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<HTML>
<HEAD>
<TITLE>The National Security Agency and Fourth Amendment Rights</TITLE>
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<P ALIGN=Left>
27 June 1999<BR>
Source: Hardcopy of the Senate Report. Thanks to DC.
<P ALIGN=Left>
This document is provided as background for the current dispute between US
Representative Porter Goss, Chairman&nbsp;of the House Permanent Select Committee
on Intelligence,&nbsp;and the National Security Agency:
<A HREF="http://jya.com/nsa-clash.htm">http://jya.com/nsa-clash.htm</A>.
And for public debate on NSA's Echelon and other electronic interception
programs:
<A HREF="http://jya.com/crypto.htm#Echelon">http://jya.com/crypto.htm</A>.
<P ALIGN=Center>
<HR>
<BR>
<H3 ALIGN=Center>
<BIG>INTELLIGENCE ACTIVITIES <BR>
</BIG>SENATE RESOLUTION 21
</H3>
<P ALIGN=Center>
________________________________________________________________<BR>
________________________________________________________________<BR>
<BR>
<H2 ALIGN=Center>
HEARINGS
</H2>
<P ALIGN=Center>
BEFORE THE
<H2 ALIGN=Center>
SELECT COMMITTEE TO STUDY<BR>
GOVERNMENTAL OPERATIONS WITH<BR>
RESPECT TO INTELLIGENCE ACTIVITIES
</H2>
<P ALIGN=Center>
OF THE
<H2 ALIGN=Center>
UNITED STATES SENATE
</H2>
<P ALIGN=Center>
NINETY-FOUR CONGRESS
<P ALIGN=Center>
FIRST SESSION
<P ALIGN=Center>
_______________
<H3 ALIGN=Center>
VOLUME 5
</H3>
<P ALIGN=Center>
_______________
<H3 ALIGN=Center>
THE NATIONAL SECURITY AGENCY AND FOURTH<BR>
AMENDMENT RIGHTS
</H3>
<P ALIGN=Center>
OCTOBER 29 AND NOVEMBER 6, 1975 <BR wp="br1">
<BR wp="br2">
<P ALIGN=Center>
Printed for the use of the Select Committee To Study Governmental<BR>
Operations With Respect to Intelligence Activities
<P ALIGN=Center>
U.S. GOVERNMENT PRINTING OFFICE
<P ALIGN=Center>
WASHINGTON: 1976
<P ALIGN=Left>
<SMALL>67-252</SMALL>
<P ALIGN=Center>
________________________________________________________________
<P ALIGN=Center>
<SMALL>For sale by the Superintendent of Documents, U.S. Government Printing
Office</SMALL>
<P ALIGN=Center>
<SMALL>Washington, D.C. 20402 - Price $2.30<BR>
</SMALL>
<P ALIGN=Center>
<HR>
<P>
<CENTER>
<TABLE CELLPADDING="12" ALIGN="Center">
<TR>
<TD COLSPAN=2><P ALIGN=Center>
SENATE SELECT COMMITTEE TO STUDY GOVERNMENTAL OPERATIONS WITH<BR>
RESPECT TO INTELLIGENCE ACTIVITIES</TD>
</TR>
<TR>
<TD COLSPAN=2><P ALIGN=Center>
FRANK CHURCH, Idaho, <I>Chairman</I><BR>
JOHN G. TOWER, Texas, <I>Vice Chairman </I></TD>
</TR>
<TR VALIGN="Top">
<TD>PHILIP A. HART, Michigan<BR>
WALTER MONDALE, Minnesota<BR>
WALTER D. HUDDLESTON, Kentucky<BR>
ROBERT MORGAN, North Carolina<BR>
GARY HART, Colorado</TD>
<TD>HOWARD H. BAKER, JR.; Tennessee<BR>
BARRY GOLDWATER, Arizona<BR>
CHARLES McC. MATHIAS, JR., Maryland<BR>
RICHARD SCHWEIKER, Pennsylvania</TD>
</TR>
<TR>
<TD COLSPAN=2><P ALIGN=Center>
WILLIAM G. MILLER, <I>Staff Director</I><BR>
FREDERICK A. O. SCHWARZ, Jr., <I>Chief Counsel</I><BR>
CURTIS R. SMOTHERS, <I>Counsel to the Minority</I><BR>
AUDREY HATRY, <I>Clerk of the Committee </I></TD>
</TR>
</TABLE>
</CENTER>
<P>
<P ALIGN=Center>
(II) <BR wp="br1">
<BR wp="br2">
<P>
<HR>
<P>
<TABLE CELLPADDING="12">
<TR>
<TD COLSPAN=2><H3>
<P ALIGN=Center>
CONTENTS<BR>
_________
</H3>
</TD>
</TR>
<TR>
<TD COLSPAN=2><P ALIGN=Center>
HEARING DAYS</TD>
</TR>
<TR>
<TD></TD>
<TD><P ALIGN=Right>
Page</TD>
</TR>
<TR>
<TD>Wednesday, October 29, 1975<BR>
