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Big Brother Is Listening
The NSA has the ability to eavesdrop on your communications,
landlines, cell phones, e-mails, BlackBerry messages, Internet
searches, and more?with ease. What happens when the technology of
espionage outstrips the law?s ability to protect ordinary citizens
from it?
By James Bamford
03/12/06 "The
Atlantic" -- -- On the first Saturday in April of
2002, the temperature in Washington, D.C., had taken a dive.
Tourists were bundled up against the cold, and the cherry trees
along the Tidal Basin were fast losing their blossoms to the biting
winds. But a few miles to the south, in the Dowden Terrace
neighborhood of Alexandria, Virginia, the chilly weather was not
deterring Royce C. Lamberth, a bald and burly Texan, from mowing his
lawn. He stopped only when four cars filled with FBI agents suddenly
pulled up in front of his house. The agents were there not to arrest
him but to request an emergency court hearing to obtain seven
top-secret warrants to eavesdrop on Americans.
As the presiding justice of the Foreign Intelligence Surveillance
Court, known as the FISA court, Lamberth had become accustomed to
holding the secret hearings in his living room. ?My wife, Janis ?
has to go upstairs because she doesn?t have a top-secret clearance,?
he noted in a speech to a group of Texas lawyers. ?My beloved cocker
spaniel, Taffy, however, remains at my side on the assumption that
the surveillance targets cannot make her talk. The FBI knows Taffy
well. They frequently play with her while I read some of those
voluminous tomes at home.? FBI agents will even knock on the judge?s
door in the middle of the night. ?On the night of the bombings of
the U.S. embassies in Africa, I started the first emergency hearings
in my living room at 3:00 a.m.,? recalled Lamberth. ?From the
outset, the FBI suspected bin Laden, and the surveillances I
approved that night and in the ensuing days and weeks all ended up
being critical evidence at the trial in New York.
?The FISA court is probably the least-known court in Washington,?
added Lamberth, who stepped down from it in 2002, at the end of his
seven-year term, ?but it has become one of the most important.?
Conceived in the aftermath of Watergate, the FISA court traces its
origins to the mid-1970s, when the Senate?s Church Committee
investigated the intelligence community and the Nixon White House.
The panel, chaired by Idaho Democrat Frank Church, exposed a long
pattern of abuse, and its work led to bipartisan legislation aimed
at preventing a president from unilaterally directing the National
Security Agency or the FBI to spy on American citizens. This
legislation, the 1978 Foreign Intelligence Surveillance Act,
established the FISA court?made up of eleven judges handpicked by
the chief justice of the United States?as a secret part of the
federal judiciary. The court?s job is to decide whether to grant
warrants requested by the NSA or the FBI to monitor communications
of American citizens and legal residents. The law allows the
government up to three days after it starts eavesdropping to ask for
a warrant; every violation of FISA carries a penalty of up to five
years in prison. Between May 18, 1979, when the court opened for
business, until the end of 2004, it granted 18,742 NSA and FBI
applications; it turned down only four outright.
Such facts worry Jonathan Turley, a George Washington University law
professor who worked for the NSA as an intern while in law school in
the 1980s. The FISA ?courtroom,? hidden away on the top floor of the
Justice Department building (because even its location is supposed
to be secret), is actually a heavily protected, windowless,
bug-proof installation known as a Sensitive Compartmented
Information Facility, or SCIF. ?When I first went into the FISA
court as a lowly intern at the NSA, frankly, it started a lifetime
of opposition for me to that court,? Turley recently told a group of
House Democrats looking into the NSA?s domestic spying. ?I was
shocked with what I saw. I was convinced that the judge in that SCIF
would have signed anything that we put in front of him. And I wasn?t
entirely sure that he had actually read what we put in front of him.
But I remember going back to my supervisor at NSA and saying, ?That
place scares the daylights out of me.??
