04/17/09 – James Bamford – The Scott Horton Show

For Antiwar.com, I'm Scott Horton.
This is Antiwar Radio.
Our first guest on the show today, it's James Bamford.
He's a former producer, reporter, investigative reporter for World News Tonight with Peter Jennings, and he's the author of three books about the National Security Agency, the latest of which is called The Shadow Factory, the ultra-secret NSA from 9-11 to the eavesdropping on America.
Welcome back to the show, Jim.
How are you?
Oh, great.
Thanks for having me on.
Well, my pleasure.
Thanks for coming on.
There's breaking news in the NSA wiretapping scandal as it continues to develop.
James Risen and Eric Lichtblau, who originally broke the story in The New York Times in 2005 about George Bush's illegal wiretapping program, have a new one.
Officials say U.S. wiretaps exceed law, and I suppose you've seen this already, right?
Yeah, I have.
And basically what they say in here is that, well, in brief, and I guess you can help us out with the details, that the NSA has been engaged in over-collection of domestic communications of Americans beyond the pretty broad limits placed on them by, I believe, the amendments to the Foreign Intelligence Surveillance Act bill that was passed about a year ago.
Is that right?
Yeah, I think that's right.
It sounds like they were supposed to collect X amount and they collected Y amount, which was a lot more than they should have collected.
Do you know what X amount is?
What exactly are the legal limits in that FISA amendments bill?
Well, I think the way it sort of comes down is that the NSA is allowed to eavesdrop on certain circuits or certain links or certain channels of communications into the United States, and they apparently exceeded that by listening to a lot of other, or a lot of additional communications channels, which gave them a lot more information, a lot more American communications, you know, Americans to Americans or domestic communications.
Well, I guess I've got to admit I was almost surprised to see that there really were limits.
I thought that the FISA amendments bill, as passed by the Democrats a year ago, basically legalized everything Bush had been doing anyway, which was tap whoever he wanted, right?
Well, it's a very complex bill, and a lot of it was secret, but there were supposed to be some parameters set, and the whole idea was that the NSA was supposed to go to the FISA court and get approval of the methods, in other words, the way they were going after the information, which channels to tap into and so forth.
So it may have been that the FISA court set certain limits on what they could tap into, and they exceeded those limits.
Until the legislation, there wasn't any FISA court involvement, basically, in the NSA's eavesdropping.
After the legislation, they took away the FISA court's authority to rule on individual names being placed on the list, but they gave them the authority to look at the overall program and look at the legality of looking at which links to tap into and so forth.
That's at least my impression of what was going on.
Well, I guess as bad as the law seems to be, at least the Justice Department now has some sort of check and balance going on between two different executive departments, as indicated in this Times article, right?
Well, it seems like somebody's looking over their shoulder there, which is good.
The problem is that even if you have some oversight, the public doesn't really have much input into what is happening here.
It was only a leak to the New York Times that we found out about this.
So what kind of worries me is that the NSA could be doing this and they could be exceeding their mandate and eavesdropping on a lot of American calls.
There may be some check and balance going on after the fact, but nobody will know about that.
Again, who has more of a right to know that their communications are being eavesdropped on than the American public?
And I don't think it should take the form of a leak.
I think there should be a press release saying, you know, NSA did this, we found out about it, and we're trying to put a stop to it.
Well, with your understanding of the law as it is, does this mean that my telephone here at Chaos Studio LA division is tapped because I'm talking to James Bamford in London?
Well, it certainly could be.
That's the problem that you have is that there were so little requirements in terms of who is being eavesdropped on.
They took away the FISA court's role in doing that.
So it's hard to say who's being eavesdropped on these days.
It's convoluted because the administration, working with Congress, have come up with a fairly complex bill that nobody really knows who's being eavesdropped on.
So it very well might be.
Who knows?
