NSA: The Eyes of Big Brother

The historical of the National Security Agency (NSA) presented here includes and depends on information reported in three books. The vast majority of data on the National Security Agency comes from James Bamford's book The Puzzle Palace [1982]; all quotations are taken from Bamford unless otherwise noted. As Tim Weiner says, this book is "The best -- the only -- history of the NSA." Material about NSA's secret funding comes entirely from Weiner's Blank Check [1990], which also provided budget estimates and supporting material for other sections. The CIA and the Cult of Intelligence by Victor Marchetti and John D. Marks [1980 edition, originally published 1974], provided background information and a glimpse of the NSA from within the intelligence community but outside the agency itself.

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The oppressive atmosphere of Orwell's 1984 arises from the omnipresence of Big Brother, the symbol of the government's concern for the individual. Big Brother controls the language, outlawing words he dislikes and creating new words for his favorite concepts. He can see and hear nearly everything, public or private. Thus he enforces a rigid code of speech and action that erodes the potential for resistance and reduces the need for force. As Noam Chomsky says, propaganda is to democracy what violence is to totalitarianism. Control thoughts, and you can easily control behavior.

U.S. history affords a prime example in the era named after Senator Joseph McCarthy, though he had many supporters in his attack on freedom of thought and speech. Perhaps his most powerful friend was J. Edgar Hoover, who fed him material from Federal Bureau of Investigation (FBI) files (some of it true) which he used to attack individuals for their supposed political leanings. By the time of Watergate, the Central Intelligence Agency (CIA) had become at least as notorious as the FBI, due largely to its assassinations of foreign leaders and support for military coups around the world.

The Creation of the NSA

Budgetary authority for the National Security Agency (NSA) apparently comes from the Central Intelligence Act of 1949. This act provides the basis for the secret spending program known as the black budget by allowing any arm of the government to transfer money to the CIA "without regard to any provisions of the law," and allowing the CIA to spend its funds as it sees fit, with no need to account for them.

Congress passed the C.I.A. Act despite the fact that only the ranking members of the Senate and House Armed Services Committees knew anything about its contents; the remaining members of Congress were told that open discussion, or even clear explanation, of the bill would be counterproductive. There were complaints about the secrecy; but in the end the bill passed the House by a vote of 348-4, and the Senate by a majority voice vote.

The NSA's estimated $10 billion annual allocation (as of 1990) is funded entirely through the black budget. Thus Congress appropriates funds for the NSA not only without information on the agency's plans, but without even a clear idea of the amount it appropriates; and it receives no accounting of the uses to which the funds were put. This naturally precludes any debate about the direction or management of such agencies, effectively avoiding public oversight while spending public funds. (Weiner notes the analogy to "Taxation without representation.")

Watching and Listening

"The NSA has also spent a great deal of time and money spying on American citizens. For 21 years after its inception it tracked every telegram and telex in and out of the United States, and monitored the telephone conversations of the politically suspect." (Weiner, Blank Check)

Due to its unique ability to monitor communications within the U.S. without a warrant, which the FBI and CIA cannot legally do, NSA becomes the center of attempts to spy on U.S. citizens. Nominally this involves only communications in which at least one terminal is outside the U.S., but in practice target lists have often grown to include communications between U.S. citizens within the country. And political considerations have sometimes become important.

During the Nixon administration, for example, various agencies (e.g., FBI, CIA, Secret Service) requested that the NSA provide all information it encountered showing that foreign governments were attempting to influence or controls activities of U.S. anti-war groups, as well as information on civil rights, draft resistance/evasion support groups, radical-related media activities, and so on, "where such individuals have some foreign connection," probably not that uncommon given the reception such groups usually receive at home. Clearly it would have been illegal for those agencies to gather such information themselves without warrants, but they presumably believed that the NSA was not similarly restricted when they included on their watch lists such as Nixonian bugaboos as Eldridge Cleaver, Abbie Hoffman, Jane Fonda, Joan Biaz, Dr. Benjamin Spock, and the Rev. ralph Abernathy. Presumably the name of Dr, Martin Luther King, Jr., was removed from the list the year Nixon was elected; certainly it was a targeted name before that time.

It is not feasible to determine in advance which telegrams and telephone calls will be among those the NSA is tasked with intercepting. Therefore, the NSA is normally reduced to recording all traffic on lines it is monitoring, and screening this traffic (by computer when possible) to catch targeted communications. This is called the "vacuum-cleaner approach."

Also basic to this method is the "watch list" of groups and individuals whose communications should be "targeted." When a target is added to the watch list, NSA's computers are told to extract communications to, from, or about the target; the agency can then examine the selected communications and determine whether they constitute intelligence data.

This list of targets usually expands to include all members of targeted groups plus individuals and groups with whom they communicate; thus it has a tendency to grow rapidly if not checked. Some requests seems a bit astonishing: during the presidency of Richard Nixon, a Quaker, J. Edgar Hoover requested "complete surveillance of all Quakers in the United States" because he thought they were shipping food and supplies to Southeast Asia.

