Intelligence Activities: The NSA and Fourth Amendment Rights by Church Committee Lyrics
Wednesday, October 29, 1975
U.S. Senate Select Committee To Study Governmental Operations With Respect to Intelligence Activities, Washington, D.C.
The committe met, pursuant to notice, at 10:15 a.m., in room 318, Russell Senate Office Building, Senator Frank Church (chairman) presiding.
Present: Senators Church, Tower, Mondale, Huddleston, Morgan, Hart of Colorado, Baker, Goldwater, Mathias and Schweiker.
Also Present: William G. Miller, staff director; Fredrick A. O. Schwarz, JR., chief counsel; Curtis R. Smothers, counsel to the minority.
[The Chairman]
The hearing will please come to order. This morning, the committee begins public hearings on the National Security Agency or, as it is more commonly known, the NSA. Actually, the Agency name is unknown to most Americans, either by its acronym or its full name. In contrast to the CIA, one has to search far and wide to find someone who has ever heard of the NSA. This is peculiar, because the National Security Agency is an immense installation. In its task of collecting intelligence by intercepting foreign communications, the NSA employs thousands of people and operates with an enormous budget. Its expansive computer facilities comprise some of the most complex and sophisticated electronic machinery world.
Just as the NSA is one of the largest and least known of the intelligence agencies, it is also the most reticent. While it sweeps messages from around the world, it gives out precious little information about itself. Even the legal basis for the activities of NSA is different from other intelligence agencies. No statute establishes the NSA of defines the permissible scope of its responsibilities. Rather, Executive directives make up the sole "charter" for the Agency. Furthermore, these directives fail to define precisely what constitutes the "technical and intelligence information" which the NSA is authorized to collect. Since its establishment in 1952 as a part of the Defense Department, representatives of the NSA have never appeared before the Senate in a public hearing. Today we will bring the Agency from behind closed doors.
The committee has elected to hold public hearings on the NSA only after the most careful consideration. For 23 years this Agency has provided the President and the other intelligence services with communications intelligence vital to decision making within our Government councils. The value of its work to our national security has been and will continue to be inestimable. We are determined not to impair the excellent contributions made by the NSA to the defense of our country. To make sure this committee does not interfere with ongoing intelligence activities, we have had to be exceedingly careful, for the techniques of the NSA are of the most sensitive and fragile character. We have prepared ourselves exhaustively; we have circumscribed the area of inquiry to include only those which represent abuses of power; and we have planned the format for today's hearing with great care, so as not to venture beyond our stated objectives.
The delicate character of communications intelligence has convinced Congress in the past not to hold public hearings on NSA. While this committee shares the concern of earlier investigative committees, we occupy a different position that our predecessors. We are tasked, by Senate Resolution 21, to investigate "illegal, improper, or unethical activities" engaged in by intelligence agencies, and to decide on the "need for specific legislative authority to govern operations of the National Security Agency." Never before has a committee of Congress been better prepared, instructed, and authorized to make an informed and judicious decision as to what in the affairs of NSA should remain classified and what may be examined in a public forum.
Our staff has conducted an intensive 5-month investigation of NSA, and has been provided access to required Agency files and personnel. NSA has been cooperative with the committee, and a relationship of mutual trust has been developed. Committee members have received several briefings in executive session on the activities of the Agency, including a week of testimony from the most knowledgeable individuals, in an effort to determine what might be made public without damaging its effectiveness. Among others, we have met with the Directors of the NSA and the CIA, as well as the Secretary of Defense. Finally, once the decision was made to hold public hearings on the NSA, the committee worked diligently with the Agency to draw legitimate boundaries for the public discussion that would preserve the technical secrets of NSA, and also allow a thorough airing of Agency practices affecting American citizens.
In short, the committee has proceeded cautiously. We are keenly aware of the sensitivity of the NSA, and wish to maintain its important role in our defense system. Still, we recognize our responsibility to the American people to conduct a thorough and objective investigation of each of the intelligence services. We would be derelict in our duties if we were to exempt NSA from public accountability. The committee must act with the highest sense of responsibility during its inquiry into the intelligence services. But it cannot sweep improper activities under the rug -- at least not if we are to remain true to our oath to uphold the Constitution and the laws of the land.
