Puzzle Palace, the Other Agency

[Shanet Clark]

NATIONAL SECURITY AGENCY

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Excerpted from "The Lawless State - The Crimes of the U.S. Intelligence Agencies," by Morton Halperin, Jerry Berman, Robert Borosage and Christine Marwick, 1976

The oldest NSA program is SHAMROCK, which involved the interception of all private cables leaving the United States. Overlapping this is the watch-list program, ultimately labeled MINARET, which involved checking all electronic messages that had at least one terminal outside the United States for names on watch lists provided by other agencies. And finally, there were the files of NSA's Office of Security, which contained the information that its surveillances had collected on Americans. The SHAMROCK program had its beginnings in August 1945, when the Army Signals Security Agency asked the three cable companies (RCA Global, ITT, and Western Union) that government access to international cables be continued after the war. The companies' lawyers advised that it was illegal in time of peace under the Communications Act of 1934 (47 U.S.C. 605), which reads: No person receiving, assisting in receiving, transmitting, or assisting in transmitting, any interstate or foreign communication by wire or radio shall divulge or publish the existence, contents, substance, purport, effect, or meaning thereof." After some hesitation, the cable companies nevertheless agreed, provided that the attorney general would assure them that he would protect them from criminal liability and lawsuits. The government apparently never informed the cable companies that its activity was not limited to foreign targets but also analyzed and disseminated the telegrams of Americans. The companies never asked what was done with the fruits of their cable surveillance. The companies did, however, continue to seek assurances that they would not be prosecuted, and the record shows that in 1947 Secretary of Defense James Forrestal told them that the program was vital and that both the president and the attorney general approved; they would be protected during the Truman administration. The following year, however, the secretary of defense was unable to get Congress to relax the 1934 act in order to allow the government access to the radio and wire communications of foreign powers, which would have made the program legal as it was originally conceived. The promise of protection was reiterated in 1949 by Secretary of Defense Louis Johnson, and the companies apparently never sought assurances again. In 1952, when the NSA took over from its precursor the Army Security Agency, the cable interception program continued uninterrupted, even though NSCID-6 a National Security Council directive, was apparently intended to limit the NSA's processing to the coded messages of spies and foreign governments, and to prohibit intercepting the ordinary telegrams of everyone else. The NSA has since claimed, however, that this limitation was really meant to apply only to uncoded mail (which was FBI or CIA turf, in any case) and not to any electronically transmitted messages, including telegrams. The NSA claims that SHAMROCK did not exceed its executive charter, and that it is an embarrassment only because it induced cable company employees to violate the Federal Communications Act. SHAMROCK continued unabated until the scandals involving the intelligence community began to break. Dr. Louis Tordella, the NASA's deputy director from 1958 to 1974 and the official in charge of the program, stated that to the best of his knowledge, no president since Truman has known about SHAMROCK. In its early and technologically primitive years, the information gleaned from SHAMROCK was processed against a small NSA watch list, which had been geared primarily to foreign rather than domestic intelligence. But with the technological developments of the 1960s, the scope of NSA surveillance mushroomed. With the evolution of magnetic tapes for transmitting telegrams and computer scanning for selecting particular kinds of messages, the NSA was ready to plug the watch lists of its client intelligence agencies into SHAMROCK. By the late 1960s, when the surveillance of domestic groups had got into full swing, the NSA was intercepting some 150,000 messages per month in the SHAMROCK program alone, dwarfing the ClA's mail-opening program. Since at least 1962, in addition to SHAMROCK, the NSA has run-without the benefit of judicial warrants-a program for selecting, intercepting, reviewing, and disseminating the international radio and phone communications of specific American organizations and individuals on watch lists. The lists were initially established in order to monitor travel to Communist countries and to protect the president and other high officials. The fact that, in the latter case, the NSA would end up picking up not only calls about the officials, but the calls of the officials themselves" is a measure of the electronic surveillance problem. As with the other intelligence agencies, there was apparently no serious effort to minimize what their vacuum cleaner sucked in. And the NSA's technology produces a tremendous "multiplier effect"-if an organization is selected, so are all its members. If an individual is on the watch list, then all conversations to, from, or about him or her are also intercepted. Anyone mentioning one of the magic words, in any context, has his or her message selected and examined for personal, political, and economic information. The watch-list program for pinpointing American dissent began in earnest in the fall of 1969, as the NSA's contribution to the intelligence community's search for the ever elusive foreign involvement behind the civil rights and antiwar movements. The names included on the watch lists were a mix of people and organizations involved in protest politics. They ranged from radical political groups to celebrities, to ordinary citizens taking an active interest in the political controversies of the time. As we have come to expect from the intelligence agencies, the names on the list included the peaceful, nonviolent, and totally legal And there was, of course, a great deal of overlap in the watch lists submitted by the various agencies. From 1965 to its end as an organized program in 1973 the watch list encompassed some 1,650 names, which had been supplied by the CIA, the FBI, the Secret Service, and the DOD, as well as some which the NSA Itself contributed. Figures available for the 1967-73 period indicate that the list then held some 1,200 American names; 950 had been submitted by the FBI, 180 by the Secret Service, 50 to 75 by NSA 30 by the CIA, and 20 by the DIA. And although the links to foreign support were never found, the NSA nevertheless found reason to disseminate to these client agencies some 2,000 reports- mostly containing information which was personal and politically innocuous-during the 1969-73 period. In July, 1969, the NSA decided to formalize the watch-list program by issuing itself a charter MINARET. This formalization had two functions. First it imposed secrecy procedures on the program that were even stricter than those the NSA ordinarily used, and second, it imposed procedures to disguise the NSA's participation in the program. In short, the NSA's MINARET employed virtually all the bureaucratic techniques available for preventing leaks about illegal activities and for eliminating a "paper trail." And although the NSA officially contends that this watch-list operation was a legitimate part of its foreign intelligence mission, the fact remains that the MINARET intelligence product was subjected to special security controls that were not applied to the NSA's legitimate intelligence information. Before the advent of MINARET, only the intercepted communications between two Americans were subject to special secrecy procedures; after MINARET, all communications to, from, or about United States citizens were classified top secret, "For Background Use Only." In addition, the information was not serialized in order to be absorbed into the regular NSA record-keeping systems, and none of the reports disseminated carried any markings that would identify the NSA as the original source. These - extraordinary procedures indicate that, internally, the NSA could not have actually considered MINARET an extension of its normal intelligence mission. The Senate Select Committee's report offers a fairly detailed discussion of one NSA operation performed at the request of the Bureau of Narcotics and Dangerous Drugs. The BNDD arrangement with the NSA provides a case study of both an enterprising use of the NSA technology for creating a loophole in the protections of the Fourth Amendment, and of the confusion involved in trying to determine precisely what clandestine agencies have done, and why. In 1970, the BNDD concluded that under the Supreme Court wiretap decision in a case known as Katz, it could not legally wiretap public telephone booths in order to monitor suspected drug traffic between New York and