Posted on 01/01/2006 6:36:21 AM PST by Cboldt
HEARINGS
BEFORE THE
SELECT COMMITTEE TO STUDY
GOVERNMENTAL OPERATIONS WITH
RESPECT TO INTELLIGENCE ACTIVITIES
OF THE
UNITED STATES SENATE
NINETY-FOUR CONGRESS
FIRST SESSION
VOLUME 5
THE NATIONAL SECURITY AGENCY AND FOURTH
AMENDMENT RIGHTS
OCTOBER 29 AND NOVEMBER 6, 1975
TESTIMONY OF LT. GEN. LEW ALLEN, JR., DIRECTOR, NATIONAL SECURITY
AGENCY, ACCOMPANIED BY BENSON BUFFHAM, DEPUTY DIRECTOR, NSA; AND
ROY BANNER, GENERAL COUNSEL, NSA
... Between 1967 and 1973 there was a cumulative total of about 450 U.S. names on the narcotics list, and about 1,200 U.S. names on all other lists combined. What that amounted to was that at the height of the watch list activity, there were about 800 U.S. names on the watch list and about one-third of these 800 were from the narcotics list.
We estimate that over this 6-year period, 1967-1973, about 2,000 reports were issued by the NSA on international narcotics trafficking and about 1,900 reports were issued covering the three areas of terrorism, Executive protection and foreign influence over U.S. groups. This would average about two reports per day. These reports included some messages between U.S. citizens with one foreign communicant, but over 90 percent had at least one foreign communicant and all messages had at least one foreign terminal. Using agencies did periodically review, and were asked by the NSA to review, their watch lists to insure inappropriate or unnecessary entries were promptly removed.
I am not the proper person to ask concerning the value of the product from these four special efforts. We are aware that a major terrorist act in the United States was prevented. In addition, some large drug shipments were prevented from entering the United States because of our efforts on international narcotics trafficking. We have statements from the requesting agencies in which they have expressed appreciation for the value of the information which they had received from us. Nonetheless, in my own judgment, the controls which were placed on the handling of the intelligence were so restrictive that the value was significantly diminished. ...
Somewhat later, on October 1, 1973, Attorney. General Richardson wrote me, indicating that he was concerned with respect to the propriety of requests for information concerning U.S. citizens which NSA had received from the FBI and Secret Service [exhibit 7]. He wrote the following:
Until I am able more carefully to assess the effect of Keith and other Supreme Court decisions concerning electronic surveillance upon your current practice of disseminating to the FBI and Secret Service information acquired by you through electronic devices pursuant to requests from the FBI and Secret Service, it is requested that you immediately curtail the further dissemination of such information to these agencies.
He goes on to say:
Of course, relevant information required by you in the routine pursuit of the collection of foreign intelligence may continue to be furnished to appropriate government agencies.
The overall result of these actions was that we stopped accepting watch lists containing names of U.S. citizens and no information is produced or disseminated to other agencies using these methods [exhibit 8]. Thus, the watch list activity which U.S. citizens ceased operationally in the summer of 1973 and was terminated officially in the fall of 1973.
As to the future, the Attorney General's direction is that we may not accept any requirement based on the names of U.S. citizens unless he has personally approved such a requirement; and no such approval has been given. Additionally, directives now in effect in various agencies, including NSA, also preclude the resumption of such activity. ...
[In the questioning ...]
Mr. SCHWARZ. And the second question: you have stated that NSA does not, in fact, intercept communications which are wholly domestic. That is, communications between two domestic terminals, and that its interceptions are limited to wholly foreign, or second terminals, one of which is in the United States and one of which is outside. With respect to wholly domestic communications, is there any statute that prohibits your interception thereof, or is it merely a matter of your internal executive branch directives?
