Steve Inskeep: When President Bush said he authorized eavesdropping without warrants in the US, he raised as many questions as he answered. The President was responding to a report in the New York Times which has since said the program was even more widespread than the President acknowledged. What is not clear is exactly why the NSA is conducting the surveillance without warrant. Ever since the 1970's, a secret federal court has been empowered to review evidence and permit surveillance within the law. One person who's looking at the clues is Timothy Naftali who has written about intelligence matters. To understand what the NSA is doing, he tries to understand the problem that the government would be trying to solve.
[NB: There have been reports as late as today that NSA, in spite of protests to the contrary, continues to put "cookies" on the hard drive of visitors to their site. The link above is not to NSA's site, but to an informational site about NSA with a link to the agency's site for those who'd like to see it.]
Timothy Naftali: If you accept, as I do, that there is the possibility of Al Qaeda or its affiliates having cells in this country, how do you monitor these people if they're changing their cellphones and if they're moving from computer to computer? How do you do that?
SI: The Patriot Act appeared to address that very problem. It made it possible to give a warrant that will follow an individual from one telephone to another..
TN: What if you don't know the individual, Steve? What if you're looking for patterns of behavior? What if you don't know the individual's name?
SI: What if you don't know the number? How do you follow one person around when they're going into WalMart and buying a cellphone?
TN: You don't follow one person around. What you do is you listen to conversations.SI: You mean you listen to a million random conversations? in order to hear this guy?
TN: The White House is saying that it is very careful not to listen to point-to-point conversations in the US -- from one point in the US to another. But there is a way through data-mining to analyze where calls originate and where they go. This is basically an attempt to look for patterns, use of words, length of telephone call, length of email. frequency of these communications, both voice and data, and then to look for suspicious patterns. How do you define suspicious? I don't know. But the now deputy director of National Intelligence, Michael Hayden, has talked about their being a subtle, soft trigger. The computer learns what's suspicious and then it will act on its own. So what we're talking about is a higher order, a smarter Google, if you will.
SI: It matters a lot where the phone call is made to and from, right? whether it's inside the US or outside the US? How do you judge that question when it's an email that might bounce around the world, end up in a server in London on its way to San Francisco?
TN: That question is the reason why I'm convinced that the NSA is only looking at data transmissions that leave the country.
SI: Because you're saying the NSA can't necessarily know whether the email that's cranking through this system that we presume it has originated outside the US or going outside the US.
TN: It doesn't take great technological sophistication to bounce emails around, to hide where you're sending them and where they're coming from.
SI: I'm looking now at this letter from Sen. Jay Rockefeller, the senior Democrat in the Senate Intelligence Committee. He wrote a letter in 2003, a handwritten letter essentially recording what he'd been told about the program. And in the process of this, he says, I was told about this program and then got more concerned (I'm paraphrasing) it reminded me, he says in effect, of John Poindexter's TIA project. What is that?
TN: This was a data-mining project that was designed to develop an understanding about suspicious activity.
SI: Poindexter is a former White House official who formerly
TN: A former National Security advisor.
SI: We can assume that whatever the NSA was doing was similar. At least it was similar in the mind of Jay Rockefeller who was briefed on the NSA program.
TN: Of course. In preparing the new President Bush, the NSA produced a transition document where the NSA is teeing up this question for the new administration. It's not talking about data-mining. It's talking about the inability of the current legislative framework to deal with the kinds of data-gathering that the NSA is doing to have to do now and in the near future.
SI: Does the fact that the Administration went outside the system provide further clues as to what they may have been doing?
TN: Certainly! When this first leaked, it looked as if the Administration had a certain number of problem cases, a few hundred, that didn't fit in the FISA system. But as we learn more, it became apparent that you have a program that as generated hits, some of which are US persons.
SI: And you're supposed to get a warrant...
TN: You're supposed to get a warrant. How do you sustain those investigations under the law? when the law is designed to deal with identified suspects? That's the challenge.
SI: This has been a mystery to some people. How can we be talking about current law being outdated when the FISA, by all available evidence, has nearly always granted warrants when asked. Doesn't seem like that high a bar.
TN: It's not a high bar at all if you know the name of the individual. But -- again -- what if you're looking for suspicious data transmissions?
SI: If you're just looking for these patterns you can't even ask for a warrant?
TN: I don't think so. I don't think the law is designed for that.
SI: Mr. Naftali, thanks very much... Timothy Naftali is author of "Blind Spot: A Secret History of American Counterterrorism."
Available online through NPR:
The Rockefeller Letter (pdf)
Read a copy of a 2003 letter from Sen. John Rockefeller, D-W.Va., expressing his concern over a briefing about government surveilance activities.
NSA Transition Document (pdf)
This document is located at George Washington University's National Security Archive.
