Getting an Earful

The fight over domestic intelligence surveillance is more about legal loopholes than illegal listening.

After leaving the National Security Agency in 1976, Joseph J. Tomba had no contact with his former employer until 2004. Then, for the first time in almost three decades, the super-secret signals intelligence agency called to ask him to come back to headquarters to be interviewed for an in-house training film. Though long retired from government service, Tomba, a former technical specialist for NSA, proceeded to Fort Meade, Md., home of the agency. The film, however, had nothing to do with instruction about technical specialist work. It was a primer for NSA employees on how to deal with congressional inquiries and subpoenas. Tomba has a unique perspective on the subject. On Feb. 25, 1976, the West Virginia-born engineer became the first, and so far the only, NSA employee subpoenaed by Congress for his role in a domestic surveillance program. And because he was a less-than-cooperative witness before a House Government Operations subcommittee, he also became the only NSA employee to be recommended for a citation for contempt of Congress. The lack of cooperation wasn't entirely his idea. As part of a sweeping assertion of executive privilege by President Gerald Ford, then-Defense Secretary Donald Rumsfeld ordered Tomba not to answer legislators' questions, particularly those about Project Shamrock, under which NSA had spent the previous three decades intercepting almost all outgoing U.S. telegram traffic.

Tomba says the 2004 training film shows that NSA was preparing for a collision over its domestic activities even before the current and still not fully understood surveillance program authorized by President Bush. "What they were doing was building a training film for . . . what's happening right now," he says. The program shows NSA staffers how to handle such situations, he says, good evidence that the agency had reason to expect the problem might recur.

The Bush administration has vigorously defended, in practical and legal terms, the existence of an NSA program operating without authorization from the Foreign Intelligence Surveillance Court-the judicial body that secretly reviews and authorizes physical searches and electronic surveillance in national security investigations. Exactly what the NSA program is and how it works are still far from clear. In some cases, it appears that international communications to (and possibly from) individuals or organizations in the United States have been collected, monitored and analyzed. In other cases, people communicating with each other within the United States might have had either the content of those communications-or the transactional data that describes them, such as call times, durations and phone numbers-collected, monitored or analyzed. It also appears that private telecommunications companies voluntarily have been giving transactional data to NSA for analysis, and that some companies have given the agency direct access to "switches," devices that route all manner of domestic and international communications among consumers. According to the president, the common denominator in all these cases is a clear connection between the interception targets and al Qaeda.

A former U.S. counterterrorism official with direct knowledge of NSA programs, who asked to remain anonymous, says some of the information gathering takes place at 32 Sixth Ave. in Manhattan, where San Antonio, Texas-based AT&T operates an international switch. Additionally, a veteran senior intelligence official who participated in the surveillance now under fire says the NSA's efforts "ran the gamut" of practices, from data-mining and analysis of transactional data to interception and monitoring of communications.

"It [involved] simply identifying a connection between two parties, with one party overseas, and then possibly following up on connections between the person here and, say, other people everywhere else," the official says, "like, 'If A talks to B and B talks to C and C to D, is there a relationship between A and D?' [and] not even collecting or looking at the substance of communications at all. [And it ranged] to, what was the substance of the connection or communication, and this was in turn used for analysts and others to identify the type of communication as benign or not so benign. A lot of the time, it wasn't something to worry about. In terms of stuff we did need to further explore, the contributions were important," he continued. "I was never aware of any abuse of the program. We just focused on that which merited scrutiny. . . . I guess the best way to put it is this: If you're not an al Qaeda sympathizer or part of its support mechanism, the government has much better things to do."

Catalyst for Controversy

But according to coverage that began in The New York Times Dec. 16, 2005, government officials' reservations about the surveillance kicked off the controversy. According to one set of scholars and lawyers, NSA's actions are clearly in contravention of the 1978 Foreign Intelligence Surveillance Act, and the president has abused executive powers and privilege both by initiating the program and keeping its details secret. According to another set of scholars and lawyers, there are multiple potential legal and constitutional justifications for the president's actions.

Perhaps most critical, as Newsweek reported on Jan. 29, is the fact that a number of conservative lawyers appointed to the Justice Department by the Bush administration-including former Deputy Attorney General James Comey, former Assistant Attorney General Jack Goldsmith and former senior Justice aide Patrick Philbin-were overruled in their analysis that in authorizing NSA's domestic surveillance, the administration was on very thin constitutional ice. Nevertheless, a group of current and former career national security officials with varying degrees of knowledge or participation in the contested NSA efforts all emphasized the same point during interviews: The surveillance in question has produced invaluable information, and complete revelation of details, including sources and methods, would be disastrous to ongoing counterterrorism efforts.

