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NSA Spying Part of Broader Effort Intelligence Chief Says Bush Authorized Secret Activities Under One Order
By Dan Eggen Washington Post Staff Writer Wednesday, August 1, 2007; A01
The Bush administration's chief intelligence official said yesterday that President Bush authorized a series of secret surveillance activities under a single executive order in late 2001. The disclosure makes clear that a controversial National Security Agency program was part of a much broader operation than the president previously described.
The disclosure by Mike McConnell, the director of national intelligence, appears to be the first time that the administration has publicly acknowledged that Bush's order included undisclosed activities beyond the warrantless surveillance of e-mails and phone calls that Bush confirmed in December 2005.
In a letter to Sen. Arlen Specter (R-Pa.), McConnell wrote that the executive order following the Sept. 11, 2001, attacks included "a number of . . . intelligence activities" and that a name routinely used by the administration -- the Terrorist Surveillance Program -- applied only to "one particular aspect of these activities, and nothing more."
"This is the only aspect of the NSA activities that can be discussed publicly, because it is the only aspect of those various activities whose existence has been officially acknowledged," McConnell said.
The program that Bush announced was put under a court's supervision in January, but the administration now wants congressional approval to do much of the same surveillance without a court order.
McConnell's letter was aimed at defending Attorney General Alberto R. Gonzales from allegations by Democrats that he may have committed perjury by telling Congress that no legal objections were raised about the TSP. Gonzales said a legal fight in early 2004 was focused on "other intelligence activities" than those confirmed by Bush, but he never connected those to Bush's executive order.
But in doing so, McConnell's letter also underscored that the full scope of the NSA's surveillance program under Bush's order has not been revealed. The TSP described by Bush and his aides allowed the interception of communication between the United States and other countries where one party is believed to be tied to al-Qaeda, so other types of communication or data are presumably being collected under the parts of the wider NSA program that remain hidden.
News reports over the past 20 months have detailed a range of activities linked to the program, including the use of data mining to identify surveillance targets and the participation of telecommunication companies in turning over millions of phone records. The administration has not publicly confirmed such reports.
A spokesman for McConnell declined to elaborate on the letter. The Justice Department also declined to comment.
Specter was noncommittal yesterday on whether McConnell's explanation resolved his questions about the accuracy of Gonzales's previous testimony to the Senate Judiciary Committee, where Specter is the ranking Republican. Specter said he was waiting for a separate letter from the attorney general to provide additional clarification.
"If he doesn't have a plausible explanation, then he hasn't leveled with the committee," Specter said on CNN. Justice spokesman Brian Roehrkasse said that "the department will continue to work with Senator Specter to address his concerns" but declined to comment further.
McConnell's letter leaves maneuvering room for both sides in the political fracas over whether Gonzales has been truthful in his testimony. On the one hand, the NSA was clearly engaged in activities that were distinct enough to require different "legal bases" authorizing their use, according to McConnell's account.
"If you think about it technically, it is pretty clear that the NSA desk that does communications intercepts is separate from the desk that does data mining of call records," said Kim Taipale, executive director of the Center for Advanced Studies in Science and Technology Policy, a New York-based nonprofit group. "Those are separate processes, and to think of them as separate programs is not a stretch."
On the other hand, the activities were authorized under a single presidential order and were all part of an NSA effort to gather communications about suspected terrorists after the Sept. 11 attacks. That helps explain why many Democratic lawmakers and administration officials -- including FBI Director Robert S. Mueller III -- viewed the wiretapping as part of a larger NSA program, rather than a separate effort, as Gonzales's testimony has suggested.
"Both sides have a legitimate case, if you want to be legalist about it," Taipale said.
The 45-day reauthorization of a single presidential order was probably a "bureaucratic convenience" that eliminated the need to issue multiple authorizations, he added.
Kate Martin, executive director of the Center for National Security Studies, said the new disclosures show that Gonzales and other administration officials have "repeatedly misled the Congress and the American public" about the extent of NSA surveillance efforts.
"They have repeatedly tried to give the false impression that the surveillance was narrow and justified," Martin said. "Why did it take accusations of perjury before the DNI disclosed that there is indeed other, presumably broader and more questionable, surveillance?"
Charles E. Schumer (N.Y.), who was among a group of four Democratic senators who called last week for a perjury investigation of Gonzales, said: "The question of whether Attorney General Gonzales perjured himself looms as large now as it did before this letter.
"This letter is no vindication of the attorney general," he said.
Staff writer Joby Warrick and staff researcher Madonna Lebling contributed to this report.

FBI taps cell phone mic as eavesdropping tool

The FBI appears to have begun using a novel form of electronic surveillance in criminal investigations: remotely activating a mobile phone's microphone and using it to eavesdrop on nearby conversations.
The technique is called a "roving bug," and was approved by top U.S. Department of Justice officials for use against members of a New York organized crime family who were wary of conventional surveillance techniques such as tailing a suspect or wiretapping him.
Nextel cell phones owned by two alleged mobsters, John Ardito and his attorney Peter Peluso, were used by the FBI to listen in on nearby conversations. The FBI views Ardito as one of the most powerful men in the Genovese family, a major part of the national Mafia.
The surveillance technique came to light in an opinion published this week by U.S. District Judge Lewis Kaplan. He ruled that the "roving bug" was legal because federal wiretapping law is broad enough to permit eavesdropping even of conversations that take place near a suspect's cell phone.
Kaplan's opinion said that the eavesdropping technique "functioned whether the phone was powered on or off." Some handsets can't be fully powered down without removing the battery; for instance, some Nokia models will wake up when turned off if an alarm is set.
While the Genovese crime family prosecution appears to be the first time a remote-eavesdropping mechanism has been used in a criminal case, the technique has been discussed in security circles for years.