Thursday, November 6, 1975</TD>
<TD><P ALIGN=Right>
1<BR>
57</TD>
</TR>
<TR>
<TD COLSPAN=2><P ALIGN=Center>
LIST OF WITNESSES
<P ALIGN=Center>
WEDNESDAY, OCTOBER 29, 1975</TD>
</TR>
<TR VALIGN="Bottom">
<TD><A HREF="#Allen">Lieutenant General Lew Allen, Jr., Director, National
Security Agency; accompanied by Benson Buffham, Deputy Director, NSA; and
Roy Banner, General Counsel</A></TD>
<TD><P ALIGN=Right>
5</TD>
</TR>
<TR>
<TD></TD>
<TD></TD>
</TR>
<TR>
<TD COLSPAN=2><P ALIGN=Center>
THURSDAY, NOVEMBER 6, 1975</TD>
</TR>
<TR>
<TD><I>[<A HREF="#Shamrock">Committee debate on SHAMROCK</A>]</I></TD>
<TD></TD>
</TR>
<TR>
<TD><I>[JYA Note: Levi and Heymann testimonies in preparation]</I><BR>
Edward H. Levi, Attorney General of the United States<BR>
Philip B. Heymann, Professor of Law, Harvard Law School</TD>
<TD><P ALIGN=Right>
<BR>
84<BR>
136</TD>
</TR>
<TR>
<TD></TD>
<TD></TD>
</TR>
<TR>
<TD COLSPAN=2><P ALIGN=Center>
HEARINGS EXHIBITS<SUP>1</SUP></TD>
</TR>
<TR>
<TD><A HREF="#Exhibit 1">No. 1</A> -- October 20, 1967 cable from Lieutenant
General William <BR>
Yarborough, ACSI, to Lieutenant General Marshall Carter, Director, NSA</TD>
<TD>145</TD>
</TR>
<TR>
<TD><A HREF="#Exhibit 2">No. 2</A> -- October 21, 1967 cable from Lieutenant
General Marshall Carter,<BR>
Director, NSA to USIB members</TD>
<TD>147</TD>
</TR>
<TR>
<TD><A HREF="#Exhibit 3">No. 3</A> -- July 1, 1969 memo from an Assistant
Director, NSA, establishing<BR>
Project MINARET as a Sensitive SIGINT Operation, and attached <BR>
MINARET Charter</TD>
<TD>149</TD>
</TR>
<TR>
<TD><A HREF="#Exhibit 4">No. 4</A> -- April 10, 1970 memo from John E. Ingersoll,
Director, Bureau of<BR>
Narcotics and Dangerous Drugs, to Director, NSA</TD>
<TD>151</TD>
</TR>
<TR>
<TD><A HREF="#Exhibit 5">No. 5</A> -- January 26, 1971 memo from Vice Admiral
Noel Gayler, Director,<BR>
NSA, to the Secretary of Defense and the Attorney General</TD>
<TD>156</TD>
</TR>
<TR>
<TD><A HREF="#Exhibit 6">No. 6</A> -- September 17, 1973 letter from Lieutenant
General Lew Allen, Jr.,<BR>
Director, NSA, to Clarence M. Kelley, Director, FBI</TD>
<TD>158</TD>
</TR>
<TR>
<TD><A HREF="#Exhibit 7">No. 7</A> -- October 1, 1973 letter from Attorney
General Elliot Richardson<BR>
to Lieutenant General Lew Allen, Jr., Director NSA</TD>
<TD>160</TD>
</TR>
<TR>
<TD><A HREF="#Exhibit 8">No. 8</A> -- October 4, 1973 letter from Lieutenant
General Lew Allen, Jr.,<BR>
Director, NSA, to Attorney General Elliot Richardson</TD>
<TD>162</TD>
</TR>
<TR>
<TD></TD>
<TD></TD>
</TR>
<TR>
<TD COLSPAN=2><P ALIGN=Center>
<A HREF="#Appendix">APPENDIX</A></TD>
</TR>
<TR>
<TD>November 10, 1975 letter from Attorney General Levi to Senator Schweiker
<BR>
concerning discussion of FBI Manual of Instructions</TD>
<TD>164</TD>
</TR>
<TR>
<TD COLSPAN=2><H3>
<P ALIGN=Center>
_________
</H3>
</TD>
</TR>
<TR>
<TD COLSPAN=2><SMALL>1 Under criteria determined by the Committee in consultation
with the White House, the</SMALL> <SMALL>Departments of Defense and Justice,
the National Security Agency and the Federal Bureau of</SMALL>
<SMALL>Investigation, certain materials have been deleted from these exhibits,
which were previously</SMALL> <SMALL>classified, to maintain the integrity
of the internal operating procedures of the agencies involved,</SMALL>
<SMALL>and to protect sensitive communications intelligence sources and methods.
