The Worth of War (25 page)

In 1965, President Lyndon Johnson ordered the CIA to begin
investigating student opposition to the Vietnam War. Johnson was, of course, receiving intelligence from the FBI but was concerned that the aging J. Edgar Hoover was more concerned with proving that student leaders were receiving their instructions from the Communist party than objectively assessing the facts. Accordingly, and much to Hoover's chagrin, Johnson told the CIA to conduct investigations separate from and independent of the FBI's operations. The CIA assigned agents to infiltrate student groups and, sometimes working in cooperation with local police departments, engaged in a variety of physical and electronic surveillance efforts. The entire activity was labeled “Operation CHAOS.”

In 1970, President Richard Nixon expanded CHAOS to include not only student antiwar groups but also a variety of other groups about whom the president entertained suspicions. These included women's groups, African-American organizations, and Jewish groups. Such groups were subjected to electronic surveillance, mail opening, infiltration, and physical surveillance including collection and inspection of their trash.

By 1972, the CHAOS program had produced card files on some 300,000 Americans and 1,000 groups that had somehow run afoul of CIA surveillance. Names and information were generally shared with other agencies and with foreign governments. Stories containing disinformation about such targeted groups as Students for a Democratic Society and Women Strike for Peace were planted in the press to discredit the organizations and, allegedly, covert CHAOS infiltrators acted as provocateurs, encouraging such groups to engage in illegal acts that would provide the basis for intervention by local law enforcement. News of the 1972 Watergate break-in, which involved two former CIA agents, E. Howard Hunt and James McCord, led agency executives to fear that any subsequent investigation would reveal the existence of the illegal CHAOS operation. CIA quickly closed CHAOS and transferred all its agents to other duties. CHAOS remained a secret until 1972, when details of the operation were reported by
The New York Times
.
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The NSA

During the years that J. Edgar Hoover was expanding the FBI's surveillance activities and the CIA was being asked to target domestic groups, another federal agency was developing its own capacity to monitor Americans through their communications. This was the National Security Agency (NSA) created by President Harry Truman in 1952 and assigned primary responsibility for American signals intelligence. Eventually, NSA capabilities would dwarf those of the FBI and CIA. The NSA had a number of predecessor agencies, including the World War II–era US Army Signals Intelligence Service (SIS). Under the leadership of William Friedman, America's foremost cryptanalyst, and, indeed, the individual who coined the term
cryptanalysis
, the SIS had broken many German and Japanese codes and developed America's unbreakable SIGABA cipher machine. The NSA was established within the Department of Defense and, like its predecessors, charged with intercepting and, if necessary, decoding communications that had potential military or diplomatic significance. In essence, the NSA was to spy electronically on foreign powers while detecting their efforts to spy on the United States.

Over the next several years, the NSA developed a variety of systems designed to intercept satellite-based communications throughout the world. One of these systems, code-named ECHELON, was deployed by NSA in cooperation with several American allies, including the United Kingdom, Canada, New Zealand, and Australia, though the American role was primary. By the 1990s, through ground-based listening stations and its own satellites, NSA had the potential to intercept much of the world's telephone and fax traffic.
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In the late 1990s, however, the communication industry's shift from satellites to buried fiber-optic cables rendered ECHELON's systems obsolete. In cooperation with industry scientists, the NSA was able to develop mechanisms for intercepting and reading communications sent through fiber-optic systems. These devices were called PacketScopes and allowed the NSA to tap into fiber-optic networks and record the contents of messages, including emails,
which could then be stored and analyzed. By 2001, NSA had secured the cooperation of much of the telecommunications industry for the installation of its PacketScopes and had the capacity to intercept and examine all the data flowing through their world-wide systems.

