-Caveat Lector-
Based on the findings of a commission appointed by President Ford, the
Justice Department launched an unusually secret criminal investigation of
the agency, known only to a handful of people. Senior NSA officials were
read Miranda warnings and interrogated. It was the first time the Justice
Department had ever treated an entire federal agency as a suspect in a
criminal investigation. Eventually, despite finding numerous grounds on which
to go forward with prosecution, Justice attorneys recommended against it.
"There is the specter," said their report, which the government still
considers classified, "in the event of prosecution, that there is likely to
be much 'buck-passing' from subordinate to superior, agency to agency,
agency to board or committee, board or committee to the President, and from
the living to the dead."
As a result of the investigations, Congress in 1978 passed the Foreign
Intelligence Surveillance Act (FISA), which stated in black and white what
the NSA could and could not do. To overcome the NSA's insistence that its
activities were too secret to be discussed before judges, Congress created a
special federal court, the Foreign Intelligence Surveillance Court, to hear
requests for warrants for national security eavesdropping. In case the court
ever turned down an NSA request, the Foreign Intelligence Surveillance
Appeals Court was created. It has never heard a case.
In the more than two decades since the FISA was passed, the law has remained
largely static, while cell phones, e-mail, faxes and the Internet have come
to dominate how we communicate. The point hasn't been lost on the NSA. Last
month, Air Force Lt. Gen. Michael Hayden, director of the NSA, gave a speech
inside the agency. I was one of the few outsiders invited to attend. Hayden
warned of the "new challenges" in "information technology" that the agency
now faces. "The scale of change is alarmingly rapid," he said, noting that
"the world now contains 40 million cell phones, 14 million fax machines, 180
million computers, and the Internet doubles every 90 days."
That's not all Hayden acknowledged. He had just returned from England, he
said, where he had met with colleagues at Government Communications
Headquarters (GCHQ), Britain's equivalent of the NSA. He added that they had
renewed a long-standing commitment to work together. No director had ever
spoken publicly of that close partnership. "We must go back to our roots
with GCHQ," Hayden said.
The cooperation between the Echelon countries is worrying. For decades,
these organizations have worked closely together, monitoring communications
and sharing the information gathered. Now, through Echelon, they are pooling
their resources and targets, maximizing the collection and analysis of
intercepted information. Officials from many of the European Union countries
fear that the NSA may be stealing their companies' economic secrets and
passing them on to American competitors. "We're hoping we can use our
position to alert other
parliaments and people throughout the European Union as to what's going on,"
Glyn Ford, a member of the European Parliament, told the BBC. "Hopefully
that will lead to a situation where some proper controls are instituted and
that these things are done under controlled conditions."
The issue has also caught the attention of the House and Senate intelligence
committees, and the NSA's response has been anything but reassuring. As part
of its normal oversight responsibilities, the House Select Committee on
Intelligence last spring requested from the NSA a number of legal documents
that outline the agency's procedures for its eavesdropping operations. The
agency, in essence, told the committee to take a hike. It refused to release
any of the documents based on a unique claim of "government attorney-client
privilege." Despite repeated requests by the intelligence committee, the NSA
insisted that those documents "are free from scrutiny by Congress."
Eventually, after months of negotiation, the NSA complied.
It is highly unlikely that Echelon is monitoring everyone everywhere, as
critics claim. It would be impossible for the NSA to capture all
communications. It has had personnel cutbacks in the past five years as its
national security targets have increased in number: North Korean missile
development, nuclear testing in India and Pakistan, the movement of
suspected terrorists and so on. Listening in on European business to help
American corporations would be a very low priority, and passing secret
intercepts to companies would quickly be discovered.
Still, the NSA's stonewalling of Congress should serve as a warning bell.
Under Section 502 of the National Security Act of 1947, as amended, the
heads of all U.S. spy agencies are obligated to furnish "any information or
material concerning intelligence activities . . . which is requested by either
of the intelligence committees in order to carry out its authorized
responsibilities." Rep. Porter J. Goss (R-Fla.), the House committee's
chairman and a former CIA officer, has long argued for a stronger
intelligence community, and even he seemed stunned by the NSA's arrogance.
The NSA's behavior, he said, "would seriously hobble the legislative
oversight process contemplated by the Constitution."
Rather than disappear further from view, the agency should publicly address
these concerns, and the intelligence committees should hold hearings to
update the laws governing the NSA and to close what now amount to loopholes.
For example, the 1978 FISA prohibits the NSA from using its "electronic
surveillance" technology to target American citizens. But that still leaves
open the possibility that Britain's GCHQ or another foreign agency could
target Americans and turn the data over to the NSA. Another problem is that
the FISA appears not to apply to the NSA's monitoring of the Internet. While
covering such things as "wire" and "radio" communications, there is no
mention of "electronic communications," which is the legal term for
communicating over the
Internet as defined by the Electronic Communications Privacy Act of 1986.
Worse, FISA applies only "under circumstances in which a person has a
reasonable expectation of privacy."
In the recent film, "Enemy of the State," the NSA was portrayed as an
out-of-control agency listening in on unwitting citizens. As the nation begins
a new century, congressional hearings to redefine the agency's boundaries
are the best way to prevent life from imitating art.
James Bamford, author of "The Puzzle Palace: A Report on America's Most
Secret Agency" (Viking Penguin), is working on a new book about the NSA.
� Copyright 1999 The Washington Post Company
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