NSA: The Eyes of Big Brother

[fergp@sytex.com (Paul Ferguson)]

reprinted without permission from Claustrophobia:
 
Claustrophobia
August 1993
Volume 2, Number 7
 
 
 
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.
--------------------------------------------------------------
 
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:
 
o 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)
 
o intensifying "coverage of individuals and groups in the United
States who pose a major threat to the internal security"
 
o 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.]
 
--------------------------------------------------------------
 
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.
 
 
8<------ Snip, snip ---------
 
For more information on Claustrophobia, contact Dena Bruedigam at
dbruedig@magnus.acs.ohio-state.edu

Paul Ferguson               |  "Government, even in its best state,
Network Integrator          |   is but a necessary evil; in its worst
Centreville, Virginia USA   |   state, an intolerable one."
fergp@sytex.com             |      - Thomas Paine, Common Sense
 
         I love my country, but I fear its government.