Telecoms as Trojan Horses
Friday, December 07, 2007
The debate in Congress about whether to allow Americans to sue companies that participated in the National Security Agency's warrantless surveillance activities has little to do with punishing Big Telecom for its role in domestic spying. Rather, keeping alive an estimated 38 pending civil suits against AT&T, Verizon, and other companies has become congressional Democrats' best chance to hold the White House accountable for the controversial NSA program. The lawsuits also offer the hope of an official ruling on whether the program was ever legal, something that Congress has been unable to determine on its own.
House and Senate lawmakers recently proposed three different bills to amend the Foreign Intelligence Surveillance Act, known as FISA. The proposals set new rules on how the intelligence agencies monitor phone calls, e-mails, and other electronic communications, including those of U.S. citizens. Each of the bills tackles the issue of granting immunity to communications companies that participated in classified programs that were authorized by the president after the 9/11 attacks but were not overseen by a court until this year. The White House has threatened to veto any law that doesn't protect those companies, and granting them immunity would effectively end the lawsuits against them.
The plaintiffs, who are mostly private citizens and civil-liberties activists, have directed much ire and public scorn at the telecom companies for going along with the secret intelligence-gathering, but Democrats in Congress think the real target of litigation ought to be the Bush administration. Senate Judiciary Committee Chairman Patrick Leahy, D-Vt., who has led the most aggressive inquiries into the NSA's warrantless activities, called the suits "perhaps the only avenue that exists for an outside review of the government's program, and an honest assessment of its legal arguments."
Even the most strident opponents of immunity see the lawsuits as a means to a political end. Last month, amid Judiciary Committee negotiations over immunity, Sen. Russell Feingold, D-Wis., declared that shutting down the suits "would likely prevent courts from ruling on the president's illegal warrantless wiretapping program." He emphasized, "This program was one of the worst abuses of executive power in our history, and the courts should be able to rule on it once and for all."
Most Senate Republicans support unconditional immunity -- and even the majority of Democrats are hardly on the opposite side of the issue. Indeed, many Democrats have recently expressed no small amount of sympathy for the companies, which they think acted in good faith, believing that they were responding to urgent, and legal, requests from the president to help prevent another act of terrorism. Civil damages against the companies could conceivably reach into the tens of billions of dollars.
Democratic senators understand that private-sector assistance is an indispensable part of intelligence-gathering, and they don't want to see the telecoms put out of business because of their role in it. But they're also not prepared to let the telecoms off the hook completely.
As a Judiciary Committee staffer told National Journal, Leahy "doesn't support full, retroactive immunity but also doesn't want to see these companies bankrupted due to the administration's actions."
Echoing her colleagues on the Judiciary and Select Intelligence committees, Sen. Dianne Feinstein, D-Calif., has said that the telecommunications companies shouldn't be "held hostage to costly litigation in what is essentially a complaint about administration activities." The chairman of the Intelligence panel, Sen. Jay Rockefeller IV, D-W.Va., has noted, "The assistance of companies is invaluable in carrying out programs that provide for our national security and protect American lives. It is important that this assistance continue and not be extinguished under a deluge of lawsuits."
Thus, immunity has come down to a matter of degree. Last month, the House passed a FISA bill without corporate protections, but House lawmakers have signaled that they are open to compromise with the Senate's version, if the latter chamber can come to some consensus that doesn't allow blanket immunity. Senators are haggling over whether something less than immunity -- "accountability" for the companies, some have called it -- would suffice, offering a way to shield them from potentially devastating money damages and yet still expose the administration's culpability in court.
That the immunity question has become the flash point in the FISA debate took many of the key players by surprise. Leahy said last month that no one thought that the fight over immunity "would carry the day" when it came time to finalizing a FISA renewal.
Lawmakers have been trying to craft some long-term changes to FISA because the Protect America Act that allows the NSA surveillance activities to continue, with judicial oversight, expires in February. When Congress passed the stop-gap law last summer, many observers thought that some lawmakers were keeping immunity as a bargaining chip, a way to pressure the administration to hand over more information about the surveillance activities.
In late October, signs of a quid pro quo emerged when the White House gave a batch of documents to the Senate Intelligence Committee, after members "showed a willingness" to include telecom immunity in their FISA bill, according to White House spokeswoman Dana Perino. "Because they were willing to do that, we were willing to show them some of the documents that they asked to see." The documents included the presidential authorizations for the NSA activities, which were issued every 45 days, as well as legal opinions from the Justice Department approving those authorizations.
A Senate aide told National Journal that Intelligence Committee members were not prepared to include immunity in their bill without some White House movement on the documents front, but disputed the characterization that the senators had offered immunity in exchange. In fact, the staffer said, months earlier the committee had reviewed correspondence between the administration and the telecom companies in which the government asked the carriers to help gather intelligence that could prevent further terrorist attacks. Based on that correspondence, senators concluded that the telecoms had acted in good faith because executives believed that their actions were legal and had the president's blessing.
That conclusion has formed the basis of most committee members' thinking on the immunity question. "There are those who think the companies were clearly in the wrong and should be punished, but very few senators fall into this group," the aide said.
In October, the Intelligence Committee approved a bill that included immunity, and then waited for the Judiciary Committee to take up the measure, knowing that it might finesse the provision. The "extraordinary nature" of the period following the 9/11 attacks, coupled with the administration's assurances that new intelligence activities were designed to "detect and prevent the next terrorist attack," convinced Intelligence panelists that protection from prosecution was warranted, the committee wrote in a report accompanying its bill.
"This immunity provision is not the broad and vague immunity sought by the administration," Rockefeller wrote in additional comments in the report. It "does not provide retrospective immunity for government officials for their actions or to companies outside the specified timeframe. Nor does the bill extend to criminal proceedings." The panel's provision covers only activities undertaken after 9/11 and before January 17, 2007, when the administration placed the NSA surveillance program under judicial review.
"The committee did not endorse the immunity provision lightly," Rockefeller continued. "I believe it is the Bush administration, not the companies, who must be accountable for the mishandling of the warrantless surveillance program."
The Judiciary Committee had its crack at a revised FISA bill last month. It adopted a version with no immunity provision, but not for lack of trying. Committee members were prepared to consider some kind of language to protect the companies, but members did not reach a compromise before time expired on its markup, and Leahy chose to let the issue be settled on the Senate floor.
Both during and before the negotiations, committee members had suggested capping the amount of damages that could be levied against the companies or requiring the government to pay those damages. Just this week, the Judiciary Committee took up a proposal by Arlen Specter, R-Pa., the committee's ranking member, to substitute the government for the companies as the defendant in the civil cases.
At a December 1 press conference, Senate Majority Leader Harry Reid, D-Nev., said that several remedies remain under consideration, including some kind of hybrid, in which "there would still be immunity, but the government would be responsible for whatever damages, if any, were offered." Minority Leader Mitch McConnell, R-Ky., signaled Republicans' opposition to that approach -- "Taxpayers shouldn't have to foot the bill," he said -- which may dampen hopes for a compromise. But rather than being inflexible, Democrats seem as willing to negotiate over immunity as they've ever been in the two years since the NSA program was publicly exposed.
Published in National Journal
Friday, December 07, 2007
The debate in Congress about whether to allow Americans to sue companies that participated in the National Security Agency's warrantless surveillance activities has little to do with punishing Big Telecom for its role in domestic spying. Rather, keeping alive an estimated 38 pending civil suits against AT&T, Verizon, and other companies has become congressional Democrats' best chance to hold the White House accountable for the controversial NSA program. The lawsuits also offer the hope of an official ruling on whether the program was ever legal, something that Congress has been unable to determine on its own.
House and Senate lawmakers recently proposed three different bills to amend the Foreign Intelligence Surveillance Act, known as FISA. The proposals set new rules on how the intelligence agencies monitor phone calls, e-mails, and other electronic communications, including those of U.S. citizens. Each of the bills tackles the issue of granting immunity to communications companies that participated in classified programs that were authorized by the president after the 9/11 attacks but were not overseen by a court until this year. The White House has threatened to veto any law that doesn't protect those companies, and granting them immunity would effectively end the lawsuits against them.
The plaintiffs, who are mostly private citizens and civil-liberties activists, have directed much ire and public scorn at the telecom companies for going along with the secret intelligence-gathering, but Democrats in Congress think the real target of litigation ought to be the Bush administration. Senate Judiciary Committee Chairman Patrick Leahy, D-Vt., who has led the most aggressive inquiries into the NSA's warrantless activities, called the suits "perhaps the only avenue that exists for an outside review of the government's program, and an honest assessment of its legal arguments."
Even the most strident opponents of immunity see the lawsuits as a means to a political end. Last month, amid Judiciary Committee negotiations over immunity, Sen. Russell Feingold, D-Wis., declared that shutting down the suits "would likely prevent courts from ruling on the president's illegal warrantless wiretapping program." He emphasized, "This program was one of the worst abuses of executive power in our history, and the courts should be able to rule on it once and for all."
Most Senate Republicans support unconditional immunity -- and even the majority of Democrats are hardly on the opposite side of the issue. Indeed, many Democrats have recently expressed no small amount of sympathy for the companies, which they think acted in good faith, believing that they were responding to urgent, and legal, requests from the president to help prevent another act of terrorism. Civil damages against the companies could conceivably reach into the tens of billions of dollars.
Democratic senators understand that private-sector assistance is an indispensable part of intelligence-gathering, and they don't want to see the telecoms put out of business because of their role in it. But they're also not prepared to let the telecoms off the hook completely.
As a Judiciary Committee staffer told National Journal, Leahy "doesn't support full, retroactive immunity but also doesn't want to see these companies bankrupted due to the administration's actions."
Echoing her colleagues on the Judiciary and Select Intelligence committees, Sen. Dianne Feinstein, D-Calif., has said that the telecommunications companies shouldn't be "held hostage to costly litigation in what is essentially a complaint about administration activities." The chairman of the Intelligence panel, Sen. Jay Rockefeller IV, D-W.Va., has noted, "The assistance of companies is invaluable in carrying out programs that provide for our national security and protect American lives. It is important that this assistance continue and not be extinguished under a deluge of lawsuits."
Thus, immunity has come down to a matter of degree. Last month, the House passed a FISA bill without corporate protections, but House lawmakers have signaled that they are open to compromise with the Senate's version, if the latter chamber can come to some consensus that doesn't allow blanket immunity. Senators are haggling over whether something less than immunity -- "accountability" for the companies, some have called it -- would suffice, offering a way to shield them from potentially devastating money damages and yet still expose the administration's culpability in court.
That the immunity question has become the flash point in the FISA debate took many of the key players by surprise. Leahy said last month that no one thought that the fight over immunity "would carry the day" when it came time to finalizing a FISA renewal.
Lawmakers have been trying to craft some long-term changes to FISA because the Protect America Act that allows the NSA surveillance activities to continue, with judicial oversight, expires in February. When Congress passed the stop-gap law last summer, many observers thought that some lawmakers were keeping immunity as a bargaining chip, a way to pressure the administration to hand over more information about the surveillance activities.
In late October, signs of a quid pro quo emerged when the White House gave a batch of documents to the Senate Intelligence Committee, after members "showed a willingness" to include telecom immunity in their FISA bill, according to White House spokeswoman Dana Perino. "Because they were willing to do that, we were willing to show them some of the documents that they asked to see." The documents included the presidential authorizations for the NSA activities, which were issued every 45 days, as well as legal opinions from the Justice Department approving those authorizations.
A Senate aide told National Journal that Intelligence Committee members were not prepared to include immunity in their bill without some White House movement on the documents front, but disputed the characterization that the senators had offered immunity in exchange. In fact, the staffer said, months earlier the committee had reviewed correspondence between the administration and the telecom companies in which the government asked the carriers to help gather intelligence that could prevent further terrorist attacks. Based on that correspondence, senators concluded that the telecoms had acted in good faith because executives believed that their actions were legal and had the president's blessing.
That conclusion has formed the basis of most committee members' thinking on the immunity question. "There are those who think the companies were clearly in the wrong and should be punished, but very few senators fall into this group," the aide said.
In October, the Intelligence Committee approved a bill that included immunity, and then waited for the Judiciary Committee to take up the measure, knowing that it might finesse the provision. The "extraordinary nature" of the period following the 9/11 attacks, coupled with the administration's assurances that new intelligence activities were designed to "detect and prevent the next terrorist attack," convinced Intelligence panelists that protection from prosecution was warranted, the committee wrote in a report accompanying its bill.
"This immunity provision is not the broad and vague immunity sought by the administration," Rockefeller wrote in additional comments in the report. It "does not provide retrospective immunity for government officials for their actions or to companies outside the specified timeframe. Nor does the bill extend to criminal proceedings." The panel's provision covers only activities undertaken after 9/11 and before January 17, 2007, when the administration placed the NSA surveillance program under judicial review.
"The committee did not endorse the immunity provision lightly," Rockefeller continued. "I believe it is the Bush administration, not the companies, who must be accountable for the mishandling of the warrantless surveillance program."
The Judiciary Committee had its crack at a revised FISA bill last month. It adopted a version with no immunity provision, but not for lack of trying. Committee members were prepared to consider some kind of language to protect the companies, but members did not reach a compromise before time expired on its markup, and Leahy chose to let the issue be settled on the Senate floor.
Both during and before the negotiations, committee members had suggested capping the amount of damages that could be levied against the companies or requiring the government to pay those damages. Just this week, the Judiciary Committee took up a proposal by Arlen Specter, R-Pa., the committee's ranking member, to substitute the government for the companies as the defendant in the civil cases.
At a December 1 press conference, Senate Majority Leader Harry Reid, D-Nev., said that several remedies remain under consideration, including some kind of hybrid, in which "there would still be immunity, but the government would be responsible for whatever damages, if any, were offered." Minority Leader Mitch McConnell, R-Ky., signaled Republicans' opposition to that approach -- "Taxpayers shouldn't have to foot the bill," he said -- which may dampen hopes for a compromise. But rather than being inflexible, Democrats seem as willing to negotiate over immunity as they've ever been in the two years since the NSA program was publicly exposed.
Published in National Journal
Labels: Foreign Intelligence Surveillance Act, Law, National Security Agency, Politics
Full Article
NSA Sought Data Before 9/11
Friday, November 02, 2007
Beginning in February 2001, almost seven months before the 9/11 terrorist attacks, the government's top electronic eavesdropping organization, the National Security Agency, asked a major U.S. telecommunications carrier for information about its customers and the flow of electronic traffic across its network, according to sources familiar with the request. The carrier, Qwest Communications, refused, believing that the request was illegal unless accompanied by a court order.
After terrorists attacked the United States on September 11, the NSA again asked Qwest, as well as other telecom companies, for similar information to help the agency track suspects with the aim of preventing future attacks, current and former officials have said. The companies responded in various ways, with Qwest being the most reluctant to cooperate. However, in February 2001, the NSA's primary purpose in seeking access to Qwest's network apparently was not to search for terrorists but to watch for computer hackers and foreign-government forces trying to penetrate and compromise U.S. government information systems, particularly within the Defense Department, sources said. Government officials have long feared a "digital Pearl Harbor" if intruders were to seize control of these systems or other key U.S. infrastructures through the Internet.
A former White House official, who at the time was involved in network defense and other intelligence programs, said that the early 2001 NSA proposal to Qwest was, "Can you build a private version of Echelon and tell us what you see?" Echelon refers to a signals intelligence network operated by the NSA and its official counterparts in Australia, Canada, New Zealand, and the United Kingdom.
The NSA realized that it was blind to many of the new online threats and to who was using the privately owned telecom networks, and it thought that Qwest was in a position to help. The agency needed better intelligence in the face of a burgeoning Internet, and Qwest was then building a high-speed network for phone and Internet traffic that had caught the attention of senior intelligence officials. The NSA, in effect, wanted Qwest to be the agency's online eyes and ears.
Another source said that the NSA wanted to analyze the calls, e-mails, and other transmissions crossing Qwest's lines, to detect patterns of suspicious activity. Telecom carriers routinely monitor their networks for fraudulent activity, the former White House official noted, and so the companies "have an enormous amount of intelligence-gathering" capability. They don't have to target individual customers to "look for wacky behavior," or "groups communicating with each other in strange patterns." That information could augment intelligence that the NSA and other agencies were gathering from other sources, the former official said.
Qwest's then-chief executive officer, Joseph Nacchio, rejected the NSA's request. "He didn't want to go along with that," and his refusal was not greeted warmly in the intelligence community, the former White House official said. Another source, a former high-ranking intelligence official, said that other companies, both before and after 9/11, had less of a problem complying with government requests if they were accompanied by a legal order. The ex-official added that some companies were willing to offer data and to assist the government "as necessary" on a voluntary basis, without a court order.
Nacchio has said publicly that the NSA asked Qwest for customer records after the 2001 terrorist attacks. But the nature of the agency's request before 9/11 has not been disclosed previously. Sources familiar with the activities spoke to National Journal on the condition of anonymity, because the work is still classified.
By early 2001, the NSA was aware of the growing threat of terrorism and was monitoring communications among Al Qaeda members overseas. But the agency, the Defense Department, and the White House also feared Internet-based attacks on U.S. government installations, and they believed that other countries were increasingly interested in cyberspace as a battlefield.
At the same time, the NSA was hesitant to conduct any surveillance activities that might violate long-standing prohibitions on domestic intelligence-gathering without court orders. One way to get the information that the agency and others deemed necessary for network defense was from the telecom carriers.
