Secret Surveillance May Have Occurred Before Authorization

By Dafna Linzer
Washington Post Staff Writer
Wednesday, January 4, 2006

Even before the White House formally authorized a secret program to spy on U.S. citizens without obtaining warrants, such eavesdropping was occurring and some of the information was being shared with the FBI, declassified correspondence and interviews with congressional and intelligence officials indicate.

On Oct. 1, 2001, three weeks after the Sept. 11 terrorist attacks, Gen. Michael V. Hayden, who was running the National Security Agency at the time, told the House intelligence committee that the agency was broadening its surveillance authorities, according to a newly released letter sent to him that month by Minority Leader Nancy Pelosi (Calif.). Pelosi, the ranking Democrat on the committee, raised concerns in the letter, which was declassified with several redactions and made public yesterday by her staff.

"I am concerned whether and to what extent the National Security Agency has received specific presidential authorization for the operations you are conducting," Pelosi wrote on Oct. 11, 2001. The substance of Hayden's response one week later, on Oct. 17, 2001, was redacted.

The secret NSA program, developed in the immediate aftermath of the attacks on Washington and New York as a way to find any hidden al Qaeda operatives still in the United States, was authorized in October 2001, a senior administration official said.

The president and senior aides have publicly discussed various aspects of the program, but neither the White House, the NSA nor the office of the director of national intelligence would say what day the president authorized it. Don Weber, an NSA spokesman, said in an e-mail yesterday that it would be inappropriate to "discuss details which could potentially cause harm to the safety of our nation."

Pelosi's letter suggested that she and others on the committee first heard about expanded work by the NSA on Oct. 1, 2001, when Hayden briefed them on NSA activities.

"During your appearance before the committee," she wrote, "you indicated that you had been operating since the September 11 attacks with an expansive view of your authorities with respect to the conduct of electronic surveillance." The letter, while redacted in parts concerned with surveillance, made clear that the agency was "forwarding" intercepts and other collected information to the FBI. Two sources familiar with the NSA program said Pelosi was directly referring to information collected without a warrant on U.S. citizens or residents.

An intelligence official close to Hayden said that his appearance on Oct. 1, 2001, before the House committee had been to discuss Executive Order 12333, and not the new NSA program.

The order, signed by President Ronald Reagan in 1981, gave guidance and specific instructions about the intelligence activities that the U.S. government could engage in. It specifically prohibited domestic surveillance for intelligence purposes without a warrant "unless the Attorney General has determined in each case that there is probable cause to believe that the technique is directed against a foreign power or an agent of a foreign power."

The official said that Pelosi's concerns had been answered in writing and again several weeks later during a private briefing.

The NSA program operated in secret until it was made public in news accounts last month. Since then, President Bush and his advisers have defended it as legal and necessary to protect the country against future attacks and have said Congress was repeatedly consulted. But Democrats, some Republicans and constitutional law experts have raised concerns about whether Bush overstepped his constitutional authority and violated privacy laws meant to guard against the government spying on its own citizens without a warrant. The NSA's work, which is normally restricted to eavesdropping overseas, also angered judges on a special court that administers warrants for secret investigations.

New York Times reporter James Risen, who, with a colleague, was the first to write about the NSA program, released a book yesterday that includes details about the program and other intelligence issues facing the Bush administration.

Jennifer Millerwise Dyck, spokeswoman for the CIA, said the book contains inaccuracies about the CIA's work on Iran's nuclear program and Iraq, but she would not provide details.

Staff writer Carol D. Leonnig and researcher Julie Tate contributed to this report.

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