Feds Spying on Millions of Americans

[Editor's Note: This is a complete transcript from Amy Goodman's syndicated radio program Democracy Now!.]

Amy Goodman: On Thursday, President Bush discussed the NSA spy operations, but did not directly address the report in USA Today that the NSA is creating a database of tens of millions of phone call records:
President George W. Bush: 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. Fourth, the privacy of ordinary Americans is fiercely protected in all our activities. We're not mining or trolling through the personal lives of millions of innocent Americans. Our efforts are focused on links to al-Qaeda and their known affiliates.
Amy Goodman: That was President Bush speaking on Thursday. On Capitol Hill, Pennsylvania Republican Arlen Specter, Chair of the Senate Judiciary Committee, announced he would call officials from AT&T, Verizon and Bell South to appear before the panel for questioning.

Meanwhile, there have been a number of other developments about the NSA's spy program. On Wednesday, the Justice Department announced it had to close an investigation into the NSA's spy program, because the NSA had refused to grant investigators security clearances. On Monday, President Bush nominated General Michael Hayden to become the next director of the CIA. Hayden was the head of the NSA in 2001, when President Bush ordered the agency to begin warrantless spying of Americans. General Hayden spoke with reporters yesterday about the NSA spying program:
Gen. Michael Hayden: Everything that NSA does is lawful and very carefully done, and that the appropriate members of the Congress, House and Senate, are briefed on all NSA activities, and I think I'll just leave it at that.
Amy Goodman: But the NSA spy program is even being criticized by former top NSA officials. On Monday, the agency's former Director Bobby Ray Inman said, "This activity is not authorized." To talk about the latest developments, we're joined on the telephone by New York Congressmember Maurice Hinchey, a Democrat. We welcome you to Democracy Now!

Rep. Maurice Hinchey: Well, thank you, Amy. It's a pleasure to be with you.

Amy Goodman: It's good to have you with us. Now, you have written a letter about the Justice Department shutting down the investigation into the NSA. What do you understand has happened? Why has it been shut down?

Rep. Maurice Hinchey: Well, the investigation by the Office of Professional Responsibility began earlier this year after I initiated a letter, which was signed by a number of my other colleagues in the House, asking this office within the Justice Department to look into the question of who it was in the Justice Department that approved this spying program by the NSA. Shortly after we wrote the letter, we received a reply back, saying that the investigation was underway. The Office of Professional Responsibility had engaged in an investigation, and they were moving forward on it. We had some other communication with the office, which indicated that the investigation was moving ahead. We sent a letter to them, asking them if they would look into specific aspects.

Then, the day before yesterday, we received a letter back from the counsel of the Office of Professional Responsibility, saying that they were unable to make any meaningful progress in their investigation, because they had been denied security clearances for access to information about the NSA program. So, the administration just put a road block in front of them, saying that they were not going to be able to investigate any aspect of this, because they were not going to be given the security clearances they need to look into the NSA. That is a shocking revelation, frankly.

It is the responsibility of OPR, the Office of Professional Responsibility, to make sure that people within the Justice Department are behaving in ways that are ethical, that are within the law and are not deviating from the protections within the Constitution. But, as we've seen, this administration is not interested in that kind of activity internally, and so they have stopped that investigation. We have now written a letter back to the counsel's office asking them to inform us who it was that prevented them from continuing the investigation and what were the circumstances surrounding that prevention.

Amy Goodman: And, Congressmember Hinchey, who is "we"? Who wrote this letter?

Rep. Maurice Hinchey: The original letter was written by myself, was signed by John Lewis, by two or three other members of the Congress: Ms. Woolsey from California and one or two other people.

Amy Goodman: Now, this is an issue that cuts across political lines. I mean, you have Senator Arlen Specter, Republican of Pennsylvania, is calling for an investigation. Are you finding that you have bipartisan support for the questions that you're raising?

Rep. Maurice Hinchey: I have seen no indication of bipartisan support within the House of Representatives. Yes, you're absolutely true. Senator Specter has raised this question, and he has indicated that the committee which he chairs in the Senate, the Judiciary Committee, will begin some form of investigation into this practice, the spying practice. How far that investigation goes, we will see. But you're much more likely to get something that looks into this situation from the Senate than you are from the House.

Amy Goodman: And how unusual is it -- yesterday, the CIA director nominee, Michael Hayden, was supposed to do his meet-and-greets with various senators, and then, of course, the cameras follow, and you see him getting approval from various Republican and Democratic senators. That didn't quite happen. I think he met with Mitch McConnell of Kentucky, but other than that, even the Republican senators, these meetings were canceled.

