The National Security Agency

excerpted from the book

The Lawless State

The crimes of the U.S. Inteligence Agencies

by Morton Halperin, Jerry Berman, Robert Borosage, Christine Marwick

Penguin Books, 1976

Until ... recent intelligence investigations, Americans were virtually unaware of the existence of the National Security Agency. As the NSA's programs have come to light, we see yet another intelligence agency that expanded its activities in the mid-1960s as part of the campaign against political activity and that systematically flouted the Constitution and the law.

What is extraordinary about the NSA is its capacity for collecting information, and the tool that this gives the government for intruding upon the lives of its citizens Referring to the NSA, Senator Frank Church viewed the problem in this way:

The U.S. government has perfected a technological capability that enables us to monitor messages that go through the air . . . between ships at sea, between military units in the field. We have a very extensive capability of intercepting messages wherever they may be in the air waves. That is necessary and important as we look abroad at potential enemies. At the same time, that same 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.'

The NSA has a greater potential for gathering information than any police state has ever had. The FBI can merely dream of putting an agent behind every mailbox; the NSA literally has the capacity to intercept all communications. As far as the record shows, it has so far limited itself to eavesdropping on communications that have at least one terminal in a foreign country-although this "restriction" allows it to intercept all international messages of Americans.

The NSA has not developed its own covert action programs to disrupt and neutralize selected political groups. It did carry out several burglaries during the 1950s, installed a few bugs to maintain its own security, and inspired the CIA and FBI to commit burglaries in foreign embassies on its behalf. More important, the NSA has complemented the programs of the other intelligence agencies by servicing their requests for information. Using -its own "watch list" and those provided by the CIA, the FBI, the Secret Service, and the BNDD (Bureau of Narcotics and Dangerous Drugs), the NSA has used its special technology to run a program of information collection and dissemination. The watch lists determined what messages were targeted and to which agencies-in addition to its own Office of Security-the information was passed.

NSA's MISSION

From what is known of it, the mission for which the NSA was originally created is code-making and code-breaking. World War II proved the critical value of having such a capacity. In 1952, President Truman issued a top-secret directive, "Communications Intelligence Activities," which established the NSA.

National Security Council Intelligence Directives (NSCIDs) and Director of Central Intelligence Directives (DCIDs) set up the operating structure of the NSA.

The code-making arm of the NSA is the COMSEC (Communications Security) program; its mission is to protect United States government messages by developing codes and the equipment used to transmit them. The codebreaking part of the NSA's mission is called SIGINT (Signals Intelligence), which is itself divided into two branches. ELINT (Electronic Intelligence) monitors and interprets electronic signals such as radars, missiles, etc. COMINT (Communications Intelligence) monitors electronic signals which are intended as messages. It is under the COMINT program that the NSA's abuses of power have occurred.

The public record now provides information about three of the NSA's COMINT programs that affected the rights of Americans. The oldest program is SHAM ROCK, which involved the interception of all private cables leaving the United States. Overlapping this is the watch-list program, ultimately labeled MINARET, which involved checking all electronic messages that had at least one terminal outside the United States for names on watch lists provided by other agencies. And finally, there were the files of NSA's Office of Security, which contained the information that its surveillances had collected on Americans.

The SHAMROCK program had its beginnings in August 1945, when the Army Signals Security Agency asked the three cable companies (RCA Global, ITT, and Western Union) that government access to international cables be continued after the war. The companies' lawyers advised that it was illegal in time of peace under the Communications Act of 1934 (47 U.S.C. 605), which reads:

No person receiving, assisting in receiving, transmitting, or assisting in transmitting, any interstate or foreign communication by wire or radio shall divulge or publish the existence, contents, substance, purport, effect, or meaning thereof. .

After some hesitation, the cable companies nevertheless agreed, provided that the attorney general would assure them that he would protect them from criminal liability and lawsuits. The government apparently never informed the cable companies that its activity was not limited to foreign targets but also analyzed and disseminated the telegrams of Americans. The companies never asked what was done with the fruits of their cable surveillance.

