Media Matters published a very good Top 12 Media Myths And Falsehoods On The Bush Administration'S Spying Scandal. One of their listed myths calls to question my post on showing evidence Clinton administration conducted domestic eavesdropping. Let me address their assertions.
Conservative media figures have claimed that during the Clinton administration, the NSA used a program known as Echelon to monitor the domestic communications of United States citizens without a warrant. While most have offered no evidence to support this assertion, NewsMax, a right-wing news website, cited a February 27, 2000, CBS News 60 Minutes report that correspondent Steve Kroft introduced by asserting: "If you made a phone call today or sent an email to a friend, there's a good chance what you said or wrote was captured and screened by the country's largest intelligence agency. The top-secret Global Surveillance Network is called Echelon, and it's run by the National Security Agency." NewsMax used the 60 Minutes segment to call into question The New York Times' December 16 report that Bush's "decision to permit some eavesdropping inside the country without court approval was a major shift in American intelligence-gathering practices, particularly for the National Security Agency, whose mission is to spy on communications abroad."
On December 19, Limbaugh read the NewsMax article on his nationally syndicated radio show. Limbaugh told listeners that Bush's surveillance program "started in previous administrations. You've heard of the NSA massive computer-gathering program called Echelon. 60 Minutes did a story on this in February of 2000. Bill Clinton still in office." The Echelon claim has also been repeated by Wall Street Journal columnist John Fund and radio host G. Gordon Liddy.
The 60 Minutes report appears to have been based largely on anecdotal evidence provided by a former Canadian intelligence agent and a former intelligence employee who worked at Menwith Hill, the American spy station in Great Britain, in 1979. In addition, the report contained footage of an assertion by then-Rep. Bob Barr (R-GA) that "Project Echelon engages in the interception of literally millions of communications involving United States citizens." But the report also included comments from then-chairman of the House Permanent Select Committee on Intelligence Rep. Porter Goss (R-FL), who, Kroft reported, "still believes ... that the NSA does not eavesdrop on innocent American citizens." Kroft asked Goss: "[H]ow can you be sure that no one is listening to those conversations?" Goss responded, "We do have methods for that, and I am relatively sure that those procedures are working very well."
While Goss did not say in his 60 Minutes interview that the NSA does not spy on the domestic communications of Americans without a warrant, then-director of central intelligence George J. Tenet and then-National Security Agency director Lt. Gen. Michael V. Hayden said exactly that to Goss's committee less than two months later. As ThinkProgress has noted, Tenet testified before the intelligence committee on April 12, 2000. Denying allegations that Echelon was used to spy on Americans in the United States without a warrant, Tenet stated: "We do not target their conversations for collection in the United States unless a FISA warrant has been obtained from the FISA court by the Justice Department." In the same hearing, Hayden testified: "If [an] American person is in the United States of America, I must have a court order before I initiate any collection [of communications] against him or her."
The fine point on which Media Matters seems to be hinging their argument,reflects what I believe is a misunderstanding of the technology involved. Granted, no one but NSA Sys Ops really know the answers here, so I may not have it right. But I think there is no indication that the technology is able to filter out conversations from US citizens and those of foreign nationals inside the United States. If they want, rightfully so, to pull out conversations between potential terrorists on the phone, both within the US, they will have to capture what Rep. Barr called millions of calls of citizens. If one is attempting to catch, as Clinton's NSA was capable, American employees of foreign companies talking overseas to snatch proprietary secrets, they would also catch any phone call originating inside the US destinated outside the US. Those calls could indeed involved US citizens talking to other US citizens outside of the US.
My conclusions are based on assumptions about how our telecommunications systems work. The US government over the years has negotiated access to "switches" where message signals bottleneck. Within the US, I assume such switches were not set up in a particularly planful way to enable sorting of origins and destinations of signals, but to respond to anticipated demand. So they are decentralized and located near population centers. Switches that go overseas, are probably set up a bit more planfully because they rely on relatively limited cable and satelite connections across oceans. So very likely, the NSA can monitor conversations between the US and another country and avoid most US internal communications. But they would not be able to avoid intercepting cross border communications between citizens. However, once the messages are pulled for review, there are ways to review the content to filter out at least some of the unintended communications between citizens, but no way to be entirely sure that what eventually reaches human ears is in fact a targeted message.
Under these assumptions, then both Barr's, Goss's and Tenet's assertions can be techically true. The NSA is intercepting millions of messages of US citizens daily, and most are filtered out before reaching human ears. This would also explain some of the rather outragious exceptions noted in the media. The broader the net is cast, the more likely communications between US citizens, some within the US would be reviewed and inappropriately targeted for investigations. For example, the Economic Espionage Act of 1996, supported by Clinton, provided for routine monitoring of business communications world wide in order to prevent illegal activities, the EU investigation in 2001 of this monitoring points out the opportunity to gather competitive espionage information to give the US an advantage over worldwide companies.
US intelligence services do not merely investigate general economic facts but also intercept detailed communications between firms, particularly where contracts are being awarded, and they justify this on the grounds of combating attempted bribery; whereas detailed interception poses the risk that information may be used for the purpose of competitive intelligence-gathering rather than combating corruption, even though the US and the United Kingdom state that they do not do so;
The EU believed many unintended communications would be intercepted and the US was expecting that they accept assertions that the information would not be used by the US for unfair competitive advantage. Clearly the EU was not inclined to accept this reassurance, but then noted that France and Russia was probably operating a similar system. They stated one should assume their conversation may be monitored. I think the same assumption applies stateside, especially since Bush now targets at least some stateside communications. It seems likely that Clinton's intent captured at least those communications that was cross international borders.
In a nutshell, I believe the technology can't possibly comply with the expections of the law. Therefore, we rely on the good will of the human operators involved in screening the information to ensure the law isn't broken. I would tend to agree with the EU conclusion. If the information is available, it is used, sometimes inappropriately and illegally, just because it's available and the risks are perceived as high. So it seems reasonably likely that both Clinton's and Bush's NSA has been monitoring US citizen's communications. But I bet Bush's intent led to illegal activity, while Clinton's intent, as reflected in the Economic Espionage Act, was legal as provided by that law as I understand it.
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