New York Times
May 14, 2006
WASHINGTON, May 13 In the weeks after the Sept. 11 attacks, Vice President Dick Cheney and his top legal adviser argued that the National Security Agency should intercept purely domestic telephone calls and e-mail messages without warrants in the hunt for terrorists, according to two senior intelligence officials.
But N.S.A. lawyers, trained in the agency's strict rules against domestic spying and reluctant to approve any eavesdropping without warrants, insisted that it should be limited to communications into and out of the country, said the officials, who were granted anonymity to discuss the debate inside the Bush administration late in 2001.
The N.S.A.'s position ultimately prevailed. But just how Gen. Michael V. Hayden, the director of the agency at the time, designed the program, persuaded wary N.S.A. officers to accept it and sold the White House on its limits is not yet clear.
As the program's overseer and chief salesman, General Hayden is certain to face questions about his role when he appears at a Senate hearing next week on his nomination as director of the Central Intelligence Agency. Criticism of the surveillance program, which some lawmakers say is illegal, flared again this week with the disclosure that the N.S.A. had collected the phone records of millions of Americans in an effort to track terrorism suspects.
By several accounts, including those of the two officials, General Hayden, a 61-year-old Air Force officer who left the agency last year to become principal deputy director of national intelligence, was the man in the middle as President Bush demanded that intelligence agencies act urgently to stop future attacks.
On one side was a strong-willed vice president and his longtime legal adviser, David S. Addington, who believed that the Constitution permitted spy agencies to take sweeping measures to defend the country. Later, Mr. Cheney would personally arrange tightly controlled briefings on the program for select members of Congress.
On the other side were some lawyers and officials at the largest American intelligence agency, which was battered by eavesdropping scandals in the 1970's and has since wielded its powerful technology with extreme care to avoid accusations of spying on Americans.
As in other areas of intelligence collection, including interrogation methods for terrorism suspects, Mr. Cheney and Mr. Addington took an aggressive view of what was permissible under the Constitution, the two intelligence officials said.
If people suspected of links to Al Qaeda made calls inside the United States, the vice president and Mr. Addington thought eavesdropping without warrants "could be done and should be done," one of them said.
He added: "That's not what the N.S.A. lawyers think."
The other official said there was "a very healthy debate" over the issue. The vice president's staff was "pushing and pushing, and it was up to the N.S.A. lawyers to draw a line and say absolutely not."
Both officials said they were speaking about the internal discussions because of the significant national security and civil liberty issues involved and because they thought it was important for citizens to understand the interplay between Mr. Cheney's office and the N.S.A. Both spoke favorably of General Hayden; one expressed no view on his nomination for the C.I.A. job, and the other was interviewed by The New York Times weeks before President Bush selected the general.
Mr. Cheney's spokeswoman, Lee Anne McBride, declined to discuss the deliberations about the classified program. "As the administration, including the vice president, has said, this is terrorist surveillance, not domestic surveillance," she said. "The vice president has explained this wartime measure is limited in scope and conducted in a lawful way that safeguards our civil liberties."
Representatives for the N.S.A. and for the general declined to comment.
Even with the N.S.A. lawyers' reported success in limiting its scope, the program represents a fundamental expansion of the agency's practices, one that critics say is illegal. For the first time since 1978, when the Foreign Intelligence Surveillance Act was passed and began requiring court approval for all eavesdropping on United States soil, the N.S.A. is intentionally listening in on Americans' calls without warrants.
The spying that would become such a divisive issue for the White House and for General Hayden grew out of a meeting days after the Sept. 11 attacks, when President Bush gathered his senior intelligence aides to brainstorm about ways to head off another attack.
"Is there anything more we could be doing, given the current laws?" the president later recalled asking.
General Hayden stepped forward. "There is," he said, according to Mr. Bush's recounting of the conversation in March during a town-hall-style meeting in Cleveland.
By all accounts, General Hayden was the principal architect of the plan. He saw the opportunity to use the N.S.A.'s enormous technological capabilities by loosening restrictions on the agency's operations inside the United States.
For his part, Mr. Cheney helped justify the program with an expansive theory of presidential power, which he explained to traveling reporters a few days after The Times first reported on the program last December.
