CATCHING AMERICANS IN NSA'S NET Listening in: Though the National Security Agency can't target Americans, it can -- and does -- listen to everyone from senators to lovers; NO SUCH AGENCY

THE BALTIMORE SUN

When the National Security Agency trains its agents in the highly technical art of eavesdropping, they naturally need to practice.

And the law gives them the right to practice on you.

NSA agents can hone their listening skills and test their equipment on the most intimate telephone calls of ordinary U.S. citizens, as long as notes and tapes are destroyed "as soon as reasonably possible."

"We listened to all the calls in and out of Washington," says one former NSA linguist, recalling a class at the Warrenton Training Center, a CIA communications school on a Virginia hilltop. "We'd listen to senators, representatives, government agencies, housewives talking to their lovers."

As the students prepared for overseas assignments in the mid-1980s class, the linguist recalls, they tuned their receivers to a nearby AT&T; microwave tower, scanning for calls and punching in phone numbers.

Is NSA Big Brother? Absolutely not, its officials say. In public appearances, NSA Director John M. "Mike" McConnell declares flatly that the agency "does not spy on Americans."

But as the little-known legal loophole for training intelligence agents suggests, the story of NSA and the privacy of Americans is not quite so simple.

True, NSA's mission is to spy on foreigners. And employees attest to a law-abiding culture in recent years that strongly discourages illegal excursions into domestic eavesdropping.

But in its first two decades, NSA routinely scanned every telegram entering or leaving this country and targeted the communications of anti-Vietnam War and civil rights activists, accumulating files on 75,000 Americans.

After a 1975 congressional inquiry, the agency was placed under new restrictions by executive orders and the Foreign Intelligence Surveillance Act (FISA) of 1978. But it is not just paranoid outsiders who remain uneasy about a secret eavesdropping agency in an open society.

"It always worried me. What if that is used on American citizens?" wonders former Sen. Dennis DeConcini, an Arizona Democrat and chairman of the intelligence committee until early this year. "It is chilling. Are they listening to my private conversations on my telephone?"

Legal loopholes

THEY MAY BE LISTENING -- legally. Laws protecting U.S. citizens from NSA eavesdropping are not as airtight as many Americans may suppose:

NSA is permitted to intercept any communication as long as one end is in a foreign country, and its global electronic net inevitably captures Americans' phone calls, faxes and computer messages. The law prohibits only the deliberate targeting of Americans and restricts the release to other agencies of the names of Americans picked up.

Eavesdropping on U.S. soil by NSA is overseen by a highly unusual, top-secret court that is virtually invisible to the public despite its remarkable record: In 16 years, it has never refused an NSA or FBI request for an eavesdropping warrant.

The rules that tell NSA eavesdroppers how to handle Americans' communications - contained in a volume called U.S. Signals Intelligence Directive 18 - are classified top secret and cannot be viewed by the citizens they are written to protect.

The few lawsuits filed against NSA by Americans who believe the agency has invaded their privacy have gone nowhere, because courts have accepted NSA's argument that its work is so secret that merely allowing a lawsuit to proceed would endanger national security.

Without ever "spying on Americans," NSA routinely infringes on their privacy.

"Even when they target foreigners, they end up picking up a lot of Americans," says Mark H. Lynch, an attorney who tracked NSA for the American Civil Liberties Union from 1977 to 1985.

Just ask former Maryland Rep. Michael D. Barnes. His calls to Nicaraguan government officials were intercepted and recorded by NSA - as he learned only after transcripts were leaked by the Reagan White House, he says.

"Reporters told me right-wingers were circulating excerpts from phone conversations I'd had," says Mr. Barnes, now a Washington lawyer. He says the calls included one to the Nicaraguan foreign minister protesting his government's declaration of martial law.

On another occasion, Mr. Barnes says, the director of central intelligence, William J. Casey, showed him a Nicaraguan Embassy cable intercepted by NSA that reported a meeting between embassy officials and a Barnes aide. Mr. Casey told him he should fire the aide; Mr. Barnes angrily replied that it was perfectly proper for his staff to meet with foreign diplomats.

Mr. Barnes says he did not object to being overheard. But he said the incidents were a reminder of the potential for the abuse of NSA's awesome eavesdropping capacity.

"I was aware that NSA monitored international calls, that it was a standard part of intelligence gathering," he says. "But to use it for domestic political purposes is absolutely outrageous and probably illegal."

NSA's front-line listeners and analysts who hear Americans' overseas calls and read their faxes and computer mail usually keep it to themselves.

But sometimes a revealing indiscretion occurs. In 1993, after a reporter for The Sun made several calls from Mexico City to the Cuban Interest Section, the Washington office of the Cuban government, the NSA linguist who listened in spoke openly about the calls at a party with colleagues.