Lamberth bristles at any suggestion that his court routinely did the
administration?s bidding. ?Those who know me know the chief justice
did not put me on this court because I would be a rubber stamp for
whatever the executive branch was wanting to do,? he said in his
speech. ?I ask questions. I get into the nitty-gritty. I know
exactly what is going to be done and why. And my questions are
answered, in every case, before I approve an application.?
It is true that the court has been getting tougher. From 1979
through 2000, it modified only two out of 13,087 warrant requests.
But from the start of the Bush administration, in 2001, the number
of modifications increased to 179 out of 5,645 requests. Most of
those?173?involved what the court terms ?substantive modifications.?
This friction?and especially the requirement that the government
show ?probable cause? that the American whose communications they
are seeking to target is connected in some way to a terrorist
group?induced the administration to begin circumventing the court.
Concerned about preventing future 9/11-style attacks, President Bush
secretly decided in the fall of 2001 that the NSA would no longer be
bound by FISA. Although Judge Lamberth was informed of the
president?s decision, he was ordered to tell no one about it?not
even his clerks or his fellow FISA-court judges.
Why the NSA Might be Listening to YOU
Contrary to popular perception, the NSA does not engage in
?wiretapping?; it collects signals intelligence, or ?sigint.? In
contrast to the image we have from movies and television of an FBI
agent placing a listening device on a target?s phone line, the NSA
intercepts entire streams of electronic communications containing
millions of telephone calls and e-mails. It runs the intercepts
through very powerful computers that screen them for particular
names, telephone numbers, Internet addresses, and trigger words or
phrases. Any communications containing flagged information are
forwarded by the computer for further analysis.
The NSA?s task is to listen in on the world outside American shores.
During the Cold War, the principal targets were the communications
lines used by the Soviet government and military?navy captains
calling their ports, fighter pilots getting landing instructions,
army commanders out on maneuvers, and diplomats relaying messages to
the Kremlin. But now the enemy is one that communicates very little
and, when it does, uses the same telecommunications network as
everyone else: a complex system of wires, radio signals, and light
pulses encircling and crisscrossing the globe like yarn. Picking up
just the right thread, and tracing it through the maze of strands,
is difficult. Sometimes a thread leads back inside the United
States. An internal agency report predicted a few years ago that the
NSA?s worldwide sigint operation would demand a ?powerful and
permanent presence? on the global telecommunications networks that
carry ?protected American communications.? The prediction has come
true, and the NSA now monitors not only purely ?foreign?
communications but also ?international? ones, where one end of the
conversation might be in the United States. As a result, the issue
at hand since the revelation last December of the NSA?s warrantless
spying on American citizens is not the agency?s access to the
country?s communications network?it already has access?but whether
the NSA must take legal steps in preparing to target the
communications of an American citizen.
It used to be that before the NSA could place the name of an
American on its watch list, it had to go before a FISA-court judge
and show that it had probable cause?that the facts and circumstances
were such that a prudent person would think the individual was
somehow connected to terrorism?in order to get a warrant. But under
the new procedures put into effect by Bush?s 2001 order, warrants do
not always have to be obtained, and the critical decision about
whether to put an American on a watch list is left to the vague and
subjective ?reasonable belief? of an NSA shift supervisor. In charge
of hundreds of people, the supervisor manages a wide range of sigint
specialists, including signals-conversion analysts separating HBO
television programs from cell-phone calls, traffic analysts sifting
through massive telephone data streams looking for suspicious
patterns, cryptanalysts attempting to read e-mail obscured by
complex encryption algorithms, voice-language analysts translating
the gist of a phone call from Dari into English, and cryptolinguists
trying to unscramble a call on a secure telephone. Bypassing the
FISA court has meant that the number of Americans targeted by the
NSA has increased since 2001 from perhaps a dozen per year to as
many as 5,000 over the last four years, knowledgeable sources told
The Washington Post in February. If telephone records indicate that
one of the NSA?s targets regularly dials a given telephone number,
that number and any names associated with it are added to the watch
lists and the communications on that line are screened by computer.
