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Vice president argued for domestic wiretapping without warrants

Scott Shane and Eric Lichtblau / The New York Times | May 14 2006

In the weeks after the Sept. 11, 2001 attacks on the United States, Vice President Dick Cheney and his top legal adviser argued that the National Security Agency should intercept purely domestic telephone calls and e- mail messages without warrants in the hunt for terrorists, according to two senior intelligence officials.

But lawyers at the agency, trained in the agency's strict rules against domestic spying and reluctant to approve any warrantless eavesdropping, insisted that it should be limited to communications into and out of the country, said the officials, who were granted anonymity to discuss the debate inside the White House late in 2001.

The agency's position ultimately prevailed. Details have not emerged publicly of how the director of the agency at the time, General Michael Hayden, designed the program, persuaded wary agency officers to accept it and sold the White House on its limits.

Whatever the internal deliberations, Hayden was the program's overseer and has become its chief salesman. He is certain to face questions about his role when he appears at a Senate hearing this week on his nomination as director of the CIA.

Criticism of the surveillance program flared again last week with the disclosure that the security agency had collected the phone records of millions of Americans to track terror suspects.

By several accounts, Hayden, a 61- year-old U.S. Air Force officer who left the agency in April of last year to become the principal deputy director of national intelligence, was the man in the middle as President George W. Bush demanded that intelligence agencies act urgently to stop future attacks.

On one side was a strong-willed vice president and his longtime legal adviser, David Addington, who believed that the Constitution permitted spy agencies to take sweeping measures to defend the country. Later, Cheney would personally arrange tightly controlled briefings on the program for select members of Congress.

On the other side was the largest U.S. intelligence agency, which was battered by eavesdropping scandals in the 1970s and has since wielded its powerful technology with extreme care to avoid accusations of spying on Americans.

As in other areas of intelligence collection, including interrogation methods for suspected terrorists, Cheney and Addington took an aggressive view of what was permissible under the Constitution, said the two senior intelligence officials.

If people suspected of links to Al Qaeda made calls inside the United States, the vice president and Addington argued that eavesdropping without warrants "could be done and should be done," one of the officials said.

"That's not what the NSA lawyers think," he added, referring to the agency.

The other official said there was "a very healthy debate" over the issue. The vice president's staff was "pushing and pushing, and it was up to the agency lawyers to draw a line and say absolutely not."

Both officials said they were speaking about the internal discussion because of the importance of the national security and civil liberty issues involved and because the interplay between Cheney's office and the intelligence agencies is usually hidden from public view. Both spoke favorably of Hayden; one expressed no view on his nomination for the CIA job, and the other was interviewed by The New York Times weeks before Bush selected him.

Cheney's spokeswoman, Lee Anne McBride, declined to discuss the deliberations about the classified program.

"This is terrorist surveillance, not domestic surveillance," McBride said. "The vice president has explained this wartime measure is limited in scope and conducted in a lawful way that safeguards our civil liberties."

Spokespeople for the agency and for Hayden declined to comment.

Even with the agency lawyers' reported success in narrowing the program, critics say that it is nonetheless illegal and that it should have never been created. For the first time since the Foreign Intelligence Surveillance Act was passed in 1978, the agency was targeting Americans and others inside the country for eavesdropping without warrants.

The spying that would become such a divisive issue for the White House and for Hayden grew out of a meeting days after the Sept. 11 attacks, when Bush gathered his senior intelligence aides to brainstorm about ways to head off another attack.

"Is there anything more we could be doing, given the current laws?" the president later recalled asking.

Hayden stepped forward. "There is," he said, according to Bush's recounting of the conversation in March during a town-hall-style meeting in Cleveland.

By all accounts, Hayden was the principal designer of the plan. He saw the opportunity to use the agency's enormous technological capabilities by loosening restrictions on its operations inside the United States.

For his part, Cheney helped justify the program with an expansive theory of presidential power, which he explained to reporters a few days after The Times first reported on the program in December.

Cheney traced his views to his service as chief of staff to President Gerald Ford in the 1970s, when post-Watergate changes, which included the Foreign Intelligence Surveillance Act, "served to erode the authority I think the president needs to be effective, especially in a national security area."

Senior intelligence officials outside the agency who discussed the matter in late 2001 with Hayden said he accepted the White House and Justice Department argument that the president, as commander in chief, had the authority to approve such eavesdropping.

"Hayden was no cowboy on this," said another former intelligence official who was granted anonymity because the program remains classified.

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