You know, when I wrote The Shadow Factory, I interviewed several NSA intercept operators, and they told me that they were eavesdropping on American journalists, American military people over in Iraq, talking to their wives.
A lot of communications that had absolutely nothing to do with terrorism.
It was just Americans talking to Americans, and they were very angry at that.
They protested, and nothing happened.
And then they talked to me, and I wrote it in my book.
Now, in this current kind of sub-scandal here, where they say that at least one of their sources says it was an accident, that the NSA, I guess to coin a phrase from you, they're swimming in this ocean of data.
They're trying to surf on top of it, but they're basically drowning in it.
And he's saying it's not even their fault that they accidentally, illegally, or semi-legally tapped all our phones.
They can't really stop it now.
It's like the Terminator or something.
Yeah, well, that's been NSA's problem since 9-11, this overreach that they've had.
You know, the interesting thing, one of the points I made in The Shadow Factory was the fact that prior to 9-11, they had all the tools they needed to catch those terrorists.
They were listening to their communications.
They heard the original call that went from Osama bin Laden to the house in Yemen where the terrorists were living and sending them on their way.
So they were eavesdropping on the terrorist communications, even when they were in the United States.
The problem was that they didn't pass that information on to the CIA or the FBI.
It wasn't the fact that they didn't have the capability to eavesdrop on them.
They did.
So after 9-11, they took that opportunity to expand their enormous amount of eavesdropping to encompass the entire United States.
So the result of that, they're basically drowning in too much information, and I think that's one of the key problems they have today.
So, you know, the point is they had enough information before they got all these new permissions to eavesdrop on Americans, and I think it should go back to the original way.
Well, you know, when they say that they have a problem distinguishing, this is one of the lines in the New York Times article, again, Rison and Lickblau's piece from just the other day.
One of the things that they say is they have trouble distinguishing between communications that are solely American-to-American communications and those that are global.
And, you know, I'm far from the expert that you are on the way this technology works, but if I think I understood your book correctly, they could solve that simple problem by tapping the lines where they come onto the American continental shelf.
Instead of intercepting and tapping the fiber optic cables at the beach where they come in from Japan or wherever, instead they have the splitter up at San Francisco and in Missouri by the Mississippi River and all this stuff in order to make sure that they sweep up all of Americans' communications and not just foreign communications.
Yeah, that's exactly right.
That's what I wrote in Shadow Factory was the fact that you can see where all these international communications enter the United States.
They enter at these landing stations along the east and west coast.
There are about maybe a dozen or more of them, I think less than two dozen, that are scattered along the east and west coast.
So if you simply put the intercept equipment there at the point where the communications links enter the United States, all that they're going to be able to intercept are the calls to and from the United States.
And as you mentioned, the problem was that they didn't do that.
They put the taps, in essence, in the facilities that contain both domestic and international communications, such as the huge AT&T switch in San Francisco.
So that would be one way of isolating the intercepts to just international communications by transferring their secret rooms from the main switches to the international switches at the entry gate point.
Well, now, what do you make of the accusations that the NSA at least attempted to tap the phones of an American congressman?
It says congressperson in the article, but James Risen on the Keith Olbermann show last night said congressman a few times.
Apparently it was some male congressman over there in Syria or something.
They were trying to tap his phone.
How illegal is that, even according to the new FISE amendments law, do you know?
Well, it's hard to say.
I don't think there's any distinction between a congressman and an average American in terms of the bill.
What it says, it doesn't contain or exclude any references to congresspeople.
But obviously that would be a very worrisome event because then you're starting to get into the whole area of Watergate possibilities where people are being eavesdropped on for political reasons.
And again, this is a very dangerous area.
It's only because of a leak in the New York Times that we find out about it, not through a congressional hearing, not through a press release by the Justice Department or anything else.
One interesting thing is that several months ago in January, Senator Rockefeller, who was chairman of the Senate Intelligence Committee, went on the Chris Matthews show and they were asking him about NSA eavesdropping.