Rep. Maurice Hinchey: Yes. Well, I would imagine that in the Senate there is some concern about the fact that General Hayden was in charge of the NSA at the time when the illegal spying operation apparently began. So, there is definitely going to be some interest in his background with regard to this illegal spying program, and it is an illegal spying program, and that's the main point that we have to keep focusing on here. So, there will be some attention focused on him, and the question is going to be whether or not he's going to be approved, and we can anticipate that a lot of the questions surrounding his nomination are going to be focused upon this illegal spying program, why it came into existence in the first place.

There is a law, which was set up in 1978, which is called the Foreign Intelligence Surveillance Act. This Foreign Intelligence Surveillance Act came about as a result of illegal spying, which was conducted during the Nixon administration. That whole issue was examined carefully by the Congress. A lot of hearings were held. Examination was conducted. And finally, this Foreign Intelligence Surveillance Act was passed in 1978, which set up a process whereby any administration that believes that some form of activity is going on in our country that is raising serious questions about security, endangering people, endangering the nation, under circumstances such as that, any administration can engage in a surveillance program, but eventually that program must be approved through the Foreign Intelligence Surveillance courts, which were set up within the Justice Department.

This administration has circumvented that law, gone outside of it. One of the things that the administration has said as a result of the shutting down, or the impeding, rather, of this investigation by the Office of Professional Responsibility within the Justice Department, is that in the course of defending their eavesdropping program, they have said that the NSA's activities were narrowly targeted to intercept international calls and emails of Americans and others inside the United States, who they suspected had ties to al-Qaeda terror network. Well, if that were true, if that were the case, that they were narrowly targeted, then the administration would have had no trouble whatsoever securing the authority to conduct those examinations under the present Foreign Intelligence Surveillance Act. But, as we know, they have chosen over and over again to violate that FISA law, and that has got to lead to the conclusion that their surveillance activities themselves are unlawful, and they are not in any way, as they describe them to be, narrowly targeted.

And then, of course, we have the story yesterday in USA Today, which talks about tens of millions of phone calls being placed into a data bank, and the extent of the monitoring of those phone calls is unknown. The fact is that the spying operation which this administration is engaged in is illegal. It goes outside of existing law, the Foreign Intelligence Surveillance Act, which, in fact, itself was a compromise of constitutional protections. But they have now gone outside of that FISA law, and they are engaging in various forms of surveillance activities within the United States of American citizens without any jurisdiction to do so and without any action by any court, which is required by the law and, of course, by the Constitution.

Amy Goodman: New York Congressmember Maurice Hinchey, I want to thank you for being with us. When we come back, we'll be joined by two reporters: one who has looked at NSA involvement with other corporations, outside telecom companies; and a writer for Wired magazine that has been on top of and breaking this story around the cooperation between the NSA and the telecom companies.

Amy Goodman: As we continue on the NSA spy scandal, we're joined by two reporters who have been following this story very closely. Ryan Singel is a contributing writer at Wired News. He joins us from San Francisco. We're joined on telephone by investigative journalist Tim Shorrock, who's covered the issue for The Nation magazine, among other places. Ryan Singel, talk about what you understand, how we came to understand the relationship between the telecom companies, particularly AT&T, and the government.

Ryan Singel: It's been kind of an ongoing story. In some ways, the USA Today report just fills out some details of what people have surmised has been going on over the last few months. Starting in December, the New York Times wrote the story that the NSA was eavesdropping on international calls that came in and out of the country, where one end of the conversation was ostensibly to someone that had ties to al-Qaeda or was suspected of ties to al-Qaeda.

Following that, the L.A. Times reported right before Christmas that AT&T had allowed the NSA access to a massive database system of its phone calls, a database it calls "Hawkeye," which, according to public information, contains something along the lines of 1.88 trillion calls, just the records of the phone calls. So then, with the USA Today piece that came out yesterday, we learned that Verizon and Bellsouth had also given ongoing access to their phone records to the NSA, though Qwest, interestingly, asked the NSA to go and get either a subpoena or a letter from the Attorney General before they would turn over their records, which the NSA declined to do.

Amy Goodman: Talk about the significance of this and the Electronic Frontier Foundation's lawsuit and what it's based on.

Ryan Singel: Sure. The significance of this is it kind of fills out the picture of what the administration is likely trying to do. Call records are sensitive data, but they're not nearly as sensitive as the contents of your communication, so you're starting -- you sort of see the call records as maybe the top of the funnel. So, it's very unclear how they're kind of funneling down. They might be starting with, say, all the phone numbers they know from people who are on the terrorist watch list.

