History repeats itself in today’s outcry over NSA’s reach
By Thomas Burr
The Salt Lake TribuneFirst published Jun 28 2013 01:01AM
Washington • In a deal with major communications companies, the National Security Agency scooped up millions of international and domestic communications. It created a watch list of anti-war activists, civil-liberty advocates and political opponents. In at least three cases, the agency spied on Americans.
"We would be derelict in our duties if we were to exempt NSA from public accountability," a senator declared as public outrage grew and Congress called for hearings. "The committee ... cannot sweep improper activities under the rug — at least not if we are to remain true to our oath to uphold the Constitution."
The year was 1975 and remarks were made by then-Idaho Sen. Frank Church, who headed a special committee to investigate overreaches by U.S. intelligence operations.
But the scenario also is eerily reminiscent of recent disclosures that show the nation’s top intelligence-gathering agency continues to collect data on Americans’ domestic phone calls and tap into major Internet services such as Facebook, Google and Yahoo.
U.S. officials — from the White House to Congress and the NSA itself — stress vast differences between the 1970s and now, including checks and balances in all three federal branches and even built-in computer warning systems to curb abuses.
"We have rich oversight," NSA’s deputy director, John Inglis, told The Salt Lake Tribune, noting supervision by multiple inspectors general, officials in the departments of justice and defense, the Foreign Intelligence Surveillance Court (FISA), the heads of the congressional intelligence committees and in-house reporting requirements.
"There are a fair number of eyes on what we do such that there’s someone — probably multiple someones — who would call us out if we’re in the wrong place," Inglis added.
While most of what the NSA does is classified, Americans have learned recently the powerful reach of its operations, spawning renewed calls to rein in its secret operations.
It’s a position the NSA — and its predecessors — have faced since modern intelligence efforts launched after World War I, and one that hits Utah close to home now that the secret agency is building the massive Utah Data Center set to go online this fall.
The dawn of the secret court • The NSA dates to 1919, when the government created the Cipher Bureau, also known as the Black Chamber, to break the codes of diplomatic cables from foreign nations. Ten years later, it closed.
"Gentlemen do not read other gentlemen’s mail," then-Secretary of State Henry Stimpson famously remarked.
A new shop, the Signal Intelligence Service, launched soon afterward but wasn’t officially acknowledged. For a time, there was no concerted, government-wide service to prepare intelligence.
"Going into World War II we were not even close to being confident and capable or able to perform anything close to a global intelligence mission, which is what America needed," said Matthew Aid, author of The Secret Sentry, a history of the NSA.
After the war, President Harry Truman established the NSA but it took another 20 years before the government officially acknowledged its existence as the agency strayed into domestic surveillance.
It was before Church’s committee that the NSA, the CIA and other executive branch authorities faced up to questionable intelligence-gathering techniques, such as listening in on calls involving peace groups and black-power organizations. Those hearings forced a wholesale change in how foreign and domestic information was acquired.
An exasperated Congress created the Foreign Intelligence Surveillance Court and for the next 23 years, the NSA kept its focus foreign.
When Gen. Michael Hayden took over the agency in the late 1990s, he headed to Capitol Hill to testify that the NSA wouldn’t spy on U.S. citizens without a specific reason authorized by the FISA court.
"The American people must be confident that the power they have entrusted to us is not being, and will not be, abused," Hayden said.
NSA’s strict concentration and closely guarded findings actually hurt America’s efforts to combat terrorism, according to the 9-11 Commission, which cited NSA’s lack of intelligence gathering within the U.S. as one of the many missed opportunities.
"An almost obsessive protection of sources and methods by the NSA, and its focus on foreign intelligence, and its avoidance of anything domestic would, as will be seen, be important elements in the story of 9-11," the commission wrote.
Soon after, the NSA’s pendulum swung the other way as a new phrase entered Americans’ lexicon: warrantless wiretapping.
Oversight of oversight • After the Sept. 11, 2001, terrorist attacks, President George W. Bush issued an executive order allowing the NSA to snoop, without FISA approval, on anything it believed related to terrorism as long as one person in the conversation wasn’t a U.S. citizen. Even then, some news reports charged the NSA was snapping up wholly domestic communications.
The New York Times reported in 2005 that the NSA mistakenly grabbed calls between persons inside the United States thinking they were foreign.
After public scrutiny, Bush retooled the program, and Congress relaxed some of the FISA laws so wiretapping had to go through the court. The outcry eventually dissipated.
Enter Edward Snowden, the NSA contractor who earlier this month revealed to The Guardian newspaper a secret court order that allows the NSA to nab domestic phone records. Again, agency officials were called to Capitol Hill to testify, and intelligence committee heads were quick to justify the need for the domestic surveillance, which they stress doesn’t include the content of phone calls or emails.
The secret agency’s snooping, once again, had dragged it into the public spotlight.
Aid, the unofficial NSA historian, said the intelligence community always will push for more access, arguing it will keep Americans safer. But with more authority comes more secrets and more secret problems.
"You can’t get a little pregnant," Aid said.
Beyond that, as the NSA’s timeline shows, history repeats itself.
"It’s not a learning organization," Aid said. "It keeps coming back and making its mistakes over again."
Built-in protection • The NSA points to broad oversight and built-in checks that keep it within bounds.
NSA’s Compliance Director John DeLong noted that beyond the multiple overseers who check on NSA’s operations, officials encourage all employees to report anything out of whack. And he noted that just as the agency certifies its employees to understand the boundaries of its authority, those boundaries also are loaded into the software workers use — a new development in the past few years. Type an errant command into the system and a red flag pops up; try to circumvent the law and an automatic spot check is supposed to catch it.
"There’s never a perfect system," DeLong said. "We have to not only rely on that self-reporting, but we have to set up systems such that we detect it."
Inglis, the deputy director, added problems arise when the technology shifts and the checks and balances haven’t caught up. But he added, it’s usually the NSA that zeroes in on problems and reports them.
"Nobody consults with us when a terrorist wants to do something different," he said.
Computer checks built in to the software to prevent errant snooping are updated frequently, always in consultation with the Justice Department and FISA, NSA officials stressed.
Former Utah Sen. Bob Bennett, who ran a CIA cover during the Nixon administration, noted that wiretaps, directional microphones and surveillance cameras helped decimate the mafia. The same methods can be used to catch terrorists given adequate controls, which he said the NSA has.
"The oversight is there, and I believe the classified nature of FISA’s ruling and other court activities is legitimate because of the fact that we are at war," Bennett said, referring to the war on terrorism.
Intelligence officials at all levels are patriotic, Bennett added, and will push back on any perceived overreach.
"The combination of that and a free press and oversight structure that we have in the Congress and the courts, at some point, you’ve got to believe the system is going to hold," he said.
To critics, believing is the problem.
"Obviously there’s not enough oversight if the NSA has been allowed to conduct blanket domestic surveillance that most Americans were unaware of and that most members of Congress didn’t know" about, said Angela Canterbury of the Project on Government Oversight.
"It shouldn’t take a leak to warn the public and much less Congress that problems exist at NSA," Canterbury added. "If we have a situation where we are only alerted to potential problems through a leak, the system isn’t working."
After the latest disclosure on domestic intelligence gathering, critics have called for another commission such as the one the NSA faced in the 1970s.
A recent Washington Post survey found nearly two-thirds of Americans want open, public congressional hearings on the secret programs.
History, again, may repeat itself.