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After much debate, the Ford administration in 1976 decided to support legislation requiring a warrant for the government to conduct electronic surveillance within the U.S. for foreign intelligence purposes, according to a memorandum prepared for President Ford by his counsel, Philip Buchen. (Photo: Gerald R. Ford Presidential Library)

Wiretap Debate Déjà Vu

Documents show Ford White House embraced wiretap law
instead of claiming "inherent" Presidential authority in 1976
despite objections from Rumsfeld, G.H.W. Bush, Kissinger

Web posting includes Justice report on criminal liability for 1970s
warrantless wiretapping, 1990s directives on US surveillance.

For more information contact
Thomas Blanton
202/994-7068

Posted - February 4, 2006

In the news

"For Some, Spying Controversy Recalls a Past Drama"
By Scott Shane
New York Times
February 6, 2006

"Spirited wiretap debate of '76"
By Tom Brune
Newsday
February 5, 2006

"Papers: Ford White House Weighed Wiretaps"
By Margaret Ebrahim
Associated Press (via WashingtonPost.com)
February 4, 2006

Related posting

The National Security Agency Declassified

Washington, D.C., February 4, 2006 - Despite objections from then-Secretary of Defense Donald Rumsfeld and then-CIA director George H. W. Bush, President Gerald Ford came down on the side of a proposed federal law to govern wiretapping in 1976 instead of relying on the "inherent" authority of the President because the "pros" outweighed the "cons," according to internal White House documents obtained through the Freedom of Information Act and posted on the Web today by the National Security Archive at George Washington University.

After much debate, the Ford administration in 1976 decided to support legislation requiring a warrant for the government to conduct electronic surveillance within the U.S. for foreign intelligence purposes, according to this memorandum prepared for President Ford by his counsel, Philip Buchen.

White House counsel Philip Buchen described a Situation Room meeting on March 12, 1976 with Rumsfeld, Secretary of State Henry Kissinger, Bush, national security adviser Brent Scowcroft, and attorney general Edward Levi (notably absent was White House chief of staff Richard Cheney) in which Buchen's and Levi's outline of the advantages of a wiretapping law reduced the "adamant opposition" to neutrality, allowing Levi to testify before Congress in favor of a wiretapping statute on March 29, 1976.

Buchen's talking points said the proposed law (ultimately enacted as the Foreign Intelligence Surveillance Act of 1978, or FISA) "avoids likelihood that … courts will eventually decide a warrant is required," "eliminates question of validity of evidence obtained," "protects cooperating communications carriers," and would not "materially inhibit surveillance of these kinds of targets."

On the "cons" side of his talking points, Buchen described exactly the arguments against such a law that the Bush administration has now adopted as the basis for its warrantless wiretapping: "requires resort to the judiciary for exercise of an inherent Executive power" and "could result in troublesome delays or even a denial of authority in particular cases."

"Yogi Berra was right, the current wiretapping debate is déjà vu all over again, except that President Bush has come down on the con side against the law," remarked Thomas Blanton, director of the National Security Archive.

Chief of Staff Donald Rumsfeld, President Gerald Ford and Deputy Chief of Staff Richard Cheney at the White House, April 28, 1975 (Photo: Gerald R. Ford Presidential Library)

Today's posting also includes the TOP SECRET Justice Department reports in June 1976 and March 1977 on the potential criminal liability of the National Security Agency and the Central Intelligence Agency for operations such as SHAMROCK (interception of all international cable traffic from 1945 to 1975) and MINARET (use of watchlists of U.S. dissidents and potential civil disturbers to provide intercept information to law enforcement agencies from 1969 to 1973). Justice released these reports to author James Bamford under the Freedom of Information Act in the late 1970s, but in 1981, the NSA persuaded Justice to threaten Bamford with prosecution for "possession of classified information," a threat that helped Bamford's book The Puzzle Palace become a best-seller.

The Justice Department in the reports ultimately recommended against prosecution, concluding that "If the intelligence agencies possessed too much discretionary authority with too little accountability, that would seem to be a 35-year failing of Presidents and the Congress rather than the agencies" (p. 171, 30 June 1976).

"Federal employees who are carrying out President Bush's warrantless wiretapping will be especially interested in the Justice Department's 1976 assessment of whether such wiretapping makes them criminally liable," commented Blanton. "One of the main reasons the Ford administration supported having a law that governed wiretapping was that such a law would protect government officials and the telecom companies as long as they followed the law."

The Archive's posting, compiled by senior fellow Dr. Jeffrey Richelson (author of the forthcoming book, Spying on the Bomb), includes key historic documents brought to light by the Church Committee investigations of intelligence abuses, and a series of National Security Agency documents from the 1990s released under the Freedom of Information Act that describe the limits imposed by FISA and the Fourth Amendment on surveilling U.S. persons.

The posting also includes two important studies by the now-defunct Office of Technology Assessment in 1985 and 1995 on the challenges of electronic surveillance and civil liberties in a digital age, as well as a wide range of key documents from the current wiretapping debate, as featured on the www.cnss.org/fisa web site (complete legislative history of the FISA), the www.fas.org web site (the Project on Government Secrecy has published the relevant Congressional Research Service studies, among other important documents), and www.epic.org which published the FBI's 2002 guide, "What do I have to do to get a FISA?"


