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INSIGHT

Spying in America

Aired February 6, 2006 - 18:00:00   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

(BEGIN VIDEO CLIP)
JONATHAN MANN, CNN HOST (voice-over): I spy.

ALBERTO GONZALES, U.S. ATTNY. GEN.: The terrorist surveillance program is necessary, it is lawful and it respects the civil liberties that we all cherish

MANN: U.S. lawmakers look into a domestic spying operation the Bush administration says the lawmakers approved.

(END VIDEO CLIP)

MANN: Hello and welcome.

President Bush and the Republicans who run the U.S. Congress are not very popular with voters right now, but they have on big asset. Polls show that Americans trust the president and his party with their safety. Even after the revelation that the administration sidestepped the courts to tap phone calls without a warrant, a majority of ordinary Americans supported the president. In Washington Monday, very clear evidence that powerful figures in his own party do not.

On our program today, in the margins of the war on terror, the war over wiretaps.

We begin with Jonathan Rugman.

(BEGIN VIDEOTAPE)

JONATHAN RUGMAN, ITV CORRESPONDENT: A quick comment before you go in?

UNIDENTIFIED MALE: I've got a hearing to start here in three minutes.

RUGMAN: Do you think the president broke the law, sir?

UNIDENTIFIED MALE: Come to the hearing.

UNIDENTIFIED MALE: We turn now to the Attorney General of the United States.

RUGMAN (voice-over): Another week, another hearing on America's unbridled war against terror. The question today, whether the president broke the law by authorizing the wiretapping of thousands of phone calls without a court warrant.

GONZALES: The president has the duty and authority to protect America from attack.

SENATOR PATRICK LEAHY (D-VT): In America, our America, nobody is above the law, not even the president of the United States.

RUGMAN: It was in December that a newspaper revealed that the administration's eavesdropping department, the National Security Agency, had been listening in on as many of 5,000 Americans, regardless of a court order, forcing Mr. Bush to unleash this PR offensive.

GEORGE BUSH, U.S. PRESIDENT: We must be able to connect the dots before the terrorists strike.

Let me put it to you in Texan. If al Qaeda is calling into the United States, we want to know.

We will not sit back and wait to be hit again.

RUGMAN: Yet why no warrant? After all, you can apply for a warrant after the tapping has begun and of the thousands of warrants requested, only about a dozen have ever been turned down.

Mr. Bush's attorney general today explaining that lawyers get in the way.

GONZALES: Just as we can't demand that our soldiers bring lawyers onto the battlefield let alone get the permission of the attorney general or a court before taking action, we can't afford to impose layers of lawyers on top of career intelligence officers.

UNIDENTIFIED MALE: What's really at stake here is the administration has made assertions in the past where their credibility has somewhat been questioned.

RUGMAN: But what bothers many Democrats is what Mr. Bush said in 2004 when he apparently denied any warrantless wiretapping was occurring.

BUSH: 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.

RUGMAN: Or maybe not.

UNIDENTIFIED MALE: Covert activities on the part of our government that have been very valuable.

RUGMAN: Today's hearing a throwback to '70s Washington, to another president spying on his enemies without a warrant.

UNIDENTIFIED MALE: Claiming national security, Richard Nixon illegally wiretapped innocent Americans.

UNIDENTIFIED MALE: When the president does it, that means that it is not illegal.

RUGMAN: Polls suggesting that Bush, like Nixon before him, has fallen foul of a privacy obsessed public. Yet the Republicans hoping to repeat their election winning strategy: paint the Democrats as weak in the fact of attack.

GONZALES: We had just been attacked and we had been attacked by an enemy within our own borders, and that.

LEAHY: Attorney General, I understand. I was here when that attack happened.

RUGMAN (on camera): There is an age-old tension between the president's constitutional duty to defend America and his duty to obey laws passed by Congress.

Mr. Bush's no holds barred approach now in danger of backfiring with the public, unless, that is, America is attacked again.

Jonathan Rugman, Channel Four News, Washington.