Further deletions</SMALL> <SMALL>were made with respect to protecting the
privacy of certain individuals and groups. </SMALL></TD>
</TR>
</TABLE>
<P>
<BR wp="br1">
<P ALIGN=Center>
(III)
<P>
<P>
<HR>
<P>
<H3>
<P ALIGN=Center>
INTELLIGENCE ACTIVITIES -- THE NATIONAL SECURITY <BR>
AGENCY AND FOURTH AMENDMENT RIGHTS
</H3>
<H3>
<P ALIGN=Center>
___________
</H3>
<P ALIGN=Center>
<BR>
WEDNESDAY, OCTOBER 29, 1975
<P>
U.S. SENATE, <BR>
SELECT COMMITTEE TO STUDY GOVERNMENTAL OPERATIONS<BR>
WITH RESPECT TO INTELLIGENCE ACTIVITIES
<BLOCKQUOTE>
<I>Washington, D.C. </I>
</BLOCKQUOTE>
<P>
The committee met, pursuant to notice, at 10 :13 a.m., in room 318, Russell
Senate Office Building, Senator Frank Church (chairman) presiding.
<P>
Present: Senators Church, Tower, Mondale, Huddleston, Morgan, Hart of Colorado,
Baker, Goldwater, Mathias and Schweiker.
<P>
Also present: William G. Miller, staff director; Frederick A. O. Schwarz,
Jr., chief counsel; Curtis R. Smothers, counsel to the minority.
<P>
The CHAIRMAN. The hearing will please come to order.
<P>
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 in the world.
<P>
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 in 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 or 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.
<P>
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
<P ALIGN=Left>
(1)
<P>
<HR>
<P>
2
<P>
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 ave have planned the format for today's
hearing with great care, so as not to venture beyond our stated objectives.
<P>
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
than 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.
<P>
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 then
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.
<P>
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.
<P>
We have a particular obligation to examine the NSA, in light of its tremendous
potential for abuse. It has the capacity to monitor the private communications
of American citizens without the use of a "bug" or "tap." The interception
of international communications 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 hearing into the Huston plan
demonstrated,
<P>
<HR>
<P>
3
<P>
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 the 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.
<P>
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, ave have seen how these rights have been 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.
<P>
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.
<P>
Senator Tower would like to make an opening statement.
<P>
Senator TOWER. Thank you, Mr. Chairman.
<P>
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.
<P>
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 acknowledged in
the chairman's own opening statement.
<P>
S. Res. 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
<P>
<HR>
<P>
4
<P>
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.
<P>
Even if the risks were minimal -- and I do not believe they are minimal --
the NSA is the wrong target. The real quarry is not 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.
<P>
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
capacity, 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.
<P>
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.
<P>
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.
<P>
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.
<P>
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?
<P>
Senator TOWER. I accept the procedure, and it is totally satisfactory to
me.
<P>
The CHAIRMAN. Very well.
<P>
Now, General Allen has come prepared with his statement, after which, General,
there will be questions from the committee. I wish you would identify those
who will be sitting with you; and if they
<P>
<HR>
<P>
5
<P>
might respond to questions, then I would ask them to stand with you to take
the oath. Would you first identify them, please ?
<P>
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.
<P>
Sir, I suppose -- or at least for our initial purposes -- that I be the only
witness.
<P>
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?
<P>
General ALLEN. I do.
<P>
The CHAIRMAN. Thank you.
<P>
General, I know you have a prepared statement. Will you please proceed with
it at this time.