Electronic Surveillance
From the Cold War to Al-Qaeda

National Security Archive Electronic Briefing Book No. 178
Edited by Jeffrey Richelson and Thomas Blanton

On December 16, 2005, The New York Times published a front-page story revealing that months after Al-Qaeda's September 11, 2001 attacks on the United States, President George W. Bush formally authorized the National Security Agency to monitor telephone conversations and e-mails of Americans and other individuals, originating in the United States, without the court-approved warrants usually required for domestic surveillance. The monitoring program was reported to consist of targeting the telephone and e-mail communications of hundreds and perhaps thousands of people inside the United States - with about 500 being monitored at any one time. Purely domestic communications, according to the story, were still monitored only after a warrant was obtained from the Foreign Intelligence Surveillance Court (FISC). (Note 1)

Further reporting, since the initial revelation by the Times, has added to information and claims about the program. It has become known that NSA began the warrantless eavesdropping effort prior to receiving formal approval from President Bush; that the operation involved NSA obtaining the cooperation of American telecommunication companies, which allowed the agency to tap "directly into some of the American telecommunication system's main arteries"; that the information gathered was turned over to other agencies, including the Defense Intelligence Agency, which compared the information with data from other sources; and some purely domestic communications (which both originated and terminated in the United States) were accidentally intercepted. (Note 2)

The revelations about the eavesdropping program have produced numerous editorials (for and against), discussion of why the administration decided to by-pass the surveillance court, questions from the judges on the Foreign Intelligence Surveillance Court, criticism and support of the program from members of Congress on both sides of the aisle, and defense of the program, in oral and written form, from the president, vice-president, senior intelligence officials, and the Justice Department. The legality of the program, the adequacy of administration briefings to members of Congress, and the program's effectiveness have been challenged and defended. Two inquiries are planned or in progress-a Congressional inquiry as well as investigation by NSA's inspector general-and two lawsuits have been filed demanding that the program he halted immediately. (Note 3)

The controversy surrounding the program is not the first controversy concerning whether U.S. signals intelligence and electronic surveillance activities might compromise the Fourth Amendment rights of U.S. persons. (Note 4) In the years immediately prior to 9/11, press coverage of the NSA's ECHELON program-the placement of computer software at selected satellite ground stations operated by the NSA and key allies that allowed keyword sorting of some of the international communications relayed through commercial communications satellites and intercepted at those ground stations-resulted in concern that the privacy of Americans (as well as foreign nationals) would be sacrificed for the needs of U.S. foreign intelligence collection. (Note 5)

In the mid-1970s, several decades before ECHELON became an issue, as a result of a Senate investigation of intelligence community activities, it had been revealed that NSA had been conducting two programs of questionable propriety. One, SHAMROCK, originated in the days just after the conclusion of the Second World War. It involved U.S. communications companies giving NSA access to the cable traffic passing through the companies' facilities. The second, MINARET, created a watch list of U.S. persons-including military deserters and those involved in civil disturbances and antiwar movements and demonstrations-whose communications were to be monitored. Included on the watch list were a number of anti-war activists, including Joan Baez, Jane Fonda and Dr. Benjamin Spock. (Note 6)

The concern over NSA's domestic intelligence activities resulted in the 1978 passage of the Foreign Intelligence Surveillance Act (FISA). The Act established the three-judge Foreign Intelligence Surveillance Court to review applications for monitoring the communications (at the time, almost exclusively conventional telephone communications) of U.S. persons suspected of involvement in espionage or terrorist activities. It also created a review process in the event the U.S. government was displeased with the court's decision.

The requirement to obtain court-orders for wiretaps of U.S. persons did not prevent NSA from intercepting the communications of Americans when the intercept was the result of targeting a non-U.S. person at a communications node outside of the United States - an activity whose legality survived a challenge before the Supreme Court. But NSA operated under restrictions concerning how much information about the American participating in the intercepted conversation could be incorporated in intelligence reports or employed for law-enforcement purposes. In many cases the name or other identifying information would have to be removed and replaced by a term such as "U.S. person." Such restrictions were first codified in the 1980 United States Signals Intelligence Directive "Limitations and Procedures in Signals Intelligence Operations of the USSS" (USSID 18), which was updated in 1993. (Note 7)

The collection of documents concerning U.S. electronic surveillance activities presented here stretch from the later Cold War years to today. Among the documents included are memoirs of the SHAMROCK investigation, pre-9/11 NSA memos on electronic surveillance, several expressions of Congressional concern concerning the current warrantless eavesdropping program, a variety of administration defenses of the program, and several Congressional Research Service analyses of the legality of the program and the adequacy of administration briefings to Congress.


Documents
Note: The following documents are in PDF format.
You will need to download and install the free Adobe Acrobat Reader to view.

Document 1: National Security Agency, Charter for Sensitive SIGINT Operation MINARET, July 1, 1969. Classification Not Available
Source: Senate Select Committee to Study Governmental Operations with Respect to Intelligence Activities, The National Security Agency and Fourth Amendment Rights (Washington, D.C.: U.S. Government Printing Office, 1976) via http://www.aarclibrary.org

This memo, from an assistant director of NSA, establishes the MINARET program and notes that it specifically includes communications "concerning individuals or organizations involved in civil disturbances, anti-war movements/demonstrations and military deserters involved in anti-war movements" and information on organizations or governments that might influence them. It also notes that an important reason for establishing the program is to restrict knowledge that such information is being collected and processed by NSA.

