Privacy and the NSA

[Steve]

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The most secret of secret agencies operates under outdated laws

by James Bamford


(WA Post)---On the Yorkshire moors in northern England, dozens of 
enormous white globes sit like a moon base, each one hiding a dish-
shaped antenna aimed at a satellite. Acres of buildings house 
advanced computers and receiving equipment, while tall fences and 
roving guards keep the curious at a distance. Known as Menwith Hill 
station, it is one of the most secret pieces of real estate on Earth. It 
is also becoming one of the most controversial.  

For decades, Menwith Hill has been the key link in a worldwide 
eavesdropping network operated by America's super-secret National 
Security Agency (NSA), the agency responsible, among other things, 
for electronic surveillance and code breaking. It is the NSA's largest 
listening post anywhere in the world. During the Cold War, the 
station played a major role in the West's ability to monitor the 
diplomatic, military and commercial communication behind the Iron 
Curtain. But rather than shrinking in the decade since the fall of the 
Berlin Wall, Menwith Hill has grown.  

People in Europe and the United States are beginning to ask why. 
Has the NSA turned from eavesdropping on the communists to 
eavesdropping on businesses and private citizens in Europe and 
the United States? The concerns have arisen because of the 
existence of a sophisticated network linking the NSA and the spy 
agencies of several other nations. The NSA will not confirm the 
existence of the project, code-named Echelon.  

The allegations are serious. A report by the European Parliament 
has gone so far as to say "within Europe all e-mail, telephone and 
fax communications are routinely intercepted" by the NSA. As one of 
the few outsiders who have followed the agency for years, I think the 
concerns are overblown--so far. Based on everything I know about 
the agency, and countless conversations with current and former 
NSA personnel, I am certain that the NSA is not overstepping its 
mandate. But that doesn't mean it won't.  

My real concern is that the technologies it is developing behind 
closed doors, and the methods that have given rise to such fears, 
have given the agency the ability to extend its eavesdropping 
network almost without limits. And as the NSA speeds ahead in its 
development of satellites and computers powerful enough to sift 
through mountains of intercepted data, the federal laws (now a 
quarter-century old) that regulate the agency are still at the starting 
gate. The communications revolution--and all the new electronic 
devices susceptible to monitoring--came long after the primary 
legislation governing the NSA.  

The controversy comes at an interesting time. Throughout much of 
the intelligence community, the cloak of secrecy is being pulled 
back. The CIA recently sponsored a well-publicized reunion of former 
American spies in Berlin and is planning a public symposium on 
intelligence during the Cold War later this month in Texas. Even the 
National Reconnaissance Office, once so secret that even its name 
was classified, now offers millions of pages of documents and 
decades of spy satellite imagery to anyone with the time and 
interest to review them.  

The NSA is the exception. As more and more questions are being 
raised about its activities, the agency is pulling its cloak even 
tighter. It is obsessively secretive. Last spring, for the first time, it 
denied a routine request for internal procedural information from a 
congressional intelligence committee.  

Headquartered at Fort Meade, halfway between Washington and 
Baltimore, the NSA is by far America's largest spy agency. It has 
about 38,000 military and civilian employees around the world; the 
CIA, roughly 17,000. The agency's mandate is to monitor 
communications and break codes overseas; it also has a limited 
domestic role, with targets such as foreign embassies. It can 
monitor American citizens suspected of espionage with a warrant 
from a special court. It is potentially the most intrusive spy agency. 
Where scores of books have been written about the CIA, the only 
book exclusively on the NSA is the one I wrote in 1982.  

Echelon, which links the NSA to its counterparts in the U.K., Canada, 
Australia and New Zealand, amounts to a global listening network. 
With it, those agencies are able to sift through great quantities of 
communications intercepted by satellites and ground stations 
around the world, using computers that search for specific names, 
words or phrases.  

Whether the NSA will go too far with Echelon is not an idle question. 
In the mid-1970s, the Senate and House Select Committees on 
Intelligence were created in part as a result of NSA violations. For 
decades, the NSA had secretly and illegally gained access to 
millions of private telegrams and telephone calls in the United 
States. The agency acted as though the laws that applied to the rest 
of government did not apply to it.  

Based on the findings of a commission appointed by President Ford, 
the Justice Department launched an unusually secret criminal 
investigation of the agency, known only to a handful of people. 
Senior NSA officials were read Miranda warnings and interrogated. It 
was the first time the Justice Department had ever treated an entire 
federal agency as a suspect in a criminal investigation. Eventually, 
despite finding numerous grounds on which to go forward with 
prosecution, Justice attorneys recommended against it. "There is 
the specter," said their report, which the government still considers 
classified, "in the event of prosecution, that there is likely to be 
much 'buck-passing' from subordinate to superior, agency to 
agency, agency to board or committee, board or committee to the 
President, and from the living to the dead."  