Project Shamrock

Project Shamrock was initiated in 1945 by the Signal Security Agency (SSA), which eventually merged into the NSA. Until the project was terminated in 1975 to prevent investigation, Shamrock involved NSA (and its predecessors) in communications collection activities that would be illegal for agencies such as the CIA or FBI.

Under Shamrock, the international branches of RCA, ITT, and Western Union provided access by SSA, and its successor NSA, to certain telegrams sent by those companies. each company's counsel recommended against involvement on legal grounds; each company requested the written opinion of the Attorney General that it was not making itself liable to legal action. However, none of them received anything in writing from anyone in the government, and they all cooperated without it. (They did get a verbal assurance from the first Secretary of Defense, James Forrestal, who said he was speaking for the President; thus they may have been concerned at his resignation just over a year later, his hospitalization within a week suffering from depression, anxiety, and paranoia, and his suicide less than two months later.)

As Shamrock grew, and the NSA began to develop its own means of intercepting communications, the watch list approach became the accepted standard, since nothing less was effective or worthwhile. the intelligence community became aware that it could enter a name on the watch list more or less at will, and it would soon receive the requested material, marked classified, and gathered in within (or perhaps under cover of) the law.

The Huston Plan

The Huston Plan, formally known as "Domestic Intelligence Gathering Plan: Analysis and Strategy," was submitted in July 1970 to President Nixon. The goal of the plan was to relax some restrictions on intelligence gathering, apparently those of NSCID No. 6. Some parts of the intelligence community felt that these relaxations would assist their efforts. The proposals included:

• allowing the NSA to monitor "communications of U.S. citizens using international facilities" (presumably facilities located in the U.S., since the NSA already had authority to monitor such communications if at least one terminal was outside U.S. territory) * intensifying "coverage of individuals and groups in the United States who pose a major threat to the internal security"
• modifying restrictions "to permit selective use of [surreptitious entry] against other urgent and high priority internal security targets" as well as to procure "vitally needed foreign cryptographic material," which would have required the FBI to accept warrantless requests for such entries from other agencies ("Use of this technique is clearly illegal: it amounts to burglary. It is also highly risky and could result in great embarrassment if exposed. However, it is also the most fruitful tool and can produce the type of intelligence which cannot be obtained in any other fashion.") President Nixon approved this plan over the objection of J. Edgar Hoover and without the knowledge of Attorney General Mitchell. Hoover went to Mitchell, who had been left out of the entire process, and was consequently angry; Mitchell convinced Nixon to withdraw his approval 13 days after giving it.
  

Project Minaret

The size and complexity of the domestic watch list program became a problem, since it bordered on illegality. Project Minaret was established on July 1, 1969, to "privid[e] more restrictive control" on the domestic products, and "to restrict the knowledge that information is being collected and processed by the National Security Agency." The agency knew it was close to legal boundaries, and wanted to protect itself.

Minaret continued until the fall of 1973, when Attorney General Richardson became aware of the domestic watch list program and ordered such activities stopped. As the Watergate drama played out, Congress began to hear about the NSA's projects, and within two years formally inquiring about them.

Uncontrolled Activities

Like most intelligence agencies, the NSA uses words such as "interrupt" and "target" in a technical sense with a precise but often classified definition. This specialized language makes it difficult to legislate or oversee the activities involved. For instance, in NSA terms a conversation that is captured, decoded if necessary, and distributed to the requesting agency is not considered to be the product of eavesdropping unless one of the parties to the conversation is explicitly targeted. However, the NSA does not depend on semantic defences; it can also produce some legal arguments for exempting itself from normal requirements.

On the rare occasions when NSA officials have to testify before Congress, they have claimed a mandate broad enough to require a special legal situation. In 1975, the NSA found its activities under scrutiny by the Senate Intelligence Committee, chaired by Frank Church; the House Select Committee on the Intelligence Community, under Otis Pike; and the House Government Operations Subcommittee on Government Information and Individual Rights, led by Bella Abzug. The agency was notably consistent in responding to those committees.

When Lt. Gen. Lew Allen appeared before the Pike committee, he pointed out that it was the first time an NSA director had been required to testify in open session. Two days earlier, CIA director William Colby had testified that the NSA was not always able to separate the calls of U.S. citizens from the traffic it monitors. The general counsel of the NSA, Roy Banner, joined Allen as witness. he was asked if, in his opinion, the NSA could legally intercept overseas telephone calls from U.S. citizens despite the legal prohibition on wiretapping. He replied, "That is correct."

The top three officers of the NSA spoke with a single voice to the Church committee. When the committee's chief counsel said to Allen, "You believe you are consistent with the statutes, but there is not any statute that prohibits your interception of domestic communications." When deputy director Buffham was asked about the legality of domestic aspects of the Huston plan, he said, "Legality? That particular aspect didn't enter into the discussions." Counsel Banner responded at least three times to similar questions that the program had been legal at the time. (Testimony took place on Oct. 29, 1975; Project Shamrock and its watch lists were halted in mid-May of that year.)