NSA was nominally tasked with collecting information that might be relevant to national security concerns. Inevitably, however, other security agencies as well as the White House became interested in making use of NSA capabilities for their own purposes. One early example of this phenomenon concerned data produced by NSA's Project SHAMROCK and Project MINARET. SHAMROCK was the code name for a project that involved the examination of telegrams coming into or leaving the United Sates. As in the case of Herbert Yardley's Black Chamber decades earlier, NSA and its predecessor agencies forged agreements with America's major telephone, telegraph, and cable companies that allowed it to intercept and transcribe virtually every telegram sent or received in the United States and to listen to any telephone calls in which it had an interest. Over 150,000 telegrams per month were viewed by NSA personnel, and results deemed interesting or suspicious were shared with the FBI, CIA, and other agencies.

In a related NSA program, Project MINARET, the agency checked intercepted communications against a “watch list” of American citizens and organizations with which it had been provided by federal law enforcement agencies and the White House. Between 1967 and 1973, the watch list grew to include thousands of individuals and organizations, including many involved in anti–Vietnam War and civil rights protests. Reports on these groups had initially been requested by President Lyndon Johnson and continued to be received by President Nixon.

The Church Committee and FISA

In 1974, in the aftermath of the Watergate affair, the various surveillance activities conducted by the FBI, CIA, NSA, and other federal agencies came under scrutiny by a number of congressional committees.
Perhaps the most important of these was the Senate's Select Committee to Study Governmental Operations with Respect to Intelligence Activities, chaired by the late Senator Frank Church of Idaho. The Church committee identified a number of abuses associated with COINTELPRO, Operation CHAOS, Project MINARET, and the various federal surveillance programs and noted that every president from Franklin Roosevelt to Richard Nixon had used illegal surveillance to secure information about their political opponents.

In its report, the committee found that numerous individuals had been subjected to surveillance and subsequent action based solely upon their political beliefs. The report declared, “Too many people have been spied upon by too many government agencies and too much information has been collected. The government has often undertaken the secret surveillance of citizens on the basis of their political beliefs even when those beliefs posed no threat of violence or illegal acts on behalf of a hostile or foreign power.
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Senator Church added:

“The [National Security Agency's] capability at any time could be turned around on the American people, and
no American would have any privacy left, such is the capability to monitor everything:
telephone conversations, telegrams, it doesn't matter. There would be no place to hide. [If a dictator ever took over, the NSA]
could enable it to impose total tyranny, and there would be no way to fight back.”
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It is worth noting that when Senator Church expressed these fears in 1975, the NSA could read telegrams and listen to phone calls. Along with other security agencies, it might also open mail, but in practice only a tiny fraction of the hundreds of millions of letters sent each year could be examined. Thus, Church's remarks embodied a bit of exaggeration at the time. The advent of email and social media, however, greatly enhanced the volume of information available to federal agencies and made the senator's comments more prescient.

In response to the findings of the Church Committee and other congressional inquiries, Congress in 1978 enacted the Foreign Intelligence Surveillance Act (FISA) designed to place limits on electronic
surveillance by government agencies. Of course, these selfsame agencies, as well as successive presidents, had ignored or circumvented previous legal restrictions on electronic surveillance, such as those embodied in the 1968 Crime Control Act. Nevertheless, members of Congress hoped that by mandating stricter judicial supervision and stiff penalties for violators, government surveillance of American citizens might be curtailed and controlled.

FISA stipulated that in order to undertake electronic surveillance of Americans, the government would be required to apply for a warrant from a special court created by the statute. This was called the Foreign Intelligence Surveillance Court and initially consisted of seven federal district court judges appointed for seven-year terms by the chief justice of the Supreme Court. In 2001, the FISA Court was expanded to eleven judges. A second court created by the act, the Court of Review, consisted of a three-judge panel empowered to hear appeals by the government from negative decisions by the FISA Court. In practice, the Review Court has been relatively quiescent since the government has had reason to appeal only a handful of the FISA Court's decisions. Both the FISA Court and Court of Review deliberate in secret and the content of their decisions is not made public.

