WASHINGTON – The Bush administration faces daily questions about a highly secretive program at the National Security Agency aimed at monitoring terror suspects. Is it legal? Who’s targeted?
Some questions and answers about the domestic surveillance program launched shortly after Sept. 11, 2001:
Question: Can the NSA eavesdrop on Americans?
Answer: Generally, it is prohibited without a court order. But under a directive signed by President Bush and renewed more than 30 times, the National Security Agency can monitor the international communications of people inside the country when one party to the call or e-mail is believed to be involved with al-Qaida.
Q: How many people are affected?
A: Only a tight-knit group of government officials know, and they won’t say. Attorney General Alberto Gonzales and other senior officials have insisted the program is “targeted” to go after only the most dangerous types of communications, those that may involve al-Qaida inside the United States. Civil rights groups, scholars, lawyers for Muslim Americans, Democrats and others fear communications may have been more widely monitored.
Q: What did Bush’s directive change?
A: In national security investigations, the program eliminated the need to go before a judge for approval of surveillance on U.S. residents.
Previously, government lawyers had to show the Foreign Intelligence Surveillance Court that there was “probable cause” a targeted person was an agent of a foreign power. A federal judge had to approve a warrant, and typically did. Bush’s order allowed the NSA, not a judge, to approve the monitoring when officials had a “reasonable basis to believe” one party to the call or e-mail was linked to al-Qaida.
Q: Who decides who is monitored?
A: In December, Gen. Michael Hayden, the government’s No. 2 intelligence official, said an NSA shift supervisor makes the call. The former NSA director rephrased his answer this week, saying only a small group of senior military officers or civilian counterterror experts at NSA get to decide, using criteria that has not been disclosed.
Q: How does the surveillance work?
A: Officials won’t say. But Hayden said the NSA is not vacuuming up vast amounts of communications and running searches on it. In 2003 alone, U.S. citizens spent 200 billion minutes on international calls. Ethically and practically, he said, the NSA can’t be a “drift net.” Despite his words, opponents are concerned the NSA captures a lot of communications.
Q: Has the program foiled terrorist attacks?
A: Administration officials say they have gotten valuable information that otherwise would have gone unnoticed. For security reasons, they do not provide specifics.
Q: Why the uproar?
A: For the administration’s critics, the program harkens back to the Nixon administration’s wiretapping. It also raises constitutional questions about whether the monitoring is an unreasonable search, prohibited under the Constitution’s Fourth Amendment.
Q: Was Congress told?
A: The administration says that members of Congress were briefed more than a dozen times. However, only select lawmakers were present. Called the “Gang of Eight,” they include the top Republicans and Democrats in the House and Senate and on the intelligence committees.
In the program’s four years, the lawmakers included in that group have changed, so few – if any – attended all the briefings. And some privately say they weren’t given all the information they needed.
Q: Has anyone who has been briefed on the program called for its halt?
A: No. Democrats, including California Rep. Jane Harman, the intelligence committee’s top Democrat, have complained about the size of the briefings and legal questions they want answered. But none has said the program should end. Harman says she believes the program “is essential to U.S. national security.”
Q: Did the White House consider asking Congress to change the law?
A: Yes. Although Bush says he has adequate legal authority now, Gonzales said the administration considered proposing changes to the Foreign Intelligence Surveillance Act in 2004. The attorney general said congressional leaders believed that move would jeopardize the program.
Some Democrats are quietly arguing that the administration thought it was on shaky ground in 2003. A draft bill proposed giving legal cover to federal officials who conduct unauthorized surveillance ordered by the president or attorney general. That update to the Patriot Act, leaked to an interest group, was never introduced in Congress.
Q: Some people have sued the government, saying they believe their conversations might have been intercepted. How can they know?
A: They can’t. At least two federal lawsuits are based on a belief that the individuals may have engaged in conversations that would have attracted the NSA’s attention. If the courts allow the cases to proceed, the government may be forced to disclose information about the program and its targets.
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