September 13, 2001: NSA Begins Domestic Surveillance of International Telephone Communications

NSA director Michael Hayden addresses the entire NSA in a global videoconference, saying that the NSA, like other government agencies, will have to do more to protect the country from further terrorist attacks. The challenge, he says, is to balance Americans’ security with civil liberties: “to keep America free by making Americans feel safe again.” Hayden will say in a 2006 speech reflecting on that videoconference that US citizens operate under misconceptions about the NSA’s capabilities—that while citizens believe the NSA has a global electronic surveillance network that can, and does, spy on citizens willy-nilly, in reality the NSA is understaffed and unprepared to handle the technological advances of the last decade. Hayden claims that with more extensive domestic surveillance of US citizens and foreign visitors, the NSA could have caught some of the 9/11 hijackers before they were able to put their plan into motion. The standards by which US citizens and foreign visitors are monitored must change, Hayden believes, and, using Ronald Reagan’s 1981 executive order 12333, Hayden expands the NSA’s domestic surveillance practices to eavesdrop, sometimes without court approval, on selected international calls made by US citizens. Though Hayden’s expansion of NSA surveillance is not directly authorized by President Bush, and is not the same program as authorized by Bush’s secret executive order of 2002 (see Early 2002), Hayden will later say that his expansion is based on the intelligence community’s assessment “of a serious and continuing threat to the homeland.” Hayden’s program is reviewed and approved by lawyers at the NSA, the Justice Department, and the White House and approved by the attorney general. [Michael Hayden, 1/23/2006]
House Briefing Omits Key Information - Hayden will brief the House Intelligence Committee on October 1. But according to one NSA staff member, he only discusses the ramifications of Reagan’s executive order on NSA functions, and not the wiretapping program per se. (The order forbids warrantless surveillance of US citizens “unless the Attorney General has determined in each case that there is probable cause to believe that the technique is directed against a foreign power or an agent of a foreign power.” On October 11, House member Nancy Pelosi (D-CA) will write to Hayden expressing her concerns about the warrantless nature of the NSA wiretaps (see October 11, 2001). [Washington Post, 1/4/2006]
NSA Program Authorized From Above - Hayden says that everything the NSA does is with authorization from above. “I didn’t craft the authorization,” he later says, “I am responding to a lawful order.” Hayden will later claim that, while the NSA continues to use court warrants from the Foreign Intelligence Surveillance Court (FISC), technological advances and terrorist threats have made the law that created and supports FISC, the Foreign Intelligence Surveillance Act of 1978 (see 1978), obsolete. Therefore, NSA would carry out domestic surveillance operations with or without FISC warrants. Hayden later says the warrantless surveillance operations are “operationally more relevant, operationally more effective” than anything FISA can handle. Hayden begins implementing the domestic surveillance program, in what he later calls a “focused, limited” manner, in October 2001, targeting, he later says, only international calls that NSA analysts believe have some connection to al-Qaeda or other terrorist groups, and, Hayden will claim, subject to intense internal oversight and scrutiny. Hayden will repeatedly deny, in the face of reams of evidence collected by journalists and others to the contrary, that NSA is spying on domestic antiwar groups and religious organizations like the Quakers who publicly advocate nonviolence and peace. [Michael Hayden, 1/23/2006] But, according to later evidence, Hayden’s program does everything Hayden claims it does not do: in journalist Spencer Ackerman’s words, the program “mak[es] a mockery of [the] debate” over how far the NSA should go in light of Constitutional freedoms and legal restrictions. The NSA will, over the years, compile a huge database of purely domestic communications, without warrants or oversight, precisely as Hayden later claims it does not do. [New Republic, 5/19/2006]
Domestic Surveillance Began Before 9/11? - Though Hayden and other Bush officials eventually admit to beginning surveillance of US citizens only after the 9/11 attacks, that assertion is disputed by evidence suggesting that the domestic surveillance program began well before 9/11 (see Late 1999, February 27, 2000, December 2000, February 2001, February 2001, Spring 2001, and July 2001).