A closer look at the famous post-Watergate investigation into domestic spying abuses and how it led to a secret court to authorize surveillance requests.
By Katelyn Epsley-Jones and Christina Frenzel
Frontline | May 15, 2007
The 1975-76 Church Committee congressional hearings probed widespread intelligence abuses by the FBI, CIA, IRS and NSA. Headed by Senator Frank Church (D-Idaho) in the wake of the Watergate scandal, the committee exposed how under the guise of national security agencies spied on American citizens for political purposes during the Kennedy, Johnson and Nixon administrations.
While the hearings focused on the FBI and CIA, they also catapulted the National Security Agency (NSA) from the shadows of the intelligence underworld to the national stage. The hearings revealed how the NSA set up secret projects code-named “Shamrock” and “Minaret” to collect international and domestic communications. In Project Shamrock, the major communication companies of the day — Western Union, RCA Global and ITT World Communications — provided the NSA access to their international message traffic, from which the NSA extracted telegrams containing the names provided to them by the FBI, CIA and other sources. Church said the three-decade long program “certainly appears to violate section 605 of the Communications Act of 1934 as well as the Fourth Amendment of the Constitution.”
Church also described how the NSA’s program morphed, creeping into dangerous domestic territory over time: “At the outset, the purpose apparently was only to extract international telegrams relating to certain foreign targets. Later the government began to extract the telegrams of certain U.S. citizens.” Shamrock spanned three decades, and by the time of the hearings, it was estimated that the NSA was analyzing 150,000 messages per month.
The committee also discovered abuses in Project Minaret, a sister program to Project Shamrock. In Project Minaret, the NSA added Vietnam War protestors to its watch list at the request of the U.S. Army, which was concerned about the heavily attended 1967 “March on the Pentagon” protest. The list scooped up notable protesters including actress Jane Fonda, singer Joan Baez and Dr. Martin Luther King, Jr. Then-NSA Deputy Director Benson Buffham stated, “It appeared to us that we were going to be requested to do far more than we had done before.”
The Church Committee’s revelation that the NSA had caught American citizens in their dragnets raised a question: Does the Fourth Amendment — with its protections against “unreasonable searches and seizures” and requirement for “probable cause” — apply to domestic spying for national security purposes?
Discovery of the various abuses fueled fears of still greater abuses. Sen. Walter Mondale (D-Minn.) worried that the NSA “could be used by President ‘A’ in the future to spy upon the American people, to chill and interrupt political dissent.” To prevent these fears from evolving into a reality, the committee determined that oversight beyond the executive level was necessary.
Congress responded to the committee’s findings by passing the Foreign Intelligence Surveillance Act (FISA) of 1978, which created the secret Foreign Intelligence Surveillance Court (FISC) to issue warrants for domestic eavesdropping. In recognition of national security imperatives, Congress allowed the proceedings of the FISA court to be kept secret. Seven judges, from different regions of the country, are appointed by the chief justice of the Supreme Court for seven-year terms.
For decades, the FISA court operated in the shadows. But in December 2005, The New York Times moved it into the limelight. It published an article describing how shortly after 9/11, President Bush had authorized the NSA to eavesdrop without warrants inside the United States, bypassing the FISA court; in a press conference four days after the article was published, the president maintained that the program was limited to calls from a suspected terrorist abroad to an individual inside the U.S. Experts quoted in the Times article questioned whether the president’s program violated the FISA law. Some critics have questioned the usefulness of the FISA court itself, labeling it a “rubber stamp for the government.” They claim that thousands of warrants are approved by the court every year, and only a handful of requests are rejected.
An exclusive inside look at the FISA court was provided to FRONTLINE correspondent Hedrick Smith by James Baker, the chief Justice Department liaison with the FISA court. In his interview with Smith, Baker describes a court that handles thousands of warrant applications each year, hearing requests for surveillance from the FBI and other agencies around a large table in a simple but highly secure conference room on the sixth floor of the Department of Justice.
Baker disputes two major criticisms of the FISA — one, that it is a rubber stamp, and two, that it moves too slowly to have satisfied the needs of the NSA after 9/11. He gives a detailed account of the process of considering a warrant in what he calls a “robust back and forth” between judges and Baker’s office. Baker says there is a lot more give and take than the public perceives and asserts that approval for a wiretap can be obtained in a matter of minutes, rebutting the criticism that it takes too long to get a warrant for eavesdropping in cases that require immediate action.
Key News Articles
- Bush Lets U.S. Spy on Callers Without Courts
This is the Dec. 16, 2005 New York Times article that revealed the domestic NSA wiretapping. [Editor’s Note: Interviews with authors James Risen and Eric Lichtblau about this and other stories, and analysis of their effect on national security can be found on FRONTLINE’s News War Web site.]
- NSA Has Massive Database of Americans’ Phone Calls
On May 11, 2006, USA Today reporter Leslie Cauley broke the story that with cooperation from most of the major phone companies, the NSA had been secretly collecting Americans’ phone calls in a huge database in order to analyze call patterns to try and detect terrorist plots. A May 22 follow-up story detailed how the NSA had created a template based on the phone records of the 9/11 hijackers.
