The Terrorist Surveillance Program was an electronic surveillance program implemented by the

National Security Agency The National Security Agency (NSA) is an intelligence agency of the United States Department of Defense, under the authority of the director of national intelligence (DNI). The NSA is responsible for global monitoring, collection, and proces ...

(NSA) of the United States in the wake of the

September 11, 2001, attacks The September 11 attacks, also known as 9/11, were four coordinated Islamist terrorist suicide attacks by al-Qaeda against the United States in 2001. Hijackers in the September 11 attacks#Hijackers, Nineteen terrorists hijacked four com ...

. It was part of the President's Surveillance Program, which was in turn conducted under the overall umbrella of the War on Terrorism. The NSA, a

signals intelligence Signals intelligence (SIGINT) is the act and field of intelligence-gathering by interception of ''signals'', whether communications between people (communications intelligence—abbreviated to COMINT) or from electronic signals not directly u ...

agency, implemented the program to intercept

al Qaeda , image = Flag of Jihad.svg , caption = Jihadist flag, Flag used by various al-Qaeda factions , founder = Osama bin Laden{{Assassinated, Killing of Osama bin Laden , leaders = {{Plainlist, * Osama bin Lad ...

communications overseas where at least one party is not a U.S. person. In 2005, ''The New York Times'' disclosed that technical glitches resulted in some of the intercepts including communications which were "purely domestic" in nature, igniting the

NSA warrantless surveillance controversy The National Security Agency (NSA) is an intelligence agency of the United States Department of Defense, under the authority of the director of national intelligence (DNI). The NSA is responsible for global monitoring, collection, and proces ...

. Later works, such as

James Bamford James Bamford (born September 15, 1946) is an American author, journalist and documentary producer noted for his writing about United States intelligence agencies, especially the National Security Agency (NSA). ''The New York Times'' has calle ...

's '' The Shadow Factory'', described how the nature of the domestic surveillance was much, much more widespread than initially disclosed. In a 2011 ''New Yorker'' article, former NSA employee Bill Binney said that his colleagues told him that the NSA had begun storing billing and phone records from "everyone in the country." The program was named the Terrorist Surveillance Program by the

George W. Bush George Walker Bush (born July 6, 1946) is an American politician and businessman who was the 43rd president of the United States from 2001 to 2009. A member of the Bush family and the Republican Party (United States), Republican Party, he i ...

administration in response to the

following disclosure of the program. It is claimed that this program operated without the

judicial oversight Judicial review is a process under which a government's executive, legislative, or administrative actions are subject to review by the judiciary. In a judicial review, a court may invalidate laws, acts, or governmental actions that are inc ...

mandated by

Foreign Intelligence Surveillance Act The Foreign Intelligence Surveillance Act of 1978 (FISA, , ) is a Law of the United States, United States federal law that establishes procedures for the surveillance and collection of foreign intelligence on domestic soil.Alberto Gonzales informed U.S. Senate leaders by letter that the program would not be reauthorized by the president, but would be subjected to judicial oversight. "Any electronic surveillance that was occurring as part of the Terrorist Surveillance Program will now be conducted subject to the approval of the Foreign Intelligence Surveillance Court", according to his letter. On June 6, 2013, it was revealed that the Terrorist Surveillance Program was replaced by a new NSA program, referred to by its codeword,

PRISM PRISM is a code name for a program under which the United States National Security Agency (NSA) collects internet communications from various U.S. internet companies. The program is also known by the SIGAD . PRISM collects stored internet ...

Description

While no specific information has been offered, the Bush Administration has indicated that the wiretapping program targets communications where at least one party is outside the United States, and where it asserts that there are reasonable grounds to believe that one or more parties involved in the communication have ties to

. However, anonymous sources have come forward stating a small number of instances where purely domestic calls were intercepted. These sources said the NSA accidentally intercepted these calls, apparently caused by technical glitches in determining whether a communication was in fact "international", probably due to the use of international cell phones. The complete details of the program are not known, as the Bush Administration contended that security concerns did not allow it to release details, and limit judicial authorization and review. Implemented sometime after the

September 11, 2001 attacks The September 11 attacks, also known as 9/11, were four coordinated Islamist terrorist suicide attacks by al-Qaeda against the United States in 2001. Nineteen terrorists hijacked four commercial airliners, crashing the first two into ...

