The NSA and Me - by James Bamford

[coderman]

"More than three decades later, the NSA, like a mom-and-pop operation
that has exploded into a global industry, now employs sweeping powers
of surveillance that Frank Church could scarcely have imagined in the
days of wired phones and clunky typewriters. At the same time, the
Senate intelligence committee he once chaired has done an about face,
protecting the agencies from the public rather than the public from
the agencies..."

---

The NSA and Me - by James Bamford

https://firstlook.org/theintercept/2014/10/02/the-nsa-and-me/

The tone of the answering machine message was routine, like a reminder
for a dental appointment. But there was also an undercurrent of
urgency. “Please call me back,” the voice said. “It’s important.”

What worried me was who was calling: a senior attorney with the
Justice Department’s secretive Office of Intelligence Policy and
Review. By the time I hung up the payphone at a little coffee shop in
Cambridge, Mass., and wandered back to my table, strewn with yellow
legal pads and dog-eared documents, I had guessed what he was after:
my copy of the Justice Department’s top-secret criminal file on the
National Security Agency. Only two copies of the original were ever
made. Now I had to find a way to get it out of the country—fast.

It was July 8, 1981, a broiling Wednesday in Harvard Square, and I was
in a quiet corner of the Algiers Coffee House on Brattle Street. A
cool, souk-like basement room, with the piney aroma of frankincense,
it made for a perfect hideout to sort through documents, jot down
notes, and pore over stacks of newspapers while sipping bottomless
cups of Arabic coffee and espresso the color of dark chocolate.

For several years I had been working on my first book, The Puzzle
Palace, which provided the first in-depth look at the National
Security Agency. The deeper I dug, the more troubled I became. Not
only did the classified file from the Justice Department accuse the
NSA of systematically breaking the law by eavesdropping on American
citizens, it concluded that it was impossible to prosecute those
running the agency because of the enormous secrecy that enveloped it.
Worse, the file made clear that the NSA itself was effectively beyond
the law—allowed to bypass statutes passed by Congress and follow its
own super-classified charter, what the agency called a “top-secret
birth certificate” drawn up by the White House decades earlier.

Knowing the potential for such an unregulated agency to go rogue, I
went on to write two more books about the NSA, Body of Secrets, in
2001, and The Shadow Factory, in 2008. My goal was to draw attention
to the dangers the agency posed if it is not closely watched and
controlled—dangers that would be laid bare in stark detail by Edward
Snowden years later.



“You Want to Hear Something Interesting?”

The idea of writing a book about the NSA had occurred to me several
years earlier. During the war in Vietnam, I spent three years in the
Navy at Pacific Fleet Headquarters in Hawaii. It was a nice venue a
long way from the bloody battlefields, where the only dangers were
rogue surfboards on Waikiki Beach and bar fights on Hotel Street.
Assigned to an NSA unit, I experienced the war vicariously: One of my
jobs every morning was reading a foot-high stack of overnight messages
from the war zone, mostly NSA reports classified top secret and
higher, and passing them on to whichever project officer had
responsibility to simply read or take action.

Later, in law school and running low on cash, I decided to rejoin the
Naval Reserve to help pay for living expenses. The Navy was very
accommodating, allowing me to pick not only when I wanted to do my two
weeks of active duty, but also where. So I decided to request two
weeks in October 1974, which coincided with a school break. And for
location I chose Puerto Rico—a nice warm island far from chilly
Boston. Although I had NSA clearances, I had never worked at an actual
NSA intercept site. Nevertheless, the Navy decided to send me down to
Sabana Seca, one of the agency’s key listening posts, which focused on
Cuba, the Caribbean, and Central and South America.

Like most listening posts at the time, Sabana Seca consisted of a
gigantic circular antenna about half a mile wide and a hundred or so
feet high, an odd structure that closely resembled its nickname—the
“elephant cage.” Known as a Wullenweber antenna, it was used not only
to intercept communications, but also to assist in triangulating where
the transmissions were coming from. At the center of the elephant cage
was the operations building, a windowless, two-story, gray cement
Rubik’s cube. Inside were tall racks of receivers with blinking
lights, big black dials, oval-shaped gauges, and silver toggle
switches facing rows of earphone-clad men and women in blue Navy-issue
dungarees.