And he said that, words to the effect, that yeah, they could eavesdrop on anybody.
As a matter of fact, I think they may have eavesdropped on me.
So who knows, maybe it was Senator Rockefeller, the chairman of the Intelligence Committee, that they eavesdropped on.
It's hard to say, but it shouldn't be a matter of leaks to find this out.
It should be found out by the Justice Department or congressional committees holding public hearings.
Right, or at least they could let you have your day in court, which they've already denied, isn't that right?
I mean, you were part of a lawsuit against them and they decided that you didn't have standing to sue, right?
Yeah, I was one of the plaintiffs, among a number of other plaintiffs in the ACLU suit against NSA, where we were hoping to find out what was going on in terms of the warrantless eavesdropping program.
And we successfully won at the lower court level, in the federal district court, and the judge was very much in the favor of the ACLU and very much angered at what the NSA was doing.
But then when we went to the appeals court, there were three judges in the appeals court.
Two of them had been appointed by the Bushes and one by, I think it was either the Clinton or the Carter administration.
And so the end result was two to one against the two Bush appointees voted against the appeal and that was the end of it.
So, you know, that's the problem.
They were arguing that we were unable to show that we were the actual targets of an intercept, and because of NSA secrecy, nobody can actually point to the fact that their phone is one of the ones being tapped.
It's insidious.
Catch 22.
They could be eavesdropping on you, but unless they tell you that they're eavesdropping on you, you can't bring any cause of action against them.
Well now, these abuses, as they're being reported in the New York Times, do they include Obama administration days or are they strictly talking about last year?
Do you know?
My impression is that it includes the Obama administration also.
There really hasn't been much change since the Obama administration came in.
Well, I wondered about that, whether there'd been any change really, because of course he campaigned originally against any of the immunity and on behalf of the Fourth Amendment, rhetorically at least a couple of times, but then he voted for the FISA Amendments Act.
And I kind of wondered whether there's kind of any word at all whether the NSA has backed off of the full use of this law as passed by the Democrats last year, which is, as you described earlier, just about as widespread and thorough wiretapping as it was when it was wholly illegal under George Bush.
Well, I don't think they've backed off at all, because as you mentioned, although he did claim during his campaign that he was going to filibuster any attempt to give immunity to the or rather legal immunity to the telecommunications companies that helped the NSA, when Bush came to shove and the bill came up for a vote in 2008, he voted for the bill, which was very inconsistent.
And then when the Electronic Frontier Foundation was bringing another, well, the Electronic Frontier Foundation was also doing the telecommunications companies for their eavesdropping on America, helping the NSA eavesdrop on Americans.
The Obama administration took the same point of view as the Bush administration in favor of secrecy to keep the whole thing secret.
So that got a lot of former supporters of the Obama administration very angry because he looked again like he was going back on his word.
And the Justice Department, instead of reporting an overruling of the secrecy order, they just affirmed it.
Well, in fact, they even went further and invoked sovereign immunity.
I actually talked with Glenn Greenwald on a show about this the other day, of course.
He's a former constitutional litigator as well, and he was explaining that they basically reasoned, the Obama administration basically reasoned that unless they somehow leaked the illegally purloined, illegally wiretapped information to the newspaper or something like that, used it in some other criminal way, then they had sovereign immunity from any prosecution, any government employees.
Yeah, and that was very disappointing to me and a lot of other people who were hoping that the Obama administration would reverse a lot of these horrendous secrecy decisions that the Bush administration made instead of going along or even going further than that.
So who knows what's going to happen in the future, but right now it doesn't look very hopeful that there's going to be much of a change with regard to NSA.
Well, and as far as making people paranoid about their daily lives, I can't think of a better way to do that than have them read your book, The Shadow Factory.
It's just really incredible, the extent of what's going on and the extent to which you cover what's happening, the depth and the breadth of the whole thing.
