The National Security Agency
excerpted from the book
The Lawless State
The crimes of the U.S. Inteligence Agencies
by Morton Halperin, Jerry Berman, Robert Borosage,
Penguin Books, 1976
Until ... recent intelligence investigations, Americans were
virtually unaware of the existence of the National Security Agency.
As the NSA's programs have come to light, we see yet another intelligence
agency that expanded its activities in the mid-1960s as part of
the campaign against political activity and that systematically
flouted the Constitution and the law.
What is extraordinary about the NSA is its capacity for collecting
information, and the tool that this gives the government for intruding
upon the lives of its citizens Referring to the NSA, Senator Frank
Church viewed the problem in this way:
The U.S. government has perfected a technological capability
that enables us to monitor messages that go through the air .
. . between ships at sea, between military units in the field.
We have a very extensive capability of intercepting messages wherever
they may be in the air waves. That is necessary and important
as we look abroad at potential enemies. At the same time, that
same capability at any time could be turned around on the American
people. And no American would have any privacy left, such is the
capability to monitor everything-telephone conversations, telegrams,
it doesn't matter. There would be no place to hide.'
The NSA has a greater potential for gathering information
than any police state has ever had. The FBI can merely dream of
putting an agent behind every mailbox; the NSA literally has the
capacity to intercept all communications. As far as the record
shows, it has so far limited itself to eavesdropping on communications
that have at least one terminal in a foreign country-although
this "restriction" allows it to intercept all international
messages of Americans.
The NSA has not developed its own covert action programs to
disrupt and neutralize selected political groups. It did carry
out several burglaries during the 1950s, installed a few bugs
to maintain its own security, and inspired the CIA and FBI to
commit burglaries in foreign embassies on its behalf. More important,
the NSA has complemented the programs of the other intelligence
agencies by servicing their requests for information. Using -its
own "watch list" and those provided by the CIA, the
FBI, the Secret Service, and the BNDD (Bureau of Narcotics and
Dangerous Drugs), the NSA has used its special technology to run
a program of information collection and dissemination. The watch
lists determined what messages were targeted and to which agencies-in
addition to its own Office of Security-the information was passed.
From what is known of it, the mission for which the NSA was
originally created is code-making and code-breaking. World War
II proved the critical value of having such a capacity. In 1952,
President Truman issued a top-secret directive, "Communications
Intelligence Activities," which established the NSA.
National Security Council Intelligence Directives (NSCIDs)
and Director of Central Intelligence Directives (DCIDs) set up
the operating structure of the NSA.
The code-making arm of the NSA is the COMSEC (Communications
Security) program; its mission is to protect United States government
messages by developing codes and the equipment used to transmit
them. The codebreaking part of the NSA's mission is called SIGINT
(Signals Intelligence), which is itself divided into two branches.
ELINT (Electronic Intelligence) monitors and interprets electronic
signals such as radars, missiles, etc. COMINT (Communications
Intelligence) monitors electronic signals which are intended as
messages. It is under the COMINT program that the NSA's abuses
of power have occurred.
The public record now provides information about three of
the NSA's COMINT programs that affected the rights of Americans.
The oldest program is SHAM ROCK, which involved the interception
of all private cables leaving the United States. Overlapping this
is the watch-list program, ultimately labeled MINARET, which involved
checking all electronic messages that had at least one terminal
outside the United States for names on watch lists provided by
other agencies. And finally, there were the files of NSA's Office
of Security, which contained the information that its surveillances
had collected on Americans.
The SHAMROCK program had its beginnings in August 1945, when
the Army Signals Security Agency asked the three cable companies
(RCA Global, ITT, and Western Union) that government access to
international cables be continued after the war. The companies'
lawyers advised that it was illegal in time of peace under the
Communications Act of 1934 (47 U.S.C. 605), which reads:
No person receiving, assisting in receiving, transmitting,
or assisting in transmitting, any interstate or foreign communication
by wire or radio shall divulge or publish the existence, contents,
substance, purport, effect, or meaning thereof. .
After some hesitation, the cable companies nevertheless agreed,
provided that the attorney general would assure them that he would
protect them from criminal liability and lawsuits. The government
apparently never informed the cable companies that its activity
was not limited to foreign targets but also analyzed and disseminated
the telegrams of Americans. The companies never asked what was
done with the fruits of their cable surveillance.
