Big Brother Is Listening
(Atlantic.com)


On the first Saturday in April of 2002, the temperature in Washington, D.C., had taken a dive. Tourists were bundled up against the cold, and the cherry trees along the Tidal Basin were fast losing their blossoms to the biting winds. But a few miles to the south, in the Dowden Terrace neighborhood of Alexandria, Virginia, the chilly weather was not deterring Royce C. Lamberth, a bald and burly Texan, from mowing his lawn. He stopped only when four cars filled with FBI agents suddenly pulled up in front of his house. The agents were there not to arrest him but to request an emergency court hearing to obtain seven top-secret warrants to eavesdrop on Americans.


As the presiding justice of the Foreign Intelligence Surveillance Court, known as the FISA court, Lamberth had become accustomed to holding the secret hearings in his living room. "My wife, Janis … has to go upstairs because she doesn't have a top-secret clearance," he noted in a speech to a group of Texas lawyers. "My beloved cocker spaniel, Taffy, however, remains at my side on the assumption that the surveillance targets cannot make her talk. The FBI knows Taffy well. They frequently play with her while I read some of those voluminous tomes at home." FBI agents will even knock on the judge's door in the middle of the night. "On the night of the bombings of the U.S. embassies in Africa, I started the first emergency hearings in my living room at 3:00 a.m.," recalled Lamberth. "From the outset, the FBI suspected bin Laden, and the surveillances I approved that night and in the ensuing days and weeks all ended up being critical evidence at the trial in New York.

"The FISA court is probably the least-known court in Washington," added Lamberth, who stepped down from it in 2002, at the end of his seven-year term, "but it has become one of the most important." Conceived in the aftermath of Watergate, the FISA court traces its origins to the mid-1970s, when the Senate's Church Committee investigated the intelligence community and the Nixon White House. The panel, chaired by Idaho Democrat Frank Church, exposed a long pattern of abuse, and its work led to bipartisan legislation aimed at preventing a president from unilaterally directing the National Security Agency or the FBI to spy on American citizens. This legislation, the 1978 Foreign Intelligence Surveillance Act, established the FISA court—made up of eleven judges handpicked by the chief justice of the United States—as a secret part of the federal judiciary. The court's job is to decide whether to grant warrants requested by the NSA or the FBI to monitor communications of American citizens and legal residents. The law allows the government up to three days after it starts eavesdropping to ask for a warrant; every violation of FISA carries a penalty of up to five years in prison. Between May 18, 1979, when the court opened for business, until the end of 2004, it granted 18,742 NSA and FBI applications; it turned down only four outright.

Such facts worry Jonathan Turley, a George Washington University law professor who worked for the NSA as an intern while in law school in the 1980s. The FISA "courtroom," hidden away on the top floor of the Justice Department building (because even its location is supposed to be secret), is actually a heavily protected, windowless, bug-proof installation known as a Sensitive Compartmented Information Facility, or SCIF. "When I first went into the FISA court as a lowly intern at the NSA, frankly, it started a lifetime of opposition for me to that court," Turley recently told a group of House Democrats looking into the NSA's domestic spying. "I was shocked with what I saw. I was convinced that the judge in that SCIF would have signed anything that we put in front of him. And I wasn't entirely sure that he had actually read what we put in front of him. But I remember going back to my supervisor at NSA and saying, 'That place scares the daylights out of me.'"

Lamberth bristles at any suggestion that his court routinely did the administration's bidding. "Those who know me know the chief justice did not put me on this court because I would be a rubber stamp for whatever the executive branch was wanting to do," he said in his speech. "I ask questions. I get into the nitty-gritty. I know exactly what is going to be done and why. And my questions are answered, in every case, before I approve an application."

It is true that the court has been getting tougher. From 1979 through 2000, it modified only two out of 13,087 warrant requests. But from the start of the Bush administration, in 2001, the number of modifications increased to 179 out of 5,645 requests. Most of those—173—involved what the court terms "substantive modifications."

This friction—and especially the requirement that the government show "probable cause" that the American whose communications they are seeking to target is connected in some way to a terrorist group—induced the administration to begin circumventing the court.

Concerned about preventing future 9/11-style attacks, President Bush secretly decided in the fall of 2001 that the NSA would no longer be bound by FISA. Although Judge Lamberth was informed of the president's decision, he was ordered to tell no one about it—not even his clerks or his fellow FISA-court judges.

...Tapping into the fiber-optic network that carries the nation's Internet communications is even easier, as much of the information transits through just a few "switches" (similar to the satellite downlinks). Among the busiest are MAE East (Metropolitan Area Ethernet), in Vienna, Virginia, and MAE West, in San Jose, California, both owned by Verizon. By accessing the switch, the NSA can see who's e-mailing with whom over the Internet cables and can copy entire messages. Last September, the Federal Communications Commission further opened the door for the agency. The 1994 Communications Assistance for Law Enforcement Act required telephone companies to rewire their networks to provide the government with secret access. The FCC has now extended the act to cover "any type of broadband Internet access service" and the new Internet phone services—and ordered company officials never to discuss any aspect of the program.

...Church, the Idaho Democrat who led the first probe into the National Security Agency, warned in 1975 that the agency's capabilities

could be turned around on the American people, and no American would have any privacy left, such [is] the capability to monitor everything: telephone conversations, telegrams, it doesn't matter. There would be no place to hide. If this government ever became a tyranny, if a dictator ever took charge in this country, the technological capacity that the intelligence community has given the government could enable it to impose total tyranny, and there would be no way to fight back, because the most careful effort to combine together in resistance to the government, no matter how privately it is done, is within the reach of the government to know. Such is the capacity of this technology.

It was those fears that caused Congress to enact the Foreign Intelligence Surveillance Act three years later. "I don't want to see this country ever go across the bridge," Senator Church said. "I know the capacity that is there to make tyranny total in America, and we must see to it that [the National Security Agency] and all agencies that possess this technology operate within the law and under proper supervision, so that we never cross over that abyss. That is the abyss from which there is no return."

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