(END VIDEOTAPE)

MANN: With so much talk about wiretaps, we thought we'd take a closer look at the process. Brian Todd traces how a phone call that may start in a typical U.S. home ends up at the NSA.

(BEGIN VIDEOTAPE)

BRIAN TODD, CNN CORRESPONDENT (voice-over): Experts say this shouldn't even be called wiretapping because no one climbs a telephone pole and physically taps your phone.

JAMES BAMFORD, NSA EXPERT: They eavesdrop on entire streams of communications coming into the United States.

TODD: James Bamford has written two extensive books on the National Security Agency, but is now suing the NSA, seeking to stop the government's eavesdropping program.

Bamford and other experts say a typical eavesdropping operation begins when a phone call from overseas or from the United States to an overseas location passes through one of several huge routing centers owned and operated by the major telecommunications companies.

By law, Bamford says, the NSA has access to those routing centers. The agency can also access Internet hubs to pick up emails.

BAMFORD: And then it sifts it through computers. Those computes are filled with people's names, telephone numbers and email addresses and other identifying information. That computer gets all the signals from the incoming communications that go through it and it's kicked out. It's just as if you're doing a Google search.

TODD: That NSA computer, says Bamford, matches those calls with names, phrases, key words that have been previously used in suspicious chatter. If enough important matches are made, Bamford says, a shift supervisor at NSA makes the key decision of whether to listen to more communications and share with other intelligence agencies.

A former NSA director who's still one of the nations top intelligence officials says those people are more than qualified to make that call.

GEN. MICHAEL HAYDEN, NATL. INTELLIGENCE AGENCY: There are only a handful of people at NSA who can make that decision. They're all senior executives. They are all counterterrorism and al Qaeda experts.

(END VIDEOTAPE)

MANN: Contacted by CNN, a current NSA spokesman issued a statement saying that the terrorist surveillance program is highly classified and discussing it would compromise its effectiveness.

He also wouldn't comment on James Bamford's litigation.

We also got in touch with the major telecom companies to ask them abut their level of cooperation with the NSA effort. Spring, Verizon and AT&T all said they wouldn't comment.

Coming up on INSIGHT, decoding al Qaeda. We'll have more on how the Internet has become a medium for messages of terror after the break.

(COMMERCIAL BREAK)

MANN: Osama bin Laden's satellite phone is now part of the lore of modern American espionage. President Bush says that the U.S. government was able to track bin Laden through his satellite phone until journalists made the eavesdropping public. But bin Laden's use of the phone was publicly known years earlier and according to the "Washington Post," it was until after bin Laden stopped using it that newspapers first reported Washington had been listening in.

Welcome back.

Intelligence experts know of a lot of different ways for terrorists or outlaws to communicate. CNN's Kelly Wallace takes us through a few with a former NSA insider.

UNIDENTIFIED MALE: What did NSA get for us?

UNIDENTIFIED MALE: They intercepted a call to Dima (ph) from an American.

UNIDENTIFIED MALE: Get out of town.

UNIDENTIFIED MALE: Problem is, we can't listen to it.

UNIDENTIFIED MALE: Says who?

KELLY WALLACE, CNN CORRESPONDENT (voice-over): Hollywood's take on supersensitive spying by the National Security Agency on American citizens. A program so secret, no one in the know will talk about it, so we had to rely on experts like Ira Winkler, a former NSA analyst turned computer security guru who wrote the book "Spies Among Us: How To Stop Spies, Terrorists, Hackers and Criminals You Don't Even Know You Encounter Every Day."

Winkler says to avoid detection, bad guys might scramble data before it's transmitted.

IRA WINKLER, SECURITY EXPERT: Nice simple file like this looks like that.

WALLACE: Other ways would-be terrorists try to fly below the radar online, hiding data inside a picture, setting up free email accounts -- numerous providers offer these -- and using codes to communicate.

WINKLER: There is just so much data out there that it's almost impossible to find the right people that you're looking for just randomly.

