N.S.A.’s Intercepts Exceed Limits Set by Congress

By ERIC LICHTBLAU and JAMES RISEN

WASHINGTON — The National Security Agency intercepted private e-mail messages and phone calls of Americans in recent months on a scale that went beyond the broad legal limits established by Congress last year, government officials said in recent interviews.

Several intelligence officials, as well as lawyers briefed about the matter, said the N.S.A. had been engaged in “overcollection” of domestic communications of Americans. They described the practice as significant and systemic, although one official said it was believed to have been unintentional.

The legal and operational problems surrounding the N.S.A.’s surveillance activities have come under scrutiny from the Obama administration, Congressional intelligence committees and a secret national security court, said the intelligence officials, who spoke only on the condition of anonymity because N.S.A. activities are classified. Classified government briefings have been held in recent weeks in response to a brewing controversy that some officials worry could damage the credibility of legitimate intelligence-gathering efforts.

The Justice Department, in response to inquiries from The New York Times, acknowledged Wednesday night that there had been problems with the N.S.A. surveillance operation, but said they had been resolved.

As part of a periodic review of the agency’s activities, the department “detected issues that raised concerns,” it said. Justice Department officials then “took comprehensive steps to correct the situation and bring the program into compliance” with the law and court orders, the statement said. It added that Attorney General Eric H. Holder Jr. went to the national security court to seek a renewal of the surveillance program only after new safeguards were put in place.

In a statement on Wednesday night, the N.S.A. said that its “intelligence operations, including programs for collection and analysis, are in strict accordance with U.S. laws and regulations.” The Office of the Director of National Intelligence, which oversees the intelligence community, did not address specific aspects of the surveillance problems but said in a statement that “when inadvertent mistakes are made, we take it very seriously and work immediately to correct them.”

The questions may not be settled yet. Intelligence officials say they are still examining the scope of the N.S.A. practices, and Congressional investigators say they hope to determine if any violations of Americans’ privacy occurred. It is not clear to what extent the agency may have actively listened in on conversations or read e-mail messages of Americans without proper court authority, rather than simply obtained access to them.

The intelligence officials said the problems had grown out of changes enacted by Congress last July in the law that regulates the government’s wiretapping powers, and the challenges posed by enacting a new framework for collecting intelligence on terrorism and spying suspects.

While the N.S.A.’s operations in recent months have come under examination, new details are also emerging about earlier domestic-surveillance activities, including the agency’s attempt to wiretap a member of Congress, without court approval, on an overseas trip, current and former intelligence officials said.

After a contentious three-year debate that was set off by the disclosure in 2005 of the program of wiretapping without warrants that President George W. Bush approved after the Sept. 11 attacks, Congress gave the N.S.A. broad new authority to collect, without court-approved warrants, vast streams of international phone and e-mail traffic as it passed through American telecommunications gateways. The targets of the eavesdropping had to be “reasonably believed” to be outside the United States. Under the new legislation, however, the N.S.A. still needed court approval to monitor the purely domestic communications of Americans who came under suspicion.

In recent weeks, the eavesdropping agency notified members of the Congressional intelligence committees that it had encountered operational and legal problems in complying with the new wiretapping law, Congressional officials said.

Officials would not discuss details of the overcollection problem because it involves classified intelligence-gathering techniques. But the issue appears focused in part on technical problems in the N.S.A.’s ability at times to distinguish between communications inside the United States and those overseas as it uses its access to American telecommunications companies’ fiber-optic lines and its own spy satellites to intercept millions of calls and e-mail messages.

One official said that led the agency to inadvertently “target” groups of Americans and collect their domestic communications without proper court authority. Officials are still trying to determine how many violations may have occurred.

The overcollection problems appear to have been uncovered as part of a twice-annual certification that the Justice Department and the director of national intelligence are required to give to the Foreign Intelligence Surveillance Court on the protocols that the N.S.A. is using in wiretapping. That review, officials said, began in the waning days of the Bush administration and was continued by the Obama administration. It led intelligence officials to realize that the N.S.A. was improperly capturing information involving significant amounts of American traffic.

