Monday, December 26, 2005

Big Brother's Been Watching

The Snoopgate story has a decades long history; one that seems to repeat itself, as histories often do.

In 1975, a Senate Select Committee held hearings with respect to the National Security Agency and Fourth Amendment Rights. At issue was the subject of "watch lists," which were lists of U.S. citizens the NSA had been authorized during the Nixon administration to target with electronic surveillance without seeking court orders. Thirty years ago, as is the case today, Congress questioned whether "national security" justified unchecked violations of the Bill of Rights on American citizens by the executive branch, especially in light of revelations that Nixon was using "national security" as an excuse to spy on his own political enemies.


Committee chairman Senator Frank Church (D, Idaho) opened the hearing with these remarks.
This morning, the committee begins public hearings on the National Security Agency or, as it is more commonly known, the NSA. Actually, the Agency name is unknown to most Americans, either by its acronym or its full name. In contrast to the CIA, one has to search far and wide to find someone who has ever heard of the NSA. This is peculiar, because the National Security Agency is an immense installation. In its task of collecting intelligence by intercepting foreign communications, the NSA employs thousands of people and operates with an enormous budget. Its expansive computer facilities comprise some of the most complex and sophisticated electronic machinery in the world.

Just as the NSA is one of the largest and least known of the intelligence agencies, it is also the most reticent. While it sweeps in messages from around the world, it gives out precious little information about itself. Even the legal basis for the activities of NSA is different from other intelligence agencies. No statute establishes the NSA or defines the permissible scope of its responsibilities. Rather, Executive directives make up the sole "charter" for the Agency. Furthermore, these directives fail to define precisely what constitutes the "technical and intelligence information" which the NSA is authorized to collect. Since its establishment in 1952 as a part of the Defense Department, representatives of the NSA have never appeared before the Senate in a public hearing. Today we will bring the Agency from behind closed doors.

From its inception, as Senator Church's remarks indicate, the NSA existed under the sole authority and regulation of the executive branch of government. Only 23 years into NSA's existence did the Senate bring it under congressional oversight.


Vice Chairman Senator Frank Tower (R Texas) expressed his displeasure at the very existence of the '75 NSA hearings.
Mr. Chairman, I shall be brief. From the very beginning, I have opposed the concept of public hearings on the activities of the NSA. That opposition continues, and I should like to briefly focus on the reasons I believe these open hearings represent a serious departure from our heretofore responsible and restrained course in the process of our investigation.

To begin with, this complex and sophisticated electronic capability is the most fragile weapon in our arsenal; and unfortunately, I cannot elaborate on that, because that would not be proper. Public inquiry on NSA, I believe, serves no legitimate legislative purpose, while exposing this vital element of our intelligence capability to unnecessary risk, a risk acknowledged in the chairman's own opening statement.


Even if the risks were minimal -- and I do not believe they are minimal -- the NSA is the wrong target. The real quarry is not largely mechanical response of military organizations to orders. The real issues of who told them to take actions now alleged to be questionable should be addressed to the policy level. It is more important to know why names were placed on a watch list than to know what the NSA did after being ordered to do so.

Some historic context: at the time of these hearings, Richard Nixon had already resigned to avoid impeachment, and had received a "full and unconditional" pardon from Gerald Ford for any crimes he may have committed while serving as President. So if Nixon had been found to have acted criminally by ordering the NSA to target U.S. citizens, it wouldn't really matter, because he was already off the hook.


The first official to testify at the hearing was then NSA Director Lt. General Lew Allen, who described the agency's basic authority and function.
Under the authority of the President, the Secretary of Defense has been delegated responsibility for both providing security of U.S. governmental communications and seeking intelligence from foreign electrical communications. Both functions are executed for the Secretary of Defense by the Director, National Security Agency, through a complex national system which includes the NSA as its nucleus. It is appropriate for the Secretary of Defense to have these executive agent responsibilities, since the great majority of the effort to accomplish both of these missions is applied to the support of the military aspects of the national security.

He then gave a brief overview of the history of America's use of signals intelligence.
The United States, as part of its effort to produce foreign intelligence, has intercepted foreign communications, analyzed, and in some cases decoded these communications to produce such foreign intelligence since the Revolutionary War. During the Civil War and World War I these communications were often telegrams sent by wire. In modern times, with the advent of wireless communications, particular emphasis has been placed by the Government on the specialized field of intercepting and analyzing communications transmitted by radio. Since the 1930's, elements of the military establishment have been assigned tasks to obtain intelligence from foreign radio transmissions.

In the months preceding Pearl Harbor and throughout World War II, highly successful accomplishments were made by groups in the Army and the Navy to intercept and analyze Japanese and German coded radio messages. Admiral Nimitz is reported as rating its value in the Pacific to the equivalent of another whole fleet. According to another official report, in the victory in the Battle of Midway, it would have been impossible to have achieved the concentration of forces and the tactical surprise without communications intelligence. A congressional committee in its investigation of Pearl Harbor, stated that the success of communications intelligence "contributed enormously to the defeat of the enemy, greatly shortened the war, and saved many thousands of lives." General George C. Marshall commented that they-- communications intelligence -- had contributed "greatly to the victories and tremendously to the savings of American lives."

Following World War II, the separate military efforts were brought together and the National Security Agency was formed to focus the Government's efforts. The purpose was to maintain and improve this source of intelligence which was considered of vital importance to the national security, to our ability to wage war, and to the conduct foreign affairs.


General Allen also remarked on the historic congressional legislation and executive orders concerning signal intelligence and establishment of the NSA. In 1933 and 1950, Congress passed acts that outlawed unauthorized disclosure of communications intelligence, and which authorized the President to establish communications intelligence agencies and to classify cryptologic (encoded/decoded) information.

In 1952, President Harry Truman issued a Presidential memorandum that directed the Secretary of Defense to be his executive agent in communications intelligence matters and established the NSA.

1n 1962, according to General Allen, "…a Special Subcommittee on Defense Agencies of the House Armed Services Committee concluded, after examining the circumstances leading to the creation of defense agencies, that the Secretary of Defense had the legal authority to establish the National Security Agency."

Allen then invoked the section of U.S. Code which states that nothing in the law…
…shall limit the constitutional power of the President to take such measures as he deems necessary to protect the nation against actual or potential attack; or other hostile acts of a foreign power, to obtain foreign intelligence information deemed essential to the security of the United States or to protect national security information against foreign intelligence activities.

Thirty years ago, Allen's arguments in favor of a President's authority to conduct secret, unwarranted surveillance of U.S. citizens sounded very much like the ones we're hearing today: the President has constitutional power to do what "he deems necessary" to protect the nation from attack, Congress has passed specific legislation that supports his authority to do it, and even talking about NSA activity in public compromises American security.


Just above the background noise level is a more important issue. Mister Nixon used his presumptive presidential powers to use national security as an excuse to spy on his domestic political enemies.

Mister Bush is telling the same "national security" story, but what is he really up to?

According to Capitol Hill Blue and other sources, "the Bush Administration has compiled dossiers on more than 10,000 Americans it considers political enemies and uses those files to wage war on those who disagree with its policies."

One can't help but wonder where the information in all those dossiers came from.

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