USATODAY.com - NSA's surveillance of citizens echoes 1970s controversy

USATODAY.com - NSA's surveillance of citizens echoes 1970s controversy

NSA's surveillance of citizens echoes 1970s controversy
By John Diamond, USA TODAY

WASHINGTON ? Days after the Sept. 11 attacks, the head of the National Security Agency met his workforce at the nation's eavesdropping and code-breaking headquarters at Fort Meade, Md., near Washington, for a pep talk.


National Security Agency dishes at Fort Meade, Md., monitor election transmissions around the world.
By Greg Mathieson, Time Life Pictures/Getty Images

"I told them that free people always had to decide where to draw the line between their liberty and their security," Air Force Gen. Michael Hayden told lawmakers a year later. "I noted that the attacks would almost certainly push us as a nation more toward security."

Within weeks of Hayden's talk, Bush did just that, directing the NSA to use its immense eavesdropping power on targets within the USA without the warrants required by a 1978 law. Bush used his Saturday radio address to confirm his actions, which were first reported last week in The New York Times.
(Related story: Security agency, related laws at a glance)



"This authorization is a vital tool in our war against the terrorists," Bush said, adding that it was legal and constitutional.

Lawmakers of both parties have disputed that last point. Sen. Arlen Specter, R-Pa., has promised hearings; House Democratic leaders want Speaker Dennis Hastert, D-Ill., to name a bipartisan panel to look into the program.

NSA's eavesdropping power

The surveillance program has sparked concerns about civil liberties not only because of the lack of warrants, but also because of the NSA's extraordinary information-collecting power.

Based in a heavily guarded modern complex, the NSA is the "ear" of the nation's intelligence system. It uses a system of satellites and other means to listen in on friend and foe alike, decoding and translating communications and reporting the results to key recipients in government, such as the president and Pentagon. In his book Body of Secrets, James Bamford calls the NSA's information storage capacity "near bottomless," capable of holding the equivalent of 5 trillion pages of text, or a stack of paper 150 miles high.

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The NSA's ears
Some ways the National Security Agency monitors its targets:

*Satellites in Earth orbit that listen to telephone conversations and intercept data transmissions.

*Taps on telephone land lines.

*Land-based antennas in the USA and elsewhere that intercept telephone and other communications
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For the NSA, Bush's executive order authorizing the interception of electronic communication without warrants, signed in late 2001, represents a dramatic shift from restrictions on domestic spying imposed after exposure in the mid-1970s of NSA operations against U.S. citizens.

The White House says the president has legal authority granted by a congressional joint resolution passed Sept. 14, 2001, that allows the president to use whatever force he deems necessary to stop acts of terrorism. A 2002 Justice Department legal brief argued the president can authorize wiretaps without a warrant in cases of national security.

Opponents, such as Harvard Law professor Laurence Tribe, note that the Constitution's Fourth Amendment prohibits "unreasonable searches and seizures" and requires a show of probable cause before warrants are issued. Also, the Communications Act of 1934 and the U.S. Criminal Code have provisions limiting or banning the interception of electronic communications.

The Supreme Court has never precisely determined the line between presidential powers in wartime and legal protections, said Elizabeth Rindskopf Parker, dean of the University of the Pacific McGeorge School of Law and a former general counsel for the NSA. She called Bush's order "a serious mistake" on political and practical rather than legal grounds. "Whether or not his theory is correct, the thing that is most important ... is that you must go forward in a way that ensures you have public confidence and trust," Parker said.

Pepperdine University law Professor Douglas Kmiec said Bush's use of the congressional authorization "is plausible" and his power to respond to an emergency shouldn't be superseded by laws limiting intelligence gathering.

Secret federal court bypassed

Before Bush's secret order, the NSA operated under strict limits on domestic intelligence collection. The Foreign Intelligence Surveillance Act (FISA) of 1978 set up a secret federal court that must approve requests for the NSA to conduct surveillance against anyone in the USA suspected of being an "agent of a foreign power," such as a terrorist group.

In 2000, Hayden made the first appearance by an NSA chief in decades before a congressional committee, presenting briefing charts declaring the agency "operates under the rule of law" and conducts surveillance on U.S. targets only with a warrant. At that time, the NSA faced public accusations that new technology enabled it to sift through huge quantities of electronic communications looking for terrorists, drug dealers or other potential threats.

After the 9/11 attacks, critics came from the opposite direction, as the NSA was accused of failing to collect and translate intercepts aggressively enough to catch the 9/11 plotters.

Hayden, who is now the deputy director of national intelligence, declined requests for comment on the surveillance.

Revelations in 1975 of CIA misdeeds led to an investigation by a committee headed by then-senator Frank Church. The committee published a report in 1976 that uncovered three cases of NSA spying on Americans.

"Here we are, 30 years later, revisiting the whole issue," said Matthew Aid, a historian who has written about the NSA.

Bamford, author of two books about the NSA, wondered why Bush sought the warrantless searches, since the FISA court rarely rejects search requests. "The FISA court is as big a rubber stamp as you can possibly get within the federal judiciary," he said.

Indeed, brief annual reports of the activities of the secret court show that from 1979 through 2004 it granted 18,761 warrants and rejected five. Fewer than 100 had to be modified.



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