Warrantless Eavesdropping Timeline

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Contents

1791

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

1952

The National Security Administration is founded.

1972

1974

  • Congress holds hearings on Warrantless Wiretapping and Electronic Surveillance. (part I, part II)

1975-1976

  • The Church Committee hearings document extraordinary federal government abuse of surveillance powers. The Church Committee Final Report finds that covert action has been excessive, has circumvented the democratic process, and has violated the Constitution. The report concludes that Congress needs to prescribe rules for intelligence activities.

1978

January 1978

  • President Jimmy Carter issues an executive order generally governing United States intelligence activities. (E.O. 12036)
2-202. Electronic Surveillance. The CIA may not engage in any electronic surveillance within the United States. No agency within the Intelligence Community shall engage in any electronic surveillance directed against a United States person abroad or designed to intercept a communication sent from, or intended for receipt within, the United States except as permitted by the procedures established pursuant to section 2-201.

October 1978

  • Analysis: By legislative history and by the act itself, inherent Presidential authority to conduct warrantless wiretaps is ruled out and made a crime. (Center for National Security Studies)

1979

May 1979

1980

  • A 4th Circuit decision, U.S. v. Truong Dinh Hung, applying pre-FISA standards, holds that "the executive branch should be excused from securing a warrant only when the surveillance is conducted 'primarily' for foreign intelligence reasons" (629 F.2d 908, 439 U.S. 1326, 667 F.2d 1105 (4th Cir. 1981)). The decision will influence interpretations of FISA language "the purpose" of surveillance is to collect foreign intelligence information as meaning "the primary purpose".

1981

December 1981

December 4, 1981

  • President Ronald Reagan issues Executive Order 12333 establishing the general framework for U.S. intelligence activities. "[A]gencies are not authorized to use such techniques as electronic surveillance, unconsented physical searches, mail surveillance, physical surveillance, or monitoring devices unless they are in accordance with procedures established by the head of the agency concerned and approved by the Attorney General." (E.O. 12333)

1982

December 1982

  • The DOD issues Procedures Governing the Activities of DOD Intelligence Components that Affect United States Persons. (DOD 5240.1-R)

1983

April 1983

  • The DOJ issues Attorney General Guidelines for FBI Foreign Intelligence Collection and Foreign Counterintelligence Investigations. (DOJ)

1993

July 1993

1994

October 1994

  • FISA is amended to authorize secret physical searches of Americans' homes and offices. (Public Law 103-359)
  • Congress enacts The Communications Assistance for Law Enforcement Act of 1994 (CALEA). The act requires telecommunications carriers to enable interception of conversations. (47 U.S.C. § § 1001-1021)

1995

February 1995

February 9, 1995

April 1995

April 17, 1995

July 1995

July 19, 1995

  • Attorney General Janet Reno issues mimimization procedures for intelligence sharing. The FISC is informed of the new procedures and implements them, though they are not formally submitted under the law (FISC ruling, p. 14)

1997

November 1997

1999

December 1999

  • The definition of "agent of a foreign power" is amended to include people working for a foreign government who intentionally enter the US with a fake ID or who obtain a fake ID while inside the US. (Public Law 106-120)

2000

January 2000

January 21, 2000

  • Attorney General Janet Reno augments the July 1995 minimization procedures for intelligence sharing, to permit more sharing of FISA cases with criminal investigation. The procedures are promulgated to address problems identified by the Attorney General's Review Team about the FBI investigation of possible espionage at Los Alamos National Laboratory (GAO-01-780, p. 16).

February 2000

  • The NSA delivers a report Legal Standards for the Intelligence Community in Conducting Electronic Surveillance to Congress. (NSA)

March 2000

  • The government first notifies the FISC of cases of unauthorized dissemination of FISA information to the FBI New York field office. (FISA ruling, p. 16)

April 2000

April 12, 2000

  • NSA Director Michael V. Hayden makes a statement before the House intelligence committee. He outlines regulatory and oversight mechanisms concerning electronic surveillance of U.S. persons, and responds to allegations that NSA provides intelligence information to U.S. companies. (Hayden Statement)

