For Some, Spying Controversy Recalls
a Past Drama
by Scott Shane
New York Times, February 6, 2006
As the Senate prepares to hold hearings
on Monday on domestic eavesdropping by the National Security Agency,
old Washington hands see a striking similarity to a drama that
unfolded three decades ago in the capital.
In 1975, a Senate committee led by Senator
Frank Church of Idaho revealed that the N.S.A. had intercepted
the phone calls and telegrams of Americans. Then, as now, intelligence
officials insisted that only international communications of people
linked to dangerous activities were the targets, and that the
spying was authorized under the president's constitutional powers.
Then, as now, some Republicans complained that the government's
most sensitive secrets were being splashed on the front pages
of newspapers, while Democrats emphasized the danger to civil
Senator Frank Church, Democrat of Idaho,
talking to reporters in July 1975. The Senate committee he led
revealed that the National Security Agency had intercepted the
phone calls and telegrams of Americans.
Both in 1975 and today, officials defending
the N.S.A. operation said it had prevented terrorist attacks.
And Dick Cheney, who as vice president has overseen secret briefings
for selected members of Congress on the N.S.A. program, was in
the White House then, too, serving as a deputy to President Gerald
R. Ford before succeeding Donald H. Rumsfeld as chief of staff.
The recent debate about the security agency
"does bring back a lot of memories," said Walter F.
Mondale, the former vice president, who served on the Church Committee
as a Democratic senator from Minnesota. "For those of us
who went through it all back then, there's disappointment and
even anger that we're back where we started from."
Later, after becoming vice president under
Jimmy Carter, Mr. Mondale helped usher a into law a major committee
recommendation - that no eavesdropping on American soil take place
without a warrant. That became the basis of the Foreign Intelligence
Surveillance Act of 1978, the law that critics say is being violated
by President Bush's decision to authorize eavesdropping without
court warrants on people in the United States linked to Al Qaeda.
Bush administration officials deny that
they have violated the 1978 statute, noting that apart from the
special eavesdropping program, they are going to the FISA court
for warrants more often than any previous administration.
But the officials say that going to the
foreign intelligence court is impractical in some urgent situations
when intercepting phone calls or e-mail messages might prevent
a terrorist attack. They say the eavesdropping program was authorized
by presidential order and vetted by lawyers both at the agency
and at the Justice Department.
Asked at a Jan. 26 news conference about
a comparison with President Richard M. Nixon's actions in the
1970's, President Bush said that past presidents had relied on
"the same authority I've had" in order to "use
technology to protect the American people."
He added: "There will be a legal
debate about whether or not I have the authority to do this. I'm
absolutely convinced I do."
Since The New York Times first disclosed
the eavesdropping program in December, some who witnessed the
earlier era have followed the news with an eerie feeling that
events are being replayed.
"You feel like you're in an echo
chamber, because the comments on both sides are so similar to
1975," said Loch K. Johnson, a historian of intelligence
who served then as an aide to Mr. Church. "There are a lot
of lessons from those times that are relevant today."
To read through the documents of the earlier
era is to spot many themes from the current controversy: the cooperation
of major telecommunications companies with the N.S.A.; the challenges
of fast-changing communications technologies (then the expansion
of satellite communications, now the Internet explosion); the
legal rationale as laid out in detail by the attorney general
(then Edward H. Levi, now Alberto R. Gonzales, who is to testify
Monday before the Senate Judiciary Committee). Government documents
from the 1970's eavesdropping controversy were posted over the
weekend on the Web site of the National Security Archive, a research
center at George Washington University.
The N.S.A. revelations of 30 years ago
were unearthed simultaneously by the Church Committee, two House
committees and the press, focusing on two programs code-named
Minaret and Shamrock.
Minaret was a watch list kept between
1967 and 1973 of Americans whose international communications
- phone calls and telegrams in and out of the country - were collected
by the security agency
The names were mostly submitted to the
N.S.A. by other agencies because of targets' suspected involvement
in four kinds of activities: terrorism; drug trafficking; threats
to the president; and civil disturbances with "possible foreign
support or influence," as Lt. Gen. Lew Allen Jr., then the
N.S.A. director, told the Church Committee. That program ended
up targeting some Vietnam War protesters and civil rights activists.
Shamrock began in 1947, growing out of
a World War II program for government censorship of international
telegrams. Until the program was shut down in 1975, the three
major international carriers, RCA Global, ITT World Communications
and Western Union International, delivered copies of messages
sent each day to the N.S.A.
Senator Church emphasized to General Allen
that he did not question the value of using electronic spying
to catch terrorists, drug dealers or potential assassins, only
"the lack of adequate legal basis for some of this activity."
Mr. Levi, the attorney general, acknowledged
that the law on such spying was "ill-defined" but said
courts had upheld the president's power to order surveillance
for foreign intelligence without warrants.
Two Republican senators, Barry M. Goldwater
of Arizona and John G. Tower of Texas, fought unsuccessfully against
open hearings on sensitive N.S.A. matters, particularly the three
companies' cooperation. "I must state my firm opposition
to this unilateral release of classified information," Mr.
Tower said at one point.
Frederick A. O. Schwarz Jr., who served
as the committee's chief counsel, recalled in an interview, "The
question of how to handle N.S.A. was more divisive than anything
else we did," including extensive hearings on C.I.A. and
But in the end, the committee reached
a broad consensus on most of its findings, including on the critical
recommendation of banning eavesdropping in the United States without
warrants, Mr. Schwarz said.
After the trauma of public hearings and
front-page headlines, intelligence officials, too, were ready
for new, clear rules. Adm. Bobby R. Inman, who testified before
the Church Committee as director of naval intelligence and became
N.S.A. director in 1977, said he worked actively for passage the
next year of the FISA law, which required approval of a special
court for eavesdropping on American soil.
"I became convinced that for almost
anything the country needed to do, you could get legislation to
put it on a solid foundation," Admiral Inman said. "There
was the comfort of going out and saying in speeches, 'We don't
target U.S. citizens, and what we do is authorized by a court.'
But not all agreed, then or now, that
the president's powers over foreign intelligence should be overseen
by judges. While Vice President Cheney has not explicitly criticized
the FISA statute, he has often said that laws passed in reaction
to Vietnam and Watergate unjustifiably weakened the presidency.
"Over the years there had been an
erosion of presidential power and authority," Mr. Cheney
told reporters on Dec. 20 when asked about the eavesdropping program.
"The president of the United States needs to have his constitutional
powers unimpaired, if you will, in terms of the conduct of national
security policy. That's my personal view."
Former Senator Gary W. Hart, a Colorado
Democrat who served on the Church Committee, believes views such
as Mr. Cheney's have set the clock back 30 years.
"What we're experiencing now, in
my judgment, is a repeat of the Nixon years," Mr. Hart said.
"Then it was justified by civil unrest and the Vietnam war.
Now it's terrorism and the Iraq war."
But on Friday, Senator Pat Roberts of
Kansas, the current chairman of the Senate Intelligence Committee,
strongly defended the eavesdropping program and dismissed any
comparison to the Nixon era.
Writing to Howard Dean, the Democratic
Party chairman, who had compared the current controversy to "the
abuse of power during the dark days of President Nixon,"
Mr. Roberts declared, "Any suggestion that a program designed
to track the movement, locations, plans or intentions of our enemy
particularly those that have infiltrated our borders is equivalent
to abusive domestic surveillance of the past is ludicrous."
He added: "When President Richard
Nixon used warrantless wiretaps, they were not directed at enemies
that had attacked the United States and killed thousands of Americans."
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