We have a particular obligation to examine the NSA, in light of its tremendous potential for abuse. It has the capacity to moniter the private communications of American citizens without the use of a "bug" or "tap". The interception of international communication signals sent through the air is the job of NSA; and, thanks to modern technological developments, it does its job very well. The danger lies in the ability of the NSA to turn its awesome technology against domestic communications. Indeed, as our hearings into the Huston plan demonstrated, a previous administration and a former NSA Director favored using this potential against certain U.S. citizens for domestic intelligence purposes. While the Huston plan was never fully put into effect, our investigation has revealed that the NSA had in fact been intentionally monitoring overseas communications of certain U.S. citizens long before the Huston plan was proposed -- and continued to do so after it was revoked. This incident illustrates how the NSA could be turned inward and used against our own people.
It has been the difficult task of the committee to find a way through the tangled webs of classification and the claims of national security -- however valid they may be -- to inform the American public of deficiencies in their intelligence services. It is not, of course, a task without risks, but it is the course we have set for ourselves. The discussions which will be held this morning are efforts to identify publicly certain activities undertaken by the NSA which are of questionable propriety and dubious legality.
General Allen, Director of the NSA, will provide for us today the background on these activities, and he will be questioned on their origins and objectives by the committee members. Like the CIA and the IRS, the NSA, too, had a "watch list" containing the names of U.S. citizens. This list will be of particular interest to us this morning, though we will take up another important subject as well. The dominant concern of this committee is the intrusion by the Federal Government into the inalienable rights guaranteed Americans by the Constitution. In previous hearings, we have seen how these rights have violated by the intelligence services of the CIA, the FBI, and the IRS. As the present hearings will reveal, the NSA has not escaped the temptation to have its operations expanded into provinces protected by the law.
While the committee has found the work of the NSA on the whole to be of a high caliber and properly restrained and has tremendous respect for the professional caliber of the people who work there, the topics we shall explore today do illustrate excesses and suggest areas where legislative action is desirable. That is why we are here.
Senator Tower would like to make an opening statement.
[Senator Tower]
Thank you, Mr. Chairman.
Mr. Chairman, I shall be brief. From the very beginning I have opposed the concept of public hearings on the activities of the NSA. That opposition continues, and I should like to briefly focus on the reasons I believe these open hearings represent a serious departure from our heretofore responsible and restrained course in the process of our investigation.
To begin with, this complex and sophisticated electronic capability is the most fragile weapon in our arsenal; and unfortunately I cannot elaborate on that, because that would not be proper. Public inquiry on NSA, I believe, serves no legitimate legislative purpose, while exposing this vital element of our intelligence capability to unnecessary risk, a risk acknowledge in the chairman's own opening statement.
Senate Resolution 21 does authorize the NSA inquiry, and this has been done very thoroughly in closed session. But that same resolution also picks up a recurring theme of the floor debate upon the establishment of this committee. Specifically, we were admonished not to disclose outside the committee information which would adversely affect intelligence activities. In my view, the public pursuit of this matter does adversely affect our intelligence-gathering capability.
Even if risks were minimal -- and I do not believe they are minimal -- the NSA is the wrong target. The real quarry is not the largely mechanical response of military organizations to orders. The real issues of who told them to take actions now alleged to be questionable should be addressed to the policy level. It is more important to know why names were placed on a watch list than to know what the NSA did after being ordered to do so.
In summary, Mr. Chairman, I believe we have fallen prey to our own fascination with the technological advances of the computer age. We have invited a three-star military officer to come before us to explain the awesome technology and the potential abuses of a huge vacuum cleaner. We have done this despite the fact that our exhaustive investigation has established only two major abuses in 23 years, both of which have been terminated. And despite the obvious risks of this sensitive component of the Nation's intelligence-gathering capability. I am opposed to a procedure which creates an unnecessary risk of irreparable injury to the public's right to be secure; even if offered under the umbrella of the acknowledged presumption of a citizen's right to know.