Names and information on the watch lists are shared with the FBI,
the CIA, the Department of Homeland Security, and foreign
intelligence services. Once a person?s name is in the files, even if
nothing incriminating ever turns up, it will likely remain there
forever. There is no way to request removal, because there is no way
to confirm that a name is on the list.
In December of 1997, in a small factory outside the southern French
city of Toulouse, a salesman got caught in the NSA?s electronic web.
Agents working for the NSA?s British partner, the Government
Communications Headquarters, learned of a letter of credit, valued
at more than $1.1 million, issued by Iran?s defense ministry to the
French company Microturbo. According to NSA documents, both the NSA
and the GCHQ concluded that Iran was attempting to secretly buy from
Microturbo an engine for the embargoed C-802 anti-ship missile.
Faxes zapping back and forth between Toulouse and Tehran were
intercepted by the GCHQ, which sent them on not just to the NSA but
also to the Canadian and Australian sigint agencies, as well as to
Britain?s MI6. The NSA then sent the reports on the salesman making
the Iranian deal to a number of CIA stations around the world,
including those in Paris and Bonn, and to the U.S. Commerce
Department and the Customs Service. Probably several hundred people
in at least four countries were reading the company?s
communications. The question, however, remained: Was Microturbo
shipping a missile engine to Iran? In the end, at the insistence of
the U.S. government, the French conducted a surprise inspection just
before the ship carrying the mysterious crate was set to sail for
Iran. Inside were legal generators, not illegal missile engines.
Such events are central to the current debate involving the
potential harm caused by the NSA?s warrantless domestic
eavesdropping operation. Even though the salesman did nothing wrong,
his name made its way into the computers and onto the watch lists of
intelligence, customs, and other secret and law-enforcement
organizations around the world. Maybe nothing will come of it. Maybe
the next time he tries to enter the United States or Britain he will
be denied, without explanation. Maybe he will be arrested. As the
domestic eavesdropping program continues to grow, such uncertainties
may plague innocent Americans whose names are being run through the
supercomputers even though the NSA has not met the established legal
standard for a search warrant. It is only when such citizens are
turned down while applying for a job with the federal government?or
refused when seeking a Small Business Administration loan, or turned
back by British customs agents when flying to London on vacation, or
even placed on a ?no-fly? list?that they will realize that something
is very wrong. But they will never learn why.
More than seventy-five years ago, Supreme Court Justice Louis
Brandeis envisioned a day when technology would overtake the law. He
wrote:
Subtler and more far-reaching means of invading privacy have become
available to the government ? The progress of science in furnishing
the government with means of espionage is not likely to stop with
wiretapping. Ways may some day be developed by which the Government,
without removing papers from secret drawers, can reproduce them in
court, and by which it will be enabled to expose to a jury the most
intimate occurrences of the home ? Can it be that the Constitution
affords no protection against such invasions of individual security?
Brandeis went on to answer his own question, quoting from an earlier
Supreme Court decision, Boyd v. U.S. (1886): ?It is not the breaking
of his doors, and the rummaging of his drawers that constitutes the
essence of the offence; but it is the invasion of his indefeasible
right of personal security, personal liberty, and private property.?
Eavesdropping in the Digital Age
oday, the NSA?s capability to eavesdrop is far beyond anything ever
dreamed of by Justice Brandeis. With the digital revolution came an
explosion in eavesdropping technology; the NSA today has the ability
to scan tens of millions of electronic communications?e-mails,
faxes, instant messages, Web searches, and phone calls?every hour.
General Michael Hayden, director of the NSA from 1999 to 2005 and
now principal deputy director of national intelligence, noted in
2002 that during the 1990s, e-communications ?surpassed traditional
communications. That is the same decade when mobile cell phones
increased from 16 million to 741 million?an increase of nearly 50
times. That is the same decade when Internet users went from about 4
million to 361 million?an increase of over 90 times. Half as many
land lines were laid in the last six years of the 1990s as in the
whole previous history of the world. In that same decade of the
1990s, international telephone traffic went from 38 billion minutes
to over 100 billion. This year, the world?s population will spend
over 180 billion minutes on the phone in international calls alone.?
