By Senior investigative producer
NBC News
updated 12/21/2005 6:16:36 PM ET 2005-12-21T23:16:36
ANALYSIS

It’s not your father’s NSA, and that may be at the heart of the current domestic spy scandal.

The National Security Agency, the nation’s supersecret electronic spy agency, has moved from just intercepting “information in motion” to seeking out “information at rest.” It is seeking out information, not passively waiting for it to arrive, an outgrowth of Bush administration policy that favors intervention rather than retaliation after the fact.

What’s the difference?

Information in motion is data moving between one person or computer to another. Information at rest is that which sits in a computer or in a cell phone that is vulnerable to penetration via the Internet. One is interception, the other intrusion.

And that distinction, say both government officials and intelligence historians, could be the reason why President Bush decided to go around the Foreign Intelligence Surveillance Act (FISA), as his five predecessors did, and instead relied on the executive powers of the president to order the spying. He contends that the FISA Court, which approves secret warrants for spying inside the U.S., did not permit the intelligence community to move quickly enough to protect the American people.

At least one member of the secret court, U.S. District Judge James Robertson, strongly disagreed with Bush's contention and is resigning from the court in protest.

A dissenting view
But officials and others say the issue is more related to the manner in which the information was gathered rather than whether the FISA court can act fast. The administration wants a web cast wide, broad enough to gather information on a broad spectrum of individuals in real time, an eventuality the administration would argue that was not foreseen by those who wrote the Foreign Intelligence Surveillance Act in 1978.

Video: Bush forceful on spying “It’s a technical issue, one related to link analysis,” said one former intelligence official in trying to explain the need without providing detail on why the president shunned the FISA Court. 

What does that mean? 

William M. Arkin, an NBC News military analyst, thinks he knows.  Instead of simply intercepting a single phone or a single e-mail address, the NSA is now taking whatever it can get from a variety of sources, including the hard drives of terrorist computers, and creating wide “influence nets” or “social network analyses” that encompass not just the original target, but his or her contacts. In some cases, the casting of such a wide net can lead to surveillance of thousands of people.

“It’s much broader than just telephone calls or emails,” says Arkin. “It’s taking an enormous amount of data — say all the phone calls between the U.S. and Pakistan — and sorting it and resorting it in different ways.”

That information, he says, can be “data-mined” to produce a network ideal for looking at a terrorist organization and its various linkages. 

The means by which people are identified as terrorists changes as well in this new world.  In fact, the first step may not be a name, but a profile.

“One standard, the old one, is that you’re monitoring a person or group,” Arkin says. “The other is you have established a profile and you’re looking for people who might fit that profile … for example, Muslim men who go to strip clubs. Don’t laugh. All the 9/11 hijackers went to strip clubs.”

Massive data grabs
“Motivations, socioeconomic backgrounds, connections, you might able to identify them in the massive link-analysis world, it’s about extracting intelligence from massive amounts of data," Arkin says, "In fact, the NSA secret program to develop advanced analytic techniques is called NIMD, Novel Intelligence in Massive Data.”

Drawing those “influence nets” requires that data must be identified, captured and analyzed.

“The level at which the cat and mouse game between the NSA and the terrorists is being played out is incredibly elevated”, says Patrick Keefe, author of “Chatter: Dispatches from the Secret World of Global Eavesdropping”. It is not just can you listen in on a phone call. That’s very good for tracking info and people, but the desire is to get at the computer themselves get at information at rest.”

That "take" can include telephones, faxes and e-mails, of course, but also cell phone data, text messaging, chat room identities and information contained on a target's computer hard drive, including contacts, word documents, audio and video clips, etc. In theory and in practice, all of it is remotely available if the computer is connected to the Internet. In some cases, if the NSA can get collection devices close enough to a computer, it can even access files if the computer is not connected to the Internet.

“So you essentially get a reversal of the traditional paradigm where you or I would go to the computer,” adds Keefe. “We would sit down at our computer and we look out at the Internet through the computer.  At the NSA, they actually use the Internet to look into people's computers.”

Casting a very wide net
The intelligence community, while not confirming specifics, has given hints of how broad the net is. In a statement to the 9/11 Commission in 2002, the FBI described its participation in a secret center in northern Virginia, the National Media Exploitation Center.

“The National Media Exploitation Center was established in late 2001 to coordinate FBI, CIA, the Defense Intelligence Agency (DIA) and National Security Agency (NSA) efforts to analyze and disseminate information gleaned from millions of pages of paper documents, electronic media, videotapes, audiotapes, and electronic equipment seized by the U.S. military and Intelligence Community in Afghanistan and other foreign lands,” the FBI statement read.