But this does not mean the entire effort should be given a pass, they say. "We did have better things to do than spend our time on a bunch of 'connections' that were tenuous at best, like someone whose connection to a phone number wasn't nearly as solid or direct as NSA thought," a veteran FBI official says, adding that "everyone from agents in the field to the top tier of Justice has had concerns about how parts of this have been run." And even those who believe in the necessity of the NSA effort nonetheless have concerns about the constitutionality of the administration's actions. "The career professionals who run this would never let it be abused, but there is no denying that if this was ever turned on the domestic population, it would be scary as hell," says one. Yet they wonder if, in Washington's current highly charged partisan atmosphere, a sober, considered investigation of the realities and issues surrounding the NSA program is possible.

If history from Tomba's era is any indicator, the result of congressional hearings and possible investigations won't be subpoenas for career professionals or prosecutions for transgressors or new and tougher laws, but simply new laws with new loopholes. "What's likely to happen is hearings will go into executive session, [the intelligence community] will lay it out fully and say, 'You want to shut it down?' and they won't," says a retired intelligence official familiar with the NSA program. "They'll just make it more formal."

Loose Laws

Indeed, the dubious aspects of the NSA's efforts actually might have less to do with actual practices than reporting requirements. Though FISA theoretically exists to provide U.S. citizens with layers of protection from government intrusion, those intimately familiar with it have long been leery. The libertarian Electronic Frontier Foundation-which maintains some of the most useful FISA background at www.eff.org/Censorship/Terrorism_ militias/fisa_faq.html-considers FISA dangerous because its language is too broad and vague. Jonathan Turley, a law professor at The George Washington University in Washington, casts it as "so full of holes it's like Swiss cheese." Indeed, Congress left some of the finer points of FISA to the executive branch. Under U.S. Signals Directive 18-the rule book that governs NSA's intercept practices-both the NSA director and the attorney general have considerable latitude for warrantless surveillance. After Sept. 11, the 2001 Patriot Act made certain FISA sections even more expansive.

But from the perspective of an administration that long has believed in the most expansive definitions of executive prerogative and privilege, both the pre- and post-Patriot Act FISAs are potentially irksome. Even NSA's signals directive mandates a variety of exemption-reporting requirements to everyone from the NSA general counsel to the Justice Department to Congress to the FISA court. And while the FISA court rarely turns down an application for a warrant, according to Justice Department annual FISA reports to Congress, the law also allows the court to tell the subject of any rejected surveillance that they were being monitored by the government.

"These are exactly the kinds of things that [people in the Bush administration] hated 30 years ago, and that they hate now, because they conflict with a very deeply held view that the president should have unconditional latitude to act," says a former high-ranking intelligence community official whose career encompassed the Ford administration, when Dick Cheney was chief of staff and Rumsfeld was first chief of staff and later Defense secretary. "Between the Patriot Act and other authorized exemptions before the Patriot Act, there isn't much the NSA can't do, under the right circumstances. The catch is, other people, however few, elsewhere in government eventually have to know, and might, however unlikely, say 'no.' "

There is, however, a very critical technological Achilles' heel in NSA's operations: All the digital signals the agency intercepts are captured just as they're conveyed-in computer codes of 0s and 1s. As The Baltimore Sun reported on Jan. 29, with increased text messaging, BlackBerry use and phone calls via the Internet, the sheer volume of those 0s and 1s has NSA effectively looking for needles in "a haystack that doubles in size every few months." So, according to the Sun story, "an estimated 95 percent of the information gathered is discarded without being translated into an understandable form." Unfortunately for NSA, Trailblazer, a sorting/translating program designed to bring order to the chaos, has been in a state of plodding development for six years.

It could be that part of Bush's program is intended to avoid relying on the needle-in-a-haystack approach by using existing resources to more rapidly and directly target certain personal digital communications. Nevertheless, the veteran intelligence community official who participated in the NSA program remains supportive, but also concerned. "To me," he says, "there are two very separate issues here. One is the worthiness of the program from the intelligence officers' perspective-what was the type of information being pursued, what threads were being pulled. In that sense, the collection activity was not only very justifiable, [but] I can say without partisan leanings that the need for these types of insights is in fact important for security. The second issue is whether or not the president had the statutory or constitutional authority to authorize this collection activity, and that is certainly a debatable issue. Constitutional scholars certainly don't agree, and I think this is definitely worthy of review."