Unfamiliar with the technology and unable to speak more than
rudimentary Spanish, I spent my two weeks pushing a few papers and
staying out of the way, hoping to avoid work as much as possible. But
one day an intercept operator with whom I had downed a few beers at
the base club the night before spotted me and waved me over. “You want
to hear something interesting?” he said as he took off his earphones.
I thanked him but explained I didn’t speak Spanish. “No, no,” he said,
“It’s English.” So I put on the earphones and listened in to what
appeared to be several Americans carrying on a conversation. I only
heard a few snippets, not enough to get a sense of the topic, but I
was surprised. “Interesting,” I said. “You get many Americans
speaking?” He said they did on certain channels they were assigned to
target. I thanked him, said something about getting another beer later
that night, and wandered off to watch some other intercept operators
pulling in long reams of blue teletype paper covered in Spanish.

It was only when I was back in Boston, where I had a part-time job as
a student prosecutor with the Suffolk County district attorney’s
office, that the conversation came back to me. I was working on a case
in which the topic of a wiretap came up, and there was a long
discussion about procedures for a warrant. I suddenly wondered what
legal authority the intercept operators at Sabana Seca had to target
American conversations. I did a little research in the law library,
but could find nothing that gave the military any powers for
warrantless eavesdropping on Americans.

A few weeks later, just before Christmas, The New York Times broke a
series of stories by Seymour Hersh outlining Operation Chaos, the
program by which the FBI, CIA, and other intelligence agencies
targeted U.S. citizens involved in anti-war protests. The articles
caused widespread public outrage, followed by a high-profile
congressional investigation led by Senator Frank Church. I felt
certain that whatever it was I saw—and heard—in Sabana Seca would soon
be discovered.

But during the summer of 1975, as reports began leaking out from the
Church Committee, I was surprised to learn that the NSA was claiming
that it had shut down all of its questionable operations a year and a
half earlier. Surprised because I knew the eavesdropping on Americans
had continued at least into the prior fall, and may have still been
going on. After thinking for a day or so about the potential
consequences of blowing the whistle on the NSA—I was still in the
Naval Reserve, still attending drills one weekend a month, and still
sworn to secrecy with an active NSA clearance—I nevertheless decided
to call the Church Committee.

It was July 1, and at first the staffer with whom I spoke sounded
skeptical—someone calling out of the blue and accusing the NSA of
lying. But after I mentioned my work at Sabana Seca, he asked how soon
I could come down to Washington to testify. At 8:40 the next morning,
I boarded American Airlines Flight 605 and took seat 13A—an unlucky
number, I thought. It would be the first of numerous trips. The
committee agreed to keep my name confidential and allowed me to
testify in executive session in Sen. Church’s private office. Soon
after, committee staffers flew down to Sabana Seca for a surprise
inspection. Surprise, indeed. They were shocked to discover the
program had never been shut down, despite the NSA’s claims.



“Just Because the Information Has Been Published Doesn’t Mean it
Should No Longer Be Classified”

The discovery that the NSA had been lying to the Church Committee
shocked me. But it also gave me the idea to write the first book about
the agency. As more and more revelations came out about the NSA’s
widespread, illegal eavesdropping activities, I found myself filled
with questions. Where did the agency come from? What did it do? How
did it operate? Who was watching it? In the summer of 1979, after a
year of research, I submitted a proposal to Houghton Mifflin for The
Puzzle Palace, and within a few months was awarded a book contract. It
was the start of wild ride, taking on an agency so secret that even
New Jersey Sen. Bill Bradley told me, at the time, that he had never
heard of it.

I soon learned that there was one major advantage to being first: The
NSA had grown so confident that no one would ever dare to write about
it that it had let its guard down. I would occasionally drive up to
the agency, park in the executive parking lot, walk in the front door
to the lobby, get some coffee and have a seat. All around me were
employees from the CIA and foreign intelligence agencies, all waiting
to be processed for their NSA visitor’s badge. As I read my paper and
sipped my coffee, I quietly listened to them chat away about signals
intelligence operations, new listening posts, cooperative agreements,
and a host of other topics. No one ever asked who I was or why I was
there. In the parking lot, I copied the license plate numbers of the
dozen cars parked closest to the front entrance, then ran the numbers
at the registry of motor vehicles. The result was a Who’s Who of the
NSA’s leadership, as well as the liaison officers from America’s
so-called Five Eyes surveillance partners: England, Canada, Australia,
and New Zealand.