The companies did, however, continue to seek assurances that they would not be prosecuted, and the record shows that in 1947 Secretary of Defense James Forrestal told them that the program was vital and that both the president and the attorney general approved; they would be protected during the Truman administration. The following year, however, the secretary of defense was unable to get Congress to relax the 1934 act in order to allow the government access to the radio and wire communications of foreign powers, which would have made the program legal as it was originally conceived. The promise of protection was reiterated in 1949 by Secretary of Defense Louis Johnson, and the companies apparently never sought assurances again.

In 1952, when the NSA took over from its precursor the Army Security Agency, the cable interception program continued uninterrupted, even though NSCID-6 a National Security Council directive, was apparently intended to limit the NSA's processing to the coded messages of spies and foreign governments, and to prohibit intercepting the ordinary telegrams of everyone else. The NSA has since claimed, however, that this limitation was really meant to apply only to uncoded mail (which was FBI or CIA turf, in any case) and not to any electronically transmitted messages, including telegrams. The NSA claims that SHAMROCK did not exceed its executive charter, and that it is an embarrassment only because it induced cable company employees to violate the Federal Communications Act.

SHAMROCK continued unabated until the scandals involving the intelligence community began to break. Dr. Louis Tordella, the NASA's deputy director from 1958 to 1974 and the official in charge of the program, stated that to the best of his knowledge, no president since Truman has known about SHAMROCK.

In its early and technologically primitive years, the information gleaned from SHAMROCK was processed against a small NSA watch list, which had been geared primarily to foreign rather than domestic intelligence. But with the technological developments of the 1960s, the scope of NSA surveillance mushroomed. With the evolution of magnetic tapes for transmitting telegrams and computer scanning for selecting particular kinds of messages, the NSA was ready to plug the watch lists of its client intelligence agencies into SHAMROCK. By the late 1960s, when the surveillance of domestic groups had got into full swing, the NSA was intercepting some 150,000 messages per month in the SHAMROCK program alone, dwarfing the ClA's mail-opening program.

Since at least 1962, in addition to SHAMROCK, the NSA has run-without the benefit of judicial warrants-a program for selecting, intercepting, reviewing, and disseminating the international radio and phone communications of specific American organizations and individuals on watch lists. The lists were initially established in order to monitor travel to Communist countries and to protect the president and other high officials. The fact that, in the latter case, the NSA would end up picking up not only calls about the officials, but the calls of the officials themselves" is a measure of the electronic surveillance problem. As with the other intelligence agencies, there was apparently no serious effort to minimize what their vacuum cleaner sucked in. And the NSA's technology produces a tremendous "multiplier effect"-if an organization is selected, so are all its members. If an individual is on the watch list, then all conversations to, from, or about him or her are also intercepted. Anyone mentioning one of the magic words, in any context, has his or her message selected and examined for personal, political, and economic information.

The watch-list program for pinpointing American dissent began in earnest in the fall of 1969, as the NSA's contribution to the intelligence community's search for the ever elusive foreign involvement behind the civil rights and antiwar movements. The names included on the watch lists were a mix of people and organizations involved in protest politics. They ranged from radical political groups to celebrities, to ordinary citizens taking an active interest in the political controversies of the time. As we have come to expect from the intelligence agencies, the names on the list included the peaceful, nonviolent, and totally legal And there was, of course, a great deal of overlap in the watch lists submitted by the various agencies.

From 1965 to its end as an organized program in 1973 the watch list encompassed some 1,650 names, which had been supplied by the CIA, the FBI, the Secret Service, and the DOD, as well as some which the NSA Itself contributed. Figures available for the 1967-73 period indicate that the list then held some 1,200 American names; 950 had been submitted by the FBI, 180 by the Secret Service, 50 to 75 by NSA 30 by the CIA, and 20 by the DIA. And although the links to foreign support were never found, the NSA nevertheless found reason to disseminate to these client agencies some 2,000 reports- mostly containing information which was personal and politically innocuous-during the 1969-73 period.