Intercepting communications carried by satellite is fairly simple
for the NSA. The key conduits are the thirty Intelsat satellites
that ring the Earth, 22,300 miles above the equator. Many
communications from Europe, Africa, and the Middle East to the
eastern half of the United States, for example, are first uplinked
to an Intelsat satellite and then downlinked to AT&T?s ground
station in Etam, West Virginia. From there, phone calls, e-mails,
and other communications travel on to various parts of the country.
To listen in on that rich stream of information, the NSA built a
listening post fifty miles away, near Sugar Grove, West Virginia.
Consisting of a group of very large parabolic dishes, hidden in a
heavily forested valley and surrounded by tall hills, the post can
easily intercept the millions of calls and messages flowing every
hour into the Etam station. On the West Coast, high on the edge of a
bluff overlooking the Okanogan River, near Brewster, Washington, is
the major commercial downlink for communications to and from Asia
and the Pacific. Consisting of forty parabolic dishes, it is
reportedly the largest satellite antenna farm in the Western
Hemisphere. A hundred miles to the south, collecting every whisper,
is the NSA?s western listening post, hidden away on a 324,000-acre
Army base in Yakima, Washington. The NSA posts collect the
international traffic beamed down from the Intelsat satellites over
the Atlantic and Pacific. But each also has a number of dishes that
appear to be directed at domestic telecommunications satellites.
ntil recently, most international telecommunications flowing into
and out of the United States traveled by satellite. But faster, more
reliable undersea fiber-optic cables have taken the lead, and the
NSA has adapted. The agency taps into the cables that don?t reach
our shores by using specially designed submarines, such as the USS
Jimmy Carter, to attach a complex ?bug? to the cable itself. This is
difficult, however, and undersea taps are short-lived because the
batteries last only a limited time. The fiber-optic transmission
cables that enter the United States from Europe and Asia can be
tapped more easily at the landing stations where they come ashore.
With the acquiescence of the telecommunications companies, it is
possible for the NSA to attach monitoring equipment inside the
landing station and then run a buried encrypted fiber-optic
?backhaul? line to NSA headquarters at Fort Meade, Maryland, where
the river of data can be analyzed by supercomputers in near real
time.
Tapping into the fiber-optic network that carries the nation?s
Internet communications is even easier, as much of the information
transits through just a few ?switches? (similar to the satellite
downlinks). Among the busiest are MAE East (Metropolitan Area
Ethernet), in Vienna, Virginia, and MAE West, in San Jose,
California, both owned by Verizon. By accessing the switch, the NSA
can see who?s e-mailing with whom over the Internet cables and can
copy entire messages. Last September, the Federal Communications
Commission further opened the door for the agency. The 1994
Communications Assistance for Law Enforcement Act required telephone
companies to rewire their networks to provide the government with
secret access. The FCC has now extended the act to cover ?any type
of broadband Internet access service? and the new Internet phone
services?and ordered company officials never to discuss any aspect
of the program.
he NSA won?t divulge how many people it employs, but it is likely
that more than 38,000 worldwide now work for the agency. Most of
them are at Fort Meade. Nicknamed Crypto City, hidden from public
view, and located halfway between Washington and Baltimore, the
NSA?s own company town comprises more than fifty buildings?offices,
warehouses, factories, laboratories, and a few barracks. Tens of
thousands of people work there in absolute secrecy, and most never
tell their spouses exactly what they do. Crypto City also houses the
nation?s largest collection of powerful computers, advanced
mathematicians, and skilled language experts.
The NSA maintains a very close and very confidential relationship
with key executives in the telecommunications industry through their
membership on the NSA?s advisory board. Created shortly after the
agency?s formation, the board was intended to pull together a panel
of science wizards from universities, corporate research labs, and
think tanks to advise the agency. They keep the agency abreast of
the industry?s plans and give NSA engineers a critical head start in
finding ways to penetrate technologies still in the development
phase.
