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How much? How long? And from whom? Making Wise Judgements on Intelligence Gathering

Published: January 2, 2006

Chicago Tribune
Monday, January 2, 2006

How much? How long? And from whom?
Making Wise Judgments on Intelligence Gathering

By Fritz Schwarz

Too much information is collected [from too many] for too long.”

That was a key lesson of a mid-1970s investigation, by the U.S. Senate’s Church Committee, of overreaching by the National Security Agency and other intelligence agencies during the Cold War. As chief counsel to that committee, I was struck by the genuine surprise of even the most hawkish committee members about what we uncovered. And it seems human nature has not changed much in three decades.

New revelations about the NSA’s domestic eavesdropping in stark violation of federal law have reignited debate about congressional oversight of the intelligence community. But that debate will be dangerously incomplete without the sort of factual clarity that the Church Committee achieved by long, hard investigation.

Commentators on both sides of the aisle have rushed to judgment on the NSA eavesdropping program. Some are calling for impeachment. Others are demanding statutory regulation of foreign-intelligence gathering to be scrapped. But this debate is premature absent a full accounting of the NSA’s eavesdropping.

Thirty years ago, the Church Committee conducted meticulous investigations into the intelligence agencies, including the NSA. It carefully respected those agencies’ sources and methods but unsparingly revealed abuse and overreaching. Rather than honing in on dangers to the nation, the Church Committee found, agencies had long been spying on groups like the Women’s Liberation Movement, NAACP and Conservative American Christian Action Council, and their exercise of 1st Amendment rights.

Like today, the first glimpse into the NSA came in a news report, which led to the discovery of “Operation Shamrock"—in which the NSA had been vacuuming up and examining telegram traffic indiscriminately—and an NSA “watch list” of civil rights and anti-war activists whose communications were systematically monitored.

Commenting 30 years ago on similar revelations about the FBI, Michigan Sen. Phillip Hart summed up senators’ reactions: “I have been told for years by, among others, some of my own family, that this is exactly what the bureau was doing all of the time, and in my great wisdom and high office, I assured them that … it just wasn’t true.” But the facts showed otherwise. And Hart cautioned that overreaching “will happen repeatedly unless we can bring ourselves to understand and accept that it did go on.”

Understanding and accepting mean knowing the facts. Despite public statements from President Bush, Vice President Dick Cheney and U.S. Atty. Gen. Alberto Gonzales about how limited NSA spying has been, troubling questions remain.

The Bush administration has pointed to the need to act quickly as a practical justification for the NSA’s eavesdropping program, and to the September 2001 “Authorization for the Use of Military Force” as its legal justification. But neither the practical nor the legal explanation makes sense. The federal law that the NSA violated, called the Foreign Intelligence Surveillance Act of 1978, already provides a procedure for obtaining warrants when there’s “probable cause"—which is a low standard—to believe a person is part of a “group engaged in international terrorism or activities in preparation thereof.”

And FISA criminalizes warrantless searches of the kind the NSA is doing. But it also carves out a 72-hour exception for emergency situations—undermining the Bush administration’s practical justification. FISA also has a 15-day exception triggered by a declaration of war; this undermines the administration’s position that a September 2001 joint resolution to use military force authorized warrantless spying in America four years later.

According to Gonzales, the NSA has been eavesdropping not only on terror suspects but on anyone “working in support of Al Qaeda.” Gonzales didn’t say what counts as “support of Al Qaeda,” or whether further categories of targets remain undisclosed. Early reports suggest that the NSA has snooped broadly. The New York Times reported that the NSA has identified intelligence targets by following “the chain of phone numbers and e-mail addresses” from terrorism suspects. If you happen to have used the same library computer or telephoned the same hardware store as a terrorism suspect, in other words, perhaps you are fair game. And consider Bush’s assertion that news of the NSA program “damages our national security and puts our citizens at risk.” If the president really believes that, does that mean the Times and its reporters meet the threshold requirements for warrantless NSA eavesdropping?

Congress today faces the daunting task Sen. Hart outlined 30 years ago. It must not only reassert its role in the face of an executive that sees no role for the two elected chambers in matters of national security. It must also uncover the basic facts of the NSA’s eavesdropping. This task begins with Sen. Arlen Specter and his colleagues on the Senate Judiciary Committee, who will hold hearings. After that, Congress needs to remember the Church Committee as a model for the kind of careful, detailed and deep inquiry that is sorely needed again today if we are to make wise judgments on the proper scope of intelligence gathering.

Fritz Schwarz is senior counsel at the Brennan Center for Justice at New York University School of Law, and was chief counsel to the Church Committee from 1975 to 1976. He is co-writing a book on national security and the separation of powers to be published this year.