The Family Jewels (13 page)

Not satisfied, Britt Snider sought a meeting with NSA's recently retired deputy chief, Louis Tordella. In that exalted position since 1956, Tordella would have the backstory if anyone did. They met at his home on a Sunday afternoon in September. Sure enough, the NSA man had the goods and laid out his account into the evening. Tordella conceded that Americans' cables were monitored, but maintained this concerned only a few persons and had not been a primary objective. Snider returned to his office. The NSA suddenly set up a briefing for committee members where it related the
same facts. Senator Church summoned cable company officials and took testimony, after which Snider prepared a staff report on Shamrock.

The next step was for the Church Committee to decide whether to hold a public hearing. No senior NSA official had ever appeared before Congress. The committee was split, partly but not entirely along party lines, with Church and some favoring a hearing and Tower plus others opposed. Senator Church convened a private meeting to hammer out a plan, inviting Secretary Schlesinger and General Allen to make their case against public discussion. The showdown took place on the afternoon of October 2. Schlesinger, returning from a NATO ministerial conference in Europe, was late and tired. Staffer Loch K. Johnson recalled the scene: “He sounded like Moses speaking from the mount, engulfed in swirling clouds of pipe smoke.”
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Grave and somber, Schlesinger spoke in a low voice. Lew Allen nodded at his points. It was all too sensitive. Hearings might inadvertently disclose information to America's enemies. Schlesinger seemed to have no sense of crisis, the political values at stake. An NSA congressional aide, James G. Hudec, listened in mounting horror as Schlesinger, who seemed tired and may not have understood what he was asked, offered alternatives that kept Fort Meade in control: the committee could hold closed hearings, then write a report the NSA would edit; or it could assemble a report that NSA would vet, and then could have a hearing based solely on that material. Frank Church had heard enough and dismissed the officials. Once they left, the senators thrashed it out, and Church wore Tower down until the committee agreed to proceed.

The Ford administration, well-informed by Republican members and staff of the inner workings of Church's investigation, now became desperate. Attorney General Levi, who had refused to discuss the issue previously, specifically asked to speak about the NSA. The administration was
momentarily in a stronger position because Senators Church and Walter F. Mondale, in appearances during the intervening days, had made statements disclosing certain other testimony taken privately. But Levi's appearance proved a disaster. The attorney general held his hand against his face and spoke dismissively. Staffer Johnson thought Levi looked like he was nursing a toothache. Levi held up the specter that after a public hearing corporations would no longer cooperate with government, denying NSA a valuable source. Why that should matter for an operation that had been terminated he did not say. As for those Americans on the watch list, they were suspicious individuals. Levi could not answer questions from Senators Mondale and Gary Hart. He then repeated that a public hearing would damage American security and refused to say anything more. Heated debate within the committee followed. Senator Church lost support for a full NSA inquiry, but members came to focus on Shamrock and Minaret.

President Ford counterattacked the same day, announcing that he himself would reform U.S. intelligence by fiat, issuing an executive order to revamp the system (something that did not happen until three months later). He followed up with telephone calls to Church and other committee members imploring them to back off. But the hearings on CIA mail-opening took place at this time and reinvigorated public demands for broadened investigation. Though Frank Church was buffeted by administration pressure plus rising concerns on Capitol Hill, he was also driven by the storm of public anxiety. So far as the NSA was concerned, this turned into a look at Minaret, but a consensus to go lightly on Project Shamrock. The administration came to the same place. It had to make a decision. Ford had failed to prevent any airing of dirty laundry, and the alternative was to disclose Project Minaret while minimizing attention to Shamrock. Among so many abuses being pursued, this seemed smaller, its fallout more manageable.

On Capitol Hill the Church Committee met on October 28 to make final arrangements for General Allen's testimony the next day. Under committee rules Church obtained a consensus to release Britt Snider's report even if Shamrock was not discussed. President Ford intervened with another round of telephone calls imploring senators to reconsider. Meanwhile at the White House, Phil Buchen massaged Allen's prepared testimony, already in draft. The Pentagon and NSA each proposed versions that mentioned Project Shamrock without revealing much. Allen went to the Hill armed with a White House–approved statement plus instructions to demand the committee go into executive session if it wished to discuss Shamrock. The general was prepared to talk about Minaret and the watch lists. As it played out, the focus stayed on the NSA eavesdropping on the antiwar movement.

