Only the president can do that, in their view.

    The extremely strong tendency of military types to want to bring in every tool at their disposal, whatever the law might say: it's the very reason for the necessity of congressional oversight that Hayden can sometimes speak well about.

    by Garrett on Sun Jan 22, 2006 at 07:19:21 PM PDT

  •  More on the dangers of cookies

    from Wired "How to Foil Search Engine Snoops":  

    How does a search engine tie a search to a user?
    If you have never logged in to search engine's site, or a partner service like Google's Gmail offering, the company probably doesn't know your name. But it connects your searches through a cookie, which has a unique identifying number. Using its cookies, Google will remember all searches from your browser. It might also link searches by a user's IP address.

    snip

    Those who want to avoid a permanent record should delete their cookies at least once a week.

    by dannybill on Sun Jan 22, 2006 at 07:35:20 PM PDT

  •  And this...

    Section 2.5 Attorney General Approval. The Attorney General hereby is delegated the power to approve the use for intelligence purposes, within the United States or against a United States person abroad, of any technique for which a warrant would be required if undertaken for law enforcement purposes, provided that such techniques shall not be undertaken unless the Attorney General has determined in each case that there is probable cause to believe that the technique is directed against a foreign power or an agent of a foreign power. Electronic surveillance, as defined in the Foreign Intelligence Surveillance Act of 1978, shall be conducted in accordance with that Act, as well as this Order.

    by ben masel on Sun Jan 22, 2006 at 08:55:49 PM PDT