The Family Jewels (12 page)

The second NSA initiative was known as Project Minaret. This activity aimed to intercept telephonic conversations, not written communications. It began under President Kennedy as an effort to collect information on individuals talking to people in Cuba. Minaret expanded. Following the Kennedy assassination, the Secret Service asked NSA to monitor the phones of persons it considered threats to the president. So NSA created its own watch list. Instead of simply tapping phone circuits to Cuba, with the advent of electronic switching, microwave relay, and satellite transmission, Fort Meade could program its computers to eavesdrop on calls from specific telephone numbers and pull the signals right out of the air. On October 20, 1967, during an antiwar demonstration at the Pentagon, army intelligence asked the NSA to listen in on the calls of political activists. Lieutenant General Marshall S. Carter, who had been John McCone's deputy when Minaret began, and who had then moved over to head the NSA, received the request. He agreed. The army added its own names to the watch list.

Political dissenters were suddenly major targets. The FBI became one of Fort Meade's best customers. It put 1,000 Americans on the Minaret watch list—almost 60 percent of the total—along with 1,700 foreign persons and groups. An NSA criterion was that one side of the phone conversation had to be abroad. There were few, if any, antiwar protests
planned by transatlantic telephone. Despite the wide net, as with mail-opening, the take proved paltry. FBI intelligence chief W. Raymond Wannall later told investigators, “The feeling is that there was very little in the way of good product as a result of our having supplied names to NSA.”
²⁷

Meanwhile, new clients lined up. The Defense Intelligence Agency added a small number of persons to the watch list. The CIA's Project Chaos made contributions too. The Secret Service's slice of the pie, which peaked in 1970–1971, included 180 Americans and another 525 foreign individuals or groups. Individuals were added or removed from the watch list under criteria that remain secret even today. At any given time the denizens of Fort Meade were eavesdropping on about 800 Americans. By July 1969, just before Carter left, Minaret business had become substantial enough that he promulgated a formal charter for it. Minaret, like Chaos, was above Top Secret, in this case handled over signals intelligence channels even though no codebreaking was involved. The take included both phone material and Shamrock messages that seemed relevant. Minaret reports were hand-carried and went out with no mention of the National Security Agency. They were supposed to be used for background only. But the breadth was extensive—NSA was to collect information on individuals or organizations whose activity “may” lead to civil disturbances or in any other way “subvert” national security.
²⁸

The Nixon administration supplied a new element. Richard Nixon was the president who first declared war on drugs, and he created the Bureau of Narcotics and Dangerous Drugs (BNDD) to conduct that campaign. Nixon expected the CIA and NSA to cooperate. At Fort Meade that meant Minaret should add American drug traffickers to its list. At CIA, Project Chaos was supposed to identify the traffickers, and NSA began to send Langley data on the pushers beginning late in 1972. The CIA, uncomfortable that action against drugs being
sent to the United States might be seen as a domestic operation, which implicated its charter prohibitions, stopped work on the drug networks after about six months. Not so Fort Meade. The BNDD put 450 Americans and over 3,000 foreign nationals on NSA's watch list. At any given time drug suspects accounted for about a third of the names on the watch list. National Security Agency officials later claimed credit for helping to capture several major drug shipments, but provided no details, making such assertions impossible to check.