Document 2: Vice Admiral Noel Gayler, Director, National Security Agency, Memorandum for the Secretary of Defense, The Attorney General, January 26, 1971. Classification Not Available
Source: Senate Select Committee to Study Governmental Operations with Respect to Intelligence Activities, The National Security Agency and Fourth Amendment Rights (Washington, D.C.: U.S. Government Printing Office, 1976) via http://www.aarclibrary.org

The director of NSA prepared this memo following a meeting with the Attorney General and Secretary of Defense, spelling out "the agreed ground rules on NSA contributions to intelligence bearing on domestic problems." Specific topics covered include the character of the NSA activity, as well as the source of intercepted communications, the operations scope, and procedures to be followed.

Document 3: Attorney General Elliot Richardson, Letter, to Lt. General Lew Allen Jr., Director National Security Agency, October 1, 1973. Classification Not Available
Source: Senate Select Committee to Study Governmental Operations with Respect to Intelligence Activities, The National Security Agency and Fourth Amendment Rights (Washington, D.C.: U.S. Government Printing Office, 1976) via http://www.aarclibrary.org

In this letter the Attorney General informs the director of NSA that he has recently discovered NSA had been disseminating intelligence to the FBI and Secret Service obtained through NSA electronic surveillance operations, conducted in response to requests from those agencies. Richardson goes on to request that NSA refrain from providing further intercept-derived domestic intelligence to other agencies until he further considers the implication of a recent court decision.

Document 4: Lt. Gen. Lew Allen Jr., Director, National Security Agency,Letter, to Honorable Elliot L. Richardson, October 4, 1973. Classification Not Available
Source: Senate Select Committee to Study Governmental Operations with Respect to Intelligence Activities, The National Security Agency and Fourth Amendment Rights (Washington, D.C.: U.S. Government Printing Office, 1976) via http://www.aarclibrary.org

In his response to the Attorney General's October 1 letter (Document 3), NSA director Allen tries to alleviate Richardson's concerns. He notes that the messages passed on to organizations such as the FBI and Secret Service are based on a watch list, and are "always by-products of the foreign communications we intercept in the course of our . . . foreign intelligence activities" -- but that he has directed that, pending legal advice, no further information be disseminated to the FBI and Secret Service.

Document 5: Gerald R. Ford, Memorandum for the Attorney General, December 19, 1974. Top Secret
Source: Gerald R. Ford Library

In this memo, President Gerald Ford "reaffirms and renews" the delegation of power to the Attorney General to approve, "without prior judicial warrant," specific electronic surveillance within the United States. The memo gives standards and procedures for the exercise of that authority, including specification that the electronic surveillance is necessary for one of four reasons, and that the subject of the surveillance "is assisting a foreign power or foreign-based political group, or plans unlawful activity directed against a foreign power or foreign-based political group." It does not impose any restrictions based on the nationality or residence of the target of the proposed surveillance.

Document 6: Philip W. Buchen, Memorandum for: The President, Subject: Warrantless Electronic Surveillance, August 13, 1975. Top Secret
Source: Gerald R. Ford Library

This memo to President Ford focuses on the concerns of different departments with the provisions of President Ford's December 19 memorandum and the impact of a June 23, 1975 U.S. Court of Appeals for the District of Colombia decision. The appeals court reversed a lower court decision and declared unconstitutional warrantless electronic surveillance of the Jewish Defense League (JDL), despite the League's involvement in violent harassment of foreign government officials, on the grounds that the JDL was a domestic organization and was not the agent of, or acting in collaboration with, a foreign power.

Document 7: Philip W. Buchen, Memorandum for: The President, Subject: Warrantless Electronic Surveillance, January 12, 1976. Top Secret/Sensitive
Document 7 [Tab C]: Edward H. Levi, Memorandum for: The President, January 6, 1976. Top Secret
Document 7 [Tab D draft]: Memorandum for: The Attorney General, undated draft. Top Secret
Document 7 [Tab D final]: President Gerald R. Ford, Memorandum for: The Attorney General, January 12, 1976. Top Secret

Source: Gerald R. Ford Library, Philip Buchen Files, Box No. 26, "National Security Advisor Chronological File"

Tab B to the January 12 memo remains classified and is the subject of a declassification review request by the National Security Archive.

In a series of several memos between the Ford White House and the Department of Justice, dated late 1974 to early 1976, the administration debated the legality of warantless electronic surveillance in the U.S. The January 12 memo contained several attachments, including the December 19, 1974 memo (Document 5), in which the president endorsed the power of the Attorney General, by delegation, to conduct such warrantless surveillance.

A January 6, 1976 memo from the AG (at Tab C) referred to two existing National Security Agency operations: (1) "the monitoring of the Soviets' interception of American telephone calls," and (2) "the direct interception of radio communications between terminals abroad and brtween a terminal in the United States and a terminal abroad." The memo states that DOJ had been "reviewing" these operations and had developed strict minimization procedures for the first operation which would "bring the operation clearly within the reasonableness requirement of the Fourth Amendment" by limiting retention and dissemination of information collected. Despite the December 19, 1974 delegation of authority to the AG, Levi nonetheless sought the president's "confirmation" of his interpretation of that memo before authorizing the specified surveillance operations. Questions about the second surveillance program remained unresolved.