September 2000

  • The government confesses to the FISC some 75 cases of mistatement and omission of material fact in FISA applications concerning terrorist attacks against the United States. (FISC ruling, p. 16)

October 2000

  • The DOJ core group and briefing protocol established in January are temporarily disbanded. (GAO-01-780, pp. 4, 21)
  • A DOJ coordination working group sends a decision memo to Attorney General Janet Reno. The Attorney General takes no action on the memo before leaving office. (GAO-01-780, pp. 22, 23)

November 2000

  • The NSA begins soliciting concept studies on its TRAILBLAZER program. (NSA)

December 2000

  • FISA "chain of command" is amended, FISA judges may take into account the previous behavior and circumstances of a target. (Public Law 106-567)
  • National Security Agency/Central Security Service releases its Transition 2001 document for the incoming Bush Administration, outlining and reasoning proposed structural changes to the organizations. (Transition 2001, AP)

December 28, 2000

2001

February 2001

March 2001

  • The government confesses to the FISC another series of mistatement of material fact in FISA applications. (FISC ruling, p. 17)

April 2001

  • In light of problems, the FBI promulgates detailed new procedures governing submission of FISA surveillance requests. (FISC ruling, p. 17)
  • The DOJ core group, disbanded in October 2000, is reestablished with a broader role. (GAO-01-780, pp. 5, 29, 30)

June 2001

June 12, 2001

  • The Office of Intelligence Policy and Review sends a formal articulation of notification policy to all staff. (GAO-01-780, pp. 32-33)

July 2001

  • The GAO issued a report, FBI Intelligence Investigations: Coordination Within Justice on Counterintelligence Criminal Matters is Limited. (GAO-01-780)
  • The NSA awared a potentially $2 billion contract (Project GROUNDBREAKER) to an alliance led by CSC, and including Verizon as well as many defense contractors, for Information Technology Infrastructure services. QWEST says that they lost this contract as retaliation for not cooperating with domestic eavesdropping. (Sources: Documents: Qwest was targeted, Rocky Mountain News, October 11, 2007, NSA Press Release, July 31, 2007.)

August 2001

August 6, 2001

  • The Attorney General augments the July 1995 minimization procedures for intelligence sharing.

September 2001

September 11, 2001

September 12, 2001

  • FBI Director Robert Mueller and Justice Department officials go to Foreign Intelligence Surveillance Court presiding judge Royce C. Lamberth, who agrees to expedited procedures to issue FISA warrants for eavesdropping. The requirement for detailed paperwork is greatly eased, allowing the NSA to begin eavesdropping the next day on anyone suspected of a link to al Qaeda, every person who had ever been a member or supporter of militant Islamic groups, and everyone ever linked to a terrorist watch list in the United States or abroad. (WaPo)

After September 11

  • NSA Director Michael V. Hayden, without Presidential authorization and using Executive Order 12333 as "authority", begins an expansive surveillance program. The program may be separate from the one authorized by the President in early 2002. (Hayden Speech)
  • Hayden meets with his senior staff. His staff tells him NSA does not need to change its transformation roadmap, it needs to accelerate changes contained in the existing map. (Hayden Statement)
  • President Bush signs an executive order authorizing the "Terrorist Surveillance Program" of warrantless wiretapping US citizens. Much later, in July 2007, DNI McConnell admitted that the order also included several other domestic spying programs, which have never been disclosed. (Source: Letter from J. M. McConnell to Arlen Specter, July 31, 2007)

September 15, 2001

  • The FISC revises information sharing procedures to authorize criminal division attorneys to review international terrorism case files. (FISC ruling, p. 18)

September 18, 2001

  • "Literally minutes before the Senate cast its vote" on the use of force authorization, the administration seeks to add the words 'in the United States and' after 'appropriate force' to the agreed-upon text (WaPo). According to Sen. Tom Daschle:
"This last-minute change would have given the president broad authority to exercise expansive powers not just overseas -- where we all understood he wanted authority to act -- but right here in the United States, potentially against American citizens. I could see no justification for Congress to accede to this extraordinary request for additional authority. I refused."
  • Congress authorizes the use of United States military force against those responsible for the attacks. (S.J. Res. 23)