<P ALIGN=Center>
<B>TESTIMONY OF LT. GEN. LEW ALLEN, JR., DIRECTOR, NATIONAL SECURITY<BR>
AGENCY, ACCOMPANIED BY BENSON BUFFHAM, DEPUTY DIRECTOR, NSA; AND<BR>
ROY BANNER, GENERAL COUNSEL, NSA</B>
<P>
General ALLEN. Mr. Chairman, members of the committee, I recognize the important
responsibility this committee has to investigate the intelligence operations
of the U.S. Government and to determine the need for improvement by legislative
or other means. For several months, involving many thousands of man-hours,
the National Security Agency has, I believe, cooperated with this committee
to provide a thorough information base, including data whose continued secrecy
is most important to our Nation.
<P>
We are now here to discuss in open session certain aspects of an important
and hitherto secret operation of the U.S. Government. I recognize that the
committee is deeply concerned that we protect sensitive and fragile sources
of information. I appreciate the care which this committee and staff have
exercised to protect the sensitive data we have provided.
<P>
I also understand that the committee intends to restrict this open discussion
to certain specific activities and to avoid current foreign intelligence
operations. It may not be possible to discuss all these activities completely
without some risk of damage to continuing foreign intelligence capabilities.
Therefore, I may request some aspects of our discussion be conducted in executive
session where there can be opportunity to continue our full and frank disclosure
to the committee of all the information you require. The committee may then
develop an appropriate public statement. We are therefore here, sir, at your
request, prepared to cooperate in bringing these matters before your committee.
<P>
In the interest of clarity and perspective, I shall first review the purpose
of the National Security Agency and the authorities under which it operates.
Next, I will describe the process by which requirements for information are
levied on NSA by other Government agencies. And finally, I will give a more
specific description of an operation conducted in 1967-73 in response to
external requirements, which I will refer to as "the watch list activity."
This activity
<P>
<HR>
<P>
6
<P>
has been subject to an intensive review by this committee and staff in closed
session.
<P>
Under the authority of the President, the Secretary of Defense has been delegated
responsibility for both providing security of U.S. governmental communications
and seeking intelligence from foreign electrical communications. Both functions
are executed for the Secretary of Defense by the Director, National Security
Agency, through a complex national system which includes the NSA as its nucleus.
It is appropriate for the Secretary of Defense to have these executive agent
responsibilities, since the great majority of the effort to accomplish both
of these missions is applied to the support of the military aspects of the
national security.
<P>
The communications security mission is directed at enhancing the security
of U.S. Government communications whenever needed to protect those communications
from exploitation by foreign governments -- a complex undertaking in today's
advanced electronic world.
<P>
The United States, as part of its effort to produce foreign intelligence,
has intercepted foreign communications, analyzed, and in some cases decoded
these communications to produce such foreign intelligence since the Revolutionary
War. During the Civil War and World War I these communications were often
telegrams sent by wire. In modern times, with the advent of wireless
communications, particular emphasis has been placed by the Government on
the specialized field of intercepting and analyzing communications transmitted
by radio. Since the 1930's, elements of the military establishment have been
assigned tasks to obtain intelligence from foreign radio transmissions.
<P>
In the months preceding Pearl Harbor and throughout World War II, highly
successful accomplishments were made by groups in the Army and the Navy to
intercept and analyze Japanese and German coded radio messages. Admiral Nimitz
is reported as rating its value in the Pacific to the equivalent of another
whole fleet. According to another official report, in the victory in the
Battle of Midway, it would have been impossible to have achieved the
concentration of forces and the tactical surprise without communications
intelligence. A congressional committee in its investigation of Pearl Harbor,
stated that the success of communications intelligence "contributed enormously
to the defeat of the enemy, greatly shortened the war, and saved many thousands
of lives." General George C. Marshall commented that they-- communications
intelligence -- had contributed "greatly to the victories and tremendously
to the savings of American lives."
<P>
Following World War II, the separate military efforts were brought together
and the National Security Agency was formed to focus the Government's efforts.
The purpose was to maintain and improve this source of intelligence which
was considered of vital importance to the national security, to our ability
to wage war, and to the conduct foreign affairs.
<P>
This mission of NSA is directed to foreign intelligence, obtained from foreign
electrical communications and also from other foreign signals such as radars.
Signals are intercepted by many techniques and processed, sorted and analyzed
by procedures which reject inappropriate or unnecessary signals. The foreign
intelligence derived from these signals is then reported to various agencies
of the Government in response to their approved requirements for foreign
intelligence.
<P>
<HR>
<P>
7
<P>
The NSA works very hard at this task and is composed of dedicated, patriotic
citizens, civilian and military, most of whom have dedicated their professional
careers to this important and rewarding job. They are justifiably proud of
their service to their country and fully accept the fact that their combined
remarkable efforts can be appreciated only by those few in Government who
know of their great importance to the United States.