Finally, Buchen attached at Tab D a response memo to the Attorney General, which he recommended the President signed. The memo, "drafted by the Attorney General and approved by the Secretary of Defense" as well as by National Security Adviser Brent Scowcroft, states that the referenced NSA surveillance operation was properly subject to the December 19 delegation and could therefore be approved by the AG with "such additional safeguards concerning minimization and subsequent use as the special nature of those activities may in [his] opinion require." A final version of the memo, dated January 12, 1976, includes revised language directing the AG to communicate to the president any decision to withhold or terminate his authorization for any foreign intelligence surveillance operations; this version bears President Ford's signature.

Document 8: Philip W. Buchen, Memorandum for: The President, Subject: Legislation on Electronic Surveillance for Foreign Intelligence Purposes, March 15, 1976. Top Secret
Document 8 [Tab 1]: Philip W. Buchen, Talking Points, Meeting: March 12, 1976, at 10:30 a.m. in White House Situation Room, Subject: Legislation on Electronic Surveillance for Foreign Intelligence Purposes, March 12, 1976

Source: Gerald R. Ford Library, Presdiential Handwriting File, Box No. 31, "National Security Intelligence"

Tab II to the March 15 memo remains classified and is the subject of a pending declassification review request by the National Security Archive.

After much debate, the Ford administration in 1976 decided to support legislation requiring a warrant for the government to conduct electronic surveillance within the U.S. for foreign intelligence purposes, according to a memorandum prepared for President Ford by his counsel, Philip Buchen. "In an effort to resolve ... differences" among the key players in the administration on the matter, Buchen and Counselor to the President Jack Marsh convened a meeting on March 12, 1976 in the White House situation room; in attendance were Secretary of State Henry Kissinger, Secretary of Defense Donald Rumsfeld, National Security Advisor Brent Scowcroft, CIA Director George Bush, and Attorney General Ed Levi. White House Chief of Staff Dick Cheney was notably absent from this meeting. After a "lengthy discussion," Buchen was satisfied that "the others had a better understanding as to why" he, Marsh, and Levi favored the legislation as drafted, and he "detect[ed] no adamant opposition" remaining from "those who had previously questioned aspects of the proposed legislation." Congress ultimately followed the administration's recommendation when it enacted FISA in 1978.

In accompanying talking points prepared for the meeting, Buchen outlined the pros and cons of the statutory approach. In particular, he favored the requirement of a warrant for surveillance because such an approach "[a]voids likelihood that in absence of legislation, courts will eventually decide a warrant is required in such cases," "[e]liminates question of validity of evidence obtained," "[p]rotects cooperation communications carriers and landlords and protects against charges of criminal trespasses," and "[a]voids having legislation which is designed solely to permit [redacted] when such activities are relatively a minor portion of the electronic surveillance program and key members of the Senate Judiciary Committee want the legislation to include [redacted] surveillance"; moreover, "[t]he stated tests for obtaining a warrant are not of a kind which will materially inhibit surveillance of these kinds of targets." Anticipating counter-arguments, the document presents potential challenges to the legislation as drafted, including that it "[u]nnecessarily requires resort to the judiciary for exercise of an inherent Executive power, especially in cases where only communications of [redacted] are involved"; "[m]akes warrants mandatory even in the area of communications [redacted] that are not of significant concern to the Congress, when warrants in cases [redacted] might better be made optional in the discretion of the Executive"; and "[c]ould result in troublesome delays or even a denial of authority in particular cases." He also weighs the specifics of the test on which decisions to grant warrants would be based.

On March 29-30, 1976, Attorney General Levi testified before the Senate Judiciary Committee <http://www.cnss.org/fisa032976.pdf> in support of the Foreign Intelligence Surveillance Act.

Document 9a: Department of Justice, Report on the Inquiry into CIA-Related Electronic Surveillance Activities, June 30, 1976. Top Secret
Document 9b: Department of Justice, George W. Calhoun, Chief, Special Litigation, Memorandum for: Robert L. Keuch, Deputy Assistant Attorney General, Subject: Prosecutive Summary, March 4, 1977. Top Secret.
Source: James Bamford, Freedom of Information Act Request. See Bamford, "Big brother is listening: Why this article will be closely read at the National Security Agency," Washington Post Magazine, December 4, 1983, p. 34.

These two documents report on the findings of a Department of Justice inquiry conducted to determine if criminal prosecutions of government personnel were warranted based on their conduct of electronic surveillance. The report addressed the findings of the Rockefeller Commission (on CIA Activities), and examined a variety of CIA and NSA eavesdropping operations, purported sources of authority for the operations, possible violations of law, and possible defenses. The Justice Department in the reports ultimately recommended against prosecution, concluding that "If the intelligence agencies possessed too much discretionary authority with too little accountability, that would seem to be a 35-year failing of Presidents and the Congress rather than the agencies" (p. 171, 30 June 1976). Justice released these reports to author James Bamford under the Freedom of Information Act at the end of the Carter administration, but in 1981, the NSA persuaded Justice to threaten Bamford with prosecution for "possession of classified information" if he did not return the documents, a threat that helped Bamford's book The Puzzle Palace become a best-seller.