One of the NSA?s strategies is to hire people away from the
companies that make the critical components for telecommunications
systems. Although it?s sometimes difficult for the agency to keep up
with the tech sector?s pay scale, for many people the chance to deal
with the ultimate in cutting-edge technology and aid national
security makes working for the NSA irresistible. With the help of
such workers, the agency reverse-engineers communication system
components. For example, among the most crucial pieces of the
Internet infrastructure are routers made by Cisco. ?Virtually all
Internet traffic,? says one of the company?s television ads,
?travels across the systems of one company: Cisco Systems.? For the
NSA, this is an opportunity. In 1999, Terry Thompson, then the NSA
deputy director for services, said, ?[Y]ou can see down the road two
or three or five years and say, ?Well, I only need this person to do
reverse-engineering on Cisco routers (that?s a good example) for
about three or five years, because I see Cisco going away as a key
manufacturer for routers and so I don?t need that expertise. But I
really need somebody today and for the next couple of years who
knows Cisco routers inside and out and can help me understand how
they?re being used in target networks.??
The Temptations of Secrecy
he National Security Agency was born in absolute secrecy. Unlike the
CIA, which was created publicly by a congressional act, the NSA was
brought to life by a top-secret memorandum signed by President
Truman in 1952, consolidating the country?s various military sigint
operations into a single agency. Even its name was secret, and only
a few members of Congress were informed of its existence?and they
received no information about some of its most important activities.
Such secrecy has lent itself to abuse.
During the Vietnam War, for instance, the agency was heavily
involved in spying on the domestic opposition to the government.
Many of the Americans on the watch lists of that era were there
solely for having protested against the war. Among the names in the
NSA?s supercomputers were those of the folk singer Joan Baez, the
pediatrician Benjamin Spock, the actress Jane Fonda, the
civil-rights leader Martin Luther King Jr., and the newspaper editor
David Kahn, whose standard history of cryptology, The Codebreakers,
contained information the NSA viewed as classified. Even so much as
writing about the NSA could land a person a place on a watch list.
The NSA, on behalf of the FBI, was also targeting religious groups.
?When J. Edgar Hoover gives you a requirement for complete
surveillance of all Quakers in the United States,? recalled Frank
Raven, a former senior NSA official, ?and when Richard M. Nixon is a
Quaker and he?s the president of the United States, it gets pretty
funny.?
f course, such abuses are hardly the exclusive province of the NSA;
history has repeatedly shown that simply having the ability to
eavesdrop brings with it the temptation to use that ability?whatever
the legal barriers against that use may be. For instance, during
World War I, the government read and censored thousands of
telegrams?the e-mail of the day?sent hourly by telegraph companies.
Though the end of the war brought with it a reversion to the Radio
Act of 1912, which guaranteed the secrecy of communications, the
State and War Departments nevertheless joined together in May of
1919 to create America?s first civilian eavesdropping and
code-breaking agency, nicknamed the Black Chamber. By arrangement,
messengers visited the telegraph companies each morning and took
bundles of hard-copy telegrams to the agency?s offices across town.
These copies were returned before the close of business that day.
A similar tale followed the end of World War II. In August of 1945,
President Truman ordered an end to censorship. That left the Signal
Security Agency (the military successor to the Black Chamber, which
was shut down in 1929) without its raw intelligence?the telegrams
provided by the telegraph companies. The director of the SSA sought
access to cable traffic through a secret arrangement with the heads
of the three major telegraph companies. The companies agreed to turn
all telegrams over to the SSA, under a plan code-named Operation
Shamrock. It ran until the government?s domestic spying programs
were publicly revealed, in the mid-1970s. The discovery of such
abuses in the wake of the Watergate scandal led Congress to create
select committees to conduct extensive investigations into the
government?s domestic spying programs: their origin, extent, and
effect on the public. The shocking findings turned up by the Church
Committee finally led to the formation of permanent Senate and House
intelligence committees, whose primary responsibility was to protect
the public from future privacy abuses. They were to be the FISA
court?s partner in providing checks and balances to the
ever-expanding U.S. intelligence agencies. But it remains very much
an open question whether these checks are up to the task at hand.