General ALLEN. My understanding, Mr. Schwarz, is that -- at least the NSC intelligence directive defines our activities as foreign communications, and we have adopted a definition for foreign communications consistent with the Communications Act of 1934. And therefore, I think that is the --
Mr. SCHWARZ. But you believe you are consistent with the statutes, but there is not any statute that prohibits your interception of domestic communication.
General ALLEN. I believe that is correct.
Mr. SCHWARZ. I have nothing further, Mr. Chairman.
The CHAIRMAN. Just so I may understand your last answer, General, so that the definition of foreign intelligence is essentially one that has been given you by an executive directive from the NSC, and is not based upon a statutory definition.
General ALLEN. Yes, sir. ...
The CHAIRMAN. Senator Mondale?
Senator MONDALE. Thank you, Mr. Chairman.
General Allen, I would like to say for the record that I think that the work of the NSA and the performance of your staff and yourself before the committee is perhaps the most impressive presentation that we have had. And I consider your Agency and your work to be possibly the most single important source of intelligence for this Nation. Indeed, so much so that I am not convinced that we fully perceived the revolution that has occurred in recent years in intelligence gathering as a result of technological breakthroughs, and it is your agency which basically deals with that area. But it is that most impressive capacity which works so often for the purposes of defending this country and informing it that also scares me in terms of its possible abuse. That is why I am interested in knowing what limitations exist, in your opinion, upon its use that could be described as an abuse of the legal rights of American citizens. As I understand your testimony, you limit yourself to the interception of communications between -- either to or from -- a foreign terminal and one in the United States. You do not intercept messages to and from persons within the United States.
General ALLEN. That is correct, sir.
Senator MONDALE. But I also understand that this is a matter of policy and not of law, that the basis for this limitation is a judgment on the part of our Government that that ought to be as far as you go. There is not, in your judgment, or in the judgment of the Agency, a restriction that would limit you precisely to those policy guidelines that you now have.
General ALLEN. Well, I believe that is correct, sir, as far as the precise restriction is concerned. But there is no misunderstanding with regard to the executive directives that exist, the restriction is to foreign intelligence purposes and foreign communications which are defined in some way.
Senator MONDALE. Given another day and another President, another perceived risk, and someone breathing hot down the neck of the military leader then in charge of the NSA; demanding a review based on another watch list, another wide sweep to determine whether some of the domestic dissent is really foreign based, my concern is whether that pressure could be resisted on the basis of the law or not.
General ALLEN. Well, it is very hard for me, of course, to project into a future unknown situation. And there are certainly risks that seem to have occurred in the past. I can certainly assure you that at the present time, under any combination of the present players, as I understand the rules and the players themselves, there is no possibility of that.
Senator MONDALE. I will accept that. But what we have to deal with is whether this incredibly powerful and impressive institution that you head could be used by President "A" in the future to spy upon the American people, to chill and interrupt political dissent. And it is my impression that the present condition of the law makes that entirely possible. And therefore we need to, in my opinion, very carefully define the law, spell it out so that it is clear what your authority is and it is also clear what your authority is not. Do you object to that?
General ALLEN. No, sir.
Senator MONDALE. I am verve heartened hear that answer. In the old days of the watch list, as I understand your earlier testimony, when a name was presented to you from the FBI, from the CIA, or from other sources, your agency really could not determine whether the purpose of including that name was for a legal objective or for an illegal purpose. In a sense, your role was largely ministerial. The names were received. They were placed on the watch list. You intercepted information and sent it to the consumer agency. But why they really asked for it, other than the very generalized description they would often give you, or how the information was used, was largely unknown to the NSA. Is that correct?
General ALLEN. Well, it is certainly to some degree correct, sir. The points that you have made were recognized at the time and there were steps taken to try to protect against the dangers that you point out. For example, there was, as a matter of practice, a description of the foreign intelligence requirement to which names were requested.
Senator MONDALE. Yes, they would say this would be for drugs or this is for personal security of the President, or this is for the purpose of determining whether there is foreign influence in terms of the antiwar movement, and so on. But there was no way that you really knew in most cases, what may have been behind a request or how that information was being used. Was there?
