WASHINGTON – In the weeks after the Sept. 11 attacks, Vice President Dick Cheney and his top legal adviser argued that the National Security Agency should intercept purely domestic telephone calls and e-mail messages without warrants in the hunt for terrorists, according to two senior intelligence officials.
Gen. Michael Hayden
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But NSA lawyers, trained in the agency's strict rules against domestic spying and reluctant to approve any warrantless eavesdropping, insisted that it should be limited to communications into and out of the country, the officials said.
The NSA's position ultimately prevailed. Details have not emerged publicly of how the director of the agency at the time, Gen. Michael Hayden, designed the program, persuaded wary NSA officers to accept it and sold the White House on its limits.
Whatever the internal deliberations in late 2001, Hayden was the program's overseer and has become its chief salesman. He is certain to face questions about his role when he appears at a Senate hearing this week on his nomination as director of the Central Intelligence Agency. Criticism of the surveillance program flared again last week with the disclosure that the NSA had collected the phone records of millions of Americans to track terror suspects.
By several accounts, Hayden, who left the agency last year to become principal deputy director of national intelligence, was the man in the middle as President Bush demanded that intelligence agencies act urgently to stop future attacks.
On one side was a strong-willed vice president and his longtime legal adviser, David Addington, who believed that the Constitution permitted spy agencies to take sweeping measures to defend the country. Later, Cheney would personally arrange tightly controlled briefings on the program for select members of Congress.
On the other side was the largest U.S. intelligence agency, which was battered by eavesdropping scandals in the 1970s and has since wielded its powerful technology with extreme care to avoid accusations of spying on Americans.
As in other areas of intelligence collection, including interrogation methods for suspected terrorists, Cheney and Addington took an aggressive view of what was permissible under the Constitution, the two intelligence officials said.
If people suspected of links to al-Qaeda made calls inside the United States, Cheney and Addington thought eavesdropping without warrants “could be done and should be done,” one of them said.
He added: “That's not what the NSA lawyers think.”
The other official said there was “a very healthy debate” over the issue. The vice president's staff was “pushing and pushing, and it was up to the NSA lawyers to draw a line and say absolutely not.”
Both officials said they were speaking about the internal discussion because of the importance of the national security and civil liberty issues involved and because the interplay between Cheney's office and the intelligence agencies is usually hidden from public view.
Cheney's spokeswoman, Lee Anne McBride, declined to discuss the deliberations about the classified program.
“As the administration, including the vice president, has said, this is terrorist surveillance, not domestic surveillance,” McBride said. “The vice president has explained this wartime measure is limited in scope and conducted in a lawful way that safeguards our civil liberties.”
Spokesmen for the NSA and for Hayden declined to comment.
Even with the NSA lawyers' reported success in narrowing the program, critics say it is nonetheless illegal and that it should have never been created. For the first time since the Foreign Intelligence Surveillance Act was passed in 1978, the NSA was targeting Americans and others inside the country for eavesdropping without warrants.
The spying that would become such a divisive issue for the White House and for Hayden grew out of a meeting days after the Sept. 11 attacks, when President Bush gathered his senior intelligence aides to brainstorm about ways to head off another attack.
“Is there anything more we could be doing, given the current laws?” the president later recalled asking.
Hayden stepped forward. “There is,” he said, according to Bush's recounting of the conversation in March during a meeting in Cleveland.
By all accounts, Hayden was the principal designer of the plan. He saw the opportunity to use the NSA's enormous technological capabilities by loosening restrictions on the agency's operations inside the United States.
For his part, Cheney helped justify the program with an expansive theory of presidential power.
Cheney traced his views to his service as chief of staff to President Gerald Ford in the 1970s, when post-Watergate reforms, which included the FISA law, “served to erode the authority I think the president needs to be effective, especially in a national security area.”
Senior intelligence officials outside the NSA who discussed the matter in late 2001 with Hayden said he accepted the White House and Justice Department argument that the president, as commander in chief, had the authority to approve such eavesdropping.
“Hayden was no cowboy on this,” said another former intelligence official who was granted anonymity because the program remains classified. “He was a stickler for staying within the framework laid out and making sure it was legal, and I think he believed that it was.”
The official said Hayden appeared particularly concerned about ensuring that one end of each conversation was outside the United States.
But critics of the program say the law does not allow spying on a caller in the United States without a warrant – no matter whether the call is domestic or international. “Both would violate FISA,” said Nancy Libin, staff counsel at the Center for Democracy and Technology, a civil liberties group.
Libin said limiting the warrantless intercepts to international calls “may have been a political calculation, because it sounds more reassuring.”
Despite the decision to target only international calls and e-mail messages, some domestic traffic was picked up inadvertently because of difficulties posed by cell phone and e-mail technology in determining whether a user is on U.S. soil.
And one government official, who had access to intelligence from the intercepts and was granted anonymity because of the classified nature of the program, believes that some of the purely domestic eavesdropping in the program's early phase was intentional.
A White House spokeswoman, Dana Perino, said yesterday, “NSA has not intentionally listened in on domestic-to-domestic calls without a court order.”
President Bush and other officials have denied that the program monitors any domestic calls. They have, however, generally stated their comments in the present tense, leaving open the question of whether domestic calls may have been captured before the program's rules were fully established.