Document 10: U.S. Congress, Foreign Intelligence Surveillance Act, 1978. Unclassified
Source: Center for National Security Studies, Foreign Intelligence Surveillance Act, Legislative History, at http://www.cnss.org/fisa.htm.

In response to revelations concerning the MINARET and SHAMROCK programs, Congress passed this act to codify the process of authorizing electronic surveillance for foreign intelligence purposes. It created the Foreign Intelligence Surveillance Court and defined its responsibilities, specified the process for obtaining warrants, and established a court of review.

Document 11: Jimmy Carter, Executive Order 12139, Foreign Intelligence Electronic Surveillance, May 23, 1979. Unclassified
Source: Federal Register, 44, 103, May 25, 1979

In this executive order, President Carter authorizes the Attorney General to approve warrantless electronic surveillance in order to obtain foreign intelligence if the Attorney General makes the certifications required according to the Foreign Intelligence Surveillance Act-that the means of communications being used are exclusively between or among foreign powers or the objective is collect technical intelligence from property or premises under the "open and exclusive" control of a foreign power, and that there is no substantial likelihood that the surveillance will acquire the contents of any communication involving a United States person.

Document 12: Office of Technology Assessment, Electronic Surveillance and Civil Liberties, 1985. Unclassified
Source: Government Printing Office

This report, by the now-defunct Congressional Office of Technology Assessment (OTA), examines how changes in technology-including the introduction of cordless and cellular telephones -- would or could impact the opportunities for and vulnerabilities to electronic surveillance, and the consequences for civil liberties.

Document 13a: National Security Agency, Foreign Intelligence Surveillance Act, no date. For Official Use Only
Document 13b: National Security Agency, The Five Electronic Surveillance Questions, no date. Top Secret

Source: Freedom of Information Act Request

These undated documents (from sometime in the 1990s), provide a brief summary of key questions involved in implementation of the FISA. Document 11a distinguishes four categories of electronic surveillance and defines targets, U.S. persons, and contents. Document 11b poses questions and provides answers concerning the nature and location of the target, as well as the communications to be intercepted.

Document 14: National Security Agency, Summary of the Main Provisions of USSID 18, September 3, 1991. Secret
Source: Freedom of Information Act Request

This summary provides a list of do and don't concerning the collection, processing, retention, and dissemination of intercepted communications involving a U.S. person.

Document 15: Office of Technology Assessment, Electronic Surveillance in a Digital Age, July 1995. Unclassified
Source: Government Printing Office

This study, written a decade after the OTA study on electronic surveillance and civil liberties (Document 7) focuses on electronic surveillance for law-enforcement, rather than foreign intelligence, purposes. Its relevance lies in its treatment of how the changing technology of communications in the digital age (circa 1995)-including fiber optics and the use of computers for directing and processing calls-influences law enforcement agencies' ability to conduct electronic surveillance.

Document 16: National Security Agency, Standard Minimization Procedures for NSA Surveillance, no date (but after July 1, 1997). Secret
Source: Freedom of Information Act Request

These guidelines, approved by Attorney General Janet Reno on July 1, 1997, pertain to the acquisition, retention, use, and dissemination of non-publicly available information concerning non-consenting U.S. persons collected in the course of electronic surveillance approved by the Foreign Intelligence Surveillance Court or authorized by the Attorney General under the provisions of the FISA.

Document 17: National Security Agency, Collection, Processing, Retention, and Dissemination of "Domestic" Communications under the Foreign Intelligence Surveillance Act - INFORMATION MEMORANDUM, February 25, 1998. Secret
Source: Freedom of Information Act Request

Domestic communications are defined in this memo as any communication with both parties in the United States except when both parties are foreign powers and/or officers or employees of foreign powers (also referred to as "agents of a foreign power"). As the memo's title indicates, it focuses on various aspects of the handling of domestic communications required by the Foreign Intelligence Surveillance Act.

Document 18: L. Britt Snider, "Recollections from the Church Committee's Investigation of NSA," Studies in Intelligence, Winter 1999/2000, pp. 43-51
Source: http://www.cia.gov/csi/studies/winter99-00/art4.html

This article represents the recollections of staff member of the Select Committee to Study Governmental Operations with Respect to Intelligence Activities (better known as the Church Committee), which investigated the SHAMROCK program as part of its broader 1975 inquiry into the activities of the U.S. Intelligence Community.

Document 19: National Security Agency, Legal Standards for the Intelligence Community in Conducting Electronic Surveillance, February 2000. Unclassified
Source: http://www.fas.org/irp/nsa/standards.html

The Fiscal Year 2000 Intelligence Authorization Act required that the National Security Agency transmit a report summarizing the agency's understanding of the legal standards that authorized and constrained the electronic surveillance activities of the Intelligence Community. Topics covered include legal standards for (1) intercepts when the result may involve the acquisition of information from communications to or from a U.S. person; (2) for intentional targeting of communications to or from U.S. persons; (3) for receipt from non-U.S. sources of information pertaining to communication to or from United States persons; and (4) for the dissemination of information acquired through the interception of the communications to or from United States persons.