The Abzug committee tried to get the story from the communications corporations that had cooperated in Project Shamrock. its hearings in late 1975 were unproductive because RCA and ITT informed the committee, two days before hearings began, that their executives would not appear without a subpoena; and a former FBI agent who had been cooperating was forbidden by his old employer from testifying. When the committee reconvened in early 1976, it issued subpoenas to three FBI special agents, plus one former agent; one NSA employee; and executives from international arms of RCA, ITT, and Western Union. President Ford prevented the five FBI/NSA people from testifying with a claim of executive privilege, and the Attorney general requested that the corporations refuse to comply with the subpoenas on the same grounds. Their testimony in spite of that request brought Project Shamrock to light less than a year after it was quickly terminated.

There may have been some legal basis for the NSA claims of extra-legal status. Despite having no statutory basis or charter, the NSA has considerable statutory protection: various statutes, such as the COMINT statute, 18 U.S.C. 798; Public Law 86-36; and special provisions of the 1968 Omnibus Crime Control and safe Streets Act, exempt it from normal scrutiny, even from within the government. Thus the agency may be right in interpreting the law to say that it can do anything not specifically prohibited by the President of the National Security Council.

NSCID No. 6, NSA's secret charter, includes this important exemption (according to James Bamford's reconstruction):

"The special nature of Communications Intelligence activities requires that they be treated in all respects as being outside the framework of other or general intelligence activities. Orders, directives, policies, or recommendations of any authority of the Executive branch relating to the collection ... of intelligence shall not be applicable to Communications Intelligence activities, unless specifically so stated and issued by competent departmental or agency authority represented on the [U.S. Communications Intelligence] Board. Other National Security Council Intelligence Directives to the Director of Central Intelligence and related implementing directives issued by the Director of Central Intelligence shall be construed as non-applicable to Communications Intelligence unless the National Security Council has made its directive specifically applicable to COMINT."

The unchecked ability to intercept and read communications, including those of U.S. citizens within the country, would be dangerous even if carefully regulated by elected officials held to a public accounting.

When the method is available to officials whose names are often unknown even to Congress who work for unaccountable agencies like the NSA, it is very difficult for the intelligence community, the defense community, and the Executive to refrain form taking advantage of such easily obtained knowledge.

The lack of any effective oversight of the NSA makes it possible for the agency to initiate or expand operations without authorization from higher (or even other) authority. Periodic meetings of members of the intelligence community do not constitute true oversight or public control of government; and the same is true of the provision of secret briefings to a small number of senior members of the Congress, all chosen by the intelligence community and sworn to secrecy.

Oversight of such extensive communications capability is important enough; but NSA's capabilities are not necessarily limited to intercepting and decrypting communications. The NSA can also issue direct commands to military units involved in Signals Intelligence (SIGINT) operations, bypassing even the Joint Chiefs of Staff. Such orders are subject only to appeal to the Secretary of Defense, and provide the NSA with capabilities with which it could conceivably become involved in operations beyond the collection of intelligence. At least, it does not seem to be legally restrained from doing so.

It appears that the only effective restraint on the NSA is the direct authority of the President, the National Security Council (NSC), the Secretary of Defense, and the U.S. Intelligence Board. Since the agency was created and chartered in secret by the President and the NSC, it can presumably be modified in secret by the same authorities.

Nor is the NSA bereft of means of influence other branches of government, as Marchetti and Marks note:

"A side effect of the NSA's programs to intercept diplomatic and commercial messages is that rather frequently certain information is acquired about American citizens, including members of Congress and other federal officials, which can be highly embarrassing to those individuals. This type of intercept message is handled with even greater care than the NSA's normal product, which itself is so highly classified a special security clearance is needed to see it."

Complete control over a secret agency with at least 60,000 direct employees, a $10 billion budget, direct command of some military units, and the ability to read all communications would be an enormous weapon with which to maintain tyranny were it to arise. A President with a Napoleonic or Stalinistic delusion would find the perfect tool for the constant supervision of the individual by the state in the NSA; not unlike scenarios depicted in novels such as Orwell's 1984.

Senator Schweiker of the Church committee asked NSA director Allen if it were possible to use NSA's capabilities "to monitor domestic conversations within the United States if some person with malintent desired to do it," and was probably not surprised by Allen's "I suppose that such a thing is technically possible." Certainly Senator Church feared the possibility:

"That capability at any time could be turned around on the American people and no American would have any privacy left, such is the capability to monitor everything: telephone conversations, telegrams, it doesn't matter. There would be no place to hide. If this government ever became a tyranny, if a dictator ever took charge in this country, the technological capacity that the intelligence community has given the government could enable it to impose total tyranny, and there would be no way to fight back, because the most careful effort to combine together in resistance to the government, no matter how privately it was done, is within the reach of the government to know. Such is the capability of this technology ...

I don't want to see this country ever go across the bridge. I know the capability that is there to make tyranny total in America, and we must see it that this agency and all agencies that possess this technology operate within the law and under proper supervision, so that we never cross over that abyss. That is the abyss from which there is no return..."