So, take, you know, the 300,000 people on the terrorist watch list, take their phone numbers, see who they are calling and look for some patterns. Then, as you go through, then you might then look at the - when you see something interesting, you might then start to look at their overseas phone calls, and then from there, if you actually get something good, you might actually then - the administration might go to the FISA court, which would allow them to get not only the international phone calls, but also the contents of their domestic calls and their domestic emails and so forth.

The EFF lawsuit is fairly interesting. They are building on the work of the L.A. Times, but they also, as they were preparing their lawsuit, retired AT&T technician Mark Klein, who worked for the company for 22 years, approached them, came up to their offices and says, "I have some documents," and those documents remain under seal, but from what Mark Klein has said publicly, what he saw when he was working there, he saw AT&T build a secret room in its switching center in San Francisco, where they took portions of the fiber optic cable that carry internet traffic and shunted it into a private room, a little secret room that supposedly had a large data bank with some secret data mining hardware, and he said he also saw -- he had also heard that this had happened in other switching locations, and ostensibly the documents he turned over to EFF and which have been filed with the court, those are now - he wants those to be unsealed. We won't know if that's going to happen until Wednesday next week.

Amy Goodman: Could you explain exactly what Mark Klein said he saw, what this room was that was being built, who was allowed access to it within AT&T?

Ryan Singel: Sure. He said that it was a secret room on the fifth floor of a switching center here in downtown San Francisco. Fiber optic cable is not particularly easy to wiretap or eavesdrop on, as compared to the telephone network, which telephone networks have built in wiretapping capabilities. That's something the federal law requires. Fiber optic cables, you know, it's laser shooting through a little cable, so what they've done is they've - he saw the diagrams of how they switch things in.

And it wasn't just AT&T's internet connections, according to his statement. What he said he saw was that where AT&T's internet network connected up with other networks, say, Qwest's, for example, where you trade your traffic, that those links also got put into the cabinet. So it's not a huge room. You don't need quite the data bank of computers that you would need for the phone records, you know, when you're trying to keep 1.9 trillion phone records, you need a data center that's about as big as Google's. So the room is not particularly big. It wouldn't be a facility that would record - well, it's actually very unclear what the facility does, whether it records things there or if from there there's an uplink to the NSA, where they themselves would be able to do more data mining, but that room is particularly about internet traffic. Mark Klein did not say he saw anything about phone records or phone tapping.

Amy Goodman: We're talking to Ryan Singel, who's contributing writer to Wired News. What are the legal implications of these companies working with the government? I mean, obviously, they have a choice, as you point out. Qwest -- or I think a lot of people call it Quest -- said no.

Ryan Singel: Thank you for correcting me there. Legal implications? It's unclear, but federal law sets limits on what phone companies can do with your records. There are very hefty fines and even criminal penalties for turning over the contents of your communications or even records of your communications if you don't - in terms of turning it over to the government - if you don't have a subpoena or a letter from the Attorney General saying, "This is an approved program." So these fines could reach millions of dollars if, in fact, they didn't get a letter or they didn't have some other sort of authorization. So they may be on shaky grounds, and that was definitely a concern of Qwest. You know, they explicitly asked the NSA: "We want some legal justification," and according to the USA Today story, the NSA did not want to go through those procedures.

Amy Goodman: Ryan Singel writes for Wired News. We're also joined by Tim Shorrock, who is an independent journalist who has written about the NSA domestic surveillance program for The Nation magazine. Tim, you look back in history at the NSA's involvement with U.S. corporations. Can you talk about that?

Tim Shorrock: Well, since the end of World War II, since the NSA was founded, really, they've been doing this kind of surveillance of calls by American citizens, and back in the, you know, '50s, '60s and even into the '70s, when they did it, it wasn't that difficult to do it, because there was just a couple of companies, you know, AT&T, ITT we might remember, you know, Western Union. They went to those companies. They went to senior executives when they decided to do this, and they said, you know, "We'd like to listen to the phone calls that are going through your system. We'd like to read the cables that are going through Western Union," and that's exactly what they did. They went to high level people in the corporation, and then that person, that top executive, would talk to someone lower down in the chain, and the NSA would do the listening, would do the surveillance.

What the USA Today reported yesterday was that they're turning this awesome system they have worldwide to listen in on calls, and they're turning that whole system on to the United States. These are United States citizens within the United States they are putting into this database. This is what's really dangerous about this, and what the New York Times reported back in December was that they were listening to United States citizens talking to foreigners. Now, they're building a database out of U.S. citizens talking to U.S. citizens.