, the existence of the program was not made public until a 2005 ''The New York Times'' article. Additional details came to light in a May 2006 ''

USA Today ''USA Today'' (often stylized in all caps) is an American daily middle-market newspaper and news broadcasting company. Founded by Al Neuharth in 1980 and launched on September 14, 1982, the newspaper operates from Gannett's corporate headq ...

'' article. President Bush stated that he had reviewed and reauthorized the program approximately every 45 days since it was implemented. The leadership of the intelligence committees of the

House of Representatives House of Representatives is the name of legislative bodies in many countries and sub-national entities. In many countries, the House of Representatives is the lower house of a bicameral legislature, with the corresponding upper house often ...

and

Senate A senate is a deliberative assembly, often the upper house or chamber of a bicameral legislature. The name comes from the ancient Roman Senate (Latin: ''Senatus''), so-called as an assembly of the senior (Latin: ''senex'' meaning "the el ...

were briefed a number of times since initiation of the program. They were not, however, allowed to make notes or confer with others to determine the legal ramifications, or even to mention the existence of the program to the full membership of the intelligence committees. Further, the administration even refused to identify to the public which members of the committees were briefed; it has, however, provided a complete list of these members to the Senate Intelligence Committee.

Pen register tap

Prominent legal scholar and blogger Orin Kerr has argued that the program is probably not a wiretap or call database, but more likely to be a pen register (or tap-and-trace) tap. Unlike wiretaps, where the actual content of the call is monitored, or listened to, a pen register is a limited form of wiretap where only basic call data (

metadata Metadata (or metainformation) is "data that provides information about other data", but not the content of the data itself, such as the text of a message or the image itself. There are many distinct types of metadata, including: * Descriptive ...

) such as originating and receiving telephone numbers, time of call and duration are logged. Because of the limited nature of the data, frequently characterized as "outside the envelope", pen register taps have much lower legal standards than conventional wiretaps, and are not subject to Fourth Amendment protection. The only physical evidence of the NSA program are documents accidentally leaked to lawyers for an

al-Qaeda , image = Flag of Jihad.svg , caption = Jihadist flag, Flag used by various al-Qaeda factions , founder = Osama bin Laden{{Assassinated, Killing of Osama bin Laden , leaders = {{Plainlist, * Osama bin Lad ...

front group the Al-Haramain Foundation. These documents contain only logs of phone calls being placed, but not actual transcripts, suggesting the wiretapping program is merely a pen-register tap.

Call database

On May 10, 2006, ''

'' reported that the NSA has had a separate, previously undisclosed program in place since 9/11 to build a database of information about calls placed within the United States, including both phone numbers and the date and duration of the calls. According to the article, phone companies

AT&T AT&T Inc., an abbreviation for its predecessor's former name, the American Telephone and Telegraph Company, is an American multinational telecommunications holding company headquartered at Whitacre Tower in Downtown Dallas, Texas. It is the w ...

Verizon Verizon Communications Inc. ( ), is an American telecommunications company headquartered in New York City. It is the world's second-largest telecommunications company by revenue and its mobile network is the largest wireless carrier in the ...

, and Bell South disclosed the records to the NSA, while Qwest did not. The article quotes an unnamed source that "it's the largest database ever assembled in the world". Most reports indicate that this program is different from the Terrorist Surveillance Program. The administration has not confirmed the existence of this aspect of the program.

Undersea cable tapping

Both the U.S. government and also spy organizations in the U.K. have tapped "the spine of the internet", a transatlantic Ethernet cable, using submarines to access it and put on equipment to commandeer as much information as they wish to apply special searches in order to narrow down potential terrorist activity. With current laws in the U.S. (as of 2013), a warrant is not necessary if the government's surveillance is 'reasonably believed' to be overseas. "A new set of documents purportedly lifted from the U.S. National Security Agency suggests that American spies have burrowed deep into the Middle East's financial network, apparently compromising the Dubai office of the anti-money laundering and financial services firm EastNets."

News reporting

December 16, 2005

On December 16, 2005, ''The New York Times'' printed a story asserting that following 9/11, "President Bush secretly authorized the National Security Agency to eavesdrop on Americans and others inside the United States to search for evidence of terrorist activity without the court-approved warrants ordinarily required for domestic spying" as part of the War on Terror.

Under a presidential order signed in 2002, the intelligence agency monitored the international telephone calls and international e-mail messages of hundreds, perhaps thousands, of people inside the United States without warrants over the past three years in an effort to track possible "dirty numbers" linked to Al Qaeda, the officials said. The agency, they said, still seeks warrants to monitor entirely domestic communications.