September 25, 2001

  • John Yoo writes the infamous memorandum opinion asserting basically unlimited Presidential power in fighting terrorism. (DOJ)

October 2001

October 1, 2001

  • NSA Director Michael V. Hayden briefs Congressional intelligence committee members on NSA activities. (WaPo)

October 4, 2001

October 5, 2001

  • President Bush issues a directive on information sharing with Congress. Classified or sensitive law enforcement information will be shared only with the "gang of eight": the Speaker of the House, the House Minority Leader, the Senate Majority and Minority Leaders, and the Chairs and Ranking Members of the Intelligence Committees in the House and Senate. (Directive)

October 11, 2001

you indicated that you had been operating since the September 11 attacks with an expansive view of your authorities with respect to the conduct of electronic surveillance under the Foreign Intelligence Surveillance Act and related statutes, orders, regulations, and guidelines.
...
Therefore, I am concerned whether, and to what extent, the National Security Agency has received specific presidential authorization for the operations you are conducting.

October 18, 2001

In my briefing, I was attempting to emphasize that I used my authorities to adjust NSA’s collection and reporting.

October 21, 2001

October 23, 2001

  • The DOJ Office of Legal Counsel sends a memo to White House counsel Alberto Gonzales, expressing views concerning the legality of potential responses to terrorist activity. The memo states that domestic military operations involving terrorism are not regulated by the Constitution's Fourth Amendment. (Source: Steven Bradbury declaration).

October 25, 2001

  • Congressional intelligence committee heads Porter Goss, Nancy Pelosi, Bob Graham and Richard Shelby are briefed on the Terrorist Surveillance Program. (Source: Negroponte response)

October 26, 2001

  • The USA PATRIOT Act amends FISA. The original standard that "the purpose" of the surveillance is to obtain foreign intelligence information is lowered to "a significant purpose".

November 2001

  • The FISC formally adopts the July 1995 mimimization procedures for intelligence sharing, as augmented in January 2000 and August 2001. (FISC ruling, p. 7, In Re Sealed Case No. 02-001, p. 21-22)

November 2, 2001

November 14, 2001

December 2001

December 4, 2001

  • Senate appropriations committee heads Daniel Inouye and Ted Stevens are briefed on the Terrorist Surveillance Program. (Source: Negroponte response)

2002

General 2002-2004

  • The FBI conducts clandestine surveillance on U.S. residents in substantive and technical violation of surveillance guidelines. (WaPo)

Early 2002

  • A secret presidential order is signed authorizing a warrantless NSA eavesdropping program. (NYT)
  • Government lawyers and Foreign Intelligence Surveillance Court presiding judge Royce C. Lamberth reach a compromise agreement on FISA warrant applications in cases where the government has already conducted warrantless surveillance. These applications are to be carefully "tagged"; they are to be presented only to the presiding judge; and information obtained through warrantless NSA surveillance cannot form the basis for obtaining the FISA warrant, instead, independently gathered information must provide the justification for FISA monitoring. (WaPo)

January 2002

  • DARPA creates the Information Awareness Office.

January 9, 2002

  • The DOJ Office of Legal Counsel sends a memo to Attorney General John Ashcroft, concerning the Attorney General’s review of the legality of the President’s order authorizing the TSP, in the course of considering that program’s reauthorization, which was done approximately every 45 days. (Source: Steven Bradbury declaration).

January 10, 2002

  • In a signing statement on a defense appropriations bill, President Bush disavows a section of the act prohibiting spending on special access programs until 30 days after congressional defense committee notification of the program. (White House)

February 2002

February 8, 2002

  • The DOJ Office of Legal Counsel sends a memo to the counsel of an unknown agency, regarding the legality of certain hypothetical activities. (Source: Steven Bradbury declaration).

