Cheney Pushed U.S. to Widen Eavesdropping
Cheney Pushed U.S. to Widen Eavesdropping
By SCOTT SHANE and ERIC LICHTBLAU
WASHINGTON, May 13 In the weeks after the Sept. 11 attacks, Vice
President Dick Cheney and his top legal adviser argued that the
National Security Agency should intercept purely domestic telephone
calls and e-mail messages without warrants in the hunt for terrorists,
according to two senior intelligence officials.
But N.S.A. lawyers, trained in the agency's strict rules against
domestic spying and reluctant to approve any warrantless
eavesdropping, insisted that it should be limited to communications
into and out of the country, said the officials, who were granted
anonymity to discuss the debate inside the Bush administration late in
The N.S.A.'s position ultimately prevailed. Details have not emerged
publicly of how the director of the agency at the time, Gen. Michael
V. Hayden, designed the program, persuaded wary N.S.A. officers to
accept it and sold the White House on its limits.
Whatever the internal deliberations, General Hayden was the program's
overseer and has become its chief salesman. He is certain to face
questions about his role when he appears at a Senate hearing next week
on his nomination as director of the Central Intelligence Agency.
Criticism of the surveillance program flared again this week with the
disclosure that N.S.A. had collected the phone records of millions of
Americans in an effort to track terror suspects.
By several accounts, General Hayden, a 61-year-old Air Force officer
who left the agency in April last year to become principal deputy
director of national intelligence, was the man in the middle as
President Bush demanded that intelligence agencies act urgently to
stop future attacks.
On one side was a strong-willed vice president and his longtime legal
adviser, David S. Addington, who believed that the Constitution
permitted spy agencies to take sweeping measures to defend the
country. Later, Mr. Cheney would personally arrange tightly controlled
briefings on the program for select members of Congress.
On the other side was the largest American intelligence agency, which
was battered by eavesdropping scandals in the 1970's and has since
wielded its powerful technology with extreme care to avoid accusations
of spying on Americans.
As in other areas of intelligence collection, including interrogation
methods for suspected terrorists, Mr. Cheney and Mr. Addington took an
aggressive view of what was permissible under the Constitution, the
two intelligence officials said.
If people suspected of links to Al Qaeda made calls inside the United
States, the vice president and Mr. Addington thought eavesdropping
without warrants "could be done and should be done," one of them said.
He added: "That's not what the N.S.A. lawyers think."
The other official said there was "a very healthy debate" over the
issue. The vice president's staff was "pushing and pushing, and it was
up to the N.S.A. lawyers to draw a line and say absolutely not."
Both officials said they were speaking publicly about the internal
discussion because of the importance of the national security and
civil liberty issues involved and because the interplay between Mr.
Cheney's office and the intelligence agencies is usually hidden from
public view. Both spoke favorably of General Hayden; one expressed no
view on his nomination for the C.I.A. job, and the other was
interviewed by The New York Times weeks before President Bush selected
Mr. Cheney's spokeswoman, Lee Anne McBride, declined to discuss the
deliberations about the classified program.
"As the administration, including the vice president, has said, this
is terrorist surveillance, not domestic surveillance," Ms. McBride
said. "The vice president has explained this wartime measure is
limited in scope and conducted in a lawful way that safeguards our
Spokespeople for the N.S.A. and for General Hayden declined to comment.
Even with the N.S.A. lawyers' reported success in narrowing the
program, critics say that it is nonetheless illegal and that it should
have never been created. For the first time since the Foreign
Intelligence Surveillance Act was passed in 1978, the N.S.A. was
targeting Americans and others inside the country for eavesdropping
The spying that would become such a divisive issue for the White House
and for General Hayden grew out of a meeting days after the Sept. 11
attacks, when President Bush gathered his senior intelligence aides to
brainstorm about ways to head off another attack.
"Is there anything more we could be doing, given the current laws?"
the president later recalled asking.
General Hayden stepped forward. "There is," he said, according to Mr.
Bush's recounting of the conversation in March during a
town-hall-style meeting in Cleveland.
By all accounts, General Hayden was the principal designer of the
plan. He saw the opportunity to use the N.S.A.'s enormous
technological capabilities by loosening restrictions on the agency's
operations inside the United States.
