Note: This article also appeared on MSNBC's Hardball Blog. I am one of the "Hardball War Council."
A December 16 New York Times article, "Bush Lets U.S. Spy on Callers Without Courts" has caused an uproar around the country. Perhaps some background is in order.
The National Security Agency (NSA) is the largest agency in the U.S. intelligence community. Although nominally part of the Department of Defense, its operations are closely supervised by the Director of National Intelligence and support the entire executive branch. From its headquarters at Fort Meade, Maryland, it oversees a worldwide network of intercept stations operated by "the Fort" (as it is known in the business) and the military services, using the latest technologies to access communications of all types. You name it - telephone, radio, fax, email - NSA intercepts it.
NSA's primary focus is on the collection of foreign communications in response to intelligence requirements, be they for military commanders deployed to combat zones, diplomats negotiating on behalf of the United States, etc. Generally, the communications intercepted by NSA take place outside the United States. And generally, NSA is prohibited from the intercept of communications between "U.S. persons, entities, corporations or organizations."
That is not to say that internal communications, or communications originating or terminating in the United States involving a U.S. person or entity cannot be collected by NSA. Collection of these communications, or those foreign communications involving U.S. persons (a much broader category than a U.S. citizen), entities, corporations or organizations abroad requires either a federal warrant or authorization from the Attorney General.
The governing document for this situation is United States Signals Intelligence Directive (USSID) 18. I worked in the U.S. SIGINT System for many years - this directive is taken seriously. From what I have observed, violation of USSID 18 is a career-ending event. NSA requires that its officers and military personnel assigned there to complete annual USSID 18 training.
The long-established mechanism to authorize the intercept of internal or US-entity communications is via a federal warrant issued under the provisions of the Foreign Intelligence Surveillance Act (FISA), most often referred to as "FISA warrant." It is the FISA court that provides oversight to ensure that NSA's actions are in fact necessary and in keeping with U.S. law. USSID 18 also permits collection of these U.S. communications when authorized by the Attorney General in exceptional circumstances (emergencies, imminent danger, threat to life, etc.).
According to the New York Times article, the President issued an executive order after September 11, 2001, authorizing NSA to monitor without warrants certain international phone calls and e-mail messages to or from persons in the United States. (Note that intercept of internal U.S. communications still requires a federal warrant.) Many of the communications targeted under this executive order were discovered from exploitation of captured Al-Qa'idah and Taliban fighters and their computers and documents. According to government officials, the information collected has resulted in the disruption of terrorist operations.
Is all this against this law? I'm not a lawyer, but I doubt it. Having spent considerable time doing this for a living, I cannot contemplate NSA (or the parent Defense Department) undertaking this "special collection program" without concurrence of the NSA's General Counsel. I would be surprised if the Justice Department was not consulted as well.
Was Congress notified? According to the New York Times article, the chairmen and ranking members of the Senate and House intelligence committees were briefed by then-director of NSA Air Force Lt. Gen. Mike Hayden and then Director of Central Intelligence George J. Tenet. This almost certainly happened. This activity, clandestine rather than covert, would be considered a "significant intelligence activity," thus requiring Congressional notification.
My question: Was an Executive Order needed? Were the existing provisions of FISA not sufficient to authorize NSA collection of these communications? Since very few FISA requests are turned down, what special situations arose that were not covered by the FISA?
Lt Col Rick Francona, USAF (Retired) is an MSNBC Military Analyst. He served for over 15 years in the U.S. Signals Intelligence System, including tours at the National Security Agency.