The Bush Administration has carefully described its warrantless wiretapping program by saying it involved international phone calls and emails where at least one party was suspected of ties to terrorist groups and one party was inside the country. Most, including this reporter, have assumed that this meant that the program eavesdropped on the communications of Americans who emailed or called a suspected terrorist outside the country.

But it’s seeming increasingly likely to me, that both of the “one parties” in their description really refers to people inside the United States. That is the program seems to have targeted the international communications of Americans who the government suspected of ties to terrorist groups, but who the government did not have enough information to get court approval to spy on.

For instance, if the government learned of a cell phone number being used in the Pakistan trial regions, the intelligence community could target that phone and listen in to all calls to and from that phone so long as the National Security Agency listened in using spy gear outside the United States (there are some nuances that allow the NSA to listen in on radio and satellite communications from U.S. soil, but anything on a copper or fiber optic wire has to be captured outside the United States). Calls from an American to that phone could be listened to without getting a warrant, but if the conversation had no intelligence value it had to be destroyed.

So if the NSA was targeting suspected terrorists overseas, they could listen in to Americans who called that person without getting a warrant, and not be doing so outside of the nation’s spy law (the Foreign Intelligence Surveillance Act.)

Suppose, however, the nation’s intelligence community wanted to find “sleeper cells” or terrorist sympathizers inside the United States.

In this scenario, the nation’s spooks decide to get years of phone records from American telecom companies and data mine them for people who made repeated calls to suspect regions, such as Lebanon, Somalia or the Pakistani. The NSA could also use the records to determine who called a newly discovered overseas suspected terrorist number in the time before the government knew about that overseas person.

Then the NSA could decide they have enough information to target those Americans’ overseas communications, but not enough to get a warrant from a secret spy court to go after all of their phone calls. This is all in keeping with 1) the government’s acknowledgment that it had a targeted eavesdropping program, 2) its claims that it did not engage in dragnet “content” surveillance, and 3) that it has refused to confirm or deny reports that it created a massive call record database of American’s communications (though Congress members briefed on the program did confirm it)

But the difficulty in spying on Americans without warrants is that the government needs to get at the communication systems to capture the outgoing messages. Overseas, the NSA uses its billions of dollars to find ways to capture satellite calls, wiretap cell phone networks and tap underseas cables. But they legally can’t do that inside the United States. So they ask the nation’s telecoms to help them with an anti-terrorism program. One says no, but others play along. The NSA asks for, and gets, trillions of phone records. Then they ask for and get help wiretapping the internet to look for overseas emails (using the to: from: and subject lines) that might lead them to “sleeper cells” in the United States. Once they have that list of targets, say 1,000 or so,

Indeed in the first press briefing on the program in December 2005, then Attorney General Alberto Gonzales and NSA chief Michael Hayden, Gonzales acknowledged that the target of the surveillance could be an American:

To the extent that there is a moderate and heavy communication involving an American citizen, it would be a communication where the other end of the call is outside the United States and where we believe that either the American citizen or the person outside the United States is somehow affiliated with al Qaeda.

In that case, the program violated the Constitution, according to the current Director of National Intelligence Michael McConnell.

Today when asked about targeting Americans after hearing them on wiretaps targeting foreigners, McConnell told the Senate Judiciary Committee, “If a U.S. person becomes a target. you need to get a warrant. [Targeting a U.S. person without a warrant] would be a violation of the Fourth Amendment.”

That said, McConnell believes that nation’s spy organization should be given the power to permanently infiltrate American ISPs and telecoms, and that everyone in the Administration and their partners (ranging from telecoms, ISPs and hardware companies) that were complicit in a four year program designed to violate the Constitutional rights of American citizens should be given immunity from any sanction from anyone.

FISA also makes it a crime, punishable by up to five years imprisonment, to spy on Americans except when authorized by law.

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Photo: Mr. Bill