President Bush's nominee to head the CIA, Air Force General Michael Hayden, was already expected to face intense grilling over the National Security Agency's warrantless spying program when his confirmation goes before a Senate committee May 18.
Now, Hayden, who oversaw the program as head of the NSA from 1999-2005 (see "Bush's CIA Candidate Already Encountering Strong Opposition"), could face even tougher questions about why the NSA has also been secretly collecting the domestic phone records of tens of millions of Americans, most of whom are not suspected of any crime. According to a report in USA Today,the NSA has amassed one of the largest databases ever assembled in the world with the help of data provided by AT&T, Verizon and BellSouth, tapping the records of homes and businesses across the country in an attempt to analyze calling patterns to detect terrorist activity.
A source told the paper that the NSA's goal was to "to create a database of every call ever made" within the nation's borders. For the customers of those three companies — which provide local and wireless phone service to more than 200 million Americans — that means that since shortly after the September 11, 2001, terror attacks, the government has compiled detailed records of calls they made across town or the country to family members, co-workers, business contacts and others, according to the paper.
While the White House has said the warrantless wiretap program was focused on identifying and tracking terror suspects by eavesdropping on calls and e-mails made into the U.S. by suspected terrorists, the domestic program described by USA Today's sources is far wider than the Bush administration has acknowledged.
In defending the previously disclosed program, Bush insisted that the NSA was focused exclusively on international calls. "In other words," the president explained, "one end of the communication must be outside the United States." That led to the belief that domestic call records of calls that originate and end within U.S. borders were still private.
That no longer appears to be the case, according to the USA Today report. With access to records on billions of domestic calls, the NSA has a view of the communication habits of millions of Americans, though their names, addresses and other personal information are not being given to the NSA as part of the program, according to sources. However, with the phone numbers the NSA has, that information can easily be cross-checked with other databases. An NSA source declined to discuss the agency's operations with the newspaper, citing security issues, but said the agency "takes its legal responsibilities seriously and operates within the law."
Just hours after the story broke, Bush gave a terse press conference in which he again defended the practice without mentioning the USA Today story. He stressed that the NSA is not "mining or trolling through the personal lives of millions of innocent Americans."
"Today, there are new claims about other ways we are tracking down al Qaeda to prevent attacks on America," Bush said. "I want to make some important points about what the government is doing and what the government is not doing. First, our intelligence activities strictly target al Qaeda and their known affiliates. Al Qaeda is our enemy, and we want to know their plans. Second, the government does not listen to domestic phone calls without court approval. Third, the intelligence activities I authorized are lawful and have been briefed to appropriate members of Congress, both Republican and Democrat.
"Our efforts are focused on links to al Qaeda and their known affiliates," Bush said. "The privacy of ordinary Americans is fiercely protected in all our activities."
The revelation of the NSA activities also raised concern among leaders in Congress, especially Vermont Senator Patrick Leahy, the ranking Democrat on the Senate Judiciary Committee. "It's our government, government of every single American — Republican, Democrat or independent," said Leahy, according to CNN. "Those entrusted with great power have a duty to answer to Americans what they are doing."
Republican Senator Jeff Sessions from Alabama defended the program, saying the report stressed that the NSA was not listening to or recording conversations, which means no actual wiretapping was conducted.
In what appeared to be a related bit of fallout, Hayden's scheduled meetings with two Republican senators on Thursday (May 11) in advance of his confirmation hearings were canceled.
A White House spokesperson would also not discuss domestic call-tracking, but added that there "is no domestic surveillance without court approval" and that all national intelligence activities undertaken by the federal government "are lawful, necessary and required for the pursuit of al Qaeda and affiliated terrorists."
In a related matter, citing non-compliance from the National Security Agency, the Justice Department's Office of Professional Responsibility has abruptly dropped its investigation into the NSA's warrantless domestic eavesdropping program (see "Eavesdropping Program Broader Than Bush Suggested; Congress To Investigate"), according to The Associated Press.
In a fax to Democratic Congressman Maurice Hinchey, OPR head H. Marshall Jarrett announced the sudden end of the investigation: "We have been unable to make any meaningful progress in our investigation because OPR has been denied security clearances for access to information about the NSA program."
Jarrett said that beginning in January, lawyers in his office made a series of requests for the necessary clearances, which were denied on Tuesday. "Without these clearances, we cannot investigate this matter and therefore have closed our investigation," wrote Jarrett.
A Justice Department spokesman said the terrorist surveillance program, "has been subject to extensive oversight both in the executive branch and in Congress from the time of its inception" and that the OPR's mission is not to investigate possible wrongdoing in other agencies, but to determine if Justice Department lawyers violated any ethical rules. He would not comment on whether the end of the probe meant the agency believed its lawyers had handled the wiretapping matter ethically.