Mr. Cheney traced his views to his service as chief of staff to President Gerald R. Ford in the 1970's, when post-Watergate changes, which included the FISA law, "served to erode the authority I think the president needs to be effective, especially in a national security area."
Senior intelligence officials outside the N.S.A. who discussed the matter in late 2001 with General Hayden said he accepted the White House and Justice Department argument that the president, as commander in chief, had the authority to approve such eavesdropping on international calls.
"Hayden was no cowboy on this," said another former intelligence official who was granted anonymity because it was the only way he would talk about a program that remains classified. "He was a stickler for staying within the framework laid out and making sure it was legal, and I think he believed that it was."
The official said General Hayden appeared particularly concerned about ensuring that one end of each conversation was outside the United States. For his employees at the N.S.A., whose mission is foreign intelligence, avoiding purely domestic eavesdropping appears to have been crucial.
But critics of the program say the law does not allow spying on a caller in the United States without a warrant, period no matter whether the call is domestic or international.
"Both would violate FISA," said Nancy Libin, staff counsel at the Center for Democracy and Technology, a civil liberties group.
Ms. Libin said limiting the intercepts without warrants to international calls "may have been a political calculation, because it sounds more reassuring."
One indication that the restriction to international communications was dictated by more than legal considerations came at a House hearing last month. Asked whether the president had the authority to order eavesdropping without a warrant on purely domestic communications, Attorney General Alberto R. Gonzales replied, "I'm not going to rule it out."
Despite the decision to focus on only international calls and e-mail messages, some domestic traffic was inadvertently picked up because of difficulties posed by cellphone and e-mail technology in determining whether a person was on American soil, as The Times reported last year.
And one government official, who had access to intelligence from the intercepts that he said he would discuss only if granted anonymity, believes that some of the purely domestic eavesdropping in the program's early phase was intentional. No other officials have made that claim.
A White House spokeswoman, Dana Perino, said Saturday, "N.S.A. has not intentionally listened in on domestic-to-domestic calls without a court order."
President Bush and other officials have denied that the program monitors domestic calls. They have, however, generally stated their comments in the present tense, leaving open the question of whether domestic calls may have been captured before the program's rules were fully established.
After the program started, General Hayden was the one who briefed members of Congress on it and who later tried to dissuade The Times from reporting its existence.
When the newspaper published its first article on the program in December, the general found himself on the defensive. He had often insisted in interviews and public testimony that the N.S.A. always followed laws protecting Americans' privacy. As the program's disclosure provoked an outcry, he had to square those assurances with the fact that the program sidestepped the FISA statute.
Nonetheless, General Hayden took on a prominent role in explaining and defending the program. He appeared at the White House alongside Mr. Gonzales, spoke on television and gave an impassioned speech at the National Press Club in January.
Some of the program's critics have found his visibility in defending a controversial presidential policy inappropriate for an intelligence professional. "There's some unhappiness at N.S.A. with Hayden taking such an upfront role," said Matthew M. Aid, an intelligence historian and former N.S.A. analyst who keeps in touch with some employees. "If the White House got them into this, why is Hayden the one taking the flak?"
But General Hayden seems determined to stand up for the agency's conduct and his own. In the press club speech, General Hayden recounted remarks he made to N.S.A. employees two days after the Sept. 11 attacks: "We are going to keep America free by making Americans feel safe again."
He said that the standards for what represented a "reasonable" intrusion into Americans' privacy had changed "as smoke billowed from two American cities and a Pennsylvania farm field."
"We acted accordingly," he said.
In the speech, General Hayden hinted at the internal discussion of the proper limits of the N.S.A. program. Although he did not mention Mr. Cheney or his staff, he said the decision to limit the eavesdropping to international phone calls and e-mail messages was "one of the decisions that had been made collectively."
"Certainly, I personally support it," General Hayden said.
President Defends Pick
WASHINGTON, May 13 (Bloomberg News) In his weekly radio address on Saturday, President Bush defended the qualifications of General Hayden to be C.I.A. director and sought to ease concern about the domestic eavesdropping program that the general helped create.
In General Hayden, "the men and women of the C.I.A. will have a strong leader who will support them as they work to disrupt terrorist attacks, penetrate closed societies and gain information that is vital to protecting our nation," Mr. Bush said.
He urged the Senate to confirm the general "promptly."