South America. While the BNDD noted that Katz had specifically placed Fourth Amendment restrictions on wiretaps of public phones, it ignored the Court's holding that the Fourth Amendment "protects people, not places." The bureau evidently concluded that it had found a loophole by getting the NSA to tap into the international communications links rather than into a specific phone, and it asked the NSA to monitor the international links carrying these phone conversations. In late 1972, as part of an NSA effort to increase secrecy around its drug traffic surveillance, the CIA was asked to contribute the intercept operators for the BNDD program. The CIA agreed and monitored the operation from a station located on the East Coast. But by February 1973, the CIA general counsel, Lawrence Houston, concluded that the BNDD watch list was actually a law enforcement procedure, and therefore went beyond the CIA's statutory charter. The BNDD operation gives some indication of the difficulty in trying to determine just what kind of reasoning lies behind the decisions of clandestine government agencies. NSA officials have stated that the CIA had apparently not been troubled by the "law enforcement" function, and that the reason given for pulling out of the program was the fact that the CIA's intercept station was located within the United States. At any rate when the CIA bowed out, the NSA reconsidered its role in the BNDD surveillances and decided that "supporting an agency with a law enforcement responsibility" was outside the normal scope of its mission. The NSA terminated the drug surveillance program in June 1973, and, in August or September, the NSA destroyed the program's paper trail-all the records relating to the product, internal memoranda, and administrative documents. Actually, however, this changed very little; falling back on its established label of "foreign intelligence," the NSA continued (by no small coincidence) to monitor some of the same links until July 9, 1975, well after the heat of the first congressional investigation of its activities had begun. This is another clear example of how, once a program is found to be of questionable legality, the internal housecleaning consists largely of shuffling the same activity into another file with a more legitimate sounding name. The SHAMROCK interception of cables - with the help of the cable companies - was longer-lived. lt did not end until May 15, 1975, when Secretary of Defense James Schlesinger ordered its termination. The reasons given were that it was no longer a valuable source of foreign intelligence (had it ever been?) and that there was an increased risk of exposure. Indeed, the exposure was soon to come. SHAMROCK had surfaced in the documents given to the Rockefeller Commission in May 1975. In June and July, the Senate Select Committee on Intelligence, drawing on a shy reference in the published commission report, asked for more information about that agency's program. They were told that the subject was so sensitive that only Senators Frank Church and John Tower (the committee's chairman and vice chairman) could be briefed. No meetings, however, were immediately arranged. In July and August, a series of news stories appeared which leaked all the major points of the SHAMROCK program into the press. As a result, the full committee was briefed in September. A report was prepared, and the NSA objected not to the substance of the report but to the fact that its material was classified. The report was ultimately read into the record, however. Although SHAMROCK and MINARET are both officially ended, the same programs are still going on in only slightly modified form. Since telegrams are now sent by airwaves, the NSA no longer needs the cooperation of the cable companies to get access to their magnetic tapes. And given the predictability of the watch lists and the NSA's experience with them, the agency's analysts know what kinds of information its client agencies have an interest in. The NSA is still free to disseminate in any fashion that it chooses the information it collects. The current operating principle for dissemination procedures is that "relevant information acquired by [NSA] in the routine pursuit of the collection of foreign intelligence information may continue to be furnished to appropriate government agencies." The current situation, then, is that the NSA still scans all messages, its computers still select messages for the analysts' attention according to whatever criteria are chosen, and the analysts still decide for themselves if the information meets a "legitimate" requirement. According to the Senate Select Committee's final report, the names of Americans are usually-but not always-deleted before the information is disseminated. The fact that there is no longer an official watch list (as far as is known) is merely a formality. More important, there are still no legislative controls on the NSA; a new executive order is all it would take to reactivate an explicit and itemized watch-list program, and plug it back into the computers. For all its awesome technological power, the NSA has never really been out of control; it has simply never been subject to any explicit limitations on its operations. While the CIA had been created by statutes that had intended, however unsuccessfully, to put limits on its activities, the NSA has never been subject to a similar embarrassment. It had been created by executive fiat, and was regarded as too secret to require or to need statutes to back it up. Its enormous capabilities have been developed and operated without any substantial congressional authorization; its budget appropriation has been carefully camouflaged within the huge Defense Department budget, and because of its supersecret status it has, until now, enjoyed an isolation from controversy that the CIA might envy. At the same time, it has been able to fall back on a statute-P L. 86-39-that exempts the NSA from disclosure laws, including the Freedom of Information Act. Although the NSA has been running, at a cost of $4 billion per year, the largest and most sophisticated surveillance operation in history, it has been shrouded in secrecy. The House investigations marked the first time that a director of the NSA has been required to appear publicly before a committee of Congress. Only two months earlier, the president's Rockefeller Commission report had found it politic to leave the National Security Agency discreetly unnamed. Its discussion of the CIA CHAOS/NSA connection only alluded to the NSA as ,"another agency of the government," which carried on "international communications activity." The NSA has also made every effort to stay out of court: the government has dropped prosecutions rather than open the NSA's surveillance program to judicial scrutiny. As a result, no court has yet been in a position to hand down a decision expressly affirming that the Constitution and the laws apply to the NSA. Until this happens, the NSA's official position is that the Fourth Amendment, which requires the government to get a court order in order to listen in on someone's phone calls, does not apply to that agency. In his first public testimony, NSA Director General Lew Allen, Jr., asserted that the NSA's authority to eavesdrop on the international communications of Americans comes from the president's power as commander in chief, and apparently, as long as it claims that the interception is for "foreign intelligence" purposes, NSA can listen in on any and all international communications. The only restriction to which the NSA has adhered is apparently contained in the top-secret directive which established the agency in 1952. The NSA limits itself to tapping into only international communications for "foreign intelligence" purposes-but this means that one terminal can be inside the United States, and that one or both subjects can be United States citizens. In addition, the executive branch still backs up the NSA's claim. Executive order 11905, issued by President Ford as an intelligence "reform" package, authorizes NSA to continue its massive warrantless surveillance. The executive order imposes no restrictions on the NSA's operations; it makes no mention of safeguards, guidelines, or limitations, such as explicitly prohibiting watch lists or minimizing eavesdropping to cover only legitimate targets. Congressional investigations have now revealed enough about NSA to make it clear that something must be done. The agency's potential power is staggering, and must be brought into line with the basic civil liberties of Americans. In its final report, the Senate Select Committee on Intelligence viewed the problem this way: The [NSA] watch list activities and the sophisticated technological capabilities that they highlight present some of the most crucial privacy issues facing this nation. Space age technology has outpaced the law. The secrecy that has surrounded much of NSA's activities and the lack of Congressional oversight have prevented, in the past, bringing statutes in line with NSA's capabilities.