In July, 1969, the NSA decided to formalize the watch-list program by issuing itself a charter MINARET This formalization had two functions. First it imposed secrecy procedures on the program that were even stricter than those the NSA ordinarily used, and second, it imposed procedures to disguise the NSA's participation in the program. In short, the NSA's MINARET employed virtually all the bureaucratic techniques available for preventing leaks about illegal activities and for eliminating a "paper trail." And although the NSA officially contends that this watch-list operation was a legitimate part of its foreign intelligence mission, the fact remains that the MINARET intelligence product was subjected to special security controls that were not applied to the NSA's legitimate intelligence information.

Before the advent of MINARET, only the intercepted communications between two Americans were subject to special secrecy procedures; after MINARET, all communications to, from, or about United States citizens were classified top secret, "For Background Use Only." In addition, the information was not serialized in order to be absorbed into the regular NSA record-keeping systems, and none of the reports disseminated carried any markings that would identify the NSA as the original source. These - extraordinary procedures indicate that, internally, the NSA could not have actually considered MINARET an extension of its normal intelligence mission.

The Senate Select Committee's report offers a fairly detailed discussion of one NSA operation performed at the request of the Bureau of Narcotics and Dangerous Drugs.

The BNDD arrangement with the NSA provides a case study of both an enterprising use of the NSA technology for creating a loophole in the protections of the Fourth Amendment, and of the confusion involved in trying to determine precisely what clandestine agencies have done, and why.

In 1970, the BNDD concluded that under the Supreme Court wiretap decision in a case known as Katz, it could not legally wiretap public telephone booths in order to monitor suspected drug traffic between New York and South America. While the BNDD noted that Katz had specifically placed Fourth Amendment restrictions on wiretaps of public phones, it ignored the Court's holding that the Fourth Amendment "protects people, not places." The bureau evidently concluded that it had found a loophole by getting the NSA to tap into the international communications links rather than into a specific phone, and it asked the NSA to monitor the international links carrying these phone conversations.

In late 1972, as part of an NSA effort to increase secrecy around its drug traffic surveillance, the CIA was asked to contribute the intercept operators for the BNDD program. The CIA agreed and monitored the operation from a station located on the East Coast. But by February 1973, the CIA general counsel, Lawrence Houston, concluded that the BNDD watch list was actually a law enforcement procedure, and therefore went beyond the CIA's statutory charter.

The BNDD operation gives some indication of the difficulty in trying to determine just what kind of reasoning lies behind the decisions of clandestine government agencies. NSA officials have stated that the CIA had apparently not been troubled by the "law enforcement" function, and that the reason given for pulling out of the program was the fact that the CIA's intercept station was located within the United States.

At any rate when the CIA bowed out, the NSA reconsidered its role in the BNDD surveillances and decided that "supporting an agency with a law enforcement responsibility" was outside the normal scope of its mission.

The NSA terminated the drug surveillance program in June 1973, and, in August or September, the NSA destroyed the program's paper trail-all the records relating to the product, internal memoranda, and administrative documents. Actually, however, this changed very little; falling back on its established label of "foreign intelligence," the NSA continued (by no small coincidence) to monitor some of the same links until July 9, 1975, well after the heat of the first congressional investigation of its activities had begun. This is another clear example of how, once a program is found to be of questionable legality, the internal housecleaning consists largely of shuffling the same activity into another file with a more legitimate sounding name.

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The SHAMROCK interception of cables - with the help of the cable companies - was longer-lived. lt did not end until May 15, 1975, when Secretary of Defense James Schlesinger ordered its termination. The reasons given were that it was no longer a valuable source of foreign intelligence (had it ever been?) and that there was an increased risk of exposure. Indeed, the exposure was soon to come.

SHAMROCK had surfaced in the documents given to the Rockefeller Commission in May 1975. In June and July, the Senate Select Committee on Intelligence, drawing on a shy reference in the published commission report, asked for more information about that agency's program. They were told that the subject was so sensitive that only Senators Frank Church and John Tower (the committee's chairman and vice chairman) could be briefed. No meetings, however, were immediately arranged.

In July and August, a series of news stories appeared which leaked all the major points of the SHAMROCK program into the press. As a result, the full committee was briefed in September. A report was prepared, and the NSA objected not to the substance of the report but to the fact that its material was classified. The report was ultimately read into the record, however.

