NSA lawyers advised the agency to immediately destroy the names of thousands of American citizens and businesses it collected shortly after 9/11 in its quest to target terrorists in this country. NSA lawyers told the agency that the surveillance was illegal and that it could not share the data it collected with the CIA or other intelligence agencies.
The lawyers said the surveillance could result in numerous lawsuits from people identified in the surveillance reports, two former US officials told the Houston Chronicle in an October 27, 2001, report, and was illegal despite any terrorist threat that existed in the days following 9/11.
By law, the NSA cannot spy on a US citizen, an immigrant lawfully admitted to this country for permanent residence, or a US corporation. But, with the permission of a special court, it can target foreigners inside the United States, including diplomats.
The fact that the NSA has purged the names of thousands of Americans and businesses it collected after 9/11 suggests that at the time there were questions about the constitutionality of the agency's efforts to combat terrorism by secretly spying on Americans.
Still, the intelligence destruction angered CIA and FBI officials as well as staff members of the House and Senate intelligence committees who feared that leads on potential terrorists would be permanently lost.
The NSA, based in Fort Meade, Maryland, operates under the Department of Defense. It distributes analysis summaries of its intelligence-gathering to a certain number of senior US officials, but it doesn't share its raw data - transcripts from wiretaps - with anyone. The raw data is prized by intelligence analysts because it provides additional context and more leads than the watered-down summaries.
However, those guidelines changed after 9/11 also.
The NSA ended up giving its raw data to then Under Secretary of State for Arms Control John Bolton on at least 10 different occasions since 9/11. Bolton, nominated by Bush to be US ambassador to the United Nations, let slip during his confirmation hearings in April that he asked the NSA to unmask the identities of the Americans blacked out in the agency's raw reports, to better understand the context of the intelligence.
However, evidence suggests that Bolton used the information for personal reasons, in direct violation of rules governing the dissemination of classified intelligence. During one routine wiretap, the NSA obtained the name of a state department official whose name had been blacked out when the agency submitted its report to various federal agencies.
Bolton's chief of staff, Frederick Fleitz, a former CIA official, revealed during the confirmation hearings that Bolton had requested that the NSA unmask the unidentified official. Fleitz said that when Bolton found out his identity, he congratulated the official, and by doing so he had violated the NSA's rules by discussing classified information contained in the wiretap.
At the time of the NSA purge in October 2001, US Rep. Charles F. Bass, R-NH, who served for four years on the House Permanent Select Committee on Intelligence, suggested that the NSA routinely skirted the law by eavesdropping on Americans.
"I think it could be the biggest information problem that we face," Bass told the Chronicle. "If somebody is abroad and they even mention the name of an American citizen, bang, off goes the tap, and no more information is collected."