[end Halperin 1976 excerpt]

....your tax dollars at work....

[Shanet Clark]

More on the "NO SUCH AGENCY" -

Unlikely SHAMROCK

Recollections from the Church Committee's Investigation of NSA

By L. Britt Snider, CIA's Inspector General

Studies in Intelligence 1999

"In January 1975, I was offered a position as counsel on the staff of the Church Committee. I was 30, and Senator Sam Ervin, for whom I had worked since 1971, had retired and returned to North Carolina. While I had participated in Senator Ervin's inquiry into the domestic activities of Army intelligence elements during the Vietnam era, the foreign intelligence apparatus of the United States, which I now confronted, was, quite literally, foreign to me, as it was to many of those joining the Church Committee staff.

To make matters worse, I was given the task (along with a staff colleague, Peter Fenn 1) of trying to crack what was perceived to be the most secretive of US intelligence agencies, the National Security Agency (NSA). Unlike the CIA and FBI, which were the agencies principally in the Committee's sights--thanks to a number of sensational press accounts--there had been no press exposés about NSA. Our supervisor, in fact, seemed to take particular delight in pitting Pete and me against this mysterious Goliath. "They call it 'No Such Agency,'" he said. "Let's see what you boys can find out about it." It was the first time I had heard the agency referred to this way, and it was not long before I understood why.

What ensued was something of an odyssey that lasted over the better part of a year. It began with a series of fruitless, sometimes comical, efforts to penetrate NSA's defenses. ("They must have done something," our boss wailed.) Then, an unexpected breakthrough caused us to redirect our inquiry along two separate, but ultimately converging, lines; Peter took the lead on one inquiry, and I took the other lead. Over a period of months, a story emerged that previously had not seen the light of day--a story that had long-term implications for NSA and for the relationship of the Intelligence Community to the private sector. Our work also provided the context for a rare Congressional challenge to the President's authority in the national security area.