WALLACE: Like Winkler, Rebecca Givner-Forbes spends her days monitoring the Internet. She's an analyst with the Terrorism Research Center. Her specialty, jihadist Web sites and chat rooms.

REBECCA GIVNER-FORBES, TERRORISM RESEARCH CTR.: This particular discussion thread has an amateur aspiring jihadist asking for help with his explosives receipt.

WALLACE: She says it's hard to know if a posting is coming from inside or outside the United States.

GIVNER-FORBES: The software that they use, these message forums, allows for private messaging between members through the Web site, so they never even have to do so much as give out an email address.

UNIDENTIFIED MALE: I'm going to bounce this call through nine different relay stations throughout the world and off two satellites.

WALLACE: Hackers in the movie sneakers show just what the NSA may be up against when it comes to monitoring phone calls. Adding to the challenge, Winkler says, terrorists taking advantage of disposable cell phones and specialized telephone cards that can't be easily traced.

WINKLER: I could walk into any store and buy a card like this, and then I could plug it into this phone that I bring with me all over the place, and that card is basically good anywhere in the world.

UNIDENTIFIED MALE: Find out where the phone was when it received the signal.

WALLACE: But as we see in "E-Ring," NBC's drama set inside the Pentagon, surveillance is just one part of the mission. Figuring out what it all means may be even more difficult.

(on camera): And that's a real life challenge for the NSA, no matter how the debate ends over the legality of its eavesdropping on American citizens.

Kelly Wallace, CNN, New York.

(END VIDEOTAPE)

MANN: More now from Ira Winkler, the former NSA analyst you just saw in that report. We talked a short time with him about why al Qaeda would have communicated with something as obvious as cell phones. And if that helps or hurts the U.S. government's case for secret wiretapping.

(BEGIN VIDEOTAPE)

WINKLER: It's very possible that Osama bin Laden used a cell phone and things like that. I mean, you have to remember that for a long period of time, Osama bin Laden wasn't a very active target until about 1998, when the Cole started. So it wouldn't be unusual for a lot of people to take next to no precautions to, you know, protect themselves.

MANN: So that having been said, does the attorney general, does the administration have a point when they say that this is a crucial instrument on the war on terror that should be used and, in fact, should be used secretively?

WINKLER: There are actually two issues involved. Should it be used? The answer is yes, and as a matter of fact there is the ability for them to do it legally. What they're actually talking about now is doing it without obtaining warrants, once you have an idea of who you're looking at.

You know, frankly, they can do whatever they want. All they have to do is get a warrant, which they can get up to three days after the fact, and if there was a problem with that, all they had to do was theoretically go back and ask for more time to get better information for the warrants.

However, you know, there is potentially very valuable information. But, again, the way they're doing it is illegal according to, you know, the FISA act.

MANN: Now, this used to be your line of work, so let me ask you as someone who practiced this kind of craft, is there any reason, whether potentially a delay, potentially a leak, is there any problem that you could see that would prevent them from getting warrants, either before or after, in the way foreseen by law?

WINKLER: Frankly, the only thing that would really prevent them from doing this would be laziness. The FISA court has fully cleared people there. If they need -- you know, they claim that, for example, the warrants take dozens of pages to write and things like that. Frankly, I have to guess -- I haven't seen one, but a lot of it, like most legal pleadings, are pretty much boilerplate, so that they look a lot alike and there are probably about 10 to 15 percent of the document which might be relatively unique to the specific case.

However, you know, if they do want to -- if they have ever had a problem that three days wasn't enough time to go back and get a warrant because they were just processing so much data, then they could theoretically have asked Congress for the ability to get more time. But it doesn't look like they even tried that. And as a matter of fact, given what the FBI -- public statements out of FBI officials, I mean, frankly, the data from NSA was considered near worthless and put the agents, I word I believe was quoted was a boondoggle, where agents were going out and following up leads from NSA due to this program, and they were wasting their time.