Nacchio, it appears, believed that the NSA's pre-9/11 request for access to Qwest's network was illegal. The former White House official said that the intelligence-gathering was not targeted at Qwest's U.S. customers, but he acknowledged that handing over customer information without a lawful order could violate the Electronic Communications Privacy Act, a 1986 law that extended wiretapping restrictions on phone calls to include electronic information transmitted by and stored in a computer.
After 9/11, that law was amended by the USA PATRIOT Act, and it became easier for the government to obtain certain private communications. When reports surfaced last year that telecom carriers were participating in a post-9/11 NSA program to analyze customer calling patterns for terrorism indicators, Nacchio's attorney stated publicly that Qwest had refused "to make private telephone records of Qwest customers available to the NSA immediately following [enactment of] the Patriot Act." Nacchio had concluded that the NSA's requests violated the privacy requirements of another law, the Telecommunications Act, his attorney said.
The question of Qwest's involvement with the NSA before 9/11 has surfaced in recent weeks because of Nacchio's appeal of his criminal conviction on 19 counts of insider trading. Nacchio was sentenced to six years in prison in July, but he remains free pending his appeal. He contends that the NSA retaliated against Qwest for not complying with its request by denying the company work under a multibillion-dollar program called Groundbreaker, which outsourced the NSA's unclassified information-technology systems. Federal prosecutors deny that allegation, noting that Qwest was a member of the team that ultimately won the Groundbreaker deal in August 2001.
Nacchio wasn't allowed to use his retaliation argument at his trial. But details of Qwest's interactions with the NSA, as well as years of work that the company performed for the Defense Department and the intelligence community, are contained in legal documents filed by his defense team and made public three weeks ago. Although the documents are partially redacted, they reveal that Qwest aggressively pursued business with the NSA while trying to put off officials' entreaties for more access to the company's network, requests that persisted for years.
The documents state that Nacchio and another senior Qwest executive met with NSA officials at their headquarters at Fort Meade, Md., on February 27, 2001. At this meeting, the agency proposed Qwest's participation in certain activities whose details are redacted from the court documents.
"Nacchio said it was a legal issue, and they should not do something their general counsel told them not to do," according to federal investigators who interviewed the former head of Qwest's government business unit, James F.X. Payne. "Nacchio projected that he might do it if they could find a way to do it legally."
Payne told investigators that the NSA requests came up "in meetings after meetings." Investigators quoted Payne as saying, "There was a feeling also that the NSA acted as agents for other government agencies." Payne could not be reached for comment.
Although the NSA's specific request for an Echelon-like program may have worried Qwest's attorneys, it appears that the company was sharing other kinds of proprietary information about its network with the Pentagon in the months before 9/11.
In May 2001, then-Commerce Secretary Donald Evans told the Senate Appropriations Committee that his department had helped to persuade Qwest to "share proprietary information with the Defense Department to evaluate the vulnerability of its network." (The Commerce Department includes an agency that is responsible for telecom policy.) Qwest, Evans noted, was the largest carrier in the Rocky Mountain corridor. That area is home to some of the military's most important command-and-control facilities, including the U.S. Strategic Command, which oversees nuclear weapons.
By the time the NSA asked for Qwest's assistance in February 2001, the company had become a darling of the Internet Age. Founded in 1988 by Philip Anschutz, who owned the Southern Pacific Railroad, Qwest built the first all-digital, fiber-optic network by laying lines alongside railroad tracks, then linking to terminals in key locations to provide high-speed Internet and data connections.
The Defense Department operates its own classified networks, which are more resistant to attack, but Qwest's network was faster, more expansive, and more technologically advanced. Nacchio's legal documents show that from the late 1990s and into the new century, Qwest was chasing at least two lucrative deals to build private, secure networks for defense and intelligence agencies.
Qwest's first high-level contact with the NSA may have occurred as early as 1997. Late that year, according to Nacchio's legal briefs, Qwest was informed that a military "general officer wanted to meet with Mr. Nacchio." Two weeks later, a three-star (lieutenant) general and his aide showed up at Nacchio's Denver office and told him that they had "heard about Qwest's new network." Nacchio described the operation and "talked about his background at AT&T, with which they were already familiar," the documents state. Nacchio had spent more than a quarter-century with AT&T before taking over at Qwest in 1997.
At some point, the general -- whose name and affiliation are omitted from the documents -- asked to speak privately with Dean Wandry, who led Qwest's government business unit at the time. "The general told Mr. Wandry that he ran the largest telecom operation in the world, he had looked at Qwest's network, and he wanted to use it for government purposes," the documents state. By law, the head of the NSA must be at least a three-star general or a vice admiral. In 1997, Lt. Gen. Kenneth Minihan was the director. He was replaced in 1999 by Lt. Gen. Michael Hayden, who is now a four-star general and the director of the CIA. Hayden declined to be interviewed for this story. An assistant to Minihan, who is now a managing director with Paladin Capital Group, a private equity firm in Washington, said he was unavailable for comment.
A number of former intelligence officials said that the description of a three-star general running the "largest telecom operation in the world" seemed to fit the NSA. In 1997, the Defense Information Systems Agency, which manages a large telecom enterprise, was also run by a lieutenant general. But that agency's operations are smaller than the NSA's. Also, Qwest's first contact with DISA occurred after the 1997 meeting with the unnamed military officer, according to Nacchio's legal filings. Qwest has done unclassified work for DISA, and it received a large contract from the agency as recently as last year.
After the Denver meeting, Wandry told Nacchio "that there was a big opportunity here for Qwest," the court filings state. Nacchio received a security clearance "a short time later." Qwest then received a contract from the agency, which Nacchio wanted to announce publicly. He was "refused permission," the briefs state, but he "understood at the time this was the beginning of a relationship which had enormous potential for future work. This proved increasingly true as time went on."
Qwest certainly worked for the NSA beginning at least in 1999. A search of Internet number registration files shows that the company allocated a portion of its network that year to the Maryland Procurement Office at Fort Meade, which is the NSA's contracting unit. An e-mail from employees in Qwest's government business group, sent in December 1999, requested a meeting with senior executives "to discuss the potential opportunity with the Maryland customer." (DISA, it should be noted, is headquartered in Virginia.) By 2001, the company was pursuing the NSA's Groundbreaker contract. And in March of that year, Payne, who by then was running the company's federal business, wrote in an e-mail to colleagues that Qwest was already a "provider" of telecom services to the NSA through existing contracts.
Meanwhile, concern was rising at the NSA that the proliferating global Internet might become a weapon for U.S. adversaries. As early as June 1998, then-NSA Director Minihan testified before the Senate Governmental Affairs Committee about "a wide array of malicious actors -- including hackers, terrorists, and nation-states," all of whom threatened "users of networked information systems."
Minihan singled out Russia and China; the latter, he said, had already incorporated cyber-warfare into its military training. He also pointed to the emergence of "transnational security challenges," including terrorism, drug trafficking, and international organized crime. "These opportunists, enabled by the explosion of technology and the availability of inexpensive, secure means of communication, pose a significant threat to the interests of the United States and its allies," Minihan said.
A former senior NSA official said that the agency also worried that because these groups understood privacy laws so well, they knew how to avoid detection and could predict what the NSA would, and wouldn't, do to track them. "There was such a nuanced understanding of how to tie us in knots and use American law against us, that there were certainly pockets of people saying, 'We've got to be assertive; we've got to be more aggressive on this,' " the former official said.
Hayden, who ran the NSA from 1999 to 2005, was well known for his willingness to push operations to the legal edge. "We're pretty aggressive within the law," Hayden said in public remarks after 9/11. "As a professional, I'm troubled if I'm not using the full authority allowed by law."
Hayden has repeated that refrain since the attacks. But former intelligence officials doubted that he would have authorized any request to Qwest, or other companies, that he believed violated the law. They noted, however, that many in the agency had long thought that monitoring "metadata," such as a phone number, the length of a call, or a series of calls placed from a particular phone, didn't implicate privacy because such information didn't constitute the "content" of a message -- its written or spoken words.
Published in National Journal
Friday, November 02, 2007
Beginning in February 2001, almost seven months before the 9/11 terrorist attacks, the government's top electronic eavesdropping organization, the National Security Agency, asked a major U.S. telecommunications carrier for information about its customers and the flow of electronic traffic across its network, according to sources familiar with the request. The carrier, Qwest Communications, refused, believing that the request was illegal unless accompanied by a court order.
After terrorists attacked the United States on September 11, the NSA again asked Qwest, as well as other telecom companies, for similar information to help the agency track suspects with the aim of preventing future attacks, current and former officials have said. The companies responded in various ways, with Qwest being the most reluctant to cooperate. However, in February 2001, the NSA's primary purpose in seeking access to Qwest's network apparently was not to search for terrorists but to watch for computer hackers and foreign-government forces trying to penetrate and compromise U.S. government information systems, particularly within the Defense Department, sources said. Government officials have long feared a "digital Pearl Harbor" if intruders were to seize control of these systems or other key U.S. infrastructures through the Internet.
A former White House official, who at the time was involved in network defense and other intelligence programs, said that the early 2001 NSA proposal to Qwest was, "Can you build a private version of Echelon and tell us what you see?" Echelon refers to a signals intelligence network operated by the NSA and its official counterparts in Australia, Canada, New Zealand, and the United Kingdom.
The NSA realized that it was blind to many of the new online threats and to who was using the privately owned telecom networks, and it thought that Qwest was in a position to help. The agency needed better intelligence in the face of a burgeoning Internet, and Qwest was then building a high-speed network for phone and Internet traffic that had caught the attention of senior intelligence officials. The NSA, in effect, wanted Qwest to be the agency's online eyes and ears.
Another source said that the NSA wanted to analyze the calls, e-mails, and other transmissions crossing Qwest's lines, to detect patterns of suspicious activity. Telecom carriers routinely monitor their networks for fraudulent activity, the former White House official noted, and so the companies "have an enormous amount of intelligence-gathering" capability. They don't have to target individual customers to "look for wacky behavior," or "groups communicating with each other in strange patterns." That information could augment intelligence that the NSA and other agencies were gathering from other sources, the former official said.
Qwest's then-chief executive officer, Joseph Nacchio, rejected the NSA's request. "He didn't want to go along with that," and his refusal was not greeted warmly in the intelligence community, the former White House official said. Another source, a former high-ranking intelligence official, said that other companies, both before and after 9/11, had less of a problem complying with government requests if they were accompanied by a legal order. The ex-official added that some companies were willing to offer data and to assist the government "as necessary" on a voluntary basis, without a court order.
Nacchio has said publicly that the NSA asked Qwest for customer records after the 2001 terrorist attacks. But the nature of the agency's request before 9/11 has not been disclosed previously. Sources familiar with the activities spoke to National Journal on the condition of anonymity, because the work is still classified.
By early 2001, the NSA was aware of the growing threat of terrorism and was monitoring communications among Al Qaeda members overseas. But the agency, the Defense Department, and the White House also feared Internet-based attacks on U.S. government installations, and they believed that other countries were increasingly interested in cyberspace as a battlefield.
At the same time, the NSA was hesitant to conduct any surveillance activities that might violate long-standing prohibitions on domestic intelligence-gathering without court orders. One way to get the information that the agency and others deemed necessary for network defense was from the telecom carriers.
Nacchio, it appears, believed that the NSA's pre-9/11 request for access to Qwest's network was illegal. The former White House official said that the intelligence-gathering was not targeted at Qwest's U.S. customers, but he acknowledged that handing over customer information without a lawful order could violate the Electronic Communications Privacy Act, a 1986 law that extended wiretapping restrictions on phone calls to include electronic information transmitted by and stored in a computer.
After 9/11, that law was amended by the USA PATRIOT Act, and it became easier for the government to obtain certain private communications. When reports surfaced last year that telecom carriers were participating in a post-9/11 NSA program to analyze customer calling patterns for terrorism indicators, Nacchio's attorney stated publicly that Qwest had refused "to make private telephone records of Qwest customers available to the NSA immediately following [enactment of] the Patriot Act." Nacchio had concluded that the NSA's requests violated the privacy requirements of another law, the Telecommunications Act, his attorney said.
The question of Qwest's involvement with the NSA before 9/11 has surfaced in recent weeks because of Nacchio's appeal of his criminal conviction on 19 counts of insider trading. Nacchio was sentenced to six years in prison in July, but he remains free pending his appeal. He contends that the NSA retaliated against Qwest for not complying with its request by denying the company work under a multibillion-dollar program called Groundbreaker, which outsourced the NSA's unclassified information-technology systems. Federal prosecutors deny that allegation, noting that Qwest was a member of the team that ultimately won the Groundbreaker deal in August 2001.
Nacchio wasn't allowed to use his retaliation argument at his trial. But details of Qwest's interactions with the NSA, as well as years of work that the company performed for the Defense Department and the intelligence community, are contained in legal documents filed by his defense team and made public three weeks ago. Although the documents are partially redacted, they reveal that Qwest aggressively pursued business with the NSA while trying to put off officials' entreaties for more access to the company's network, requests that persisted for years.
The documents state that Nacchio and another senior Qwest executive met with NSA officials at their headquarters at Fort Meade, Md., on February 27, 2001. At this meeting, the agency proposed Qwest's participation in certain activities whose details are redacted from the court documents.
"Nacchio said it was a legal issue, and they should not do something their general counsel told them not to do," according to federal investigators who interviewed the former head of Qwest's government business unit, James F.X. Payne. "Nacchio projected that he might do it if they could find a way to do it legally."
Payne told investigators that the NSA requests came up "in meetings after meetings." Investigators quoted Payne as saying, "There was a feeling also that the NSA acted as agents for other government agencies." Payne could not be reached for comment.
Although the NSA's specific request for an Echelon-like program may have worried Qwest's attorneys, it appears that the company was sharing other kinds of proprietary information about its network with the Pentagon in the months before 9/11.
In May 2001, then-Commerce Secretary Donald Evans told the Senate Appropriations Committee that his department had helped to persuade Qwest to "share proprietary information with the Defense Department to evaluate the vulnerability of its network." (The Commerce Department includes an agency that is responsible for telecom policy.) Qwest, Evans noted, was the largest carrier in the Rocky Mountain corridor. That area is home to some of the military's most important command-and-control facilities, including the U.S. Strategic Command, which oversees nuclear weapons.
By the time the NSA asked for Qwest's assistance in February 2001, the company had become a darling of the Internet Age. Founded in 1988 by Philip Anschutz, who owned the Southern Pacific Railroad, Qwest built the first all-digital, fiber-optic network by laying lines alongside railroad tracks, then linking to terminals in key locations to provide high-speed Internet and data connections.
The Defense Department operates its own classified networks, which are more resistant to attack, but Qwest's network was faster, more expansive, and more technologically advanced. Nacchio's legal documents show that from the late 1990s and into the new century, Qwest was chasing at least two lucrative deals to build private, secure networks for defense and intelligence agencies.
Qwest's first high-level contact with the NSA may have occurred as early as 1997. Late that year, according to Nacchio's legal briefs, Qwest was informed that a military "general officer wanted to meet with Mr. Nacchio." Two weeks later, a three-star (lieutenant) general and his aide showed up at Nacchio's Denver office and told him that they had "heard about Qwest's new network." Nacchio described the operation and "talked about his background at AT&T, with which they were already familiar," the documents state. Nacchio had spent more than a quarter-century with AT&T before taking over at Qwest in 1997.
At some point, the general -- whose name and affiliation are omitted from the documents -- asked to speak privately with Dean Wandry, who led Qwest's government business unit at the time. "The general told Mr. Wandry that he ran the largest telecom operation in the world, he had looked at Qwest's network, and he wanted to use it for government purposes," the documents state. By law, the head of the NSA must be at least a three-star general or a vice admiral. In 1997, Lt. Gen. Kenneth Minihan was the director. He was replaced in 1999 by Lt. Gen. Michael Hayden, who is now a four-star general and the director of the CIA. Hayden declined to be interviewed for this story. An assistant to Minihan, who is now a managing director with Paladin Capital Group, a private equity firm in Washington, said he was unavailable for comment.
A number of former intelligence officials said that the description of a three-star general running the "largest telecom operation in the world" seemed to fit the NSA. In 1997, the Defense Information Systems Agency, which manages a large telecom enterprise, was also run by a lieutenant general. But that agency's operations are smaller than the NSA's. Also, Qwest's first contact with DISA occurred after the 1997 meeting with the unnamed military officer, according to Nacchio's legal filings. Qwest has done unclassified work for DISA, and it received a large contract from the agency as recently as last year.
After the Denver meeting, Wandry told Nacchio "that there was a big opportunity here for Qwest," the court filings state. Nacchio received a security clearance "a short time later." Qwest then received a contract from the agency, which Nacchio wanted to announce publicly. He was "refused permission," the briefs state, but he "understood at the time this was the beginning of a relationship which had enormous potential for future work. This proved increasingly true as time went on."
Qwest certainly worked for the NSA beginning at least in 1999. A search of Internet number registration files shows that the company allocated a portion of its network that year to the Maryland Procurement Office at Fort Meade, which is the NSA's contracting unit. An e-mail from employees in Qwest's government business group, sent in December 1999, requested a meeting with senior executives "to discuss the potential opportunity with the Maryland customer." (DISA, it should be noted, is headquartered in Virginia.) By 2001, the company was pursuing the NSA's Groundbreaker contract. And in March of that year, Payne, who by then was running the company's federal business, wrote in an e-mail to colleagues that Qwest was already a "provider" of telecom services to the NSA through existing contracts.
