Early 2002: Bush Signs Executive Order Allowing NSA to Spy on US Citizens; Spying Began Before 9/11

Sometime in early 2002, President Bush signs a secret executive order authorizing the National Security Agency (NSA) to wiretap phone conversations and read e-mails to and from US citizens. The order extends an operation set into motion at least as early as October 2001 to begin wiretapping US citizens’ phones in a response to the 9/11 attacks. When the program is revealed by the US media in late 2005 (see December 15, 2005), Bush and his officials will say the program is completely legal, though it ignores the requirements of the Foreign Surveillance Intelligence Act (FISA) that requires the government to obtain court-issued warrants to mount surveillance against US citizens. They will insist that only those suspected of having ties to al-Qaeda, and then only when those individuals make or receive international communications, are monitored. As more information continues to come out about the program, these assertions will be increasingly called into question. [New York Times, 12/15/2005; Washington Post, 12/22/2005] In January 2006, the press will learn that the NSA wiretapping program began well before 9/11, obviating the justification that the Bush administration had to authorize the surveillance in response to the terrorist attacks (see Late 1999, February 27, 2000, December 2000, February 2001, February 2001, Spring 2001, and July 2001). Bush’s order details the NSA to monitor international telephone conversations and international e-mails of hundreds, and perhaps thousands, of US citizens without court warrants, in an effort to track what officials call “dirty numbers” linked to al-Qaeda. When the program is finally revealed by the New York Times over three years later (see December 15, 2005, officials will say that the NSA still seeks warrants to monitor domestic communications. But there is little evidence of this (see, e.g., Spring 2001). The presidential order is a radical shift in US surveillance and intelligence-gathering policies, and a major realignment for the NSA, which is mandated to only conduct surveillance abroad. Some officials believe that the NSA’s domestic eavesdropping crosses constitutional limits on legal searches. “This is really a sea change,” a former senior official who specializes in national security law will say in December 2005. “It’s almost a mainstay of this country that the NSA only does foreign searches.” [New York Times, 12/15/2005]