The companies did, however, continue to seek assurances that
they would not be prosecuted, and the record shows that in 1947
Secretary of Defense James Forrestal told them that the program
was vital and that both the president and the attorney general
approved; they would be protected during the Truman administration.
The following year, however, the secretary of defense was unable
to get Congress to relax the 1934 act in order to allow the government
access to the radio and wire communications of foreign powers,
which would have made the program legal as it was originally conceived.
The promise of protection was reiterated in 1949 by Secretary
of Defense Louis Johnson, and the companies apparently never sought
In 1952, when the NSA took over from its precursor the Army
Security Agency, the cable interception program continued uninterrupted,
even though NSCID-6 a National Security Council directive, was
apparently intended to limit the NSA's processing to the coded
messages of spies and foreign governments, and to prohibit intercepting
the ordinary telegrams of everyone else. The NSA has since claimed,
however, that this limitation was really meant to apply only to
uncoded mail (which was FBI or CIA turf, in any case) and not
to any electronically transmitted messages, including telegrams.
The NSA claims that SHAMROCK did not exceed its executive charter,
and that it is an embarrassment only because it induced cable
company employees to violate the Federal Communications Act.
SHAMROCK continued unabated until the scandals involving the
intelligence community began to break. Dr. Louis Tordella, the
NASA's deputy director from 1958 to 1974 and the official in charge
of the program, stated that to the best of his knowledge, no president
since Truman has known about SHAMROCK.
In its early and technologically primitive years, the information
gleaned from SHAMROCK was processed against a small NSA watch
list, which had been geared primarily to foreign rather than domestic
intelligence. But with the technological developments of the 1960s,
the scope of NSA surveillance mushroomed. With the evolution of
magnetic tapes for transmitting telegrams and computer scanning
for selecting particular kinds of messages, the NSA was ready
to plug the watch lists of its client intelligence agencies into
SHAMROCK. By the late 1960s, when the surveillance of domestic
groups had got into full swing, the NSA was intercepting some
150,000 messages per month in the SHAMROCK program alone, dwarfing
the ClA's mail-opening program.
Since at least 1962, in addition to SHAMROCK, the NSA has
run-without the benefit of judicial warrants-a program for selecting,
intercepting, reviewing, and disseminating the international radio
and phone communications of specific American organizations and
individuals on watch lists. The lists were initially established
in order to monitor travel to Communist countries and to protect
the president and other high officials. The fact that, in the
latter case, the NSA would end up picking up not only calls about
the officials, but the calls of the officials themselves"
is a measure of the electronic surveillance problem. As with the
other intelligence agencies, there was apparently no serious effort
to minimize what their vacuum cleaner sucked in. And the NSA's
technology produces a tremendous "multiplier effect"-if
an organization is selected, so are all its members. If an individual
is on the watch list, then all conversations to, from, or about
him or her are also intercepted. Anyone mentioning one of the
magic words, in any context, has his or her message selected and
examined for personal, political, and economic information.
The watch-list program for pinpointing American dissent began
in earnest in the fall of 1969, as the NSA's contribution to the
intelligence community's search for the ever elusive foreign involvement
behind the civil rights and antiwar movements. The names included
on the watch lists were a mix of people and organizations involved
in protest politics. They ranged from radical political groups
to celebrities, to ordinary citizens taking an active interest
in the political controversies of the time. As we have come to
expect from the intelligence agencies, the names on the list included
the peaceful, nonviolent, and totally legal And there was, of
course, a great deal of overlap in the watch lists submitted by
the various agencies.
From 1965 to its end as an organized program in 1973 the watch
list encompassed some 1,650 names, which had been supplied by
the CIA, the FBI, the Secret Service, and the DOD, as well as
some which the NSA Itself contributed. Figures available for the
1967-73 period indicate that the list then held some 1,200 American
names; 950 had been submitted by the FBI, 180 by the Secret Service,
50 to 75 by NSA 30 by the CIA, and 20 by the DIA. And although
the links to foreign support were never found, the NSA nevertheless
found reason to disseminate to these client agencies some 2,000
reports- mostly containing information which was personal and
politically innocuous-during the 1969-73 period.
