Body of Secrets: Anatomy of the Ultra-Secret National Security Agency (71 page)

"Every
day," the briefer told Snider, "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." Although telegrams sent by U.S. citizens to
foreign destinations were also present on the tapes, the briefer added that
"we're too busy just keeping up with the real stuff" to look at them.
The briefer then said the program had been terminated by the secretary of
defense the previous May, as the Church Committee began looking into NSA.
"I asked if the secretary had ended it because he knew the Committee was
on to it," said Snider. "Not really," the briefer said,
"the program just wasn't producing very much of value."

But
whenever Snider attempted to probe into the background of the operation—how it
started, who approved it, and how long it had been going on—he was constantly
told, "I don't know." The keeper of the secrets, the briefer said,
was Dr. Louis Tordella, who had retired in April 1974 as deputy director.

On a
Sunday afternoon in September, Snider knocked on the front door of Tordella's
Kensington, Maryland, home. "Tordella was clearly uncomfortable with the
whole idea of confiding in someone like me," said Snider. "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."

Tordella
told Snider about Shamrock's origins in the days following World War II.
"All the big international carriers were involved," Tordella said,
"but none of 'em ever got a nickel for what they did." The companies
had been assured at the time that President Harry S. Truman and Attorney
General Tom Clark were aware of the program and approved its continuation. But
Tordella knew of no further high-level approval until he finally told Secretary
of Defense James R. Schlesinger in 1973. "To his knowledge," said
Snider, "Schlesinger had been the only secretary to have such a
briefing," even though NSA reports to the secretary of defense.

Like an
inmate making a jailhouse confession, Tordella outlined the illegal scheme.
Snider later summarized it:

During the
1950s, paper tape had been the medium of choice. Holes were punched in the
paper tape and then scanned to created 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 1975, 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 responsibility
for the program over the years. . . . 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 have been sorted in accordance with
these criteria. He noted that . . . 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, 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.

The
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 U.S. 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.

Following
Tordella's mea culpa, Snider began probing what the companies knew and when
they knew it. Only one former employee, from RCA Global, had been on the job at
the beginning of the program. "He said the Army had come to him and asked
for the company's cooperation," said Snider, "and, by damn, that was
enough for him." An executive from ITT, on the other hand, "came to
the deposition surrounded by a phalanx of corporate lawyers who proceeded to
object to every question once I had gotten past the man's name and
position." Snider said, "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."

When the
committee's report was being drafted, Snider argued against the public release
of the names of the companies. But the committee's chief counsel, Frederick A.
O. Schwartz, disagreed. "The companies had a duty to protect the privacy
of their customers," he said; "they deserved to be exposed. If the
Committee did not do it, it would become the subject of criticism itself."
Pushed by Church, the committee voted to make its report public—over NSA's
vehement objections, and to the great displeasure of its Republican members.

President
Gerald Ford telephoned Church and other senators, imploring them to reconsider.
But Church was determined to go forward and the next day, Lieutenant General
Lew Allen, the NSA director, was scheduled to testify before the committee in
public session—a situation unprecedented for NSA. (The testimony on which the report
was based had, of course, been given in closed session.) There, in the packed
hearing room with television cameras rolling, Allen faced the full committee.
Church himself raised the issue of Shamrock, although he did not name the
companies. "In his view," said Snider, "the program was illegal,
and its disclosure would not harm national security." But after a flurry
of objections by Republican members of the committee, including Senators Barry
Goldwater and Howard Baker, Church agreed to reserve any further discussion of
Shamrock for closed session.

Over the
next few days, the White House continued to plead with the committee to drop
all mention of Shamrock from its final report. "For the first time since
the Committee began operations," said Snider, "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." But the weight of opinion
among committee members was for disclosure. "Senators were bothered that
the telegrams of Americans had for years been handed over to an intelligence
agency," said Snider. "Whatever its legality, it should not have
happened. . . . 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?"

So the
committee voted to disregard the White House objections and leave in the
damning material. "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," said Snider.

Months
later, in March 1976, the committee was notified that "a lower-level
employee" at NSA had discovered a file relating to Shamrock—the first such
file found. (The committee's report had been based on testimony it heard.)
"The file proved to be a mother lode of information," said Snider.
"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."

By 2000
Snider had risen through the intelligence community to become the CIA's
inspector general. Looking back, he said, "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 U.S. 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 U.S. law and
focused on its essential mission. Twenty-three years later, I still take some
satisfaction from that."

Among the
reforms to come out of the Church Committee investigation was the creation of
the Foreign Intelligence Surveillance Act (FISA), which for the first time
outlined what NSA was and was not permitted to do. The new statute outlawed
wholesale, warrantless acquisition of raw telegrams such as had been provided
under Shamrock. It also outlawed the arbitrary compilation of watch lists
containing the names of Americans. Under FISA, a secret federal court was set
up, the Foreign Intelligence Surveillance Court. In order for NSA to target an
American citizen or a permanent resident alien—a "green card"
holder—within the United States, a secret warrant must be obtained from the
court. To get the warrant, NSA officials must show that the person they wish to
target is either an agent of a foreign power or involved in espionage or
terrorism.

But
because these issues fall under the jurisdiction of the FBI within the United
States, NSA seldom becomes involved. Thus, according to a senior U.S.
intelligence official involved in Sigint, NSA does not target Americans at
home. "I want to make it clear," said the official, "[that] we
do not intentionally target known U.S. persons in the United States—period. And
therefore, we don't go to court to get a warrant to target any such people
because we don't do any of those ... FBI worries about spies in the United
States." The same goes for foreigners suspected of terrorism, he said.
"Osama bin Laden . . . comes into the United States, he crosses the
border," said the intelligence official. "We wouldn't do the guy. It
would be FBI who'd do him, because he's a terrorist in the United States."
Thus, the vast majority of the 886 eavesdropping warrants approved by the Foreign
Intelligence Surveillance Court in 1999—the highest number ever—were from the
FBI.

Judicial
protections, however, stop at the border. "FISA doesn't cover the U.S.
person who's outside the United States," added the official. To target
Americans outside the country, all that is needed is the approval of the U.S.
attorney general. Nevertheless, the number of Americans targeted by NSA
overseas is very small. "At any one time," said the senior
intelligence official, "there may be five. . . . These persons are—there's
virtually no doubt that they are agents of foreign powers. Either they're
terrorists or they're some kind of officer or employee of a foreign government.
We're not talking about Jane Fonda."

He added:
"We'll find out that person
X
in a foreign country is a terrorist.
And maybe he has a green card and he used to live in the United States. He's
got a green card, we treat him as a U.S. person. So most of the people that
we're after are not citizens but resident aliens who have gone back to another
country."