Meanwhile, concern was rising at the NSA that the proliferating global Internet might become a weapon for U.S. adversaries. As early as June 1998, then-NSA Director Minihan testified before the Senate Governmental Affairs Committee about "a wide array of malicious actors -- including hackers, terrorists, and nation-states," all of whom threatened "users of networked information systems."
Minihan singled out Russia and China; the latter, he said, had already incorporated cyber-warfare into its military training. He also pointed to the emergence of "transnational security challenges," including terrorism, drug trafficking, and international organized crime. "These opportunists, enabled by the explosion of technology and the availability of inexpensive, secure means of communication, pose a significant threat to the interests of the United States and its allies," Minihan said.
A former senior NSA official said that the agency also worried that because these groups understood privacy laws so well, they knew how to avoid detection and could predict what the NSA would, and wouldn't, do to track them. "There was such a nuanced understanding of how to tie us in knots and use American law against us, that there were certainly pockets of people saying, 'We've got to be assertive; we've got to be more aggressive on this,' " the former official said.
Hayden, who ran the NSA from 1999 to 2005, was well known for his willingness to push operations to the legal edge. "We're pretty aggressive within the law," Hayden said in public remarks after 9/11. "As a professional, I'm troubled if I'm not using the full authority allowed by law."
Hayden has repeated that refrain since the attacks. But former intelligence officials doubted that he would have authorized any request to Qwest, or other companies, that he believed violated the law. They noted, however, that many in the agency had long thought that monitoring "metadata," such as a phone number, the length of a call, or a series of calls placed from a particular phone, didn't implicate privacy because such information didn't constitute the "content" of a message -- its written or spoken words.
Published in National Journal
Labels: Cyber War, Law, National Security Agency, Technology, Terrorism
Full Article
A Court at the Crossroads
Friday, October 19, 2007
As Democrats and Republicans debate legislation that would alter 30-year-old limits on intrusive electronic and physical searches by the government, the secretive 11-member court that oversees surveillance of foreign-intelligence targets in the United States finds itself in the middle of a very public power struggle.
Regardless of where law and policy makers fall on the question, now being debated, about which governmental branch should hold the most sway over intelligence operations, and which political party has the more effective and fair solution, they all agree on this much: The Foreign Intelligence Surveillance Court should play referee, and the government should receive some kind of authorization for a still-secret set of spying activities that many agree are essential to the war on terrorism. If that oversight results in warrants that violate the Constitution, as some scholars fear would occur if pending legislation is enacted, most Republicans and Democrats don't appear concerned about such a prospect or even cognizant of it. Such is the court's brave new world.
It is an odd, but perhaps not unwelcome, reality that the intelligence judges now play a decisive role in this controversy. Odd because for most of American history, the judiciary has ruled itself least qualified among the branches of government to manage intelligence activities. But not unwelcome because this court has waded into these waters before, and it believes it has been an indispensable buffer against government excess.
The 1978 Foreign Intelligence Surveillance Act, the court's animating law, was a grand political compromise. After years of unchecked surveillance by the FBI and intelligence agencies of prominent Americans and political dissidents both before and during the Nixon presidency, the FISA court became the arbiter of when and how the executive branch can spy on suspected foreign agents and terrorists inside the country. Especially after the 9/11 attacks, the judges have included more experts in national security law, court-watchers say, and the court's former chief judge has proudly proclaimed that the court turns down almost no surveillance requests because the government has learned to play within FISA's boundaries.
This system, however, was upended after the 9/11 attacks, when President Bush issued orders that allowed him to bypass the court when tracking domestic terrorism suspects. The orders seemed to reflect a long-held, simmering animosity toward the body by some senior administration officials, particularly Vice President Cheney's legal counsel, David Addington, who reportedly told a colleague after 9/11 that "we're one bomb away from getting rid of that obnoxious court."
Now, though, the court is regaining some of the authority it had lost. And if the president signs a new Democratic proposal to further amend FISA, the court would play a central and untested role in overseeing surveillance. It may welcome the chance.
Former Chief FISA Court Judge Royce Lamberth has described a panel of jurists confident in its interpretation of surveillance law, equipped to issue warrants quickly, and flexible enough to write new procedures during wartime. In remarks at the annual conference of the American Library Association in June, Lamberth, who left his post in 2002, said he hadn't found a better way of controlling government surveillance. But, the former judge added, there was a "worse way," and that was "what the president did with the National Security Agency": Bush's post-9/11 orders allowed the government's eavesdroppers to intercept communications inside the United States without the court's approval.
The NSA program, begun just after 9/11 and dubbed "the terrorist surveillance program" by Bush, continued without judicial check for more than five years, until January 2007, when the administration placed it under FISA court review. The exact contours of the court's initial orders about the program, which were to last for 90 days, are secret.
For that first 90-day period, the NSA program proceeded unimpeded, intelligence officials say. But, according to Mike McConnell, the director of national intelligence, in spring 2007 a different FISA judge said that the government needed a warrant to capture electronic communications between parties in foreign countries as those communications pass through routing equipment in the United States. "We found ourselves in a position of actually losing ground," McConnell told the El Paso Times in August. The government would have to apply for a warrant for each phone number it monitored in this way, and it takes about "200 man-hours" to fill out the necessary paperwork, McConnell said. FISA experts and lawmakers note, however, that the law contains emergency provisions that allow monitoring to begin before a court order.
The ruling on the U.S.-routed calls was a rare push-back from a court that, by Lamberth's count, has approved 99 percent of the government's warrant applications. The Bush administration then launched a massive lobbying effort to amend FISA; in August, Congress passed the Protect America Act. It effectively reversed the court's normal procedures (these require a warrant before surveillance) and gave judges an after-the-fact-review power for surveillance procedures, which inevitably pick up domestic communications when foreign targets call or e-mail people located in this country. The law was panned for its hasty and imprecise language, and some observers thought it even authorized warrantless physical searches of people's possessions and premises.
This brings the court to its current crossroads. To correct the law's deficiencies, as they see them, Democratic Reps. Silvestre Reyes of Texas and John Conyers of Michigan, the respective chairmen of the House Intelligence and Judiciary committees, have introduced the RESTORE Act, short for Responsible Surveillance That is Overseen, Reviewed, and Effective. The Democrats have said that the bill would "protect innocent Americans from warrantless eavesdropping." Republicans have blasted it as a roadblock in the executive's path, and the bill was suddenly pulled from the House floor on October 17. But as Benjamin Wittes, a Brookings Institution scholar and an expert on the FISA court, writes in The New Republic Online this week, Protect America and RESTORE are actually quite similar. They do, however, hold significant implications for the court.
"Under either approach, the [NSA] will have the legal authority to listen to your calls without first going to the [FISA] court to get a warrant," as long as the targets are people overseas calling people in the United States, Wittes writes. Under the Protect America Act, which the administration favors, the FISA court plays "only a tiny retroactive role in approving procedures for overseas surveillance." But under RESTORE, the court "would play a slightly-less-tiny role in rubber-stamping [surveillance] programs," Wittes maintains. The court, under RESTORE, is given additional powers to review and modify "minimization procedures," which are secret, are written by the government, and are supposed to ensure that information about "U.S. persons" (defined as U.S. citizens or legal residents) is scrubbed from intelligence reports.
Under the RESTORE Act, the court would also have a new, controversial power: granting programmatic or "blanket" warrants for whole classes of individuals overseas who are not U.S. persons. Historically, courts have ruled that such orders violate the Fourth Amendment, which requires that warrants be issued against specific individuals and locations. And although the foreign targets of surveillance don't enjoy constitutional protections, the U.S. persons whom they might call do.
Wittes argues that the RESTORE Act's "approach is a little like asking the courts to approve the reasonableness of police arrest policies prospectively instead of reviewing individual arrests. It's not the way we traditionally do things in the American constitutional system -- and it creates a potentially serious set of constitutional problems with the bill." But the law would require the administration to submit to the court "the procedures it uses to determine which surveillance is exempt from FISA -- and the court has the ability to send them back if they're unreasonable," he adds.
Under the previous version of FISA, the judges found ways to discipline the government. They could reject an application for a warrant; in one case, Lamberth barred a senior FBI official from appearing before the court, because he said that the official had presented false information. The RESTORE Act wouldn't really take these powers away.
Still, some see the recent amendments to FISA as a further weakening of constitutional protections. "There are significant problems that existed with FISA before the Protect America Act," says Jameel Jaffer, the director of the American Civil Liberties Union's National Security Project, who is leading a legal effort to have the court release its written opinions on the NSA's surveillance program.
The court "was created to circumvent the Fourth Amendment," says Jonathan Turley, a professor at the George Washington University Law School and one of the few lawyers ever to go inside the court's secure room. With the Protect America and RESTORE acts, Turley says, "Democrats and Republicans are amending the Constitution by default."
For their part, the FISA court judges are unlikely to weigh in directly on the constitutional debate. But using history as a guide, it seems unlikely that they'll do anything more or less than apply the statute as directed by Congress. Presumably, they'll also steer clear of deciding how valid the statute actually is.
Friday, October 19, 2007
As Democrats and Republicans debate legislation that would alter 30-year-old limits on intrusive electronic and physical searches by the government, the secretive 11-member court that oversees surveillance of foreign-intelligence targets in the United States finds itself in the middle of a very public power struggle.
Regardless of where law and policy makers fall on the question, now being debated, about which governmental branch should hold the most sway over intelligence operations, and which political party has the more effective and fair solution, they all agree on this much: The Foreign Intelligence Surveillance Court should play referee, and the government should receive some kind of authorization for a still-secret set of spying activities that many agree are essential to the war on terrorism. If that oversight results in warrants that violate the Constitution, as some scholars fear would occur if pending legislation is enacted, most Republicans and Democrats don't appear concerned about such a prospect or even cognizant of it. Such is the court's brave new world.
It is an odd, but perhaps not unwelcome, reality that the intelligence judges now play a decisive role in this controversy. Odd because for most of American history, the judiciary has ruled itself least qualified among the branches of government to manage intelligence activities. But not unwelcome because this court has waded into these waters before, and it believes it has been an indispensable buffer against government excess.
The 1978 Foreign Intelligence Surveillance Act, the court's animating law, was a grand political compromise. After years of unchecked surveillance by the FBI and intelligence agencies of prominent Americans and political dissidents both before and during the Nixon presidency, the FISA court became the arbiter of when and how the executive branch can spy on suspected foreign agents and terrorists inside the country. Especially after the 9/11 attacks, the judges have included more experts in national security law, court-watchers say, and the court's former chief judge has proudly proclaimed that the court turns down almost no surveillance requests because the government has learned to play within FISA's boundaries.
This system, however, was upended after the 9/11 attacks, when President Bush issued orders that allowed him to bypass the court when tracking domestic terrorism suspects. The orders seemed to reflect a long-held, simmering animosity toward the body by some senior administration officials, particularly Vice President Cheney's legal counsel, David Addington, who reportedly told a colleague after 9/11 that "we're one bomb away from getting rid of that obnoxious court."
Now, though, the court is regaining some of the authority it had lost. And if the president signs a new Democratic proposal to further amend FISA, the court would play a central and untested role in overseeing surveillance. It may welcome the chance.
Former Chief FISA Court Judge Royce Lamberth has described a panel of jurists confident in its interpretation of surveillance law, equipped to issue warrants quickly, and flexible enough to write new procedures during wartime. In remarks at the annual conference of the American Library Association in June, Lamberth, who left his post in 2002, said he hadn't found a better way of controlling government surveillance. But, the former judge added, there was a "worse way," and that was "what the president did with the National Security Agency": Bush's post-9/11 orders allowed the government's eavesdroppers to intercept communications inside the United States without the court's approval.
The NSA program, begun just after 9/11 and dubbed "the terrorist surveillance program" by Bush, continued without judicial check for more than five years, until January 2007, when the administration placed it under FISA court review. The exact contours of the court's initial orders about the program, which were to last for 90 days, are secret.
For that first 90-day period, the NSA program proceeded unimpeded, intelligence officials say. But, according to Mike McConnell, the director of national intelligence, in spring 2007 a different FISA judge said that the government needed a warrant to capture electronic communications between parties in foreign countries as those communications pass through routing equipment in the United States. "We found ourselves in a position of actually losing ground," McConnell told the El Paso Times in August. The government would have to apply for a warrant for each phone number it monitored in this way, and it takes about "200 man-hours" to fill out the necessary paperwork, McConnell said. FISA experts and lawmakers note, however, that the law contains emergency provisions that allow monitoring to begin before a court order.
The ruling on the U.S.-routed calls was a rare push-back from a court that, by Lamberth's count, has approved 99 percent of the government's warrant applications. The Bush administration then launched a massive lobbying effort to amend FISA; in August, Congress passed the Protect America Act. It effectively reversed the court's normal procedures (these require a warrant before surveillance) and gave judges an after-the-fact-review power for surveillance procedures, which inevitably pick up domestic communications when foreign targets call or e-mail people located in this country. The law was panned for its hasty and imprecise language, and some observers thought it even authorized warrantless physical searches of people's possessions and premises.
This brings the court to its current crossroads. To correct the law's deficiencies, as they see them, Democratic Reps. Silvestre Reyes of Texas and John Conyers of Michigan, the respective chairmen of the House Intelligence and Judiciary committees, have introduced the RESTORE Act, short for Responsible Surveillance That is Overseen, Reviewed, and Effective. The Democrats have said that the bill would "protect innocent Americans from warrantless eavesdropping." Republicans have blasted it as a roadblock in the executive's path, and the bill was suddenly pulled from the House floor on October 17. But as Benjamin Wittes, a Brookings Institution scholar and an expert on the FISA court, writes in The New Republic Online this week, Protect America and RESTORE are actually quite similar. They do, however, hold significant implications for the court.
"Under either approach, the [NSA] will have the legal authority to listen to your calls without first going to the [FISA] court to get a warrant," as long as the targets are people overseas calling people in the United States, Wittes writes. Under the Protect America Act, which the administration favors, the FISA court plays "only a tiny retroactive role in approving procedures for overseas surveillance." But under RESTORE, the court "would play a slightly-less-tiny role in rubber-stamping [surveillance] programs," Wittes maintains. The court, under RESTORE, is given additional powers to review and modify "minimization procedures," which are secret, are written by the government, and are supposed to ensure that information about "U.S. persons" (defined as U.S. citizens or legal residents) is scrubbed from intelligence reports.
Under the RESTORE Act, the court would also have a new, controversial power: granting programmatic or "blanket" warrants for whole classes of individuals overseas who are not U.S. persons. Historically, courts have ruled that such orders violate the Fourth Amendment, which requires that warrants be issued against specific individuals and locations. And although the foreign targets of surveillance don't enjoy constitutional protections, the U.S. persons whom they might call do.
Wittes argues that the RESTORE Act's "approach is a little like asking the courts to approve the reasonableness of police arrest policies prospectively instead of reviewing individual arrests. It's not the way we traditionally do things in the American constitutional system -- and it creates a potentially serious set of constitutional problems with the bill." But the law would require the administration to submit to the court "the procedures it uses to determine which surveillance is exempt from FISA -- and the court has the ability to send them back if they're unreasonable," he adds.
Under the previous version of FISA, the judges found ways to discipline the government. They could reject an application for a warrant; in one case, Lamberth barred a senior FBI official from appearing before the court, because he said that the official had presented false information. The RESTORE Act wouldn't really take these powers away.
Still, some see the recent amendments to FISA as a further weakening of constitutional protections. "There are significant problems that existed with FISA before the Protect America Act," says Jameel Jaffer, the director of the American Civil Liberties Union's National Security Project, who is leading a legal effort to have the court release its written opinions on the NSA's surveillance program.
The court "was created to circumvent the Fourth Amendment," says Jonathan Turley, a professor at the George Washington University Law School and one of the few lawyers ever to go inside the court's secure room. With the Protect America and RESTORE acts, Turley says, "Democrats and Republicans are amending the Constitution by default."
For their part, the FISA court judges are unlikely to weigh in directly on the constitutional debate. But using history as a guide, it seems unlikely that they'll do anything more or less than apply the statute as directed by Congress. Presumably, they'll also steer clear of deciding how valid the statute actually is.
Labels: Director of National Intelligence, Foreign Intelligence Surveillance Act, Intelligence, National Security Agency, Politics, Terrorism
Full Article
Signals and Noise
Friday, June 16, 2006
People like to say that the world changed on 9/11. That it became a more confusing place. But for two men, as buildings and bodies burned, the world became much clearer.
On the morning of September 11, 2001, John Poindexter, a 65-year-old retired rear admiral and President Reagan's onetime national security adviser, was driving to his office at a technology firm in Arlington, Va. He was 5 miles north of the Pentagon.
Poindexter's wife, Linda, rang his cellphone. Airplanes had flown into the twin towers in New York City, and one just crashed into the Pentagon, she said. "But Mark is OK. He wasn't in the building." Mark, one of the Poindexters' five sons, was a commander on the chief of naval operations' staff. His offices sat where the plane crashed, but most of the staff had cleared out earlier to accommodate Pentagon renovations.