By the summer of 1981, I had also won several significant legal
battles with the agency. As a result of an out-of-court settlement,
the NSA was forced to give me a tour of the agency, detail the entire
structure of its internal organization to me, and provide me
interviews with senior officials. Even though the agency was virtually
immune from the Freedom of Information Act, I managed to find a
loophole that allowed me access to more than 6,000 pages of internal
documents. I even worked out an agreement whereby they would provide
me with an office in the agency for a week to go through the 6,000
pages. But then the NSA got its revenge—when they handed me the 6,000
pages, they were all out of order, as if they had been shuffled like a
new deck of cards. Nothing in the Freedom of Information Act, it turns
out, requires collation. The hostility became so intense that the
director, Adm. Bobby Ray Inman, accused me of using a “hostage
approach” in my battle to force the agency to give me documents and
interviews.

But the NSA knew nothing about one of my biggest finds, which took
place on the campus of the Virginia Military Institute. Nicknamed “the
West Point of the South,” VMI housed the papers of William F.
Friedman, a founder of both the NSA and of American cryptology. The
NSA’s own auditorium is named after him. Yet Friedman had soured on
the agency by the time he retired, and deliberately left his papers to
a research library at VMI to get them as far away from the NSA as
possible.

After Friedman’s death, and without his permission, agency officials
traveled to the library, pulled out hundreds of his personal letters,
and ordered them locked away in a secure vault. When I discovered what
the NSA had done, I persuaded the library’s archivist to give me
access to the letters, all of which were unclassified. Many were
embarrassingly critical of the agency, describing its enormous
paranoia and obsession with secrecy. Others contained clues to a
secret trips that Friedman had made to Switzerland, where he helped
the agency gain backdoor access into encryption systems that a Swiss
company was selling to foreign countries.

I also discovered that a former NSA director, Lt. Gen. Marshall
Carter, had left his papers – including reams of unclassified
documents from his NSA office – to the same research library at VMI.
They included personal, handwritten correspondence from Carter’s
British counterpart about listening posts, cooperative agreements, and
other sensitive topics. Later, Carter gave me a long and detailed
interview about the NSA. The agency knew nothing about either the
documents or the interview.

Following the publication of my book, the NSA raided the research
library, stamped many of the Friedman documents secret, and ordered
them put back into the vault. “Just because information has been
published,” NSA director Lincoln Faurer explained to The New York
Times, “doesn’t mean it should no longer be classified.” Faurer also
flew to Colorado, where Gen. Carter was living in retirement, met with
him at the NSA listening post at Buckley Air Force Base, and
threatened him with prosecution if he ever gave another interview or
allowed anyone else access to his papers.



“Prima Facie Questions of Criminality”

But my biggest battle with the NSA came before my book was even
published. Without the agency’s knowledge, I had obtained the criminal
file that the Justice Department had opened on the NSA. Marked as Top
Secret, the file was so sensitive that only two original copies
existed. Never before or since has an entire agency been the subject
of a criminal investigation. Senior officials at the NSA were even
read their Miranda rights.

The secret investigation grew out of the final report by the
Rockefeller Commission, a panel that had been set up by President
Gerald Ford to parallel the Church Committee. Issued on June 6, 1975,
the report noted that both the NSA and CIA had engaged in questionable
and possibly illegal electronic surveillance. As a result, Attorney
General Edward Levi established a secret internal task force to look
into the potential for criminal prosecution. Focusing particularly on
NSA, the task force probed more deeply into domestic eavesdropping
than any part of the executive branch had ever done before.

