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January 3, 2006
Congress Told Of Expanded NSA Efforts In 2001

Despite recent protestations of Congressional outrage over the NSA program to intercept international communications from known and suspected al-Qaeda assets inside and outside of the US, it turns out that more members of Congress were told of the program than have let on. General Michael Hayden briefed members of both intelligence committees in October 2001 specifically to detail how the NSA would expand its reach in regards to FISA -- and the only concern given at the time was whether the NSA had gotten the proper presidential authority to proceed:

Congressional intelligence committees had at least a hint in October 2001 that the National Security Agency was expanding its surveillance activities after the 9/11 attacks, according to a letter released Tuesday by House Minority Leader Nancy Pelosi.

The California Democrat had raised questions to Gen. Michael Hayden, then the NSA director, about the legal authority to conduct the eavesdropping work.

In the October 2001 letter, Pelosi said she was told in a briefing that month that the agency "had been operating since the Sept. 11 attacks with an expansive view" of its authorities "to the conduct of electronic surveillance under the Foreign Intelligence Surveillance Act and related statutes, orders, regulations and guidelines."

"I am concerned whether, and to what extent, the National Security Agency has received specific presidential authorization for the operations you are conducting," Pelosi, then the top Democrat on the intelligence panel, wrote Hayden. ...

But it appears that Hayden may have at least alluded broadly to the new surveillance work with a wider audience of House and Senate intelligence committee members during the classified October briefing. According to Pelosi's letter, Hayden spoke about the agency's new posture to expand its operations.

Hayden, who is now the nation's No. 2 intelligence official, told Pelosi he wanted to clarify ambiguities. "In my briefing, I was attempting to emphasize that I used my authorities to adjust NSA's collection and reporting," he wrote on Oct. 18, 2001.

Now we know that the intelligence committees had full knowledge of the NSA plan and its relationship to the FISA regulations and presidential authority. According to Pelosi's own letter, the only real issue that Congress had was whether the President himself had authorized the NSA to expand its intercepts -- an explicit acknowledgement that the authority remained within the President's scope of power, especially given the war-powers resolution Congress had just passed.

The outrage we hear today from people like Howard Dean should get directed to the members of Congress who have long known of this program and declined to object. Even today, we hear no voices from the intelligence panels that want this program to end. That shows that they understand the necessity and the legality of this crucial part of the American defense against al-Qaeda and other Islamofascist terrorists who will kill Americans by the thousands if they are given the opening to do so.

UPDATE: Actually, this story gets even better. It turns out that Hayden operationally took responsibility for expanding NSA operations in the wake of 9/11, and Pelosi wanted to ensure that Presidential authorization took place:

Ms. Pelosi, then the ranking Democrat on the House Intelligence Committee, said, "I am concerned whether, and to what extent, the National Security Agency has received specific presidential authorization for the operations you are conducting."

The answer, General Hayden suggested in his response to Ms. Pelosi a week later, was that it had not. "In my briefing," he wrote, "I was attempting to emphasize that I used my authorities to adjust N.S.A.'s collection and reporting."

It is not clear whether General Hayden referred at the briefing to the idea of warrantless eavesdropping. Parts of the letters from Ms. Pelosi and General Hayden concerning other specific aspects of the spy agency's domestic operation were blacked out because they remain classified. But officials familiar with the uncensored letters said they referred to other aspects of the domestic eavesdropping program.

Bush administration officials said on Tuesday that General Hayden, now the country's No. 2 intelligence official, had acted on the authority previously granted to the N.S.A., relying on an intelligence directive known as Executive Order 12333, issued by President Ronald Reagan in 1981. That order set guidelines for the collection of intelligence, including by the N.S.A.

"He had authority under E.O. 12333 that had been given to him, and he briefed Congress on what he did under those authorities," said Judith A. Emmel, a spokeswoman for the Office of the Director of National Intelligence. "Beyond that, we can't get into details of what was done."

Once again, the Times mischaracterizes the program as a "domestic" operation. All of the Times reporting indicates that the warrantless NSA intercepts concerned international communications, not domestic -- which would under FISA have to both originate and end within the US. But more importantly, it again shows that Congress explicitly acknowledged the authority of the President to approve this expanded program. It also shows that the Democratic leadership had no problem with the program itself, but rather that it received the proper authorization from the President before proceeding much farther.

And again, note that none of the people involved in this briefing ever bothered to object to the expanded NSA effort until after the Times published its story.

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Posted by Ed Morrissey at January 3, 2006 9:45 PM

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