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February 28, 2006

What NSA Program?
Posted by Morton H. Halperin

The Senate Judiciary Committee today held its second hearing on the NSA warrantless surveillance activity.  There is increasing evidence that there is more than one NSA program and that the program(s) not yet discussed publicly are far more extensive than the "terrorist surveillance program" described by the President and the Attorney General.

On the eve of the hearing Senator Specter released a draft of his proposed bill to give the FISA court a role in the process.  Rather than just trying to find a way to have the court rule on the existing program, the proposed bill would authorize a sweeping surveillance program under a general warrant to be issued by the court. NSA would be permitted to intercept millions of phone conversations and other communications of people who came into contact with any foreign power, including even a friendly government.

One can only assume that whoever drafted this text is aware of what is really going on and is seeking to have Congress authorize all of the new NSA programs without the administration ever describing and defending what it is doing. This underscores the need for a full inquiry by the Congress. Congress must also insist that it would not provide any additional authority unless the President agrees to conduct all surveillance under the amended FISA rules.

Thus far the administration has only publicly described a limited program of interceptions of conversations involving at least one person overseas who is a member of Al Qaeda.  When pressed at the Senate Judiciary Committee hearing as to why the program could not be done under FISA the Attorney General  stated that the emergency provisions were not sufficiently flexible.

This problem would be solved by legislation along the following lines:

    1. The Attorney General would be authorized to authorize designated officials of the NSA to initiate emergency surveillance of conversations when there are grounds to believe that one of the persons on the call is a member of Al Qaeda and that one of the persons is outside the United States.
    2. Within three days of initiating any emergency surveillance under this program NSA would need to submit a request for authority to the AG specifying the basis for the belief. If the AG approves the surveillance it can continue.  If he disapproves it the surveillance must be terminated and all the fruits destroyed.
    3. Within three days of approving an emergency surveillance under this program the AG must submit a request to the FISA court for a warrant under the existing FISA standards.  If the court rejects the warrant the surveillance must be discontinued and the fruits destroyed.

Members of Congress should be willing to consider legislation along these lines, but only after a full inquiry and only if the President agrees that all surveillance would be under FISA once the broader authority was granted by Congress.  If the administration thinks it needs greater authority, it needs to explain publicly why it needs to conduct the surveillance and why it cannot be done under current FISA rules.  Then Congress can decide if the legislation is constitutional and appropriate.


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Can you explain what are the signs that there are other NSA programs not yet publicly discussed and what their nature seems to be?

Whenever the Administration says something that says the program is limited they are always quick to say that these comments apply only to the program that the President has discussed in public. They refuse at hearings and press conferences to say categorically that they are not doing anything else outside of the FISA rules. Many stories in the press, citing current and former officials, say that they are doing much more.

Many believe that these other programs involving takign in large streams of communications and then having a computer analyze them for patterns. At some stage some of the calls are listened to and some of the messages read by a human being.

It wouldn't surprise me in the least if there are other, more insidious activities taking place beneath the surface of public scrutiny.

In fact, it's been over a week since the DP World story broke. Isn't about time for a new scandal to break. I think they're a bit overdue.


NSA whistleblower Russ Tice has said that he wants to inform the Intelligence Committees about other Special Access Programs, besides the one revealed by the NYT, that could be unconstitutional or illegal.

To clarify few clues there are other spying programs are the precise language the administration uses for the one program we know must about. It is as described by the President, confirmed by the President, or authorized.

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