It hasn’t taken America very long to forget Watergate and what it was all about: the abuse of presidential power.
President Richard M. Nixon not only ordered a burglary at the Democratic National Committee headquarters in 1972, but had been using the National Security Agency to spy on Americans, particularly anti-war protesters. But there’s a small historical irony here that author James Bamford never misses a chance to point out.
On the day in 1970 that Nixon called the chief of the NSA into the Oval Office and ordered him to start eavesdropping on Americans, even Nixon didn’t know that he was merely authorizing something the agency and its predecessors had been doing illegally since World War I.
Bamford knows because he’s spent most of his career researching the super-snooper agency, writing the first book ever published on the NSA – 1979’s The Puzzle Palace – which he followed in 2001 with Body of Secrets. In between, the hard-nosed Bamford became a gumshoe on national security issues as a producer for ABC’s “World News Tonight.”
When The New York Times revealed in late 2005 that President Bush had authorized the NSA to spy on Americans after the Sept. 11 attacks, it didn’t take Bamford long to join a lawsuit brought by the American Civil Liberties Union, which is trying to stop the warrantless surveillance.
The ACLU won a round for the Fourth Amendment in Detroit last August, when a federal judge rejected White House arguments that rested, in part, on “inherent” presidential powers to search and seize in time of war. On Jan. 31, the ACLU and Bush Administration argued the case in Cincinnati before the Sixth Circuit Court of Appeals, which has yet to rule.
The same day, The New York Times printed an editorial by Bamford outlining a little-known law passed in the wake of Watergate. It specifically prohibits warrantless surveillance of Americans, even by the president – something the writer pointed to as solid grounds for impeachment.
“If you look at the past cases,” Bamford says, “Richard Nixon was impeached for something much more minor.”
I was surprised to learn that there is a long history of telecom companies cooperating with the NSA. Talk about that.
It’s not really common knowledge, but . . . this has been going on for almost a hundred years. After World War I, after censorship was lifted, the predecessor to the NSA, which at the time was called the Black Chamber — that was a civilian organization charged with code breaking and interception of communications — faced a similar problem. They needed access to all the telecommunications in order to sift through it to find out information they wanted. The head of the Black Chamber, Herbert O. Yardley, personally went to the heads of the various telecom companies. At the time, they were mostly interested in telegrams, so they went to Western Union and a number of the other telegraph companies, and they got the secret cooperation for those companies to turn over, both secretly and illegally . . . whatever telecommunications the Black Chamber wanted. That only ended when a newly incoming Secretary of State, Henry Stimson, closed down the Black Chamber. But then it started up again after World War II [when] the head of the successor of the Black Chamber — at the time it was called the Signal Security Agency — did exactly the same thing. Gen. [William Preston] Corderman went to the heads of the individual telecom companies, Western Union and so forth, and worked out very secret, very illegal agreements whereby they would turn over to this government agency — without any warrants, without notice to anybody — all the telecommunications going in and out of the company, which is millions of communications to and from Americans in the U.S. That lasted 30 years . . . Eventually when things became computerized, it involved turning over computer tapes of every telegram entering and leaving or going through the United States, all without a single warrant. [So] NSA for decades had been eavesdropping on communications illegally, spying on people, reading their telegrams, [and] listening to phone calls without going for a warrant.
And that ended when? After the investigations by [the late] Sen. Frank Church?
The Church Committees were mostly in the 1975 time period when the anger and discovery of all this took place and, then, it took three years of hearings before they finally worked out a mechanism whereby both the Republicans and the Democrats — liberals and conservatives — agreed on a method to prevent this from happening again. And the way they did it was by creating this act, called the Foreign Intelligence Surveillance Act [or FISA], and that act did two key things. One of them was to create a very secret federal court system, known as the Federal Intelligence Surveillance Court, as a mechanism for which the agencies would have to get warrants and, number two, to put teeth in it, it created a penalty for presidents or heads of NSA or people who are in a capacity to violate it. The criminal sanction was five years in prison and/or a $10,000 fine for every violation. So it did that in 1978, for the specific purpose of preventing what happened . . . after 9/11 simply because the president came out and said I think we should bypass the FISA act and begin domestic surveillance.
