NSA Reform, Then and Now

NSA Reform, Then and Now

The main difference between the Church Committee’s investigations of 1975–76 and the discussion of NSA spying now is that back then, the spooks stopped the abuses themselves.


So now comes President Obama, proposing “reforms” for the National Security Agency. Kevin Drum of Mother Jones summarizes them as “weak tea.” Obama is responding, of course, to the advisory panel he appointed that released its recommendations about a month ago—which Drum has described as slightly-less-weak tea. Though even that report—for instance, the conclusion that the current system of storing bulk metadata “creates potential risks to public trust, personal privacy, and civil liberty,” and that “Americans must never make the mistake of wholly ‘trusting’ our public officials”—must have been pretty damned humiliating to President Obama, who has consistently preached to us we have nothing to fear from trusting our public officials at all.

Me being, well, me, when the Obama panel released its recommendations about month ago, I immediately thought to pull down from my shelf the Church Committee’s final report from 1976 on spying on Americans to see how its thirty-six page section about the NSA’s abuses of power, and the government’s investigation of them forty-seven years ago, compares to what we’re seeing today. It certainly makes for an interesting study.

I’ve written before about how an investigation of the NSA ended up being tacked onto the Church Committee’s probe of the CIA and FBI. The most interesting takeaway for our own moment is that the investigation was quite nearly accidental. It was then fought tooth and nail by an intelligence agency that insisted that merely being called to explain itself before Congress would invite catastrophe; and then, when its principals were finally compelled to testify, defended their questionable activities with unfalsifiable boasts like, in the words of then-NSA chief General Lewis Allen, “We are aware that a major terrorist attack was prevented” by the activities under question.

Sound familiar? So what did we learn then, and what have we forgotten about what we learned then, now?

The basic problem, the Church Committee explained, was that “NSA has intercepted and disseminated international communications of American citizens whose privacy ought to be protected under our constitution.” Most dramatically, the congressional investigators discovered—again, almost accidentally—that the NSA had carried out a government program, begun in 1945 (seven years before the NSA was invented and then subsumed under its management), that collected at the end of every work day every single wire sent to or from a foreign country by the three telegram corporations. Practically no one knew about “Operation SHAMROCK”—not even the top executives of the companies. “No witness from the telegraph companies recalled that there had ever been a review of the arrangements at the executive levels of their respective companies,” the document reads.

In one eye-popping passage, the Church investigators write of how, in 1968, a vice president of the telegraph company Western Union “discovered the existence of NSA’s Recordak (microfilm) machine in the Western Union transmission room. The machine was reported to the company president, who directed his employees to find out to whom the machine belonged and what the basis for the arrangement was.”

The basis was meetings between the Secretary of Defense James Forrestal and the companies in 1945 and again in 1947, when the executives agreed upon the program once they were assured by Attorney General Tom Clark they would not suffer criminal liability for participating. The courier, though, who lied that he was from the Department of Defense, said he didn’t know what the basis was, or what was done with the material. The story concludes blandly, “The documents do not reflect whether the machine was removed.”

Wild stuff, right?

What was done with these telegrams was a dragnet—a technologically primitive version of what goes on with “telephonic metadata” now. Then as now, the investigators acknowledged that protecting the secrets of “NSA’s vast technological capability,” if placed under proper supervision, “is a sensitive national asset which ought to be zealously protected for its value to our common defense”—but that “this same technological capability could be turned against the American people, at great cost to liberty.” And then as now, the spooks said if any innocent Americans had their communications spied on, it was only an accident, incidental to the noble work of spying on the bad guys. The Church Committee thundered back, “To those Americans who have had their communications sent with the exception that they were private intentionally intercepted and disseminated by their government, the knowledge that NSA did not monitor specific communications channels solely to acquire their messages is of little comfort.”

And in a related program, carried out between 1967 (when Lyndon Johnson became convinced that antiwar activity just had to be directed by our enemies abroad) and 1973, the NSA received “watch lists” from the FBI, CIA, Bureau of Narcotics, Secret Service and Department of Defense that included “[l]ists of names and phrases, including the names of individuals and groups.” There were 1,200 names in total, with most of the groups “nonviolent and peaceful in nature.” Again, the NSA attempted to drag evidence of foreign influence on dissident activity and civil disturbances out of the various sorts of communications they intercepted. The 1967 riots, and the intensification of antiwar demonstrations, was that era’s 9/11: “A senior NSA official…testified that such a request for information on civil disturbances or political activities was ‘unprecedented’…. It is kind of a landmark in my memory; it stands out as a first.” All told, 2,000 reports were disseminated to other agencies by the friendly NSA, an estimated 10 percent “derived from communications between two American citizens.” But, concluded the Church Committee, “No evidence was found, however, of any significant foreign support or control of domestic dissidents…most…involved rallies and demonstrations that were public knowledge.” Just like President Obama’s panel says they found no evidence that “telephonic metadata” stopped any terrorists plots now.

And, of course, this stuff was carried out with pathological secrecy—in order to protect operational viability, I’m sure the spies reassured one other, but probably as much to hide the serial failures. Who knew if they were breaking the law? Or, as the Church investigators archly asserted, it was “not due to the nature of the communications intercepted (most were personal and innocuous) but to the fact that American citizens were involved.” Communications between two Americans “were classified Top Secret, prepared with no mention of NSA as the source, and disseminated ‘For Background Use Only.’ No serial number was assigned to them, and they were not filed with regular communications intelligence intercepts.”

And as is so often the case, sins begun under Johnson metastasized under Nixon: beginning in July of 1969, all NSA “watch list” information was handled that way.

Another parallel was the poor caliber of excuses once the sins were exposed. Dave Eggers has characterized what the national security priests are saying now: “First of all, we’re searching everyone’s home, so you’re not being singled out…. All we’re doing is searching every home in the United States, every day, without exception, and if we find something noteworthy, we’ll let you know.” The fact that they were running a dragnet was the excuse. And it’s one they’ve apparently been keeping around in the files, waiting for the right moment to spring it once more. As FBI director Clarence Kelley (a top customer of NSA intercepts) “explained” back then, in a memo to the Justice Department in September of 1973:

“We do not believe that the NSA actually participated in any electronic surveillance, [sic] per se of the defendants for any other agency of the government, since under the procedures used by that agency they are unaware of the identity of any group or individual which might be included in the recovery of national security intelligence information.”

(The Church investigators had something to say about that: “This position is difficult to defend since intelligence agencies, including the FBI, submitted specific American names for watch lists which resulted in the interception of Americans’ international communications.”)

So the excuses were similar. But there’s a difference, and it’s a doozy. It suggests the title of a book John Dean wrote years back about the abuses of the Bush administration, Worse than Watergate: what we have today is worse than Nixon, too. For within days of that 1973 memo, the head of the criminal division of Nixon’s Justice Department decided this all was of questionable legality and recommended that “the FBI and Secret Service cease and desist requesting NSA to disseminate to them information concerning individuals and organizations obtained through NSA electronic coverage and that NSA should be informed not to disclose voluntarily such information…unless NSA has picked up the information on its own initiative in pursuit of its foreign intelligence mission.”

In other words, the responsible officials stopped the dragnet of their own accord, policing itself. They didn’t, as under Obama, circle the wagons, wave their arms, and keep on keepin’ on, Constitution be damned. Those were the days. Now, we’re worse off than we were under Nixon—and the responsible officials seem to prefer making up snuff porn about Edward Snowden.

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