Body of Secrets: Anatomy of the Ultra-Secret National Security Agency (72 page)

On the
other hand, NSA does not need a FISA Court order to spy on foreign embassies
and diplomats within the United States, just an okay from the attorney general,
which is good for a full year.

The
deliberate targeting of Americans is only one issue. The other is what is done
when an American—or a citizen of one of the other UKUSA nations—incidentally
turns up in the reams of intercepted traffic. This is becoming more and more
likely as technology advances. "The networks have collapsed into one
another," said one senior NSA official, "and many of our targets are
on the same network that we use. It is now just 'the network'—the global
telecommunications infrastructure."

Heavy
restrictions are placed on the dissemination of names of UKUSA residents. This
is in stark contrast to the freewheeling use and distribution of European
names, such as Dècle's. NSA's bible governing "whom we may target, how we
collect, select, and store such information, and how we disseminate information
on U.S. persons" is United States Signals Intelligence Directive 18 (USSID
18), "Limitations and Procedures in Signals Intelligence Operations of the
United States Sigint System." It was first drawn up in May 1976, shortly
after the Church Committee investigation, and it is occasionally updated.

By 1999 a
number of people were questioning whether USSID 18 should be completely
rewritten to better reflect the workings of modern-day signals intelligence.
"These concerns are legitimate," said an NSA operations panel.
"USSID 18 is not easy to read and understand. It deals with a complicated
subject and, therefore, is a document that must be read carefully. This is not
justification, however, for it to be rewritten."

Key to the
directive is the definition of "U.S. persons," because it determines
whether a given intercept will be swept in, analyzed, and disseminated. "A
person known to be currently in the United States," it says, "will be
treated as a United States person unless positively identified as an alien who
has not been admitted for permanent residence; or unless the nature or
circumstances of the person's communications give rise to a reasonable belief
that such person is not a United States person."

On the
other hand, "A person known to be currently outside the United States, or
whose location is unknown, will not be treated as a United States person unless
such person can be positively identified as such, or the nature or
circumstances of the person's communications give rise to a reasonable belief
that such person is a United States person."

In 1994 a
forty-seven-page document entitled "U.S. Identities in Sigint" was
issued to further clarify under what circumstances the names of U.S. persons
must be deleted or may be retained in Sigint reports. While in most cases U.S.
names must be removed, the document said, this rule does not apply under
certain circumstances—for example, in the event of an emergency "such as a
hijacking or a terrorist attack."  "When specific, actionable threat
information involving U.S. persons is obtained," said one instruction,
"reporting elements issue a report with as much information as possible,
including U.S. names, in the interest of protecting U.S. persons." NSA
uses "Implied Consent Procedures" in cases such as kidnappings or
hijackings, "where a U.S. person is held captive by a foreign power or a
group engaged in international terrorism and consent for NSA collection could
be implied."

Another
exception allows for reporting the communications of U.S. persons when there is
"evidence of a crime." These are cases, said the present NSA
director, Michael Hayden, where "we bump into violations, or potential
violations of law—threats to physical security, possible espionage, possible
disclosure of classified information. ... In the last sixteen months, that has
happened a total of eighteen times. In those eighteen instances, there were ten
instances in which the information was about U.S. persons. Six instances in
which it appeared the information was about U.S. persons but we were far, far
from definite. And two others—the remaining two other instances, the
information was about individuals of unknown nationality. We simply didn't
know."

In 1980,
while intercepting everything in and out of Libya, NSA analysts discovered that
President Jimmy Carter's brother Billy was doing business with and acting as an
unregistered agent of the Libyan government. Bobby Ray Inman, who was then the
NSA director, showed the intercepts to the U.S. attorney general and an
investigation was launched, leading to what became known as the Billygate
scandal.

Analysts
are forbidden to mention in their reports not only the actual names of U.S.
citizens and green card holders but also the names of U.S. companies. "As
a general rule," says one internal document, "analysts must select generic
terms to replace the U.S. identity and must present the report details in such
a way that the customer cannot determine the identity."

Any time a
U.S. identity is mentioned in a Sigint report, the Operations Directorate must
keep a record of it for a quarterly report sent to the agency's inspector
general. "Please remember," said one internal memorandum, "that
if a U.S. identity is disseminated in any fashion, e.g., product, analytical
exchange, etc., NSA is then required to account for the times the identity is
disclosed outside of the Sigint System, whether the disclosure is intentional
or not."

In an
attempt to prevent inappropriate intercepts and dissemination, frequent
training sessions are conducted for intercept operators and analysts (seventeen
such sessions were held in November 1998, for example). Analysts are offered
difficult hypothetical scenarios similar to situations they might encounter,
and correct responses are taught. "You have reason to believe that the
[cell phone] user is involved in international narcotics trafficking,"
says one hypothetical, "but you have no information telling you whether or
not he is a U.S. person: Can you collect?"

Despite
all the hypotheticals, real-world operations frequently give rise to complex
questions concerning just what names and titles to leave in or take out of
finished Sigint reports. The following issues have come up in the past few
years.

•   In January 1993, a few weeks
before President-elect Clinton was going to be sworn in as president, a question
arose concerning how to refer to him and his cabinet choices when their names
turned up in intercepts. While it violates USSID 18 to refer to U.S. persons by
name, senior U.S. executive branch officials can be referred to by
title
without
special permission. The problem was that they were not yet sworn in.

