In the aftermath of the Sept. 11 attacks, the NSA said its collection of communications inside the United States was constrained by statute, according to a draft report by the agency’s inspector general in 2009, which was obtained by The Post and the Guardian. The NSA had legal authority to conduct electronic surveillance on foreigners overseas, but the agency was barred from collecting such information on cables as it flowed into and through the United States without individual warrants for each target.
“By 2001, Internet communications were used worldwide, underseas cables carried huge volumes of communications, and a large amount of the world’s communications passed through the United States,” the report said. “Because of language used in the [Foreign Intelligence Surveillance] Act in 1978, NSA was required to obtain court orders to target e-mail accounts used by non-U.S. persons outside the United States if it intended to intercept the communications at a webmail service within the United States. Large numbers of terrorists were using such accounts in 2001.”
As a result, after White House and CIA officials consulted with the NSA director, President George W. Bush, through a presidential order, expanded the NSA’s legal authority to collect communications inside the United States. The President’s Surveillance Program, the report said, “significantly increased [NSA’s] access to transiting foreign communications.”
Gen. Michael Hayden, then the NSA director, described that information as “the real gold of the program” that led to the identification of threats within the United States, according to the inspector general’s report.
Elements of the President’s Surveillance Program became public in 2005, when the New York Times reported the government’s ability to intercept e-mail and phone call content inside the United States without court warrants, sparking controversy. The FISA court began oversight of those program elements in 2007.
As these debates were playing out within the government, Team Telecom was making certain that surveillance capacity was not undermined by rising foreign ownership of the fiber-optic cables that the NSA was using.
The Global Crossing deal created particular concerns. The company had laid an extensive network of undersea cables in the world, but it went bankrupt in 2002 after struggling to handle more than $12 billion in debt.
Two companies, one from Singapore and a second from Hong Kong, struck a deal to buy a majority stake in Global Crossing, but U.S. government lawyers immediately objected as part of routine review of foreign investment into critical U.S. infrastructure.