[Mb-civic] Spy Controversy, Redux - Ruth Marcus - Washington Post Op-Ed

[William Swiggard]

Spy Controversy, Redux

By Ruth Marcus
Monday, January 2, 2006; A13

"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.

http://www.washingtonpost.com/wp-dyn/content/article/2006/01/02/AR2006010200568.html
-------------- next part --------------
An HTML attachment was scrubbed...
URL: http://www.islandlists.com/pipermail/mb-civic/attachments/20060102/066b900c/attachment-0002.htm