General ALLEN. Yes, sir. In a strict sense that is certainly correct. ...
[HUGE gap - discussion between Senators re: the propriety of having hearings]
The CHAIRMAN. And for that reason, I will certainly accommodate the request in the interest of fairness, so that there can be a full and complete discussion within the committee and the vote then can be taken by the committee. I would anticipate this could occur this afternoon when the committee goes into executive session The reasons why I believe that this second matter should be made public are as follows. This committee has proceeded with great caution throughout its investigation, which has covered a broad range of NSA activities. Testimony has been taken from numerous NSA officials, all in executive session until this morning. The committee has also received extensive briefings from General Allen and others in private.
Most of these activities we have found to be legitimate, clearly within the scope of the intelligence purposes of the agency, and for reasons that the committee feels relate to sensitive national security matters, should be kept secret. But our investigation did uncover two NSA activities which I believe are properly subject to some form of public disclosure. Because, one, the would appear to be unlawful; two, they have now been terminated, and thus do not represent ongoing activities; three, they can be discussed without revealing the NSA's sensitive techniques; and four, legislation is needed to prevent their repetition. What has occurred yesterday could occur tomorrow, if we leave it all to executive decision.
Now, as I have said, as to one of these -- the watch list -- the administration agreed to declassify the documents, and authorize General Allen to testify as he has. As to the other, the executive branch has consistently opposed public hearings or any other form of public disclosure. Yesterday, the committee, in the manner I described in response to Senator Goldwater, agreed that we nevertheless would disclose facts concerning the second program to the American public.
I believe that the public is entitled to an explanation of why that decision was made yesterday, in face of the administration's strongly stated opposition. I do not suggest that the administration has acted in any way other than in good faith to exercise its responsibilities as it perceives them. However, Congress has a right and duty to exercise some judgment on its own. It must do so fairly, properly, and with due regard to the views of the executive. But it cannot simply abdicate to the executive. ...
Senator TOWER. May I say, Mr. Chairman, that I have been cooperative, I believe, and have supported every effort to obtain the documents that we require. That is one thing. I believe that we should have those documents. We should have access to them; we should have access to witnesses, and we should be fully informed, and we should make thorough investigations.
The question here is whether or not this information should be made public. Yes. there is a right of the people to know, but that must be balanced against the fact that when these matters are made public record, they are available also to our enemies. Let me cite one example. A weekly magazine published the fact that we had been reading the telemetry on Russian weapons systems from Turkey. As soon as that matter was made a matter of public record it was also available to the Soviets, and that source was then and thereafter denied us. This impacts on our capability for verification in terms of strategic arms capabilities and deployment. I do not think that the public interest was served in the release of that information. Indeed, it was not served. So I think there are some very strong examples that can be cited. ...
http://cryptome.org/nsa-4th.htm
THURSDAY, NOVEMBER 6, 1975
The CHAIRMAN. If I understood your testimony this morning correctly, you said that the President has the power to wiretap an American citizen without a warrant if he is an agent or a collaborator of a foreign power. This would be one of those cases where you, as the agent of the President, would approve of a wiretap without a judicial warrant. That is correct, is it not?
Attorney General LEVI. It is correct, although I never -- I hope, I do not think that I said that that was all that we would look for.
The CHAIRMAN. Oh, no, I was just taking one example. You laid out the criteria. I think there were two or three things you would look for. But one was an agent or collaborator of a foreign power. I do not think that any of us would quarrel with a wiretap on a foreign agent as falling within the counterintelligence operations of the Government, and having to do with both foreign intelligence and national security.
What I am interested in is how you would view a foreign agent or collaborator. For example, what is a collaborator? Suppose you have young people who were protesting the war, for example, as so many did, and some of them met with certain foreign government officials. Would they then be regarded as collaborators? How does this term apply ?
