In 2005, The New York Times disclosed that technical glitches resulted in some of the intercepts including communications which were "purely domestic" in nature, igniting the NSA warrantless surveillance controversy.
On January 17, 2007, Attorney General Alberto Gonzales informed U.S. Senate leaders by letter[8] that the program would not be reauthorized by the president, but would be subjected to judicial oversight.
[12] They were not, however, allowed to make notes or confer with others to determine the legal ramifications, or even to mention the existence of the program to the full membership of the intelligence committees.
[13] Prominent legal scholar and blogger Orin Kerr has argued that the program is probably not a wiretap or call database, but more likely to be a pen register (or tap-and-trace) tap.
Because of the limited nature of the data, frequently characterized as "outside the envelope", pen register taps have much lower legal standards than conventional wiretaps, and are not subject to Fourth Amendment protection.
[16] Both the U.S. government and also spy organizations in the U.K. have tapped "the spine of the internet", a transatlantic Ethernet cable, using submarines to access it and put on equipment to commandeer as much information as they wish to apply special searches in order to narrow down potential terrorist activity.
"[18] On December 16, 2005, The New York Times printed a story asserting that following 9/11, "President Bush secretly authorized the National Security Agency to eavesdrop on Americans and others inside the United States to search for evidence of terrorist activity without the court-approved warrants ordinarily required for domestic spying" as part of the War on Terror.
The White House asked The New York Times not to publish this article, arguing that it could jeopardize continuing investigations and alert terrorists that they might be under scrutiny.
Some information that administration officials argued could be useful to terrorists has been omitted.White House press secretary Scott McClellan refused to comment on the story on December 16, exclaiming "there's a reason why we don't get into discussing ongoing intelligence activities, because it could compromise our efforts to prevent attacks from happening.
I authorized the National Security Agency, consistent with U.S. law and the Constitution, to intercept the international communications of people with known links to al Qaeda and related terrorist organizations.
Before we intercept these communications, the government must have information that establishes a clear link to these terrorist networks.In a radio address on December 18, President Bush implied he had approved the tracing of domestic calls originating or terminating overseas, stating the program would "make it more likely that killers like these 9/11 hijackers will be identified and located in time."
He forcefully defended his actions as "crucial to our national security" and claimed that the American people expected him to "do everything in my power, under our laws and Constitution, to protect them and their civil liberties" as long as there was a "continuing threat" from al Qaeda.
The story was picked up by ABC News on January 10:[30] Tice says the technology exists to track and sort through every domestic and international phone call as they are switched through centers, such as one in New York, and to search for key words or phrases that a terrorist might use.
According to Tice, intelligence analysts use the information to develop graphs that resemble spiderwebs linking one suspect's phone number to hundreds or even thousands more.
"That would mean for most Americans that if they conducted, or you know, placed an overseas communication, more than likely they were sucked into that vacuum," Tice said.On January 17, the New York Times reported that "more than a dozen current and former law-enforcement and counterterrorism officials", some of whom knew of the domestic spying program, "said the torrent of tips [from NSA wiretapping] led them to few potential terrorists inside the country they did not know of from other sources and diverted agents from counterterrorism work they viewed as more productive".
[31] On February 5, The Washington Post noted that "fewer than 10 U.S. citizens or residents a year, according to an authoritative account, have aroused enough suspicion during warrantless eavesdropping to justify interception of their (purely) domestic calls, as well.
Also in the article: "The minimum legal definition of probable cause, said a government official who has studied the program closely, is that evidence used to support eavesdropping ought to turn out to be 'right for one out of every two guys at least.'
[34] On May 22, 2006, Wired Magazine released the text of AT&T documents, currently under court seal in the EFF case, that allegedly describe NSA wiretap arrangements.
The crux of the debate over legality is twofold, the main issues being FISA explicitly covers "electronic surveillance for foreign intelligence information" performed within the United States, and there is no court decision supporting the theory that the president's constitutional authority allows him to override statutory law.