<P>
Congress, in 1933, recognized the importance of communications intelligence
activities and acted to protect the sensitive nature of the information derived
from those activities by passing legislation that is now
<A HREF="http://jya.com/18usc952.txt">18 U.S.C. 952</A>. This statute prohibits
the divulging of the contents of decoded foreign diplomatic messages, or
information about them.
<P>
Later, in 1950, Congress enacted <A HREF="http://jya.com/18usc798.txt">18
U.S.C. 798</A>, which prohibits the unauthorized disclosure, prejudicial
use, or publication of classified information of the government concerning
communications intelligence activities, cryptologic activities, or the results
thereof. It indicates that the President is authorized: (1) to designate
agencies to engage in communications intelligence activities for the United
States; (2) to classify cryptologic documents and information; and (3) to
determine those persons who shall be given access to sensitive cryptologic
documents and information. Further, this law defines the term "communication
intelligence" to mean all procedures and methods used in the interception
of communications and the obtaining of information from such communications
by other than the intended recipients.
<P>
After an intensive review by a panel of distinguished citizens, President
Truman in 1952 acted to reorganize and strengthen communications intelligence
activities. He issued in October 1952 a
<A HREF="http://jya.com/nsa102452.htm">Presidential memorandum</A> outlining
in detail how communications intelligence activities were to be conducted,
designated the Secretary of Defense to be his executive agent in these matters,
directed the establishment of the NSA, and outlined the missions and functions
to be performed by the NSA.
<P>
The Secretary of Defense, pursuant to the congressional authority delegated
to him in section <A HREF="http://jya.com/10usc133.txt">133(d) of title 10
of the United States Code</A>, acted to establish the National Security Agency.
The section of the law cited provides that the Secretary may exercise any
of these duties through persons or organizations of the Department of Defense.
In 1962 a Special Subcommittee on Defense Agencies of the House Armed Services
Committee concluded, after examining the circumstances leading to the creation
of defense agencies, that the Secretary of Defense had the legal authority
to establish the National Security Agency.
<P>
The President's constitutional and statutory authorities to obtain foreign
intelligence through signals intelligence are implemented through National
Security Council and Director of Central Intelligence Directives which govern
the conduct of signals intelligence activities by the executive branch of
the Government.
<P>
In 1959, the Congress enacted <A HREF="http://jya.com/50usc401.txt">Public
Law 86-36 </A>which provides authority to enable the NSA as the principal
agency of the Government responsible for signals intelligence activities,
to function without the disclosure of information which would endanger the
accomplishment of its functions.
<P>
<HR>
<P>
8
<P>
In 1964 Public Law 88-290 was enacted by the Congress to establish a personnel
security system and procedures governing persons employed by the NSA or granted
access to its sensitive cryptologic information. Public Law 88-290 also delegates
authority to the Secretary of Defense to apply these personnel security
procedures to employees and persons granted access to the National Security
Agency's sensitive information. This law underscores the concern of the Congress
regarding the extreme importance of our signals intelligence enterprise and
mandates that the Secretary of Defense, and the Director, National Security
Agency, take measures to achieve security for the activities of the NSA.
<P>
Title 18 U.S.C. 2511(3) provides as follows:
<BLOCKQUOTE>
Nothing contained in this chapter or in Section 605 of the Communications
Act of 1934, <A HREF="http://jya.com/47usc605.txt">47 U.S.C. 605</A>, shall
limit the constitutional power of the President to take such measures as
he deems necessary to protect the nation against actual or potential attack;
or other hostile acts of a foreign power, to obtain foreign intelligence
information deemed essential to the security of the United States or to protect
national security information against foreign intelligence activities.
</BLOCKQUOTE>
<P>
In <I>United States</I> v. <I>Brown</I>, U.S. Court of Appeals, Fifth Circuit,
decided August 22, 1973, the court discussed this provision of the law as
follows:
<BLOCKQUOTE>
The constitutional power of the President is adverted to, although not conferred
by, Congress in Title III of the Omnibus Crime Control and Safe Streets Act
of 1968.
</BLOCKQUOTE>
<P>
While NSA does not look upon section 2511(3) as authority to conduct
communications intelligence, it is our position that nothing in chapter 119
of title 18 affects or governs the conduct of communications intelligence
for the purpose of gathering foreign intelligence.
<P>
Finally, for the past 29 years, Congress has annually appropriated funds
for the operation of the NSA, following hearings before the Armed Services
and Appropriations Committees of both Houses of Congress in which extensive
briefings of the NSA's signals intelligence mission have been conducted.
