Inside Bush's Secret Spy Net

By KAREN TUMULTY

Around the White House, an abrupt change in the President's public schedule is known as an "audible," and generally, it's just about the last thing anyone wants to suggest to a boss so allergic to disruption that he makes people turn off their cell phones when he is in the room. But last week, when USA Today broke a story that the government has been secretly keeping track of the phone calls that tens of millions of ordinary Americans are making each day, it was George W. Bush who proposed an impromptu appearance before the television cameras. "I want to say something about this myself," he told aides who had gathered in the Oval Office to figure out how to handle the sensation the story was causing across Washington. To reporters, Bush offered no denial, or even much by way of explanation. "The intelligence activities I authorized are lawful," he said, without specifying which laws in particular had authorized them. And he added, "So far, we've been very successful in preventing another attack on our soil."

There was a time--say, four years and nine months ago--when news that the government had been gathering up the country's phone records might have been the making of a scandal, or even a constitutional crisis. But although there have been protests from civil libertarians and some criticism on Capitol Hill, early indications suggest the revelation could actually give a political boost to a President who hasn't had many of those lately. The day after USA Today broke the story that the National Security Agency (NSA) aimed to "create a database of every call ever made" within the U.S., as one of the paper's sources put it, a Washington Post--ABC News poll found that 63% of those asked said they found the NSA program to be an acceptable way to fight terrorism, and 44% said they strongly approved of it. More than half those polled--51%--said they also favor how Bush is handling the question of privacy, which puts his standing on that issue nearly 20 points higher than his overall job-approval rating these days.

Democrats and some Republicans complained that Bush had not been as forthcoming as they would have liked about the mysterious program, which has been under way since 2001--with information provided by the nation's three largest phone companies--and has produced what is reported to be the largest such database ever. But while lawmakers vowed closer oversight--with Senate Judiciary Committee chairman Arlen Specter announcing that he would summon the heads of the three phone companies to testify, under subpoena if necessary--few politicians went so far as to say that Bush should not have done it.

There are plenty of reasons people might accept that the government could have a record of every time they call their mother, their doctor or their paramour. Maybe 9/11 put security above all the country's other values. Maybe, as the reality-television craze suggests, most citizens don't cherish privacy as much as civil libertarians do. Or maybe Americans figure that if Verizon and Ma Bell can keep track of whom they call--and that, in exchange for a discount card, Safeway gets to compile a database of what they eat and Barnes & Noble of what they read--there's not much harm if the government knows as well.

But Americans still have very few details about the phone-mining operation, which the President maintains does not include routine eavesdropping on phone calls. And given the recent slide in the public's confidence in Bush, asking the public to trust him to balance the values of privacy and security could turn out to be a dicier proposition than it was in December, when the New York Times revealed that the President had authorized the supersecret NSA to conduct no-warrant wiretaps of hundreds and perhaps thousands of phone calls and e-mail messages between people inside the U.S. and parties overseas.

The privacy vs. security debate has been a winning one for Bush, but the political landscape around him has shifted considerably. That is especially true among his conservative base, where trust in the President has dropped sharply. A Republican strategist close to the Bush team says of the secret collection of the nation's phone records, "On the surface of this, it appears government is extending a little farther than was discussed last fall. This is the kind of thing that a lot of core conservatives aren't crazy about. They see it as government overstepping its bounds, without it being clear what the end product is and how all this information is going to be used."

The news also comes at an inopportune moment, given that Senate confirmation hearings are expected to begin this week for General Michael Hayden, the former NSA director whom Bush has nominated to be director of the Central Intelligence Agency. (See related story "Thinker, Briefer, Soldier, Spy.") Some in Congress were already concerned that putting a general in charge of the CIA would further demoralize an agency that is feeling encroached upon by the Pentagon, which is pushing to expand its own human spying capabilities. In private visits with lawmakers last week, Hayden had put many of those doubts to rest with assurances of his independence. But now, the NSA's terrorist-surveillance program is likely to take center stage at the hearings, given Hayden's role as its architect and the White House's earlier affirmations that it involved only international communications by people with "known links" to al-Qaeda and did not have ordinary Americans in its sights. The latest revelations could raise "additional substantial questions about the general's credibility," says Oregon Democrat Ron Wyden, a Senate Intelligence Committee member.

There are also new questions being asked about the government's previously disclosed eavesdropping on international calls, after the Justice Department's ethics office last week dropped its investigation into the conduct of its lawyers who gave legal advice on that program. The investigating lawyers were denied the necessary security clearances to look into the matter. Asked what agency refused the access, Justice Department spokesman Brian Roehrkasse told TIME: "We don't discuss internal decision-making processes." In a letter to Attorney General Alberto Gonzales that was obtained by TIME, Senate Judiciary chairman Specter complained, "I cannot understand why the department has denied the clearances necessary for this degree of modest, internal oversight. I urge you to reconsider this decision."