According to the ''Times'':

The White House asked ''The New York Times'' not to publish this article, arguing that it could jeopardize continuing investigations and alert terrorists that they might be under scrutiny. After meeting with senior administration officials to hear their concerns, the newspaper delayed publication for a year to conduct additional reporting. Some information that administration officials argued could be useful to terrorists has been omitted.

White House press secretary

Scott McClellan Scott McClellan (born February 14, 1968) is the former White House Press Secretary (2003–06) for President of the United States, President George W. Bush, he was the 24th person to hold this post. He was also the author of a controversial No. 1 ...

refused to comment on the story on December 16, exclaiming "there's a reason why we don't get into discussing ongoing intelligence activities, because it could compromise our efforts to prevent attacks from happening." The next morning, the president gave a live eight-minute television address instead of his normal weekly radio address, during which he addressed the wiretap story directly:

I authorized the National Security Agency, consistent with U.S. law and the Constitution, to intercept the international communications of people with known links to al Qaeda and related terrorist organizations. Before we intercept these communications, the government must have information that establishes a clear link to these terrorist networks.

In a radio address on December 18, President Bush implied he had approved the tracing of domestic calls originating or terminating overseas, stating the program would "make it more likely that killers like these 9/11 hijackers will be identified and located in time." He forcefully defended his actions as "crucial to our national security" and claimed that the American people expected him to "do everything in my power, under our laws and Constitution, to protect them and their civil liberties" as long as there was a "continuing threat" from al Qaeda. The president also had harsh words for those who broke the story, saying that they acted illegally. "The unauthorized disclosure of this effort damages our national security and puts our citizens at risk", he said. The following day in a press conference with the media, Bush reiterated his support for domestic spying. The FBI began an investigation into the leaks surrounding this program in 2005, with 25 agents and 5 prosecutors on the case.

January 1, 2006

On January 1, 2006, ''The New York Times'' printed a story revealing that aspects of the program were suspended for weeks in 2004. The ''Times'' story said the U.S. Attorney General's office, then headed by

John Ashcroft John David Ashcroft (born May 9, 1942) is an American lawyer, Lobbying, lobbyist, and former politician who served as the 79th United States attorney general under President George W. Bush from 2001 to 2005. A Republican Party (United States), R ...

, balked in 2004 when asked to give approval of the program, and that then Deputy Attorney General James B. Comey "played a part in overseeing the reforms that were put in place in 2004." According to the ''Times'', however, the oversight by the NSA shift supervisor continued to be unfettered by any pre-approval requirement. The story also pointed out that even some NSA employees thought that the warrantless surveillance program was illegal. ''The New York Times'' had withheld the article from publication for over a year. Both editor-in-chief Bill Keller and publisher Arthur Sulzberger Jr. were summoned by the president and White House officials to persuade the paper not to publish the story. The ''Times'' ran the story shortly before it would have been scooped by publication of its own reporter's book. The ''Times'' ombudsman speculates that the reason the backstory isn't being revealed is to protect sources. Russ Tice claims he was a source for the story.

January 3, 2006

On January 3, the news program ''

Democracy Now! ''Democracy Now!'' is an hour-long TV, radio, and Internet news program based in Manhattan and hosted by journalists Amy Goodman (who also acts as the show's executive producer), Juan González, and Nermeen Shaikh. The show, which airs live ...

'' ran a story that, according to NSA whistleblower

Russell Tice Russell D. Tice (born 1961) is a former intelligence analyst for the United States Air Force, Office of Naval Intelligence, Defense Intelligence Agency (DIA), and National Security Agency (NSA). In December, 2005, Tice helped spark a national con ...

, the number of Americans affected by the range of NSA surveillance programs could be in the millions if the full extent of secret NSA programs is considered. The story was picked up by

ABC News ABC News most commonly refers to: * ABC News (Australia), a national news service of the Australian Broadcasting Corporation * ABC News (United States), a news-gathering and broadcasting division of the American Broadcasting Company ABC News may a ...

on January 10:

Tice says the technology exists to track and sort through every domestic and international phone call as they are switched through centers, such as one in New York, and to search for key words or phrases that a terrorist might use. "If you picked the word 'jihad' out of a conversation," Tice said, "the technology exists that you focus in on that conversation, and you pull it out of the system for processing." According to Tice, intelligence analysts use the information to develop graphs that resemble spiderwebs linking one suspect's phone number to hundreds or even thousands more. "That would mean for most Americans that if they conducted, or you know, placed an overseas communication, more than likely they were sucked into that vacuum," Tice said.