- TIA Lives On
Shane Harris revealed in this article for National Journal how the Pentagon’s controversial Total Information Awareness (TIA) program “was stopped in name only”; elements of it have been incorporated into other intelligence agencies’ efforts to create an early-warning system to detect terrorist threats.
- Surveillance Net Yields Few Suspects
According to this February 2006 Washington Post story, fewer than 10 percent of the phone calls listened to by the NSA have yielded enough suspicion to justify further surveillance. One implication, according to the article: “National security lawyers, in and out of government, said the washout rate raised fresh doubts about the program’s lawfulness under the Fourth Amendment, because a search cannot be judged ‘reasonable’ if it is based on evidence that experience shows to be unreliable.”
The President’s Domestic Surveillance Program
- President Bush’s Press Conference About the NSA’s Warrantless Wiretapping Program
At this Dec. 19, 2005 press conference, President Bush publicly responded to the New York Times story published several days earlier reporting that the NSA was wiretapping some domestic phone calls without approval from the FISA court. The president confirmed the existence of such a program, emphasizing its strict limitations and the oversight measures in place. But he used language that made it clear he was discussing only one particular program involving phone calls with one international caller.
- What American Intelligence and Especially the NSA Have Been Doing to Defend the Nation
Gen. Michael Hayden, the former director of the NSA, gave this address at the National Press Club on Jan. 23, 2006 to defend the warrantless wiretapping program. With the caveat that he would have to speak carefully to avoid disclosing classified information, Hayden described a very limited program targeting suspected Al Qaeda contacts, “not a drift net” that could ensnare innocent Americans. He later confirmed that his words in this speech were chosen carefully to refer to only the program the Times had uncovered and were not a blanket description of the NSA’s methods.
- Letter from Senator Rockefeller
Here is a copy of the handwritten letter Sen. Jay Rockefeller (D-W.Va.) sent to Vice President Cheney in July 2003, expressing concern after a briefing on the program. “Given the security restrictions associated with this information, and my inability to consult staff or counsel on my own, I feel unable to fully evaluate, much less endorse these activities,” he writes. [Note: This is a pdf file; Adobe Acrobat required.]
- Listening For Terrorists: Surveillance Programs — Lessons Learned and the Way Ahead
The purpose of this February 2007 discussion at the Heritage Foundation was “to fairly provide both sides of a responsible discussion and debate on the efficacy, appropriateness and legitimacy of the program, the lessons that can be learned from its implementation, and the way forward for the Congress and the administration.”
- Data Mining: An Overview
Updated in January 2007, this Congressional Research Service report explains the basics of data mining, which “has become one of the key features of many homeland security initiatives.” According to CRS, data mining “represents a difference of kind rather than degree” when compared to other ways of analyzing data, in that it “can be used to examine several multidimensional data relationships simultaneously.” The report also discusses major data-mining projects in the national security arena, including DARPA’s Total Information Awareness (renamed Terrorism Information Awareness) and the NSA’s terrorist surveillance program. [Note: This is a pdf file; Adobe Acrobat required.]
- Effective Counterterrorism and the Limited Role of Predictive Data Mining
When Las Vegas casinos wanted to screen prospective employees for links to crime, they turned to software written by a programmer named Jeff Jonas. But in this December 2006 Policy Analysis for the libertarian Cato Institute, Jonas and Jim Harper argue that “data mining is not well suited to the terrorist discovery problem.” Jonas also maintains a blog which he calls “a collection of thoughts and resources on privacy and the information age.” [Note: Full text of the article available as a pdf file; Adobe Acrobat required.]
- Data Mining: Federal Efforts Cover a Wide Range of Uses
The U.S. General Accounting Office (GAO) — “the audit, evaluation and investigative arm of Congress” — compiled this May 2004 report on data-mining programs throughout the federal government. The main finding: “Our survey of 128 federal departments and agencies … shows that 52 agencies are using or are planning to use data mining. These departments and agencies reported 199 data-mining efforts, of which 68 are planning and 131 are operational. … In addition, out of all 199 data-mining efforts identified, 122 used personal information.” [Note: This is a pdf file; Adobe Acrobat required.]
- Survey of DHS Data Mining Activities
This December 2006 Department of Homeland Security Report “identified 12 systems and capabilities that DHS personnel use to perform data-mining activities to support DHS’ mission of counterterrorism. Nine systems are operational and three systems are under development.” [Note: This is a pdf file; Adobe Acrobat required.]
- Balancing Privacy and Security: The Privacy Implications of Government Data Mining Programs
Data mining led the agenda when the Democrats gained control of the Senate Judiciary Committee and held its first hearing on Jan. 10, 2007. This page features prepared testimony from representatives of the Cato Institute and the Heritage Foundation and statements by Committee Chair Patrick Leahy (D-Vt.) and Ranking Democrat Ted Kennedy (D-Mass.) “We don’t question the sincerity of the administration in wanting to protect the American people against new terrorist attacks,” said Kennedy. “But it is our responsibility to conduct meaningful oversight over the judgments and methods involved.”