For his part, Mr. Cheney helped justify the program with an expansive
theory of presidential power, which he explained to traveling
reporters a few days after The Times first reported on the program in
Mr. Cheney traced his views to his service as chief of staff to
President Gerald Ford in the 1970's, when post-Watergate reforms,
which included the FISA law, "served to erode the authority I think
the president needs to be effective, especially in a national security
Senior intelligence officials outside the N.S.A. who discussed the
matter in late 2001 with General Hayden said he accepted the White
House and Justice Department argument that the president, as commander
in chief, had the authority to approve such eavesdropping.
"Hayden was no cowboy on this," said another former intelligence
official who was granted anonymity because the program remains
classified. "He was a stickler for staying within the framework laid
out and making sure it was legal, and I think he believed that it was."
The official said General Hayden appeared particularly concerned about
ensuring that one end of each conversation was outside the United States.
But critics of the program say the law does not allow spying on a
caller in the United States without a warrant, period no matter
whether the call is domestic or international. "Both would violate
FISA," said Nancy Libin, staff counsel at the Center for Democracy and
Technology, a civil liberties group.
Ms. Libin said limiting the warrantless intercepts to international
calls "may have been a political calculation, because it sounds more
Despite the legal technicalities, for employees of the N.S.A., whose
mission is foreign intelligence, avoiding purely domestic appears to
have been crucial.
One indication that the restriction to international communications
was dictated by more than legal considerations came at a House hearing
last month. Asked whether the president had the authority to order
eavesdropping without a warrant on purely domestic communications,
Attorney General Alberto R. Gonzales replied, "I'm not going to rule
Despite the decision to target only international calls and e-mail
messages, some domestic traffic was picked up inadvertently because of
difficulties posed by cell phone and e-mail technology in determining
whether a user is on American soil, as The Times reported last year.
And one government official, who had access to intelligence from the
intercepts and was granted anonymity because of the classified nature
of the program, believes that some of the purely domestic
eavesdropping in the program's early phase was intentional. No other
officials have made that claim.
President Bush and other officials have denied that the program
monitors any domestic calls. They have, however, generally stated
their comments in the present tense, leaving open the question of
whether domestic calls may have been captured before the program's
rules were fully established.
After the program started, General Hayden was the one who briefed
members of Congress on it and who later tried to dissuade The Times
from reporting its existence.
When the newspaper published its first article on the program last
December, General Hayden found himself on the defensive. He had often
insisted in interviews and public testimony that the N.S.A. always
followed laws protecting Americans' privacy. As the program's
disclosure provoked an outcry, he had to square those assurances with
the fact that what the administration called the Terrorist
Surveillance Program appeared to violate the FISA statute.
Nonetheless, General Hayden took on an extraordinary role in
explaining and defending the program. He appeared at the White House
alongside Mr. Gonzales, spoke on television and gave an impassioned
speech at the National Press Club in January.
Some of the program's critics have found his prominence in defending
what amounts to a controversial presidential policy inappropriate, but
General Hayden seems determined to stand up for the agency's conduct
and his own.
In the press club speech, General Hayden recounted his remarks to
N.S.A. employees two days after the Sept. 11 attacks: "We are going to
keep America free by making Americans feel safe again."
He said that the standards for what represented a "reasonable"
intrusion into Americans' privacy had changed "as smoke billowed from
two American cities and a Pennsylvania farm field."
"We acted accordingly," he said.
In the speech, General Hayden hinted at the internal discussion of the
proper limits of the N.S.A. program. Although he did not mention Mr.
Cheney or his staff, he said the decision to limit the eavesdropping
to international phone calls and e-mail messages was "one of the
decisions that had been made collectively."
"Certainly, I personally support it," he said.
President Defends Pick
WASHINGTON, May 13 (Bloomberg News) In his weekly radio address on
Saturday, President Bush defended the qualifications of Gen. Michael
V. Hayden to be director of the C.I.A. and sought to ease concern
about a domestic eavesdropping program that the general helped establish.
In General Hayden, "the men and women of the C.I.A. will have a strong
leader who will support them as they work to disrupt terrorist
attacks, penetrate closed societies and gain information that is vital
to protecting our nation," Mr. Bush said in the broadcast remarks.
He urged the Senate to confirm the general "promptly."