The publication of journalist Kurt Eichenwald’s investigative work has shed additional light on how the National Security Agency constructed its warrantless surveillance apparatus, confirming that senior legal advisors within the Bush White House recognized the program stood on shaky constitutional ground. According to Eichenwald, officials feared they could face serious legal consequences for intercepting domestic communications and harvesting enormous quantities of personal information without judicial authorization.

How the NSA Built Its Domestic Spying Infrastructure After 9/11

Eichenwald’s book, 500 Days: Secrets and Lies in the Terror Wars, chronicles what he characterizes as the most sweeping expansion of NSA authority in nearly five decades. Within days of the September 11 attacks, administration officials decided to circumvent the requirements established by the Foreign Intelligence Surveillance Act (FISA), which mandated individualized warrants for monitoring American citizens communicating with parties overseas.

Rather than seeking court approval on a case-by-case basis, the White House granted the NSA blanket authority to collect millions of electronic messages and telephone conversations into a centralized database for analysis. The methodology involved tracing connections outward from suspect accounts in expanding circles, examining each linked address and then following the contacts of those secondary addresses in a cascading pattern of association.

In practice, the government replaced the constitutional standard of probable cause with something resembling a chain of loose associations, where surveillance could reach any American whose communications fell within several degrees of separation from an initial target.

The NSA’s Surveillance Ambitions Predated September 11

While Eichenwald’s account focuses on the period immediately following the 2001 attacks, the NSA had actually been articulating its desire for persistent network access well before that date. In transition briefings prepared for the incoming Bush administration in December 2000, the agency argued that its mission required it to maintain a permanent foothold on global telecommunications infrastructure, including networks carrying protected American communications alongside those of foreign adversaries.

Despite internal awareness that the program might violate the Fourth Amendment, senior officials pressed forward. Their anxiety about public exposure proved well-founded when the New York Times revealed the program’s existence in a 2005 investigation that earned a Pulitzer Prize. Nearly every major American news outlet subsequently published reports detailing the scope of the NSA’s mass surveillance operations.

Whistleblowers and Legal Challenges Exposed the Program

The revelations triggered congressional inquiries and multiple lawsuits. In one federal case, former AT&T technician Mark Klein provided technical documentation and photographs showing a secret NSA installation inside AT&T’s San Francisco facility. Three additional NSA whistleblowers, including William Binney, a former senior official who had been involved with the program from its inception, submitted sworn statements describing how the agency had illegally surveilled American citizens.

Despite this substantial body of public evidence, the government filed motions invoking the state secrets privilege, arguing that the entire case should be thrown out because confirming or denying any fact could compromise national security. The position amounted to using classification as an offensive weapon to eliminate judicial accountability rather than as a defensive measure to protect genuine secrets.

Courts Faced Pressure to Look Away From Constitutional Violations

A separate legal challenge brought by a coalition of journalists, attorneys, and human rights advocates targeted surveillance conducted under the FISA Amendments Act of 2008. That legislation had formalized portions of the NSA’s previously unauthorized activities, permitting the collection of international communications involving Americans without individual warrants. Under its provisions, the government needed only a single broad court order to target entire categories of foreign communications for a full year.

The plaintiffs argued that given their professional need to communicate regularly with individuals almost certainly under surveillance, the warrantless monitoring rendered the statute unconstitutional. The government countered that the case lacked standing because the plaintiffs could not definitively prove they had been surveilled, a circular argument given that the government itself refused to confirm any surveillance.

The cumulative effect of these legal strategies was an attempt to place an entire category of government activity beyond the reach of judicial review. If courts accepted the argument that official secrecy could override even publicly available evidence, the precedent would effectively grant future administrations a perpetual license to conduct surveillance without legal constraint.

Originally published October 10, 2012. Content adapted from reporting by the Electronic Frontier Foundation (EFF).