I had heard rumors from several sources about such a probe, so I
thought it would be worth requesting a copy of the file under FOIA.
Nevertheless, I was surprised when the documents, with relatively few
redactions, turned up at my door 10 months later. They included a
lengthy, detailed “Report on Inquiry into CIA-Related Surveillance
Activities” that laid out the investigation in stark detail, as well
as a shorter draft “prosecutive summary” evaluating the potential for
criminal prosecution. I was shocked that the Justice Department had
released them to me without notifying the NSA. An official at Justice
later told me that it was standard procedure not to notify the object
of a criminal investigation (think John Gotti) once it is completed
and requested under FOIA.

It turned out that just as with its investigations into organized
crime, the Justice Department had received little cooperation from the
potential criminal defendant – in this case, the NSA. Noting that the
attitude of agency officials “ranged from circumspection to wariness,”
the file made clear that the NSA had stonewalled investigators at
every step. “One typically had to ask the right question to elicit the
right answer or document,” an attorney for the Justice Department
reported. “It is likely, therefore, that we had insufficient
information on occasion to frame the ‘magic’ question.”

But the agency’s obstructionism didn’t prevent the Justice Department
from finding evidence of serious wrongdoing. The draft prosecutive
summary of the Justice Department’s investigative task force, dated
March 4, 1977, and classified top secret detailed 23 categories of
questionable eavesdropping operations. Five of the illegal activities
were immune from prosecution because the statute of limitations had
passed, and seven were found to “clearly possess no prosecutive
potential.” The rest, however, were fair game for criminal
prosecution. Discussing the agency’s Operation Minaret, for example,
the full report concluded: “This electronic surveillance activity
presents prima facie questions of criminality and is well within the
limitations period.”

The prosecutive summary had been sent to Attorney General Benjamin
Civiletti for further action. But any attempt to prosecute top
officials of America’s most secret agency, the file warned, would
almost certainly be met by finger-pointing and scapegoating. “There is
likely to be much ‘buck-passing’ from subordinate to superior, agency
to agency, agency to board or committee, board or committee to the
President, and from the living to the dead,” the report cautioned.

In addition, calling the crimes “an international cause célèbre
involving fundamental constitutional rights of United States
citizens,” the task force pointed to the likelihood that the NSA would
put political pressure on anyone who dared to testify against it.
What’s more, the report added, defense attorneys for senior NSA
officials would likely subpoena “every tenuously involved government
official and former official” to establish that the illegal operations
had been authorized from on high. “While the high office of
prospective defense witnesses should not enter into the prosecutive
decision,” the report noted, “the confusion, obfuscation, and surprise
testimony which might result cannot be ignored.”

The report’s prosecutive summary also pointed to the NSA’s top-secret
“charter” issued by the Executive Branch, which exempts the agency
from legal restraints placed on the rest of the government. “Orders,
directives, policies, or recommendations of any authority of the
Executive branch relating to the collection . . . of intelligence,”
the charter reads, “shall not be applicable to Communications
Intelligence activities, unless specifically so stated.” This
so-called “birth certificate,” the Justice Department report
concluded, meant the NSA did not have to follow any restrictions
placed on electronic surveillance “unless it was expressly directed to
do so.” In short, the report asked, how can you prosecute an agency
that is above the law?

If the first shock to top officials at the NSA was the discovery that
they were being investigated as potential criminals, the second shock
was that I had a copy of the top secret file on the investigation.
When the NSA discovered that the file was in my possession, director
Bobby Inman wrote to the attorney general informing him that the
documents contained classified information and should never have been
handed over to me. But Civiletti, apparently believing that the file
had been properly reviewed and declassified, ignored Inman’s protest.

Then, on January 20, 1981, Ronald Reagan was sworn into office. At the
Justice Department, Civiletti was replaced by a new attorney general
with a much more accommodating attitude when it came to the NSA:
William French Smith.

A few months later, while I was working on a chapter of my book that
dealt with the Five Eyes partnership, I sent a letter to George Gapp,
the senior liaison officer from GCHQ, the NSA’s British counterpart.
In the letter, I noted that documents released to me by the Justice
Department implicated his agency in Operation Minaret, the illegal NSA
program directed against American citizens. I asked whether he knew of
GCHQ’s involvement in the operation and whether the agency was
currently engaged in any similar activities in the United States.