February 19, 2002

March 2002

March 5, 2002

March 6, 2002

  • Attorney General John Ashcroft adopts new intelligence sharing procedures, and promulgates them in form of a memo to the FBI and senior Justice Department executives. The new procedures are intended to break down the wall of communication between intelligence gathering and law enforcement. (Sources: FISC ruling, p. 6; In Re Sealed Case No. 02-001, p. 22)

March 7, 2002

  • The Justice Department moves the new intelligence sharing procedures before the FISC. (Source: FISC ruling, p. 4)

March 28, 2002

  • Abu Zubaydah is captured in Pakistan. "The C.I.A. seized the terrorists' computers, cellphones and personal phone directories, said the officials familiar with the program. The N.S.A. surveillance was intended to exploit those numbers and addresses as quickly as possible, they said." (Source: NYT)

April 2002

April 10, 2002

April 17, 2002

  • The government files a supplemental memorandum of law in support of its March 7 motion. (FISC ruling, p. 4)

May 2002

May 17, 2002

  • The Foreign Intelligence Surveillance Court (FISC) issues a ruling granting the Justice Department motion for new procedures, but substantively modifies the procedures. The ruling rejects arguments in the April 17 memorandum, and sidesteps questions of "jurisdiction". (FISC ruling, WaPo)

About May 18, 2002

The new presiding judge is informed of the warrantless surveillance program, and agrees not to disclose the secret program to the ten other FISC judges. She accepts the early 2002 "tagging" compromise regarding FISA warrant applications in cases where the government has already conducted warrantless surveillance. (WaPo)

June 2002

June 12, 2002

June 19, 2002

  • NSA Director Michael Hayden speaks before a joint closed-door session of the House and Senate Intelligence committees. Hayden discloses the September 10, 2001 NSA intercepts of two Arabic-language messages suggesting that terrorist attacks against the United States were imminent. (Source: Cheney's Call, by Murray Waas, National Journal.)

June 20, 2002

  • Vice President Dick Cheney, angry about the leaks of the June 19th disclosures, calls Senate Intelligence Chairman Bob Graham. (Source: Cheney's Call, by Murray Waas, National Journal.)
  • Senator Michael DeWine introduces a bill that would lower the FISA standard of proof for issuance of orders regarding non-United States persons from probable cause to reasonable suspicion (S. 2659).

July 2002

July 8, 2002

July 19, 2002

  • The government tests the FISC by submitting an application expressly proposing using the March 2002 procedures without the May 2002 FISC modifications. (In Re Sealed Case No. 02-001, p. 23)

July 31, 2002

  • James A. Baker for the DOJ makes a statement before the Senate intelligence committee, against the lowered standard of proof for FISA warrants of S. 2659. "Because the proposed change raises both significant legal and practical issues, the Administration at this time is not prepared to support it." (DOJ, Glenn Greenwald, Knight Ridder).

August 2002

August 2, 2002

August 21, 2002

September 2002

  • The NSA contracts out research for a new early-warning datamining program called Novel Intelligence from Massive Data (NIMD). (GovExec)

September 9, 2002

  • The Foreign Intelligence Surveillance Court of Review hears arguments on the DOJ appeal. (Transcript)

October 2002

October 1, 2002

  • The DOD Northern Command (NORTHCOM) in Colorado Springs begins responsibility for homeland defense: it conducts operations to deter, prevent and defeat terrorist threats in the United States and its territories. The command's area of responsibility covers the continental United States, Alaska, Canada, Mexico and surrounding water out to 500 miles. (Global Security, Wikipedia)
Two fusion centers receive and analyze intelligence gathered by other government agencies. The centers conduct data mining, where information received from the NSA, the CIA, the FBI, state and local police, and the Pentagon's Talon system are cross-checked to see if patterns develop that could indicate terrorist activities. (WaPo)

October 10, 2002

  • Joint resolution to authorize the use of United States Armed Forces against Iraq. (H.J. Res. 114)

Around October 10

  • NSA cements a deal with a corporate giant to develop a datamining system. (Hayden Statement, p. 9)

October 11, 2002

October 17, 2002

  • NSA Director Michael V. Hayden makes a statement before the joint inquiry of the Congressional intelligence committees. Hayden discusses intelligence performance prior to the 9/11 attacks, the relationship between SIGINT and law enforcement, and the line between the government's need for counterterrorism information and the privacy interests of individuals residing in the United States. (Hayden Statement)

November 2002

November 9, 2002

  • John Markoff in the New York Times reports that the Defense Advanced Research Projects Agency (DARPA) is developing a tracking system called "Total Information Awareness" (TIA), that claims to detect terrorists through analyzing troves of information. (NYT)

