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Cheney Pushed U.S. to Widen Eavesdropping

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  • Ram Lau
    http://www.nytimes.com/2006/05/14/washington/14nsa.html Cheney Pushed U.S. to Widen Eavesdropping By SCOTT SHANE and ERIC LICHTBLAU WASHINGTON, May 13 — In
    Message 1 of 1 , May 13, 2006
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      http://www.nytimes.com/2006/05/14/washington/14nsa.html
      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
      2001.

      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
      him.

      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
      civil liberties."

      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
      without warrants.

      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
      December.

      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
      area."

      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
      reassuring."

      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
      it out."

      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."
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