January 17, 2006

On January 17, ''The New York Times'' reported that "more than a dozen current and former law-enforcement and counterterrorism officials", some of whom knew of the domestic spying program, "said the torrent of tips rom NSA wiretappingled them to few potential terrorists inside the country they did not know of from other sources and diverted agents from counterterrorism work they viewed as more productive".

February 5, 2006

On February 5, ''The Washington Post'' noted that "fewer than 10 U.S. citizens or residents a year, according to an authoritative account, have aroused enough suspicion during warrantless eavesdropping to justify interception of their (purely) domestic calls, as well. That step still requires a warrant from a federal judge, for which the government must supply evidence of probable cause." Also in the article: "The minimum legal definition of probable cause, said a government official who has studied the program closely, is that evidence used to support eavesdropping ought to turn out to be 'right for one out of every two guys at least.' Those who devised the surveillance plan, the official said, 'knew they could never meet that standard—that's why they didn't go through'" the

Foreign Intelligence Surveillance Court The United States Foreign Intelligence Surveillance Court (FISC), also called the FISA Court, is a U.S. federal court established under the Foreign Intelligence Surveillance Act of 1978 (FISA) to oversee requests for surveillance warrants ag ...

. Also on February 5, ''USA Today'' ran a story reporting that according to seven telecommunications executives, the NSA had secured the cooperation of the main telecommunications companies in charge of international phone calls, including

, MCI, and Sprint, in its efforts to eavesdrop without warrants on international calls.

May 22, 2006

In its issue dated May 22, 2006, ''

Newsweek ''Newsweek'' is an American weekly news magazine based in New York City. Founded as a weekly print magazine in 1933, it was widely distributed during the 20th century and has had many notable editors-in-chief. It is currently co-owned by Dev P ...

'' put the controversy on the cover of its magazine and ran several stories inside summarizing what is known and speculations about it. On May 22, 2006, ''

Wired Magazine ''Wired'' is a bi-monthly American magazine that focuses on how emerging technologies affect culture, the economy, and politics. It is published in both print and Online magazine, online editions by Condé Nast. The magazine has been in public ...

'' released the text of AT&T documents, currently under court seal in the EFF case, that allegedly describe NSA wiretap arrangements.

Legality of the program

The NSA's electronic surveillance operations are governed primarily by four legal sources: the

Fourth Amendment to the U.S. Constitution The Fourth Amendment (Amendment IV) to the United States Constitution is part of the Bill of Rights. It prohibits unreasonable searches and seizures and sets requirements for issuing warrants: warrants must be issued by a judge or magistrat ...

; the Foreign Intelligence Surveillance Act of 1978 (FISA);

Executive Order 12333 Executive Order 12333, signed on December 4, 1981 by U.S. president Ronald Reagan, was an executive order intended to extend powers and responsibilities of U.S. intelligence agencies and direct the leaders of U.S. federal agencies to co-operat ...

; and United States Signals Intelligence Directive 18. The primary legal challenge to the program currently in US courts is the suit brought by the Al-Haramain Foundation. All other challenges to the program have been dismissed by U.S. courts. Critics of the Bush administration have regularly compared the current NSA surveillance program to those of

Richard Nixon Richard Milhous Nixon (January 9, 1913April 22, 1994) was the 37th president of the United States, serving from 1969 until Resignation of Richard Nixon, his resignation in 1974. A member of the Republican Party (United States), Republican ...

during the

Vietnam War The Vietnam War (1 November 1955 – 30 April 1975) was an armed conflict in Vietnam, Laos, and Cambodia fought between North Vietnam (Democratic Republic of Vietnam) and South Vietnam (Republic of Vietnam) and their allies. North Vietnam w ...

(i.e., Project Shamrock, Project Minaret,

Church committee The Church Committee (formally the United States Senate Select Committee to Study Governmental Operations with Respect to Intelligence Activities) was a US Senate select committee in 1975 that investigated abuses by the Central Intelligence ...