Who Watches the Watchmen?
Today, the NSA has access to more information than ever before.
People express their most intimate thoughts in e-mails, send their
tax returns over the Internet, satisfy their curiosity and desires
with Google searches, let their hair down in chat rooms, discuss
every event over cell phones, make appointments with their
BlackBerrys, and do business by computer in WiFi hot spots.
NSA personnel, the customs inspectors of the information
superhighway, have the ultimate goal of intercepting and reviewing
every syllable and murmur zapping into, out of, or through the
United States. They are close to achieving it. More than a dozen
years ago, an NSA director gave an indication of the agency?s
capability. ?Just one intelligence-collection system,? said Admiral
William O. Studeman, referring to a listening post such as Sugar
Grove, ?can generate a million inputs per half hour.? Today, with
the secret cooperation of much of the telecommunications industry,
massive dishes vacuuming the airwaves, and electronic ?packet
sniffers,? software that monitors network traffic, diverting e-mail
and other data from fiber-optic cables, the NSA?s hourly take is in
the tens of millions of communications. One transatlantic
fiber-optic cable alone has the capacity to handle close to 10
million simultaneous calls. While most communications flow through
the NSA?s electronic net unheard and unread, those messages
associated with persons on the agency?s watch lists?whether guilty
or innocent?get kicked out for review.
As history has shown, the availability of such vast amounts of
information is a temptation for an intelligence agency. The criteria
for compiling watch lists and collecting information may be very
strict at the beginning of such a program, but the reality?in a sort
of bureaucratic law of expansion?is that it will draw in more and
more people whose only offense was knowing the wrong person or
protesting the wrong war.
Moreover, as Internet and wireless communications have grown
exponentially, users have seen a corresponding decrease in the
protections provided by the two institutions set up to shield the
public from eavesdroppers. The first, the FISA court, has simply
been shunted aside by the executive branch. The second, the
congressional intelligence committees, have quite surprisingly
abdicated any role. Created to be the watchdogs over the
intelligence community, the committees have instead become its most
enthusiastic cheerleaders. Rather than fighting for the public?s
privacy rights, they are constantly battling for more money and more
freedom for the spy agencies.
Last November, just a month before The New York Times broke the
story of the NSA?s domestic spying, the American Bar Association
publicly expressed concern over Congress?s oversight of FISA
searches. ?The ABA is concerned that there is inadequate
congressional oversight of government investigations undertaken
pursuant to the Foreign Intelligence Surveillance Act,? the group
stated, ?to assure that such investigations do not violate the
First, Fourth, and Fifth Amendments to the Constitution.? And while
the administration did brief members of Congress on the decision to
bypass FISA, the briefings were limited to a ?Gang of Eight??the
majority and minority leaders of the House and Senate and the
chairmen and ranking members of the two intelligence committees.
None of the lawmakers insisted that the decision be debated by the
joint committees, even though such hearings are closed.
Frank Church, the Idaho Democrat who led the first probe into the
National Security Agency, warned in 1975 that the agency?s
capabilities
could be turned around on the American people, and no American would
have any privacy left, such [is] the capability to monitor
everything: telephone conversations, telegrams, it doesn?t matter.
There would be no place to hide. If this government ever became a
tyranny, if a dictator ever took charge in this country, the
technological capacity that the intelligence community has given the
government could enable it to impose total tyranny, and there would
be no way to fight back, because the most careful effort to combine
together in resistance to the government, no matter how privately it
is done, is within the reach of the government to know. Such is the
capacity of this technology.
It was those fears that caused Congress to enact the Foreign
Intelligence Surveillance Act three years later. ?I don?t want to
see this country ever go across the bridge,? Senator Church said. ?I
know the capacity that is there to make tyranny total in America,
and we must see to it that [the National Security Agency] and all
agencies that possess this technology operate within the law and
under proper supervision, so that we never cross over that abyss.
That is the abyss from which there is no return.?
Copyright © 2006 by The Atlantic Monthly Group
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