Last Secrets of the Bush Administration

What we know: In October 2001, the National Security Agency began monitoring the phone and e-mail traffic that passed through “switches,” or telecommunications gateways, located on American soil. The program would later be retroactively named the Terrorist Surveillance Program. What distinguished it from previous, legal wiretapping operations was that it was warrantlessafter the Foreign Intelligence Surveillance Act was passed in 1978, this kind of spying had required a signoff from a judge on the Foreign Intelligence Surveillance Court.

General Michael V. Hayden would later testify that only communications between a party in the United States and another overseasusually in Afghanistanwere monitored. Dick Cheney had pushed for authority to tap purely domestic calls too, but, according to Alberto Gonzales, Bush nixed that idea. In 2004, after top Justice Department officials grew concerned about the legality of what the NSA was doing, the program was modified. In 2007, Bush formally moved the wiretapping program back under the aegis of the FISA law.

In July, Congress passed a bill making significant changes to that law. While the new legislation clarified that any wiretapping done outside the FISA system is against the law, it effectively legalized much of what had been done illegally under the TSP, shrinking the role of the surveillance court and allowing warrantless tapping of Americans for up to seven days in “exigent” circumstances. It also included a controversial provision that gave immunity to the telecom companies that had cooperated in the TSP and had been targeted by dozens of privacy lawsuits after the news of their cooperation broke.

What we dont know: Who, exactly, was wiretapped. The NSA has not disclosed the scope of the surveillance programhow many people were targeted. And logically, the relatively narrowly focused program we do know about had to have been preceded by a much larger dragnet. We know that after the Justice Department balked in 2004, the program was changed to fit within what DOJ officials deemed to be more reasonable legal constraints. But we dont know how it was changedwhich tactics ran afoul of the law. And we should be worried about the new law, too, if what Senator Russell Feingoldwho, because of his committee posts, received classified briefings on the subjectsaid in Senate debate at the time is any guide. “If we grant these new powers to the government and the effects become known to the American people,” he said in July, “we will realize what a mistake it was, of that I am sure.”

How we can find out: In late October, a district court judge ordered the Justice Department to turn over the OLC memos authorizing the original warrantless wiretapping program. As of this writing Bushs DOJ hasnt complied, but Obama should. He should also disclose what original tactics were abandoned in 2004. The new FISA legislation passed this summer required the intelligence agencies inspectors general to issue reports on extrajudicial wiretapping; Obama could at least partially release them. Any specific discussion of techniques that are still in use will be difficult to declassify without divulging American intelligence capabilities, and other details may need to be withheld to guard the privacy of innocent people who were wiretapped. But a broader discussion of the general contours of the programthe number of targets, for instanceshould be made public. “Parts of the report could legitimately be kept secret,” says Kate Martin, director of the Center for National Security Studies. “But there are a lot of questions they could answer publicly: Did the government listen to the contents of telephone calls? How many people were listened to? How many calls by those people were listened to? What range of numbers of individuals? A hundred people a year? A thousand? Ten million?”

Considering how much of the program is likely to remain legitimately classified, it should be a top priority for Congress whose intelligence committee leaders have been read in to the programto rein in, publicly or in secret, as many as possible of the excesses that have been permitted, and increase safeguards on it happening again. Fortunately, the new FISA law sunsets in 2012.

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