Loud and Clear
The most secret of secret agencies operates under outdated laws.
By James Bamford
For decades, Menwith Hill has been the key link in a worldwide eavesdropping network operated by America's super-secret National Security Agency (NSA), the agency responsible, among other things, for electronic surveillance and code breaking. It is the NSA's largest listening post anywhere in the world. During the Cold War, the station played a major role in the West's ability to monitor the diplomatic, military and commercial communication behind the Iron Curtain. But rather than shrinking in the decade since the fall of the Berlin Wall, Menwith Hill has grown.
People in Europe and the United States are beginning to ask why. Has the NSA turned from eavesdropping on the communists to eavesdropping on businesses and private citizens in Europe and the United States? The concerns have arisen because of the existence of a sophisticated network linking the NSA and the spy agencies of several other nations. The NSA will not confirm the existence of the project, code-named Echelon.
The allegations are serious. A report by the European Parliament has gone so far as to say "within Europe all e-mail, telephone and fax communications are routinely intercepted" by the NSA. As one of the few outsiders who have followed the agency for years, I think the concerns are overblown--so far. Based on everything I know about the agency, and countless conversations with current and former NSA personnel, I am certain that the NSA is not overstepping its mandate. But that doesn't mean it won't.
My real concern is that the technologies it is developing behind closed doors, and the methods that have given rise to such fears, have given the agency the ability to extend its eavesdropping network almost without limits. And as the NSA speeds ahead in its development of satellites and computers powerful enough to sift through mountains of intercepted data, the federal laws (now a quarter-century old) that regulate the agency are still at the starting gate. The communications revolution--and all the new electronic devices susceptible to monitoring--came long after the primary legislation governing the NSA.
The controversy comes at an interesting time. Throughout much of the intelligence community, the cloak of secrecy is being pulled back. The CIA recently sponsored a well-publicized reunion of former American spies in Berlin and is planning a public symposium on intelligence during the Cold War later this month in Texas. Even the National Reconnaissance Office, once so secret that even its name was classified, now offers millions of pages of documents and decades of spy satellite imagery to anyone with the time and interest to review them.
The NSA is the exception. As more and more questions are being raised about its activities, the agency is pulling its cloak even tighter. It is obsessively secretive. Last spring, for the first time, it denied a routine request for internal procedural information from a congressional intelligence committee.
Headquartered at Fort Meade, halfway between Washington and Baltimore, the NSA is by far America's largest spy agency. It has about 38,000 military and civilian employees around the world; the CIA, roughly 17,000. The agency's mandate is to monitor communications and break codes overseas; it also has a limited domestic role, with targets such as foreign embassies. It can monitor American citizens suspected of espionage with a warrant from a special court. It is potentially the most intrusive spy agency. Where scores of books have been written about the CIA, the only book exclusively on the NSA is the one I wrote in 1982.
Echelon, which links the NSA to its counterparts in the U.K., Canada, Australia and New Zealand, amounts to a global listening network. With it, those agencies are able to sift through great quantities of communications intercepted by satellites and ground stations around the world, using computers that search for specific names, words or phrases.
Whether the NSA will go too far with Echelon is not an idle question. In the mid-1970s, the Senate and House Select Committees on Intelligence were created in part as a result of NSA violations. For decades, the NSA had secretly and illegally gained access to millions of private telegrams and telephone calls in the United States. The agency acted as though the laws that applied to the rest of government did not apply to it.
Based on the findings of a commission appointed by President Ford, the Justice Department launched an unusually secret criminal investigation of the agency, known only to a handful of people. Senior NSA officials were read Miranda warnings and interrogated. It was the first time the Justice Department had ever treated an entire federal agency as a suspect in a criminal investigation. Eventually, despite finding numerous grounds on which to go forward with prosecution, Justice attorneys recommended against it. "There is the specter," said their report, which the government still considers classified, "in the event of prosecution, that there is likely to be much 'buck-passing' from subordinate to superior, agency to agency, agency to board or committee, board or committee to the President, and from the living to the dead."
As a result of the investigations, Congress in 1978 passed the Foreign Intelligence Surveillance Act (FISA), which stated in black and white what the NSA could and could not do. To overcome the NSA's insistence that its activities were too secret to be discussed before judges, Congress created a special federal court, the Foreign Intelligence Surveillance Court, to hear requests for warrants for national security eavesdropping. In case the court ever turned down an NSA request, the Foreign Intelligence Surveillance Appeals Court was created. It has never heard a case.