As a result of the investigations, Congress in 1978 passed the 
Foreign Intelligence Surveillance Act (FISA), which stated in black 
and white what the NSA could and could not do. To overcome the 
NSA's insistence that its activities were too secret to be discussed 
before judges, Congress created a special federal court, the Foreign 
Intelligence Surveillance Court, to hear requests for warrants for 
national security eavesdropping. In case the court ever turned down 
an NSA request, the Foreign Intelligence Surveillance Appeals Court 
was created. It has never heard a case.  

In the more than two decades since the FISA was passed, the law 
has remained largely static, while cell phones, e-mail, faxes and the 
Internet have come to dominate how we communicate. The point 
hasn't been lost on the NSA. Last month, Air Force Lt. Gen. Michael 
Hayden, director of the NSA, gave a speech inside the agency. I was 
one of the few outsiders invited to attend. Hayden warned of the 
"new challenges" in "information technology" that the agency now 
faces. "The scale of change is alarmingly rapid," he said, noting that 
"the world now contains 40 million cell phones, 14 million fax 
machines, 180 million computers, and the Internet doubles every 90 
days."  

That's not all Hayden acknowledged. He had just returned from 
England, he said, where he had met with colleagues at Government 
Communications Headquarters (GCHQ), Britain's equivalent of the 
NSA. He added that they had renewed a long-standing commitment 
to work together. No director had ever spoken publicly of that close 
partnership. "We must go back to our roots with GCHQ," Hayden 
said.  

The cooperation between the Echelon countries is worrying. For 
decades, these organizations have worked closely together, 
monitoring communications and sharing the information gathered. 
Now, through Echelon, they are pooling their resources and targets, 
maximizing the collection and analysis of intercepted information. 
Officials from many of the European Union countries fear that the 
NSA may be stealing their companies' economic secrets and 
passing them on to American competitors. "We're hoping we can 
use our position to alert other parliaments and people throughout 
the European Union as to what's going on," Glyn Ford, a member of 
the European Parliament, told the BBC. "Hopefully that will lead to a 
situation where some proper controls are instituted and that these 
things are done under controlled conditions."  

The issue has also caught the attention of the House and Senate 
intelligence committees, and the NSA's response has been anything 
but reassuring. As part of its normal oversight responsibilities, the 
House Select Committee on Intelligence last spring requested from 
the NSA a number of legal documents that outline the agency's 
procedures for its eavesdropping operations. The agency, in 
essence, told the committee to take a hike. It refused to release any 
of the documents based on a unique claim of "government attorney-
client privilege." Despite repeated requests by the intelligence 
committee, the NSA insisted that those documents "are free from 
scrutiny by Congress." Eventually, after months of negotiation, the 
NSA complied.  

It is highly unlikely that Echelon is monitoring everyone 
everywhere, as critics claim. It would be impossible for the NSA to 
capture all communications. It has had personnel cutbacks in the 
past five years as its national security targets have increased in 
number: North Korean missile development, nuclear testing in India 
and Pakistan, the movement of suspected terrorists and so on. 
Listening in on European business to help American corporations 
would be a very low priority, and passing secret intercepts to 
companies would quickly be discovered.  

Still, the NSA's stonewalling of Congress should serve as a warning 
bell. Under Section 502 of the National Security Act of 1947, as 
amended, the heads of all U.S. spy agencies are obligated to furnish 
"any information or material concerning intelligence activities . . . 
which is requested by either of the intelligence committees in order 
to carry out its authorized responsibilities." Rep. Porter J. Goss (R-
Fla.), the House committee's chairman and a former CIA officer, has 
long argued for a stronger intelligence community, and even he 
seemed stunned by the NSA's arrogance. The NSA's behavior, he 
said, "would seriously hobble the legislative oversight process 
contemplated by the Constitution."  

Rather than disappear further from view, the agency should publicly 
address these concerns, and the intelligence committees should 
hold hearings to update the laws governing the NSA and to close 
what now amount to loopholes. For example, the 1978 FISA prohibits 
the NSA from using its "electronic surveillance" technology to target 
American citizens. But that still leaves open the possibility that 
Britain's GCHQ or another foreign agency could target Americans 
and turn the data over to the NSA. Another problem is that the FISA 
appears not to apply to the NSA's monitoring of the Internet. While 
covering such things as "wire" and "radio" communications, there is 
no mention of "electronic communications," which is the legal term 
for communicating over the Internet as defined by the Electronic 
Communications Privacy Act of 1986. Worse, FISA applies only 
"under circumstances in which a person has a reasonable 
expectation of privacy."  

In the recent film, "Enemy of the State," the NSA was portrayed as 
an out-of-control agency listening in on unwitting citizens. As the 
nation begins a new century, congressional hearings to redefine the 
agency's boundaries are the best way to prevent life from imitating 
art.  

James Bamford, author of "The Puzzle Palace: A Report on 
America's Most Secret Agency" (Viking Penguin), is working on a 
new book about the NSA.  

Copyright 1999 The Washington Post Company  





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