Document 20: Lt. Gen. Michael V. Hayden, NSA/CSS Operates Under the Rule of Law, April 12, 2000. Unclassified
Source: http://www.nsa.gov/releases/HPSCI_04122000/

This PowerPoint presentation, before the House Permanent Select Committee on Intelligence, was a response by NSA Director Hayden to the reports in the American and European press over the ECHELON program. Among the topics covered in the presentation are press claims, protections for U.S. persons, the FISA process, the aftermath of unintentional acquisition of information on U.S. persons, the restrictions on NSA activity imposed by the Constitution, federal laws, executive orders, regulations, and the oversight of compliance.

Document 21: Rules of the Foreign Intelligence Surveillance Court, November 29, 2000. Unclassified
Source: http://www.fas.org

This document specifies, inter alia, the duties of the presiding judge, the powers of individual judges, rules concerning submission of applications, procedure on denial of applications, when the court meets, and its rules of decision.

Document 22a: Letter, Representative Nancy Pelosi to Lt. Gen. Michael V. Hayden, Director, National Security Agency, October 11, 2001. Top Secret
Document 22b: Letter, Lt. Gen. Michael V. Hayden, Director, National Security Agency to Representative Nancy Pelosi, October 18, 2001. Secret
Source: http://www.house.gov/pelosi/press/releases/Jan06/declassified.html

These two documents are an exchange of letters from October 2001, written by then-ranking member on the House Permanent Select Committee on Intelligence (HPSCI) Nancy Pelosi to National Security Agency Director Michael V. Hayden. In her letter, Pelosi expresses concerns regarding the electronic surveillance activities about which Hayden had testified in his October 1 appearance before the HPSCI. In his response, Hayden notes that his briefing was an attempt to "emphasize that I used my authorities to adjust NSA's collection and reporting."

Document 23: Department of Justice, In Re [deleted] on Appeal from the United States Foreign Intelligence Surveillance Court, Brief for the United States, No. 02-001, August 21, 2002. Classification Not Available
Source: http://www.fas.org

In August 2002, the Department of Justice appealed the Foreign Intelligence Surveillance Court modification of an application for a FISA warrant, arguing that the act did not restrict the government's intention to use foreign intelligence information in criminal prosecutions. It further argued that even had the law imposed such restrictions they were revoked by the provisions of the PATRIOT Act.

Document 24: Federal Bureau of Investigation, What do I have to do to get a FISA?, September 12, 2002. Classification Not Available
Source: http://www.epic.org

This memo provides a primer for FBI personnel on applying for a FISA warrant. It discusses the FISA Court, probable cause, the theory of the case, the importance of the target of the proposed surveillance being an agent of a foreign power, and certification.

Document 25: United States Foreign Intelligence Surveillance Court of Review, In re: Sealed Case No. 02-001, Consolidated with 02-002, November 18, 2002. Classification Not Available
Source: http://www.cnss.org/fisa.htm

This document conveys the decision of the FISA review court, which granted the Department of Justice's appeal (Document 23). In its conclusion the review court refers to "the President's inherent constitutional authority to conduct warrantless foreign intelligence surveillance."

Document 26: Letter, John Ashcroft, Attorney General to L. Ralph Mecham, Director, Administrative Office of the United States Courts, April 29, 2003. Unclassified
Source: http://www.epic.org

This letter from Attorney General Ashcroft constitutes the Department of Justice's annual report on FISA applications. Ashcroft notes that with the FISA review court's reversal of the FISC's two modifications of FISA warrant applications (Document 12) all 1228 warrant applications for 2002 were granted.

Document 27: Letter, Senator Jay D. Rockefeller to Vice President Richard Cheney, July 17, 2003. Unclassified
Source: http://www.epic.org

Senator Rockefeller's reservations about NSA's warrantless eavesdropping program were expressed in this letter to Vice President Cheney, without mention of any of the specifics. It was handwritten because none of the Senator's aides were cleared to receive information about the program.

Document 28: Elizabeth B. Bazan, Congressional Research Service, Intelligence Reform and Terrorism Prevention Act of 2004: "Lone Wolf" Amendment to the Foreign Intelligence Surveillance Act, December 29, 2004. Unclassified
Source: http://www.fas.org

The Intelligence Reform and Terrorism Prevention Act of 2004 amended the Foreign Intelligence Surveillance Act's definition of an "agent of a foreign power" to include a non-U.S. person who engages in international terrorism or activities in preparation for international terrorism. This study analyzes whether and how the modified definition impacts the procedures for seeking a FISA warrant, contents of FISA applications, and the basis for court decisions granting a warrant.

Document 29: Elizabeth B. Bazan, Congressional Research Service, Foreign Intelligence Surveillance Act: Selected Legislation from the 108th Congress, January 11, 2005. Unclassified
Source: http://www.fas.org

In the aftermath of the September 11 attacks, Congress considered or passed a number of bills, the most prominent being the PATRIOT Act, which affected or proposed changes to FISA provisions. This analysis examines two categories of bills-intelligence reform or reorganization proposals with FISA provisions and other FISA-related bills-and the impact of their passage on the Act.

