Five Years After: Hidden Depths to U.S. Monitoring

This article has been extracted from LA Times

The scope of domestic surveillance has steadily expanded since 9/11. But lawmakers and privacy experts complain of too little information on it.

By Josh Meyer, Times Staff Writer
S eptember 11, 2006

WASHINGTON — As Americans consider whether they are more safe or less five years after the Sept. 11 attacks, one thing is certain: They are being monitored by their own government in ways unforeseen before terrorists flew planes into the World Trade Center and Pentagon.

Within minutes of the strikes, U.S. law enforcement and intelligence-gathering authorities mobilized to find the culprits and prevent another attack.

They increased the tapping of Americans' phone calls and voice mails. They watched Internet traffic and e-mails as never before. They tailed greater numbers of people and into places previously deemed off-limits, such as mosques.

They clandestinely accessed bank and credit card transactions and school records. They monitored travel. And they entered homes without notice, looking for signs of terrorist activity and copying the contents of entire file cabinets and computer hard drives.

Authorities even tried to get inside people's heads, using supercomputers and "predictive" software to analyze enormous amounts of personal data about them and their associates in an effort to foretell who might become a terrorist, and when.

In the five years since the attacks, the scope of domestic surveillance has steadily increased, according to interviews with dozens of current and former U.S. officials and privacy experts.
Some of these programs have been debated and approved by the courts and Congress — the traditional checks against intrusions on Americans' privacy, protected under the 4th Amendment.
Others have not. Some of them are operating without the knowledge or approval of judicial and legislative overseers, officials and experts say.

Two such classified programs have been disclosed by the media, over the objections of the Bush administration. One involves the National Security Agency's warrantless wiretapping of suspicious phone calls and e-mails into and out of the United States. The other is an effort by the Treasury Department and the CIA to monitor international bank transfers.

Privacy experts and even some ranking lawmakers in Congress say their efforts to learn about other suspected surveillance efforts have been blocked.

They believe that some of the activity is so secret that none but a small circle of top administration officials and operational support personnel know about it — though notification of congressional leaders is legally required.

"The White House simply refuses to be straight with us about what they're up to," said Sen. Ron Wyden (D-Ore.), who says he has pressed unsuccessfully for answers as a member of the Senate's Select Committee on Intelligence, which entitles him to classified briefings on the subject.

"My sense today is that there is a staggering amount of personal information being collected on millions of Americans," Wyden said. "And how it's accessed and how it's used is at best unclear. What is certain is that there is no real accountability to ensure that a balance is struck between fighting terrorism and protecting privacy."

In response, administration officials say that they have the authority to conduct whatever surveillance is underway, in part due to the special war powers granted to President Bush by Congress a week after the Sept. 11 attacks.

In a speech Thursday, Bush lobbied Congress for updated and expanded surveillance powers, saying they were needed to keep pace with a stealthy and technologically savvy enemy.
Meanwhile, the domestic surveillance effort continues within virtually every U.S. counter-terrorism, law enforcement and intelligence agency.

The programs comprise actual surveillance of Americans' activities and communications, and "dataveillance," the practice of mining the vast amounts of personal data compiled on Americans.

On both fronts, the NSA is leading the effort from its headquarters in Fort Meade, Md., just outside Washington.

For decades, the NSA's satellites and land-based listening posts have intercepted billions of phone calls and e-mails, searching for keywords that might suggest terrorist or criminal activity, espionage, or other efforts harmful to national security.

After Sept. 11 such activity increased dramatically, and has been aided by the cooperation of at least some phone and Internet companies that have granted access to their mammoth caches of digitized information, current and former U.S. officials and privacy experts say.

Robert L. Deitz, general counsel for the NSA, told Congress last week that the NSA's primary mission since Sept. 11 has been to develop ways of eavesdropping on Al Qaeda and other terrorist organizations that have used cutting-edge technologies to stay ahead of their pursuers.
The NSA has improved its ability to monitor the entire spectrum of communications, including fiber-optic and wireless transmissions, instant messages, BlackBerry e-mails and voice conversations sent over the Internet, officials and experts say.

They add that the intelligence community may not be breaking any laws because these kinds of communication might not be covered under loosely worded federal laws that don't account for advances in technology.

Several congressional officials and privacy experts said they believed the NSA also tracked the movement of "persons of interest" by the electronic signals emitted by their cellphones and the Global Positioning Systems in the vehicles they drive.