In taking such risks, we both fail to advance the general legislative purpose and, I believe, transgress the clearly expressed concerns of the Senate requiring us to. If we err at all, err on the side of caution. It is my view that there comes a point when the people's right to know must, of necessity, be subordinated to the people's right to be secure, to the extent that a sophisticated and effective intelligence-gathering capability makes them secure.
I do not think that any of us here, for example, would want us to sacrifice our capability for verification of Soviet strategic weapons capability. And whether or not that capability was thought posture in a first-strike configuration. I cite it only as an example. Hence, my opposition to the conduct of these public hearings.
I am aware, Mr. Chairman, that through the democratic process, the committee has, by a majority vote, voted to go this route. But I felt a compulsion to state my own reasons for being in opposition.
[The Chairman]
Senator Tower, I appreciate your statement, and I might say that there are two levels of concern in the committee, and relating to the two different practices that are of questionable legality. And so, we have divided this hearing into two parts, proceeding with the portion that has least objection from members of the committee who feel as Senator Tower does. And then, we will have an opportunity to discuss further the second part, after General Allen has left the witness stand. And that is the procedure, that is satisfactory with you?
[Senator Tower]
I accept the procedure, and it is totally satisfactory to me.
[The Chairman]
Very well. Now, General Allen has come prepared with his statement, after which, [addressing] General, there will be questions from the committee. I wish you would identify those who will be sitting with you; and if they might respond to questions, then I would ask them to stand with you to take the oath. Would you first identify them, please?
[General Allen]
Yes. On my right is Mr. Benson Buffham, who is the Deputy Director of the National Security Agency. On my left is Mr. Roy Banner, who is the General Counsel of the National Security Agency. Sir, I suppose -- or atleast for our initial purposes -- that I be the only witness.
[The Chairman]
Very well. Then you alone may stand and take the oath. Do you solemnly swear that all of the testimony you will give in this proceeding will be the truth, the whole truth, and nothing but the truth, so help you God?
[General Allen]
I do.
[The Chairman]
Thank you. General, I know you have a prepared statement, will you please proceed with it at this time.
U.S. Senate Select Committee To Study Governmental Operations With Respect to Intelligence Activities, Washington, D.C.
The committe met, pursuant to notice, at 10:15 a.m., in room 318, Russell Senate Office Building, Senator Frank Church (chairman) presiding.
Present: Senators Church, Tower, Mondale, Huddleston, Morgan, Hart of Colorado, Baker, Goldwater, Mathias and Schweiker.
Also Present: William G. Miller, staff director; Fredrick A. O. Schwarz, JR., chief counsel; Curtis R. Smothers, counsel to the minority.
[The Chairman]
The hearing will please come to order. This morning, the committee begins public hearings on the National Security Agency or, as it is more commonly known, the NSA. Actually, the Agency name is unknown to most Americans, either by its acronym or its full name. In contrast to the CIA, one has to search far and wide to find someone who has ever heard of the NSA. This is peculiar, because the National Security Agency is an immense installation. In its task of collecting intelligence by intercepting foreign communications, the NSA employs thousands of people and operates with an enormous budget. Its expansive computer facilities comprise some of the most complex and sophisticated electronic machinery world.
Just as the NSA is one of the largest and least known of the intelligence agencies, it is also the most reticent. While it sweeps messages from around the world, it gives out precious little information about itself. Even the legal basis for the activities of NSA is different from other intelligence agencies. No statute establishes the NSA of defines the permissible scope of its responsibilities. Rather, Executive directives make up the sole "charter" for the Agency. Furthermore, these directives fail to define precisely what constitutes the "technical and intelligence information" which the NSA is authorized to collect. Since its establishment in 1952 as a part of the Defense Department, representatives of the NSA have never appeared before the Senate in a public hearing. Today we will bring the Agency from behind closed doors.