Frankly, what going through the process of a warrant would probably do is put some quality control into who they go out and investigate. Again, they could do all of this. Anything they want to do now, they could do it. All they have to do is get a warrant and, frankly, the FISA court, I think the statistics that are publicly recorded say that they've only turned down five warrants, or five warrant requests in the last 30 years. I mean, that's not a court which is unfriendly to that sort of wiretaps if they were asked.

MANN: Now, if what you're saying is true and what they're doing is ineffective, potentially illegal and also, as we've seen, among many Americans and many lawmakers unpopular, what else could they be doing?

Your book offers the promise of telling people how to stop, to quote you, "spies, terrorists, hijackers and criminals." How should they be doing it?

WINKLER: In the book, "Spies Among Us," I talk that everybody is pretty much out there doing this on a regular basis. Frankly, I think the government should go ahead and continue the program if they would do it legally. And, frankly, not only legally, but if they would go ahead and say given the fact that we need to get warrants, we'd better really give some quality control to this. They should go ahead, look at the data, and before they send out FBI agents who are already overworked on a bunch of ridiculous leads, they should go ahead and make sure that if they are going to tap people, investigate people or cause the investigation of people, that they do some thorough background before they go ahead and start doing this.

Again, they have the ability to do whatever they want. All they have to do is get a warrant from the FISA court. You know, the average person on the other hand, they really have a lot more to worry about from Google as opposed to the U.S. government, and that's a point that gets often overlooked.

MANN: Just one last quick question for you. If indeed the administration, the government, could do all of this anyway, do it legally, do it with much less of an uproar, why do you think it doesn't?

WINKLER: If you ask me, my personal opinion is sheer arrogance. I mean, they think that, you know, -- again, the law was put into effect after proven abuses by the Nixon administration. The law was specifically there, put in place against the presidential authority to tap U.S. citizens, especially with regard to, you know, with regard to the use of NSA and CIA and other foreign intelligence agencies. The law was put in place to prevent the U.S. government -- for the presidential authority from using these foreign intelligence agencies against the American public without a check and balance.

I don't know why they want to bypass the check and balance, because again, this whole controversy would have been completely prevented if they would have gone ahead and got the warrant. I mean, I hear the administration claiming gee, now that this has been brought to the public, now the terrorists know what we're looking at. Frankly, the terrorists already assumed we were looking at this data.

You know, the terrorists already assume that NSA is looking at everything they do. That's why in the report you saw there is so much use of theoretically encryption, steganography, you know, where you go ahead and try to hide data in pictures, as well as using anonymous accounts and bulletin boards and everything else. The terrorists already know we're doing this. The only people this is embarrassing at the moment, or the only thing this is stopping is, frankly, it's more an embarrassment to the administration than it's hurting any sort of national security implications, because the terrorists and, frankly, every good and bad guy out there, already assumes NSA is reading their email.

(END VIDEOTAPE)

MANN: Ira Winkler.

We take a break now. When we come back, one last time, whose phones is the government tapping. Some Americans aren't waiting to find out.

We'll be back in a moment.

(COMMERCIAL BREAK)

MANN: There are an estimated 3.5 million Arab Americans. One of the largest concentrations is in the area around Detroit, Michigan. A group of Detroit organizations has filed a lawsuit against the eavesdropping, arguing that Arab Americans have a well-founded belief that their communications are being intercepted.

Welcome back.

One of the many secrets in the eavesdropping program is whose phone calls the U.S. government has actually been bugging.

We're joined now by one man who says he might be a target and isn't happy about it.

Nabih Ayad is an attorney operating out of Dearborn, Michigan who is party to the suit against the eavesdropping program.

Thanks so much for being with us.

Do you have a theoretical interest in this suit or do you really think your phone is bugged?

NABIH AYAD, ARAB AMERICAN ACTIVIST: Both, actually, Jon. I have a theoretical interest and I believe that my phone has been tapped. Given the underlying circumstances of my previous clients, if you remember post- 9/11 and even before 9/11, we've had numerous high profile cases that the government was watching very closely, that, quote/unquote, that the government felt were "terrorist relate" or they were on the terrorist list, as a number of the cases I had, that the government classified as related to terrorism.