National Security Letters
- The FBI’s Secret Scrutiny
This November 2005 Washington Post article describes the “hundred-fold increase” in the use of national security letters, which compel their recipients to disclose records related to a suspected foreign agent. According to reporter Barton Gellman, the increase “coincides with an unannounced decision to deposit all the information they yield into government data banks — and to share those private records widely, in the federal government and beyond.”
- A Review of the Federal Bureau of Investigation’s Use of National Security Letters
Here is the spring 2007 report from the Justice Department’s Office of the Inspector General, which found inconsistent policies across FBI field offices; underreporting of the numbers of national security letters requested; and overuse of an expediting process that undercut the approval process. The report prompted this Senate Judiciary Committee hearing at which FBI Director Robert Mueller testified. For a succinct explanation of the report’s findings, see this FindLaw analysis by Columbia law professor Michael Dorf. [Note: The full report is a pdf file; Adobe Acrobat required.]
- My National Security Letter Gag Order
Shortly after the inspector general’s report was released, The Washington Post published this anonymous op-ed from the recipient of a national security letter. “The letter ordered me to provide sensitive information about one of my clients,” the author, president of a small Internet access and consulting business, writes. “There was no indication that a judge had reviewed or approved the letter, and it turned out that none had. The letter came with a gag provision that prohibited me from telling anyone, including my client, that the FBI was seeking this information. Based on the context of the demand — a context that the FBI still won’t let me discuss publicly — I suspected that the FBI was abusing its power and that the letter sought information to which the FBI was not entitled.”
- National Security Letters Gag Patriot Act Debate
The ACLU has filed two lawsuits challenging the gag order related to the national security letter provisions of the Patriot Act. On this page is more information about its suits, as well as an example (pdf) of what an NSL looks like, and a November 2001 internal memo (pdf) outlining FBI policy for using NSLs.
The Foreign Intelligence Surveillance Act
- The Administration’s Proposed Revisions to FISA
This April 2007 Justice Department fact sheet outlines what the Bush administration considers “long overdue” changes to FISA, including: updating the definition of electronic surveillance to make it “technology neutral”; updating the definition of an agent of a foreign power to include individuals who may possess “significant intelligence information, but whose relationship to a foreign power is unclear”; and streamlining the FISA process. Two of its proposed revisions have raised questions: a measure to protect telecoms from privacy lawsuits, and a proposal to “focus FISA on people located in the United States.” Questions about the latter were raised in a rare open meeting of the Senate Intelligence Committee on May 1, 2007.
- FISA Orders 1979-2005
This chart, compiled by the Electronic Privacy Information Center, breaks down the number of FISA applications presented, approved and rejected since 1979. These numbers are taken from annual reports filed to Congress by the Justice Department; the original reports (since 1996) are available on the DOJ Web site.
Privacy Advocacy Organizations
- The Electronic Frontier Foundation
EFF’s mission is “to champion the public interest in every critical battle affecting digital rights.” It has filed a lawsuit against AT&T for its alleged collaboration with the National Security Agency; the lawsuit is currently in front of the 9th Circuit Court, and EFF has collected documents and court filings here. (See FRONTLINE’s interview with former AT&T employee Mark Klein for more on this issue.)
- The Electronic Privacy Information Center
EPIC is a public policy research center dedicated to issues involving civil liberties, privacy and the First Amendment. It has a section of resources dedicated to domestic surveillance as well as the A’s to Z’s of Privacy and a chart with a breakdown of the number of FISA applications presented, approved and rejected since 1979.
Run by EPIC and Privacy International, a human rights organization based in London, Privacy.org is a compendium of news and action alerts related to privacy issues.
- Privacy and Civil Liberties Oversight Board
Following up on a recommendation in the 9/11 Commission report, the Bush administration established this board to advise the executive branch on privacy. It is also “specifically charged” with reviewing information-sharing practices related to terrorism to determine whether civil liberties and privacy are being “appropriately” protected. The board issued its first annual report to Congress on April 23, 2007; according to the report, the board was briefed on the president’s terrorist surveillance program and found “no evidence or reasonable basis to believe that the privacy and civil liberties of U.S. persons are improperly threatened or impinged.” However, on May 15, 2007, The Washington Post reported that one of the panel’s five members had resigned in protest over revisions to the report requested by the Bush administration. According to the Post, “One section deleted by the administration would have divulged that the Office of the Director of National Intelligence’s civil liberties protection officer had ‘conducted reviews of the potentially problematic programs and has established procedures’ for intelligence officials to file complaints about possible civil liberties and privacy abuses.”
- American Civil Liberties Union
Here is the section of the ACLU’s Web site related to privacy and technology issues. It includes a section on surveillance & wiretapping with fact sheets, legislative and legal documents, and reports.