November 18, 2002

2003

January 2003

January 31, 2003

  • Frank Koza, a supervisor at the NSA, orders staff to step up surveillance against UN Security Council Members, as part of a battle to win votes in favor of the war against Iraq. The targets of the heightened surveillance are the delegations from Angola, Cameroon, Chile, Mexico, Guinea and Pakistan at the UN headquarters in New York. The NSA seeks tipoffs on "how delegations on the Security Council will vote on any second resolution on Iraq, but also 'policies', 'negotiating positions', 'alliances' and 'dependencies' - the 'whole gamut of information that could give US policymakers an edge in obtaining results favorable to US goals or to head off surprises'." (Observer).
The NSA memo will later be revealed to have been leaked to the Observer by Katharine Gun, a translator at GCHQ. She will be charged under the Official Secrets Act, with the case dropped when the goverment refuses to produce evidence. (BBC, ZNet)

February 2003

February 25, 2003

  • The DOJ Office of Legal Counsel sends a memo to Attorney General John Ashcroft, concerning the potential use of certain information collected in the course of classified foreign intelligence activities. (Source: Steven Bradbury declaration).

February 27, 2003

March 2003

March 21, 2003

  • The Congressional Research Service issues an updated version of its report "Privacy: Total Information Awareness Programs and Related Information Access". (CRS)

March 25, 2003

  • President George W. Bush issues an executive order amending Bill Clinton's E.O. 12958 on classification of national security information. (E.O. 13292)

April 2003

May 2003

May 2, 2003

  • Deputy Secretary of Defense Paul Wolfowitz directs that the TALON report program be instituted department wide with a memo, “Collection, Reporting, and Analysis of Terrorist Threats to DoD Within the United States." The memo also directs that TALON reports be provided to the DoD Counterintelligence Field Activity for incorporation into a database repository. (DOD IG report, p. 30)


July 2003

July 17, 2003

  • Vice President Dick Cheney, the Director of Central Intelligence and the Director of the NSA make some disclosure of the Terrorist Surveillance Program to Senate and House intelligence committee heads. (Source: John Negroponte response)
  • Following from the briefing, Senator John Rockefeller sends a hand-written letter to the Vice President expressing concern over the program and his inability to evaluate it on legal and technical grounds. He stores a copy of the letter for safekeeping. (Rockefellar)

August 2003

August 12, 2003

September 2003

September 23, 2003

  • Congress denies use of funds for the TIA program, and any successor programs.

December 2003

  • The JPEN system is moved under the U.S. Northern Command (NORTHCOM) in Colorado Springs. (SIGNAL)

2004

  • Sometime in 2004, James A. Baker, the counsel for intelligence policy in the Justice Department's Office of Intelligence Policy and Review, discovers that the government's failure to share information about its spying program had rendered useless the "tagging" compromise the FISC presiding judges had insisted upon to shield the court from tainted information. He alerts Colleen Kollar-Kotelly, who complains to Attorney General John Ashcroft, prompting a temporary suspension of the NSA spying program. The judge requires that high-level Justice officials certify the information was complete, or face possible perjury charges (WaPo). This suspension may possibly be the same as the March suspension reported by the New York Times.

March 2004

March 4, 2004

  • Attorney General John Ashcroft is hospitalized and diagnosed with pancreatitis.

March 9, 2004

March 9 or after

  • Acting Attorney General James B. Comey refuses to give his certification to crucial aspects of the classified program, as required under the procedures set up by the White House. (NYT, Newsweek)

March 10, 2004

  • The White House gives an emergency briefing about the Terrorist Surveillance Program to Gang of Eight congressional leaders. (Sources: AP; Newsweek)
  • Bush chief of staff Andrew Card and White House counsel Alberto R. Gonzales make a late night visit to the intensive care unit of George Washington University Hospital. They try and fail to get Mr. Ashcroft to reverse his deputy. James Comey and FBI Director Robert S. Mueller III are present at the meeting to support Ashcroft, but they were only told of the planned visit by Ashcroft's Chief of Staff David Ayres, who heard about it from Ashcroft's wife. (Sources: Newsweek; NYT, 1/1/2006; WaPo, 05/15/2007)

March 11, 2004

  • House Majority Leader Tom DeLay is given a private briefing on the Terrorist Surveillance Program. (Source: DailyKos diary)

Around March

  • About the time of the hospital visit, the White House suspends parts of the program for several months and moves ahead with more stringent requirements on the NSA program. (NYT)
  • After the hospital standoff, Bush signed two orders modifying his domestic spying programs on March 19 and April 2. (Source: Warrantless Wiretapping: Nine Days of Illegal Intent, based on a list of documents released by the Vice President's office to the Senate Judiciary Committee).

