Former NSA Analyst Says Wiretap Program Included Journalists

A former National Security Agency (NSA) analyst said the agency’s warrantless surveillance program monitored American news organizations and domestic communications, contrary to assertions by the Bush administration that the program targeted only communications between U.S. residents and suspected terrorists overseas.

Russell Tice, one of the anonymous sources for the Dec. 16, 2005 New York Times story that first made the wiretapping program public, said that the program included journalists’ communications and U.S. citizens’ domestic phone calls and faxes, according to a Jan. 22, 2009 story posted on the Wired magazine blog Threat Level.

Tice spoke with MSNBC host Keith Olbermann on “Countdown with Keith Olbermann” on Jan. 21, 2009. “[I]t didn’t matter whether you were in Kansas, you know, in the middle of the country, and you never made … foreign communications at all. They monitored all communications,” Tice said, according to a transcript of the interview available online at http://www.msnbc.msn.com/id/28794766/.

Tice said he initially thought the NSA monitored news organizations in order to prevent the agency from targeting them. “[I]n one of the operations that I was in, we looked at [news] organizations just supposedly so that we would not target them. So that we knew where they were, so as not to have a problem with them,” he said. Tice said that he ultimately realized, however, that the NSA conducted the collection of news organizations’ and journalists’ communications around the clock, and that the information was not being discarded. Instead, the information was digitized and put on a database, but Tice said he did not know what was done with the information after that.

Tice also said that the NSA specifically tailored briefings to congressional committees in order to prevent disclosure of the domestic wiretapping program. He told Olbermann that a kind of “shell game” existed – the NSA would tell congressional intelligence committees that a program was a defense program and therefore under the defense committee’s purview, and then tell the congressional defense committee that a program was an intelligence program, thereby avoiding disclosure to either committee.

In a second appearance on Olbermann’s show on January 22, Tice said he did not know whether the NSA targeted specific journalists or news outlets. “But, you know, from the avenue I know about, everyone was collected. So they sucked in everybody. And at some point, they may have cherry picked from what they had. I wasn’t aware of who got cherry picked out of the big pot,” Tice said. A transcript of Tice’s second interview with Olbermann is available at http://www.msnbc.msn.com/id/28817572/.

In 2006, President George W. Bush said that the NSA’s secret wiretapping program was targeted at terrorism suspects making international communications to or from the United States. He described the program in a Jan. 23, 2006, speech at Kansas State University. “What I’m talking about is the intercept of certain communications emanating between somebody inside the United States and outside the United States; and one of the numbers would be reasonably suspected to be an al Qaeda affiliate or al Qaeda,” Bush said. “I repeat to you, even though you hear words, ‘domestic spying,’ these are not phone calls within the United States.”

New York Times reporter James Risen, who co-authored the story regarding the domestic warrantless wiretapping program with reporter Eric Lichtblau in 2005, told Olbermann on the January 22 program that he might have been among the reporters whose communications were monitored.

Risen’s phone records were disclosed to a federal grand jury investigating information contained in his 2006 book “State of War” regarding CIA efforts to halt Iran’s nuclear program. (See “Reporters Fight Federal Subpoenas” in the Winter 2008 Silha Bulletin.) Risen told Olbermann that he did not know whether his records had been obtained by the FBI through a warrant or through the NSA spying program. He also said the NSA program could have “a chilling effect on potential whistleblowers in the government to make them realize that there’s a Big Brother out there that will get them if they step out of line.”

The NSA fired Tice in May 2005, according to a Jan. 22, 2009 story on technology news Web site Ars Technica. In his first interview with Olbermann, Tice said his firing was linked to inquiries he began to make regarding the use of the information that was gained from wiretapping, saying the NSA fired him when he tried to investigate the program more closely.

Questions regarding Tice’s credibility were raised shortly after he revealed to ABC News that he was one of Risen and Lichtblau’s anonymous sources on Jan. 10, 2006. A Jan. 11, 2006 post on CBSNews.com’s blog Public Eye said Tice’s critics questioned his credibility as a source and alleged that he was embittered by his firing from the NSA.

Citing a May 5, 2005 Pulse-Journal (Mason, Ohio) story, Public Eye stated that Tice might have been fired from the NSA in part because he reported suspicions that a former co-worker at the Defense Intelligence Agency, where Tice worked until 2002, was a spy for China after noting that the woman “voiced sympathies for China, traveled extensively abroad and displayed affluence beyond her means.”

After Tice reported his suspicions to the NSA, he was ordered by the agency to submit to a psychological evaluation, which determined he suffered from psychotic paranoia, the Pulse-Journal reported. In a letter to the Department of Defense Office of Inspector General’s Civilian Reprisal Investigations division, Tice wrote, according to the Pulse-Journal story, that the psychologist “admitted that I did not show any of the normal indications of someone suffering from paranoia.”

Tice was terminated in early 2005 shortly after he spoke to a congressional committee, testifying in favor of legislation to protect federal whistleblowers, the Pulse-Journal reported. The 1989 Whistleblower Protection Act, 5 U.S.C. 2302, does not cover federal employees in the intelligence community. Federal whistleblower protection for national security employees remains a contested issue, according to a Feb. 18, 2009 Washington Post story. The Post reported that provisions providing stronger protections for national security whistleblowers were removed from the stimulus package signed by President Obama on February 17.

The American Civil Liberties Union (ACLU) has challenged the U.S. government’s warrantless wiretapping program in the U.S. District Court for the Southern District of New York in a pending case, Amnesty International v. McConnell, No. 1:2008-CV-06259 (S.D.N.Y. 2008), on behalf of a coalition of journalists, authors, and activists. The FISA Amendments Act of 2008, PL 110-261, 122 Stat. 2436 (codified as amended in scattered sections of 50 U.S.C.), which was enacted July 10, 2008, authorizes the government to monitor the international communications of U.S. citizens without first obtaining a warrant. The ACLU asserts the FISA amendments are unconstitutional because they violate the First Amendment right to free speech and the Fourth Amendment prohibition against unreasonable searches and seizures.

The Reporters Committee for Freedom of the Press (RCFP) filed a friend-of-the-court brief in the case on Dec. 19, 2008, asserting that the FISA amendments should be declared unconstitutional. The RCFP brief stated that the amendments violate the First Amendment rights of journalists by eliminating their ability to communicate with sources confidentially and by undermining the role of the news media as a watchdog. The RCFP amicus brief is available online at http://www.rcfp.org/news/documents/20081219-amicusbrie.pdf.

– Amba Datta
Silha Research Assistant

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