By Joe Campbell
April 5th, 2010
Shane Harris, author of The Watchers: The Rise of America’s Surveillance State, had a good rundown of changes in surveillance under the Bush administration in a talk for CATO:
What my reporting showed in terms of the evolution…of what was probably called the Terrorist Surveillance Program — or the President’s Surveillance Program or Stellar Wind or The Bag or whatever you know you wanna call it — was that the germ of the idea begins not long after 9/11 when NSA finds itself in need of broadening the aperture of the surveillance that it wants to do — and Mike Hayden who is the director NSA at the time concludes that he has existing authority to do that under an executive order actually fashioned in the Reagan administration coincidentally called Executive Order Twelve Triple Three.
And he tells lawmakers that NSA is broadening its scope of collection and that we have existing authorities to do that. There’s some back and forth between him and the House Intelligence Committee in particular on this question. Nancy Pelosi somewhat famously I think writes this letter that says I’m not sure I quite understand what you’re talking about here. And I’m not quite sure whether or not you can do this or whether you need to have a new order. As it was described to me by people who were familiar with that … that was actually going up on targeted — what they called — hot numbers…They were people that NSA wanted to go after that they thought were tied or connected to the 9/11 attacks.
It is also the case that the FISA court issued a number of warrants immediately after the [attack]. I think Judge Lambert actually was…actually issuing them, or released preliminary orders I think from his phone at one point. He was driving by the Pentagon when the planes hit and people came to get him to issue [unintelligible] orders…[Then] around October of 2001, when George Tenet, then the director of Central Intelligence [Agency], begins making the rounds with the intelligence chiefs and says, “…[A]re you doing everything that you can right now to prevent another 9/11?…Do you’ve got everything that you need?” And Hayden’s response — he’s testified to this — is, “Not within my current authority.” So, Hayden goes down, briefs administration officials, the president, the vice president are there, and essentially lays out a plan by which they could do expanded surveillance of what would be classified as “international communications” — because one end of the communication is outside the United States even though one end is here. And so thus begins the sort of first stage of the Terrorist Surveillance Program.
There was reportedly some desire by Cheney and David Addington to do pure domestic warrantless surveillance — and the reporting I’ve seen on this… — is that Hayden pushed back on that. But he did want to construct a system that whereby they could do what he later called, “hot pursuit of terrorist communications,” without having to go through the FISA warrant process. It’s after that that NSA starts also going to telecommunications companies and wanting access to the metadata as well. I always sort of imagine the program — to sort of make sense of it in my mind — is that in the perfect world if this thing worked, you [would] have all this metadata that would tell you where all the patterns of communications were and as soon as one of them… hit the trip wire of suspicious activity over here, NSA now has the authorities to go zap right down and find that particular communication and pull it out and look at it.
So there were layers to it… It evolved from the initial stage after 9/11 — “We have the authority to do some expanded surveillance” [to] “We need more authority to do more expanded surveillance” [to] “Now we want to go even beyond that as well.” It was my understanding from talking to people who were involved — and people the White House — that it was the expanded metadata surveillance part that triggered the standoff in the hospital room. We’re still I think not entirely sure what part of it it was but — it revolved around that data and the collection and use of that information. [my emphases]