The committee has elected to hold public hearings on the NSA only after the most careful consideration. For 23 years this Agency has provided the President and the other intelligence services with communications intelligence vital to decision making within our Government councils. The value of its work to our national security has been and will continue to be inestimable. We are determined not to impair the excellent contributions made by the NSA to the defense of our country. To make sure this committee does not interfere with ongoing intelligence activities, we have had to be exceedingly careful, for the techniques of the NSA are of the most sensitive and fragile character. We have prepared ourselves exhaustively; we have circumscribed the area of inquiry to include only those which represent abuses of power; and we have planned the format for today's hearing with great care, so as not to venture beyond our stated objectives.
The delicate character of communications intelligence has convinced Congress in the past not to hold public hearings on NSA. While this committee shares the concern of earlier investigative committees, we occupy a different position that our predecessors. We are tasked, by Senate Resolution 21, to investigate "illegal, improper, or unethical activities" engaged in by intelligence agencies, and to decide on the "need for specific legislative authority to govern operations of the National Security Agency." Never before has a committee of Congress been better prepared, instructed, and authorized to make an informed and judicious decision as to what in the affairs of NSA should remain classified and what may be examined in a public forum.
Our staff has conducted an intensive 5-month investigation of NSA, and has been provided access to required Agency files and personnel. NSA has been cooperative with the committee, and a relationship of mutual trust has been developed. Committee members have received several briefings in executive session on the activities of the Agency, including a week of testimony from the most knowledgeable individuals, in an effort to determine what might be made public without damaging its effectiveness. Among others, we have met with the Directors of the NSA and the CIA, as well as the Secretary of Defense. Finally, once the decision was made to hold public hearings on the NSA, the committee worked diligently with the Agency to draw legitimate boundaries for the public discussion that would preserve the technical secrets of NSA, and also allow a thorough airing of Agency practices affecting American citizens.
In short, the committee has proceeded cautiously. We are keenly aware of the sensitivity of the NSA, and wish to maintain its important role in our defense system. Still, we recognize our responsibility to the American people to conduct a thorough and objective investigation of each of the intelligence services. We would be derelict in our duties if we were to exempt NSA from public accountability. The committee must act with the highest sense of responsibility during its inquiry into the intelligence services. But it cannot sweep improper activities under the rug -- at least not if we are to remain true to our oath to uphold the Constitution and the laws of the land.
We have a particular obligation to examine the NSA, in light of its tremendous potential for abuse. It has the capacity to moniter the private communications of American citizens without the use of a "bug" or "tap". The interception of international communication signals sent through the air is the job of NSA; and, thanks to modern technological developments, it does its job very well. The danger lies in the ability of the NSA to turn its awesome technology against domestic communications. Indeed, as our hearings into the Huston plan demonstrated, a previous administration and a former NSA Director favored using this potential against certain U.S. citizens for domestic intelligence purposes. While the Huston plan was never fully put into effect, our investigation has revealed that the NSA had in fact been intentionally monitoring overseas communications of certain U.S. citizens long before the Huston plan was proposed -- and continued to do so after it was revoked. This incident illustrates how the NSA could be turned inward and used against our own people.
It has been the difficult task of the committee to find a way through the tangled webs of classification and the claims of national security -- however valid they may be -- to inform the American public of deficiencies in their intelligence services. It is not, of course, a task without risks, but it is the course we have set for ourselves. The discussions which will be held this morning are efforts to identify publicly certain activities undertaken by the NSA which are of questionable propriety and dubious legality.
General Allen, Director of the NSA, will provide for us today the background on these activities, and he will be questioned on their origins and objectives by the committee members. Like the CIA and the IRS, the NSA, too, had a "watch list" containing the names of U.S. citizens. This list will be of particular interest to us this morning, though we will take up another important subject as well. The dominant concern of this committee is the intrusion by the Federal Government into the inalienable rights guaranteed Americans by the Constitution. In previous hearings, we have seen how these rights have violated by the intelligence services of the CIA, the FBI, and the IRS. As the present hearings will reveal, the NSA has not escaped the temptation to have its operations expanded into provinces protected by the law.
While the committee has found the work of the NSA on the whole to be of a high caliber and properly restrained and has tremendous respect for the professional caliber of the people who work there, the topics we shall explore today do illustrate excesses and suggest areas where legislative action is desirable. That is why we are here.