FISA stipulated that the court would issue a warrant only if it found probable cause to believe that the target of the surveillance was acting in concert with a foreign power or agent. The 1978 act defined
foreign power
as a nation-state, but this was subsequently amended to include non-state actors such as terrorist groups. The act also allowed the president to authorize warrantless surveillance within the United States if the attorney general certified to the FISA Court that the target was a foreign intelligence agent, and there was little chance that the privacy of any American citizen would be violated.

The effectiveness of the FISA process has been debated. On the one hand, between 1979 and 2012, only eleven of the nearly 34,000 requests for warrants made by government agencies, primarily the NSA and FBI, were turned down by the FISA Court.
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This datum might suggest that the court was lax in its procedures. However, it may be
that the FISA process forced the government to exercise at least some measure of caution in its surveillance activities, knowing that requests would need to withstand judicial scrutiny. Support for this latter view might be derived from the fact that in the aftermath of the 9/11 terror attacks, in its determination to expand electronic data collection, the Bush administration deemed it necessary to ignore the FISA process and launch a large-scale program of warrantless wiretapping.

What would later be called the President's Surveillance Program (PSP), launched in 2001, involved warrantless monitoring of virtually all telephone calls and email messages between the United States and foreign countries. As in previous major surveillance efforts, the NSA, in collaboration with several other federal agencies, was able to secure secret cooperation from the major telecommunications companies for this purpose. The result was that millions of telephone and email conversations were monitored. In some instances, voice intercept operators actually listened to the calls. More often, the information was stored, subjected to keyword searches, and, with the advent of the Defense Advanced Research Projects Agency (DARPA) Total Information Awareness project in 2002, the NSA began analyzing intercepted communications in conjunction with other data such as credit card usage, social network posts, traffic camera photos, and even medical records to search for suspicious patterns of activity.

Information not available electronically could be obtained by the FBI, which via secret National Security Letters (NSL) authorized by the 2001 Patriot Act, has compelled a variety of institutions ranging from universities to gambling casinos to turn over student or customer information without informing the subject. Congress ended DARPA funding for the Total Information Awareness program in 2004, but by then the methodology had become well developed. In addition, tens of thousands of NSLs have been issued annually since 2001, providing data that—particularly in conjunction with communications intercepts—allow federal authorities to learn an enormous amount about the activities of any individual or group.

In response to
New York Times
articles published in 2005 revealing
the existence of PSP, several members of Congress expressed outrage at what they saw as violations of FISA and vowed to fully investigate the matter. The Bush administration, however, was able to convince Congress that its actions had been necessary if not entirely legal means of thwarting terrorism. After some deliberation, Congress enacted the Protect America Act of 2007, which amended FISA to loosen restrictions on electronic surveillance and, in effect, retroactively codified the legally questionable actions of previous years.
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Thus, under the amended act, the government was empowered to intercept communications that began or ended outside the United States without any supervision by the FISA Court. Moreover, telecommunications companies, whose cooperation had previously been voluntary, were directed to lend assistance to federal agencies engaged in electronic surveillance if ordered to do so by the government and were immunized against any civil suits that might arise from providing such assistance.

The 2007 act contained a sunset provision requiring Congress to reconsider the surveillance issue in 2008. The resulting Amendments Act of 2008 was similar to the 2007 act, but it did place restrictions on the power of the NSA and other intelligence agencies to target Americans. At President Obama's behest, the act was renewed in 2012 for another five years. Between 2008 and 2013, the government insisted that it was not engaged in spying on Americans either at home or abroad. In March, 2013, for example, James Clapper, the director of national intelligence, testifying before the Senate, indignantly denied reports that the government was collecting data in millions of Americans. Similarly, NSA Director General Keith Alexander denied charges by a former NSA official that the agency was secretly obtaining warrantless access to billions of records of Americans' phone calls and storing the information in its data centers. General Alexander piously declared that doing such a thing would be against the law.
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