MANN: If I'm not speaking out of turn here, the government accused your clients of being involved with Hezbollah and with the Taliban. So let me ask you, if that's the case, if you think your phone is being bugged, do you just stay off the phone? Do you use the phone differently? How does that actually affect you?

AYAD: It actually -- it's very easy just to point to those couple of cases that we had where the government actually classified them as terrorism and those ones related to Hezbollah or Taliban or what have you. But the great majority of my clients, if you know, Jon, the background is immigration and criminal defense and civil rights. We're on the phone, we deal numerous times with clients overseas, all over the Middle Eastern countries, and given the fact post-9/11 you can be sure my phone will be tapped considering the clients.

Now we have a number of individuals that we have to do immigration work, who need documents from overseas, who need to, say, form a defense, there are relatives out there. Those relatives maybe provide the money for another relative that's in this country to have a defense. Those people we need to speak to. We need to speak to witnesses. We need to form a solid defense which our constitution allows every citizen to have.

MANN: I'm going to presume that everything you're doing is legal and would be clearly seen as legal by any authority in the United States and that the same is true of your clients.

There are a lot of Americans who on a day like today say if you're doing nothing wrong, you have nothing to fear.

AYAD: Absolutely, but then again that's like taking the Constitution, putting it in a bag and throwing it on the side when you most need it. I mean, let's look at what good is it if the government is -- at the most time when our people really need the Constitution to safeguard us, the government is basically pushing it to the side -- the Bush administration with John Ashcroft and his legacy here onto Gonzales -- is basically pushing it to the side and saying, listen, I know we say you have the First Amendment and Fourth Amendment but, you know what, we're going to put those on the side right now because really we want to, in the name of national security, we're going to throw away your constitutional rights.

And then if you look at it really, John, we've basically become like a third world nation who are not secured by our constitutional rights, and our constitutional rights then become nothing and we become a society without any democracy or free speech.

MANN: Now, part of what the Congress is so interested in is the fact that the administration bypassed the special court that had been established to approve these wiretaps. If the government was doing what it is supposed to do under the statute and interpreting the law the way the Congress asks and going to court, would you object or would you say that's the burden of living in a free society of laws in a time of national emergency? Would it be OK with you if the Bush administration was going to court and still, in theory, tapping your phone?

AYAD: If that's what the Congress asked for, that's the representatives of the American people, that would be fine. That is the law. We will follow the law. We abide by the law.

However, what this administration has been doing post-9/11 is really trampling all over constitutional rights for not only Middle Easterners but all Americans in general, you know. Every American has to be concerned about that.

MANN: Now, I want to come back to something you said just a moment ago, because it really cuts to the center of this. It's very easy to look at this. It's very easy to look at the abuses of Guantanamo Bay, the abuses of Abu Ghraib, and say that the United States is going through a very dark period in its history. As you just said, it's become like a third world country.

But I'm wondering if you, as a member of an organization that is actually suing the government, as a member of an organization that's actually putting this in the public arena, are in any way gratified by just how many Americans are trying their best to make sure that their rights and their freedoms are protected and how receptive the courts are to at least hear their argument.

AYAD: That's understandable, and you can sympathize with their views. However, Jon, the bigger picture and the more important picture is, we should not let our fears conquer our judgment. And if we look at every bad decision that's ever made throughout our history, it's when Americans were at their lowest peak. It's post-9/11 era, it's post-war era, it's when people are afraid, they tend to make inconsistent or wrong decisions, and that's what we're concerned about here.

There are laws out there to protect these individuals, just like the gentleman before you said. Hey, you know, it's from the turn of the century to 2000 is that everybody knows from years before and before that, every -- cops and robbers know that they're listening in on your conversations. They could be listening in on your emails and things of that nature, so these terrorists supposedly know all of this. Who are they really fooling in doing all of this?

MANN: Nabih Ayad, thanks so much for talking with us.

AYAD: You're welcome, sir.

MANN: And that's INSIGHT. I'm Jonathan Mann. The news continues.

END

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