Pelosi fought back. She declassified a letter she wrote to Hayden days after STELLAR WIND became operational, which expressed uneasiness: ‘Until I understand better the legal analysis regarding the sufficiency of the authority which underlies your decision on the appropriate way to proceed on this matter, I will continue to be concerned.’
Pelosi was not the only one personally affected by the revelations. Vito Potenza had a problem on his hands the moment the Times ran with the story. As the general counsel for the NSA, one of Potenza’s responsibilities was interacting with the telecoms and internet service providers, to reassure them that their co-operation was legal. But that was an easier arrangement to maintain in secret. Now that the media had run with the story, the telecoms worried about both their bottom lines and their legal exposure. But they also didn’t contemplate ending the arrangement with the NSA.
One of the service providers passed on a potential solution to Potenza. Don’t ask us to provide telephone metadata. Make us do it. ‘The provider preferred to be compelled to do so by a court order,’ the NSA’s internal history noted.
So during the early months of 2006, the Justice Department and NSA lawyers worked together to craft a secret legal authorisation for domestic telephone metadata collection that would withstand the scrutiny of the equally secret FISA court, now briefed on STELLAR WIND. The answer was the so-called ‘business records provision’ of the Patriot Act, its now-notorious section 215.
Under section 215, passed after 9/11 and already detested by civil libertarians, the government had the power to compel businesses to turn over items ‘relevant’ to an ‘ongoing’ terrorism investigation. Shoehorning bulk metadata collection into that statutory requirement was tricky. It was questionable whether all Americans’ phone records posed any relevance to any actual ongoing investigation. The metadata was more like a body of information that occurred prior to an investigation, creating the conditions for divining investigative threads.
Yet the newly briefed FISA court proved to be receptive. ‘There are reasonable grounds to believe that the tangible things sought are relevant to authorised threat investigations… being conducted by the FBI,’ wrote Judge Michael Howard of the FISA court on 24 May 2006, in a classified decision, granting the court orders the companies wanted.
Keith Alexander, the next director of the NSA, was to describe these relationships with telecoms and internet service providers during a contentious hearing of the House intelligence committee on 29 October 2013: ‘We’ve asked industry’s help. Asked? OK, more accurately, we have compelled industry to help us in this manner by court order.’
It would have been more accurate, perhaps, to say ‘industry’ compelled Alexander to compel industry by court order.
The administration then wrote itself more legal cover in the hotly contested FISA Amendments Act (FAA). The FAA legalised and blessed any communications interception between an American and a foreigner. The foreigner did not have to be a terrorist suspect: he merely had to be ‘reasonably’ suspected of having foreign intelligence value. Nor did he even have to be actually overseas: he merely had to be ‘reasonably’ suspected of being overseas during the time of interception. Approvals came from the FISA court in bulk, annually.
In one of the most important provisions of the bill, the FAA granted explicit legal immunity to any telecommunications firm that participated in the bulk surveillance. The immunity was both retroactive and prospective. Essentially, no private-sector partner of the NSA’s would ever face criminal charges or financial damages.
The FAA was passed in mid-2008, the thick of presidential election season. It was a tremendous success for the NSA. What had begun as a lawless secret, controlled entirely by the executive branch, had now won the explicit approval of Congress, many of whose members little understood its significance. There was now a new term in the NSA lexicon: ‘702’, a reference to the legal text of FISA that the FAA changed, which would now be a wellspring for much of the NSA’s overseas and ostensibly terrorism-related collection.
Civil libertarians rued a fight they bitterly contested and had now lost. Bulk collection of communications on a massive scale would follow, warned the ACLU, and some of it would inevitably be American, all without individual suspicion or a way to adequately challenge its occurrence. It sounded like the General Warrants issued by the British colonial authorities – the very unreasonable searches and seizures that had provoked the American Revolution and the constitution itself.
In the House of Representatives, where the FAA was passed by a 293–129 margin in June, the overwhelming majority of dissenting votes were Democrats. But the Democrats on the intelligence committee tended to vote for it. Among them were committee veteran Jane Harman and her predecessor, now the House speaker, Nancy Pelosi. It seemed she had overcome her earlier reservations.
In the Senate, the bill passed by a comfortable 69–28 margin. All 29 dissenters were Democrats. But what was notable were Democrats aligning with the NSA. One was Dianne Feinstein, who would become the intelligence committee chairwoman the following year. Another was Jay Rockefeller, who held the position at the time – and who had denounced the same surveillance activities when the Times exposed them.
A third was the liberal hope of the early 21st century, a first-term senator from Illinois and constitutional law professor. Barack Obama, in a 2007 stump speech for his nascent presidential campaign, had pledged, ‘No more illegal wiretapping of American citizens. No more National Security Letters to spy on American citizens who are not suspected of a crime. No more tracking citizens who do no more than protest a misguided war. No more ignoring the law when it is inconvenient.’
Obama, the Democratic nomination in sight, and from there the presidency, voted for the FAA on 9 July 2008.
With the passage of the FAA, political controversy over warrantless surveillance became marginal, the preoccupation of those already invested in one outcome or another. Periodically throughout the Obama administration, surveillance votes would occur – as with the renewal of the Patriot Act and the FAA itself – but relatively few paid attention. Obama paid no political price for any of the bulk surveillance activities he presided over.
One reason for that was that the FAA vote largely returned the veil of secrecy to the NSA’s bulk collection activities. While a few obsessives knew the name STELLAR WIND, there was no public proof that the NSA was secretly hoarding the phone metadata of every American. There was no public proof that the NSA had entered into sweeping arrangements with every significant internet service provider, under a program that was getting off the ground called PRISM.
There was, however, a warning. In 2011, in an interview with WIRED reporter Spencer Ackerman – who would soon become the Guardian’s national security editor – and in a floor speech shortly before a critical vote on the Patriot Act, Senator Ron Wyden, an Oregon Democrat who sat on the intelligence committee, obliquely said that the government had a secret interpretation of the Patriot Act that was so different from what the text of the law said that it amounted to a new law – one that Congress had not voted to approve.
‘We’re getting to a gap between what the public thinks the law says and what the American government secretly thinks the law says,’ Wyden said. ‘When you’ve got that kind of a gap, you’re going to have a problem on your hands.’ If the American people saw the discrepancy, he added, they would be astonished – and horrified. But Wyden, sworn to protect classified information, refused to say exactly what he meant.
Despite all the suspicions and the arcane controversies, the developing facts about the country’s biggest and most intrusive domestic and international surveillance programs were thus kept from the American public in whose name they were being carried out. When Edward Snowden got on a plane for Hong Kong in 2013, the material he held on his laptops was highly explosive.