Although “Power Wars” is mostly about the Obama era, “Chapter 5: Stellarwind (Surveillance 1928-2009)” focuses on events years before he took office. In it, I piece together fragments of recently revealed information – from the Snowden leaks, the resulting wave of government declassifications, and FOIA lawsuits by myself and others – to form the first coherent public history of American surveillance policy and technology over the past decades. I fill in remaining gaps in that narrative with original reporting, and the below document is a key puzzle piece in understanding how the partnering relationship between the NSA and post-Ma Bell telecoms developed in the late 1980s, laying the groundwork for what happened after 9/11.
It involves the invention, late in the Reagan administration, of something called “transit authority.” This permits the NSA, on domestic soil and without a warrant, to collect foreign-to-foreign communications that are passing over the American network under the permissive rules of Executive Order 12333 surveillance – which permits bulk warrantless content and metadata collection – rather than the restrictive rules of the Foreign Intelligence Surveillance Act. Pieces of that story are discernable in this fascinating memo from the Bush-Quayle administration. The memo was written by Mary Lawton, who was then the top intelligence lawyer in the Justice Department, to Dan Levin, then an official in the Office of the Deputy Attorney General charged with overseeing national-security matters. (Lawton died in 1993.)
Crucial passages of this memo are obviously redacted; it was officially processed and cleared for release through the Freedom of Information Act several years ago. Notably, the original requester was David Kris, the former assistant attorney general for the Department of Justice’s National Security Division, when he was working on his excellent book, National Security Investigations and Prosecutions. That book, however, had to undergo pre-publication review by censors. Mine did not.
See Power Wars, see Chapter five, section four, “Transit Authority,” for a greater description and explanation of what is going on here — important parts of which are based on my interviews with officials familiar with that era that dovetail with what this document’s unredacted portions are hinting at. But I will explain briefly below.
The essence is that after the Church Committee, Congress enacted FISA to regulate wiretapping on domestic soil. But the statute was written in a very complex way designed to obscure from adversaries and the public alike what it did and did not do. In particulate, it left the NSA free to wiretap without warrants using submarines to tap cables on the international seabed or by pointing antennas at communications satellites handling international phone calls. Both of those techniques would collect both purely foreign communications and one-end-foreign, one-end-domestic ones. (The NSA separately created procedures barring the deliberate targeting of an American absent special permission, but this would still permit bulk collection without targeting anyone, or warrantless collection targeting a foreigner even when he was talking to an American.)
But this accommodation to the intelligence community began to break down in the mid 1980s when copper coaxial cables and phone system satellites were replaced by a network using fiberoptic cables. For technical reasons, it is harder to tap a fiberoptic line from the middle, deep under the water. The NSA needed to do it from the cable landing stations where the cable emerged from the water and plugged into the network. That seemed to bring previously unregulated surveillance activities under FISA’s individual warrant requirement.
In 1987, the Reagan administration drafted legislation to alter FISA in light of this changing technological situation, so that it could again collect communications with at least one end on foreign soil without a FISA warrant (at least so long as it did not target an individual American.) But by 1990, the Bush-Quayle administration decided not to go forward with it. Part of the reason, as Lawton candidly acknowledged in this memo, was that the bill would have to be written in such a way as to keep obscure what it was doing, which would lead to public speculation that something sinister was going on. (There’s secret law, and then there is intentionally incomprehensible law.)
But the Reagan administration had, in 1988, invented something that partially mitigated its problem – for a growing amount of purely foreign-to-foreign traffic crossing the American network. The idea was that a careful parsing of FISA showed that the statute did not cover transiting foreign-to-foreign communications, even if collected from a wire on domestic soil, and that the Fourth Amendment did not cover foreigners abroad. Thus the president had inherent authority to collect, without a FISA warrant, a phone call from, say, someone in France to, say, someone in Iran, as it crossed a domestic network switch. The Reagan legal team produced a memo for the president to sign to the secretary of defense and the attorney general saying he understood that they were interpreting the law in this way and approved. Each subsequent president, including Obama in January 2012, has signed such a memo.
Based on that presidential authority, back in the spring of 1988, then-attorney general Edwin Meese and then-deputy defense secretary William Taft signed a new “Classified Annex to Department of Defense Procedures Under Executive Order 12333” that permitted this form of warrantless surveillance to commence on domestic soil under 12333 rules, not FISA rules. That document was partially declassified after the Snowden leaks and the uncensored parts include a reference to transiting communications.
The invention of transit authority led to partnerships between the NSA and telecommunications companies. There was no need to tell the phone companies when the NSA was eavesdropping on their satellites or unilaterally tapping their coaxial cables in international waters. But collecting transiting communications from fiberoptic lines meant getting into their facilities. The phone companies had to know and cooperate, permitting the installation of equipment on switches to filter communications and forward foreign-to-foreign transiting ones to the NSA’s processing systems. This was a different sort of relationship – voluntary cooperation. The insight is that FISA simply did not regulate that type of communication, so just as no warrant was required, the FISA Court also had no jurisdiction to issue orders compelling the telecoms to turn them over to the government, either.
In the decade that followed this memo, pressure mounted on the other half of the issue identified in the 1980s – the NSA’s ability to collect communications with at least one end on domestic soil. This became particularly acute after the rise of American web-mail, like Yahoo Mail and Hotmail and then Gmail, in which purely foreign-to-foreign messages looked one-end-domestic because they were being sent to or retrieved from a server in California.
After 9/11, when the Bush administration wanted to begin conducting surveillance of one-end-domestic messages without a FISA warrant, the partnership relationships with the telecoms – and the pre-existing equipment capable of carrying out that collection – dating back to the arrival of transit authority became crucial. The road to Stellarwind began with the secret invention of transit authority.