The letter apparently set off a firestorm, both at the NSA and GCHQ.
Lt. Gen. Faurer, who had replaced Inman as director, sent a letter to
the new attorney general again pointing out that the documents in my
possession contained top-secret material. Considering that they
accused his agency of being a criminal enterprise, they were also
embarrassing to the NSA, and potentially explosive. The decision was
made to try to get them back from me before the publication of my
book.

Thus the answering machine message I heard on that steamy day in
Cambridge, while I was quietly working away at a back table in the
Algiers Coffee House. The call was from Gerald Schroeder, a senior
attorney with the Justice Department. When I called him back, he asked
whether we could meet in Washington to discuss the file that had been
released to me by his own department. The Reagan Justice Department,
it seemed, now wanted to reverse the decision of the Carter Justice
Department and get the documents back.

Long before the arrival of the internet, and the ability to transfer
documents at the tap of a finger, I was very concerned about what the
agency might do to retrieve the physical copy of the file in my
possession. Years before, when David Kahn had written his monumental
history of cryptology, the agency had considered placing him under
surveillance and conducting a “surreptitious entry” into his Long
Island home to steal the manuscript prior to publication. Decades
earlier, after Herbert Yardley wrote about the Black Chamber, the
predecessor to NSA, the Justice Department actually did steal the
manuscript for his second book, preventing it from ever being
published.

My first thought was to quickly make a duplicate of the file and get
the copy out of the country. That would protect the documents not only
from theft, but also from any court order prohibiting me from
revealing their contents. With a copy beyond the jurisdiction of U.S.
courts, a foreign newspaper could always publish the documents.

I called a close friend who worked for the Insight Team, the
investigative unit of London’s Sunday Times. She agreed to help. It
turned out that an American journalist she knew was flying from Boston
to London that night, and she quickly arranged for him to take the
documents with him and give them to her to hide.

That night I met the journalist on a dark Boston street corner and
passed him a package, with the understanding that I was not to tell
him was it contained. He wanted as little information as possible, in
case he was questioned later. Early the next morning, my friend at the
Sunday Times called from London with a code indicating that all was
well and that the documents were in a secure place.

With the documents safely beyond the reach of the Justice Department,
I next turned to my next problem – finding an attorney to represent
me. With the advance on my book totaling $7,500, spread over three
years, I was in no position to seek out a white-shoe law firm on
Beacon Hill. Instead, I called the ACLU’s Center for National Security
Studies and explained my problem. They immediately put me in touch
with Mark Lynch, a staff attorney at the center who had considerable
experience going up against intelligence agencies, including the NSA.
Lynch agreed to represent me.

On July 23, two weeks after I had received the phone call at the
coffee shop, Lynch and I met with Schroeder for an hour and a half in
the conference room of the center, a cluster of rooms in the stately
Stewart Mott house on Capitol Hill. Schroeder began by insisting that
the two documents had been released to me “by mistake.” The NSA and
the CIA had determined that they contained information that was still
classified, he said, and the Justice Department would like me to
return them.

I politely informed Schroeder that the documents had been in my
possession for more than two years, that material from them was
already incorporated into my manuscript, and that the Carter
administration had spent 10 months reviewing them before releasing the
documents to me. There had been no mistake. In addition, because the
documents raised questions about criminal activities by the NSA and
CIA, I felt it was important for the public to be informed. In the
end, we agreed to another meeting – but this time I insisted that
since I had traveled to Washington for the first meeting, they would
come to Boston for the next one.

The second meeting took place on August 14, in the editorial
conference room of my publisher, Houghton Mifflin, on Beacon Hill.
This time, the government dispensed with any attempt at politeness.
Accompanying Schroeder were the NSA’s general counsel, Daniel
Schwartz, and the agency’s director of policy, Eugene Yeates. They
immediately began by interrogating me. How many copies of the document
I had made? Whom I had given them to? Where were the documents now
located? I responded that none of those questions were on the agenda;
since my attorney could not be present, we had agreed in advance that
the meeting was simply to allow them to explain the government’s
position. Any questions, I said, would have to go through Mark Lynch.
I pointed to the phone.

After placing a call to Lynch, Schroeder brought up the possibility of
using the espionage statue to force me to return the documents. Lynch
immediately asked to speak with me privately.

