But if 911 were such a surprise, why were intelligence agiencies trying to violate the law to usurp civil liberties?

Before 9/11, NSA Asked Qwest for Network Access, Not Phone Records,

National Journal Reports

By Ryan Singel

The National Security Agency asked telecom giant Qwest to let the nation's spies monitor its telecom networks 7 months before 9/11 in order to look for hackers and foreign-government e-attacks, the National Journal's Shane Harris reports today.

Though Qwest was seeking contracts from the NSA, its then CEO Joseph Nacchio denied repeated requests to let the NSA monitor its network, and later also turned down requests to turn over billions of customer records to the government, asking both times for legal orders, according to media reports and statements in Nacchio court records.

Nacchio was convicted of selling shares in 2001 with knowledge that the company wouldn't make its revenue targets. According to court documents unsealed in October, Nacchio was blocked from arguing that he believed that the company would make its public projections, thanks to classified NSA contracts, but that the NSA withheld them as punishment for his unwillingness to help the NSA without being legally ordered to do so.

Those unsealed, but redacted documents explosively hinted that the NSA asked for call records just days after President Bush took office, but Harris reports the requests were different.

[I]n February 2001, the NSA's primary purpose in seeking access to Qwest's network apparently was not to search for terrorists but to watch for computer hackers and foreign-government forces trying to penetrate and compromise U.S. government information systems, particularly within the Defense Department, sources said. Government officials have long feared a "digital Pearl Harbor" if intruders were to seize control of these systems or other key U.S. infrastructures through the Internet.

A former White House official, who at the time was involved in network defense and other intelligence programs, said that the early 2001 NSA proposal to Qwest was, "Can you build a private version of Echelon and tell us what you see?" Echelon refers to a signals intelligence network operated by the NSA and its official counterparts in Australia, Canada, New Zealand, and the United Kingdom.

The NSA realized that it was blind to many of the new online threats and to who was using the privately owned telecom networks, and it thought that Qwest was in a position to help. The agency needed better intelligence in the face of a burgeoning Internet, and Qwest was then building a high-speed network for phone and Internet traffic that had caught the attention of senior intelligence officials. The NSA, in effect, wanted Qwest to be the agency's online eyes and ears.

As THREAT LEVEL noted when it wrote about the Nacchio court documents, Harris reported in Slate in January 2006 that the NSA had reached out to telecoms for information before 9/11. Now, Harris expands that reporting with even more details. Read the whole thing here.

UPDATE: Perhaps the most revealing take away from Harris's piece is that NSA's former head Gen. Michael Hayden asked for access to the network to analyze traffic because he believed that the nation's spooks would not be invading Americans' privacy or violating the law if by analyzing and datamining Americans' phone calling records and communication activities, so long as they didn't listen in. Though it's often referred to as "meta-data," communication records such as numbers you call, what cell phone tower you are using or people you email or IM or the subject lines of your emails are sensitive data. In fact, so sensitive that a regular cop has to get a court order to get at any of those.

Hayden, who ran the NSA from 1999 to 2005, was well known for his willingness to push operations to the legal edge. "We're pretty aggressive within the law," Hayden said in public remarks after 9/11. "As a professional, I'm troubled if I'm not using the full authority allowed by law."

Hayden has repeated that refrain since the attacks. But former intelligence officials doubted that he would have authorized any request to Qwest, or other companies, that he believed violated the law. They noted, however, that many in the agency had long thought that monitoring "metadata," such as a phone number, the length of a call, or a series of calls placed from a particular phone, didn't implicate privacy because such information didn't constitute the "content" of a message -- its written or spoken words.

Keep that in mind given this summer, Congress gave the Administration carte blanche to order any communication service provider to open up their services to the NSA. Companies that could find themselves on the receiving end of such an order include Skype, Twitter, AOL's AIM, any U.S.-based email provider, ISPs and large backbone carriers like Level3. The current law places virtually no limits on what kind of surveillance the NSA can do in those warrantless taps, while pending proposals in the Senate and House place varying levels of limits on when the NSA can listen in without a court warrant.

But none of the proposals would regulate or require court orders for NSA data-mining of Americans calling patterns. It's simply not defined as electronic surveillance. Several members of the Intelligence committee, including Sen. Dianne Feinstein (D-California) alluded critically to that loophole in the Senate Intelligence report about their passage of a spying bill with immunity, but it's looking like this part of the government's surveillance architecture is here to stay.

Original article posted here.