By chance, word got back to the reporter. It was a case of no great consequence, but it was a reminder: Any international call is legal game for NSA.

L. Britt Snider, now staff director to a blue-ribbon panel studying U.S. intelligence, says that in nine years as counsel to the Senate Intelligence Committee, he found only occasional, inadvertent transgressions by NSA of the rules protecting Americans' privacy.

"We never came across anything resembling a systematic or programmatic effort to collect against U.S. persons," Mr. Snider says.

Yet Mr. Snider, like most outsiders who have glimpsed NSA's breathtaking eavesdropping capacity, says vigilant oversight is crucial - especially as NSA moves deeper into such areas as economics and narcotics, where Americans are far more likely to be involved.

The late Sen. Frank Church, who led the most extensive probe of intelligence abuses, warned in 1975 that if NSA ever trained its antennas on the United States, "no American would have any privacy left."

"I know the capacity that is there to make tyranny total in America," the Idaho Democrat declared, "and we must see to it that this agency ... operate[s] within the law and under proper supervision, so that we never cross over that abyss."

Steven Aftergood, director of the Project on Government Secrecy of the Federation of American Scientists, says he's not sure that warning is being heeded.

"The fact is the public can have very little confidence in the existing oversight mechanisms," he says. "I don't think one has to question the integrity of the NSA leadership to believe that oversight needs to be strengthened."

Mr. Lynch, the former ACLU attorney, agrees.

"No one is really monitoring NSA anymore," he says. "I think it's a big problem. ... Maybe it will take a scandal to get people interested again."

Shamrock and Minaret

THE LAST NSA SCANDAL left deep scars, dragging into the spotlight an agency that enjoyed its anonymity, and leaving it with the ineradicable aroma of the police state. Behind the intriguing-sounding code-names Shamrock and Minaret, NSA concealed its systematic surveillance of Americans.

Shamrock covered decades-old secret agreements with the nation's large telegraph companies under which NSA and its predecessor agencies automatically received copies of international telegrams.

At the peak of the operation, in the early 1970s, NSA analysts were reviewing 150,000 telegrams a month selected by computers scanning for keywords of interest to U.S. intelligence. Only in 1975, as Senator Church's committee began its inquiry, was Shamrock stopped.

Minaret referred to NSA's practice between 1967 and 1973 of "watch-listing" some 1,200 American anti-war or civil rights activists, as well as another 450 people suspected of drug trafficking.

On the list were the Rev. Martin Luther King Jr., radical Abbie Hoffman, actress Jane Fonda, folk singer Joan Baez and many others. Whenever they made an international telephone call or sent a telex abroad, it was copied by NSA and added to the files at Fort Meade.

Tipped off by news leaks in 1975, the Senate and House held extensive hearings on Shamrock and Minaret. When the hearings prompted some Americans targeted by NSA to sue, they found NSA's legal armor impenetrable.

In one 1978 case, 27 anti-war activists saw their lawsuit thrown out to protect NSA's secrecy. Four years later, veteran New York Times foreign correspondent Harrison Salisbury met the same fate when he took NSA to court, claiming many of his messages from overseas had been picked up.

In a third case, NSA intercepted telexes sent by Abdeen M. Jabara, an Arab-American attorney from Michigan active in lobbying for Palestinian rights, to clients and associates in the Middle East. Again, NSA prevailed in court in 1982.

But when the FBI agreed to purge government files of the NSA intercepts, it took until 1990 - because the information had been passed to 13 federal agencies and three foreign governments.

This year, Mr. Jabara, 54, served on the legal defense team of Sheik Omar Abdel-Rahman, the Muslim cleric convicted of plotting bombings in New York City. NSA has assisted that probe, linking the plot to Sudanese groups and financiers, according to several sources. The case is a reminder of the high stakes in the battle against terrorism, to which NSA sometimes makes major contributions.

But Mr. Jabara still gets emotional when he recalls learning that NSA was reading his telegrams.

"I was outraged," he says. "Basically, I believed we had a Bill of Rights and a Constitution. ... Simply because I was involved in something unpopular was no reason they should be able to violate my privacy."

Some NSA veterans, however, still argue that the agency's targeting of Americans was justified - and the real scandal was that Congress bared NSA secrets.

"If Jane Fonda wanted to call Hanoi," says Louis W. Tordella, NSA's deputy director for 16 years during Shamrock and Minaret, "I think that was legitimate to intercept it."

Protecting Americans

THE REFORMS THAT followed the Church hearings in the Senate did not ban NSA from intercepting Americans' calls and messages - for such an order would all but shut down the agency.

If NSA monitors the radio transmissions of an Iraqi fighter pilot or the official messages in and out of a Ukrainian missile site, the chances of picking up an American may be nil. But many of NSA's targets have regular contact with Americans, and computers scanning masses of communications for keywords cannot necessarily distinguish U.S. citizens from others.

