[Infowarrior] - NSA Intercepts Exceed Limits Set by Congress

[Richard Forno]

April 16, 2009
N.S.A.’s Intercepts Exceed Limits Set by Congress
By ERIC LICHTBLAU and JAMES RISEN

http://www.nytimes.com/2009/04/16/us/16nsa.html?_r=1&hp=&pagewanted=print

WASHINGTON — The National Security Agency intercepted private e-mail  
messages and phone calls of Americans in recent months on a scale that  
went beyond the broad legal limits established by Congress last year,  
government officials said in recent interviews.

Several intelligence officials, as well as lawyers briefed about the  
matter, said the N.S.A. had been engaged in “overcollection” of  
domestic communications of Americans. They described the practice as  
significant and systemic, although one official said it was believed  
to have been unintentional.

The legal and operational problems surrounding the N.S.A.’s  
surveillance activities have come under scrutiny from the Obama  
administration, Congressional intelligence committees, and a secret  
national security court, said the intelligence officials, who were  
speaking only on the condition of anonymity because N.S.A. activities  
are classified. A series of classified government briefings have been  
held in recent weeks in response to a brewing controversy that some  
officials worry could damage the credibility of legitimate  
intelligence-gathering efforts.

The Justice Department, in response to inquiries from The New York  
Times, acknowledged in a statement on Wednesday night that there had  
been problems with the N.S.A. surveillance operation, but said they  
had been resolved.

As part of a periodic review of the agency’s activities, the  
department “detected issues that raised concerns,” the statement said.  
Justice Department officials then “took comprehensive steps to correct  
the situation and bring the program into compliance” with the law and  
court orders, the statement said. It added that Attorney General Eric  
H. Holder Jr. went to the national security court to seek a renewal of  
the surveillance program only after new safeguards were put in place.

In a statement on Wednesday night, the N.S.A. said that its  
“intelligence operations, including programs for collection and  
analysis, are in strict accordance with U.S. laws and regulations.”  
The Office of the Director of National Intelligence, which oversees  
the intelligence community, did not specifically address questions  
about the surveillance issue but said in a statement that “when  
inadvertent mistakes are made, we take it very seriously and work  
immediately to correct them.”

The questions may not be settled yet. Intelligence officials say they  
are still examining the scope of the N.S.A. practices, and  
Congressional investigators say they hope to determine if any  
violations of Americans’ privacy occurred. It is not clear to what  
extent the agency may have actively listened in on conversations or  
read e-mail messages of Americans without proper court authority,  
rather than simply obtained access to them.

The intelligence officials said the problems had grown out of changes  
enacted by Congress last July in the law that regulates the  
government’s wiretapping powers, and the challenges posed by enacting  
a new framework for collecting intelligence on terrorism and spying  
suspects.

While the N.S.A.’s operations in recent months have come under  
examination, new details are also emerging about earlier domestic- 
surveillance activities, including the agency’s attempt to wiretap a  
member of Congress, without court approval, on an overseas trip,  
current and former intelligence officials said.

After a contentious three-year debate that was set off by the  
disclosure in 2005 of the program of wiretapping without warrants that  
President George W. Bush approved after the Sept. 11 attacks, Congress  
gave the N.S.A. broad new authority to collect, without court-approved  
warrants, vast streams of international phone and e-mail traffic as it  
passed through American telecommunications gateways. The targets of  
the eavesdropping had to be “reasonably believed” to be outside the  
United States. Under the new legislation, however, the N.S.A. still  
needed court approval to monitor the purely domestic communications of  
Americans who came under suspicion.

In recent weeks, the eavesdropping agency notified members of the  
Congressional intelligence committees that it had encountered  
operational and legal problems in complying with the new wiretapping  
law, Congressional officials said.

Officials would not discuss details of the overcollection problem  
because it involves classified intelligence-gathering techniques. But  
the issue appears focused in part on technical problems in the  
N.S.A.’s ability at times to distinguish between communications inside  
the United States and those overseas as it uses its access to American  
telecommunications companies’ fiber-optic lines and its own spy  
satellites to intercept millions of calls and e-mail messages.

One official said that led the agency to inadvertently “target” groups  
of Americans and collect their domestic communications without proper  
court authority. Officials are still trying to determine how many  
violations may have occurred.

The overcollection problems appear to have been uncovered as part of a  
twice-annual certification that the Justice Department and the  
director of national intelligence are required to give to the Foreign  
Intelligence Surveillance Court on the protocols that the N.S.A. is  
using in wiretapping. That review, officials said, began in the waning  
days of the Bush administration and was continued by the Obama  
administration. It led intelligence officials to realize that the  
N.S.A. was improperly capturing information involving significant  
amounts of American traffic.

Notified of the problems by the N.S.A., officials with both the House  
and Senate intelligence committees said they had concerns that the  
agency had ignored civil liberties safeguards built into last year’s  
wiretapping law.

“We have received notice of a serious issue involving the N.S.A., and  
we’ve begun inquiries into it,” a Congressional staff member said.

Separate from the new inquiries, the Justice Department has for more  
than two years been investigating aspects of the N.S.A.’s wiretapping  
program.

As part of that investigation, a senior F.B.I. agent recently came  
forward with what the inspector general’s office described as  
accusations of “significant misconduct” in the surveillance program,  
people with knowledge of the investigation said. Those accusations are  
said to involve whether the N.S.A. made Americans targets in  
eavesdropping operations based on insufficient evidence tying them to  
terrorism.

And in one previously undisclosed episode, the N.S.A. tried to wiretap  
a member of Congress without a warrant, an intelligence official with  
direct knowledge of the matter said.

The agency believed that the congressman, whose identity could not be  
determined, was in contact — as part of a Congressional delegation to  
the Middle East in 2005 or 2006 — with an extremist who had possible  
terrorist ties and was already under surveillance, the official said.  
The agency then sought to eavesdrop on the congressman’s  
conversations, the official said.

The official said the plan was ultimately blocked because of concerns  
from some intelligence officials about using the N.S.A., without court  
oversight, to spy on a member of Congress.