Although SHAMROCK and MINARET are both officially ended, the same programs are still going on in only slightly modified form. Since telegrams are now sent by airwaves, the NSA no longer needs the cooperation of the cable companies to get access to their magnetic tapes. And given the predictability of the watch lists and the NSA's experience with them, the agency's analysts know what kinds of information its client agencies have an interest in.

The NSA is still free to disseminate in any fashion that it chooses the information it collects. The current operating principle for dissemination procedures is that "relevant information acquired by [NSA] in the routine pursuit of the collection of foreign intelligence information may continue to be furnished to appropriate government agencies."

The current situation, then, is that the NSA still scans all messages, its computers still select messages for the analysts' attention according to whatever criteria are chosen, and the analysts still decide for themselves if the information meets a "legitimate" requirement. According to the Senate Select Committee's final report, the names of Americans are usually-but not always-deleted before the information is disseminated. The fact that there is no longer an official watch list (as far as is known) is merely a formality. More important, there are still no legislative controls on the NSA; a new executive order is all it would take to reactivate an explicit and itemized watch-list program, and plug it back into the computers.

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THE ABSENCE OF LEGISLATED CONTROLS

For all its awesome technological power, the NSA has never really been out of control; it has simply never been subject to any explicit limitations on its operations. While the CIA had been created by statutes that had intended, however unsuccessfully, to put limits on its activities, the NSA has never been subject to a similar embarrassment. It had been created by executive fiat, and was regarded as too secret to require or to need statutes to back it up. Its enormous capabilities have been developed and operated without any substantial congressional authorization; its budget appropriation has been carefully camouflaged within the huge Defense Department budget, and because of its supersecret status it has, until now, enjoyed an isolation from controversy that the CIA might envy. At the same time, it has been able to fall back on a statute-P L. 86-39-that exempts the NSA from disclosure laws, including the Freedom of Information Act.

Although the NSA has been running, at a cost of $4 billion per year, the largest and most sophisticated surveillance operation in history, it has been shrouded in secrecy. The House investigations marked the first time that a director of the NSA has been required to appear publicly before a committee of Congress. Only two months earlier, the president's Rockefeller Commission report had found it politic to leave the National Security Agency discreetly unnamed. Its discussion of the CIA CHAOS/NSA connection only alluded to the NSA as ,"another agency of the government," which carried on "international communications activity."

The NSA has also made every effort to stay out of court: the government has dropped prosecutions rather than open the NSA's surveillance program to judicial scrutiny. As a result, no court has yet been in a position to hand down a decision expressly affirming that the Constitution and the laws apply to the NSA.

Until this happens, the NSA's official position is that the Fourth Amendment, which requires the government to get a court order in order to listen in on someone's phone calls, does not apply to that agency. In his first public testimony, NSA Director General Lew Allen, Jr., asserted that the NSA's authority to eavesdrop on the international communications of Americans comes from the president's power as commander in chief, and apparently, as long as it claims that the interception is for "foreign intelligence" purposes, NSA can listen in on any and all international communications. The only restriction to which the NSA has adhered is apparently contained in the top-secret directive which established the agency in 1952. The NSA limits itself to tapping into only international communications for "foreign intelligence" purposes-but this means that one terminal can be inside the United States, and that one or both subjects can be United States citizens.

In addition, the executive branch still backs up the NSA's claim. Executive order 11905, issued by President Ford as an intelligence "reform" package, authorizes NSA to continue its massive warrantless surveillance. The executive order imposes no restrictions on the NSA's operations; it makes no mention of safeguards, guidelines, or limitations, such as explicitly prohibiting watch lists or minimizing eavesdropping to cover only legitimate targets.

Congressional investigations have now revealed enough about NSA to make it clear that something must be done. The agency's potential power is staggering, and must be brought into line with the basic civil liberties of Americans. In its final report, the Senate Select Committee on Intelligence viewed the problem this way:

The [NSA] watch list activities and the sophisticated technological capabilities that they highlight present some of the most crucial privacy issues facing this nation. Space age technology has outpaced the law. The secrecy that has surrounded much of NSA's activities and the lack of Congressional oversight have prevented, in the past, bringing statutes in line with NSA's capabilities.

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