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NSA: The Eyes of Big Brother
by Charles Dupree
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 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..."
[This concludes part one of our two-part series on the National
Security Agency. Read part 2. "The NSA and the Clipper Initiative,"
in next month's Claustrophobia.]
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Charles Dupree writes user documentation for
a Silicon Valley software company. In recent years he has become
concerned at the intrusive power of the National Security Agency;
but this is probably just the effect of his antisocial habit of
reading.
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Copyright © 1994-1996 Quadralay
Corporation. All rights reserved.
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