The NSA had no comment on any aspect of its intelligence-gathering efforts.

The FBI has led the way on the low-tech surveillance front, using little-known powers given to it under the Patriot Act and other post-Sept. 11 policies.

Before Sept. 11, virtually all FBI surveillance was authorized by court-approved warrants and subpoenas issued through federal grand juries, which have some measure of oversight by citizen jurors and judges.

Since then, however, the FBI has sharply increased the use of so-called national security letters, which allow agents to obtain information on people they deem suspicious with little probable cause and without seeking judicial approval. Unlike with traditional search warrants, the target does not have to be notified.

Last year, federal agents issued 9,254 substantive national security letters to access financial transactions and personal data, interviews and government records indicate. Privacy experts and congressional staffers say these letters were rarely used before Sept. 11.

FBI agents are also using what are known as "sneak and peek" warrants on a wider scale, entering hundreds of homes clandestinely to gather intelligence and copy files and computer drives, again without notification. And they have conducted surveillance on antiwar, religious, civil rights and environmental groups, including Greenpeace and the American-Arab Anti-Discrimination Committee.

The NSA and FBI are not the only agencies conducting heightened domestic surveillance.
Treasury Department agents have directed searches of bank records and other financial information in more than 4,000 cases, usually without notifying the U.S.-based individuals, companies, charities and nonprofit organizations, interviews and documents show.

The U.S. military has a program known as Threat and Local Observation Notice, which compiles reports of suspicious activity in and around military installations. Under TALON, military intelligence squads have monitored American citizens at scores of events, including religious and antiwar protests, and have filed suspicious-action reports, according to records obtained by Sen. Patrick J. Leahy (D-Vt.).

Many government officials and privacy experts say the most alarming expansion in domestic surveillance involves the use of computers.

Because gadget-happy consumers are snapping up the latest devices and online services, authorities and private data brokers now have easy access to a digitized footprint of their activities and interests. Phone records, political preferences and purchasing habits are now only mouse clicks away from government agents.

After Sept. 11, government agencies began combining information collected by private companies with their own storehouses of intelligence. Authorities then used "social networking" software to map relationships among numerous people here and abroad. And they used predictive software to determine terrorism risks associated with individuals based on their activities, purchases, quirks and habits.

In 2004, an investigation by the Government Accountability Office found 199 U.S. government uses of such data mining, 54 of which used private-sector data including credit card records, Internet logs and other information, some of which was of questionable accuracy.

That same year, a Defense Department advisory committee concluded that although data mining could help uncover possible terrorist activity in the United States, "rapid action" was necessary to address "significant" privacy problems associated with such programs.

Nothing has been done since then to address the problem, said Wyden, whose 2003 bill to create a citizens' data-collection Bill of Rights went nowhere. The legislation would have compelled the government to disclose all the ways it is spying on Americans, and establish controls over and oversight of those activities.

"This has to be the largest intrusion on privacy that we have ever seen in the history of this country, undoubtedly," said James Dempsey, policy director for the nonpartisan Center for Democracy and Technology and a former congressional staffer.

One former senior U.S. intelligence official familiar with the most secret surveillance and data-mining programs defended them, saying that combined, they form a nearly all-encompassing web crucial to the counter-terrorism effort.

He said the programs had been hugely successful in catching individual terrorists and in allowing authorities to home in on geographic "hot spots" and ways that terrorist cells communicate and operate.

"If you lose programs like these, you rip a huge hole out of the hide of protection we have put in place around the United States," the former official said. "They are tremendously important, in ways people cannot even imagine."

But even some supporters of such programs believe the administration's failure to disclose them to Congress and the courts could lead to a constitutional showdown, and soon.

Rep. Peter Hoekstra (R-Mich.), the chairman of the House Permanent Select Committee on Intelligence, wrote in May to Bush that he had learned of "some alleged intelligence community activities about which our committee has not been briefed."

"If these allegations are true, they may represent a breach of responsibility by the administration, a violation of the law and, just as importantly, a direct affront to me and the members of this committee who have so ardently supported efforts to collect information on our enemies," wrote Hoekstra, a staunch Bush ally.

"The U.S. Congress," Hoekstra added, "simply should not have to play Twenty Questions to get the information that it deserves under our Constitution."