I decided to write about this episode primarily to preserve it for the historical record. While much of the story was disclosed over the course of the Church Committee's inquiry, there were aspects that never became public. Given the way the Committee operated, no one other than the staffers doing the work knew the whole story.

Initial Futility

We began by asking the Congressional Research Service (CRS) for everything on the public record that referred to NSA. The CRS soon supplied us with a one-paragraph description from the Government Organization Manual and a patently erroneous piece from Rolling Stone magazine.

Striking out there, I paid visits to the Senate Armed Services and Appropriations Committees, which were responsible for NSA's annual funding. Only one staff person on each committee was cleared for NSA information, and I managed to obtain appointments with each. Both committees had budget and program data on NSA, but nothing that dealt with oversight. Neither of the staffers I interviewed was aware of NSA ever doing anything to raise oversight concerns. "You've got to understand," I was told, "they focus on foreign targets."

Regrouping, Peter and I decided to try to identify some former NSA employees willing to spill the beans on their old agency. Using the connections of others on the staff, we managed to identify a handful of NSA retirees living in the Washington area whom we contacted and interviewed. While we were encouraged by their willingness to talk with us, the most egregious "abuses" we were told about were complaints about how NSA allocated its parking spaces among employees and about a few cases of time and attendance fraud. None of the people we interviewed had any knowledge of NSA's having undertaken surveillance against American citizens. It became clear to us from these interviews that NSA's operations were so compartmented that, unless we had the right person, others were not apt to know. How, though, did we find the right person? At that point, we did not even have an organization chart.

We decided to try the front door and asked for a meeting with the Director. It was our first trip to Fort Meade, and, although our visit predated the construction of the "new" headquarters building, the size of the old complex was daunting. NSA was housed in an enormous glass edifice, with large parabolic antennas on its roof and surrounded by acres of parking lots. We were given visitors' spaces near the main entrance and were met by our broadly smiling "handlers." After going through the normal security checks, we were escorted to the top floor into the large and imposing office of the NSA Director. At the time, this was Air Force Lt. Gen. Lew Allen, who came across as a stern, no-nonsense sort, and, based on all we had been able to learn in advance of the meeting, was a man of impeccable integrity. 2

General Allen welcomed us and motioned for us to sit at the large conference table in his office. "Well, gentlemen," he began, "what can we do for you?"

I wanted to respond, "Well, General, you might begin by running through all your abuses and improprieties," but, with no arrows in our quiver, we were hardly in a position to be so bold. We told Allen we would like to be given more information about the Agency's organization and activities, and he offered to arrange whatever briefings we might require.

These occurred over the ensuing weeks, and implicitly the message came through: "Whatever you do, kids, don't screw this up--it's important to the country." In fact, the briefings did give us a considerably improved understanding of NSA's mission and accomplishments, but they failed to identify a single avenue that appeared promising from an investigative standpoint. Part of it was due to our own ignorance and uncertainty in terms of where to probe and how hard to push, and part of it was due to NSA's uncertainty in terms of what to share with us. Given the current highly intrusive nature of Congressional oversight, it may seem strange that in 1975 NSA was an agency that had never before had an oversight relationship with the Congress. That became painfully clear as our investigation progressed.

A Breakthrough

In May 1975, after Peter and I had been struggling in vain for weeks, the Committee received from the Rockefeller Commission 3 a copy of the "family jewels," the name given to a roughly 800-page compilation of the recollections of CIA employees who had previously been directed by then DCI James Schlesinger to identify any past abuses or improprieties in which CIA may have been involved. Buried within this infamous tome were two references to NSA. The first was a reference to an office in New York that CIA had provided NSA for the purpose of copying telegrams. The other disclosed that CIA had asked NSA to monitor the communications of certain US citizens active in the antiwar movement.

At last we had something to sink our teeth into. We decided that I would run down the reference to the office in New York, and Peter, together with a young lawyer who had since joined the staff, would look into the request to monitor the communications of the antiwar protesters.

I began by making an oral inquiry to NSA, asking for an explanation of the reference in the "family jewels" to the New York office and any documents that may pertain to the matter. Weeks passed without a response. In July, out of growing frustration, I prepared a list of written interrogatories that were sent to NSA over the Chairman's signature. This at last produced a response, albeit one in which NSA said the subject was so sensitive that it could be briefed only to Senators Church and Tower, the Chairman and ranking minority member, respectively. My efforts to arrange such a briefing failed, however, largely because of the difficulty in getting the two Senators together at the same time.

In early August, a press leak appeared in an article in The New York Times alleging that NSA had eavesdropped on the international communications of US citizens. 4 The article discussed in general terms the matters we were investigating, and it was a source of considerable consternation for the Committee as well as NSA. 5 The leak had the salutary effect, however, of breaking the bureaucratic logjam that had stymied us. With the allegations now a matter of public record, NSA wanted to explain its side of the story. So, in late August, NSA told me that a briefing was being arranged.