Vice Admiral Noel S. Gayler followed General Carter at the helm of the NSA. In January 1971 he extolled NSA's Minaret collection ability to Defense Secretary Melvin Laird and Attorney General John Mitchell. Gayler's summary of the points covered is eloquent on the subject of NSA's pretext for eavesdropping on American activists: they represented “foreign-related subversive activity.”
²⁹
It was the same excuse the CIA used for Project Chaos. A week later a senior subordinate, NSA assistant director Benson K. Buffham, met the same two officials and obtained approval of the notes Gayler had made. On February 5 Mitchell attended a meeting of the President's Foreign Intelligence Advisory Board, where he told the group that electronic surveillance was being applied to “violence-prone groups,” that there were more wiretaps in place than when the Nixon administration took office, that the NSA was advocating resumption of break-ins, and that all this lay within the scope of routine presidential power.
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But it was on Gayler's watch that the bottom fell out on Minaret. This followed an attempt to prosecute several antiwar protesters for alleged conspiracy to destroy government property, including one man who had aimed at CIA recruiters visiting the University of Michigan. In legal maneuvers preceding trial it emerged that the government case was based on warrantless wiretaps. The defense moved to exclude the evidence. The 1968 Omnibus Crime Control Act had specifically required proper warrants for eavesdropping.
Moreover, the phone taps here had been in place far longer than was typical, as if authorities had listened in until they could find something, anything, with which to charge the defendants. The dispute went all the way to the Supreme Court. The Nixon administration based its case precisely on the “national security” exception in the 1968 act—also the only legal basis for NSA monitoring. On June 19, 1972, the Supreme Court in the “Keith decision” ruled unanimously that warrants were necessary before commencing a wiretap even where national security issues were involved.
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All Minaret phone monitoring was, of course, warrantless.

Vice Admiral Gayler's successor, Lieutenant General Samuel Phillips, did not immediately halt Minaret or Shamrock. Secrecy became the sole protection. As with the CIA's mail-opening, halting an activity was much harder than initiating it. Fortunately for the NSA, the Vietnam war was winding down, reducing demand for intelligence on protesters. The CIA also helped indirectly with its decision to terminate work on narcotics trafficking. That suggested the need for an equivalent Pentagon review. There officials were also becoming more squeamish—by this time the secretary of defense was none other than James R. Schlesinger. On July 5, 1973, the assistant secretary responsible for intelligence matters asked the Pentagon's general counsel to rule on whether the NSA eavesdropping was lawful. At Fort Meade the NSA performed its own review. Air force Lieutenant General Lew Allen, taking up the reins in August, huddled with NSA lawyers to pick up the pieces. The codebreakers stopped taking nominations for their watch list and halted certain support for the BNDD. Then it put Minaret reporting on hold. On September 17, Allen asked government agencies to recertify their intelligence requirements. Attorney General Elliott Richardson responded on October 1, taking the FBI out of the game and questioning the propriety of requests from the Secret Service to boot. In that letter Richardson specifically
cited his need to better understand the implications of the Keith decision. Shortly thereafter General Allen terminated Minaret, except for intercepts gleaned from overseas monitoring. There is, however, some evidence from a January 1976 exchange of correspondence between the president and attorney general, by then Edward Levi, that telephone intercepts continued in the guise of the NSA monitoring
Soviet
interception of Americans' telephone calls.

When the Year of Intelligence began, all this NSA domestic spying remained under wraps. Therein lies a story too. Investigators for the Church Committee encountered immense difficulties in discovering anything about the NSA. The Congressional Research Service knew nothing, the Senate committee staffers with jurisdiction over the code-breakers had little more than budget information, and former NSA employees kept their comments at the level of disputes over parking spaces at Fort Meade. The investigators, L. Britt Snider and Peter Fenn, then approached General Allen and simply asked to be briefed on agency activities. Lew Allen arranged the briefings, but they were all vanilla. Meanwhile, the Rockefeller Commission had wound up its inquiry, and the Church Committee pressed for access to its documents. After weeks of appeals—and impelled in good part by intense public concerns over alleged CIA assassination plots (see
Chapter 6
)—the White House handed over the records. These files included a copy of The Family Jewels. There Snider and Fenn found just two references to NSA, but each led directly to Fort Meade's sensitive activities. One mentioned LP/Medley, the CIA's cover office lent to NSA for Shamrock. The other concerned Project Minaret. The fat was in the fire.

Britt Snider asked NSA for explanations. Nothing happened for weeks. Yet it was at precisely this moment, after thirty-four years, that the NSA suddenly terminated Project
Shamrock. By July 1975 a frustrated Snider made his request formal, crafting a set of written questions sent to Fort Meade as an interrogatory from Senator Church. The NSA responded that these matters were so sensitive they were willing to talk only to Frank Church and his Republican vice-chairman, Texas senator John Tower.

