The "war on terror" is global and indefinite in scope, effectively removing traditional limits of wartime authority

By Barton Gellman and Dafna Linzer, Washington Post
Updated: 12:56 a.m. ET Dec. 18, 2005

In his four-year campaign against al Qaeda, President Bush has turned the U.S. national security apparatus inward to secretly collect information on American citizens on a scale unmatched since the intelligence reforms of the 1970s.

The president's emphatic defense yesterday of warrantless eavesdropping on U.S. citizens and residents marked the third time in as many months that the White House has been obliged to defend a departure from previous restraints on domestic surveillance. In each case, the Bush administration concealed the program's dimensions or existence from the public and from most members of Congress.

Since October, news accounts have disclosed a burgeoning Pentagon campaign for "detecting, identifying and engaging" internal enemies that included a database with information on peace protesters. A debate has roiled over the FBI's use of national security letters to obtain secret access to the personal records of tens of thousands of Americans. And now come revelations of the National Security Agency's interception of telephone calls and e-mails from the United States -- without notice to the federal court that has held jurisdiction over domestic spying since 1978.

Waging an adamant defense
Defiant in the face of criticism, the Bush administration has portrayed each surveillance initiative as a defense of American freedom. Bush said yesterday that his NSA eavesdropping directives were "critical to saving American lives" and "consistent with U.S. law and the Constitution." After years of portraying an offensive waged largely overseas, Bush justified the internal surveillance with new emphasis on "the home front" and the need to hunt down "terrorists here at home."

Bush's constitutional argument, in the eyes of some legal scholars and previous White House advisers, relies on extraordinary claims of presidential war-making power. Bush said yesterday that the lawfulness of his directives was affirmed by the attorney general and White House counsel, a list that omitted the legislative and judicial branches of government. On occasion the Bush administration has explicitly rejected the authority of courts and Congress to impose boundaries on the power of the commander in chief, describing the president's war-making powers in legal briefs as "plenary" -- a term defined as "full," "complete," and "absolute."


• More U.S. news
A high-ranking intelligence official with firsthand knowledge said in an interview yesterday that Vice President Cheney, then-Director of Central Intelligence George J. Tenet and Michael V. Hayden, then a lieutenant general and director of the National Security Agency, briefed four key members of Congress about the NSA's new domestic surveillance on Oct. 25, 2001, and Nov. 14, 2001, shortly after Bush signed a highly classified directive that eliminated some restrictions on eavesdropping against U.S. citizens and permanent residents.

In describing the briefings, administration officials made clear that Cheney was announcing a decision, not asking permission from Congress. How much the legislators learned is in dispute.

Extent of policy shift disputed
Former senator Bob Graham (D-Fla.), who chaired the Senate intelligence committee and is the only participant thus far to describe the meetings extensively and on the record, said in interviews Friday night and yesterday that he remembers "no discussion about expanding [NSA eavesdropping] to include conversations of U.S. citizens or conversations that originated or ended in the United States" -- and no mention of the president's intent to bypass the Foreign Intelligence Surveillance Court.

"I came out of the room with the full sense that we were dealing with a change in technology but not policy," Graham said, with new opportunities to intercept overseas calls that passed through U.S. switches. He believed eavesdropping would continue to be limited to "calls that initiated outside the United States, had a destination outside the United States but that transferred through a U.S.-based communications system."

Graham said the latest disclosures suggest that the president decided to go "beyond foreign communications to using this as a pretext for listening to U.S. citizens' communications. There was no discussion of anything like that in the meeting with Cheney."

The high-ranking intelligence official, who spoke with White House permission but said he was not authorized to be identified by name, said Graham is "misremembering the briefings," which in fact were "very, very comprehensive." The official declined to describe any of the substance of the meetings, but said they were intended "to make sure the Hill knows this program in its entirety, in order to never, ever be faced with the circumstance that someone says, 'I was briefed on this but I had no idea that -- ' and you can fill in the rest."

By Graham's account, the official said, "it appears that we held a briefing to say that nothing is different . . . . Why would we have a meeting in the vice president's office to talk about a change and then tell the members of Congress there is no change?"

House Minority Leader Nancy Pelosi (Calif.), who was also present as then ranking Democrat of the House intelligence panel, said in a statement yesterday evening that the briefing described "President Bush's decision to provide authority to the National Security Agency to conduct unspecified activities." She said she "expressed my strong concerns" but did not elaborate.

