Investigating the NSA Itself
By PETER FENN
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Back in the horse and buggy days when I was investigating the National Security Agency as part of the 1975-76 Senate Select Committee on Intelligence (the Church Committee), we were concerned about telegrams, letters and tapping pay phones. The Internet, cell phones, email and all things digital were the furthest things from our minds.
When we traveled to NSA headquarters at Ft Meade, Md., we entered the inner sanctum of techno-nerds, code breakers and an agency focused on collecting foreign intelligence on “the commies,” as many referred to them.
This was an agency basically with a mission separate and apart from the FBI and other domestic law enforcement agencies. It was foreign focused, until Nixon brought them in to the fold.
We found an agency that was politically isolated and super-secret, but not the least bit interested in wiretapping the phones or reading the mail of Americans. NSA had been pulled in, reluctantly focusing on anti-Vietnam War demonstrators and civil rights activists by the Nixon administration.
A group of us on the Church Committee discovered the presence of Americans on the “Watch List” without warrants, a long-term relationship with international communications companies to collect international telegrams to identify spies and the monitoring of mostly overseas communications of communist countries.
When the relationships with companies like Western Union, RCA Global and International Telephone and Telegraph were uncovered and the legality questioned, they ended. The companies had been concerned about legal exposure back in the 1940s and by the time of the Church Committee they were embarrassed by the fact that they were turning over, lock stock and barrel, international telegrams of Americans. The relationship with the government was just too cozy.
Fast forward to 2013. NSA culture seems to have changed. Now, post-9/11, its budgets have mushroomed, staffing has expanded and it is swooping up mountains of data about Americans. Recent disclosures that it was called on the carpet by the Foreign Intelligence Surveillance Court for domestic collection speaks volumes. This court hasn’t exactly been the protector of civil liberties, approving almost 100 percent of the requests for surveillance.
The Snowden revelations and other press stories point to an NSA that has devoted large amounts of time and resources to collecting vast amounts of data on Americans and foreigners, relying on the largest communication companies. This collaboration with companies that are increasingly global is not a great business model. Phone companies, internet companies and social networking sites don’t want their customers, be they domestic or foreign, to suddenly pull out for privacy reasons.
In addition, the Fourth Amendment issues that are raised here at home put the companies in a very precarious position. Much like the old telegram companies, they have come to realize that wholesale turning over of communications to the government isn’t such a great idea.
It is time to take a good hard look at NSA and its culture and its mission. Is the NSA looking inward now? Is it focused on using its “vacuum cleaner” technology and incredibly sophisticated storage and analytic capacity to look at Americans, without sufficient legal authority? Is it setting up an apparatus that constitutes a regularized and constant “unreasonable search?”
Will it link with other agencies, including law enforcement, to merge other data? Will the recent Supreme Court decision on collecting DNA at some future date be included in these databases? Where does this go? Is the technology the driving force?
In the end, it is up to a new Congressional Select Committee, similar to the Church Committee, to examine the facts and the future. It should be seriously staffed, with adequate intelligence safeguards, to uncover what was done and to suggest new legislative remedies if necessary. Just as the Church Committee led to the 1978 Foreign Intelligence Surveillance Act, a new committee should be tasked to come to terms with the new technology, the new threats and the new realities of the erosion of privacy.
NSA should no longer be the “No Such Agency” it once was and the power of the investigative microscope should be turned up on them for the sake of all Americans.