Did Hoekstra Compromise A Sensitive Intelligence Program?

Rep. Peter Hoekstra, a vocal critic of the government's investigation into Ft. Hood shooting suspect Nidal Malik Hasan, may have compromised a sensitive National Security Agency collection program when he confirmed to the Washington Post that Hasan had been in e-mail contact with a Anwar al-Awlaki, a radical cleric who moved from Virginia to Yemen after the September 11th attacks, senior intelligence officials said.

Hoekstra, the ranking Republican on the House Intelligence Committee, contends that information about a U.S. army officer's contact with a cleric considered by the intelligence community to be an Al Qaeda sympathizer should have raised significant concerns -- but apparently did not. The Post article cited a "law enforcement official" as the originator of the tip about the e-mails, but then quotes Hoekstra, who has access to some of the government's most secret intelligence, that "the very fact that he's sent e-mail . . . to this guy and got responses would be quite a concern to me."
In confirming, on the record, that the government knew about Hasan's e-mails to al-Awlaki, Hoekstra, at the very least, could have given the cleric notice that his e-mails were being monitored, officials said. But even more than that, his words appear to confirm a sensitive capability that the N.S.A. regularly employs to collect intelligence: to wit, that it can monitor ostensibly private e-mails sent from outside the United States to people inside the United States.

Democrats have seized on Hoekstra's disclosure; MSNBC's Rachel Maddow noted that the information had nowhere appeared in the public domain until Hoekstra talked about it.

A senior intelligence official said this morning that  "there are concerns" about Hoekstra's disclosure, noting that the information had not been published or confirmed before the Post article in such detail.  A former intelligence official privy to details of the NSA's programs said that it "would appear to be the case" that Hoekstra divulged too much information.

A Hoekstra spokesperson, Jamal Ware, said that the congressman had not received any classified briefings about the Ft. Hood attack.

"Democrats and some within the U.S. Intelligence Community appear to be upset because either they didn't vigorously pursue this issue or because Hoekstra's persistence threw a wrench in their plans to systematically leak information to the press to control the story," Mr. Ware said.  "The bottom line: the Obama administration has to be transparent, and they have not been."

Last Friday, Hoekstra asked intelligence agencies for classified information it had about Hasan and the attack, but that the executive branch had not responded.

"Congressman Hoekstra and the Republicans on the House Intelligence Committee are the only ones that are trying get to the bottom of this.  This is a situation that cries out for oversight and accountability.  The American people want answers, and they want to understand what happened," Ware said.

Intelligence committee members said they expected to receive a classified briefing early next week.

Chris Donesa, the chief counsel for the Republicans on the House Intelligence Committee, declined to comment on whether his boss's words amounted to a disclosure of classified information. "I always advise Mr. Hoekstra to follow the law."  

Though the popular press has referenced such an intelligence collection capacity, the government has not acknowledged it.  If al-Awlakli used an e-mail service with hubs in the United States, he might expect his e-mail to be monitored. Or perhaps not. A large percentage of foreign e-mail traffic flows through U.S. hubs, and the N.S.A. reportedly monitors the inflow with large driftnets, searchable by keyword; meta-data is regularly screened.

Additionally, the N.S.A. is thought to have entered into confidential agreements with internet hosting companies and countries outside the United States as well. That gives the NSA the ability to monitor e-mail to and from a significant number of other foreign countries. 

Inside the U.S., the N.S.A. is legally prohibited from deliberately retaining the e-mails of U.S. citizens who are in contact with non U.S. citizens unless a special FISA warrant has been issued.  However, there are exceptions, some of them still classified, to this rule.

When the name of a U.S. citizen appears in telephone or e-mail traffic, NSA analysts are supposed to "minimize" its appearance in analytical product. Only a few senior intelligence officers are cleared to see the names themselves, and if the particular intercept in question has intelligence value, N.S.A. and other intelligence community lawyers must sign off.  Additionally, no N.S.A. analyst can legally initiate a search for e-mails mentioning the names of U.S. persons without a warrant. 

Minimization rules were tightened after several well-publicized incidents in 2007.  But outside analysts believe that the N.S.A. retains the capability to un-minimize redacted intercepts and store them in any of one of its massive databases. Earlier this year, analysts working at Ft. Hood, on a lark, decided to enter the names of famous people into a database called "Pinwale."  Internal NSA compliance software detected the unauthorized searches, and the matter was reported to the Congressional intelligence committee. Legally, the NSA can retain and disseminate information about someone who isn't an approved target if it "amounts to foreign intelligence or counterintelligence."

The counterintelligence value of Hasan's contacts with al-Awlaki was probably what led the NSA to contact the FBI's Joint Terrorism Task Force. As the New York Times noted today, the "how'd they'd miss it" question doesn't apply: indeed, a large number of person-hours were put into to figuring out whether the contacts were legit or fishy. Investigators apparently made the judgment on the basis of incomplete information, but that's not surprising, as all the relevant information wasn't easily obtainable -- and as some of Hasan's colleagues made their own judgments not to inform superiors about his concerns.

An NSA spokesperson declined to comment, as did a spokesperson for the DNI.

Members of Congress have a history of being loose lipped. In 2007, minority leader John Boehner noted that the Foreign Intelligence Surveillance Act court had ruled that the NSA could no longer intercept communications from foreign person to foreign persons if those communications passed through the United States. FISA's ruling was classified. After 9/11, Congressional disclosures that the US had been monitoring Osama Bin Laden's satellite phone apparently caused the Al Qaeda leader to change his method of communications.