"The
NSA Office of the General Counsel," said an NSA document, "has
advised that titles of these candidates may be used in reports . . . as
follows: title of position to which candidate has been nominated followed by
the word 'designee' (e.g., Secretary of Defense Designee). These titles should
be used until such time as the candidates have been confirmed and the Clinton
Administration assumes responsibility. Names of the candidates should not be used
without prior approval. ... As always, titles should only be used if they are
necessary to understand or assess foreign intelligence."

It is
interesting to note that NSA analysts must also delete the names of United
Nations officials from reports and, in the case of senior officials, must
include only their titles. Generic terms—such as, perhaps, "UN
official"—must be substituted for the names of lower-ranking officials.

•   Six months after the
inauguration, NSA analysts found the name of Hillary Rodham Clinton turning up
in intercept reports. What was her status?

A federal
court had determined that her work on health care policy put her in the
category of a full-time government official. As a result, "Mrs. Clinton
may be identified in reports," said an internal NSA memorandum, "only
by title (currently, Chairperson of the President's Task Force on National
Health Care Reform) without prior approval when that title is necessary to
understand or assess foreign intelligence and when the information being discussed
relates to her official duties. Should Mrs. Clinton be assigned to other task
forces or official duties in the Executive Branch, those titles may also be
used, as necessary. Reports containing information about Mrs. Clinton that is
not clearly foreign intelligence must be checked, at a minimum, through Office
and Group level 05 [policy] elements. As with other senior officials of the
Executive Branch, no reports may be published concerning Mrs. Clinton's private
life or activities absent evidence of criminal wrongdoing and even then only
after review by senior NSA management and the OGC [Office of the General
Counsel]."

•   In 1994, former president
Jimmy Carter was invited to travel to Bosnia and Herzegovina by Bosnian Serb
president Radovan Karadzic to participate in efforts to help end the war that
had been raging there. In December 1994, Carter tentatively accepted the offer
and stated that he would travel to Bosnia as a representative of the Carter
Center for Peace.

The
Balkans were a key target area for NSA, so the Operations Directorate
anticipated that a number of intercepts would mention Carter or would even be
to or from him. For this reason, it issued a directive regarding whether
Carter's name would appear in NSA reports sent out to "customers":

The
current U.S. Administration  [that of  President Clinton] has cautiously
welcomed this development, but has made it clear that Former President Carter
would be
traveling to Bosnia as a private U.S. citizen and not as
a
representative
of the U.S. Government.

Since
Former President Carter will not be officially representing the U.S.
Government, any reports that reflect either his travels to Bosnia or his
participation in efforts to end the war may identify him only as a "U.S.
person." Only if Former President Carter eventually becomes an official
envoy of the U.S. Government in this activity, could he then be identified as a
"former U.S. president."

•   In 1995, there was great
concern in Washington over the fate of Michael DeVine, an American who ran a
hotel in the Guatemalan rain forest, and Efrain Bamaca Velasquez, a guerrilla
leader married to an American lawyer. The evidence indicated that they had both
been killed by a Guatemalan military officer on the CIA's payroll and that the
agency may have known of the murders. Outraged, Senator Robert Torricelli of
New Jersey wrote to President Clinton: "The direct involvement of the
Central Intelligence Agency in the murder of these individuals leads me to the
extraordinary conclusion that the agency is simply out of control and that it
contains what can only be called a criminal element."

As a
result of a number of calls for investigations by both the CIA and Congress,
NSA was asked to check its massive database—years' worth of stored raw
traffic—for "any information concerning events in Guatemala from January
1987 to the present" relating to DeVine and Velasquez. Seeing that NSA
could be dragged into a quagmire by the request, NSA's general counsel reminded
the Operations Directorate that federal law "prohibits the collection of
communications to, from, or about U.S. persons without approval of either the
Director, NSA, the Attorney General, or the FISA Court depending on the
circumstances." He added, "NSA is not authorized to collect Sigint
for law enforcement or investigative purposes." The lawyers were no doubt
worried about intercepts turning up in civil lawsuits or criminal proceedings.

•   In June 1996, as former
senator Bob Dole and President Clinton began squaring off for the fall
elections, analysts were specially reminded to be careful to avoid mentioning
any candidate or political party that might be picked up in an intercept.
"The political parties of the U.S. are," said the memorandum,
"considered U.S. persons, as are the candidates themselves. Since a U.S.
identity is considered to be revealed whenever the reader of a report can
recognize a particular U.S. person, avoid identifying the political parties or the
candidates by name, unique title, personal identifier, or textual context."

The memo
went on, "We anticipate that as the 1996 election campaigns go on, there
may be instances when references to political parties and candidates will be
necessary to understand foreign intelligence or assess its importance. In such
cases . . . refer to the U.S. identity in generic terms only: a U.S. political
party, a U.S. presidential candidate, a U.S. Senate candidate, etc. Remember
that even when such terms are used, the context of the report could constitute
an identification."

•   During the October 1997 summit
in Washington between President Clinton and China's Jiang Zemin, greatly
expanded eavesdropping operations were planned. The planning required extensive
searching through satellite and microwave channels—"search and
development"—for key circuits of potential intelligence value.

Four
months earlier, in preparation for the event, the lawyer assigned to NSA's
Operations Directorate sent out a Top Secret/Comint Channels Only briefing
memorandum to those preparing for the complex operation. "USSID 18
procedures for Search and Development are broader than those identified in the
main body of the USSID," it said; this may have meant that domestic
communications channels were to be searched. "During the course of search
and development any signals with communications to, from, or about U.S. persons
should be handled in accordance with the processing section of the USSID."