Read Online @War: The Rise of the Military-Internet Complex by Shane Harris - Free Book Online

handled domestic ones. But no agency was following the foreign threats as they came into the United States. In part that was to prevent US intelligence agencies from spying on Americans. But that sensible prohibition, enshrined in more than two decades of law and regulation, now seemed like a suicide pact.
    The NSA also wanted to tweak the existing rules so they could intercept communications that transited the United States as they traveled from one foreign country to another. Under current law, if the agency wanted to capture a foreign terrorist’s e-mail, it might have to get a warrant if that e-mail was stored on a server located in the United States. This was obviously foreign intelligence, it just happened to move over a fiber-optic cable or end up in a corporate database on US soil. NSA staffers argued that the agency should be allowed to grab that without asking for permission from a court, just as it could legally do if the message were stored on a server in a foreign country.
    But the NSA also wanted to analyze more domestic communications. The staff proposed an idea first conceived in 1999, in preparation for the threat of terrorist attacks during millennium celebrations. The agency wanted to conduct “contact chaining” on US phone numbers. This was a painstaking process of figuring out who someone had called, who those people had called, who
they
had called, and so on, all based on analyzing phone records. The NSA wouldn’t see the names associated with those phone numbers, but they believed the contact chain would help identify people of interest in a possible terrorist network. The Justice Department had ruled at the time that even monitoring this so-called metadata required a warrant, because the data was associated with people presumed to be Americans or legal residents. Now the NSA wanted to start contact chaining on phone numbers in the United States to see who was in contact with terrorists—whether they were abroad or already here. Hayden himself pointed out to administration officials that metadata wasn’t considered “content” under US law, and therefore wasn’t subject to the Fourth Amendment’s prohibition on warrantless surveillance. Indeed, the US Supreme Court had ruled in 1979 that the government didn’t need a warrant to capture a phone number, because a person voluntarily gave up the privacy of that information the moment he dialed the number and it was recorded by the phone company.
    For all the items on the wish list, the NSA believed that current surveillance law was insufficient because it hadn’t kept up with technological change. When the legislation governing intelligence operations against Americans, the Foreign Intelligence Surveillance Act, was signed into law in 1978, there was no data-mining software to allow contact chaining. There was no global communications network using US soil as a transit point. And there was no threat of international terrorism inside the United States. Now the obvious next move for the administration was asking Congress to change the law, to allow the NSA to do many of the things that Hayden and his staff were certain needed to be done.
    President Bush’s advisers, however, were in no mood to seek Congress’s permission for intelligence activities that they believed were within his discretion. Vice President Cheney, in particular, was loath to allow lawmakers to start directing NSA operations against al-Qaeda. The White House was also concerned that a public debate about changes in surveillance law would tip off terrorists to what the NSA was doing to track them.
    Cheney took Hayden’s list of ideas and, working with the NSA director and other White House staff, came up with a plan to give the agency broad new authorities under executive order. The task of writing up the order itself fell to David Addington, Cheney’s legal counsel and his right-hand man in the White House. The NSA would now be