"First, I was relieved that Mark was not in the building," Poindexter recalled in interviews in 2004. "Next, I realized this was a well-coordinated attack of the type that we had been working to prevent."
Poindexter was the senior vice president at Syntek Technologies. Under contract with the Defense Advanced Research Projects Agency (DARPA), the Pentagon's renowned innovation center, he helped to design early-warning systems for countering terrorism and other security crises. The technologies would sift through huge, disconnected databases for useful intelligence -- telltale events, names, or places that hinted at malicious intentions -- and then connect the pieces to predict an attack.
"I wondered if the intelligence community had ever considered the use of commercial airplanes as weapons by terrorists," Poindexter said. The signals were there, hiding in a sea of noise. At least 19 hijackers had crossed the border, used credit cards to buy plane tickets, made phone calls to associates, taken pilot training. They left digital footprints every step of the way.
Poindexter arrived at Syntek and found his co-workers huddled around a television. "The first tower had collapsed before I got there, and I watched as the second one came crashing down, in what seemed like slow motion," Poindexter said.
"I was discouraged," he continued. "We had not been able to gain acceptance by the intelligence community of the technologies and concepts that we had developed. It had been a long, slow process over the past six years." Poindexter's staff left for home. "I stayed most of the day, thinking about what needed to be done."
Some 30 miles away, at the headquarters of the National Security Agency in Fort Meade, Md., Michael Hayden, a 56-year-old Air Force lieutenant general and the agency's director, had been working for two hours when the first plane pierced the World Trade Center's North Tower. Almost immediately, submachine-gun-toting guards and bomb-sniffing dogs fanned out across the NSA campus, the nerve center of the most sophisticated electronic spying network ever devised.
As the planes struck their targets, Hayden ordered all non-essential workers to evacuate. He called his wife, Jeanine, asked her to find their three children and headed to the counter-terrorism center.
The agency's "CT shop" housed the experts and linguists who tracked terrorists' foreign communications. Lately, they had intercepted more than usual. The center's offices were located near the top floor of a high-rise.
On 9/11, "for obvious reasons, we had tried to move as many folks as possible into our adjacent lower buildings, but we really couldn't afford to move the counter-terrorism shop," Hayden told a 9/11 congressional inquiry in October 2002. Hayden found the CT staff "emotionally shattered" and crying, but "defiantly tacking up blackout curtains on their windows to mask their location."
Domestic terrorist attacks, though a surprise, were not altogether unanticipated after the 1993 bombing of the World Trade Center. But Hayden knew that on the all-important home front, the NSA was deaf. "Sadly, NSA had no [signals] suggesting that Al Qaeda was specifically targeting New York and Washington, D.C., or even that it was planning an attack on U.S. soil," Hayden told the inquiry. "Indeed, NSA had no knowledge before September 11 that any of the attackers were in the United States."
To avoid charges of domestic spying, the NSA could not monitor Americans inside the country and some foreigners here -- absent a court order. They didn't constitute "foreign-intelligence value," in agency parlance. As Hayden explained in January at the National Press Club, even if the NSA had known of the hijackers' presence, "[they] would have been presumed to have been protected persons, U.S. persons," and therefore of no foreign-intelligence value, he said, his voice tensing. The agency also struggled to keep up with the overwhelming amount of raw intelligence it received every day, most of which was not related to terrorism.
Hayden understood that the terrorists had hatched their plans in this country. They had communicated here, moved about publicly, and left signals. If other terrorists were here, Hayden wanted to find them. "The standard by which we decided ... what [information] was relevant and valuable, and therefore, what was reasonable [to collect], would understandably change, I think, as smoke billowed from two American cities and a Pennsylvania farm field. And we acted accordingly."
Poindexter and Hayden knew that the signals of a future attack dwelled in a sea of noise full of mostly innocent activities. To find the enemies among us, they'd have to look, and listen, everywhere. Over the next two years, Poindexter and Hayden would hunt for signals on the sea. Sometimes they crossed paths.
While Poindexter's and Hayden's journeys were ostensibly separate, they hoped to arrive at the same destination -- knowing what terrorists would do before they acted.
Hayden left the NSA in 2005, to become the second-in-command of all intelligence agencies, but his successor continued his efforts. Some thought Poindexter's trek was finished when, three years ago, Congress eliminated funding for his early-warning research, amid fierce criticism from privacy-rights groups and civil libertarians. But Poindexter's brainchild lives on, in pursuit of the same elusive goal, and one of its biggest patrons is none other than Hayden's old harbor, the NSA. Today, the two men's visions appear more intertwined than ever.
Setting Sail
On the morning of September 12, Poindexter called his friend Brian Sharkey, with whom he had worked on the early-warning systems. They lamented that they hadn't achieved their ultimate vision -- "total information awareness" of terrorist planning.
They decided to urge DARPA to back a full-fledged "TIA" system, as Poindexter called it, comprising the data-mining and analysis tools they had been designing, along with new ones. TIA would train its eyes not only on government databases but also on those caches of valuable, and presumably private, information where terrorists left their footprints, such as credit card purchases, e-mails, and plane and car rental reservations.
"We knew we must work fast and build a convincing case," Poindexter said in an interview. On October 15, 2001, he pitched his plan to DARPA's director, Tony Tether, comparing TIA to another pursuit of a war-ending weapon. Poindexter titled his presentation "A Manhattan Project for Counter-Terrorism."
The government had once harnessed the brightest minds to build the atom bomb. Now Poindexter wanted the sharpest computer scientists and terrorist experts to build an information weapon. He even suggested ensconcing TIA team members at a secret government facility, surrounded by high fences and concertina wire, to remind them of the seriousness, urgency, and sensitivity of their work.
Tether was impressed, and he said that if Poindexter returned to government and ran TIA, DARPA would fund it. Two months later, Poindexter became the director of the agency's Information Awareness Office and kicked off a slew of multimillion-dollar research projects. One of them was designed to create privacy protections so that TIA wouldn't ensnare anyone who wasn't a terrorist. Poindexter's original plan to make TIA classified was changed; making the program public helped to attract new ideas.
While Poindexter pitched DARPA, Hayden met with Bush administration officials about the NSA's role in a future war. The agency was monitoring communications among known or suspected terrorists, regardless of geographic location, under existing authority that allowed domestic surveillance as part of a terrorism investigation. But that authority would eventually expire.
Shortly after the 9/11 attacks, then-CIA Director George Tenet asked Hayden, "Is there anything more you can do?" In response, Hayden said at his recent nomination hearing to be CIA director, "I said, 'Not within my current authorities.' And [Tenet] invited me to come down and talk to the administration about what more could be done."
Hayden proposed monitoring terrorists' communications into and out of the United States indefinitely. Such a program would have to have specific boundaries, he testified. It would have to be "technologically possible," "operationally relevant" to the mission -- foiling or catching terrorists -- and "lawful."
The NSA "would work ... where all three of those [requirements] intersected," Hayden said. It wasn't the surveillance envisioned under the 1978 Foreign Intelligence Surveillance Act, Hayden conceded. This was "hot pursuit" of communications, a distinction that still isn't well understood, but one that Hayden said gave the NSA a faster way to find terrorist signals.
President Bush was impressed. Hayden "showed me the plans.... I said, 'That makes a lot of sense to me,' " Bush said in a speech in February. "I remember some of those phone calls coming out of California," where some of the 9/11 hijackers were living, "just thinking, maybe if we'd have listened to those on a quick-response basis, you know, it might have helped prevent the attacks." On October 4, 2001, the president issued an order "that laid out the underpinnings for what I described," Hayden said at his confirmation hearing. "The math was pretty straightforward. I could not not do this."
Joining Forces
Unbeknownst to each other, Poindexter and Hayden started rigging up separate efforts. In February 2002, Poindexter established a secure, classified computer network for testing analysis software and tools that might be worked into TIA. As the system came together, this experimental network would be the engineers' Bonneville Salt Flats, a place to test-drive the state of the art. If tools passed muster there, they might end up in the design Poindexter had in mind.
"If there was a vendor with some great gizmo, they'd have to go through an arduous one- or two-year process to get that accredited by an intelligence agency," said Robert Popp, who was the No. 2 TIA official and Poindexter's deputy. "That didn't fit our parameters. We wanted to kick around these various technologies to see their utility. The network could put it through that whole two-year process in a few months."
Since intelligence agencies would be some of the ultimate users of TIA, Poindexter wanted them involved. He already had good contacts from his earlier work as a contractor on early-warning systems. He invited agencies to participate in TIA experiments by establishing "nodes," desktop computers connected directly to the network and housed in the agencies' offices. No agency collected more raw, noisy intelligence than the NSA, which was desperate to find ways to interpret the signals. It would be a natural TIA user, and so in late 2002, Poindexter met with NSA officials, including Hayden, and encouraged them to consider his approach.
The NSA agreed to participate in the experiments, and started installing nodes on the TIA network in early 2003. Poindexter also invited the Defense Intelligence Agency, the CIA, and several military combatant commands and intelligence brigades. All of the agencies used real data in the experiments. And the network was designed to let them share their intelligence. They could merge and cross-check, all in a closed environment. In that sense, the network was more than a test bed. It was also an information exchange.
Hayden seemed reticent about TIA, according to people who were privy to the early experiments. He was loathe to be seen publicly supporting the program. That may have been because the NSA was pursuing its own Holy Grail of analysis, apart from Poindexter's work. Indeed, the NSA's effort went back some years but had largely failed.
In the late 1990s, the NSA considered a novel approach to intercepting huge amounts of e-mail and phone traffic as part of a project called ThinThread. According to The Baltimore Sun, which revealed the program's existence last month, "ThinThread's information-sorting system was viewed by some in the agency as a competitor to Trailblazer, a $1.2 billion program that was being developed with similar goals.
The NSA was committed to Trailblazer, which later ran into trouble and has been essentially abandoned." A component of ThinThread exists today and is part of the domestic surveillance program, but it is less sophisticated and has created "a subpar tool for sniffing out information," The Sun reported.
In September 2002, just before the NSA joined Poindexter's laboratory, the agency's primary research unit began another TIA-like quest. The Advanced Research and Development Activity (ARDA), housed at NSA headquarters, awarded $64 million in contracts for the Novel Intelligence From Massive Data program, which was, according to former government officials, a spin-off of work that Poindexter and his team had begun almost a year earlier. At least six of the contractors who worked on TIA also worked on the NSA's version. Hayden's ship, it seems, was watching Poindexter's closely.
Rise and Fall
By mid-2002, the NSA was already secretly collecting huge amounts of phone and Internet data, as part of the terrorism program that Bush authorized. The agency was keen on finding a way to manage it all, but had found no technologies that could meet its dual needs -- sustaining a massive influx of information, in real time, and locating meaningful signals in it -- said sources who knew of the problem.
According to two former government officials, the NSA tried using the data-sorting and analysis tools developed under TIA. The early results, however, were unspectacular. When NSA researchers matched their data against those experimental computer programs, the tools crashed under the strain, one of the former officials said. The researchers did not conduct the tests on the network itself, sources said, suggesting that the NSA took tools that the network developed and used them on its own, without the knowledge of Poindexter's staff.
Documents show that the TIA network participants have tested at least four dozen tools using real intelligence data. The documents don't indicate which tools the NSA or any other agency specifically examined, but they do show that the NSA tested its own, homegrown versions on the TIA network as well.
The NSA was one of biggest players on the TIA network, but not the only one. As months passed, more agencies joined, and some began using TIA for real intelligence operations.
For instance, in 2003 the Pentagon's Criminal Investigation Task Force, which was established to fuse law enforcement and intelligence techniques in fighting terrorism, was interrogating detainees at the U.S. military facility at Guantanamo Bay, Cuba. Stacks of interrogation reports piled up, and the interrogators struggled to make sense of the information they contained. Some detainees frequently mentioned the same names or places. Some detainees claimed to know each other. Others didn't. The interrogators turned to the TIA network to help sort out the hundreds of reports and potential leads.
"They provided the interrogation reports to analysts, and [the analysts], using several link-analysis tools provided by TIA, tried to discover interesting nonobvious relationships," Popp said. Link analysis detects connections between people through common associates or backgrounds, and creates web-like diagrams of the connections.
"The link-analysis tools showed the interrogators things that were not apparent to them -- very valuable, useful information that they could then use in follow-up interrogations." Popp said that the investigators also knew after they concluded their interrogations that some detainees were not terrorists, so those reports were used to create a sort of baseline for what a nonterrorist looked like. The tools could then be calibrated to disregard certain attributes and search for others that were salient, Popp said.
TIA made more data available to the network members. Poindexter's team built a database of simulated intelligence reports about terrorists, including fake accounts of their daily activities that left transactional footprints, so that members could see how well the tools worked on information that mirrored their own.
The TIA researchers nicknamed the database "Ali Baba," a former official said, after the fictional Arabian Nights character who opens a cave hiding fabulous treasures by uttering the words "Open Sesame." Today, troops in Iraq use "Ali Baba" as a slang catchall for insurgents and suspected terrorists.
The TIA network also added real databases of known or suspected terrorists, as well as the people, places, and activities that had been linked to them. These caches, known as "entity databases," were highly classified and were open to other agencies with nodes on the network, according to former TIA officials and documents on the program.
As critics were chastising intelligence agencies for not sharing enough information about terrorism before 9/11, the TIA network partners were actively swapping leads and finding ways to give one another access to their highly classified intelligence.
Poindexter set out an ambitious schedule to enlarge the network and build an eventual TIA system. Every three months, an experiment was aimed at a specific milestone, such as creating an entity database, finding new ways for analysts to collaborate, or testing tools that uncovered terrorist aliases and hidden links between groups. Each experiment period had a code name -- "Mistral," "Sirocco," "Rafale," "Noreaster." The nomenclature paid homage to Poindexter's passion: sailing. Each name is a type of wind.
The TIA network was quickly becoming the most active experiment of its kind. In the network's first year, the number of individual users at agencies increased more than 35 times, from seven to 250. By August 2003, the network had 23 nodes and 320 users.
And then, the bottom fell out.
TIA had come under intense scrutiny from lawmakers and privacy advocates in late 2002, when a series of news articles brought the program to the attention of national policy makers. One piece, by New York Times columnist William Safire, assailed the program as a "far-out Orwellian scenario." It seized on Poindexter's plan to look at databases of personal information as a potential intelligence source. Safire derided TIA as the ultimate snooping machine.
TIA's existence was never a secret, and technology journalists had written about the program. But the national media attention raised questions about just how far the Bush administration was willing to go in the war on terrorism.
Safire also reminded readers that Poindexter was the central figure in the Reagan administration's greatest scandal. Poindexter oversaw the secret sale of missiles to Iran, in exchange for American hostages, and then funneled the proceeds to the anti-communist Contras in Nicaragua. In 1990, he was convicted on multiple felony counts stemming from the affair; an appeals court overturned the convictions a year later. "This ring-knocking master of deceit is back again with a plan even more scandalous than Iran-Contra," Safire wrote.
Poindexter had feared his past would catch up with him and tar TIA, he said in interviews. After Safire's column ran, Defense Secretary Donald Rumsfeld barred Poindexter from speaking publicly. Lawmakers were outraged that the government had even proposed TIA, much less put a once-convicted felon in charge.
Poindexter continued his work, but late in July 2003, The Times revealed that his group was studying a futures market that would let terrorism analysts place bets on likely attacks. Although academics and economists praised the idea -- futures markets can accurately predict commodities prices, housing sales, and sometimes even elections -- it looked perverse when it was attached to Poindexter's shop. The Pentagon forced Poindexter to resign less than two weeks later.
Aggrieved lawmakers and civil libertarians declared victory in September, when Congress eliminated funding in the Defense Department budget for TIA. But they might have missed the fine print. Lawmakers allowed classified intelligence funds to be spent on a "program ... for processing, analysis, and collaboration tools for counter-terrorism foreign intelligence." The program was TIA. And it was about to move to a new home, at the headquarters of the NSA.
Inherit the Winds
As National Journal revealed in February, the NSA's Advanced Research and Development Activity took over TIA and carried on the experimental network in late 2003. ARDA continued vetting new tools and even kept the aggressive experiment schedule, still named after different winds, documents show.
But it discontinued some programs, most notably a multimillion-dollar effort to build privacy-protection technologies. ARDA also abandoned the effort to build audit trails in TIA, which would have permanently recorded any abuse by users.
The experimental network's name was changed from TIA, to erase any connection to its past. Today it's called the Research Development and Experimental Collaboration (RDEC, pronounced ARdeck). The NSA is the biggest player, with at least 15 nodes as of December 2004, according to official documents. "I think it's considerably more today," said a former government official knowledgeable about RDEC. A spokesman for the NSA said he had no information to provide about the network.
Popp, the former TIA deputy director, emphasized that he didn't know if the NSA is using RDEC directly for the domestic surveillance program. "NSA is a big place," he said.
However, some of the tools that TIA developed and experimented with, Popp said, "no question, are the same sorts of tools that the NSA eavesdropping program could possibly use -- meaningfully -- for analytical purposes, based on what's publicly known about it. This certainly seems plausible to me." Popp has recently co-edited a book on technologies for counter-terrorism, and legal and policy structures for implementing them.
"I would bet that the tools NSA is using today [as part of the domestic program] are not the ones they started out with," said a former government official who was close to TIA and the NSA.
