Instead, the N.S.A. began, in some cases, to eavesdrop on callers (often using computers to listen for key words) or to investigate them using traditional police methods. A government consultant told me that tens of thousands of Americans had had their calls monitored in one way or the other. “In the old days, you needed probable cause to listen in,” the consultant explained. “But you could not listen in to generate probable cause. What they’re doing is a violation of the spirit of the law.” One C.I.A. officer told me that the Administration, by not approaching the FISA court early on, had made it much harder to go to the court later.
The Administration intelligence official acknowledged that the implications of the program had not been fully thought out. “There’s a lot that needs to be looked at,” he said. “We are in a technology age. We need to tweak fisa, and we need to reconsider how we handle privacy issues.”
Marc Rotenberg, the executive director of the Electronic Privacy Information Center, believes that if the White House had gone to Congress after September 11th and asked for the necessary changes in FISA “it would have got them.” He told me, “The N.S.A. had a lot of latitude under FISA to get the data it needed. I think the White House purposefully ignored the law, because the President did not want to do the monitoring under FISA. There is a strong commitment inside the intelligence community to obey the law, and the community is getting dragged into the mud on this.”
General Hayden, who as the head of the N.S.A. supervised the intercept program, is seen by many as a competent professional who was too quick to follow orders without asking enough questions. As one senior congressional staff aide said, “The concern is that the Administration says, ‘We’re going to do this,’ and he does it—even if he knows better.” Former Democratic Senator Bob Kerrey, who was a member of the 9/11 Commission, had a harsher assessment. Kerrey criticized Hayden for his suggestion, after the Times exposé, that the N.S.A.’s wiretap program could have prevented the attacks of 9/11. “That’s patently false and an indication that he’s willing to politicize intelligence and use false information to help the President,” Kerrey said.