The NSA disclosures follow exposure of two other domestic surveillance initiatives that drew shocked reactions from Congress and some members of the public in recent months.

Beginning in October, The Washington Post published articles describing a three-year-old Pentagon agency, the size and budget of which are classified, with wide new authority to undertake domestic investigations and operations against potential threats from U.S. residents and organizations against military personnel and facilities. The Counterintelligence Field Activity, or CIFA, began as a small policy-coordination office but has grown to encompass nine directorates and a staff exceeding 1,000. The agency's Talon database, collecting unconfirmed reports of suspicious activity from military bases and organizations around the country, has included "threat reports" of peaceful civilian protests and demonstrations.

CIFA has also been empowered with what the military calls "tasking authority" -- the ability to give operational orders -- over Army, Navy and Air Force units whose combined roster of investigators, about 4,000, is nearly as large as the number of FBI special agents assigned to counterterrorist squads. Pentagon officials said this month they had ordered a review of the program after disclosures, in The Post, NBC News and the washingtonpost.com Web log of William M. Arkin, that CIFA compiled information about U.S. citizens engaging in constitutionally protected political activity such as protests against military recruiting.

In November, The Post disclosed an exponentially growing practice of domestic surveillance under the USA Patriot Act, using FBI demands for information known as "national security letters." Created in the 1970s for espionage and terrorism investigations, the letters enabled secret FBI review of the private telephone and financial records of suspected foreign agents. The Bush administration's guidelines after the Patriot Act transformed those letters by permitting clandestine scrutiny of U.S. residents and visitors who are not alleged to be terrorists or spies.

The Post reported that the FBI has issued tens of thousands of national security letters, extending the bureau's reach as never before into the telephone calls, correspondence and financial lives of ordinary Americans. Most of the U.S. residents and citizens whose records were screened, the FBI acknowledged, were not suspected of wrongdoing.

The burgeoning use of national security letters coincided with an unannounced decision to deposit all the information they yield into government data banks -- and to share those private records widely, in the federal government and beyond. In late 2003, the Bush administration reversed a long-standing policy requiring agents to destroy their files on innocent American citizens, companies and residents when investigations closed.

Yesterday's acknowledgment of warrantless NSA eavesdropping brought the most forthright statement from the president that his war on terrorism is targeting not only "enemies across the world" but "terrorists here at home." In the "first war of the 21st century," he said, "one of the most critical battlefronts is the home front."

Bush sidestepped some of the implications by citing examples only of foreigners who infiltrated the United States -- Saudi citizens Nawaf Alhazmi and Khalid Almihdhar, two of the Sept. 11, 2001, hijackers. But the most fundamental changes undertaken in the Bush administration's surveillance policy are the ones that have broadened the powers of the NSA, FBI and Pentagon to spy on "U.S. persons" -- American citizens, permanent residents and corporations -- on American soil.

Roger Cressey, who was principal deputy to the White House counterterrorism chief when terrorists destroyed the World Trade Center and a wing of the Pentagon, said "the amount of domestic surveillance is an admission of fundamental gaps in our understanding of what is happening in our country."

Those anxieties about unknown threats have ebbed and flowed since World War I, according to a bipartisan government commission chaired by Sen. Daniel Patrick Moynihan. President Woodrow Wilson warned against "the poison of disloyalty" and another loyalty campaign created black lists of accused Communists in the 1950s. In the 1960s and 1970s, the Army and the NSA collected files and eavesdropped on thousands of anti-Vietnam War and civil rights activists.

Congress asserted itself in the 1970s, imposing oversight requirements and passing the Foreign Intelligence Surveillance Act (FISA). Kate Martin, director of the Center for National Security Studies, said FISA "expressly made it a crime for government officials 'acting under color of law' to engage in electronic eavesdropping 'other than pursuant to statute.' " FISA described itself, along with the criminal wiretap statute, as "the exclusive means by which electronic surveillance . . . may be conducted."

No president before Bush mounted a frontal challenge to Congress's authority to limit espionage against Americans. In a Sept. 25, 2002, brief signed by then-Attorney General John D. Ashcroft, the Justice Department asserted "the Constitution vests in the President inherent authority to conduct warrantless intelligence surveillance (electronic or otherwise) of foreign powers or their agents, and Congress cannot by statute extinguish that constitutional authority."

