March 20, 2009 | By Kurt Opsahl

Sunshine Week: Traffic Analysis of Fall 2004

All this week we've been celebrating Sunshine Week by analyzing some of the secret documents from our list of missing NSA surveillance documents.

For our final post of the week, we looking at the context of a series of documents from the fall of 2004, right around the time that the Bush Administration learned that the press had learned of the warrantless wiretapping program.

According to Newsweek, in the summer of 2004, whistle-blower Thomas Tamm first contacted Eric Lichtblau of the New York Times regarding the warrantless surveillance program. “Eighteen months after [Thomas Tamm] first disclosed what he knew, the Times reported that President George W. Bush had secretly authorized the NSA to intercept phone calls and e-mails of individuals inside the United States without judicial warrants.” The New York Times story ran in December 2005, and the summer of 2004 is about 18 months earlier (approximately June 2004).

“As the outlines of the story became clearer, [New York Times reporter] Jim [Risen] decided to reach out directly to the NSA late in the summer of 2004.” In 2004, summer turned to fall on September 22. Risen “finally got [NSA Director] Hayden on the phone and asked him about an NSA program to eavesdrop on Americans without a warrant.” Eric Lichtblau, Bush’s Law (p. 193).

The NY Observer reported that, in "October 2004, Mr. Risen first presented editors with a story about the secret N.S.A. wiretapping program.” Also in October 2004, Litchblau met with Jack Goldsmith, former head of the DOJ’s Office of Legal Counsel, and asked “a few questions about what he called a secret NSA program.” Jack Goldsmith, The Terror Presidency (p. 178). Goldsmith “went straight to the Justice Department to tell Jim Comey, the Deputy Attorney General with whom [he] had worked intimately on NSA matters, about the conversation.”

“Bush and ten senior advisors in the White House and the intelligence community would make personal pleas not to run the story in the series of meeting spanning fourteen months, beginning in October of 2004.” Bush’s Law (p. 193). “At first, Bush’s advisors spoke in hypotheticals…. Once this hypothetical charade ended, the administration officials started getting into real-life details.” To generate such 'real-life details,' the Bush Administration would need to have the operatives provide summaries and reports.

According to a declaration filed by David Hardy (Section Chief of the FBI's Record/Information Dissemination Section) on October 6, 2004, the FBI’s Counter-Terrorism Division (CTD) produced an Intelligence Report “concerning the importance and value of information collected by the TSP and acted on by the FBI in several FBI counterterrorism investigations. This Intelligence Report consists of backgrounds and summaries of these investigations with specific investigative information as to the use and value of TSP information in the successful accomplishments within these investigation.”

“A week before the election in November [2,] 2004, [Lichtblau and Risen] had a draft of a story in hand that laid out the NSA program.” Bush’s Law, (p. 196). “The decision was made to hold the story before the election, but within days of Bush’s reelection, we began a new round of meetings.” (p. 197).

On November 23, 2004, CTD produced an internal memorandum “concerning investigative leads generated by TSP information and acted on by the FBI in certain FBI counterterrorism investigations. This memorandum delineates the actions and tasks performed by the FBI Unit in CTD that is responsible for the administration of the TSP pursuant to these investigative leads.” The same day, the FBI’s Office of the General Counsel produces a document “containing questions and answers regarding certain statistical and investigative information regarding the TSP.”

The Hardy declaration does not state which of CTD's units is responsible for the administration of the Program. The declaration also states that "two specific FBI Sections in CTD are the primary beneficiaries of TSP information." As reported by Wired News, FBI Director Robert Mueller's notes on the infamous March 2004 hospital confrontation over NSA surveillance indicate the responsible unit is part of either the Communication Exploitation Section (which includes the controversial Communications Analysis Unit) or the Terrorist Financing Operations Section.

“By mid-December of 2004, the [New York Times] editors had made a decision … The story would not run.” Bush’s Law (pp. 197-98).

In the end, the Bush Administration successfully convinced the New York Times to hold a critical news story for over a year. In the newspaper's articles following the initial story, the New York Times reported that “Several officials said the eavesdropping program had helped uncover a plot by Iyman Faris, an Ohio trucker and naturalized citizen who pleaded guilty in 2003 to supporting Al Qaeda by planning to bring down the Brooklyn Bridge with blowtorches.” However, a month later, the Times reported that "[t]he F.B.I. and other law enforcement officials also expressed doubts about the importance of the program's role in another case named by administration officials as a success in the fight against terrorism, an aborted scheme to topple the Brooklyn Bridge with a blow torch."

The public deserves to know what the Administration said to the newspaper that convinced them to keep silent on an ongoing violation of the rights of millions of ordinary Americans. We urge the Obama Administration to release these documents.

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