Spy Controversy, Redux

"We have a particular obligation to examine the NSA, in light of its tremendous potential for abuse. . . . The interception of international communications signals sent through the air is the job of NSA; and, thanks to modern technological developments, it does its job very well. The danger lies in the ability of the NSA to turn its awesome technology against domestic communications."

If those words sound applicable to the controversy over warrantless eavesdropping by the National Security Agency, consider this: They were spoken 30 years ago, on Oct. 29, 1975, as Sen. Frank Church (D-Idaho), opened a hearing that featured the first-ever public testimony by an official of the super-secret NSA.

I went back to the records of the Church committee uncertain whether what I'd find in its investigation of abuses by U.S. intelligence agencies would have much relevance for today's uproar. Certainly the Bush administration's actions - its unilateral assertion of questionable presidential powers, its casual disregard for established legal rules, its contemptuous attitude toward congressional oversight - are extremely troubling. At the same time, the underlying actions at issue, at least from what's been reported so far, don't seem to rise to the level of the lurid, flagrant abuses (plots to assassinate foreign leaders, "black-bag job" break-ins to disrupt political dissidents) uncovered by the Church committee and a parallel House probe.

As it turned out, though, some of the less well-known aspects of those investigations involved the NSA. And, much as today, the episodes called on the agency, the executive branch and Congress to grapple with questions about the proper balance between privacy and security, the role of the NSA in gathering intelligence domestically, and the circumstances, if any, under which the NSA could eavesdrop on Americans.

The Church committee discovered that the NSA had for years - unbeknownst to Congress - been using a "watch list" of U.S. citizens and organizations in sorting through the foreign communications it intercepted. In addition, for three decades, from 1945 to 1975, telegraph companies had been turning over to the NSA copies of most telegrams sent from the United States to foreign countries. This program, code-named Shamrock, was, according to the Church committee report, "probably the largest governmental interception program affecting Americans ever undertaken."

In the view of critics, the legacy of the Church committee was to intimidate and enfeeble intelligence agencies. I see it in a much more positive light: The impact of the investigation and the legislation enacted in its wake was, at least for a time, to create and empower an intelligence oversight function in Congress; to set out a series of legal rules under which the NSA was to operate; and to deter the agency from running afoul of those rules.

Even before Sept. 11, the NSA faced new challenges posed by the changing nature and explosive growth of the communications it is tasked with monitoring. As the agency explained in a December 2000 memorandum prepared for the presidential transition, "NSA's existing authorities were crafted for the world of the mid to late 20th Century, not for the 21st Century."

The terrorist attacks underscored the need to reconsider the agency's rules of engagement. Testifying in 2002 before the joint congressional committee investigating the attacks, its then-director, Gen. Michael V. Hayden, pleaded for such guidance. "What I really need you to do," Hayden told lawmakers, "is to talk to your constituents and find out where the American people want that line between security and liberty to be. In the context of NSA's mission, where do we draw the line between the government's need for counterterrorism information about people in the United States and the privacy interests of people located in the United States?"

Important questions for discussion. The problem, now exposed by the reports of the warrantless surveillance, is that the administration - including Hayden, now deputy director of national intelligence - disregarded his advice. To the extent that the executive branch debated these issues, it was a conversation only with itself. It all but cut Congress out of the process - and while lawmakers have the right to be angry, and the duty to conduct hearings, they should also consider whether they were too lax in overseeing the agency. Instead of pressing for changes in the law, the administration summarily decided to circumvent the statute. It chose, in Hayden's words, "to live on the edge."

Perhaps, in the aftermath of Sept. 11, that's how the country wants its intelligence activities conducted. But living on the edge inevitably risks falling off a cliff - especially if you choose to live there on your own and in secret. The lessons of the Church committee - the need for legal checks, the importance of congressional oversight, the missteps that inevitably occur when the executive branch is accountable only to itself - seem to have been ignored by all the parties involved.

As Congress gears up for another needed round of hearings, the challenge is not only to discover what happened but also not to forget, again, what was already, painfully learned.

marcusr@washpost.com