We appear before both the House and the Senate Defense Appropriations
Subcommittees to discuss and report on the U.S. signals intelligence and
communications security programs, and to justify the budgetary requirements
associated with these programs. We do this in formal executive session, in
which we discuss our activities in whatever detail required by the Congress.
<P>
In considering the fiscal year 1976 total cryptologic budget now before Congress,
I appeared before the Defense Subcommittee of the House Appropriations Committee
on two separate occasions for approximately 7 hours. In addition, I provided
follow-up response to over 100 questions of the subcommittee members and
staff. We also appeared before armed services subcommittees concerned with
authorizing research, development, test and evaluation, construction and
housing programs and also before the appropriations subcommittees on construction
and housing.
<P>
In addition to this testimony, congressional oversight is accomplished in
other ways. Staff members of these subcommittees have periodically visited
the Agency for detailed briefings on specific aspects of our operations.
Members of investigations staff of the House Appropriations Committee recently
conducted an extensive investigation
<P>
<HR>
<P>
9
<P>
of this Agency. The results of this study, which lasted over a year, have
been provided to that committee in a detailed report. Another feature of
congressional review is that since 1955 resident auditors of the General
Accounting Office have been assigned at the Agency to perform on-site audits.
Additional GAO auditors were cleared for access in 1973 and GAO, in addition
to this audit, is initiating a classified review of our automatic data processing
functions. NSA's cooperative efforts in this area were noted by a Senator
in February of this year. In addition, resident auditors of the Office of
Secretary of Defense, Comptroller, conduct indepth management reviews of
our organization.
<P>
A particular aspect of NSA authorities which is pertinent to today's discussion
relates to the definition of foreign communications. Neither the Presidential
directive of 1952 nor the National Security Council directive No. 6 defines
the term foreign communications. The NSA has always confined its activities
to communications involving at least one foreign terminal. This interpretation
is consistent with the definition of foreign communications in the Communications
Act of 1934.
<P>
There is also a directive of the Director of Central Intelligence dealing
with security regulations which employs a definition which excludes
communications between U.S. citizens or entities. While this directive has
not been construed as defining the NSA mission in the same sense as has the
National Security Council directive, in the past this exclusion has usually
been applied and is applied now. However, we will describe a particular activity
in the past when that exclusion was not applied.
<P>
NSA does not now, and with an exception to be described has not in the past
conducted intercept operations for the purpose of obtaining the communications
of U.S. citizens. However, it necessarily occurs that some circuits which
are known to carry foreign communications necessary for foreign intelligence
will also carry personal communications between U.S. citizens, one of whom
is at a foreign location.
<P>
The interception of communications, however it may occur, is conducted in
such a manner as to minimize the unwanted messages. Nevertheless, many unwanted
communications are potentially available for selection. Subsequent processing,
sorting, and selecting for analysis is conducted in accordance with strict
procedures to insure immediate and, wherever possible, automatic rejection
of inappropriate messages. The analysis and reporting is accomplished only
for those messages which meet specified conditions and requirements for foreign
intelligence. It is certainly believed by NSA that our communications
intelligence activities are solely for the purpose of obtaining foreign
intelligence in accordance with the authorities delegated by the President
stemming from his constitutional power to conduct foreign intelligence.
<P>
NSA produces signals intelligence in response to objectives, requirements
and priorities as expressed by the Director of Central Intelligence with
the advice of the U.S. Intelligence Board. There is a separate committee
of the Board which develops the particular requirements against which the
NSA is expected to respond.
<P>
The principal mechanism used by the Board in formulating requirements for
signals intelligence information has been one of listing areas of intelligence
interest and specifying in some detail the signals intelligence
<P>
<HR>
<P>
10
<P>
needed by the various elements of Government. This listing, which was begun
in 1966 and fully implemented in 1970, is intended to provide guidance to
the Director of the National Security Agency, and to the Secretary of Defense,
for programing and operating NSA activities. It is intended as an expression
of realistic and essential requirements for signals intelligence information.
<P>
This process recognizes that a single listing, updated annually, needs to
be supplemented with additional detail and time-sensitive factors, and it
establishes a procedure whereby the USIB agencies can express directly to
the NSA information needs which reasonably amplify requirements approved
by USIB or higher authority.
<P>
In addition, there are established procedures for non-Board members, the
Secret Service, and the BNDD at the time in question, to ask the NSA for
information. The NSA does have operational discretion in responding to
requirements, but we do not generate our own requirements for foreign
intelligence. The Director, NSA is directed to be responsive to the requirements
formulated by the Director of Central Intelligence. However, I clearly must
not respond to any requirements which I feel are not proper.