Officials insist that the NSA is not eavesdropping on the millions of law-abiding Americans whose phone records it has collected but merely compiling what the telephone companies refer to as "call detail" information, recording what number called what number, when and for how long. "It's just digits," insists a White House official. "Just a bunch of data, a bunch of numbers." But while the information that is being turned over to the government does not include the identities of those who own the phone numbers on either end of a call, that is often easy enough to figure out through publicly available search engines, including Google.

The idea is to sift through all that data, using a process called link analysis, searching for patterns--a burst of calls from pay phones in Detroit to cell phones in Pakistan, for instance. The NSA can whittle down the hundreds of millions of phone numbers harvested to hundreds of thousands that fit certain profiles it finds interesting; those in turn are cross-checked with other intelligence databases to find, perhaps, a few thousand that warrant more investigation. "That data can be extremely useful, even if you never know who is on the other end of the phones," says Bryan Cunningham, an ex-CIA lawyer and former deputy legal adviser to the National Security Council in the Bush White House. "You can create all kinds of early-warning systems once you understand the patterns. You can tell the computers: You tell me when they make the following kinds of phone calls, because that tells me I've got to do something to disrupt an attack." Says Richard Falkenrath, who was deputy homeland security adviser in the White House during Bush's first term: "I was a consumer of link analysis that may well have been informed by this collection effort. I didn't know how they were getting it, but I'm glad they were getting it."

Intelligence experts say figuring out the patterns of communication helps in understanding a movement as amorphous and diffuse as al-Qaeda. The CIA's database of suspected terrorists worldwide has tripled in the past four years, to about 190,000, says William Arkin, an independent intelligence analyst who monitors NSA and other military spy organizations. "In terms of link analysis, social analysis and a better understanding of al-Qaeda and the nature of terrorist networks, I don't think it could have been done unless we had employed some of these technologies."

There are many avenues the government may take legally, if the NSA comes across a call pattern that warrants further investigation within the U.S. If the NSA wants to wiretap domestic calls, the 1978 Foreign Intelligence Surveillance Act (FISA) requires it or the FBI to seek a special court warrant. The FISA court received 10,617 such applications from 1995 to 2004 and approved all but four of them. And under the Patriot Act, if the FBI certifies that it has grounds, it may also collect more information, such as the customer's name, address and billing information. Last year the FBI issued 9,254 such orders, known as National Security Letters, to obtain information about 3,501 people from banks and phone, Internet and credit-card companies.

In part because so little is known about the phone-call collection program, experts say they aren't entirely sure whether it is legal. The consensus seems to be that it probably does not violate the Fourth Amendment ban on illegal search and seizure, but it may run afoul of several statutes governing the privacy of telephone records. The three companies that turned over their customers' records--AT&T, BellSouth and Verizon, which combined carry roughly 80% of the nation's landline calls and half the wireless ones--all issued terse statements saying they valued their customers' privacy and did nothing illegal. "We get requests and subpoenas for records from cheating husbands and wives to sheriffs to the FBI down in Miami wanting a wiretap," Jeff Battcher, BellSouth's vice president of corporate communications, told TIME. "We know how to do this, and we would never give out any confidential customer information without having a subpoena or a write-off from a judge."

A fourth firm, Qwest, refused the government's request for its records, despite what USA Today reported was heavy pressure by the NSA, including a suggestion that Qwest might not get future classified work with the government. In a written statement, the attorney for former Qwest CEO Joseph Nacchio said Nacchio believed that "these requests violated the privacy requirements of the Telecommunications Act."

Bush was forceful in asserting what the newly revealed data-mining program isn't doing. "We're not mining or trolling through the personal lives of millions of innocent Americans," he insisted. "Our efforts are focused on links to al-Qaeda terrorists and its affiliates." But no one in his Administration was willing to shed any light on how it is using the information it is getting or what the value of the whole exercise has been. White House officials hint that only long-distance calls, not local ones, are in the database, but they won't go much further. Even some of the President's friends say they need more answers. Asks Grover Norquist, a G.O.P. activist and an important White House ally: "The question for the government is, What was the point of this? What did this do for us? What is it good for?"

Given the President's expansive view of his powers in fighting terrorism, the revelation has only fueled speculation as to what else the government may be doing. Attorney General Gonzales hinted in early April that the President may even have the power to order wiretaps on purely domestic phone calls without court approval. "I'm not going to rule it out," he told the House Judiciary Committee. Says Dale Carpenter, a constitutional-law expert at the University of Minnesota: "If the Administration claims literally bottomless Executive power to defend the country--and it has--then I think we can expect that there are many such secret programs out there that we haven't yet learned about and that members of Congress may not even know about." But as Bush's pick to head the CIA prepares for his Senate confirmation hearing this week, General Hayden can be certain they will be asking.

With reporting by Mike Allen, Brian Bennett, Timothy J. Burger, Massimo Calabresi, MARK THOMPSON, Douglas Waller/ Washington