It is only recently that the public has become aware of the federal government’s vast intelligence gathering capabilities. The National Security Agency (NSA) in particular collects an enormous amount of data on phone calls and online communications, as revealed in classified documents leaked by former NSA systems analyst Edward Snowden. Some argue the NSA’s intelligence gathering programs have at times violated the Fourth Amendment, and journalists, civil liberties groups, and elected representatives are taking a closer look at exactly what the NSA is up to. While their findings are new to the public arena, the programs under which the government collects data about foreigners and Americans have existed for more than a decade, albeit in different forms and with different names.
This article series looks at the federal government’s collection and use of communications data and what that means for security and privacy in America. In this installment, we trace the winding path of legal authorization for the NSA’s intelligence gathering. Given public outcry, it seems the programs intended to detect and prevent terrorism run afoul of public approval, but do the American people have a real say in their government’s covert intelligence activities?
The PSP was, as the name implies, President George W. Bush’s program to allow NSA surveillance and intelligence gathering both domestically and abroad. Part of this, called the Terrorist Surveillance Program, allowed monitoring of communications within the United States without warrants.
Authorizing Widespread Surveillance
The 9/11 attacks in New York, Washington, D.C., and Pennsylvania were a watershed moment in American history. They were the catalyst for a series of ambitious efforts to strengthen homeland security and fight an adaptive terrorist threat. As a part of this, the NSA was granted executive authorization for warrantless wiretapping and data mining under the President’s Surveillance Program (PSP).
The PSP was, as the name implies, President George W. Bush’s program to allow NSA surveillance and intelligence gathering both domestically and abroad. Part of this, called the Terrorist Surveillance Program, allowed monitoring of communications within the United States without warrants. The PSP also authorized the NSA to collect detailed phone records and data on Internet activity. Before the PSP, many of these activities were illegal. The program was reauthorized every six weeks, which required the Attorney General’s signature to certify that the PSP had the appropriate legal underpinnings.
By 2003, the Department of Justice (DOJ) was questioning the PSP’s legality. Attorney General John Ashcroft, as well as the rest of DOJ leadership, eventually decided not to agree to another reauthorization, at which point President Bush turned to White House Counsel Alberto Gonzales for certification (rather than Ashcroft). FBI Director Robert Mueller threatened to resign over the matter, as did leadership at the DOJ. The president ultimately backed down, amending some of the intelligence gathering activities and doing away with others altogether. In 2005, The New York Times got ahold of some details about the NSA’s warrantless wiretapping, and by 2007, the program was at an end. However, this in no way impeded the NSA’s intelligence gathering operations. Like water running down a boulder-strewn mountain, when encountering a legal challenge, the NSA and the Executive Office flowed around it and found another path. When the PSP began to come apart, given media coverage and congressional testimony, authorization for intelligence gathering was shifted to the Foreign Intelligence Surveillance Court (FISC).
Like water running down a boulder-strewn mountain, when encountering a legal challenge, the NSA and the Executive Office flowed around it and found another path.
Two legislative amendments allowed the NSA to continue its data collection unhindered. One was the 2008 Foreign Intelligence Surveillance Act (FISA) Amendments Act. Section 702 granted the Attorney General and the Director of National Intelligence the authorization to monitor communications of people believed to be outside the United States. This act became part of the legal justification for the NSA to continue its Internet data collection program (see Part 1 of this series).
With the end of PSP, the NSA lost its authority to monitor domestic phone calls. Yet, whether by luck or foresight, there was already another source of legal justification for these activities. Just six weeks after 9/11, Congress wrote and Bush signed the USA Patriot Act. Section 215 of the Patriot Act also amended the Foreign Intelligence Surveillance Act of 1978, inserting new language that allows the government to request an order from the FISC for any “tangible thing.” The act reads:
“The Director of the Federal Bureau of Investigation or a designee of the Director…may make an application for an order requiring the production of any tangible things (including books, records, papers, documents, and other items) for an investigation to protect against international terrorism or clandestine intelligence activities, provided that such investigation of a United States person is not conducted solely upon the basis of activities protected by the first amendment to the Constitution.”