I can remember the clean-cut, earnest man in his early forties who met with me, but I do not recall his name. It was true, he said, that NSA had had access for many years to most of the international telegrams leaving New York City for foreign destinations. The program was codenamed SHAMROCK and known to only a few people within the government. Every day, a courier went up to New York on the train and returned to Fort Meade with large reels of magnetic tape, which were copies of the international telegrams sent from New York the preceding day using the facilities of three telegraph companies. The tapes would then be electronically processed for items of foreign intelligence interest, typically telegrams sent by foreign establishments in the United States or telegrams that appeared to be encrypted.

While telegrams sent by US citizens to foreign destinations were also present in the tapes NSA received, the briefer said that, as a practical matter, no one ever looked at them. "We're too busy just keeping up with the real stuff," he said. The program had been terminated in May, he told me, by order of the Secretary of Defense. I asked if the Secretary had ended it because he knew the Committee was on to it. "Not really," he said, "the program just wasn't producing very much of value."

When I asked how long this had been going on, he said he did not know. When I asked how it had begun, he said he did not know. When I asked who had approved it, he said he did not know. I then asked who would know, and he said he thought the only person alive who would know the whole story would probably be "Dr. Tordella." That name was familiar to me. Louis Tordella had been the civilian Deputy Director at NSA for many years and had recently retired. 6

The Story of SHAMROCK

I wasted little time in locating Dr. Tordella. To my surprise, he readily agreed to see me. On a Sunday afternoon in September 1975, I visited his home in suburban Maryland. While he greeted me politely, Tordella was clearly uncomfortable with the whole idea of confiding in someone like me, young, with little knowledge or appreciation of intelligence, who was, as far as he knew, hell-bent on making NSA look bad.

We began by questioning each other about our backgrounds. I tried to convey the impression I was "responsible," interested only in the facts. He said he was not so worried about me as about the Committee and what it might make of the "facts." He asked me what I knew about SHAMROCK. I told him. He sighed a long sigh and then began a discourse on SHAMROCK that lasted into the early evening. The more he talked, the more he seemed to relax.

SHAMROCK actually predated NSA, which was created by President Truman in 1952. It had been essentially a continuation of the military censorship program of World War II. Copies of foreign telegraph traffic had been turned over to military intelligence during the war, and, when the war ended, the Army Security Agency (ASA) sought to have this continue. All the big international carriers were involved, Tordella said, "but none of 'em ever got a nickel for what they did."

Tordella thought the companies had been assured at the time that President Truman and Attorney Genral Tom Clark were aware of and approved the continuation of the program, but he did not know if any subsequent President or Attorney General had ever been briefed on it. He did say he had personally briefed Secretary of Defense Schlesinger on the program in 1973, and, to his knowledge, Schlesinger had been the only Secretary to have such a briefing, at least before Tordella's retirement.

Tordella went on to describe in detail how the program evolved. During the 1950s, paper tape had been the medium of choice. Holes were punched in the paper tape and then scanned to create an electronic transmission. Every day, an NSA courier would pick up the reels of punched paper tape that were left over and take them back to Fort Meade. In the early 1960s, the companies switched to magnetic tape. While the companies were agreeable to continuing the program, they wanted to retain the reels of magnetic tape. This necessitated NSA's finding a place to make copies of the magnetic tapes the companies were using. In 1966, Tordella had personally sought assistance from the CIA to rent office space in New York City so that NSA could duplicate the magnetic tapes there. This lasted until 1973, Tordella said, when CIA pulled out of the arrangement because of concerns raised by its lawyers. NSA then arranged for its own office space in Manhattan.

Tordella recalled that while many NSA employees were aware of SHAMROCK, only one lower-level manager--who reported to him directly--had had ongoing responsbility for the program over the years. The first person who served in this capacity had started doing it in 1952 and had continued until he retired in 1970. Another person was appointed to take his place. Tordella recalled that years would sometimes go by without his hearing anything about SHAMROCK. It just ran on, he said, without a great deal of attention from anyone.

I asked if NSA used the take from SHAMROCK to spy on the international communications of American citizens. Tordella responded, "Not per se." NSA was not interested in these kinds of communications as a rule, he said, but he said there were a few cases where the names of American citizens had been used by NSA to select out their international communications, and to the extent this was done, the take from SHAMROCK would also have been sorted in accordance with these criteria. He noted that, at the time the Huston Plan 7 was being considered, the Nixon administration had thought about turning over SHAMROCK to the FBI, but the FBI did not want it.

When I asked if it was legal for NSA to read the telegrams of American citizens, 8 he replied, "You'll have to ask the lawyers."

I noted that I would have expected the companies themselves to be concerned, and Tordella remarked that, "the companies are what worry me about this." He said that whatever they did, they did out of patriotic reasons. They had presumed NSA wanted the tapes to look for foreign intelligence. That was NSA's mission. If the telegrams of American citizens were looked at, the companies had no knowledge of it.

I countered with the observation that, by making the tapes available to the government, the companies had to know they were providing the wherewithal for the government to use them however it wanted. They had to bear some responsibility.