The brief made no distinction between suspected agents who are U.S. citizens and those who are not. Other Bush administration legal arguments have said the "war on terror" is global and indefinite in scope, effectively removing traditional limits of wartime authority to the times and places of imminent or actual battle.

"There is a lot of discussion out there that we shouldn't be dividing Americans and foreigners, but terrorists and non-terrorists," said Gordon Oehler, a former chief of the CIA's Counterterrorist Center who served on last year's special commission assessing U.S. intelligence.

By law, according to University of Chicago scholar Geoffrey Stone, the differences are fundamental: Americans have constitutional protections that are enforceable in court whether their conversations are domestic or international.

Bush's assertion that eavesdropping takes place only on U.S. calls to overseas phones, Stone said, "is no different, as far as the law is concerned, from saying we only do it on Tuesdays."

Michael J. Woods, who was chief of the FBI's national security law unit when Bush signed the NSA directive, described the ongoing program as "very dangerous." In the immediate aftermath of a devastating attack, he said, the decision was a justifiable emergency response. In 2006, "we ought to be past the time of emergency responses. We ought to have more considered views now. . . . We have time to debate a legal regime and what's appropriate."



December 20, 2005
Administration Cites War Vote in Spying Case

By ERIC LICHTBLAU and DAVID E. SANGER
WASHINGTON, Dec. 19 - President Bush and two of his most senior aides argued Monday that the highly classified program to spy on suspected members of terrorist groups in the United States grew out of the president's constitutional authority and a 2001 Congressional resolution that authorized him to use all necessary force against those responsible for the Sept. 11 attacks.

Offering their most forceful and detailed defense of the program in a series of briefings, television interviews and a hastily called presidential news conference, administration officials argued that the existing Foreign Intelligence Surveillance Act was not written for an age of modern terrorism. In these times, Mr. Bush said, a "two-minute phone conversation between somebody linked to Al Qaeda here and an operative overseas could lead directly to the loss of thousands of lives."

Mr. Bush strongly hinted that the government was beginning a leak investigation into how the existence of the program was disclosed. It was first revealed in an article published on The New York Times Web site on Thursday night, though some information that administration officials argued could be useful to terrorists had been omitted.

"We're at war, and we must protect America's secrets," Mr. Bush said. "And so the Justice Department, I presume, will proceed forward with a full investigation."

He also lashed out again, as he did Saturday, at Democrats and Republicans in the Senate who have blocked the reauthorization of the broad antiterrorism law known as the USA Patriot Act, saying they voted for it after the Sept. 11 attacks "but now think it's no longer necessary."

Several of the senators responded that Mr. Bush would not accept amendments to the act that they say are necessary to protect civil liberties and that he would not accept a short-term renewal of the existing law while negotiations continue.

In the first of a series of appearances Monday to defend the intelligence operations, Attorney General Alberto R. Gonzales told reporters that "this electronic surveillance is within the law, has been authorized" by Congress. "That is our position," he added.

Officials with knowledge of the program have said the Justice Department did two sets of classified legal reviews of the program and its legal rationale. Mr. Gonzales declined to release those opinions Monday.

Two of the key Democrats who had been briefed on the program said Monday that they had been told so little that there was no effective Congressional oversight for it.

In a highly unusual move, Senator John D. Rockefeller IV of West Virginia released a letter he sent to Vice President Dick Cheney on July 17, 2003, complaining that "given the security restrictions associated with this information, and my inability to consult staff or counsel on my own, I feel unable to fully evaluate, much less endorse these activities." The letter was handwritten because secrecy rules prevented him from giving it to anyone to type.

On Monday Mr. Rockefeller said that after he sent his letter to Mr. Cheney, "these concerns were never addressed, and I was prohibited from sharing my views with my colleagues."

Senator Arlen Specter, the Pennsylvania Republican who is chairman of the Judiciary Committee, said, "I am skeptical of the attorney general's citation of authority, but I am prepared to listen."

Mr. Specter, who has said he will hold hearings on the program soon after the confirmation hearings for the Supreme Court nominee, Judge Samuel A. Alito Jr., said he did not believe the president's decision to inform a handful of members of Congress was sufficient.

"I think it does not constitute a check and balance," he said. "You can't have the administration and a select number of members alter the law. It can't be done."

Mr. Specter also predicted that the domestic spying debate would spill over into Judge Alito's confirmation. On Monday, he sent the judge a letter saying he intended to ask "what jurisprudential approach" the judge would use in determining if the president had authority to establish the program.