In July, 1969, the NSA decided to formalize the watch-list
program by issuing itself a charter MINARET This formalization
had two functions. First it imposed secrecy procedures on the
program that were even stricter than those the NSA ordinarily
used, and second, it imposed procedures to disguise the NSA's
participation in the program. In short, the NSA's MINARET employed
virtually all the bureaucratic techniques available for preventing
leaks about illegal activities and for eliminating a "paper
trail." And although the NSA officially contends that this
watch-list operation was a legitimate part of its foreign intelligence
mission, the fact remains that the MINARET intelligence product
was subjected to special security controls that were not applied
to the NSA's legitimate intelligence information.
Before the advent of MINARET, only the intercepted communications
between two Americans were subject to special secrecy procedures;
after MINARET, all communications to, from, or about United States
citizens were classified top secret, "For Background Use
Only." In addition, the information was not serialized in
order to be absorbed into the regular NSA record-keeping systems,
and none of the reports disseminated carried any markings that
would identify the NSA as the original source. These - extraordinary
procedures indicate that, internally, the NSA could not have actually
considered MINARET an extension of its normal intelligence mission.
The Senate Select Committee's report offers a fairly detailed
discussion of one NSA operation performed at the request of the
Bureau of Narcotics and Dangerous Drugs.
The BNDD arrangement with the NSA provides a case study of
both an enterprising use of the NSA technology for creating a
loophole in the protections of the Fourth Amendment, and of the
confusion involved in trying to determine precisely what clandestine
agencies have done, and why.
In 1970, the BNDD concluded that under the Supreme Court wiretap
decision in a case known as Katz, it could not legally wiretap
public telephone booths in order to monitor suspected drug traffic
between New York and South America. While the BNDD noted that
Katz had specifically placed Fourth Amendment restrictions on
wiretaps of public phones, it ignored the Court's holding that
the Fourth Amendment "protects people, not places."
The bureau evidently concluded that it had found a loophole by
getting the NSA to tap into the international communications links
rather than into a specific phone, and it asked the NSA to monitor
the international links carrying these phone conversations.
In late 1972, as part of an NSA effort to increase secrecy
around its drug traffic surveillance, the CIA was asked to contribute
the intercept operators for the BNDD program. The CIA agreed and
monitored the operation from a station located on the East Coast.
But by February 1973, the CIA general counsel, Lawrence Houston,
concluded that the BNDD watch list was actually a law enforcement
procedure, and therefore went beyond the CIA's statutory charter.
The BNDD operation gives some indication of the difficulty
in trying to determine just what kind of reasoning lies behind
the decisions of clandestine government agencies. NSA officials
have stated that the CIA had apparently not been troubled by the
"law enforcement" function, and that the reason given
for pulling out of the program was the fact that the CIA's intercept
station was located within the United States.
At any rate when the CIA bowed out, the NSA reconsidered its
role in the BNDD surveillances and decided that "supporting
an agency with a law enforcement responsibility" was outside
the normal scope of its mission.
The NSA terminated the drug surveillance program in June 1973,
and, in August or September, the NSA destroyed the program's paper
trail-all the records relating to the product, internal memoranda,
and administrative documents. Actually, however, this changed
very little; falling back on its established label of "foreign
intelligence," the NSA continued (by no small coincidence)
to monitor some of the same links until July 9, 1975, well after
the heat of the first congressional investigation of its activities
had begun. This is another clear example of how, once a program
is found to be of questionable legality, the internal housecleaning
consists largely of shuffling the same activity into another file
with a more legitimate sounding name.
The SHAMROCK interception of cables - with the help of the cable
companies - was longer-lived. lt did not end until May 15, 1975,
when Secretary of Defense James Schlesinger ordered its termination.
The reasons given were that it was no longer a valuable source
of foreign intelligence (had it ever been?) and that there was
an increased risk of exposure. Indeed, the exposure was soon to
SHAMROCK had surfaced in the documents given to the Rockefeller
Commission in May 1975. In June and July, the Senate Select Committee
on Intelligence, drawing on a shy reference in the published commission
report, asked for more information about that agency's program.
They were told that the subject was so sensitive that only Senators
Frank Church and John Tower (the committee's chairman and vice
chairman) could be briefed. No meetings, however, were immediately
In July and August, a series of news stories appeared which
leaked all the major points of the SHAMROCK program into the press.
As a result, the full committee was briefed in September. A report
was prepared, and the NSA objected not to the substance of the
report but to the fact that its material was classified. The report
was ultimately read into the record, however.