This comment caused Tordella's temper to flare for the first time during our interview. The companies were not responsible, he reiterated, they were just doing what the government asked them to do because they were assured it was important to national security. If their role were exposed by the Committee, it would subject them to embarrassment, if not lawsuits, and it would discourage other companies from cooperating with US intelligence for years to come.

I told him that the Committee had yet to determine how the whole matter would be treated, including the involvement of the companies. We parted amicably, but he clearly had misgivings about how this would turn out. His distrust of politicians was manifest.

The Companies

Several days after my interview with Tordella, an NSA official briefed the Committee in closed session, confirming essentially what Tordella had told me about SHAMROCK.

It was clear that the issue for the Committee was likely to be the companies themselves and how to treat them in its report. We decided to explore for ourselves the companies' involvement to see whether they were as oblivious to the implications of their conduct as Tordella and the NSA briefer contended.

We sought pertinent documents and witnesses from each of the three companies involved: RCA Global, ITT World Communications, and Western Union International. No one could find any record whatsoever of an agreement with NSA or ASA setting forth the terms of the operation. Only RCA Global could produce a witness who had been involved in establishing the arrangement after World War II; the other two companies could produce a few witnesses-- mid-level executives--who had become aware of the arrangement over the course of its existence. I deposed each of the witnesses the companies identified.

The RCA Global executive, then retired, was the most colorful and forthright of the lot. He offered no apologies for what he or the company had done. He said the Army had come to him and asked for the company's cooperation, and, by damn, that was enough for him.

The executive from ITT World Communications, by comparison, came to the deposition surrounded by a phalanx of corporate lawyers who proceeded to object to every question I asked once I had gotten past the man's name and position. I pointed out to them that this was the United States Senate--not a court of law-- and, if they wanted to object to the questions I was asking, I would have a Senator come in and overrule every one of their objections. They piped down after that and allowed the witness to respond to my questions.

The executive from Western Union International gave a slightly different version of the operation. He said that in his company, employees would microfilm copies of outgoing international telegrams that would then be picked up by a government courier.

All the company witnesses testified that their companies had assumed NSA was using the telegraph traffic only for foreign intelligence purposes. It did not occur to any of them that NSA might have used their access to look for the international telegrams of American citizens, nor were they aware that their companies had ever sought assurances from NSA on this point. Moreover, all were adamant that their companies had never received any compensation or favoritism from the government in return for their cooperation.

Action Within the Committee

Based upon the information I had developed, I prepared a report on SHAMROCK for the Committee, outlining the facts as we then knew them. I submitted it to the Committee Chief Counsel, Frederick A. O. "Fritz" Schwarz, a lineal descendant of the toy store magnate on leave from a Wall Street law firm, with a recommendation that the Committee not make public the names of the three cooperating companies.

Fritz called me into his office to discuss the report and told me he disagreed with my recommendation that the companies not be identified. I pointed out to him that the companies had cooperated purely out of patriotic motives and, as far as we knew, had never received anything from the government. I said that if we exposed them, it would cause them public embarrassment and perhaps subject them to lawsuits, thereby making it difficult for US intelligence agencies to obtain the cooperation of private companies in the future. Fritz countered that the companies had a duty to protect the privacy of their customers. In his view, they deserved to be exposed. If the Committee did not do it, it would become the subject of criticism itself. So, for the time being, the names stayed in, and the draft report was submitted to NSA for security review.

The next step in the process took place on 28 October 1975, when the Committee met in executive session to consider what it would do with respect to the matters the staff had been investigating: SHAMROCK and the NSA "watch list." 9 Lieutenant General Allen, the NSA Director, was scheduled to appear before the Committee the following day in public session. It would be the first time that an NSA Director had appeared in public before a Congressional committee, and the Committee was meeting on the 28th to get its ducks in a row.

The Ford administration had agreed to allow Allen to testify publicly about the "watch list" but had refused to allow him (or anyone else) to testify about SHAMROCK. While NSA had little to say about the accuracy of the draft report on SHAMROCK, it objected to making the report public. Without a knowledgeable advocate for NSA's position in the room, however, Chairman Church rather easily obtained consensus from a bare quorum of the Committee-- without taking a vote--that the SHAMROCK report should be made public, notwithstanding the administration's objection. This action by Senator Church and the Committee was based on a provision in the resolution establishing the Committee that allowed it to release information in its possession, classified or not, by majority vote.

After the meeting, however, Senator Tower and other Republican members who had not been present began voicing their displeasure with the Chairman's action. In a rare display of administration concern, President Ford telephoned the Chairman and other members of the Committee imploring them to reconsider. While the Chairman may have been confident he had the votes to maintain his position, no vote had actually been taken.

This disagreement among the members played itself out in public the following day at the conclusion of General Allen's testimony. Senator Church raised the matter himself and proceeded to describe SHAMROCK in general terms, alluding to the "companies" but not actually naming them. In his view, the program was illegal, and its disclosure would not harm national security.

According to Church, moreover, the Committee had acted in accordance with its rules. Senators Tower, Goldwater, and Baker challenged him on both substantive and procedural grounds, among other things, revealing that President Truman had approved the program and contending that disclosure of the details would have far-reaching repercussions for US security. In what seemed a pre-ordained finale to the discussion, Church gave in to the dissenters, agreeing that the Committee would consider the matter further and take an "up or down" vote on disclosure.