Attorney General LEVI. I think -- I will answer directly -- I do not want one to think that I am evading the question, but then I want to go on to say something more.
I would not think that that would make a person a collaborator. You have not given all the facts. You could turn it around and say, one cannot say that one is a collaborator because one is, at the same time, taking part in unpopular political causes. One has to look vere carefully at what the kind of evidence is, and that really points to the procedure, which it seems to me in any constructive solution of this kind of problem, one has to look to see what procedures are followed and what kind of evidence has to be weighed.
I am sure that there is really no absolutely automatic way of doing that. One of the strong arguments that is so frequently made for warrantless surveillance is that it is necessary to use it in order to determine whether someone is an agent or a conscious agent. That, of course, is certainly what we have tried to do is make sure that the evidence is better than that.
The CHAIRMAN. Of course, the difficulty is that judgment in a case of this kind, and I would suppose necessarily so, is made by interested parties, so to speak. The Attorney General is a member of the executive branch as an agent of the President. Unlike the ordinary law enforcement case, there is never a necessity to present the reasons that give probable cause to believe that a crime has been performed to some independent tribunal.
Therefore, the procedures and the criteria become very important. Just to press this, because I can think of other examples, I remember the case of Joseph Kraft, a distinguished columnist, meeting with certain foreign agents of a certain foreign government in Paris during the Vietnam war. In your view, he was presumably looking for news, looking for their viewpoints. Would that, in any sense, in your view, make him a collaborator and justify a wiretap?
Attorney General LEVI. Certainly not. I hope I have not said anything that suggests that.
The CHAIRMAN. I do not believe you have. I am just trying to clarify the boundaries by my questions.
Attorney General LEVI. Let me make the point, since we are talking about the foreign legislation remedies you take. If one had a statute, one of the things that I suppose that a judge might have to make some kind of finding on is whether there is evidence sufficient to establish the conscious collaboration of agents.
There is a problem there, because one would know that through the most secret sources, and disclosure might expose someone to assassination. It is the kind of thing which I suppose a judge could make a finding on. As far as the Attorney General's position is concerned, I think that the Attorney General probably feels that his position is one of protecting the laws of the United States, protecting the President. He is probably more vigilant on that account. I assure you that it is much easier for me to sign the title III than it is to handle these cases.
The CHAIRMAN. You have been, I think it is fair to say, a vigilant Attorney General, but that has not always been the case. We have had some Attorneys General who have paid very little heed to the law, and did pretty much as the President wanted them to do. So, unless we have some statutory guidelines, I think that it is very dangerous just to leave it to the Attorney General to decide, knowing that the office changes, and Presidents change. Do you think that there is any way that we could write into law certain statutory guidelines which would determine when warrantless surveillance would be permissible, what test must be met?
Attorney General LEVI. I would hope so. Other countries have been able to do it, and I would hope that this one could, although I am mot absolutely confident, as I say, it would have to be the reason I pointed out this morning. This is an area where people proceed frequently by statutes through indirection, in part, because of the nature of the problem. But I, myself, would hope that it would be possible to have a statute.
The CHAIRMAN. If this committee should decide that among its recommendations we should include a recommended statute that would govern warrantless surveillance in the general field of foreign intelligence and national security, would you be prepared, as Attorney General, to assist the committee in designing such a statute ?
Attorney General LEVI. Of course. The more interesting question is whether the committee, since it has more power, would be willing to assist me.
The CHAIRMAN. The power of the committee in this case is merely that of recommending. The actual action upon any recommendations would have to go to the appropriate legislative committees of the Senate. But in any case, I should think that our collaboration may be fruitful, and I welcome it.
The other aspect of this case -- there are many aspects of the case that are troubling me. Because other Senators are here now, I do not want to monopolize the time, but I would like to ask you just a question or two on another term that is constantly coming into use, the term ''foreign intelligence." Here we have an agency, the NSA, which has no statutory base, by creation of an Executive order. Its scope of authority rests on certain executive directives that give it a general mission of obtaining foreign intelligence.