What if the eavesdroppers at Fort Meade have tuned in a Colombian drug baron when he phones his American lawyer? What if a known Middle Eastern terrorist on NSA's watch-list plans a New York bombing over the telephone with a fellow militant who happens to be a U.S. citizen?

What if an NSA computer programmed with the keyword "ether" - a key ingredient in cocaine processing - automatically prints out a U.S. hospital's order for legitimate medical supplies from a European supplier?

All three hypothetical intercepts would be legal, because they result from lawful targeting of international communications.

Upon realizing he has picked up an American - not easy, because many U.S. citizens speak foreign languages - an NSA linguist or analyst must decide whether the intercept has intelligence value. If not, any texts or tapes must be destroyed immediately. This culling would discard the hospital's ether order.

The calls from the drug baron and the terrorist might have intelligence value. Then, the NSA analyst would be required to remove the Americans' names from the transcript, substituting the words "U.S. person." The transcript of the drug lord's chat with his lawyer could be delivered to the Drug Enforcement Administration - without the lawyer's name.

But the Americans' names would remain on file at NSA. And in certain circumstances - to protect lives or prosecute crimes - NSA could release the names. So the name of the U.S. citizen-terrorist plotting with his overseas partner legally could be given to the FBI.

Current and former NSA employees say the agency strictly enforces the rules on Americans' communications.

"They took it very seriously," says a Russian linguist. "In a transcript, if you didn't substitute 'U.S. person' for a person's name, they'd come and scream at you."

NSA balked at targeting a member of the Hezbollah terrorist group, another eavesdropper says, because he married an American and his legal status was uncertain.

Today, if NSA wants to eavesdrop on a foreigner inside the United States, the agency first must dispatch its lawyers to the Justice Department. In a locked conference room on the building's top floor meets the strangest judicial body in the land.

Before the Foreign Intelligence Surveillance Court, there are no plaintiffs and no defendants, no lawsuits and no criminal cases, and certainly no news reporters. There are just spies, making the case to the judge for eavesdropping on U.S. soil - and apparently making it well.

In 1994, NSA or FBI asked for a warrant 576 times. And 576 times the document was granted, preserving the court's unblemished record of approving every request since its creation in 1979.

The court consists of seven federal judges from around the country, appointed to seven-year terms by the chief justice of the United States. The judges come to Washington for two-day sessions, usually four times a year. On sensitive cases, all seven judges may be polled by phone.

"Some [warrants] might take a few minutes. Some might take a lot longer than that," says Judge Frank H. Freedman of Springfield, Mass., who served on the court from 1989 to 1994. "I found it very interesting and very informative, almost exciting."

NSA's enviable batting average does not prove that the court is a rubber stamp, Judge Freedman insists. The judges, he says, sometimes demand greater justification for a bugging proposal, or a stricter plan to minimize the number of Americans overheard.

"I was always satisfied that they had made their case," Judge Freedman says.

No warrant is required when the target is a foreign institution in the United States. and there is little likelihood that Americans will picked up.

But to listen to local calls to an embassy, to an ambassador's U.S. vacation home, or to a foreign delegation's hotel suite - or any other U.S. line that Americans might use - NSA needs a FISA warrant. The court presumably granted a warrant, for instance, when NSA listened in on the phone calls of Haitian President Jean-Bertrand Aristide during his U.S. exile.

Despite the assurances of Judge Freedman and others that the Foreign Intelligence Surveillance Court rigorously protects Americans' rights, privacy advocates regard it with suspicion.

"Judging from their annual reports to Congress, we need another process to protect us from the FISA court," says Mr. Aftergood of the Federation of American Scientists. "They hear only one side of the case."

Political hot potatoes

WHEN NSA'S NET catches a well-known American, the intercepts often are passed immediately up the agency's chain of command.

Each NSA director during his three- or four-year term accumulates a small stack of political hot potatoes, intercepts that echo in the corridors of power. Most remain secret, but a handful have been revealed in memoirs or by loquacious retirees.

Henry A. Kissinger used NSA intercepts to persuade the president of the ineptness of Secretary of State William P. Rogers, according to the memoirs of John D. Ehrlichman, an aide to President Richard M. Nixon.

But Mr. Kissinger found his own penchant for quiet diplomacy frequently frustrated by NSA. Other Nixon administration officials often learned of Mr. Kissinger's secret diplomatic initiatives from NSA's intercepts of foreigners.

"And then Kissinger would get sore as hell," recalls William E. Colby, then director of central intelligence. "Because he wanted to keep it politically secret until it was ready to launch."

According to several officials, Defense Secretary Melvin R. Laird made it clear to the NSA director he appointed, Vice Admiral Noel Gayler, that he wanted to be kept informed of all of Mr. Kissinger's behind-the-scenes moves. NSA complied - and Mr. Laird rewarded Admiral Gayler with the command of all U.S. forces in the Pacific.

