9/11 and Birth of the Surveillance State, Part 3: The Poop Hits the Fan

9/11 and Birth of the Surveillance State, Part 3: The Poop Hits the Fan
AP Photo/J. Scott Applewhite

In the summer of 2002, some technicians at AT&T headquarters became suspicious when secret rooms manned by NSA staff were being built.  At this time, the number of people aware of the program numbered some 500 including members of Congress, DOJ officials and members of the intelligence community.  Responding to questions from FISC presiding judge Kollar-Kotelly, she was escorted to a White House briefing room and shown the October 4, 2001 memo signed by Bush. 

By this time, the PSP had obtained a new codeword nickname- Operation Stellar Wind.  Near the end of 2002 virtually all telecommunication companies in the United States were voluntarily handing over stored metadata to the NSA and this continued until 2005.

In January 2003, the new NARUS system had been successfully installed at the AT&T headquarters in San Francisco.  This was a super-computer that can read and analyze tens of thousands of communications per second, then send those communications to a central NSA database.  Some companies had reservations about the legality of the program and were requesting assistance, confirmation, or information regarding its legality.  Attorney General John Ashcroft gave reassurances.  By the end of August 2003, John Yoo resigned from the Justice Department and was replaced by Patrick Philbin.  He began to question the legality of the program and brought his concerns to John Ashcroft who directed him to do a further assessment.  However, based on the Yoo memo and those from the NSA general counsel’s office, Ashcroft continued to write letters to communication companies stating the program was legally authorized.

Congress voted to cut off funding for the Total Information Awareness Program which was being run by John Poindexter within the Information Awareness Office of the Defense Department.  Certain aspects of the program were transferred to the Defense Advanced Research Projects Agency (DARPA) within the Defense Department.  This effectively killed any research into privacy-protection technology.  

On October 6, 2003 Jack Goldsmith became Assistant Attorney General and head of the Office of Legal Compliance (OLC).  In his testimony before Congress, he described the private spying program as a huge legal mess.  In December, 2003 Deputy Attorney General James Comey was made aware of the program and noted his concerns that the NSA was bypassing the FISA process.  In early 2004, judge Kollar-Kotelly went directly to John Ashcroft when it became obvious that the DOJ, in their warrant applications, were directly getting information from the NSA.  The DOJ then shut down their operation for a few weeks to reconfigure their due process role in protecting the privacy of US citizens. 

This action triggered several people in the Justice Department to the point that they considered not reauthorizing the Presidential directive.  James Comey briefed Ashcroft on the possible illegality of the program and the following day Ashcroft was hospitalized with gallstone pancreatitis.  Goldsmith informed Comey that under the circumstances and the seriousness of Ashcroft’s condition, Comey should assume the role of Attorney General.  Comey, Philbin and Goldsmith met with Alberto Gonzalez, the White House Counsel, to inform him and others the program had to cease.  They expressed concerns about Skype metadata obtained through AT&T, Sprint, and MCI.  Gonzalez said he would get back to them.

The following day, Gonzalez and others met at the White House and decided that they disagreed with Comey, et. al., and lent further support to the Yoo memo.  Then on March 10, Comey met with Gonzalez and others and informed them he would not, as acting Attorney General, sign off on another reauthorization of the program.  This set into motion one of the most bizarre events of the Bush administration.

Later that day, Cheney, Gonzalez and Hayden held an emergency meeting in the White House Situation Room about James Comey.  It was decided that Alberto Gonzalez go to the hospital and get Ashcroft to sign the reauthorization before Comey had a chance to refuse to sign it.  Recovering from surgery and drugged up in recovery, Gonzalez arrived with authorization and pen in hand only to find that Comey had arrived there first.  According to accounts, Ashcroft told Gonzalez that he had serious reservations about the program based on previous discussions, then told Gonzalez, “It doesn’t matter…I’m not the Attorney general,” motioned to Comey and said, “There is the attorney general” before drifting back off to sleep.  Still refusing to sign the reauthorization, Gonzalez nevertheless directed the NSA to continue the operation.  Comey responded by drafting a letter of resignation.

This prompted an emergency meeting between Comey and President Bush.  The President asked Comey to stay on and make what he believed would be necessary changes to the reauthorization to satisfy his legal concerns.  Comey did so although he later recounted that he probably did not do enough.  Meanwhile, Gonzalez had sent letters to the communication companies noting that the reauthorization was now being done by the OLC, not the Attorney General as in the past.  But on March 19, 2003 Bush rescinded his previous authorization for the NSA to collect bulk metadata.  Henceforth, the NSA was not relying on a Presidential order, but would have to rely on a FISC order.

By May, another analysis of the PSP by Goldsmith and Philbin gave legal cover for the original October 4, 2001 directive stating that the Congressional Authorization of Use of Force, using the language of “…all necessary and appropriate force…” satisfied the original OLC (Yoo) memo understanding of the use of electronic data surveillance.  By the end of July, the FISC, satisfied with the legal wrangling over definitions, issued its first court order resuming the collection of metadata.

On December 16, 2005, the proverbial shit hit the fan when the New York Times published a story revealing publicly for the first time that Bush had authorized warrantless searches of US citizen telephone and Internet communications.  The following day, in a prepared statement, Bush acknowledged the program and stated that it was successful in thwarting several possible terrorist attacks in the aftermath of 9/11.  Bush further downplayed the scope of the program, but persistent reporting revealed that the program was larger than what Bush was saying at the time.  After the news revelations, some telecommunication companies demanded that before any information was turned over to the NSA it had to comply with a FISC order.

Next: Tweaks, changes and the new reality

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