RDEC could enhance the domestic surveillance program if the NSA used it as an information-sharing device, to cross-check names and events with other agencies and firm up links, former officials said. In January, The Washington Post reported that the NSA shared information obtained from the domestic program with other agencies, including the Defense Intelligence Agency and the Counterintelligence Field Activity, a Pentagon counter-terrorism group that has collected information about war protesters near military facilities. Both agencies have nodes on RDEC.
The Defense Intelligence Agency, which like the NSA is overseen by the Pentagon, is one of the largest RDEC users. In an interview, Lewis Shepherd, the chief of the agency's Requirements and Research Group, said that RDEC is "the most successful attempt at bringing together a wide variety of analysts and agencies to work and think outside of the box collaboratively," specifically on counter-terrorism. "[It] opens access to a variety of data sources to different tools that haven't been able to access that data."
For example, RDEC lets analysts conduct repeated keyword searches on many different data streams, Shepherd said. It "sparks out-of-the-box innovation in how we do information-sharing."
Asked to elaborate on that innovation, Shepherd said, "It's all classified." But he offered the NSA as a general example. The agency's analysts are well trained in working with electronic signals, but they don't have much history in using other sources, such as satellite photos. RDEC lets NSA analysts, and others, "refine" the way they do their work, Shepherd said.
The former government official who was close to TIA and the NSA said it was "conceivable" that the NSA would use the RDEC to share information from the domestic program with other agencies. "It's a very good forum for doing that," the former official said.
Legacy
On October 6, 2001, two days after Bush cleared Hayden to turn the NSA's ears inward, Hayden met with about 80 agency employees in a large conference room. They became the workforce of the secret program, and Hayden told them what they were allowed to do. "I was explaining what the president had authorized," Hayden recalled at his CIA nomination hearing. "And I ended up by saying, 'And we're going to do exactly what he said and not one photon or one electron more.' And I think that's what we've done."
Hayden had set boundaries -- what was technologically possible, relevant, and lawful. But he has vowed that the NSA will live on the edge of those boundaries. A great fan of sports analogies, Hayden has said in private and public gatherings that for years the NSA played defense against its adversaries. A legal line of scrimmage kept the agency from tackling terrorists inside the country.
But after 9/11, the lines of play were redrawn. The NSA would go right up to the boundaries. "My spikes will have chalk on them," Hayden reportedly told one group when describing the NSA's new game plan. He was clear: "We're pretty aggressive within the law. As a professional, I'm troubled if I'm not using the full authority allowed by law."
Poindexter also thought that 9/11 clarified his purpose. "The attacks brought ... the war to our home," he wrote in his resignation letter in 2003. "After ... 9/11, I felt compelled to do what I could to make sure that never happened again." No one had done enough on 9/10 to stop the next day's horrors. Poindexter and Hayden wouldn't make the same mistake twice.
Poindexter is gone from government, but he still maintains contacts within the intelligence community and exerts a quiet influence. Hayden left the NSA in April 2005 to become the first deputy director of national intelligence. From that office, he oversaw all intelligence activities. Later this year, the office will take over management of the Advanced Research and Development Activity, which runs RDEC. Hayden took over as CIA director in May.
Although they've moved on, Poindexter and Hayden have left a wide wake. Whether or not Poindexter's masterwork has become the centerpiece of Hayden's terrorist hunt, their sails were cut from the same cloth. Their goals were the same. The former official who was close to TIA and the NSA thinks that Hayden didn't want to be associated with Poindexter, either publicly or in government, given his controversial nature.
"I think that Hayden was concerned that [Poindexter's] research was going to call attention, and that would eventually lead people to ask questions about what NSA was doing," the former official said. When TIA was ensnared in controversy, Hayden stayed quiet about the NSA's involvement.
But Hayden was watching, and following the admiral's lead, the former official thinks. Today, what the NSA is known to be doing looks enough like TIA to suggest that Poindexter inspired Hayden and his team. "It's clear to me now, in hindsight, why Hayden really was so unwilling to publicly acknowledge TIA," the former official said. "It's because Hayden was doing many of the things Poindexter did."
Published in National Journal.
Friday, June 16, 2006
People like to say that the world changed on 9/11. That it became a more confusing place. But for two men, as buildings and bodies burned, the world became much clearer.
On the morning of September 11, 2001, John Poindexter, a 65-year-old retired rear admiral and President Reagan's onetime national security adviser, was driving to his office at a technology firm in Arlington, Va. He was 5 miles north of the Pentagon.
Poindexter's wife, Linda, rang his cellphone. Airplanes had flown into the twin towers in New York City, and one just crashed into the Pentagon, she said. "But Mark is OK. He wasn't in the building." Mark, one of the Poindexters' five sons, was a commander on the chief of naval operations' staff. His offices sat where the plane crashed, but most of the staff had cleared out earlier to accommodate Pentagon renovations.
"First, I was relieved that Mark was not in the building," Poindexter recalled in interviews in 2004. "Next, I realized this was a well-coordinated attack of the type that we had been working to prevent."
Poindexter was the senior vice president at Syntek Technologies. Under contract with the Defense Advanced Research Projects Agency (DARPA), the Pentagon's renowned innovation center, he helped to design early-warning systems for countering terrorism and other security crises. The technologies would sift through huge, disconnected databases for useful intelligence -- telltale events, names, or places that hinted at malicious intentions -- and then connect the pieces to predict an attack.
"I wondered if the intelligence community had ever considered the use of commercial airplanes as weapons by terrorists," Poindexter said. The signals were there, hiding in a sea of noise. At least 19 hijackers had crossed the border, used credit cards to buy plane tickets, made phone calls to associates, taken pilot training. They left digital footprints every step of the way.
Poindexter arrived at Syntek and found his co-workers huddled around a television. "The first tower had collapsed before I got there, and I watched as the second one came crashing down, in what seemed like slow motion," Poindexter said.
"I was discouraged," he continued. "We had not been able to gain acceptance by the intelligence community of the technologies and concepts that we had developed. It had been a long, slow process over the past six years." Poindexter's staff left for home. "I stayed most of the day, thinking about what needed to be done."
Some 30 miles away, at the headquarters of the National Security Agency in Fort Meade, Md., Michael Hayden, a 56-year-old Air Force lieutenant general and the agency's director, had been working for two hours when the first plane pierced the World Trade Center's North Tower. Almost immediately, submachine-gun-toting guards and bomb-sniffing dogs fanned out across the NSA campus, the nerve center of the most sophisticated electronic spying network ever devised.
As the planes struck their targets, Hayden ordered all non-essential workers to evacuate. He called his wife, Jeanine, asked her to find their three children and headed to the counter-terrorism center.
The agency's "CT shop" housed the experts and linguists who tracked terrorists' foreign communications. Lately, they had intercepted more than usual. The center's offices were located near the top floor of a high-rise.
On 9/11, "for obvious reasons, we had tried to move as many folks as possible into our adjacent lower buildings, but we really couldn't afford to move the counter-terrorism shop," Hayden told a 9/11 congressional inquiry in October 2002. Hayden found the CT staff "emotionally shattered" and crying, but "defiantly tacking up blackout curtains on their windows to mask their location."
Domestic terrorist attacks, though a surprise, were not altogether unanticipated after the 1993 bombing of the World Trade Center. But Hayden knew that on the all-important home front, the NSA was deaf. "Sadly, NSA had no [signals] suggesting that Al Qaeda was specifically targeting New York and Washington, D.C., or even that it was planning an attack on U.S. soil," Hayden told the inquiry. "Indeed, NSA had no knowledge before September 11 that any of the attackers were in the United States."
To avoid charges of domestic spying, the NSA could not monitor Americans inside the country and some foreigners here -- absent a court order. They didn't constitute "foreign-intelligence value," in agency parlance. As Hayden explained in January at the National Press Club, even if the NSA had known of the hijackers' presence, "[they] would have been presumed to have been protected persons, U.S. persons," and therefore of no foreign-intelligence value, he said, his voice tensing. The agency also struggled to keep up with the overwhelming amount of raw intelligence it received every day, most of which was not related to terrorism.
Hayden understood that the terrorists had hatched their plans in this country. They had communicated here, moved about publicly, and left signals. If other terrorists were here, Hayden wanted to find them. "The standard by which we decided ... what [information] was relevant and valuable, and therefore, what was reasonable [to collect], would understandably change, I think, as smoke billowed from two American cities and a Pennsylvania farm field. And we acted accordingly."
Poindexter and Hayden knew that the signals of a future attack dwelled in a sea of noise full of mostly innocent activities. To find the enemies among us, they'd have to look, and listen, everywhere. Over the next two years, Poindexter and Hayden would hunt for signals on the sea. Sometimes they crossed paths.
While Poindexter's and Hayden's journeys were ostensibly separate, they hoped to arrive at the same destination -- knowing what terrorists would do before they acted.
Hayden left the NSA in 2005, to become the second-in-command of all intelligence agencies, but his successor continued his efforts. Some thought Poindexter's trek was finished when, three years ago, Congress eliminated funding for his early-warning research, amid fierce criticism from privacy-rights groups and civil libertarians. But Poindexter's brainchild lives on, in pursuit of the same elusive goal, and one of its biggest patrons is none other than Hayden's old harbor, the NSA. Today, the two men's visions appear more intertwined than ever.
Setting Sail
On the morning of September 12, Poindexter called his friend Brian Sharkey, with whom he had worked on the early-warning systems. They lamented that they hadn't achieved their ultimate vision -- "total information awareness" of terrorist planning.
They decided to urge DARPA to back a full-fledged "TIA" system, as Poindexter called it, comprising the data-mining and analysis tools they had been designing, along with new ones. TIA would train its eyes not only on government databases but also on those caches of valuable, and presumably private, information where terrorists left their footprints, such as credit card purchases, e-mails, and plane and car rental reservations.
"We knew we must work fast and build a convincing case," Poindexter said in an interview. On October 15, 2001, he pitched his plan to DARPA's director, Tony Tether, comparing TIA to another pursuit of a war-ending weapon. Poindexter titled his presentation "A Manhattan Project for Counter-Terrorism."
The government had once harnessed the brightest minds to build the atom bomb. Now Poindexter wanted the sharpest computer scientists and terrorist experts to build an information weapon. He even suggested ensconcing TIA team members at a secret government facility, surrounded by high fences and concertina wire, to remind them of the seriousness, urgency, and sensitivity of their work.
Tether was impressed, and he said that if Poindexter returned to government and ran TIA, DARPA would fund it. Two months later, Poindexter became the director of the agency's Information Awareness Office and kicked off a slew of multimillion-dollar research projects. One of them was designed to create privacy protections so that TIA wouldn't ensnare anyone who wasn't a terrorist. Poindexter's original plan to make TIA classified was changed; making the program public helped to attract new ideas.
While Poindexter pitched DARPA, Hayden met with Bush administration officials about the NSA's role in a future war. The agency was monitoring communications among known or suspected terrorists, regardless of geographic location, under existing authority that allowed domestic surveillance as part of a terrorism investigation. But that authority would eventually expire.
Shortly after the 9/11 attacks, then-CIA Director George Tenet asked Hayden, "Is there anything more you can do?" In response, Hayden said at his recent nomination hearing to be CIA director, "I said, 'Not within my current authorities.' And [Tenet] invited me to come down and talk to the administration about what more could be done."
Hayden proposed monitoring terrorists' communications into and out of the United States indefinitely. Such a program would have to have specific boundaries, he testified. It would have to be "technologically possible," "operationally relevant" to the mission -- foiling or catching terrorists -- and "lawful."
The NSA "would work ... where all three of those [requirements] intersected," Hayden said. It wasn't the surveillance envisioned under the 1978 Foreign Intelligence Surveillance Act, Hayden conceded. This was "hot pursuit" of communications, a distinction that still isn't well understood, but one that Hayden said gave the NSA a faster way to find terrorist signals.
President Bush was impressed. Hayden "showed me the plans.... I said, 'That makes a lot of sense to me,' " Bush said in a speech in February. "I remember some of those phone calls coming out of California," where some of the 9/11 hijackers were living, "just thinking, maybe if we'd have listened to those on a quick-response basis, you know, it might have helped prevent the attacks." On October 4, 2001, the president issued an order "that laid out the underpinnings for what I described," Hayden said at his confirmation hearing. "The math was pretty straightforward. I could not not do this."
Joining Forces
Unbeknownst to each other, Poindexter and Hayden started rigging up separate efforts. In February 2002, Poindexter established a secure, classified computer network for testing analysis software and tools that might be worked into TIA. As the system came together, this experimental network would be the engineers' Bonneville Salt Flats, a place to test-drive the state of the art. If tools passed muster there, they might end up in the design Poindexter had in mind.
"If there was a vendor with some great gizmo, they'd have to go through an arduous one- or two-year process to get that accredited by an intelligence agency," said Robert Popp, who was the No. 2 TIA official and Poindexter's deputy. "That didn't fit our parameters. We wanted to kick around these various technologies to see their utility. The network could put it through that whole two-year process in a few months."
Since intelligence agencies would be some of the ultimate users of TIA, Poindexter wanted them involved. He already had good contacts from his earlier work as a contractor on early-warning systems. He invited agencies to participate in TIA experiments by establishing "nodes," desktop computers connected directly to the network and housed in the agencies' offices. No agency collected more raw, noisy intelligence than the NSA, which was desperate to find ways to interpret the signals. It would be a natural TIA user, and so in late 2002, Poindexter met with NSA officials, including Hayden, and encouraged them to consider his approach.
The NSA agreed to participate in the experiments, and started installing nodes on the TIA network in early 2003. Poindexter also invited the Defense Intelligence Agency, the CIA, and several military combatant commands and intelligence brigades. All of the agencies used real data in the experiments. And the network was designed to let them share their intelligence. They could merge and cross-check, all in a closed environment. In that sense, the network was more than a test bed. It was also an information exchange.
Hayden seemed reticent about TIA, according to people who were privy to the early experiments. He was loathe to be seen publicly supporting the program. That may have been because the NSA was pursuing its own Holy Grail of analysis, apart from Poindexter's work. Indeed, the NSA's effort went back some years but had largely failed.
In the late 1990s, the NSA considered a novel approach to intercepting huge amounts of e-mail and phone traffic as part of a project called ThinThread. According to The Baltimore Sun, which revealed the program's existence last month, "ThinThread's information-sorting system was viewed by some in the agency as a competitor to Trailblazer, a $1.2 billion program that was being developed with similar goals.
The NSA was committed to Trailblazer, which later ran into trouble and has been essentially abandoned." A component of ThinThread exists today and is part of the domestic surveillance program, but it is less sophisticated and has created "a subpar tool for sniffing out information," The Sun reported.
In September 2002, just before the NSA joined Poindexter's laboratory, the agency's primary research unit began another TIA-like quest. The Advanced Research and Development Activity (ARDA), housed at NSA headquarters, awarded $64 million in contracts for the Novel Intelligence From Massive Data program, which was, according to former government officials, a spin-off of work that Poindexter and his team had begun almost a year earlier. At least six of the contractors who worked on TIA also worked on the NSA's version. Hayden's ship, it seems, was watching Poindexter's closely.
Rise and Fall
By mid-2002, the NSA was already secretly collecting huge amounts of phone and Internet data, as part of the terrorism program that Bush authorized. The agency was keen on finding a way to manage it all, but had found no technologies that could meet its dual needs -- sustaining a massive influx of information, in real time, and locating meaningful signals in it -- said sources who knew of the problem.
According to two former government officials, the NSA tried using the data-sorting and analysis tools developed under TIA. The early results, however, were unspectacular. When NSA researchers matched their data against those experimental computer programs, the tools crashed under the strain, one of the former officials said. The researchers did not conduct the tests on the network itself, sources said, suggesting that the NSA took tools that the network developed and used them on its own, without the knowledge of Poindexter's staff.
Documents show that the TIA network participants have tested at least four dozen tools using real intelligence data. The documents don't indicate which tools the NSA or any other agency specifically examined, but they do show that the NSA tested its own, homegrown versions on the TIA network as well.
The NSA was one of biggest players on the TIA network, but not the only one. As months passed, more agencies joined, and some began using TIA for real intelligence operations.
For instance, in 2003 the Pentagon's Criminal Investigation Task Force, which was established to fuse law enforcement and intelligence techniques in fighting terrorism, was interrogating detainees at the U.S. military facility at Guantanamo Bay, Cuba. Stacks of interrogation reports piled up, and the interrogators struggled to make sense of the information they contained. Some detainees frequently mentioned the same names or places. Some detainees claimed to know each other. Others didn't. The interrogators turned to the TIA network to help sort out the hundreds of reports and potential leads.
"They provided the interrogation reports to analysts, and [the analysts], using several link-analysis tools provided by TIA, tried to discover interesting nonobvious relationships," Popp said. Link analysis detects connections between people through common associates or backgrounds, and creates web-like diagrams of the connections.
"The link-analysis tools showed the interrogators things that were not apparent to them -- very valuable, useful information that they could then use in follow-up interrogations." Popp said that the investigators also knew after they concluded their interrogations that some detainees were not terrorists, so those reports were used to create a sort of baseline for what a nonterrorist looked like. The tools could then be calibrated to disregard certain attributes and search for others that were salient, Popp said.
TIA made more data available to the network members. Poindexter's team built a database of simulated intelligence reports about terrorists, including fake accounts of their daily activities that left transactional footprints, so that members could see how well the tools worked on information that mirrored their own.
