Domestic spying quietly goes on
NSA faces new limits, but surveillance thrives
With Congress on the verge of outlining new parameters for National Security Agency eavesdropping between suspicious foreigners and Americans, lawmakers are leaving largely untouched a host of government programs that critics say involves far more domestic surveillance than the wiretaps they sought to remedy.
These programs - most of them highly classified - are run by an alphabet soup of federal intelligence and law enforcement agencies. They sift, store and analyze the communications, spending habits and travel patterns of U.S. citizens, searching for suspicious activity.
The surveillance includes data-mining programs that allow the NSA and the FBI to sift through large databanks of e-mails, phone calls and other communications, not for selective information, but in search of suspicious patterns.
Other information, like routine bank transactions, is kept in databases similarly monitored by the Central Intelligence Agency.
"There's virtually no branch of the U.S. government that isn't in some way involved in monitoring or surveillance," said Matthew Aid, an intelligence historian and fellow at the National Security Archives at The George Washington University. "We're operating in a brave new world."
Federal rules limit the ways some of the information can be used and shared among government agencies. Pending changes to the Foreign Intelligence Surveillance Act contain numerous provisions set up to safeguard the privacy of Americans. But there are few similar protections with other types of surveillance.
Under the FISA proposal, for example, a CIA transcript or NSA summary of an innocent social conversation between a foreign terrorist and his relative in the United States would not be shared with other intelligence analysts. Even if the conversation was later found to have investigative merit, the U.S. relative's name and other identifying information would either be redacted or revealed only under limited circumstances to select agencies.
The Bush administration argues that the privacy and civil liberties protections in place for surveillance not covered by the FISA rules are "unprecedented." In addition to the data-mining, use of financial transaction databases and satellite imagery, the surveillance includes monitoring the travel patterns of airline passengers.
Use of satellites by local law enforcement agencies, for instance, is supposed to go through a stringent approval protocol at the Department of Homeland Security's newly formed National Applications Office.
But critics say the safeguards don't always work. Some blunders in the use of such protections have become public. NewYorker writer Lawrence Wright wrote in January about one such experience. In 2002, while he was researching The Looming Tower, his Pulitzer Prize-winning book on al-Qaida, two members of an FBI terrorism task force arrived at his home. Why, they asked, had his daughter been speaking with someone in the United Kingdom who was in touch with suspected al-Qaida operatives?
It wasn't his daughter, he told them flatly. Wright himself had made the calls. And the person he contacted was a British civil rights lawyer who had asked him not to speak with her clients, some of whom are relatives of Ayman al-Zawahiri, Osama bin Laden's chief lieutenant.
"My daughter is no terrorist - she went to high school with the Bush twins," Wright said. "I was taken aback. They were apparently monitoring my phones."
Wright said he was particularly surprised because he was aware of protections supposedly in place to conceal his name and other identifying information that would have been gathered during the creation of transcripts of the call.
Wright said he doubted the government would have been able to get a warrant for the information, and he said he didn't know how the FBI obtained his daughter's name, let alone got the impression that she was communicating with the British lawyer.
Critics say such stories recall 1960s and 1970s-era abuses - the CIA's involvement in political activities, and the FBI monitoring of peace groups and civil rights activists - that prompted Congress to pass far-reaching laws bringing foreign-intelligence gathering and any domestic surveillance under strict controls and judicial oversight.
Although the latest FISA proposal includes numerous provisions for a secret court to monitor and authorize surveillance, and for inspectors general to keep tabs on who's being monitored by various agencies, little oversight exists for surveillance programs that fall outside FISA scrutiny.
Congress has requested, and in many cases received, briefings on some of the programs. But its dissatisfaction with the amount of information provided by the administration has frequently resulted in holding back funding for programs.
The House Appropriations Committee took such a step this week, holding back funding for the National Applications Office's effort to use U.S. satellites for domestic purposes until August, when the Government Accountability Office will release a report about how the program will handle civil liberties and privacy concerns.
Russ Knocke, a spokesman for the Department of Homeland Security, said the department had repeatedly met with lawmakers and would comply with any review process. He called efforts to stall the funding "misguided" and a potential threat to public safety and security missions.
Even when Congress has received information, lawmakers say their questions or concerns are often addressed within the agency that is responsible for the surveillance, amounting to a practice of self-policing.
"You don't have to look far into history to know that when the government, any government, is given secret authorities, that those authorities are ultimately abused," said Mike German, a former FBI agent who is now policy counsel for the American Civil Liberties Union. "You don't even have to attribute bad motives to anyone. In an intelligence officer's zeal to protect the country, they often will overstep their bounds."
In part to assuage privacy concerns, the Department of Homeland Security has established a privacy czar to ensure that the technologies and programs initiated by the federal agency do not erode privacy laws or violate civil liberties. While many have lauded the creation of such a position, some believe it should be expanded to a Cabinet-level post in the executive branch, a step that some advocates say would send a powerful message in an age when digitized communications have ballooned and made safeguarding private information vastly more complicated.
"We should have what Canada has, which is a minister of privacy, someone looking out for the privacy issues of Americans," said James Bamford, an intelligence expert and author on two books about the history of the NSA. "We have armies of people out there trying to pick into everyone's private life, but we have nobody out there who's an advocate."
bradley.olson@baltsun.com
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