In the next few days, the Committee met to consider the disclosure of SHAMROCK. For the first time since the Committee began operations, Attorney General Edward Levi, speaking expressly on behalf of the President, personally appealed to the Committee not to publish the SHAMROCK report on the grounds that publication would damage national security. Before a hushed hearing room, Levi made an eloquent appeal to the Committee, objecting to the publication of the report, and, in particular, to disclosing the names of the three companies. Levi's arguments generally mirrored those I had made to Fritz Schwarz a few weeks before, and I was hoping they would carry the day.

In the discussion that followed, however, with Levi out of the room, it soon became clear which way the wind was blowing. Senators were bothered that the telegrams of Americans had for years been handed over to an intelligence agency. Whatever its legality, it should not have happened. The program was now terminated. Why would it matter if it were disclosed? Why was the identification of the companies a national security concern? Yes, the report might be embarrassing to them and they might even get sued because of it, but why should that make it classified?

In what I recall was largely a party-line vote, the Committee voted to ignore the President's objections and to publish the report with the three companies identified therein. It remains to this day the only occasion I know of where a Congressional committee voted to override a presidential objection and publish information the President contended was classified.

A few days later, on 6 November 1975, the Chairman read the report I had written, including the names of the companies, into the public record of the Committee. The witness table was empty that day, the executive branch having refused to send witnesses to testify. 10

Belated Discoveries

For all practical purposes, my investigative work on SHAMROCK ended with the Chairman's recitation, and I moved on to other tasks for the Committee. In March 1976, however, as the Committee staff was at work putting together its final seven-volume report, a lawyer in the General Counsel's office at the Department of Defense called me to say that "a lower-level employee" at NSA had recently discovered a file relating to SHAMROCK and, while "it did not really change anything," he asked whether I would be interested in seeing it.

The file proved to be a mother lode of information. In it were internal memorandums of the Army Signal Security Agency that described visits by Army representatives to the three international telegraph companies in August 1945 at the conclusion of the war and reflected the initial responses of the companies. ITT World International at first refused to cooperate, but went along after it was told that the presidents of RCA Global and Western Union had agreed to cooperate if Attorney General Tom Clark said the operation was "not illegal." ITT said it would cooperate on the same basis.

According to the Army memoranda, however, the program began shortly after the August 1945 meetings without an opinion from the Attorney General. It involved all the international telegraph offices of the three companies, not simply those in New York, but those in Washington, DC, San Francisco, and San Antonio as well.

The file also indicated that the concerns of the companies over the legality of their cooperation did not abate once the operation began. In an internal memo written more than a year later, the Army noted that, because of the concern over the legality of their conduct, the companies had limited knowledge of the operation to two or three individuals in each company.

With the discovery of this file, I set about revising the chapter of the Committee's final report that dealt with SHAMROCK to incorporate the new information. About a month later, in April 1976, as I was putting the final touches on the revision, I received a call from the Department of Defense, this time advising that nine more documents pertaining to SHAMROCK had been discovered at the National Archives and were en route to me.

These documents filled out the picture even further. They reflected that in 1947 the three companies had sought assurances from the President, Attorney General, and Secretary of Defense that their cooperation in the SHAMROCK program was essential to the national interest and that they would not be subject to Federal prosecution for their activities. In fact, the documents showed that Secretary of Defense James Forrestal, stating that he was speaking for the President, had met with representatives of ITT and RCA in December 1947 and provided such assurances, but with a warning that he could not bind his successors in office. Western Union representatives were briefed subsequently on this meeting.

In apparent follow-up to this meeting, the documents showed that Secretary Forrestal in June 1948 quietly tried to have Congress amend section 605 of the Communications Act of 1934 in a way which would have made the companies' coopertion in SHAMROCK clearly legal. He met informally with the Chairmen of the Senate and House Judiciary Committees to explain the situation, and an amendment was drafted to accomplish the objective. The amendment was never reported by either committee. 11

With the failure of the effort to enact legislation, the companies in 1949 sought and obtained assurances from Forrestal's successor, Louis Johnson, that they would not be prosecuted. On this occasion, Johnson said he was speaking on behalf of the President and the Attorney General as well.

I found it highly suspicious that these documents had been located by the government months after the Committee's investigation had closed. (Why were they still looking for them at this juncture?) The documents also cast doubts on the veracity of the companies' claims that they could find no documentation pertaining to SHAMROCK. After all, this had concerned the highest levels of their corporate management for at least four years. With the Committee about to go out of business, however, there was no time for me to investigate the failure to produce these documents earlier. I had to be content that they had arrived in time to be reflected in the Committee's final report. 12

Denouement

Several weeks after the Committee issued its final report, I walked over to the House side of the Capitol to attend a hearing of the subcommittee chaired by Bella Abzug, the "gentlewoman" from New York, as she was referred to by her colleagues. Her hearings brought to mind the days of Nero, when Christians were thrown to the lions for sport. Ms. Abzug's "red meat" that particular day consisted of executives from RCA Global, ITT International, and Western Union International. As I leaned back against the wall of the hearing room, I saw many of those I had met months before.