The TIA researchers nicknamed the database "Ali Baba," a former official said, after the fictional Arabian Nights character who opens a cave hiding fabulous treasures by uttering the words "Open Sesame." Today, troops in Iraq use "Ali Baba" as a slang catchall for insurgents and suspected terrorists.
The TIA network also added real databases of known or suspected terrorists, as well as the people, places, and activities that had been linked to them. These caches, known as "entity databases," were highly classified and were open to other agencies with nodes on the network, according to former TIA officials and documents on the program.
As critics were chastising intelligence agencies for not sharing enough information about terrorism before 9/11, the TIA network partners were actively swapping leads and finding ways to give one another access to their highly classified intelligence.
Poindexter set out an ambitious schedule to enlarge the network and build an eventual TIA system. Every three months, an experiment was aimed at a specific milestone, such as creating an entity database, finding new ways for analysts to collaborate, or testing tools that uncovered terrorist aliases and hidden links between groups. Each experiment period had a code name -- "Mistral," "Sirocco," "Rafale," "Noreaster." The nomenclature paid homage to Poindexter's passion: sailing. Each name is a type of wind.
The TIA network was quickly becoming the most active experiment of its kind. In the network's first year, the number of individual users at agencies increased more than 35 times, from seven to 250. By August 2003, the network had 23 nodes and 320 users.
And then, the bottom fell out.
TIA had come under intense scrutiny from lawmakers and privacy advocates in late 2002, when a series of news articles brought the program to the attention of national policy makers. One piece, by New York Times columnist William Safire, assailed the program as a "far-out Orwellian scenario." It seized on Poindexter's plan to look at databases of personal information as a potential intelligence source. Safire derided TIA as the ultimate snooping machine.
TIA's existence was never a secret, and technology journalists had written about the program. But the national media attention raised questions about just how far the Bush administration was willing to go in the war on terrorism.
Safire also reminded readers that Poindexter was the central figure in the Reagan administration's greatest scandal. Poindexter oversaw the secret sale of missiles to Iran, in exchange for American hostages, and then funneled the proceeds to the anti-communist Contras in Nicaragua. In 1990, he was convicted on multiple felony counts stemming from the affair; an appeals court overturned the convictions a year later. "This ring-knocking master of deceit is back again with a plan even more scandalous than Iran-Contra," Safire wrote.
Poindexter had feared his past would catch up with him and tar TIA, he said in interviews. After Safire's column ran, Defense Secretary Donald Rumsfeld barred Poindexter from speaking publicly. Lawmakers were outraged that the government had even proposed TIA, much less put a once-convicted felon in charge.
Poindexter continued his work, but late in July 2003, The Times revealed that his group was studying a futures market that would let terrorism analysts place bets on likely attacks. Although academics and economists praised the idea -- futures markets can accurately predict commodities prices, housing sales, and sometimes even elections -- it looked perverse when it was attached to Poindexter's shop. The Pentagon forced Poindexter to resign less than two weeks later.
Aggrieved lawmakers and civil libertarians declared victory in September, when Congress eliminated funding in the Defense Department budget for TIA. But they might have missed the fine print. Lawmakers allowed classified intelligence funds to be spent on a "program ... for processing, analysis, and collaboration tools for counter-terrorism foreign intelligence." The program was TIA. And it was about to move to a new home, at the headquarters of the NSA.
Inherit the Winds
As National Journal revealed in February, the NSA's Advanced Research and Development Activity took over TIA and carried on the experimental network in late 2003. ARDA continued vetting new tools and even kept the aggressive experiment schedule, still named after different winds, documents show.
But it discontinued some programs, most notably a multimillion-dollar effort to build privacy-protection technologies. ARDA also abandoned the effort to build audit trails in TIA, which would have permanently recorded any abuse by users.
The experimental network's name was changed from TIA, to erase any connection to its past. Today it's called the Research Development and Experimental Collaboration (RDEC, pronounced ARdeck). The NSA is the biggest player, with at least 15 nodes as of December 2004, according to official documents. "I think it's considerably more today," said a former government official knowledgeable about RDEC. A spokesman for the NSA said he had no information to provide about the network.
Popp, the former TIA deputy director, emphasized that he didn't know if the NSA is using RDEC directly for the domestic surveillance program. "NSA is a big place," he said.
However, some of the tools that TIA developed and experimented with, Popp said, "no question, are the same sorts of tools that the NSA eavesdropping program could possibly use -- meaningfully -- for analytical purposes, based on what's publicly known about it. This certainly seems plausible to me." Popp has recently co-edited a book on technologies for counter-terrorism, and legal and policy structures for implementing them.
"I would bet that the tools NSA is using today [as part of the domestic program] are not the ones they started out with," said a former government official who was close to TIA and the NSA.
RDEC could enhance the domestic surveillance program if the NSA used it as an information-sharing device, to cross-check names and events with other agencies and firm up links, former officials said. In January, The Washington Post reported that the NSA shared information obtained from the domestic program with other agencies, including the Defense Intelligence Agency and the Counterintelligence Field Activity, a Pentagon counter-terrorism group that has collected information about war protesters near military facilities. Both agencies have nodes on RDEC.
The Defense Intelligence Agency, which like the NSA is overseen by the Pentagon, is one of the largest RDEC users. In an interview, Lewis Shepherd, the chief of the agency's Requirements and Research Group, said that RDEC is "the most successful attempt at bringing together a wide variety of analysts and agencies to work and think outside of the box collaboratively," specifically on counter-terrorism. "[It] opens access to a variety of data sources to different tools that haven't been able to access that data."
For example, RDEC lets analysts conduct repeated keyword searches on many different data streams, Shepherd said. It "sparks out-of-the-box innovation in how we do information-sharing."
Asked to elaborate on that innovation, Shepherd said, "It's all classified." But he offered the NSA as a general example. The agency's analysts are well trained in working with electronic signals, but they don't have much history in using other sources, such as satellite photos. RDEC lets NSA analysts, and others, "refine" the way they do their work, Shepherd said.
The former government official who was close to TIA and the NSA said it was "conceivable" that the NSA would use the RDEC to share information from the domestic program with other agencies. "It's a very good forum for doing that," the former official said.
Legacy
On October 6, 2001, two days after Bush cleared Hayden to turn the NSA's ears inward, Hayden met with about 80 agency employees in a large conference room. They became the workforce of the secret program, and Hayden told them what they were allowed to do. "I was explaining what the president had authorized," Hayden recalled at his CIA nomination hearing. "And I ended up by saying, 'And we're going to do exactly what he said and not one photon or one electron more.' And I think that's what we've done."
Hayden had set boundaries -- what was technologically possible, relevant, and lawful. But he has vowed that the NSA will live on the edge of those boundaries. A great fan of sports analogies, Hayden has said in private and public gatherings that for years the NSA played defense against its adversaries. A legal line of scrimmage kept the agency from tackling terrorists inside the country.
But after 9/11, the lines of play were redrawn. The NSA would go right up to the boundaries. "My spikes will have chalk on them," Hayden reportedly told one group when describing the NSA's new game plan. He was clear: "We're pretty aggressive within the law. As a professional, I'm troubled if I'm not using the full authority allowed by law."
Poindexter also thought that 9/11 clarified his purpose. "The attacks brought ... the war to our home," he wrote in his resignation letter in 2003. "After ... 9/11, I felt compelled to do what I could to make sure that never happened again." No one had done enough on 9/10 to stop the next day's horrors. Poindexter and Hayden wouldn't make the same mistake twice.
Poindexter is gone from government, but he still maintains contacts within the intelligence community and exerts a quiet influence. Hayden left the NSA in April 2005 to become the first deputy director of national intelligence. From that office, he oversaw all intelligence activities. Later this year, the office will take over management of the Advanced Research and Development Activity, which runs RDEC. Hayden took over as CIA director in May.
Although they've moved on, Poindexter and Hayden have left a wide wake. Whether or not Poindexter's masterwork has become the centerpiece of Hayden's terrorist hunt, their sails were cut from the same cloth. Their goals were the same. The former official who was close to TIA and the NSA thinks that Hayden didn't want to be associated with Poindexter, either publicly or in government, given his controversial nature.
"I think that Hayden was concerned that [Poindexter's] research was going to call attention, and that would eventually lead people to ask questions about what NSA was doing," the former official said. When TIA was ensnared in controversy, Hayden stayed quiet about the NSA's involvement.
But Hayden was watching, and following the admiral's lead, the former official thinks. Today, what the NSA is known to be doing looks enough like TIA to suggest that Poindexter inspired Hayden and his team. "It's clear to me now, in hindsight, why Hayden really was so unwilling to publicly acknowledge TIA," the former official said. "It's because Hayden was doing many of the things Poindexter did."
Published in National Journal.
Labels: Intelligence, National Security Agency, Technology, Terrorism, Total Information Awareness
Full Article
More than Meets the Ear
Friday, March 17, 2006
The National Security Agency's warantless surveillance program is broader than officials have described.
The Bush administration has assiduously avoided any talk about the actual workings of its program to intercept the phone calls and e-mails of people in the United States who are suspected of having links to terrorists abroad. Officials' unwavering script goes like this: Present the legal justifications for the president to authorize domestic electronic surveillance without warrants, but say nothing about how the National Security Agency actually does it -- or about what else the agency might be doing.
But when Attorney General Alberto Gonzales appeared before the Senate Judiciary Committee on February 6 to answer questions about the program, what he didn't say pulled back the curtain on how the NSA decides which calls and e-mails to monitor. The agency bases those decisions on a broad and less focused surveillance than officials have publicly described, a surveillance that may, or may not, be legal.
In a hearing that lasted more than eight hours, Gonzales, who didn't testify under oath, dutifully batted away senators' inquiries about "operational details" and stayed silent, under determined questioning by some Democrats, about other warrantless programs that the president might have secretly authorized. When the hearing finally ended, so did Gonzales's comments on the program.
Until 22 days later. On February 28, Gonzales sent committee Chairman Arlen Specter, R-Pa., a six-page letter, partly to respond to questions he was unprepared to answer at the hearing, but also "to clarify certain of my responses" in the earlier testimony. In the letter, Gonzales took pains to correct any "misimpressions" that he might have created about whether the Justice Department had assessed the legality of intercepting purely domestic communications, for example, as opposed to those covered by the NSA program, in which one party is outside the United States. The attorney general didn't say that Justice had contemplated the legality of purely domestic eavesdropping without a warrant, but he also didn't say it hadn't.
Gonzales's letter was intriguing for what else it didn't say, especially on one point: With exacting language, he narrowed the scope of his comments to address only "questions relating to the specific NSA activities that have been publicly confirmed by the president." Then, as if to avoid any confusion, Gonzales added, "Those activities involve the interception by the NSA of the contents of communications" involving suspected terrorists and people in the United States.
Slightly, and with a single word, Gonzales was tipping his hand. The content of electronic communications is usually considered to be the spoken words of a phone call or the written words in an electronic message. The term does not include the wealth of so-called transactional data that accompany every communication: a phone number, and what calls were placed to and from that number; the time a call was placed; whether the call was answered and how long it lasted, down to the second; the time and date that an e-mail message was sent, as well as its unique address and routing path, which reveals the location of the computer that sent it and, presumably, the author.
Considering that terrorists often talk and write in code, the transactional data of a communication, properly exploited, could yield more valuable intelligence than the content itself. "You will get a very full picture of a person's associations and their patterns of activity," said Jim Dempsey, the policy director of the Center for Democracy and Technology, an electronic-privacy advocacy group. "You'll know who they're talking to, when they're talking, how long, how frequently.... It's a lot [of information]. I mean, a lot."
According to sources who are familiar with the details of what the White House calls the "terrorist surveillance program," and who asked to remain anonymous because the program is still classified, analyzing transactional data is one of the first and most important steps the agency takes in deciding which phone calls to listen to and which electronic messages to read. Far from the limited or targeted surveillance that Gonzales, President Bush, and intelligence officials have described, this traffic analysis examines thousands, perhaps hundreds of thousands, of individuals, because nearly every phone number and nearly every e-mail address is connected to a person.
Patterns in the Sea
Analysis of telephone traffic patterns helps analysts and investigators spot relationships among people that aren't always obvious. For instance, imagine that a man in Portland, Ore., receives a call from someone at a pay phone in Brooklyn, N.Y., every Tuesday at 9 a.m. Also every Tuesday, but minutes earlier, the pay phone caller rings up a man in Miami. An investigator might look at that pattern and suspect that the men in Portland and Miami are communicating through the Brooklyn caller, who's acting as a kind of courier, to mask their relationship. Patterns like this have led criminal investigators into the inner workings of drug cartels and have proved vital in breaking these cartels up.
Terrorists employ similar masking techniques. They use go-betweens to circuitously route calls, and they change cellphones often to avoid detection. Transactional data, however, capture those behaviors. If NSA analysts -- or their computers -- can find these patterns or signatures, then they might find the terrorists, or at least know which ones they should monitor.
Just after 9/11, according to knowledgeable sources, the NSA began intercepting the communications of specific foreign persons and groups named on a list. The sources didn't specify whether persons inside the United States were monitored as part of that list. But a former government official who is knowledgeable about NSA activities and the warrantless surveillance program said that this original list of people and groups, or others like it, could have formed the base of the NSA's surveillance of transactional data, the parts of a communication that aren't considered content.
If the agency started with a list of phone numbers, it could find all the numbers dialed from those phones. The NSA could then learn what numbers were called from that second list of numbers, and what calls that list received, and so on, "pushing out" the lists until the agency had identified a vast network of callers and their transactional data, the former official said. The agency might eavesdrop on only a few conversations or e-mails. But starting with even an initial target list of, say, 10 phone numbers quickly yields a web of hundreds of thousands of communications, because the volume increases exponentially with every new layer of callers.
To find meaningful patterns in transactional data, analysts need a lot of it. They must set baselines about what constitutes "normal" behavior versus "suspicious" activity. Administration officials have said that the NSA doesn't intercept the contents of a communication unless officials have a "reasonable" basis to conclude that at least one party is linked to a terrorist organization. To make any reasonable determination like that, the agency needs hundreds of thousands, or even millions, of call records, preferably as soon as they are created, said a senior person in the defense industry who is familiar with the NSA program and is an expert in the analytical tools used to find patterns and connections. Asked if this means that the NSA program is much broader and less targeted than administration officials have described, the expert replied, "I think that's correct."
In theory, finding reasonable connections in data is a straightforward and largely automated process. Analysts use computer programs based on algorithms -- mathematical procedures for solving a particular problem -- much the same way that meteorologists use data models to forecast the weather. Counter-terrorism algorithms look for the transactional indicators that match what analysts recognize as signs of a plot.
Of course, those algorithms must be sophisticated enough to spot many not-so-obvious patterns in a mass of data that are mostly uninteresting, and they work best when the data come from many sources. Algorithms have proven useful for detecting frequent criminal activity, such as credit card fraud. "Historical data clearly indicate that if a credit card turns up in two cities on two continents on the same day, that's a useful pattern," says Jeff Jonas, a computer scientist who invented a technology to connect known scam artists who are on casinos' watch lists with new potential grifters, and is now the chief scientist of IBM Entity Analytics. "The challenge of predicting terrorism is that unlike fraud, we don't have the same volume of historical data to learn from," Jonas said. "Compounding this is the fact that terrorists are constantly changing their methods and do their best to avoid leaving any digital footprints in the first place."
The obvious solution would be to write an algorithm that is flexible and fast enough to weigh millions of pieces of evidence, including exculpatory ones, against each other. But according to technology experts, and even the NSA's own stated research accomplishments, that technology has not been perfected.
The Bleeding Edge
The NSA began soon after the 9/11 terrorist attacks to collect transactional data from telecommunications companies. Several telecom executives said in press accounts that their companies gave the NSA access to their switches, the terminals that handle most of the country's electronic traffic. One executive told National Journal that NSA officials urged him to hand over his company's call logs. When he resisted, the officials implied that most of his competitors had acceded to the agency's request.
Not long after the surveillance program started, in October 2001, the NSA began looking for new tools to mine the telecom data. The agency, the industry expert said, considered some that the Defense Department's Total Information Awareness program was developing. TIA was an ambitious and controversial experiment to find patterns of terrorist activity in a much broader range of transactions than just telephone data. But NSA officials rejected the TIA tools because they were "too brittle," the expert said, meaning that they failed to manage the torrent of data that the NSA wanted to analyze. He noted the irony of rejecting the TIA technologies -- which privacy advocates had characterized as huge, all-seeing, digital dragnets -- because they couldn't handle the size of the NSA's load.
In the fall of 2002, a federal research-and-development agency that builds technologies primarily for the NSA launched another search for pattern-detection solutions. The Advanced Research and Development Activity, ARDA, issued $64 million in contracts for the Novel Intelligence for Massive Data, or NIMD, program. Its goal was "to help analysts deal with information overload, detect early indicators of strategic surprise, and avoid analytic errors," according to ARDA's public call for proposals released last year. In essence, NIMD is an early-warning system, which is how the administration has described the terrorist surveillance program. In 2003, ARDA also took over research of the tools being developed under TIA.
While the NSA was searching for the next generation of data-sifters, it continued to rely on less sophisticated tools. For an example, the former government official who spoke to NJ cited applications that organize data into broad categories, allowing analysts to see some relationships but obscuring some of the nuance in the underlying information. The results of this kind of category analysis can be displayed on a graph. But the graph might reveal only how many times a particular word appears in a conversation, not necessarily the significance of the word or how it relates to other words. Technologists sarcastically call these diagrams BAGs -- big-ass graphs.