Although SHAMROCK and MINARET are both officially ended, the
same programs are still going on in only slightly modified form.
Since telegrams are now sent by airwaves, the NSA no longer needs
the cooperation of the cable companies to get access to their
magnetic tapes. And given the predictability of the watch lists
and the NSA's experience with them, the agency's analysts know
what kinds of information its client agencies have an interest
The NSA is still free to disseminate in any fashion that it
chooses the information it collects. The current operating principle
for dissemination procedures is that "relevant information
acquired by [NSA] in the routine pursuit of the collection of
foreign intelligence information may continue to be furnished
to appropriate government agencies."
The current situation, then, is that the NSA still scans all
messages, its computers still select messages for the analysts'
attention according to whatever criteria are chosen, and the analysts
still decide for themselves if the information meets a "legitimate"
requirement. According to the Senate Select Committee's final
report, the names of Americans are usually-but not always-deleted
before the information is disseminated. The fact that there is
no longer an official watch list (as far as is known) is merely
a formality. More important, there are still no legislative controls
on the NSA; a new executive order is all it would take to reactivate
an explicit and itemized watch-list program, and plug it back
into the computers.
THE ABSENCE OF LEGISLATED CONTROLS
For all its awesome technological power, the NSA has never
really been out of control; it has simply never been subject to
any explicit limitations on its operations. While the CIA had
been created by statutes that had intended, however unsuccessfully,
to put limits on its activities, the NSA has never been subject
to a similar embarrassment. It had been created by executive fiat,
and was regarded as too secret to require or to need statutes
to back it up. Its enormous capabilities have been developed and
operated without any substantial congressional authorization;
its budget appropriation has been carefully camouflaged within
the huge Defense Department budget, and because of its supersecret
status it has, until now, enjoyed an isolation from controversy
that the CIA might envy. At the same time, it has been able to
fall back on a statute-P L. 86-39-that exempts the NSA from disclosure
laws, including the Freedom of Information Act.
Although the NSA has been running, at a cost of $4 billion
per year, the largest and most sophisticated surveillance operation
in history, it has been shrouded in secrecy. The House investigations
marked the first time that a director of the NSA has been required
to appear publicly before a committee of Congress. Only two months
earlier, the president's Rockefeller Commission report had found
it politic to leave the National Security Agency discreetly unnamed.
Its discussion of the CIA CHAOS/NSA connection only alluded to
the NSA as ,"another agency of the government," which
carried on "international communications activity."
The NSA has also made every effort to stay out of court: the
government has dropped prosecutions rather than open the NSA's
surveillance program to judicial scrutiny. As a result, no court
has yet been in a position to hand down a decision expressly affirming
that the Constitution and the laws apply to the NSA.
Until this happens, the NSA's official position is that the
Fourth Amendment, which requires the government to get a court
order in order to listen in on someone's phone calls, does not
apply to that agency. In his first public testimony, NSA Director
General Lew Allen, Jr., asserted that the NSA's authority to eavesdrop
on the international communications of Americans comes from the
president's power as commander in chief, and apparently, as long
as it claims that the interception is for "foreign intelligence"
purposes, NSA can listen in on any and all international communications.
The only restriction to which the NSA has adhered is apparently
contained in the top-secret directive which established the agency
in 1952. The NSA limits itself to tapping into only international
communications for "foreign intelligence" purposes-but
this means that one terminal can be inside the United States,
and that one or both subjects can be United States citizens.
In addition, the executive branch still backs up the NSA's
claim. Executive order 11905, issued by President Ford as an intelligence
"reform" package, authorizes NSA to continue its massive
warrantless surveillance. The executive order imposes no restrictions
on the NSA's operations; it makes no mention of safeguards, guidelines,
or limitations, such as explicitly prohibiting watch lists or
minimizing eavesdropping to cover only legitimate targets.
Congressional investigations have now revealed enough about
NSA to make it clear that something must be done. The agency's
potential power is staggering, and must be brought into line with
the basic civil liberties of Americans. In its final report, the
Senate Select Committee on Intelligence viewed the problem this
The [NSA] watch list activities and the sophisticated technological
capabilities that they highlight present some of the most crucial
privacy issues facing this nation. Space age technology has outpaced
the law. The secrecy that has surrounded much of NSA's activities
and the lack of Congressional oversight have prevented, in the
past, bringing statutes in line with NSA's capabilities.
Security Agency watch