Now, as I suggested earlier, foreign intelligence has never been defined by statute, and I suppose that we could all agree that certain kinds of information would clearly be foreign intelligence. But we look at the NSA and we find that they are collecting all kinds of data on economic intelligence; that now falls in what we now call foreign intelligence having to do with transfer of funds, business investments, the movement of capital.
Suppose that an American company was making a decision with respect to an investment in some foreign land, was interested in keeping that decision secret for business reasons, competitive reasons. Is that a case that would fall within the net of foreign intelligence, thus entitling the government to obtain that kind of information without a warrant, because it is generically a part of what we have come to call foreign intelligence? How do we grapple with this?
Attorney General LEVI. I think the way you have to grapple with it, M Chairman, is not just to belabor the point of what the definition of foreign intelligence means, because as you pointed out it can include an enormous variety. It can include, for example, all kinds of economic information. And I am quite sure that professional intelligence people would think that a very wide net might be appropriate because small items of information all by themselves may not mean anything, as I said in my statement, but added to something else, they mean something. So you might have a very broad definition of foreign intelligence within a very broad notion of important economic information, but certainly the inquiry does not stop there. One has to say, well, how did they get it? What is the target of the surveillance? Is it being obtained through the targeting of an official foreign unit, or is it targeted in such a way as to pick up American firms or Americans who are discussing these problems.
As I tried to say this morning, it seems to me that the fourth amendment coverage will depend to a considerable extent on the limitations one can impose. It is one thing, I think -- although this is a very difficult field -- for an American company to be discussing something with a foreign official establishment, and quite another thing when it is discussing it with some kind of a foreign concern. So that it is one thing where the information is picked up because the targeting is on the foreign governmental unit, or whatever it is, official unit, whatever it is, and quite another thing where the targeting, in fact, is on the American firm. A great deal will depend on how one -- maybe one can mechanically, to a considerable extent, minimize that. When one gets to that point, one has to find out how one can go any further.
The CHAIRMAN. This committee knows that the NSA is one gigantic set of earphones and all kinds of requests are coming in as to what to listen to in the world, and the agencies themselves determine -- I do not suppose that the President enters into it, clearly the Attorney General does not enter into it, no department of the government that is supposed to look out for the laws and the Constitution enters into it. We know some of the things they have done; some are laudable in terms of the ultimate objective, for example, drug traffic. That is a good thing to learn about. We are trying to enforce laws in this country, and information that you can get by listening in on telephone conversations --
Attorney General LEVI. Of American citizens abroad?
The CHAIRMAN. American citizens at one end of the terminal and possibly an American citizen on the other, or a foreign citizen on the other; they listen to all the telephone conversations and extract ones relating to drugs. That is a laudable purpose, but is that foreign intelligence?
Attorney General LEVI. It may be foreign.
The CHAIRMAN. Or is that law enforcement ?
Attorney General LEVI. It may be foreign intelligence, but as you stated quite broadly, and you stated quite broadly a number of possible situations. Some of them I would regard as unconstitutional. At that point the word -- I cannot imagine the word intelligence is to be defined in such a way as to permit unconstitutional behavior.
The CHAIRMAN. Right. That is terribly important to say because very seldom can you get anybody, when yon get into this field of national security, to say that it is subject to the Constitution. It is much more frequent for them to say in this area the Constitution is an archaic document of the 18th century, and we have to be practical about these things. ...
http://cryptome.org/nsa-4th-p2.htm
See also House Committee Report 106-130 relating to H.R. 1555, `Intelligence Authorization Act for Fiscal Year 2000'.
Very good background material relating to many facets of the issue of government surveillance. It isn't dense reading, for the most part, but will cure insomnia ;-)
Proud to have served Lew Allen,pioneer of elint satellites.
Thanks for posting this.
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