Such was the state of affairs when the NSA started looking for terrorist patterns in a telephonic ocean. So, instead of looking for a tool that could cull through the data, the agency decided to "reverse" the process, starting with the data set and working backward, looking for algorithms that could work with it.
The NSA has made some breakthroughs, the industry expert said, but its solution relies in part on a technological "trick," which he wouldn't disclose. Another data-mining expert, who also asked not to be identified because the NSA's work is classified, said that computer engineers probably started with the telecom companies' call data, looked for patterns, and then wrote algorithms to detect them as they went along, tweaking the algorithms as needed.
Such an ad hoc approach is brittle in its own right. For starters, if analysts are working with algorithms designed to detect only certain patterns, they could be missing others, the technology expert said. At the same time, the more dependent the algorithms are on identifying very specific patterns of behavior, the more vulnerable the NSA's monitoring is to being foiled if terrorists discover what the agency is watching for, or if they change their behavior. A more complex algorithm that considers thousands, or even millions, of patterns is harder to defeat.
The industry expert added that NSA officials have worried that "if you knew what the technical trick was they were doing [to make the surveillance program function], you wouldn't have to know what specific algorithms" the agency was using. This reliance on a "trick" makes the program very vulnerable to defeat and helps explain why the Bush administration is so keen on cloaking its inner workings."
It's pretty bleeding-edge," the expert said, referring to a technology that's unperfected and therefore prone to instability. "We're talking about dumping hundreds of thousands or millions of records" into a system. In an unsophisticated system, connections among people can emerge that look suspicious but are actually meaningless. A book agent who represents a journalist who once interviewed Osama bin Laden, for example, doesn't herself necessarily know bin Laden. But she might turn up in an NSA search of transactional data. "False positives will happen," the expert said.
Gonzales and former NSA Director Michael V. Hayden have said that career agency employees decide to eavesdrop only if they have a "reasonable" basis to believe one party to a communication is a terrorist or connected to a terrorist organization. But what determines reasonableness? In a January speech at the National Press Club, Hayden drew a distinction between the Fourth Amendment's requirement that "no warrants shall issue, but upon probable cause," and its protection against "unreasonable searches and seizures."
When a journalist in the crowd questioned his logic, Hayden heatedly replied, "If there's any amendment to the Constitution that employees of the National Security Agency are familiar with, it's the Fourth. And it is a reasonableness standard in the Fourth Amendment.... I am convinced that we are lawful, because what it is we're doing [intercepting content] is reasonable." He said that the terrorist attacks fundamentally altered the NSA's thinking. "The standard of what [information] was relevant and valuable, and therefore, what was reasonable, would understandably change, I think, as smoke billowed from two American cities and a Pennsylvania farm field. And we acted accordingly."
Aside from the question of whether NSA employees, rather than federal judges, are qualified to determine what constitutes a reasonable search, that determination provides much of the basis for deciding whose communications will be intercepted without a warrant. If the technology the NSA is using to determine what constitutes a reasonable search is unsophisticated, the industry expert said, "you're talking about tapping a phone based on a statistical correlation."
A New Legal Battle?
Gonzales's narrowly tailored letter to Sen. Specter raised more questions than it answered. Democrats were outraged by what they saw as the attorney general's attempt to alter his testimony and to obstruct senators' attempts to fully assess the program's legal basis. "Much of your letter is devoted to not providing answers to the questions of a number of us regarding legal justifications for activities beyond those narrowly conceded by you to have already been confirmed by the president," Sen. Patrick Leahy of Vermont, the Judiciary Committee's ranking Democrat, wrote to the attorney general in a follow-up letter.
Leahy also raised the question of what else Gonzales hadn't told lawmakers. The attorney general's letter contained "disturbing suggestions ... that there are other secret programs," Leahy wrote. In Gonzales's letter to Specter, the attorney general had referred to "other intelligence activities" and to his inability to discuss them; he left open the possibility that the president may not have authorized these activities. Gonzales wrote, "When I testified in response to questions from Sen. Leahy, 'Sir, I have tried to outline ... what the president has authorized, and that is all that he has authorized,' I was confining my remarks to the Terrorist Surveillance Program as described by the president."
Gonzales's testimony was meant to defend the program's legality. But as more about the NSA's operations become known, new legal questions arise, including one that goes to the heart of how officials reasonably identify suspected terrorists.
Under normal criminal law, content is defined as "any information concerning the substance, purport, or meaning of [a] communication," but the definition of content under the law that governs electronic eavesdropping on U.S. persons for intelligence purposes is different and is potentially in conflict with normal jurisprudence. That law, the Foreign Intelligence Surveillance Act, states that content "includes any information concerning the identity of the parties ... or the existence, substance, purport, or meaning of [their] communication."
A phone number can be used to identify a person, said Dempsey of the Center for Democracy and Technology, who for nine years was assistant counsel to the House Judiciary Subcommittee on Civil and Constitutional Rights. Does that mean that a phone number is "content" under the law? FISA, enacted in 1978, didn't envision today's technology, when anyone with an Internet connection can use a phone number to find someone's name, address, and even an aerial photograph of his house, Dempsey said.
"I just cannot read [FISA] and figure out what it means in the context of analysis of [transactional] data," he added. "Presumably somebody in the administration thinks they understand it.... Whether that's providing any clear guidance" to the people working on the NSA program, "that's not clear."
Friday, March 17, 2006
The National Security Agency's warantless surveillance program is broader than officials have described.
The Bush administration has assiduously avoided any talk about the actual workings of its program to intercept the phone calls and e-mails of people in the United States who are suspected of having links to terrorists abroad. Officials' unwavering script goes like this: Present the legal justifications for the president to authorize domestic electronic surveillance without warrants, but say nothing about how the National Security Agency actually does it -- or about what else the agency might be doing.
But when Attorney General Alberto Gonzales appeared before the Senate Judiciary Committee on February 6 to answer questions about the program, what he didn't say pulled back the curtain on how the NSA decides which calls and e-mails to monitor. The agency bases those decisions on a broad and less focused surveillance than officials have publicly described, a surveillance that may, or may not, be legal.
In a hearing that lasted more than eight hours, Gonzales, who didn't testify under oath, dutifully batted away senators' inquiries about "operational details" and stayed silent, under determined questioning by some Democrats, about other warrantless programs that the president might have secretly authorized. When the hearing finally ended, so did Gonzales's comments on the program.
Until 22 days later. On February 28, Gonzales sent committee Chairman Arlen Specter, R-Pa., a six-page letter, partly to respond to questions he was unprepared to answer at the hearing, but also "to clarify certain of my responses" in the earlier testimony. In the letter, Gonzales took pains to correct any "misimpressions" that he might have created about whether the Justice Department had assessed the legality of intercepting purely domestic communications, for example, as opposed to those covered by the NSA program, in which one party is outside the United States. The attorney general didn't say that Justice had contemplated the legality of purely domestic eavesdropping without a warrant, but he also didn't say it hadn't.
Gonzales's letter was intriguing for what else it didn't say, especially on one point: With exacting language, he narrowed the scope of his comments to address only "questions relating to the specific NSA activities that have been publicly confirmed by the president." Then, as if to avoid any confusion, Gonzales added, "Those activities involve the interception by the NSA of the contents of communications" involving suspected terrorists and people in the United States.
Slightly, and with a single word, Gonzales was tipping his hand. The content of electronic communications is usually considered to be the spoken words of a phone call or the written words in an electronic message. The term does not include the wealth of so-called transactional data that accompany every communication: a phone number, and what calls were placed to and from that number; the time a call was placed; whether the call was answered and how long it lasted, down to the second; the time and date that an e-mail message was sent, as well as its unique address and routing path, which reveals the location of the computer that sent it and, presumably, the author.
Considering that terrorists often talk and write in code, the transactional data of a communication, properly exploited, could yield more valuable intelligence than the content itself. "You will get a very full picture of a person's associations and their patterns of activity," said Jim Dempsey, the policy director of the Center for Democracy and Technology, an electronic-privacy advocacy group. "You'll know who they're talking to, when they're talking, how long, how frequently.... It's a lot [of information]. I mean, a lot."
According to sources who are familiar with the details of what the White House calls the "terrorist surveillance program," and who asked to remain anonymous because the program is still classified, analyzing transactional data is one of the first and most important steps the agency takes in deciding which phone calls to listen to and which electronic messages to read. Far from the limited or targeted surveillance that Gonzales, President Bush, and intelligence officials have described, this traffic analysis examines thousands, perhaps hundreds of thousands, of individuals, because nearly every phone number and nearly every e-mail address is connected to a person.
Patterns in the Sea
Analysis of telephone traffic patterns helps analysts and investigators spot relationships among people that aren't always obvious. For instance, imagine that a man in Portland, Ore., receives a call from someone at a pay phone in Brooklyn, N.Y., every Tuesday at 9 a.m. Also every Tuesday, but minutes earlier, the pay phone caller rings up a man in Miami. An investigator might look at that pattern and suspect that the men in Portland and Miami are communicating through the Brooklyn caller, who's acting as a kind of courier, to mask their relationship. Patterns like this have led criminal investigators into the inner workings of drug cartels and have proved vital in breaking these cartels up.
Terrorists employ similar masking techniques. They use go-betweens to circuitously route calls, and they change cellphones often to avoid detection. Transactional data, however, capture those behaviors. If NSA analysts -- or their computers -- can find these patterns or signatures, then they might find the terrorists, or at least know which ones they should monitor.
Just after 9/11, according to knowledgeable sources, the NSA began intercepting the communications of specific foreign persons and groups named on a list. The sources didn't specify whether persons inside the United States were monitored as part of that list. But a former government official who is knowledgeable about NSA activities and the warrantless surveillance program said that this original list of people and groups, or others like it, could have formed the base of the NSA's surveillance of transactional data, the parts of a communication that aren't considered content.
If the agency started with a list of phone numbers, it could find all the numbers dialed from those phones. The NSA could then learn what numbers were called from that second list of numbers, and what calls that list received, and so on, "pushing out" the lists until the agency had identified a vast network of callers and their transactional data, the former official said. The agency might eavesdrop on only a few conversations or e-mails. But starting with even an initial target list of, say, 10 phone numbers quickly yields a web of hundreds of thousands of communications, because the volume increases exponentially with every new layer of callers.
To find meaningful patterns in transactional data, analysts need a lot of it. They must set baselines about what constitutes "normal" behavior versus "suspicious" activity. Administration officials have said that the NSA doesn't intercept the contents of a communication unless officials have a "reasonable" basis to conclude that at least one party is linked to a terrorist organization. To make any reasonable determination like that, the agency needs hundreds of thousands, or even millions, of call records, preferably as soon as they are created, said a senior person in the defense industry who is familiar with the NSA program and is an expert in the analytical tools used to find patterns and connections. Asked if this means that the NSA program is much broader and less targeted than administration officials have described, the expert replied, "I think that's correct."
In theory, finding reasonable connections in data is a straightforward and largely automated process. Analysts use computer programs based on algorithms -- mathematical procedures for solving a particular problem -- much the same way that meteorologists use data models to forecast the weather. Counter-terrorism algorithms look for the transactional indicators that match what analysts recognize as signs of a plot.
Of course, those algorithms must be sophisticated enough to spot many not-so-obvious patterns in a mass of data that are mostly uninteresting, and they work best when the data come from many sources. Algorithms have proven useful for detecting frequent criminal activity, such as credit card fraud. "Historical data clearly indicate that if a credit card turns up in two cities on two continents on the same day, that's a useful pattern," says Jeff Jonas, a computer scientist who invented a technology to connect known scam artists who are on casinos' watch lists with new potential grifters, and is now the chief scientist of IBM Entity Analytics. "The challenge of predicting terrorism is that unlike fraud, we don't have the same volume of historical data to learn from," Jonas said. "Compounding this is the fact that terrorists are constantly changing their methods and do their best to avoid leaving any digital footprints in the first place."
The obvious solution would be to write an algorithm that is flexible and fast enough to weigh millions of pieces of evidence, including exculpatory ones, against each other. But according to technology experts, and even the NSA's own stated research accomplishments, that technology has not been perfected.
The Bleeding Edge
The NSA began soon after the 9/11 terrorist attacks to collect transactional data from telecommunications companies. Several telecom executives said in press accounts that their companies gave the NSA access to their switches, the terminals that handle most of the country's electronic traffic. One executive told National Journal that NSA officials urged him to hand over his company's call logs. When he resisted, the officials implied that most of his competitors had acceded to the agency's request.
Not long after the surveillance program started, in October 2001, the NSA began looking for new tools to mine the telecom data. The agency, the industry expert said, considered some that the Defense Department's Total Information Awareness program was developing. TIA was an ambitious and controversial experiment to find patterns of terrorist activity in a much broader range of transactions than just telephone data. But NSA officials rejected the TIA tools because they were "too brittle," the expert said, meaning that they failed to manage the torrent of data that the NSA wanted to analyze. He noted the irony of rejecting the TIA technologies -- which privacy advocates had characterized as huge, all-seeing, digital dragnets -- because they couldn't handle the size of the NSA's load.
In the fall of 2002, a federal research-and-development agency that builds technologies primarily for the NSA launched another search for pattern-detection solutions. The Advanced Research and Development Activity, ARDA, issued $64 million in contracts for the Novel Intelligence for Massive Data, or NIMD, program. Its goal was "to help analysts deal with information overload, detect early indicators of strategic surprise, and avoid analytic errors," according to ARDA's public call for proposals released last year. In essence, NIMD is an early-warning system, which is how the administration has described the terrorist surveillance program. In 2003, ARDA also took over research of the tools being developed under TIA.
While the NSA was searching for the next generation of data-sifters, it continued to rely on less sophisticated tools. For an example, the former government official who spoke to NJ cited applications that organize data into broad categories, allowing analysts to see some relationships but obscuring some of the nuance in the underlying information. The results of this kind of category analysis can be displayed on a graph. But the graph might reveal only how many times a particular word appears in a conversation, not necessarily the significance of the word or how it relates to other words. Technologists sarcastically call these diagrams BAGs -- big-ass graphs.
Such was the state of affairs when the NSA started looking for terrorist patterns in a telephonic ocean. So, instead of looking for a tool that could cull through the data, the agency decided to "reverse" the process, starting with the data set and working backward, looking for algorithms that could work with it.
The NSA has made some breakthroughs, the industry expert said, but its solution relies in part on a technological "trick," which he wouldn't disclose. Another data-mining expert, who also asked not to be identified because the NSA's work is classified, said that computer engineers probably started with the telecom companies' call data, looked for patterns, and then wrote algorithms to detect them as they went along, tweaking the algorithms as needed.
Such an ad hoc approach is brittle in its own right. For starters, if analysts are working with algorithms designed to detect only certain patterns, they could be missing others, the technology expert said. At the same time, the more dependent the algorithms are on identifying very specific patterns of behavior, the more vulnerable the NSA's monitoring is to being foiled if terrorists discover what the agency is watching for, or if they change their behavior. A more complex algorithm that considers thousands, or even millions, of patterns is harder to defeat.
The industry expert added that NSA officials have worried that "if you knew what the technical trick was they were doing [to make the surveillance program function], you wouldn't have to know what specific algorithms" the agency was using. This reliance on a "trick" makes the program very vulnerable to defeat and helps explain why the Bush administration is so keen on cloaking its inner workings."
It's pretty bleeding-edge," the expert said, referring to a technology that's unperfected and therefore prone to instability. "We're talking about dumping hundreds of thousands or millions of records" into a system. In an unsophisticated system, connections among people can emerge that look suspicious but are actually meaningless. A book agent who represents a journalist who once interviewed Osama bin Laden, for example, doesn't herself necessarily know bin Laden. But she might turn up in an NSA search of transactional data. "False positives will happen," the expert said.
Gonzales and former NSA Director Michael V. Hayden have said that career agency employees decide to eavesdrop only if they have a "reasonable" basis to believe one party to a communication is a terrorist or connected to a terrorist organization. But what determines reasonableness? In a January speech at the National Press Club, Hayden drew a distinction between the Fourth Amendment's requirement that "no warrants shall issue, but upon probable cause," and its protection against "unreasonable searches and seizures."
When a journalist in the crowd questioned his logic, Hayden heatedly replied, "If there's any amendment to the Constitution that employees of the National Security Agency are familiar with, it's the Fourth. And it is a reasonableness standard in the Fourth Amendment.... I am convinced that we are lawful, because what it is we're doing [intercepting content] is reasonable." He said that the terrorist attacks fundamentally altered the NSA's thinking. "The standard of what [information] was relevant and valuable, and therefore, what was reasonable, would understandably change, I think, as smoke billowed from two American cities and a Pennsylvania farm field. And we acted accordingly."
Aside from the question of whether NSA employees, rather than federal judges, are qualified to determine what constitutes a reasonable search, that determination provides much of the basis for deciding whose communications will be intercepted without a warrant. If the technology the NSA is using to determine what constitutes a reasonable search is unsophisticated, the industry expert said, "you're talking about tapping a phone based on a statistical correlation."
A New Legal Battle?
