A little history and a little law are needed in the wake of the current uproar over the re-discovery that the National Security Agency has been vacuuming up telephone records of Americans and e-mails, phone messages and other Web data related to suspected overseas terrorists.
Let’s start with a bit of history.
Forty-three years ago, the staff director and counsel of a Senate Foreign Relations subcommittee, set up by then-Chairman J.W. Fulbright (D-Ark.), traveled the world gathering facts as part of an investigation of military involvement in U.S. foreign policy. They visited NSA listening posts in Europe and Asia and interviewed those who ran the facilities. They were surprised at the data being collected, not just overheard communications but also cables and intercepts from satellites. Using their information, the committee called the NSA director, Vice Adm. Noel Gayler, to testify in closed session. He refused to discuss his agency’s operations on grounds that only Senate and House Armed Services subcommittees dealing with intelligence matters could get such testimony.
Gayler was told the committee had already gathered information in the field and gave him a week to put together testimony answering the panel’s questions or he would be subpoenaed and face contempt for failing to appear or to testify.
Gayler did show up, and the committee got the information it demanded, which included a full description of the NSA’s then-expanding worldwide collections, how the material was being used, and the means by which the NSA minimized reading or listening to non-relevant material on U.S. citizens.
I know about these events firsthand because I was that staff director. In a classified annex of the subcommittee’s report, there were recommendations relating to the NSA.
Now some legal history.
In 1979, 34 years ago, the Supreme Court upheld a decision by the Maryland Court of Appeals, which said, “There is no constitutionally protected reasonable expectation of privacy in the numbers dialed into a telephone system.” The phone company automatically creates and stores a record of every call from a phone, the number called and time spent. “It is too much to believe that telephone subscribers, under these circumstances, harbor any general expectation that the numbers they dial will remain secret” is what then-Justice Harry A. Blackmun wrote in the court’s majority decision.
Another piece of history:
Seven years ago, on May 5, 2006, USA Today disclosed that the NSA “has been secretly collecting the phone call records of tens of millions of Americans, using data provided by AT&T, Verizon and BellSouth,” attributing that information to “people with direct knowledge of the arrangement.”
The newspaper continued: “The NSA program reaches into homes and businesses across the nation by amassing information about the calls of ordinary Americans — most of whom aren’t suspected of any crime. This program does not involve the NSA listening to or recording conversations. But the spy agency is using the data to analyze calling patterns in an effort to detect terrorist activity, sources said in separate interviews.”
Sound familiar? How about this response, that same day, from President George W. Bush: “First, our intelligence activities strictly target al-Qaeda and their known affiliates. . . . Second, the government does not listen to domestic phone calls without court approval. Third, the intelligence activities I authorized are lawful and have been briefed to appropriate members of Congress, both Republican and Democrat.”
It is worth noting that two days after the USA Today disclosure, a Washington Post poll showed that 63 percent of those polled said it was acceptable for the government to collect tens of millions of phone records, while 35 percent considered that unacceptable.
In 2008, Congress passed amendments to the Foreign Intelligence Surveillance Act (FISA) that allowed the FBI and the NSA, with approval of the FISA court, to intercept or acquire stored communications or other data from service providers when a foreign target is involved.
On March 15, 2012, Wired magazine published a long article by James Bamford, who has written books about the NSA. Bamford described the agency’s new $2 billion Utah Data Center and its ability to “intercept, decipher, analyze, and store vast swaths of the world’s communications as they zap down from satellites and zip through the underground and undersea cables of international, foreign, and domestic networks.”
He wrote that when the center is fully running at the end of this year, “stored in near-bottomless databases will be all forms of communication, including the complete contents of private emails, cell phone calls, and Google searches, as well as all sorts of personal data trails — parking receipts, travel itineraries, bookstore purchases, and other digital ‘pocket litter.’ ”
Was there any follow-up in the mainstream media to Bamford’s disclosure, or anything close to the concerns voiced on Capitol Hill this past week? No.
That’s because the American public at large is more accepting of the government’s involvement in their lives — along with Facebook, Google, Amazon, Apple — than is Edward Snowden, the 29-year-old who leaked the highly classified NSA documents. He appears to believe the public is unaware, and, as he told the Guardian, knowing “what’s happening, you [meaning the public] should decide whether we should be doing this.”
I believe the public has decided. I have never forgotten one thought in a lecture I heard at Yale University back in the early 1950s when Sen. Joseph R. McCarthy (R-Wis.) was carrying on his anti-communist witch hunt. Professor Harry R. Rudin declared that the two peoples most willing to trade civil liberties for personal security were the Germans and the Americans. Sixty-plus years later, I think the reaction to 9/11 that we still see proves again that Rudin was right.
For previous columns, go to washingtonpost.com/fedpage.