Experts Call Spy Agency Practice an Eye-Opener
The National Security Agency, which eavesdrops on electronic communications around the world, receives thousands of requests each year from U.S. government officials seeking the names of Americans who show up in intercepted calls or e-mails -- and complies in the vast majority of cases without challenging the basis for the requests, current and former intelligence officials said.
The volume of requests and the NSA’s almost reflexive practice of disclosing Americans’ identities -- which under federal law are shielded unless there is a compelling intelligence reason for releasing a name -- have come as a surprise even to some members of Congress and government officials deeply involved in intelligence matters.
Officials from the NSA and other agencies say that the disclosures are proper and that there are significant protections against abuse. But the practice is coming under new scrutiny because of the recent disclosure that John R. Bolton, President Bush’s nominee for ambassador to the U.N., submitted numerous requests for the identities of U.S. officials whose conversations were recorded by the NSA while monitoring overseas targets.
During his confirmation hearings, Bolton -- the undersecretary of State for arms control and international security -- initially said he had made such requests “on a couple of occasions, maybe a few more.” His reason, he said, was that in evaluating intelligence reports, sometimes “it’s important to find out who is saying what to whom.”
The State Department subsequently revealed that Bolton had sought the names of Americans in at least 10 cases since 2001, and that the department as a whole had submitted about 400 requests during that period.
Those 400 inquiries represented only a “small percentage” of the total number fielded by the NSA, according to a government official with access to NSA data who spoke on condition of anonymity. Since January 2004, the NSA has received more than 3,000 requests, the official said, adding that “the magnitude is surprising” even to some intelligence experts.
“Significantly more than half” of the requests come from the CIA and other agencies in the U.S. intelligence community, the official said. The FBI and law enforcement agencies account for a tiny fraction of the total, while the rest come from policymakers such as Bolton and officials in other agencies.
The NSA declined to answer questions about the scope of the practice, refusing to say how many requests it fields, what percentage are granted or which agencies account for the largest number.
An official familiar with the NSA’s role defended its procedures, saying the agency is committed to protecting Americans’ privacy and that it does not reveal names unless doing so is necessary “to understand the foreign intelligence information [contained in an intercept] or to assess its significance.”
Still, the number of requests and apparent absence of external checks has alarmed some experts.
“It doesn’t mean that whenever somebody requests names that they are abusing the system,” said Steven Aftergood, an intelligence analyst at the independent Federation of American Scientists. “But if they were abusing the system, there might be no way to find out about it.”
Sen. John D. Rockefeller IV of West Virginia, ranking Democrat on the Senate Select Committee on Intelligence, last week asked the NSA to provide a statistical breakdown on its handling of requests.
“The senator wants a briefing on the whole process,” said Wendy Morigi, a spokeswoman for Rockefeller. She said Rockefeller also had “asked the NSA to provide additional information to help better understand the nature of the requests made by Bolton.”
The NSA is the largest -- and in some ways most secretive -- member of the U.S. intelligence community. Its eavesdropping operations are tightly governed by laws established to protect U.S. citizens from abuses that were exposed by congressional investigations in the 1970s. In general, the agency is barred from monitoring the conversations of U.S. citizens, even when they are overseas, without demonstrating to a special court that the individual is a foreign agent or suspected terrorist.
Even so, Air Force Gen. Michael V. Hayden, the outgoing director of the NSA, recently testified that “it is not uncommon for us to come across information to, from or about what we would call a protected person, a U.S. person” in the routine monitoring of foreign targets.
In those cases, Hayden said, the agency abides by “minimization procedures” in which the names of U.S. individuals are deleted from published intelligence reports -- typically replaced by a generic reference to “named U.S. person” or “named U.S. official.” Hayden was confirmed last week as deputy director for national intelligence, a new position overseeing all 15 U.S. spy agencies.
But government officials who have access to transcripts of the intercept reports -- including policymakers who do not work in intelligence agencies -- can ask for the names. And the agency has tended to comply on an almost automatic basis, a former NSA official said, typically scrutinizing requests only if a troubling pattern emerges.
“We typically would ask why it was necessary [to release a name], but we wouldn’t try to second-guess that,” said Stewart Baker, who served as the NSA’s general counsel from 1992 to 1994. “This is intelligence and it might be something you have to act on in 24 hours. You don’t say, ‘We’re going to adjudicate this.’ ”
Baker said that the volume of reports and requests probably has soared since Sept. 11, 2001, because combating terrorism was so dependent on tracking individuals.
But the system discourages abuse, he said, because government officials have to attach their names to each request and know that records of their inquiries could subsequently be scrutinized. “The most likely way in which a concern would be raised,” Baker said, “is if the NSA people who deal with a particular official start to say, ‘These requests are funny.’ ”
At the State Department, officials said that its requests for the disclosure of names had to be approved in advance by the intelligence and research bureau -- a branch that frequently sparred with Bolton over his hard-line estimates of the weapons capabilities of Cuba and other countries. If a request “passes the smell test,” one official said, the bureau forwards it to the NSA.
Given the volume of requests, even Bolton’s opponents acknowledge that the 10 he submitted does not appear to be an inordinate number. But after a scheduled Senate committee confirmation vote was derailed last week, Bolton’s record of NSA requests faces continued examination by Democrats who have called him a poor choice for the U.N. job.
One issue is whether Bolton, who had access to highly classified intelligence, had legitimate reasons for requesting names or was seeking information on Bush administration rivals.
The NSA routinely monitors the communications of foreign leaders and members of the diplomatic corps -- legitimate espionage targets who engage in frequent talks with American officials. U.S. intelligence officials stressed that intercepts of such conversations represent a minority. “In most cases, the protected U.S. identity is the subject of the conversation, [not] the communicant,” said the intelligence official familiar with NSA procedures.
Sometimes an American’s identity is revealed for his or her own protection. In testimony before Congress several years ago, Hayden cited a hypothetical example of two terrorists discussing a U.S. citizen they planned to harm. In such a case, Hayden said, “the name of the U.S. person would be retained and disseminated to appropriate law enforcement officials.”