Gonzales's narrowly tailored letter to Sen. Specter raised more questions than it answered. Democrats were outraged by what they saw as the attorney general's attempt to alter his testimony and to obstruct senators' attempts to fully assess the program's legal basis. "Much of your letter is devoted to not providing answers to the questions of a number of us regarding legal justifications for activities beyond those narrowly conceded by you to have already been confirmed by the president," Sen. Patrick Leahy of Vermont, the Judiciary Committee's ranking Democrat, wrote to the attorney general in a follow-up letter.
Leahy also raised the question of what else Gonzales hadn't told lawmakers. The attorney general's letter contained "disturbing suggestions ... that there are other secret programs," Leahy wrote. In Gonzales's letter to Specter, the attorney general had referred to "other intelligence activities" and to his inability to discuss them; he left open the possibility that the president may not have authorized these activities. Gonzales wrote, "When I testified in response to questions from Sen. Leahy, 'Sir, I have tried to outline ... what the president has authorized, and that is all that he has authorized,' I was confining my remarks to the Terrorist Surveillance Program as described by the president."
Gonzales's testimony was meant to defend the program's legality. But as more about the NSA's operations become known, new legal questions arise, including one that goes to the heart of how officials reasonably identify suspected terrorists.
Under normal criminal law, content is defined as "any information concerning the substance, purport, or meaning of [a] communication," but the definition of content under the law that governs electronic eavesdropping on U.S. persons for intelligence purposes is different and is potentially in conflict with normal jurisprudence. That law, the Foreign Intelligence Surveillance Act, states that content "includes any information concerning the identity of the parties ... or the existence, substance, purport, or meaning of [their] communication."
A phone number can be used to identify a person, said Dempsey of the Center for Democracy and Technology, who for nine years was assistant counsel to the House Judiciary Subcommittee on Civil and Constitutional Rights. Does that mean that a phone number is "content" under the law? FISA, enacted in 1978, didn't envision today's technology, when anyone with an Internet connection can use a phone number to find someone's name, address, and even an aerial photograph of his house, Dempsey said.
"I just cannot read [FISA] and figure out what it means in the context of analysis of [transactional] data," he added. "Presumably somebody in the administration thinks they understand it.... Whether that's providing any clear guidance" to the people working on the NSA program, "that's not clear."
Labels: Intelligence, Law, National Security Agency, Technology, Terrorism
Full Article
TIA Lives On
Thursday, February 23, 2006
A controversial counter-terrorism program, which lawmakers halted more than two years ago amid outcries from privacy advocates, was stopped in name only and has quietly continued within the intelligence agency now fending off charges that it has violated the privacy of U.S. citizens.
Research under the Defense Department's Total Information Awareness program -- which developed technologies to predict terrorist attacks by mining government databases and the personal records of people in the United States -- was moved from the Pentagon's research-and-development agency to another group, which builds technologies primarily for the National Security Agency, according to documents obtained by National Journal and to intelligence sources familiar with the move. The names of key projects were changed, apparently to conceal their identities, but their funding remained intact, often under the same contracts.
It is no secret that some parts of TIA lived on behind the veil of the classified intelligence budget. However, the projects that moved, their new code names, and the agencies that took them over haven't previously been disclosed. Sources aware of the transfers declined to speak on the record for this story because, they said, the identities of the specific programs are classified.
Two of the most important components of the TIA program were moved to the Advanced Research and Development Activity, housed at NSA headquarters in Fort Meade, Md., documents and sources confirm. One piece was the Information Awareness Prototype System, the core architecture that tied together numerous information extraction, analysis, and dissemination tools developed under TIA. The prototype system included privacy-protection technologies that may have been discontinued or scaled back following the move to ARDA.
A $19 million contract to build the prototype system was awarded in late 2002 to Hicks & Associates, a consulting firm in Arlington, Va., that is run by former Defense and military officials. Congress's decision to pull TIA's funding in late 2003 "caused a significant amount of uncertainty for all of us about the future of our work," Hicks executive Brian Sharkey wrote in an e-mail to subcontractors at the time. "Fortunately," Sharkey continued, "a new sponsor has come forward that will enable us to continue much of our previous work." Sources confirm that this new sponsor was ARDA. Along with the new sponsor came a new name. "We will be describing this new effort as 'Basketball,' " Sharkey wrote, apparently giving no explanation of the name's significance. Another e-mail from a Hicks employee, Marc Swedenburg, reminded the company's staff that "TIA has been terminated and should be referenced in that fashion."
Sharkey played a key role in TIA's birth, when he and a close friend, retired Navy Vice Adm. John Poindexter, President Reagan's national security adviser, brought the idea to Defense officials shortly after the 9/11 attacks. The men had teamed earlier on intelligence-technology programs for the Defense Advanced Research Projects Agency, which agreed to host TIA and hired Poindexter to run it in 2002. In August 2003, Poindexter was forced to resign as TIA chief amid howls that his central role in the Iran-Contra scandal of the mid-1980s made him unfit to run a sensitive intelligence program.
It's unclear whether work on Basketball continues. Sharkey didn't respond to an interview request, and Poindexter said he had no comment about former TIA programs. But a publicly available Defense Department document, detailing various "cooperative agreements and other transactions" conducted in fiscal 2004, shows that Basketball was fully funded at least until the end of that year (September 2004). The document shows that the system was being tested at a research center jointly run by ARDA and SAIC Corp., a major defense and intelligence contractor that is the sole owner of Hicks & Associates. The document describes Basketball as a "closed-loop, end-to-end prototype system for early warning and decision-making," exactly the same language used in contract documents for the TIA prototype system when it was awarded to Hicks in 2002. An SAIC spokesman declined to comment for this story.
Another key TIA project that moved to ARDA was Genoa II, which focused on building information technologies to help analysts and policy makers anticipate and pre-empt terrorist attacks. Genoa II was renamed Topsail when it moved to ARDA, intelligence sources confirmed. (The name continues the program's nautical nomenclature; "genoa" is a synonym for the headsail of a ship.)
As recently as October 2005, SAIC was awarded a $3.7 million contract under Topsail. According to a government-issued press release announcing the award, "The objective of Topsail is to develop decision-support aids for teams of intelligence analysts and policy personnel to assist in anticipating and pre-empting terrorist threats to U.S. interests." That language repeats almost verbatim the boilerplate descriptions of Genoa II contained in contract documents, Pentagon budget sheets, and speeches by the Genoa II program's former managers.
As early as February 2003, the Pentagon planned to use Genoa II technologies at the Army's Information Awareness Center at Fort Belvoir, Va., according to an unclassified Defense budget document. The awareness center was an early tester of various TIA tools, according to former employees. A 2003 Pentagon report to Congress shows that the Army center was part of an expansive network of intelligence agencies, including the NSA, that experimented with the tools. The center was also home to the Army's Able Danger program, which has come under scrutiny after some of its members said they used data-analysis tools to discover the name and photograph of 9/11 ringleader Mohamed Atta more than a year before the attacks.
Devices developed under Genoa II's predecessor -- which Sharkey also managed when he worked for the Defense Department -- were used during the invasion of Afghanistan and as part of "the continuing war on terrorism," according to an unclassified Defense budget document. Today, however, the future of Topsail is in question. A spokesman for the Air Force Research Laboratory in Rome, N.Y., which administers the program's contracts, said it's "in the process of being canceled due to lack of funds."
It is unclear when funding for Topsail was terminated. But earlier this month, at a Senate Intelligence Committee hearing, one of TIA's strongest critics questioned whether intelligence officials knew that some of its programs had been moved to other agencies. Sen. Ron Wyden, D-Ore., asked Director of National Intelligence John Negroponte and FBI Director Robert Mueller whether it was "correct that when [TIA] was closed, that several ... projects were moved to various intelligence agencies.... I and others on this panel led the effort to close [TIA]; we want to know if Mr. Poindexter's programs are going on somewhere else."
Negroponte and Mueller said they didn't know. But Negroponte's deputy, Gen. Michael V. Hayden, who until recently was director of the NSA, said, "I'd like to answer in closed session." Asked for comment, Wyden's spokeswoman referred to his hearing statements.
The NSA is now at the center of a political firestorm over President Bush's program to eavesdrop on the phone calls and e-mails of people in the United States who the agency believes are connected to terrorists abroad. While the documents on the TIA programs don't show that their tools are used in the domestic eavesdropping, and knowledgeable sources wouldn't discuss the matter, the TIA programs were designed specifically to develop the kind of "early-warning system" that the president said the NSA is running.
Documents detailing TIA, Genoa II, Basketball, and Topsail use the phrase "early-warning system" repeatedly to describe the programs' ultimate aims. In speeches, Poindexter has described TIA as an early-warning and decision-making system. He conceived of TIA in part because of frustration over the lack of such tools when he was national security chief for Reagan.
Tom Armour, the Genoa II program manager, declined to comment for this story. But in a previous interview, he said that ARDA -- which absorbed the TIA programs -- has pursued technologies that would be useful for analyzing large amounts of phone and e-mail traffic. "That's, in fact, what the interest is," Armour said. When TIA was still funded, its program managers and researchers had "good coordination" with their counterparts at ARDA and discussed their projects on a regular basis, Armour said. The former No. 2 official in Poindexter's office, Robert Popp, averred that the NSA didn't use TIA tools in domestic eavesdropping as part of his research.
But asked whether the agency could have used the tools apart from TIA, Popp replied, "I can't speak to that." Asked to comment on TIA projects that moved to ARDA, Don Weber, an NSA spokesman said, "As I'm sure you understand, we can neither confirm nor deny actual or alleged projects or operational capabilities; therefore, we have no information to provide."
ARDA now is undergoing some changes of its own. The outfit is being taken out of the NSA, placed under the control of Negroponte's office, and given a new name. It will be called the "Disruptive Technology Office," a reference to a term of art describing any new invention that suddenly, and often dramatically, replaces established procedures. Officials with the intelligence director's office did not respond to multiple requests for comment on this story.
Thursday, February 23, 2006
A controversial counter-terrorism program, which lawmakers halted more than two years ago amid outcries from privacy advocates, was stopped in name only and has quietly continued within the intelligence agency now fending off charges that it has violated the privacy of U.S. citizens.
Research under the Defense Department's Total Information Awareness program -- which developed technologies to predict terrorist attacks by mining government databases and the personal records of people in the United States -- was moved from the Pentagon's research-and-development agency to another group, which builds technologies primarily for the National Security Agency, according to documents obtained by National Journal and to intelligence sources familiar with the move. The names of key projects were changed, apparently to conceal their identities, but their funding remained intact, often under the same contracts.
It is no secret that some parts of TIA lived on behind the veil of the classified intelligence budget. However, the projects that moved, their new code names, and the agencies that took them over haven't previously been disclosed. Sources aware of the transfers declined to speak on the record for this story because, they said, the identities of the specific programs are classified.
Two of the most important components of the TIA program were moved to the Advanced Research and Development Activity, housed at NSA headquarters in Fort Meade, Md., documents and sources confirm. One piece was the Information Awareness Prototype System, the core architecture that tied together numerous information extraction, analysis, and dissemination tools developed under TIA. The prototype system included privacy-protection technologies that may have been discontinued or scaled back following the move to ARDA.
A $19 million contract to build the prototype system was awarded in late 2002 to Hicks & Associates, a consulting firm in Arlington, Va., that is run by former Defense and military officials. Congress's decision to pull TIA's funding in late 2003 "caused a significant amount of uncertainty for all of us about the future of our work," Hicks executive Brian Sharkey wrote in an e-mail to subcontractors at the time. "Fortunately," Sharkey continued, "a new sponsor has come forward that will enable us to continue much of our previous work." Sources confirm that this new sponsor was ARDA. Along with the new sponsor came a new name. "We will be describing this new effort as 'Basketball,' " Sharkey wrote, apparently giving no explanation of the name's significance. Another e-mail from a Hicks employee, Marc Swedenburg, reminded the company's staff that "TIA has been terminated and should be referenced in that fashion."
Sharkey played a key role in TIA's birth, when he and a close friend, retired Navy Vice Adm. John Poindexter, President Reagan's national security adviser, brought the idea to Defense officials shortly after the 9/11 attacks. The men had teamed earlier on intelligence-technology programs for the Defense Advanced Research Projects Agency, which agreed to host TIA and hired Poindexter to run it in 2002. In August 2003, Poindexter was forced to resign as TIA chief amid howls that his central role in the Iran-Contra scandal of the mid-1980s made him unfit to run a sensitive intelligence program.
It's unclear whether work on Basketball continues. Sharkey didn't respond to an interview request, and Poindexter said he had no comment about former TIA programs. But a publicly available Defense Department document, detailing various "cooperative agreements and other transactions" conducted in fiscal 2004, shows that Basketball was fully funded at least until the end of that year (September 2004). The document shows that the system was being tested at a research center jointly run by ARDA and SAIC Corp., a major defense and intelligence contractor that is the sole owner of Hicks & Associates. The document describes Basketball as a "closed-loop, end-to-end prototype system for early warning and decision-making," exactly the same language used in contract documents for the TIA prototype system when it was awarded to Hicks in 2002. An SAIC spokesman declined to comment for this story.
Another key TIA project that moved to ARDA was Genoa II, which focused on building information technologies to help analysts and policy makers anticipate and pre-empt terrorist attacks. Genoa II was renamed Topsail when it moved to ARDA, intelligence sources confirmed. (The name continues the program's nautical nomenclature; "genoa" is a synonym for the headsail of a ship.)
As recently as October 2005, SAIC was awarded a $3.7 million contract under Topsail. According to a government-issued press release announcing the award, "The objective of Topsail is to develop decision-support aids for teams of intelligence analysts and policy personnel to assist in anticipating and pre-empting terrorist threats to U.S. interests." That language repeats almost verbatim the boilerplate descriptions of Genoa II contained in contract documents, Pentagon budget sheets, and speeches by the Genoa II program's former managers.
As early as February 2003, the Pentagon planned to use Genoa II technologies at the Army's Information Awareness Center at Fort Belvoir, Va., according to an unclassified Defense budget document. The awareness center was an early tester of various TIA tools, according to former employees. A 2003 Pentagon report to Congress shows that the Army center was part of an expansive network of intelligence agencies, including the NSA, that experimented with the tools. The center was also home to the Army's Able Danger program, which has come under scrutiny after some of its members said they used data-analysis tools to discover the name and photograph of 9/11 ringleader Mohamed Atta more than a year before the attacks.
Devices developed under Genoa II's predecessor -- which Sharkey also managed when he worked for the Defense Department -- were used during the invasion of Afghanistan and as part of "the continuing war on terrorism," according to an unclassified Defense budget document. Today, however, the future of Topsail is in question. A spokesman for the Air Force Research Laboratory in Rome, N.Y., which administers the program's contracts, said it's "in the process of being canceled due to lack of funds."
It is unclear when funding for Topsail was terminated. But earlier this month, at a Senate Intelligence Committee hearing, one of TIA's strongest critics questioned whether intelligence officials knew that some of its programs had been moved to other agencies. Sen. Ron Wyden, D-Ore., asked Director of National Intelligence John Negroponte and FBI Director Robert Mueller whether it was "correct that when [TIA] was closed, that several ... projects were moved to various intelligence agencies.... I and others on this panel led the effort to close [TIA]; we want to know if Mr. Poindexter's programs are going on somewhere else."
Negroponte and Mueller said they didn't know. But Negroponte's deputy, Gen. Michael V. Hayden, who until recently was director of the NSA, said, "I'd like to answer in closed session." Asked for comment, Wyden's spokeswoman referred to his hearing statements.
The NSA is now at the center of a political firestorm over President Bush's program to eavesdrop on the phone calls and e-mails of people in the United States who the agency believes are connected to terrorists abroad. While the documents on the TIA programs don't show that their tools are used in the domestic eavesdropping, and knowledgeable sources wouldn't discuss the matter, the TIA programs were designed specifically to develop the kind of "early-warning system" that the president said the NSA is running.
Documents detailing TIA, Genoa II, Basketball, and Topsail use the phrase "early-warning system" repeatedly to describe the programs' ultimate aims. In speeches, Poindexter has described TIA as an early-warning and decision-making system. He conceived of TIA in part because of frustration over the lack of such tools when he was national security chief for Reagan.
Tom Armour, the Genoa II program manager, declined to comment for this story. But in a previous interview, he said that ARDA -- which absorbed the TIA programs -- has pursued technologies that would be useful for analyzing large amounts of phone and e-mail traffic. "That's, in fact, what the interest is," Armour said. When TIA was still funded, its program managers and researchers had "good coordination" with their counterparts at ARDA and discussed their projects on a regular basis, Armour said. The former No. 2 official in Poindexter's office, Robert Popp, averred that the NSA didn't use TIA tools in domestic eavesdropping as part of his research.
But asked whether the agency could have used the tools apart from TIA, Popp replied, "I can't speak to that." Asked to comment on TIA projects that moved to ARDA, Don Weber, an NSA spokesman said, "As I'm sure you understand, we can neither confirm nor deny actual or alleged projects or operational capabilities; therefore, we have no information to provide."
ARDA now is undergoing some changes of its own. The outfit is being taken out of the NSA, placed under the control of Negroponte's office, and given a new name. It will be called the "Disruptive Technology Office," a reference to a term of art describing any new invention that suddenly, and often dramatically, replaces established procedures. Officials with the intelligence director's office did not respond to multiple requests for comment on this story.
Labels: Intelligence, National Security Agency, Technology, Total Information Awareness
Full Article