I share the general outrage at the breadth and depth of federal government spying on every aspect of our observable behavior. But I do not share the surprise. The NSA has long been hoovering up every bit of data it could get and maneuvering lawmakers into legalizing whatever happens, or at least leaving holes big enough to drive the largest agency in the so-called intelligence community right through. In 1995 I was reading about the Clipper Chip, which was a design for a computer encryption chip with a built-in back door called, appropriately, the Law Enforcement Exploitation Field. Open discussion of such a solution to the problem of balancing public and private needs at the time led to the demise of the design, which is why such designs were never done openly again.
During that time I began a letter to my representatives in Congress and the Senate outlining my objections to Clipper. These could not be stated reasonably without giving a brief history of the NSA, information that was not widely distributed at the time. The letter turned into a brief essay on that topic, bringing together information that was publicly available but at the time considered fringy because it did not fit the dominant narrative. It’s funny how often facts fail to conform to our narratives. Now that I think of it, that in a nutshell is what psychotherapy is about, or should be. In any case, what once was fringy is now common knowledge. So if you know someone who was talking about Echelon spying on them in the last several years, they may have been right.
One thing I want to emphasize about the current round of revelations is the tiny cost of the PRISM program. All the corporations named in the slide have vigorously denied participation in very carefully worded statements. But think of it this way. What can the federal government get in terms of super-secret personnel and equipment for $20 million a year? Not enough to gather and process all the information the program reportedly gets. So who pays the rest?
Below the fold is the argument I made in my essay in outline form. The links are to the original essay, which I should move here but I haven’t gotten around to doing it. I’ve also appended the text of the first three sections.
“No statute establishes the NSA or defines the permissible scope of its responsibilities,” complained Senator Frank Church. The National Security Agency was established by President Truman in a still classified Executive order Oct. 24, 1952. Its direction is apparently supplied by the classified document currently known as National Security Council Intelligence Directive (NSCID) No. 6 (formerly No.9), originating on July 1, 1948.
As of 1982, the NSA was still without a statutory charter, the first recommendation of the Church committee. Oversight by the intelligence community in the form of the National Foreign Intelligence Board (NFIB, formerly USIB) is effectively meaningless. The board rarely if ever turns down NSA proposals; day-to-day contact between the agency and its customers in the intelligence community prevents a periodic oversight board from examining much more than NSA's stated policy.
Budgetary authority apparently comes from the Central Intelligence Agency Act of 1949. This act provides the basis for the secret spending program known as the Black Budget by allowing any arm of the government to transfer money to the CIA “without regard to any provisions of law,” and allowing the CIA to spend its funds as it sees fit, with no need to account for them. Congress passed the C.I.A. Act despite the fact that only the ranking members of the Senate and House Armed Services Committees knew anything about its contents; the remaining members of Congress were told that open discussion, or even clear explanation, of the bill would be counterproductive. There were complaints about the secrecy; but in the end the House passed the bill 348–4, and the Senate took a voice vote.
The NSA’s estimated $10 billion annual allocation (as of 1990) is funded entirely through the black budget. Thus Congress appropriates funds for the NSA not only without information on the agency’s plans, but without even a clear idea of the amount it appropriates; and it receives no accounting of the uses to which the funds were put. This naturally precludes any debate about the direction or management of such agencies, effectively avoiding public oversight while spending public funds. (Weiner notes the analogy to “Taxation without representation.”)
The NSA has also spent a great deal of time and money spying on American citizens. For twenty-one years after its inception it tracked every telegram and telex in and out of the United States, and monitored the telephone conversations of the politically suspect.” (Weiner, Blank Check)
Due to its unique ability to monitor communications within the U.S. without a warrant, which FBI and CIA cannot legally do, NSA becomes the center of attempts to spy on U.S. citizens. Nominally this involves only communications in which at least one terminal is outside the U.S., but in practice target lists have often grown to include communications between U.S. citizens within the country.
And political considerations have sometimes become important.
During the Nixon administration, for example, various agencies (e.g., FBI, CIA, Secret Service) requested that the NSA provide all information it encountered showing that foreign governments were attempting to influence or control activities of U.S. anti-war groups, as well as information on civil rights groups, draft resistance/evasion support groups, radical-related media activities, and so on, “where such individuals have some foreign connection,” probably not that uncommon given the reception such groups usually receive at home. Clearly it would have been illegal for those agencies to gather such information themselves without warrants, but they presumably believed that the NSA was not similarly restricted when they included on their watch lists such Nixonian bugaboos as Eldridge Cleaver, Abbie Hoffman, Jane Fonda. Joan Baez, Dr. Benjamin Spock, and the Rev. Ralph Abernathy. Presumably the name of Dr. Martin Luther King, Jr., was removed from the watchlist the year Nixon was elected; certainly it was a targeted name before that time.
[The remainder of the essay is here.]