Berating the witnesses as only she could, Ms. Abzug made it clear she "stood solidly for the privacy of the American people and squarely against the corporate thugs of this country who thought they could run roughshod over the rights of the American people." (I am paraphrasing here.) I knew they were getting a bum rap, but they had no defenders that day. One of their attorneys turned and caught my eye in the back of the room, nodding grimly as if to say I told you so.

And the companies' troubles would not end there. In the weeks that followed, they would be sued by a group of people claiming their rights had been violated by the SHAMROCK program.

As I walked back to the Senate side after the hearing that day, it occurred to me that none of this would be happening if not for me. Yet I hardly felt like gloating. Indeed, I was somewhat shaken to see the consequences I had predicted to Fritz Schwarz a few months before come to pass. For the moment, I was overcome by doubt. Had we, in fact, "poisoned the well" in terms of future cooperation with the private sector, as Dr. Tordella had feared?

Because I decided to stay in government and, indeed, served in positions that offered a vantage point, I came to see that relations between intelligence agencies and the private sector endured. Lawyers became more involved than they used to be, but questions of legality were no longer ignored or unresolved. Agreements were put in writing and signed by the responsible officials.

I also came to think that the investigation, in the long term, had a beneficial effect on NSA. With no desire to undergo another such experience, NSA adopted very stringent rules in the wake of the Church Committee to ensure that its operations were carried out in accordance with applicable law. Where the communications of US citizens were concerned, I can attest from my personal experience that NSA has been especially scrupulous. As upsetting and demoralizing as the Church Committee's investigation undoubtedly was, it caused NSA to institute a system which keeps it within the bounds of US law and focused on its essential mission. Twenty-three years later, I still take some satisfaction from that.

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L. Britt Snider is CIA's Inspector General.

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NOTES

1 Peter Fenn is now a political consultant to Democratic candidates and frequently appears on Geraldo Rivera Live, Hardball, and other talk shows.

2 I have since worked closely with General Allen (who retired some time ago) as a member of the Aspin-Brown Commission and as a member of the President's Foreign Intelligence Advisory Board. He seems considerably more mellow to me today than he did then and still a man of impeccable integrity.

3 The Rockefeller Commission was created by President Ford in 1974 to look into allegations of CIA involvement in monitoring domestic political dissent. It issued its report on 6 June 1975, five months after the Church Committee had been formed.

4 Horrock, Nicholas, "National Security Agency Reported Eavesdropping on Most Private Cables," The New York Times, 8 August 1975, p. 1.

5 The leak apparently did come from the Committee or, more likely, its staff; members were not yet engaged on NSA. Like most such situations, however, the Committee was unable to prove conclusively who the culprit was. The episode did make us far more wary of discussing with the staff what we were doing.

6 Tordella was Deputy Director of NSA from 1958 until 1974.

7 The Huston Plan was devised by Nixon White House aide Tom Huston to organize the resources of the government to counter antiwar protesters and others opposed to the views of the administration.

8 The issue of legality stemmed from applicability of section 605 of the Communications Act of 1934 to the companies' activities. Section 605 on its face prohibited people involved in sending or receiving foreign communications by wire, that is, the employees of telegraph companies, from divulging the contents of those communications to other people. In 1968, section 605 had been amended by a new wiretap law to clarify that it was not meant to preclude the employees of telegraph companies from divulging the contents of wire communications whose acquisition by the government had been subject of a court order. While a 1972 Supreme Court case involving the 1968 wiretap law had suggested the President might possess residual constitutional authority to authorize wiretaps for national security purposes (without actually deciding this issue), no court had ever applied this principle to override the prohibition contained in section 605.

9 The "watch list" referred to a list of names of US citizens used by NSA to select the international communications of such citizens from its holdings, including the telegrams provided by SHAMROCK. NSA had begun doing this in the early 1960s on a limited basis in order to monitor US citizen travel to Cuba and threats to the President. In 1967, however, the list was expanded to include the names of US citizens involved in antiwar and civil rights disturbances, ostensibly to determine any foreign influence over such persons. In 1973, at the height of this activity, the names of 600 US citizens were on the list. In the fall of 1973, however, in response to concerns raised by Attorney General Elliot Richardson regarding its legality, the "watch list" program was terminated.

10 Attorney General Levi was present in the hearing room when the Chairman read the statement and did subsequently testify on the legal issues surrounding NSA's foreign intelligence activities, but he did not mention SHAMROCK in his testimony.

11 The Senate Judiciary Committee voted to allow the Chairman discretion to report the amendment to the floor or not, but, because of the Defense Department's reluctance to have the matter discussed on the floor, the amendment was never reported out by the Chairman.

12 The description of the SHAMROCK program appears at pages 765-776 of Book III, Supplementary Detailed Staff Reports on Intelligence Activities and the Rights of Americans, Final Report of the Select Committee to Study Governmental Operations with respect to Intelligence Activities, US Senate, 1976.

[ end CIA Inspector General's Report ]

......see, things are all better now..........