<P>
In 1975 the USIB signals intelligence requirements process was revised. Under
the new system, all basic requirements for signals intelligence information
on U.S. Government agencies will be reviewed and validated by the Signals
Intelligence Committee of USIB before being levied on the NSA. An exception
is those requirements which are highly time-sensitive; they will continue
to be passed simultaneously to us for action and to USIB for information.
The new system will also attempt to prioritize signals intelligence requirements.
The new requirements process is an improvement in that it creates a formal
mechanism to record all requirements for signals intelligence information
and to establish their relative priorities.
<P>
Now to the subject which the committee asked me to address in some detail
-- the so-called watch list activity of 1967 to 1973.
<P>
The use of lists of words, including individual names, subjects, locations,
et cetera, has long been one of the methods used to sort out information
of foreign intelligence value from that which is not of interest. In the
past such lists have been referred to occasionally as watch lists, because
the lists were used as an aid to watch for foreign activity of reportable
intelligence. interest. However, these lists generally did not contain names
of U.S. citizens or organizations. The activity in question is one in which
U.S. names were used systematically as a basis for selecting messages, including
some between U.S. citizens, when one of the communicants was at a foreign
location.
<P>
The origin of such activity is unclear. During the early sixties, requesting
agencies had asked the NSA to look for reflections in international
communications of certain U.S. citizens traveling to Cuba. Beginning in 1967,
requesting agencies provided names of persons and organizations, some of
whom were U.S. citizens, to the NSA in an effort to obtain information which
was available in foreign communications as a by-product of our normal foreign
intelligence mission.
<P>
The purpose of the lists varied, but all possessed a common thread in which
the NSA was requested to review information available through our usual intercept
sources. The initial purpose was to help determine the existence of foreign
influence on specified activities of
<P>
<HR>
<P>
11
<P>
interest to agencies of the U.S. Government, with emphasis then on Presidential
protection and on civil disturbances occurring throughout the Nation.
<P>
Later, because of other developments, such as widespread national concern
over such criminal activity as drug trafficking and acts of terrorism, both
domestic and international, the emphasis came to include these areas. Thus,
during this period, 1967-73, requirements for which lists were developed
in four basic areas: international drug trafficking; Presidential protection;
acts of terrorism; and possible foreign support or influence on civil
disturbances.
<P>
In the sixties there was Presidential concern voiced over the massive flow
of drugs into our country from outside the United States. Early in President
Nixon's administration, he instructed the CIA to pursue with vigor intelligence
efforts to identify foreign sources of drugs and the foreign organizations
and methods used to introduce illicit drugs into the United States. The BNDD,
the Bureau of Narcotics and Dangerous Drugs, in 1970 asked the NSA to provide
communications intelligence relevant to these foreign aspects, and BNDD provided
watch lists with some U.S. names [<A HREF="#Exhibit 4">exhibit
4</A>].<SUP>1</SUP> International drug trafficking requirements were formally
documented in USIB requirements in August 1971.
<P>
As we all know, during this period there was also heightened concern by the
country and the Secret Service over Presidential protection because of President
Kennedy's assassination. After the Warren Report, requirements lists containing
names of U.S. citizens and organizations were provided to NSA by the Secret
Service in support of their efforts to protect the President and other senior
officials. Such requirements were later incorporated into USIB documentation.
At that time, intelligence derived from foreign communications was regarded
as a valuable tool in support of Executive protection.
<P>
About the same time as the concern over drugs, or shortly thereafter, there
was a committee established by the President to combat international terrorism.
This committee was supported by an interdepartmental working group with USIB
representatives. Requirements to support this effort with communications
intelligence were also incorporated into USIB documentation.
<P>
Now let me put the watch list in perspective regarding its size and the numbers
of names submitted by the various agencies:
<P>
The BNDD submitted a watch list covering their requirements for intelligence
on international narcotics trafficking. On September 8, 1972, President Nixon
summarized the efforts of his administration against drug abuse. The President
stated that he ordered the Central Intelligence Agency, early in his
administration, to mobilize its full resources to fight the international
drug trade. The key priority, the President noted, was to destroy the trafficking
through law enforcement and intelligence efforts. The BNDD list contained
the names of suspected drug traffickers. There were about 450 U.S. individuals
and over 3,000 foreign individuals.
<P>
The Secret Service submitted watch lists covering their requirements for
inteLligence relating to Presidential and Executive protection.
<P>
_______________
<P>
<SMALL>1 See p. 151. </SMALL>
<P>
<HR>
<P>
12
<P>
Public Law 90-331 of June 6, 1968, made it mandatory for Federal agencies
to assist the Secret Service in the performance of its protective duties.