The basic attitude that marked these NSA programs was revealed when Walter Mondale questioned Deputy Director Benson K. Buffham. Mondale asked if the NSA had been concerned about Minaret's legality, and its expert at first reacted as if he did not understand.

“In what sense?” Buffham countered, then posed his own question, “Whether that would have been a legal thing to do?”

Mondale simply said, “Yes.”

“That particular aspect didn't enter into the discussion,” Buffham answered.

Senator Mondale pressed his inquiry. “I was asking you if you were concerned about whether that would be legal and proper.”

Deputy Director Buffham's reply went to the heart of the government's disdain for the rights of Americans: “We didn't consider it at the time, no.”
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Senator Church dealt with Shamrock primarily from the podium by discussing some of his staff findings. A few days later he released Snider's Shamrock report. The Ford White House would be pleased at its success with the committee,
but furious at the release of the report. But all it had accomplished was kick the can down the road. In the House, Representative Bella Abzug chaired the Subcommittee on Government Information and Individual Rights of the Government Operations Committee. Abzug, a New York Democrat, enjoyed a much more stable majority. She had also been a target of both CIA's Project Chaos and the NSA eavesdropping. The congresswoman seized on the NSA issue with her usual bulldog ferocity. Until mid-October all her subcommittee's requests of the Ford administration had focused on the FBI. Suddenly they began to aim at the NSA as well. The subcommittee planned a hearing with the cable company representatives scheduled to take place even before Church's better-known encounter. Abzug asked General Allen to testify. Just before the event, John Marsh of the White House appeared together with Lew Allen and senior aides to Levi and Schlesinger, attempting to head it off. At that point the NSA used the Church investigation as a screen, maintaining it was dealing entirely with committee investigators. Officials also argued that taking testimony might provide the cable companies immunity against subsequent criminal prosecution. On the morning of the scheduled hearing, Attorney General Levi took Abzug aside and personally appealed to her. The congresswoman responded by radically reducing the scope of her meeting. With release of the Senate's Shamrock report, however, the administration's strategy collapsed. Abzug renewed her determination to explore it.

General Allen, in correspondence with Representative Abzug, accepted the request to appear for a hearing and then fussed over dates and availability. Several times the Abzug hearings were scheduled, then postponed. They finally occurred in March 1976. Again Lew Allen was not available. The subcommittee issued subpoenas to the cable companies and NSA. This time Abzug found an official to provide Fort Meade's viewpoint. Now the administration invoked
executive privilege. President Ford, in a letter to Secretary Schlesinger and Attorney General Levi, instructed them to reject the subpoenas. At Fort Meade, agency officer Joseph J. Tomba received a letter from Schlesinger's deputy with orders not to supply documents the Abzug subcommittee had demanded. In the hearings Tomba then refused to testify. The cable companies had no such protection, however, and they spoke before Congress. In the end, Shamrock was pretty well documented after all, despite the fact that Gerald Ford continued to claim executive privilege against provision of evidence, as when the Senate Interstate Commerce Committee sought a further look during the summer of 1976.

Meanwhile, the Ford White House was left with the problem of legal authority for electronic surveillance. Bills that had been tabled on Capitol Hill the previous year returned to the fore. The NSA testimony on Minaret, and the revealed breadth of the Shamrock intrusions, made it plain that citizens were indeed vulnerable to government spying. Rather than permit legislation to be hammered out by others, Ford now cooperated on a law to cover electronic surveillance. In February, while informing Congress of his executive order on intelligence, the president declared he would work with it on new legislation. Coincident with the Abzug hearings, President Ford hosted a lunch at Blair House bringing together Edward Levi with his codebreakers and the President's Foreign Intelligence Advisory Board, feeling out what needed protection. Levi had already met that morning with Henry Kissinger, Donald Rumsfeld, and George H. W. Bush, now, respectively, heads of the State Department, Pentagon, and U.S. intelligence community. Representing the White House were Brent Scowcroft, Philip Buchen, and Jack Marsh.

