A View from Inside the NSA’s Warrantless Surveillance Program

The Electronic Frontier Foundation will be back in court next Friday in San Francisco with its latest challenge to secret surveillance by the National Security Agency. The civil liberties group has been fighting a long-running battle to disclose the inner workings of a vast program—really a series of programs—of clandestine electronic monitoring that the agency began in earnest after the 9/11 attacks.

In the meantime, EFF has created this helpful timeline of many of the major events and revelations in the program(s)’ history. I’ll add one more to this list, something I wrote about extensively in my book, The Watchers, and that I’ll summarize here. For me, it has always stood out as one of the most remarkable and ultimately emotional stories of the whole saga. And it comes from a man who was actually “read in” on the program, and who was present at its creation.

On Saturday, October 6, 2001, Mike Wertheimer got a phone call at his home telling him to come to the office immediately. Wertheimer was a PhD mathematician and the NSA’s top technologist. And like many of his colleagues, he had spent the last few weeks since the terrorist attacks agonizing over the clues that the NSA had missed, the pieces of the puzzle that the agency and others in the intelligence community had failed to put together in time. Wertheimer believed that he shared some measure of responsibility for the deaths of nearly 3,000 people.

Wertheimer arrived at the NSA’s headquarters in Ft. Meade, Md., and joined about eighty of his fellow employees in a large conference room. Standing before them was Gen. Michael Hayden, the agency’s director, and a man with whom Wertheimer had been working closely to try and “modernize” the global eavesdropping agency for the information age. Hayden explained that the agency was going to begin a new, and heretofore unprecedented campaign of surveillance inside the United States, under direct orders from President George W. Bush.

Four days earlier, October 2, Bush had granted the NSA authorities that would let it monitor the calls of U.S. persons, inside the country, if they were communicating with someone outside the U.S. and believed to possess a “nexus to terrorism.” Ordinarily, NSA would need a warrant to listen to the calls of a U.S. person, defined as a citizen or a legal resident. But Hayden had told the President and other administration officials that within his current authorities, he didn’t feel he had all the tools he needed to help prevent another terrorist attack.

Hayden insisted that NSA wouldn’t go beyond the limitations set by the President, which included (and this was important) not monitoring purely domestic communications without a warrant. In other words, for warrantless surveillance to occur, there always had to be one party to a communication outside the United States.

But the program expanded in the coming months and years from this targeted warrantless surveillance to a broad campaign of data mining, in which NSA got access to the phone call records of major telecommunications companies and combed through them looking for indications of terrorist activity. After the initial monitoring authorized by Bush, which is usually referred to as the Terrorist Surveillance Program (TSP), another program called Stellar Wind emerged, which also captured e-mail communications. We know that this program, and particularly certain aspects of it, led to a showdown in 2004 over the legality of this new spying, and nearly ended in the resignation of the Attorney General, the FBI Director, and other high-level Justice Department officials.

By the time I met Wertheimer, in 2007, the New York Times had already published an expose of the Terrorist Surveillance Program, as well as elements of the broader data mining. Wertheimer felt free to talk about that initial meeting with Hayden on October 6, since the TSP had been publicly acknowledged by the President. Wertheimer had seemed initially upbeat about those new authorities. It was not lost on him that the agency was entering controversial territory. But the agency also felt that it was fighting back at terrorists, and doing what was necessary, in a national emergency, to ensure that they couldn’t strike again.

But as the months went on, and the imminent threat of another attack declined, Wertheimer had misgivings. As he explained it to me, the form of warrantless surveillance that President Bush ordered in the first few months after 9/11 was an appropriate and necessary response to a crisis. But as the threat abated, he thought those orders should have been scaled back.

In late 2003, Wertheimer left the agency and took a job with a technology company that mostly worked for the intelligence agencies. He thought the new surveillance had gone on too long. “When I walked away from that program,” he told me, “I wanted nothing to do with it ever again.”

Wertheimer eventually went back to work for government, in the Office of the Director of National Intelligence, where he led an effort to harness new technologies for improving analysis. When I met him in 2007, I was writing about that topic and found him to be one of the most thoughtful and earnest people I had met covering intelligence.

As I wrote my book, I heard from other people like Wertheimer, men and women who’d also devoted their careers to national security, who thought the Bush administration was justified in taking extraordinary surveillance measures after 9/11, and that in the breach, even violations of the law could be forgiven. But in the absence of another attack, it was clear to them that either the program(s) should have been canceled, or the administration should have gone to Congress and changed the law, so that the NSA had all the powers it needed to collect intelligence legally and with proper oversight.

But Wertheimer’s story always struck me at the most personal level. He never fully forgave himself for the 9/11 attacks, but he also believed that his government’s response to that horrible day was, in the end, deeply flawed. It gave him no pleasure to say so.