In 1979, NSA intercepts contributed to President Jimmy Carter's dismissal of U.N. Ambassador Andrew Young by revealing to the president details of Mr. Young's secret meeting with a representative of the Palestine Liberation Organization in New York. NSA picked up the PLO envoy's cables reporting the meeting.

The next year, NSA caught the president's brother, Billy Carter, in dubious dealings with the Libyans. After seeing Libyan cables mentioning Mr. Carter, National Security Adviser Zbigniew Brzezinski called the president's brother to scold him.

A few days later, an aide timidly informed Mr. Brzezinski that his ++ call had broken the law - by telling Billy Carter, who had no security clearance, about the classified intercepts, according to a memo at the Carter Center and Presidential Library in Atlanta.

U.S. officials who are regular readers of NSA's intercepts quickly learn how often their names can turn up.

When he was national security adviser in the early 1980s, for instance, Richard C. Allen gave NSA a standing order for copies of intercepts that mentioned his name. He regularly received copies of foreign ambassadors' cables describing - and sometimes distorting - their conversations with Mr. Allen at Washington receptions.

Today Mr. Allen, a businessman with extensive interests in Korea, has no expectation of privacy for his international messages.

"I think my communications with my office in Seoul are read by at least two or three people," he says. "By the Koreans first of all. By the Chinese. And by NSA."

'Gag and Shackle'

FOR MOST intelligence officials, the occasional trespass of Americans' privacy is the unavoidable cost of keeping the government informed. Just as a physician may learn his patients' most sensitive secrets, so intelligence agents may hear fellow citizens' secrets. But like the health of the patient, the protection of national security must take priority over absolute privacy, say professional spies - and not only them.

The legendary lawyer Edward Bennett Williams, who had a reputation as a civil libertarian, was appalled by restrictions on NSA proposed in the 1970s. "These guidelines, they gag and shackle the intelligence gathering of the United States," he declared.

Twenty years later, the rules restricting NSA continue to rankle some officials. Robert J. Heibel, a former FBI counterterrorism official, says he and other agents were frustrated by NSA's unwillingness to supply names of U.S. citizens suspected of working with foreign terrorists.

"I think if there's a real potential for loss of life, you've got to make an exception," Mr. Heibel says.

Yet others worry that the current restrictions may not go far enough. Former Senator DeConcini says that when intelligence bosses turn a blind eye, their agencies bend rules and break laws.

"It's just too tempting when you have someone like [Director of Central Intelligence] Bill Casey, God rest his soul," Senator DeConcini says.

A similar view was expressed recently by Stewart A. Baker, a Washington lawyer who served as NSA's general counsel until last year.

In an article in the journal Foreign Policy, Mr. Baker said he saw no abuses by NSA in his two years there. "Among the more surprising discoveries I made when I joined the National Security Agency was the depth of the agency's commitment to obeying the legal limits on gathering intelligence relating to American citizens," he wrote.

Yet Mr. Baker published the article - a highly unusual act for a former agency official - to warn against relying on NSA to help with law enforcement. To mix intelligence collection and law enforcement, he wrote, is to risk either revealing NSA's sensitive collection methods in court or violating Americans' rights by turning the vast resources and looser legal controls of NSA on Americans.

Intelligence agencies are by habit extremely responsive to pressure from their elite clientele, from the president on down, Mr. Baker noted.

During his tenure, he said, the agency turned down several requests from drug enforcement officials for eavesdropping he considered impermissible. "But I have no illusions that our objections would have prevailed," he wrote, "if a different message had been coming from the leaders of the agency and the government."

NSA and American privacy

Detailed regulations governing NSA's handling of Americans' communications are secret. But some of the basic rules set by Executive Order 12333, the Foreign Intelligence Surveillance Act 1978 and a few court decisions are as follows:

* NSA can intercept any communication -- phone call, fax, electronic mail, etc. -- as long as at least one end is in a foreign country.

* NSA cannot target individual Americans by, for example, entering the citizen's name or phone number into a computer that scans phone calls.

* If NSA incidentally picks up an American during targeting of a foreigner, or if an American is mentioned by the foreigner, the American's name must be removed from reports of the call and replaced with the words "U.S. person."

* When NSA eavesdrops on foreigners on U.S. soil and there is a chance that Americans may be overheard, it must get a warrant from the Foreign Intelligence Surveillance Court -- which in its 16 years has never rejected a warrant application.

* When NSA (or CIA) eavesdroppers are training or testing equipment, they may intercept Americans' calls, as long as records are destroyed "as soon as reasonably possible."

Copyright © 2019, The Baltimore Sun, a Baltimore Sun Media Group publication | Place an Ad
39°