And I was just wondering if maybe you could share with the audience a little bit about what was formerly known as the Total Information Awareness Program under Admiral Poindexter.
And whatever happened to that, I guess Congress passed a bill saying we don't want to spend any money on this anymore, which basically illegalized it, and yet in your book you indicate that this is still going on.
And I just wonder what the average person with an office job or who uses the computer to surf around, talk with their friends on the instant message and what have you, what do they need to know about what the NSA knows about them, Jim?
Well, as you mentioned, the problem was that the Bush administration had this TIA, Total Information Awareness Program, and it was very secret.
It was being run by DARPA, the Defense Advanced Research Agency.
And once Congress found out about it, there was an uproar, and they forced the administration to cut off funds for it.
But what they did was they cut off funds for the program in DARPA.
But a lot of the actual aspects of the program, a lot of the projects that the program was working on, got transferred instead to the NSA, a much more secret agency than DARPA.
And as a result of that, NSA began getting heavily involved in the same type of data mining that the Total Information Awareness was involved with.
So what that means is that the NSA is spending a lot of money finding ways to dig into databases to find information that they think will be useful for them.
And those databases contain tremendous amounts of information on average Americans.
It could be your credit card information or, you know, every time you go through a toll booth, one of those electronic toll passes, all that kind of information, all that data gets put into a big hopper, and NSA goes in and draws a lot of that information out.
So Congress paid a lot of attention when it was at DARPA, but now that it's NSA, few people know what they're doing or how they're operating the program at this point.
You know, it's kind of amazing to me.
I know that your book certainly got a lot of recognition in a lot of places when it came out, but it didn't really seem to add to the overall kind of public mainstream media, you know, James Risen, Eric Licklau level of the conversation or whatever, so that even though you kind of broke, I don't know, what, a dozen or maybe even a couple of score different news stories in the book The Shadow Factory, they didn't really all, you know, turn up on the nightly news the next day and become part of the discussion.
And the worst symptom of that, the most obvious symptom of that that I can think of is how you describe the NSA actually buying software from foreign countries, from foreign companies tied very closely to foreign governments to run all this total information awareness.
And, boy, it seems like if there's a headline for The New York Times, it's right there.
I was actually surprised at how much attention the book did get when it came out, because ABC News, for example, did a big piece on it on Good Morning America and World News Tonight and Nightline, and there was quite a bit of public attention in the press on the book when it came out.
Largely it was focused on the whistleblowers that had spoken to me and actually come out and, you know, said that they were ordered to eavesdrop on Americans.
As a matter of fact, within just a couple of hours of the time that the whistleblowers appeared on Good Morning America when the book came out, Senator Rockefeller, who was chairman of the Senate Intelligence Committee, called for a hearing, and after that the House called for a hearing also, or not a hearing, but they called for an investigation.
And so that investigation is still going on.
It hasn't been concluded.
I'm very interested to hear what the final result is going to be when it comes out.
But as you mentioned, one of the areas that didn't receive any focus was the area of these small companies who were working with NSA to actually do the collection, actually collecting the information as it comes into AT&T and before it gets to NSA.
The fact that they've outsourced this work to private companies, and some of these private companies have very close ties to foreign governments such as Israel.
And one of the companies, as a matter of fact, the former CEO of the company, is now a fugitive from the United States hiding in Africa on charges of fraud and theft.
So the fact that the government turns this very sensitive work over to private contractors, I think, should worry everybody.
Yeah, well, and the fact that it's Jay Rockefeller and Dianne Feinstein in charge of the oversight worries me, but we'll have to leave it there.
Thank you very much for your time on the show today.
My pleasure, Scott.
Thanks for having me.
Everybody, that's the great James Bamford.
He's the author of The Puzzle Palace, Body of Secrets, A Pretext for War, and the latest is The Shadow Factory, The Ultra-Secret NSA from 9-11 to the eavesdropping on America.