January 16, 2006
My decision to join the ACLU lawsuit against the National Security Agency was not only difficult, but painful. During a quarter century of writing about NSA, including the only two books on the agency and countless articles, I have developed a great deal of respect and even awe for the people who work there. A number of junior cryptologists I came in contact with when I first began writing
The Puzzle Palace in 1979 had become senior officials by the time I finished the sequel,
Body of Secrets, in 2001. Some of them had also become friends. During that period, my relationship with NSA had also changed, from being threatened with prosecution, to being honored with a book signing ceremony at the agency.
In
The Puzzle Palace I devoted a considerable amount of pages to a long list of illegal and improper activities conducted by the agency during the Watergate period. But in
Body of Secrets I went to great lengths to explain how the agency had put that past behind it and was now paying strict attention to the law. I even defended the agency on many occasions, including when invited to Brussels to testify before the European Parliament which was looking into whether NSA was spying on European businesses and passing the intelligence on to American corporations. I expressed my view that they were not. In his book,
Chatter, about eavesdropping around the world, Patrick Radden Keefe noted that I have "gone from being the scourge of the NSA to the agency's hagiographer."
But now it appears that the agency has gone full circle, and just as I will defend it when I think it is being wrongly accused, I will just as vigorously come out against it when I believe it has gone over the line.
On June 5, 1970 President Nixon met in the Oval Office with the then director of the NSA, Vice Admiral Noel Gayler, and directed him to begin eavesdropping on Americans. At NSA, Deputy Director Louis Tordella regarded the change as "nothing less than a heaven-sent opportunity for NSA." This was in part because the agency had already begun secretly spying on Americans even before Nixon's order. Following the meeting, an "Eyes Only" memorandum entitled "NSA Contribution to Domestic Intelligence" was then drafted and signed by the president authorizing NSA "to program for coverage the communications of U.S. citizens using international facilities." No warrant or probable cause would be required, the decision on who would be listened to would be made by agency shift supervisors, and anyone's international telephone calls, telegrams, or faxes could be intercepted and distributed. Given the top secret codename "Minaret," among those targeted in the program were large numbers of anti-Vietnam war protesters who were violating no law.
When Operation Minaret was discovered during the mid-1970s, the Justice Department under the Ford administration made the extraordinary decision to launch a secret criminal investigation of the entire agency. Shocked senior officials were given Miranda warnings and investigators came up with 23 possible areas of criminal prosecution. But because of the secrecy of the information involved, and the fact that the law was very vague in this area at the time, they decided against prosecution. Instead, they recommended that the administration and Congress consider enacting laws making such activities illegal and imposing long prison sentences for those who ignore or go around the law.
Because President Nixon attempted to justify his action by citing the then ongoing war in Vietnam, as well as the Soviet nuclear threat of the Cold War, the crafters included a provision that in time of war – including an all-out Congressionally declared war – the NSA is limited to just fifteen days of warrantless eavesdropping. Later, both Republicans and Democrats enacted the Foreign Intelligence Surveillance Act, which required the NSA to obtain a warrant from a special court before eavesdropping on Americans on U.S. soil, and included a penalty of five years in prison for every violation. For three decades, during both Republican and Democratic administrations, the Foreign Intelligence Surveillance Court functioned smoothly and without a single leak, issuing nearly 19,000 warrants and turning down only five. Those few rejections could then be argued
de novo before the Foreign Intelligence Court of Review, which has only heard one case in nearly thirty years.
Then in the fall of 2001, NSA director, Lt. Gen. Michael V. Hayden allegedly began ignoring the FISA law. Instead of allowing FISA court judges to decide which Americans should be targeted, as the law required, he secretly gave the responsibility back to agency shift supervisors, as was done during Watergate. And months later, President Bush issued an order approving and continuing the operation, just as President Nixon had done.
What greatly concerns me as someone who has written more about NSA than any other writer is that in the past, when NSA was allowed to operate in absolute secrecy, without oversight, it became a rogue agency. When the agency discovered that another author, David Kahn, was planning to include a chapter about the agency in his book on the history of cryptology,
The Codebreakers, they secretly placed his name on their watchlist and began monitoring his communications. According to an investigation by the Senate Select Committee on Intelligence, they even considered breaking into his New York house to conduct "clandestine service applications." It may never be known how many other authors and journalists were targeted back then. But with the Justice Department only willing to go after
The New York Times whistleblower, and not the agency that continues to violate the FISA law, the ACLU lawsuit seems like the only way to find out who's being targeted today.
[James Bamford is the author of
The Puzzle Palace and
Body of Secrets, both about the National Security Agency. His most recent book is
A Pretext For War: 9/11, Iraq and the Abuse of America's Intelligence Agencies.]