Amy Goodman: Although they're saying that it's not as if they're listening to the conversations. This is just taking down the numbers.

Tim Shorrock: Well, I think the whole purpose of data mining is to build profiles of people that you use for later surveillance. Like Ryan was just saying, they might build a record on someone and then go to the FISA court and tap their phone, after they decide that this person is a terrorist suspect or something that they're talking to. So, I, you know, take that with a grain of salt. Also, I think the record of mendacity of this Bush administration on any number of issues, particularly this war, is great, and it's very difficult to believe what they say on this.

They build these databases to create profiles. They use them to predict future activities, future calls people might make, future relationships people might make, and then they use that for other kinds of information, and, of course, the U.S. government, other databases have plenty of information on us as U.S. citizens, of, you know, buying habits. They can go to credit card records, see what you buy, all this kind of thing. And so, they can plug all this in, build profiles, and that's - you know, I think that's what's got Republicans and, you know, of course, Democrats, people of all stripes upset about this, is that this is a violation of FISA, it's a violation of our privacy laws and it's a violation of the Constitution.

Amy Goodman: And the history, Tim Shorrock, of other U.S. corporations?

Tim Shorrock: Well, I think, you know, we've seen - like I said, before there was primarily just - when this was first done, the telecom system wasn't like it is today, and so now we have an explosion of telecom companies like AT&T, a whole number of companies, including companies like Cingular Wireless that provide wireless services. Then we have these fiber optic cable companies that operate cables that go under the sea, which was just explained a few minutes ago are much more difficult to tap. That's where you need the cooperation of these companies.

Amy Goodman: And the connection between the executives of these companies and the military in this country?

Tim Shorrock: Well, the thing is that for the last ten years or so there's been quite a close relationship growing between telecom industry people and the government. As I reported in my Nation piece, there's a kind of murky organization called the National Security Telecommunications Advisory Committee which meets twice a year with people at the White House - the last meeting Dick Cheney was at their meeting - where they discuss, you know, issues of national security involving the telecom system.

I went on their website. Anybody can go onto it. It's ncs.gov, and you can go to the President's Committee part of the thing, and you can see who's on this committee, and, you know, coincidently, right now the Chair happens to be Mr. F. Duane Ackerman, the President, Chairman and C.E.O. of Bellsouth, which was the company named in the USA Today report yesterday. And so, you have executives from all these telecom companies around this, as well as other high-tech companies that are involved in telecom. Of course, the committee says they don't discuss surveillance or these kinds of issues, but, you know, they do meet, and they talk about national security.

Amy Goodman: And you write "Sprint Nextel is top-loaded with executives with long experience in national security and defense. Chairman and CEO Gary Forsee is a member of Bush's telecom council (as is Lawrence Babbio, the vice chairman and president of Verizon)."

Tim Shorrock: Right, and when I was working on this story, I went back into various testimony that some of these companies have given, and they all contract with the intelligence community to do various kinds of work, and, you know, they brag about it in their testimony. They say, you know, "We have a long record of cooperation with intelligence," and so on. So, these relationships go back many, many years, and I think what we have now is a group of people that meet, and they all have high - they all have security clearances to do this. So, you know, it so happens that Qwest also has a seat on this board. So, maybe - they're meeting actually this week, I believe, in Washington. They probably have some interesting conversations.

As I pointed out in my article in The Nation, there's also a lot of other contractors outside of telecom that we should be concerned about. These are the companies that actually do the data mining, that provide the software and technology that the NSA uses for their surveillance programs and for their analytical programs.

And I think it's important for people to remember that the NSA is just an awesome organization in terms of the power it has. People might remember Colin Powell's infamous testimony to the U.N. when he played - actually played intercepts that the U.S. had picked up of Iraqis talking about so-called weapons of mass destruction. Well, Bob Woodward talked about that incident, and when people at the NSA were watching Colin Powell's live testimony and those intercepts came on, they all applauded because their work was being recognized.

Well, that's pretty awesome. You can pick up a tiny bit of conversation and figure out the words that you're going to use out of thousands and thousands and thousands of words that are out there. That's how powerful this software is, and now they're using this to listen in on conversations, to monitor our calls, and that's what's dangerous.

Amy Goodman: Tim Shorrock I want to thank you for being with us, independent journalist who's written extensively about NSA domestic surveillance. He has written for The Nation magazine; and Ryan Singel, contributing writer to Wired News. Thank you both very much for joining us.

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