April 2004

April 19, 2004

  • The President speaks about the Patriot Act to an audience in Hershey, Pennsylvania. (White House)
For years, law enforcement used so-called roving wire taps to investigate organized crime. You see, what that meant is if you got a wire tap by court order -- and, by the way, everything you hear about requires court order, requires there to be permission from a FISA court, for example.

April 20, 2004

  • The President speaks about the Patriot Act and information sharing to an audience in Buffalo, New York. (White House)
Now, by the way, any time you hear the United States government talking about wiretap, it requires -- a wiretap requires a court order. Nothing has changed, by the way. When we're talking about chasing down terrorists, we're talking about getting a court order before we do so.

May 2004

May 4, 2004

  • The GAO issues a report on federal datamining programs. (GAO-04-548)

May 11, 2004

  • Chairman of the Joint Chiefs of Staff General Richard B. Myers gives a speech at a technology conference on "Combating Emerging Threats". (JCS)

May 12, 2004

October 2004

  • New York Times reporter James Risen first presents to his editors his story about the secret N.S.A. wiretapping program. (MediaChannel)

December 2004

  • The Heritage Foundation releases a report "DHS 2.0: Rethinking the Department of Homeland Security" (Heritage Foundation). Reorganization of the Department of Homeland Security will be influenced by this report.

December 17, 2004

  • FISA is amended to include the "lone wolf" provision, that non-US individuals engaged in terrorism are defined as agents of a foreign power even when they are not agents of a foreign power. (Public Law 108-458, CRS)

2005

May 2005

  • The Department of Justice Audit Division releases a report "The Federal Bureau of Investigation's Efforts to Hire, Train and Retain Intelligence Analysts." (Audit Report 05-20)

July 2005

July 13, 2005

  • The Department of Homeland Security is reorganized.

Mid July

  • In a Hoover Institution report, Richard A. Posner recommends creation of a new domestic intelligence agency within the the Department of Homeland Security, this to "avoid the deep tension between criminal investigation and national security intelligence that plagues the FBI." Posner points out how the DHS reorganization plan allows for creation of a new agency. (Hoover Press)

August 2005

  • The Congressional Research Service releases a report on the Department of Homeland Security reorganization plan. (RL33042)

December 2005

December 6, 2005

  • President Bush meets with New York Times publisher Arthur Sulzberger and executive editor Bill Keller in the Oval Office in an attempt to talk them out of running the warrantless surveillance story. (Newsweek)

December 15, 2005

  • Reporters James Risen and Eric Lichtblau disclose the warrantless eavesdropping program in their New York Times article "Bush Secretly Lifted Some Limits on Spying in U.S. After 9/11, Officials Say". (NYT)

December 18, 2005

  • President Bush gives an 8-minute live TV address and confirms that he had authorized the warrantless searches and phone taps. (transcript)
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.

December 19, 2005

GONZALES: We've had discussions with members of Congress, certain members of Congress, about whether or not we could get an amendment to FISA, and we were advised that that was not likely to be -- that was not something we could likely get, certainly not without jeopardizing the existence of the program, and therefore, killing the program. And that -- and so a decision was made that because we felt that the authorities were there, that we should continue moving forward with this program.
I authorized the interception of international communications of people with known links to al Qaeda and related terrorist organizations. This program is carefully reviewed approximately every 45 days to ensure it is being used properly. Leaders in the United States Congress have been briefed more than a dozen times on this program.

December 20, 2005

  • Judge James Robertson resigns his position with the FISC, apparently in protest of the warrantless surveillance. (WaPo,