Document 30: Elizabeth B. Bazan, Congressional Research Service, The Foreign Intelligence Surveillance Act: An Overview of the Statutory Framework and Recent Judicial Decisions, April 21, 2005. Unclassified
Source: http://www.fas.org

This study reviews both the statutory framework of the act as well as examining the Foreign Intelligence Surveillance Court decision that resulted in the government's August 2002 appeal, the appeal (Document 23), and the decision of the FISC Court of Review (Document 25).

Document 31: William E. Moschella, Assistant Attorney General, to Honorable Arlen Specter w/att: Follow up Questions from Chairman Specter, October 20, 2005, Unclassified
Source: http://www.fas.org

In the attachment to his letter, the assistant Attorney General provides answers to a number of questions posed by Senator Specter in an April 2005 hearing before the Senate Judiciary Committee. The questions concern the time required to obtain a surveillance order under FISA, the factors related to the time required, and whether the "Lone Wolf" provision has been employed (Document 17).

Document 32: The White House, President's Radio Address, December 17, 2005. Unclassified
Source: http://www.whitehouse.gov

This address by President Bush occurred only a day after The New York Times revealed that he had authorized NSA to conduct warrantless electronic surveillance and represents the first of a number of administration defenses of the program. After discussing the status of the effort to renew the PATRIOT act, he turns to the objectives, propriety, and review process connected with the eavesdropping effort.

Document 33a: The White House, Press Conference of the President, December 19, 2005. Unclassified
Source: http://www.whitehouse.gov
Document 33b: Office of the Director of National Intelligence, Press Briefing by Attorney General Albert Gonzales and General Michael V. Hayden, Principal Deputy Director of National Intelligence, December 19, 2005. Unclassified

Source: http://www.dni.gov

Two days after his radio address, the president held a press conference in which he discussed the warantless electronic surveillance program in more detail. That same day, the Attorney General and the principal deputy director of national intelligence held a press briefing at the White House devoted solely to the eavesdropping activity. In a brief statement before he and Hayden took questions, Gonzales argued that the Congressional use-of-force resolution passed after September 11 authorized the president to conduct surveillance and further that "the President has the inherent authority under the Constitution, as Commander-in-Chief, to engage in this kind of activity."

Document 34: Letter, William E. Moschella to Senator Pat Roberts, Senator John D. Rockefeller IV, Rep. Peter Hoekstra, and Rep. Jane Harman, December 22, 2005. Unclassified
Source: http://www.epic.org

This letter from the Assistant Attorney General to the chair and vice chair of the Senate Select Committee on Intelligence and the chair and ranking minority member of the House Permanent Select Committee on Intelligence is the first written, unclassified, legal opinion provided by the administration in defense of the post-9/11 warrantless electronic surveillance program. It refers to Article II of the U.S. Constitution, the post-9/11 Congressional resolution authorizing the use of force, and the November 18, 2002 decision by the Foreign Intelligence Surveillance Court of Review (Document 16)

Document 35: The White House, Setting the Record Straight: Critics Launch Attacks Against Program to Detect and Prevent Terrorist Attacks, January 4, 2006. Unclassified
Source: http://www.whitehouse.gov

In response to concerns and charges by four Democratic members of Congress, this White House release contains sections devoted to "setting the record straight" in four areas: on separate NSA activities, on the terrorist ties of intercepted communications, on the scope of the program, and on the use of the FISA court.

Document 36: Elizabeth B. Bazan and Jennifer K. Elsea, Congressional Research Service, Presidential Authority to Gather Foreign Intelligence Information, January 5, 2006. Unclassified
Source: http://www.fas.org

This report challenges claims made by the president and other administration officials concerning the legality of the program permitting warrantless electronic surveillance that was approved by President Bush in October 2001. It disputes the assertion of presidential authority to bypass the FISA court. It also challenges the assertion that the Congressional resolution approved after the September 11 attacks represented an explicit or implicit authorization of the warrantless eavesdropping program.

Document 37: American Civil Liberties Union [and others] v. National Security Agency/Central Security Service, Complaint for Declaratory and Injunctive Relief, United States District Court, Eastern District of Michigan, Southern Division, January 17, 2006. Unclassified
Source: http://www.aclu.org

This complaint filed by the ACLU along with other organizations and individuals "challenges the constitutionality of a secret government program to intercept vast quantities of the international telephone and Internet communications of innocent Americans without court approval. The plaintiffs according to the complaint frequently communicate by telephone and e-mail with people in the Middle East and South Asia and "have a well-founded belief that their communications are being intercepted."

Document 38: Alfred Cumming, Congressional Research Service, Statutory Procedures Under Which Congress Is to Be Informed of U.S. Intelligence Activities, Including Covert Actions, January 18, 2006. Unclassified
Source: http://www.fas.org

This study claims that the Bush administration may have violated a provision of the National Security Act by restricting its briefings about warrantless domestic eavesdropping to Congressional leaders. Rather, it is the analyst's conclusion that the law requires all members of the House and Senate intelligence oversight committees to be "fully and currently informed."