Lessons from the 1970s

And it's here that Tomba's experiences can provide insight as to what any current review might yield. Recruited by NSA out of West Virginia University's engineering program in 1960, Tomba eventually was assigned a senior role in a highly classified signals intercept program that, as far as he or anyone else knew, was legal, having been approved at the highest levels of government. That was Operation Shamrock, which intercepted telegraphic communications.

Over time, NSA began to accept requests from other federal intelligence and law enforcement agencies to use Shamrock to intercept U.S. residents' incoming or outgoing international cables. It also developed a set of protocols, code-named Minaret, specifically to cover the NSA's tracks in maintaining these records. When the Senate Select Committee to Study Governmental Operations With Respect to Intelligence Activities, called the Church committee after its chairman, Sen. Frank Church, D-Idaho, began to hold hearings on U.S. intelligence operations in 1973, the Ford administration repeatedly lobbied to prevent any mention of Shamrock in public. Church, however, decided against this. But while the cat was out of the bag, the committee's questions stopped with the most senior NSA officials.

Rep. Bella Abzug, D-N.Y., felt differently. During an early 1976 probe by the House Government Operations Subcommittee on Government Information and Individual Rights, which she headed, investigators somehow got Tomba's name. Despite a congressional subpoena, not only did the Ford administration say Tomba couldn't be compelled to testify, on the basis of executive privilege, but the White House held that the heads of the telecommunications companies involved also were shielded.

Though contempt citations were recommended for Tomba and others, the full House Government Operations Committee never took up the matter, thus leaving unresolved how far the president's executive privilege extended. More important, however, is what happened at the Justice Department after all the congressional committees finished their investigations. The results are contained in two Top Secret reports that, though briefly declassified with heavy redactions in 1979, were retroactively reclassified in 1981.

In 1976, a handpicked team of career Justice Department lawyers began to review all of the committee and commission findings for possible violations of the law. Of 23 "different categories of questionable activity," the task force concluded that five had expired under the statute of limitations and seven "clearly possess no prosecutive potential." While the remaining 11 did have "potential," in each of those cases, the task force recommended against going forward, as "there appears to be little likelihood, if any, that convictions could be obtained on the basis of currently available evidence or evidence which might be reasonably developed."

Why? A central reason was the law itself. In many of the instances the task force reviewed, there simply wasn't adequate case law or precedent to assure victory, and the language of certain statutes was open to interpretation. Another concern was the likelihood of long battles with agencies over declassifying documents. Figuring out who to prosecute also was a concern. "There is likely to be much buck-passing," the report said, anticipating an effort by defendants "to subpoena every tenuously involved government official and former official to establish legitimate authorization or convoluted theories or purported authorization." Instead of prosecution, the task force recommended a number of suggestions for an eventual legislative remedy. That was FISA, which ended up having a lot of loopholes.

So as this latest controversy over NSA's activities unfolds, a number of political and national security observers with long memories predict that history likely will repeat itself: Congress will hold hearings, some subpoenas might be issued. Perhaps material will end up at Justice for review, possibly by a special counsel. Maybe a few court cases will be won at the District Court level. But ultimately, an absence of precedent or a lack of clear law on minor but critical points will lead everyone, however reluctantly, to eschew the punitive in favor of the legislative solution. Sen. Lindsey Graham, R-S.C.-though critical of the Bush administration's arguments in defense of its actions-admitted as much to Attorney General Alberto Gonzalez in Senate Judiciary Committee hearings on Feb. 6. "I would love to engage in a collaborative process with the administration to see if we can resolve this tension. . . . you'll have Congress on board, you'll be stronger in courts and the enemy will be weaker. How does that proposition sit with you?" Gonzalez said the administration would be "happy to listen to your ideas."

In mid-February, Republicans on the House Judiciary Committee shot down a Democratic motion that would require Justice to turn over documents pertaining to the legality of NSA's operations. On Feb. 16, the Senate Permanent Select Committee on Intelligence voted to forestall an investigation into the NSA's activities, with committee chairman Pat Roberts, R-Kan., pushing instead for changes to FISA. The Justice Department's Office of Professional Responsibility announced on Feb. 15 a probe that might produce some critical assessment of Justice's mechanisms for vetting the NSA program. In the end, it's likely that more details and pressure for greater action are likely to come from legal actions initiated by the American Civil Liberties Union, the Electronic Privacy Information Center and the National Security Archive, which in mid-February succeeded in getting Justice to begin declassifying pertinent documents, which were expected to be released beginning in early March. The Electronic Frontier Foundation also is suing major telecommunications firms in an effort to determine the specifics and extent of their roles in NSA surveillance.