"The fat's in the fire," Mr. Specter said. "This is going to be a big, big issue. There's a lot of indignation across the country, from what I see."

Mr. Bush, Mr. Gonzales and Lt. Gen. Gen. Michael V. Hayden, the nation's second-ranking intelligence official and a former director of the National Security Agency, which conducted the surveillance, stepped around questions about why officials decided not to use emergency powers they have under the existing foreign surveillance law. The law allows them to tap international communications of people in the United States and then go to a secret court up to 72 hours later for retroactive permission.

"The whole key here is agility," General Hayden said, adding that the aim "is to detect and prevent."

Administration officials, speaking anonymously because of the sensitivity of the information, suggested that the speed with which the operation identified "hot numbers" - the telephone numbers of suspects - and then hooked into their conversations lay behind the need to operate outside the old law.

Soon after Mr. Bush spoke, three senior Democrats influential on national security matters - Senators Carl Levin of Michigan, Jack Reed of Rhode Island and Russell Feingold of Wisconsin - assailed the president for bypassing the court that Congress set up a quarter-century ago to make sure intelligence agencies do not infringe on the privacy of Americans.

"He can go to the court retroactively," Mr. Levin, the ranking Democrat on the Armed Services Committee, told reporters, referring to the 72-hour rule.

Mr. Bush - who initially resisted a public investigation into the Sept. 11 attacks and the intelligence failures in Iraq - used his news conference Monday to discourage Congress from publicly delving into the program, saying that "public hearings on programs will say to the enemy, 'Here's what they do, adjust.' " He repeatedly cited the case of Osama bin Laden, who was widely reported to have stopped using a satellite telephone after news reports that intelligence agencies were listening in.

The White House briefing itself was unusual, with two of the administration's most senior officials discussing legal and operational details of what Mr. Gonzales described as "probably the most classified program that exists in the United States government."

Mr. Gonzales said the president had "the inherent authority under the Constitution" as commander in chief to authorize the program. He also argued that the legal rationale followed the logic in a Supreme Court decision last year in the case of an enemy combatant named Yaser Esam Hamdi, an American citizen who was detained in Afghanistan on the battlefield.

In addition, Mr. Gonzales said the administration believed that Congress gave the president clear and broad authorization to attack Al Qaeda in a resolution passed on Sept. 14, 2001, that set the stage for the invasion of Afghanistan. That resolution authorized the president "to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on Sept. 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons."

Many members of Congress say that in authorizing the military invasion of Afghanistan days after the Sept. 11 attacks, they never intended or envisioned that the authority could be applied to searches without warrants within the United States.

Mr. Gonzales and General Hayden were careful to emphasize that the surveillance program was "limited" in scope.

"People are running around saying that the United States is somehow spying on American citizens calling their neighbors," Mr. Gonzales said. In fact, he said, it was "very, very important to understand" that the program is limited to calls and communications between the United States and foreign countries.

"What we're trying to do is learn of communications, back and forth, from within the United States to overseas members of Al Qaeda," he said. "And that's what this program is about."

He added: "This is not about wiretapping everybody. This is about a very concentrated, very limited program focused on gaining information about our enemy."

As the administration has argued since the disclosure of the program Thursday night, Mr. Gonzales and General Hayden said the normal system for issuing warrants for a domestic surveillance operation - required in 1978 in a program that grew out of the improper surveillance of political dissidents - was inadequate in some cases.

Regarding a possible leak investigation, which would be handled by the Justice Department, Mr. Gonzales said: "This is really hurting national security, this has really hurt our country, and we are concerned that a very valuable tool has been compromised. As to whether or not there will be a leak investigation, we'll just have to wait and see."

When questions at the news conference turned to Iraq, Mr. Bush urged reporters to look at rationales he offered for invading the country that went beyond its suspected caches of weapons of mass destruction, including his vision of creating democratic havens in the Middle East. But he acknowledged that the failure to find weapons in Iraq made it difficult to make the case "in the public arena" that countries like Iran are pursuing nuclear weapons, as Mr. Bush has charged.

He said, "People will say, if we're trying to make the case on Iran, well, the intelligence failed in Iraq, therefore how can we trust the intelligence in Iran?" Later, he added, "It's no question that the credibility of intelligence is necessary for good diplomacy."

Eric Schmitt and Sheryl Gay Stolberg contributed reporting for this article.