The New Yorker‘s Sy Hersh brings news that the National Security Agency monitored the content of calls by U.S. persons. Interestingly, some of Hersh’s details mesh with our earlier conjecture about how the FBI may be supporting the NSA’s questionable call records-mining.
Through mining the vast database of domestic U.S. calls, the NSA would come up with individuals they wanted to listen in on. âAfter you hit something, you have to figure out what to do with it,â one Administration intelligence official told Hersh. Then it gets really interesting:
The next step, theoretically, could have been to get a suspect’s name and go to the FISA court for a warrant to listen in. One problem, however, was the volume and the ambiguity of the data that had already been generated. (“There’s too many calls and not enough judges in the world,” the former senior intelligence official said.) The agency would also have had to reveal how far it had gone, and how many Americans were involved. And there was a risk that the court could shut down the program.
Instead, the N.S.A. began, in some cases, to eavesdrop on callers (often using computers to listen for key words) or to investigate them using traditional police methods. A government consultant told me that tens of thousands of Americans had had their calls monitored in one way or the other. (emphasis added)
Earlier, we had mused on the fact that the Justice Department reported issuing approximately 21,000 fewer “National Security Letters,” secret non-court-approved warrants for information, than the Washington Post had reported last November. In its report, DoJ specifically said it was not including requests for “subscriber information” — that’s when they ask a phone company for the identity of a person who has a particular phone number, or when they ask an ISP for the subscriber at a given IP address.
So, we concluded, there could be tens of thousands of NSLs related to the work NSA was doing, that Justice hasn’t yet admitted.
Hersh doesn’t make the connection between what the NSA was doing with the call data and the FBI’s phantom NSLs — and indeed it may not exist. But if the NSA were to engage in the kind of surveillance of U.S. persons that Hersh describes, it would make sense they’d ask the FBI for the kind of quasi-legal fig leaf that an NSL could provide. That would generate thousands of FBI requests for “subscriber information” which neither the FBI nor the NSA would like to see reported publicly.