Once the three officials left the room, Lynch expressed worry over the
way the meeting was going. The officials could have a subpoena or a
restraining order or a warrant for my arrest in their pocket, he said.
He advised me to put down the receiver, call Schroeder to the phone,
leave the room – and keep walking. To this day, I still have no idea
how long the three officials waited for me to return before finding
their way out of the publishing house and back to Washington.

The fight quickly escalated. On September 24, after we informed
Schroeder that I was going to use the documents in my book and that
all further discussions would be pointless, I received a registered
letter. “You are currently in possession of classified information
that requires protection against unauthorized disclosure,” Schroeder
wrote. “Under the circumstances, I have no choice but to demand that
you return the two documents . . . Of course, you will have a
continuing obligation not to publish or communicate the information.”
To emphasize the point, on November 27 the Justice Department sent my
attorney a letter stating that “there should be no misunderstanding of
the Government’s position that Mr. Bamford holds information that is
currently and properly classified” and that failure to return the
documents could force federal prosecutors to resort to an unnamed
“post-publication judicial remedy.”

Despite the threats, I refused to alter my manuscript or return the
documents. Instead, we argued that according to Executive Order 12065,
“classification may not be restored to documents already declassified
and released to the public” under the Freedom of Information Act. That
prompted the drama to move all the way up to the White House. On April
2, 1982, President Reagan signed a new executive order on secrecy that
overturned the earlier one and granted him the authority to
“reclassify information previously declassified and disclosed.”

We responded by citing the legal principal of ex post facto, arguing
that even if the new executive order was legal, Reagan could not
retroactively enforce it against me. The Puzzle Palace was published
on schedule, in September 1982, with no deletions or alterations to
the text. And ever since then, the NSA’s criminal file – still
officially top secret, according to the NSA – has remained on my
bookshelf.



Wrongdoing Masquerading as Patriotism

More than three decades later, the NSA, like a mom-and-pop operation
that has exploded into a global industry, now employs sweeping powers
of surveillance that Frank Church could scarcely have imagined in the
days of wired phones and clunky typewriters. At the same time, the
Senate intelligence committee he once chaired has done an about face,
protecting the agencies from the public rather than the public from
the agencies.

It is a dangerous combination – one the Church Committee warned of
long ago. “The potential for abuse is awesome,” the committee
observed, especially when “checks and balances designed … to assure
accountability have not been applied.” As the committee presciently
noted in its report, “Intelligence collection programs naturally
generate ever-increasing demands for new data.”

For proof, one need only look at the NSA’s ever-expanding array of
surveillance techniques. The agency’s metadata collection program now
targets everyone in the country old enough to hold a phone. The
gargantuan data storage facility it has built in Utah may eventually
hold zettabytes (1,000,000,000,000,000,000,000 bytes) of information.
And the massive supercomputer that the NSA is secretly building in Oak
Ridge, Tennessee, will search through it all at exaflop
(1,000,000,000,000,000,000 operations per second) speeds.

Without adequate oversight, or penalties for abuse, the only
protection that citizens have comes not from Congress or the courts,
but from whistleblowers. As one myself, albeit in the most minor
capacity, I understand what motivates someone to expose wrongdoing
masquerading as patriotism. There is no graduate school for
whistleblowing and no handbook for whistleblowers. It’s an imperfect
science, and whistleblowers learn from the mistakes of their
predecessors. Edward Snowden, Chelsea Manning, Tom Drake, Bill Binney
and Kirk Wiebe all came from different backgrounds and worked in
different fields. None joined the intelligence community to become a
whistleblower, but each was driven by unchecked government abuse to
tell the public what they knew to be true.

The solution is not to jail the whistleblowers, or to question the
patriotism of those who tell their stories, but to do what Attorney
General Edward Levi courageously attempted to do more than a third of
a century ago – to have the criminal division of the Justice
Department conduct a thorough investigation, and then to prosecute any
member of the intelligence community who has broken the law, whether
by illegally spying on Americans or by lying to Congress.

I would be happy to lend my copy of the NSA’s criminal file to
Attorney General Eric Holder, if he would like to see how to begin. Or
he can read it here.