By then a draft bill existed—acceptable to Levi, Buchen, and Marsh—and Levi had already begun feeling out members of key congressional committees. Talking points prepared for this meeting make explicit that the purpose was to get a
statute enacted before the courts further narrowed executive freedom of action. Kissinger resisted language abridging any presidential authority over intelligence gathering. He wanted a provision that would permit warrantless wiretapping of persons who were not American citizens or resident aliens, and he wanted to lower the threshold at which statutory warrantless provisions kicked in—to information the government considered merely “important,” as opposed to the “essential” standard in the draft legislation.
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On March 23 President Ford had thirty-six congressional leaders to the White House to unveil his proposal. Walter Mondale was included. Frank Church was not. Jack Marsh reported that Massachusetts Senator Edward Kennedy had been especially helpful. Kennedy had, in fact, indicated his willingness to introduce the bill in the Senate.

Herein lies the origin of the Foreign Intelligence Surveillance Act (FISA). Ted Kennedy indeed championed it. The vagaries of election year politics, the changeover to the presidency of James Earl Carter, and the debate over an even more ambitious project for a statutory charter to govern the entire intelligence community delayed action for a long time, but FISA passed in 1978 and became law. One key provision created a federal court, its judges named by the Chief Justice of the Supreme Court, to hear applications for wiretap warrants. Another clause required a showing of probable cause for the warrant, with even more stringent rules on evidence if the suspects were American citizens. It is worth noting that both provisions governing the Foreign Intelligence Surveillance Court—deemed inadequate after the September 11 attacks—formed parts of the original,
Republican
, proposal for the Act.

Electronic eavesdropping on Americans and the monitoring of cable traffic made a classic Family Jewel. The
wiretapping began on shaky legal ground that was demolished by the courts. It continued past the end of the Vietnam war and stopped only when top officials concerned with liability called a halt. The cable interception was criminal on its face. Both operations ultimately relied upon secrecy for their protection. Shamrock, the cable project, continued until its cover had begun unraveling. The Ford administration's ultimate response was to craft new legislation to permit electronic eavesdropping to continue, albeit under some regulation by the courts.

Leap ahead a quarter of a century. By then FISA had been enacted, and the Foreign Intelligence Surveillance Court had become established and well practiced. The law survived court challenge in 1982 when a trio of Irish Republican Army supporters had disputed it when nabbed for running guns to the IRA. The National Security Agency had regulations governing who could be targeted, and providing for “minimizing” information collected about American citizens. In any case of doubt, NSA employees were to seek the counsel of its lawyers. The criterion that one side of a phone conversation had to be located abroad was firmly in place. The executive had even learned to navigate the politics of modifying FISA—during the Clinton administration, it had gone to Congress, twice, to obtain modifications that would modernize the system, with new provisions for physical searches and for data related to computer addresses and Internet communications. In short, the system had become routinized and was periodically updated. In addition, the existing legal strictures posed little obstacle to government investigation. More than ten thousand times, United States authorities had applied to the court for electronic surveillance warrants. On just four occasions were they denied. At the end of Bill Clinton's presidency, the arrangements for ensuring that NSA could collect
intelligence through electronic surveillance while safeguarding American citizens' constitutional rights seemed to be working smoothly—and in the government's favor—without major difficulty.

The National Security Agency director at the time, air force General Michael Hayden, was said to be a stickler for regulations, and in 2000 he gave a speech extolling NSA's virtuous protection of the public's rights. Then came the attacks of September 11, 2001. At Fort Meade, Hayden immediately implemented a special watch on communications into or out of Afghanistan, where the Al Qaeda perpetrators were located. He then softened the parameters for his “minimization” procedures, moving to a wartime footing. The director had once told a congressional committee, by way of illustrating how well citizens were protected against eavesdropping, that if Al Qaeda leader Osama bin Laden crossed into the United States at Niagara Falls, the NSA would have to stop watching him. That now seemed unacceptable.