And it’s not just about gathering data on a possible suspect, it’s about finding them.

All of this data can be collected for creating profiles that can help track an individual. The NSA has developed "Geo-Location" profiles. Once it knows what media a target uses, it can track him or her as they move, permitting the U.S. or its allies to track them, sometimes in real time.  In fact, the NSA doesn't even need to know a target's identity. If link analysis tips the NSA to someone who has an interesting profile, the CIA or friendly intelligence service can track that individual to determine his or her identity.

A Western diplomat told NBC News this spring that the NSA had the city of Riyadh so “wired” that, using traditional methods and geo-location profiles, it was able to provide Saudi security forces with the addresses of specific "safe houses" where al-Qaida operatives were hiding.

In response, the diplomat said the terrorists were forced to communicate via short "bursts" of communications while driving at high speed around the Saudi capital's ring road. The fact that the diplomat knew of the counterstrategy indicates that the U.S. knew it as well and was capable of targeting it. 

Of course, the challenge of all of this is finding the right data. 

The problem is being able to pick the electronic needle out of the electronic pile,” says Jim Bamford, author of several books on the NSA, including the classic “Puzzle Palace.” “And that's always been the, the failing of intelligence community, not just not collecting it, which they're able to do very well, but actually being able to zero in on one key communication.

“If you look at it, you can pick up 2 million pieces of communication an hour from a listening post, you can have computers filter out a lot of that, but eventually in order to get a piece of that communications from that huge stream into a memo on the president's desk, it's going to take human beings and that's sort of the Achilles' heel for NSA.”

More changes to come
The future is more likely to produce more data —different data.

“What about London and the bombings of the Underground?” asks Arkin. “What’s to stop intelligence agencies from going back and looking at surveillance video? You could use a combination of biometrics and other data obtained on motivations and social network analysis.  An intel analyst could hope to identify tip-offs that might be automated in the future: a combination, say, of facial recognition with groups of men wearing backpacks.” 

It is not an exaggeration to suggest that the capabilities available could create, if left unchecked, the ultimate police state. The question is: Who watches the watchers? Who monitors the communication monitors?

President Bush says there are enough safeguards in place. 

“We're guarding the civil liberties by monitoring the program on a regular basis, by having the folks at NSA, the legal team, as well as the inspector general, monitor the program, and we're briefing Congress,” he said at his news conference on Monday. “This is a part of our effort to protect the American people. The American people expect us to protect them and protect their civil liberties. I'm going to do that. That's my job, and I'm going to continue doing my job.”

Not good enough, say congressional and other critics, who note the restrictions placed on congressional oversight.

The domestic spying is a "waived special access program" meaning that the administration presented it to the so-called “Big Eight” on Capitol Hill — the speaker and minority leader of the House, the majority and minority leaders of the Senate, the chair and ranking member of the Senate Select Committee on Intelligence and the chair and ranking member of the House Permanent Subcommittee on Intelligence. 

Checks and balances questioned
These "waived SAP's" are the most secret programs carried out by the intelligence community and the congressional leaders are not permitted to discuss with anyone else — not the staff of the committee, not the counsel of the committee, not other members, not their families, etc. 

Unless a majority of the Big Eight objects, the program is deemed approved, or "waived," and goes forward. As far as we know, only one of the Big Eight, Senator Jay Rockefeller, D-W.Va., objected. 

Rockefeller went so far as to pen a handwritten letter to Vice President Dick Cheney expressing not only his reservations about the plan, but also about the restrictions placed on him.

As for the program itself, Rockefeller, then the ranking member of the Senate Intelligence Committee, wrote of his “concern regarding the direction the administration is moving with regard to security, technology, and surveillance.”

On the lack of oversight, he was just as troubled.

“Clearly, the activities we discussed raise profound oversight issues,” Rockefeller wrote.  “As you know, I am neither a technician nor an attorney. Given the security restrictions associated with this information, and my inability to consult staff or counsel on my own, I feel unable to fully evaluate, much less endorse, these activities.”

Over the next few months, the NSA’s capabilities are likely to be exposed and debated, something the agency is not happy about. It never is. The question is whether the exposure and debate will result in an advantage for the terrorists, as the president argues, or an advantage for civil liberties protection, as his critics hope.

Robert Windrem is an investigative producer for NBC News, based in New York

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