What’s the secret FISA court supposed to do?
The FISA court was created to force the NSA to begin complying with the law, to go before a judge and have a judge — an impartial judge — decide whether a person is eligible to be eavesdropped on by NSA. The way it was before the court [existed], NSA made the decision.
I understand it wasn’t difficult to get a FISA warrant, so what was the White House’s rationale for going around it?
No, getting a FISA court warrant was probably the easiest thing in the world. Out of nearly 20,000 applications for warrants, the government has only been turned down less than five times. That’s a pretty good ratio…. The government has two real reasons — or two excuses — for going around the FISA court. One is the Congressional authorization to use force. That was the legislation passed after 9/11 authorizing the president to basically go after al-Qaida, go after the people who committed 9/11. But you talk to Republicans in Congress and even they say that we never contemplated that NSA was going to be a part of this. I mean, [they say] using NSA domestically has nothing to do with what our original authorization was…. The second argument was that it is within the President’s inherent powers to be able to do this. There are certain things that are within a President’s inherent powers. They are very few and far between. But one of the things that cuts out a President’s inherent authority is when Congress creates a law overriding any inherent authority, and that’s exactly what they did by creating the FISA. [The federal judge in Detroit said] if you want to eavesdrop on persons in the United States, there is only one way you can do it, and that’s by getting a warrant from the FISA court. There is no inherent power. There is no creation of these artificial laws like the authorization to use force.
In the computer age, we’re no longer talking about listening to individual phone calls. What is data mining and how extensive is it?
Data mining is one the most serious issues facing the country right now in terms of privacy and in terms of people just living normal lives because the technology has so outpaced the law. Nobody right now has even a clue of the extent to which the government can do data mining. What makes it very dangerous is that it goes well beyond what George Orwell wrote about in 1984, [in which] they had a big screen and they could watch people. What you can do with data mining is [use computer and bank records to] see what people are doing right now by seeing what restaurants they are going to, what hotels they are staying at…. They could see five years ago which websites I was visiting, what emails did I send, and what emails did I get. The government can have a record anytime it wants of literally every movement that you’ve made, which largely would be recorded these days in one way or another. That’s a very scary thought.
But I often hear people say, “If I’m not breaking the law, it doesn’t matter if the government knows what I’m doing.”
I know. I hear that all the time. It’s just the ultimate falsity in logic, but look at the way the system works. How many people are there now on the “do not fly list?” There are 40,000 people. One of those people was Ted Kennedy. It took him eight months to get off and he was only able to get off because he was a U.S. senator. The really insidious aspect of this is that you don’t know if you are on there. Suppose you just moved into 12 Maple Avenue. You’ve never done anything wrong. You’re a perfect, upstanding U.S. citizen. You’re a Boy Scout. You go to church every Sunday. There is nothing in your life that you think would be suspicious to the NSA. The problem is that the person who just moved out of 12 Maple Ave. had a subscription to [the Arab news magazine] AlJazeera, communicated with Afghanistan three times a week, and had visitors at 3 o’clock in the morning. That person was suspicious to the intelligence community. Now, all of a sudden in the data mining, your name gets associated with 12 Maple Ave. and 12 Maple Ave. is associated with somebody suspected of possible terrorism. You don’t know it, but now you’re on some black list in the bowels of the NSA. Now suppose your son wants to go to the Naval Academy. Well, they’re going to do a background search and — lo and behold — they’re going to find out that your name is on a black list. Your son isn’t going to get into Annapolis and you’re not going to know why. Or you apply for a Small Business Administration loan and you don’t get it. Or they turn you back at the airport. You’re not going to be told why …. Those are real things. Those actually happen to people. The people that allow this to happen, the people that create the atmosphere for this to take place, are precisely the people that feel that “I am an upstanding, law-abiding person, so I don’t care what the government does to anybody else because I am a good guy and nobody is going to come after me. “