A controversy involving U.S. intelligence has erupted with the revelation that President Bush ordered the National Security Agency to intercept phone calls and e-mails in certain cases, without obtaining a court warrant. The National Security Agency, or NSA, is the United States' electronic intelligence organization. This is not the first time such intelligence gathering has sparked controversy.
Based outside Washington, at Fort Meade, Maryland, the NSA is the nation's electronic spy agency. Until the 1970s, few people outside intelligence circles were even aware of its existence, even though, according to analysts, it is about three times as large as the CIA. It was so secret, that people jokingly said NSA actually stood for No Such Agency.
In the 1970s, it was revealed that the NSA, which is barred by law from monitoring communications within the United States, had been eavesdropping on U.S. citizens, particularly opponents of the U.S. war in Vietnam. That led to the passage of the Foreign Intelligence Surveillance Act. The act, known simply as FISA, created an 11-member secret court, whose members are sitting Federal judges. The act calls for officials to get special warrants from the court for domestic eavesdropping in sensitive intelligence-based investigations.
Now the NSA. is again in the news with revelations that President Bush ordered NSA to eavesdrop on communications in the United States of people linked to terrorist suspects abroad, without obtaining any special warrant.
Kevin O'Connell, founder and head of the non-governmental Center for Intelligence Research and Analysis, says this does not herald a return to the domestic spying revealed in the 1970s. For one thing, he says, the NSA in this instance was listening in on terrorist suspects, not domestic political opponents. And, he adds, the telecommunications revolution, with the advent of e-mail, cellular phones, satellite phones and other forms of mobile communication, has blurred the borders between what is purely domestic and what is foreign.
"I think it's fairly naïve to assume that the United States has a big electronic fence around it, and that we can delineate between foreign and domestic, as cellular communications and other kinds of electrons are instantaneously moving around the world," Mr. O'Connell said. "That's a very hard challenge technologically, and deciding when a communication comes inside or outside this notional fence, I think, is an almost impossible task."
Citing legal advice from the U.S. Justice Department, President Bush has said eavesdropping on genuine enemies is exactly what the NSA was doing, and that the order to the NSA to bypass the warrant requirement was legal.
"Do I have the legal authority to do this? And the answer is, absolutely," the president said. "As I mentioned in my remarks, the legal authority is derived from the Constitution, as well as the authorization of force by the United States Congress."
But a memorandum issued Thursday by lawyers at the non-partisan Congressional Research Service says the administration's legal justification is not so clear-cut as the administration claims. Congressional Research Service defense and security analyst Richard Best says the NSA has, as he put it, played by the rules since the 1970s, but the new surveillance program raises questions.
"There are questions about whether the effort that was done was carried out outside the confines or outside the parameters of the Foreign Intelligence Surveillance Act, and whether there is constitutional authority for the president to do that," he said. "Those are key issues. The question of the extent to which it could have been included within the FISA framework is a valid question."
James Bamford, author of two books about the NSA says the FISA legislation does not allow for loopholes.
"The act [FISA] is the only way, the exclusive way, by which American citizens can be eavesdropped on," he said. "It didn't say that if you happen to have some terrorism, you can disregard the law and go around it. There actually is a specific provision within the law that says, in time of war, the president has 15 days worth of warrantless surveillance. That's it. Fifteen days, not four years."
But U.S. Justice Department lawyers say the law does include exceptions under certain circumstances.
Kevin O'Connell of the Center for Intelligence Research and Analysis says, although there is controversy, it is good that there is a debate over the reach of U.S. intelligence agencies, such as the NSA and the CIA.
"We have to understand better both the rough edges and sharp edges of what this democracy is willing to tolerate," he said. "And, as I said earlier, I think a bright note here is that, even a few years after 9/11, we are already having this debate. I hope the debate would be better informed. I don't think it's well-informed from both sides of the equation. But I think the fact that we're having the debate will give us some sense of how to proceed from here."
Some key Democratic members of Congressional intelligence oversight committees have complained that they were not kept sufficiently informed by the administration about the NSA warrantless eavesdropping.