The U.S. Commerce Department's security office warns that "a cellular telephone can be turned into a microphone and transmitter for the purpose of listening to conversations in the vicinity of the phone." An article in the Financial Times last year said mobile providers can "remotely install a piece of software on to any handset, without the owner's knowledge, which will activate the microphone even when its owner is not making a call."
Nextel and Samsung handsets and the Motorola Razor are especially vulnerable to software downloads that activate their microphones, said James Atkinson, a counter-surveillance consultant who has worked closely with government agencies. "They can be remotely accessed and made to transmit room audio all the time," he said. "You can do that without having physical access to the phone."
Because modern handsets are miniature computers, downloaded software could modify the usual interface that always displays when a call is in progress. The spy ware could then place a call to the FBI and activate the microphone--all without the owner knowing it happened. (The FBI declined to comment on Friday.)
"If a phone has in fact been modified to act as a bug, the only way to counteract that is to either have a bug sweeper follow you around 24-7, which is not practical, or to peel the battery off the phone," Atkinson said. Security-conscious corporate executives routinely remove the batteries from their cell phones, he added.
FBI's physical bugs discoveredThe FBI's Joint Organized Crime Task Force, which includes members of the New York police department, had little luck with conventional surveillance of the Genovese family. They did have a confidential source who reported the suspects met at restaurants including Brunello Trattoria in New Rochelle, N.Y., which the FBI then bugged.
But in July 2003, Ardito and his crew discovered bugs in three restaurants, and the FBI quietly removed the rest. Conversations recounted in FBI affidavits show the men were also highly suspicious of being tailed by police and avoided conversations on cell phones whenever possible.
That led the FBI to resort to "roving bugs," first of Ardito's Nextel handset and then of Peluso's. U.S. District Judge Barbara Jones approved them in a series of orders in 2003 and 2004, and said she expected to "be advised of the locations" of the suspects when their conversations were recorded.
Details of how the Nextel bugs worked are sketchy. Court documents, including an affidavit (p1) and (p2) prepared by Assistant U.S. Attorney Jonathan Kolodner in September 2003, refer to them as a "listening device placed in the cellular telephone." That phrase could refer to software or hardware.
One private investigator interviewed by CNET News.com, Skip Porteous of Sherlock Investigations in New York, said he believed the FBI planted a physical bug somewhere in the Nextel handset and did not remotely activate the microphone.
"They had to have physical possession of the phone to do it," Porteous said. "There are several ways that they could have gotten physical possession. Then they monitored the bug from fairly near by."
But other experts thought microphone activation is the more likely scenario, mostly because the battery in a tiny bug would not have lasted a year and because court documents say the bug works anywhere "within the United States"--in other words, outside the range of a nearby FBI agent armed with a radio receiver.
In addition, a paranoid Mafioso likely would be suspicious of any ploy to get him to hand over a cell phone so a bug could be planted. And Kolodner's affidavit seeking a court order lists Ardito's phone number, his 15-digit International Mobile Subscriber Identifier, and lists Nextel Communications as the service provider, all of which would be unnecessary if a physical bug were being planted.
A BBC article from 2004 reported that intelligence agencies routinely employ the remote-activation method. "A mobile sitting on the desk of a politician or businessman can act as a powerful, undetectable bug," the article said, "enabling them to be activated at a later date to pick up sounds even when the receiver is down."
For its part, Nextel said through spokesman Travis Sowders: "We're not aware of this investigation, and we weren't asked to participate."
Other mobile providers were reluctant to talk about this kind of surveillance. Verizon Wireless said only that it "works closely with law enforcement and public safety officials. When presented with legally authorized orders, we assist law enforcement in every way possible."
A Motorola representative said that "your best source in this case would be the FBI itself." Cingular, T-Mobile, and the CTIA trade association did not immediately respond to requests for comment.
Mobsters: The surveillance vanguardThis isn't the first time the federal government has pushed at the limits of electronic surveillance when investigating reputed mobsters.
In one case involving Nicodemo S. Scarfo, the alleged mastermind of a loan shark operation in New Jersey, the FBI found itself thwarted when Scarfo used Pretty Good Privacy software (PGP) to encode confidential business data.
So with a judge's approval, FBI agents repeatedly snuck into Scarfo's business to plant a keystroke logger and monitor its output.
Like Ardito's lawyers, Scarfo's defense attorneys argued that the then-novel technique was not legal and that the information gleaned through it could not be used. Also like Ardito, Scarfo's lawyers lost when a judge ruled in January 2002 that the evidence was admissible.
This week, Judge Kaplan in the southern district of New York concluded that the "roving bugs" were legally permitted to capture hundreds of hours of conversations because the FBI had obtained a court order and alternatives probably wouldn't work.
The FBI's "applications made a sufficient case for electronic surveillance," Kaplan wrote. "They indicated that alternative methods of investigation either had failed or were unlikely to produce results, in part because the subjects deliberately avoided government surveillance."
Bill Stollhans, president of the Private Investigators Association of Virginia, said such a technique would be legally reserved for police armed with court orders, not private investigators.
There is "no law that would allow me as a private investigator to use that type of technique," he said. "That is exclusively for law enforcement. It is not allowable or not legal in the private sector. No client of mine can ask me to overhear telephone or strictly oral conversations."
Surreptitious activation of built-in microphones by the FBI has been done before. A 2003 lawsuit revealed that the FBI was able to surreptitiously turn on the built-in microphones in automotive systems like General Motors' On Star to snoop on passengers' conversations.
When FBI agents remotely activated the system and were listening in, passengers in the vehicle could not tell that their conversations were being monitored.
Malicious hackers have followed suit. A report last year said Spanish authorities had detained a man who wrote a Trojan horse that secretly activated a computer's video camera and forwarded him the recordings.