Document 39: U.S. Department of Justice, Legal Authorities Supporting the Activities of the National Security Agency Described by the President, January 19, 2006. Unclassified
Source: http://www.usodj.gov

In response to continuing controversy the Justice Department released this extensive 42-page brief. After discussing the background of the eavesdropping program, NSA's activities, and the threat posed by Al-Qaeda, the brief addresses a number of issues concerning the legality of the program-whether the president has inherent constitutional authority to order warrantless foreign intelligence surveillance, whether the post-9/11 resolution passed by Congress (the Authorization to Use Military Force (AUMF)) authorized the President to bypass the FISA, and whether NSA's activities are consistent with the Foreign Intelligence Surveillance Act and the Fourth Amendment.

Document 40: Office of the Director of National Intelligence, Remarks by General Michael V. Hayden, What American Intelligence & Especially the NSA Have Been Doing To Defend the Nation, January 23, 2006. Unclassified
Source: http://www.dni.gov

Hayden served as director of the National Security Agency from March 1999 until his appointment as principal deputy director of national intelligence in 2005. In his talk he sought to provide reassurance that NSA was focused on foreign intelligence, that it was not conducting "domestic spying" but was targeting individuals believed to be associated with al-Qaeda, that it was "not about" intercepting communications between individuals in the United States, and that it did not involve processing masses of data with keyword search. He also sought to explain why it was necessary for the administration to bypass the FISA court.

Document 41: Attorney General Alberto R. Gonzales, Intercepting Al Qaeda: A Lawful and Necessary Tool for Protecting America, January 24, 2006. Unclassified
Source: http://www.epic.org

In this speech at Georgetown University Law School, the Attorney General cited the actions of past presidents in addition to citing some of the previous arguments in support of the administration's employment of NSA to conduct warantless electronic surveillance. He mentions George Washington's use of secret intelligence obtained from the interception of mail between the British and Americans, President Woodrow Wilson's order to intercept of all cable communications between the United States and Europe, and President Franklin D. Roosevelt's authorization to intercept all communications into and out of the United States.

Document 42: The White House, President Visits National Security Agency, January 25, 2006. Unclassified
Source: http://www.whitehouse.gov

This is a transcript of the president's remarks upon his visit to NSA. The remarks include a brief explanation of why he considered the NSA warrantless electronic surveillance program to be necessary, a reference to the actions of previous presidents, and his promise to continue to reauthorize the program as "long as our country faces a continuing threat from al Qaeda and related groups."


Notes

1. James Risen and Eric Lichtblau, "Bush Lets U.S. Spy on Callers Without Courts," New York Times, December 16, 2005, pp. A1, A22.

2. Eric Lichtblau and James Risen, "Eavesdropping Effort Began Soon After Sept. 11 Attacks," New York Times, December 18, 2005, p. 31; Erich Lichtblau and Scott Shane, "Agency FirstActed on Its Own To Broaden Spying, Files Show," New York Times, January 4, 2006, pp. A1,A13; Eric Lichtblau and James Risen, "Spy Agency Mined Vast Data Trove, Officials Report," New York Times, December 24, 2005, pp. A1, A12; Walter Pincus, "NSA Gave Other U.S. Agencies Information From Surveillance," January 1, 2006, www.washingtonpost.com; James Risen and Eric Lichtblau, "Spying Program Snared U.S. Calls," New York Times, December 21, 2005, pp. A1, A23.

3. "This Call May Be Monitored," New York Times, December 18, 2005, Sec. 4, p.11; "Thank You for Wiretapping," Wall Street Journal, December 20, 2005, p. A14; Richard Lacayo, "Has Bush Gone Too Far?," January 1, 2006, www.time.com; Carol D. Leoning, "Surveillance Court is Seeking Answers," January 5, 2006, www.washingtonpost.com; Scott Shane, "Key Democrat Says Spying Violated Law," New York Times, January 5, 2006, p. A16; Scott Shane, "Republican Senator Defends Briefings on Domestic Spying," New York Times, January 6, 2006, p. A15; Lowell Bergman, Eric Lichtblau, Scott Shane, and Don Van Natta Jr., "Spy Agency Data After Sept. 11 Led F.B.I. to Dead Ends," New York Times, January 17, 2006, pp. A1, A12; Dan Eggen, "Probe Set in NSA Bugging," January 11, 2006, www.washingtonpost,com; Eric Lichtblau, "Two Group Plan Lawsuits Over Federal Eavesdropping," New York Times, January 17, 2006, p. A12.

4. A U.S. person is defined as:

a citizen of the United States, an alien lawfully admitted for permanent residence ..., an unincorporated association a substantial number of members of which are citizens of the United States or aliens lawfully admitted lawfully admitted for permanent residence, or a corporation which is incorporated in the United States, but does not include a corporation or an associated which is a foreign power. Foreign Intelligence Surveillance Act, 50 U.S.C. §1801(i).

The Fourth Amendment provides:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. U.S. Constitution amend. IV.

5. See Jeffrey T. Richelson, "Desperately Seeking Signals," Bulletin of the Atomic Scientists, March/April 2000, pp. 47-51.

6. James Bamford, The Puzzle Palace: A Report on NSA, America's Most Secret Agency (Boston: Houghton-Mifflin, 1982), pp. 236-254; Bob Woodward, "Messages of Activists Intercepted," Washington Post, October 13, 1975, pp. A1, A14.

7. See National Security Archive Electronic Briefing Book #24, Jeffrey Richelson, editor, The National Security Agency Declassified, March 11, 2005, for USSID 18 and other USSID 18-related documents.

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