But, like the White House attempting to avoid Church Committee inquiries into CIA covert operations, in the climate of 1975 there was no possibility the National Security Agency could evade investigation. Leaks followed NSA's gambit. On July 22 the
New York Daily News
broke the story that “for at least five years” the NSA and FBI had routinely monitored commercial cable traffic to and from the United States.
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The story hinted this practice was much older than that. Follow-up reporting in the
Daily News
forced the Church Committee into an acknowledgment that the National Security Agency had confirmed the program existed. Intelligence chief Bill Colby, testifying before the Pike Committee on August 6, found himself forced into an admission that the NSA had, in fact, monitored not only cables but phone calls. Colby attempted to get the House committee into closed session, but was repeatedly blocked from going off the record. Then Director Colby represented the activity as “incidental,” asserting that it flowed from other monitoring and had been “technically impossible to separate.” It was supposedly “too random for warrants.” By that point, however, Congress had already taken the testimony of a senior Pentagon official who affirmed that the NSA had supplied Project Chaos with many hundreds of pages of communications intelligence.
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This history is not well known. But what has never been reported is what transpired inside the Ford administration. Late the previous year Attorney General Saxbe had been pressing for
new
permission for foreign intelligence surveillance. On September 18 Director Colby had concurred—
siding with NSA advocates of “surveillance which requires installation of a microphone by trespassory means.” Colby had added that CIA would conduct no electronic surveillance within the United States without prior personal approval of the attorney general.
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Deputy National Security Advisor Brent Scowcroft had counseled President Ford to go slow—even a Republican congressional task force on privacy had objections. In late December Ford had nevertheless renewed his authorization. But Scowcroft was right. By May 1975, two months before the Shamrock-Minaret revelations,
a dozen
bills had already been introduced in Congress aiming to restrict electronic surveillance even for national security purposes. The CIA protested that no “probable cause” standard would work, because the utility of an intercept could not be discerned in advance, and it objected to courts “introjecting” themselves. The agency wanted a free hand and recommended Ford stand on his “inherent foreign intelligence gathering powers.”
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Then, on June 23, 1975, in another federal case (
Zweibon v. Mitchell
, D.C. Circuit No. 73–1847), the Court of Appeals reversed a lower court decision favoring the government. The court ruled that prior warrants must be obtained “even if the surveillance is installed under Presidential directive in the name of foreign intelligence gathering for protection of the national security.”
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Within days the Church Committee raised questions with the Department of Justice, the CIA, and NSA. By July 1975 it was clear that President Ford's own approval of eavesdropping, barely six months old, required revision. The matter had become a high-profile political issue. White House lawyer Philip Buchen advised Attorney General Levi to refuse to discuss eavesdropping when he appeared before the Church Committee on July 16. Levi took that advice, but it remained clear that the administration had to respond. Buchen assembled a working group from Justice,
CIA, NSA, FBI, and the State Department to cobble together an agreed joint briefing to which all could adhere. It was following Levi's refusal to comment on government eavesdropping that the leak of Project Shamrock occurred.

Once Director Colby had been mousetrapped into open admission of warrantless NSA eavesdropping, there could be no question but that the congressional inquisitors would follow the threads. At the Church Committee, staffers divided the turf so that Britt Snider took the lead on Shamrock while Peter Fenn looked into Minaret. Late in August Snider, who had been stymied by stonewalling at Fort Meade, was suddenly asked to NSA for a Shamrock briefing, delivered by a clean-cut, earnest agency man. The agency admitted that it had access to most cables moving through New York, that a courier went to the city every day to bring back the latest, and that the system had long been in place. The code name was Shamrock. The briefer reported it had been terminated on orders from Secretary Schlesinger, but attributed this to a sense Shamrock produced little, not to the fact it had been discovered. The NSA briefer punted on whether Fort Meade had been reading Americans' private messages, claiming analysts had their hands full merely with official cables. The briefer could not—or would not—say how long Shamrock had been underway, who had approved it, or how it began.