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FILE – This Thursday, June 6, 2013 file photo shows the National Security Administration (NSA) campus in Fort Meade, Md. The National Security Agency is deleting more than 685 million call records the government obtained since 2015 from telecommunication companies in connection with investigations, raising questions about the viability of the program. The agency released a statement late Thursday, June 28, 2018, saying it started deleting the records in May after NSA analysts noted “technical irregularities in some data received from telecommunication service providers.” (AP Photo/Patrick Semansky, File)

We know after the fact that one of the glaring deficiencies of the government was its failure to “connect the dots” when it came to the impending attacks.  The eventual 9/11 Commission report chided the government- the FBI, CIA, Department of Defense and National Security Council in both the Clinton and Bush administrations- of not taking the threats seriously enough.  They also noted that barriers erected during the Clinton administration prevented the sharing of timely information between intelligence and law enforcement and suggested a reorganization of the intelligence community.

The Bush administration, however, was not waiting for a reorganization of the intelligence community to take action.  The most important action taken was unleashing the technological expertise of the intelligence gathering community to prevent a future attack.  In this time frame soon after 9/11, there was a series of anthrax attacks through the mail.  It appeared as if the country was under a constant terrorist attack.  The primary means of preventing a future attack of any kind was using the NSA to help “connect the dots” before the connection became another deadly attack.

The NSA monitors and collects all electronic communications in the world, including the United States.  Analysts then sift through the information to determine persons or communities of interest for further analysis.  A community of interest is a loose association of people who might share a common objective, such as a terrorist attack on the country.  A perfect example is the 9/11 hijackers.  Two of the hijackers- al-Mihdhar and al-Hazmi- were known terrorists because they had attended a meeting in Kuala Lumpur.  Upon their arrival in California in 2000, they communicated with Mohammed Atta.  Atta then communicated with others involved in the planning and logistics of the attack.  Using the “profile of interest,” an analyst could then reasonably conclude that Atta was also a terrorist and he could be monitored.  Eventually, one could track the entire network through to Germany and eventually to Khalid Sheik Mohammed.  

However, building the network of associations is sltedious work.  In the late 1990s, William Binney of the NSA developed a program called Thin Thread designed to identify networks of associations based on intelligence on communications gathered by the NSA in real time.  In August 2001, Michael Hayden terminated the program in favor of another- Trailblazer.  According to some at the NSA, Thin Thread operated without violating the Constitutional rights of individuals.  In 2002, a $280 million contract was awarded to place into operation Trailblazer which did not have privacy protections for American citizens such as those that existed with Thin Thread.  Thus, from at least August 2001 to sometime in 2002, the NSA lacked the necessary technology to connect any dots.  That, however, did not mean the NSA ceased collecting and storing electronic communications.  For that, they used what was called the NARUS database which allowed the NSA to track and store information.

After 9/11, President Bush unleashed the intelligence community, particularly the NSA, to use any available means to track, monitor, assess and ultimately prevent future terrorist attacks.  This was known in the intelligence community as PSP- President’s Surveillance Program.  In order to discover the historical connections between new and old information, the NSA obtained access to historical telephone and Internet communications through phone companies, primarily AT&T.  This had been happening since at least August 2000.

Evidence of this storage and later analysis of previously collected information is sometimes made evident inadvertently.  For example, when Jesselyn Radack, a DOJ lawyer, moved to private practice she was eventually fired from the private firm.  In the course of the employment dispute, the law firm provided her lawyer with call logs to and from Radack and reporter Michael Isakoff.  The only way this is possible is through the NSA data collection program.  

Shortly after the attacks on 9/11, CIA Director George Tenet asked Hayden what could be done within the confines of FISA and Hayden replied nothing.  The result was the PSP which essentially authorized the NSA to share with the CIA and FBI any electronic communications captured to assess terrorist threats if they “reasonably believed the threat originated overseas.”  The PSP acknowledged that this could be done without a FISA warrant. 

On September 14, 2001 Hayden approved the targeting of terrorist-associated telephone numbers and email addresses on communication links between the US and foreign countries where there were known terrorists.  Only specified, pre-approved numbers and addresses were allowed for collection in links originating in the United States.  The following day, the NSA tapped into a 1999 plan to “perform content chaining on metadata it had collected.”  Analysts were permitted access to masked US telephone numbers and email addresses to determine links to foreign terrorists.  A December 1999 DOJ finding determined that this did not violate FISA since it was considered “electronic intelligence” under FISA.  Then sometime in late September or early October 2001, David Addleton, Counsel to Vice President Dick Cheney drafted a memo authorizing the NSA to spy on American citizens.  By September 26th, Hayden had determined that any communication between the United States and Afghanistan, where bin-Laden was known to be at the time, was presumed to be of high intelligence value and could be shared with the FBI.  On October 2nd, Hayden briefed Congress on what the NSA could and could not do.

It is believed that Bush signed off on a memo on October 4 authorizing the NSA and FBI to spy on American communications.  The NSA was authorized to spy on four types of communications: (1) telephony content, (2) Internet content, (3) telephony metadata, and (4) Internet metadata.  The NSA assumed this also applied to US citizens.  Attorney General John Ashcroft had reservations about the authorization but he was instructed by the White House to “just sign it.”  There were even reservations in the NSA, but Hayden received assurances from the general counsel that it was legal.  

Some in Congress and the administration were wary of the program.  Nancy Pelosi was briefed on NSA efforts on October 1 and expressed reservations.  On October 4th, Bush signed off on the program.  A week later Pelosi sent a letter to Hayden requesting if there was Presidential authorization for the original notification unaware that Bush signed the memo on October 4th.  David Addleton notified people within the NSA that if the program was ever discovered, “heads will roll.”  Internal documents revealed that by October 15th, about 90 NSA employees were involved in and aware of the program.  Outside contractors were also made aware- particularly telecommunication companies.  On October 16th, Hayden began contacting these companies to provide the requested data on a voluntary basis.  By the end of October, the companies began to comply and started sending stored metadata to the NSA.

As the data came in, the Bush administration started to shore up the legal foundation for the program.  John Yoo wrote a memo on November 2, 2001 determining the program was legal under the Congressional authorization for Bush to pursue al-Qaeda and prevent future terrorist attacks.  A week later, the NSA’s Deputy General Counsel was made aware of the program and determined the same thing.  On November 17th, Hayden responded to Pelosi’s previous letters informing her that his discussion on October 1 with Congress involved his own beliefs, but failed to inform her of the October 4th Presidential memo.  Because he was out of the loop, Deputy Attorney General Larry Thompson started to refuse to sign off on FISA warrant applications.  Because there was no indication where the leads came from, he suspected they were not legal.  Soon thereafter, the job of signing off on the warrants was assigned to someone else in the Justice Department.

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