Notified of the problems by the N.S.A., officials with both the House and Senate intelligence committees said they had concerns that the agency had ignored civil liberties safeguards built into last year’s wiretapping law. “We have received notice of a serious issue involving the N.S.A., and we’ve begun inquiries into it,” a Congressional staff member said.

Separate from the new inquiries, the Justice Department has for more than two years been investigating aspects of the N.S.A.’s wiretapping program.

As part of that investigation, a senior F.B.I. agent recently came forward with what the inspector general’s office described as accusations of “significant misconduct” in the surveillance program, people with knowledge of the investigation said. Those accusations are said to involve whether the N.S.A. made Americans targets in eavesdropping operations based on insufficient evidence tying them to terrorism.

And in one previously undisclosed episode, the N.S.A. tried to wiretap a member of Congress without a warrant, an intelligence official with direct knowledge of the matter said.

The agency believed that the congressman, whose identity could not be determined, was in contact — as part of a Congressional delegation to the Middle East in 2005 or 2006 — with an extremist who had possible terrorist ties and was already under surveillance, the official said. The agency then sought to eavesdrop on the congressman’s conversations, the official said.

The official said the plan was ultimately blocked because of concerns from some intelligence officials about using the N.S.A., without court oversight, to spy on a member of Congress.

The New McCarthyism?

This news post in Salon.com today, reminded me of the Joe McCarthy hearings of the 50's. Representative Spencer Bachus.. the new Joe McCarthy?

Thursday, April 9, 2009 18:15 EDT, Alex Koppleman, Salon.com

Are you now, or have you ever been... a Congressman?

Rep. Spencer Bachus, R-Ala., knows that some of his colleagues in the U.S. House are socialists. In fact, he's counted, and he knows exactly how many members of Congress are secret supporters of socialism. But, for now, he's not naming names.

The Birmingham News reports (hat-tip to Martin Kady) that during an event in his district on Thursday, Bachus told the audience, "Some of the men and women I work with in Congress are socialists." After the event, a reporter pushed him for additional details, at which point, according to the paper, he revealed that he had 17 members of the House in mind.

I have a call in to Bachus' press secretary, seeking comment about how Bachus arrived at his figure and who made the list; if I hear back, I'll update this post.

― Alex Koppelman

And They Keep Files on Everyone, Even Their Own Supporters

Friday, April 10, 2009 11:45 EDTm by Alex Koppleman, Salon.com

Karl Rove is making a list, checking it twice

It seems Karl Rove can't even eat dinner without being accosted by a former Hill Republican staffer.

Politico's Anne Schroeder Mullins reports that the former Bush advisor was eating dinner at a Washington, D.C. steakhouse on Thursday night when Jason Roe, who'd been chief of staff to former Rep. Tom Feeney, R-Fla., came up to him looking for an argument over comments Rove had made on Fox News after the election, when Feeney -- and other Republicans, obviously -- had gone down to defeat. Rove had blamed the congressman for his own defeat, criticizing him pretty harshly, and Roe didn't want to take that lying down. That led to the following exchange, as written up by Mullins:

Roe walked over to the table, "I'm Jason Roe."

Rove: "Oh, the famous Jason Roe."

Roe: "I don't know that I'm famous but I'm Tom Feeney's former chief of staff and I'm offended by your comments on Fox about Tom. You guys wouldn't be in the White House without Tom. And you made these really degrading comments about him that offended a lot of people."

(Sidenote: Tom Feeney was the Speaker of the Florida House of Representatives during the whole Bush/Gore 2000 recount.) Rove: "Well, I have a file on the things Tom Feeney said about George Bush."

Roe: "That says more about you than me that you kept a file on Tom Feeney. This guy was so restrained in his desire to criticize the President--even against this staff's advice." Rove: "I have a file."

Roe: "I'm right here, tell me to my face what's in that file."

Rove: "I'll send you the file."

Roe: "Well I hope the file is the beginning of the conversation and not the end. I would love to disabuse you of whatever you think of Tom Feeney's loyalty from this file."

Rove: "If you keep talking over me this conversation's going to end right now."

The two men reportedly had to be separated, though it doesn't seem like it took much effort to move Roe away from Rove's table.