In the more than two decades since the FISA was passed, the law has remained largely static, while cell phones, e-mail, faxes and the Internet have come to dominate how we communicate. The point hasn't been lost on the NSA. Last month, Air Force Lt. Gen. Michael Hayden, director of the NSA, gave a speech inside the agency. I was one of the few outsiders invited to attend. Hayden warned of the "new challenges" in "information technology" that the agency now faces. "The scale of change is alarmingly rapid," he said, noting that "the world now contains 40 million cell phones, 14 million fax machines, 180 million computers, and the Internet doubles every 90 days."
That's not all Hayden acknowledged. He had just returned from England, he said, where he had met with colleagues at Government Communications Headquarters (GCHQ), Britain's equivalent of the NSA. He added that they had renewed a long-standing commitment to work together. No director had ever spoken publicly of that close partnership. "We must go back to our roots with GCHQ," Hayden said.
The cooperation between the Echelon countries is worrying. For decades, these organizations have worked closely together, monitoring communications and sharing the information gathered. Now, through Echelon, they are pooling their resources and targets, maximizing the collection and analysis of intercepted information. Officials from many of the European Union countries fear that the NSA may be stealing their companies' economic secrets and passing them on to American competitors. "We're hoping we can use our position to alert other parliaments and people throughout the European Union as to what's going on," Glyn Ford, a member of the European Parliament, told the BBC. "Hopefully that will lead to a situation where some proper controls are instituted and that these things are done under controlled conditions."
The issue has also caught the attention of the House and Senate intelligence committees, and the NSA's response has been anything but reassuring. As part of its normal oversight responsibilities, the House Select Committee on Intelligence last spring requested from the NSA a number of legal documents that outline the agency's procedures for its eavesdropping operations. The agency, in essence, told the committee to take a hike. It refused to release any of the documents based on a unique claim of "government attorney-client privilege." Despite repeated requests by the intelligence committee, the NSA insisted that those documents "are free from scrutiny by Congress." Eventually, after months of negotiation, the NSA complied.
It is highly unlikely that Echelon is monitoring everyone everywhere, as critics claim. It would be impossible for the NSA to capture all communications. It has had personnel cutbacks in the past five years as its national security targets have increased in number: North Korean missile development, nuclear testing in India and Pakistan, the movement of suspected terrorists and so on. Listening in on European business to help American corporations would be a very low priority, and passing secret intercepts to companies would quickly be discovered.
Still, the NSA's stonewalling of Congress should serve as a warning bell. Under Section 502 of the National Security Act of 1947, as amended, the heads of all U.S. spy agencies are obligated to furnish "any information or material concerning intelligence activities . . . which is requested by either of the intelligence committees in order to carry out its authorized responsibilities." Rep. Porter J. Goss (R-Fla.), the House committee's chairman and a former CIA officer, has long argued for a stronger intelligence community, and even he seemed stunned by the NSA's arrogance. The NSA's behavior, he said, "would seriously hobble the legislative oversight process contemplated by the Constitution."
Rather than disappear further from view, the agency should publicly address these concerns, and the intelligence committees should hold hearings to update the laws governing the NSA and to close what now amount to loopholes. For example, the 1978 FISA prohibits the NSA from using its "electronic surveillance" technology to target American citizens. But that still leaves open the possibility that Britain's GCHQ or another foreign agency could target Americans and turn the data over to the NSA. Another problem is that the FISA appears not to apply to the NSA's monitoring of the Internet. While covering such things as "wire" and "radio" communications, there is no mention of "electronic communications," which is the legal term for communicating over the Internet as defined by the Electronic Communications Privacy Act of 1986. Worse, FISA applies only "under circumstances in which a person has a reasonable expectation of privacy."
In the recent film, "Enemy of the State," the NSA was portrayed as an out-of-control agency listening in on unwitting citizens. As the nation begins a new century, congressional hearings to redefine the agency's boundaries are the best way to prevent life from imitating art.
James Bamford, author of "The Puzzle Palace: A Report on America's Most Secret Agency" (Viking Penguin), is working on a new book about the NSA.
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