). However, these programs occurred prior to the 1978

filed an ultimately unsuccessful lawsuit against the program in 2006 on behalf of journalists, scholars, and lawyers. In the initial trial, U.S. District Judge Anna Diggs Taylor on August 17, 2006, ruled the program was unconstitutional and imposed an

injunction An injunction is an equitable remedy in the form of a special court order compelling a party to do or refrain from doing certain acts. It was developed by the English courts of equity but its origins go back to Roman law and the equitable rem ...

against it. The Justice Department filed an appeal within hours of the ruling and requested a stay of the injunction pending appeal. While opposing the stay, the ACLU agreed to delay implementation of the injunction until September 7 to allow time for the judge to hear the appeal. On appeal, the U.S. Court of Appeals for the Sixth Circuit dismissed the case without addressing the merits of the claims, holding 2–1 that the plaintiffs lacked

standing Standing, also referred to as orthostasis, is a position in which the body is held in an upright (orthostatic) position and supported only by the feet. Although seemingly static, the body rocks slightly back and forth from the ankle in the ...

to bring the suit.

Controversy

When classified details were leaked to the press at some point in 2005, critics began to question the legality of the program. The crux of the debate over legality is twofold, the main issues being #Are the parameters of this program subject to FISA and #If so, did the president have authority, inherent or otherwise, to bypass FISA. FISA explicitly covers "electronic surveillance for foreign intelligence information" performed within the United States, and there is no court decision supporting the theory that the president's constitutional authority allows him to override statutory law. This was emphasized by fourteen constitutional law scholars, including the dean of

Yale Law School Yale Law School (YLS) is the law school of Yale University, a Private university, private research university in New Haven, Connecticut. It was established in 1824. The 2020–21 acceptance rate was 4%, the lowest of any law school in the United ...

and the former deans of

Stanford Law School Stanford Law School (SLS) is the Law school in the United States, law school of Stanford University, a Private university, private research university near Palo Alto, California. Established in 1893, Stanford Law had an acceptance rate of 6.28% i ...

and the

University of Chicago Law School The University of Chicago Law School is the Law school in the United States, law school of the University of Chicago, a Private university, private research university in Chicago, Illinois. It employs more than 180 full-time and part-time facul ...

The argument that conduct undertaken by the commander in chief that has some relevance to 'engaging the enemy' is immune from congressional regulation finds no support in, and is directly contradicted by, both case law and historical precedent. ''Every'' time the Supreme Court has confronted a statute limiting the commander in chief's authority, it has upheld the statute. No precedent holds that the president, when acting as commander in chief, is free to disregard an Act of Congress, much less a ''criminal statute'' enacted by Congress, that was designed specifically to restrain the president as such.(Emphasis in original.)

The

American Bar Association The American Bar Association (ABA) is a voluntary association, voluntary bar association of lawyers and law students in the United States; national in scope, it is not specific to any single jurisdiction. Founded in 1878, the ABA's stated acti ...

, the

Congressional Research Service The Congressional Research Service (CRS) is a public policy research institute of the United States Congress. Operating within the Library of Congress, it works primarily and directly for members of Congress and their committees and staff on a ...

, former congressional representative of New York Elizabeth Holtzman, former White House Counsel

John Dean John Wesley Dean III (born October 14, 1938) is a disbarred American attorney who served as White House Counsel for U.S. President Richard Nixon from July 1970 until April 1973. Dean is known for his role in the cover-up of the Watergate scan ...

, and lawyer/author Jennifer van Bergen have also criticized the administration's justification for conducting electronic surveillance within the U.S. without first obtaining warrants as contrary to current U.S. law. President Bush's former Assistant Deputy Attorney General for national security issues, David Kris, and five former

FISC Under the Merovingians and Carolingians, the fisc (from Latin '' fiscus,'' whence we derive "fiscal") applied to the royal demesne which paid taxes, entirely in kind, from which the royal household was meant to be supported, though it rarely was. ...

judges, one of whom resigned in protest, have also voiced their doubts as to the legality of a program bypassing FISA Stanford's Chip Pitts has usefully distinguished between the core NSA eavesdropping program, the data mining program, and the use of National Security Letters to clarify that each continues to present serious legal problems despite the government's supposedly bringing them within the relevant laws.

References

External links

The Program, by Laura Poitras
''

The New York Times ''The New York Times'' (''NYT'') is an American daily newspaper based in New York City. ''The New York Times'' covers domestic, national, and international news, and publishes opinion pieces, investigative reports, and reviews. As one of ...

'', August 22, 2012.
Giving In to the Surveillance State, by Shane Harris
''

'', August 22, 2012.
WhiteHouse.gov:
"Setting the Record Straight"

pp. 109–125 in The Cambridge Handbook of Social Problems, Volume 2, edited by A. Javier Treviño. New York: Cambridge University Press. * * * * * {{Portal bar, United States, Politics Counterterrorism in the United States Counterterrorism intelligence George W. Bush administration controversies National Security Agency American secret government programs Surveillance War on terror