― Alex Koppelman

Out-of-Network Payment Practices

NY Times Editorial, Published: April 7, 2009

There has been a justifiable cloud in recent years over the way the insurance industry decides how much to pay for the services of doctors who are outside a company’s network. The procedures are rendered suspect by conflicts of interest and look as if they have been manipulated to shortchange patients by hundreds of millions of dollars over the past decade.

A tough settlement negotiated between New York’s attorney general, Andrew Cuomo, and the UnitedHealth Group early this year will clean up much of the mess — not only in New York but in other states as well. Still, there are loose ends that need attention, so it is helpful that the Senate commerce committee has held two hearings to explore the need to expand and secure what Mr. Cuomo has achieved.

The hearings were a useful reminder of how badly the industry behaved in using a UnitedHealth subsidiary to calculate the “reasonable and customary” charges by physicians in a particular region. When patients leave the network, insurers typically pay about 70 percent of these charges and the patient pays the remaining 30 percent — plus any additional amount charged by a doctor above the supposedly reasonable charge.

Linda Lacewell, who led Mr. Cuomo’s investigation, testified that the industry engaged in fraudulent and deceptive practices to understate the “reasonable and customary” rate and thus keep its reimbursements low. Although the industry denies any such wrongdoing, UnitedHealth agreed to cough up $350 million to settle a class-action suit and agreed to shift responsibility for the calculations to an independent nonprofit organization. Eleven insurers, including some of the largest, have agreed to help finance the new database and use its findings wherever they operate.

That should go a long way toward cleaning up dubious practices, and New York is working on a new regulation to codify what insurers must do. But New York’s settlement won’t reach all insurers in all states. The Senate commerce committee will need to explore what further steps may be required to force insurers to use either the new database or some other measure that is reliable and free of conflicts of interest. All insurers should enable customers to determine, in advance, how much they will have to pay for services outside their network.

Guarding the Family Fortune

NY Times Editorial, April 8, 2009

Last week, as the unemployment rate hit a 25-year high and nearly one in 10 Americans was receiving food stamps, 10 Democrats in the Senate joined all 41 Republican senators to cut estate taxes for the wealthiest families. The provision would funnel an additional $91 billion over 10 years to the heirs of megafortunes, money that would otherwise have been paid in federal taxes or donated to charity.

With economic pain and suffering on the rise, how do the senators justify a big tax cut for multimillionaires? By asserting that an estate tax cut is just what struggling Americans need.

Senator Blanche Lincoln, a Democrat of Arkansas, co-sponsored the measure with Senator Jon Kyl, a Republican of Arizona. She said it was critical to creating jobs through small businesses. “With all the money we’ve spent to help the economy, very little of it has filtered down to Main Street and family-owned businesses,” she said.

The implication is that upon the death of an owner, estate taxes typically devastate small businesses and the jobs they provide. That is swill.

Under today’s estate tax, which is retained in both the House version of the budget and in President Obama’s version, 99.8 percent of estates will never owe any estate tax. That’s because the tax applies only to estates that exceed $7 million per couple or $3.5 million for individuals, and a vast majority of American families are not and never will be that wealthy.

Of the tiny number of estates that are taxable, almost none are small businesses. A new analysis by the Tax Policy Center found that under 2009 law, only 100 small businesses and family farms would owe any estate tax in 2011. And almost all such estates are able to pay the tax bill without having to sell business assets, according to a report by the Congressional Budget Office. The Lincoln-Kyl tax cut would raise the estate-tax exemption to $10 million per couple ($5 million for singles) and, in an even bigger giveaway to the superrich, lower the top rate from 45 percent to 35 percent.

That sure would enrich the heirs of America’s biggest fortunes. It would not jump-start job creation on Main Street.

In addition to Ms. Lincoln, other Democratic senators voting for the estate tax cut were Max Baucus and Jon Tester of Montana, Evan Bayh of Indiana, Maria Cantwell and Patty Murray of Washington, Mary Landrieu of Louisiana, Ben Nelson of Nebraska, Bill Nelson of Florida and Mark Pryor of Arkansas.