Senator Tower would like to make an opening statement.
[Senator Tower]
Thank you, Mr. Chairman.
Mr. Chairman, I shall be brief. From the very beginning I have opposed the concept of public hearings on the activities of the NSA. That opposition continues, and I should like to briefly focus on the reasons I believe these open hearings represent a serious departure from our heretofore responsible and restrained course in the process of our investigation.
To begin with, this complex and sophisticated electronic capability is the most fragile weapon in our arsenal; and unfortunately I cannot elaborate on that, because that would not be proper. Public inquiry on NSA, I believe, serves no legitimate legislative purpose, while exposing this vital element of our intelligence capability to unnecessary risk, a risk acknowledge in the chairman's own opening statement.
Senate Resolution 21 does authorize the NSA inquiry, and this has been done very thoroughly in closed session. But that same resolution also picks up a recurring theme of the floor debate upon the establishment of this committee. Specifically, we were admonished not to disclose outside the committee information which would adversely affect intelligence activities. In my view, the public pursuit of this matter does adversely affect our intelligence-gathering capability.
Even if risks were minimal -- and I do not believe they are minimal -- the NSA is the wrong target. The real quarry is not the largely mechanical response of military organizations to orders. The real issues of who told them to take actions now alleged to be questionable should be addressed to the policy level. It is more important to know why names were placed on a watch list than to know what the NSA did after being ordered to do so.
In summary, Mr. Chairman, I believe we have fallen prey to our own fascination with the technological advances of the computer age. We have invited a three-star military officer to come before us to explain the awesome technology and the potential abuses of a huge vacuum cleaner. We have done this despite the fact that our exhaustive investigation has established only two major abuses in 23 years, both of which have been terminated. And despite the obvious risks of this sensitive component of the Nation's intelligence-gathering capability. I am opposed to a procedure which creates an unnecessary risk of irreparable injury to the public's right to be secure; even if offered under the umbrella of the acknowledged presumption of a citizen's right to know.
In taking such risks, we both fail to advance the general legislative purpose and, I believe, transgress the clearly expressed concerns of the Senate requiring us to. If we err at all, err on the side of caution. It is my view that there comes a point when the people's right to know must, of necessity, be subordinated to the people's right to be secure, to the extent that a sophisticated and effective intelligence-gathering capability makes them secure.
I do not think that any of us here, for example, would want us to sacrifice our capability for verification of Soviet strategic weapons capability. And whether or not that capability was thought posture in a first-strike configuration. I cite it only as an example. Hence, my opposition to the conduct of these public hearings.
I am aware, Mr. Chairman, that through the democratic process, the committee has, by a majority vote, voted to go this route. But I felt a compulsion to state my own reasons for being in opposition.
[The Chairman]
Senator Tower, I appreciate your statement, and I might say that there are two levels of concern in the committee, and relating to the two different practices that are of questionable legality. And so, we have divided this hearing into two parts, proceeding with the portion that has least objection from members of the committee who feel as Senator Tower does. And then, we will have an opportunity to discuss further the second part, after General Allen has left the witness stand. And that is the procedure, that is satisfactory with you?
[Senator Tower]
I accept the procedure, and it is totally satisfactory to me.
[The Chairman]
Very well. Now, General Allen has come prepared with his statement, after which, [addressing] General, there will be questions from the committee. I wish you would identify those who will be sitting with you; and if they might respond to questions, then I would ask them to stand with you to take the oath. Would you first identify them, please?
[General Allen]
Yes. On my right is Mr. Benson Buffham, who is the Deputy Director of the National Security Agency. On my left is Mr. Roy Banner, who is the General Counsel of the National Security Agency. Sir, I suppose -- or atleast for our initial purposes -- that I be the only witness.
[The Chairman]
Very well. Then you alone may stand and take the oath. Do you solemnly swear that all of the testimony you will give in this proceeding will be the truth, the whole truth, and nothing but the truth, so help you God?
[General Allen]
I do.
[The Chairman]
Thank you. General, I know you have a prepared statement, will you please proceed with it at this time.