These lists contained names of persons and groups who, in the opinion of
the Secret Service, were potentially a threat to Secret Service protectees,
as well as the names of the protectees themselves. On these lists were about
180 U.S. individuals and groups and about 525 foreign individuals and groups.
<P>
An Army message of October 20, 1967, informed the NSA that Army ACSI, assistant
chief of staff for intelligence, had been designated executive agent by DOD
for civil disturbance matters an requested any available information on foreign
influence over, or control of, civil disturbances in the U.S.
[<A HREF="#Exhibit 1">exhibit 1</A>].<SUP>1</SUP> The Director, NSA, sent
a cable the same day to the DCI and to each USIB member and notified them
of the urgent request from the Army and stated that the NSA would attempt
to obtain communications intelligence regarding foreign control or influence
over certain U.S. individuals and groups [<A HREF="#Exhibit 2">exhibit
2</A>].<SUP>2</SUP>
<P>
The Brownell Committee, whose report led to the creation of NSA stated that
communications intelligence should be provided to the Federal Bureau of
Investigation because of the essential role of the Bureau in the national
security.
<P>
The FBI submitted watch lists concerning their requirements of foreign ties
and support to certain U.S. persons and groups. These lists contained names
of "so-called" extremist persons and groups individuals and groups active
in civil disturbances, and terrorists. The lists contained a maximum of about
1,000 U.S. persons and groups and about 1,700 foreign persons and groups.
<P>
<I>[JYA Note: See omitted <A HREF="#CIA note">CIA note</A> here in Allen's
prepared statement.]</I>
<P>
The DIA submitted a watch list covering their requirements on possible foreign
control of, or influence on, U.S. antiwar activity. The list contained names
of individuals traveling to North Vietnam. There were about 20 U.S. individuals
on this list. DIA is responsible under DOD directives for satisfying the
intelligence requirements of the major components of the DOD and to validate
and assign to NSA requirements for intelligence required by DOD components.
<P>
Between 1967 and 1973 there was a cumulative total of about 450 U.S. names
on the narcotics list, and about 1,200 U.S. names on all other lists combined.
What that amounted to was that at the height of the watch list activity,
there were about 800 U.S. names on the watch list and about one-third of
these 800 were from the narcotics list.
<P>
We estimate that over this 6-year period, 1967-1973, about 2,000 reports
were issued by the NSA on international narcotics trafficking and about 1,900
reports were issued covering the three areas of terrorism, Executive protection
and foreign influence over U.S. groups. This would average about two reports
per day. These reports included some messages&nbsp;between U.S. citizens
with one foreign communicant, but over 90 percent had at least one foreign
communicant and all messages had at least one foreign terminal. Using agencies
did periodically review, and were asked by the NSA to review, their watch
lists to insure inappropriate or unnecessary entries were promptly removed.
<P>
I am not the proper person to ask concerning the value of the product from
these four special efforts. We are aware that a major terrorist
<P>
___________________
<P>
<SMALL>1 See p. 145.<BR>
2 See p. 147.</SMALL>
<P>
<HR>
<P>
13
<P>
act in the United States was prevented. In addition, some large drug shipments
were prevented from entering the United States because of our efforts on
international narcotics trafficking. We have statements from the requesting
agencies in which they have expressed appreciation for the value of the
information which they had received from us. Nonetheless, in my own judgment,
the controls which were placed on the handling of the intelligence were so
restrictive that the value was significantly diminished.
<P>
Now let me address the question of the watch list activity as the NSA saw
it at the time.
<P>
This activity was reviewed by proper authority within NSA and by competent
external authority. This included two former Attorneys General and a former
Secretary of Defense.
<P>
The requirements for information had been approved by officials of the using
agencies and subsequently validated by the United States Intelligence Board.
For example, the Secret Service and BNDD requirements were formally included
in USIB guidance in 1970 and 1971, respectively.
<P>
In the areas of narcotics trafficking, terrorism and requirements related
to the protection of the lives of senior U.S. officials, the emphasis placed
by the President on a strong, coordinated government effort was clearly
understood. There also was no question that there was considerable Presidential
concern and interest in determining the existence and extent of foreign support
to groups fomenting civil disturbances in the United States.
<P>
From 1967 to 1969 the procedure for submitting names was more informal, with
written requests following as the usual practice. Starting in 1969 the procedure
was formalized and the names for watch lists were submitted through channels
in writing [<A HREF="#Exhibit 3">exhibit 3</A>].<SUP>1</SUP> The Director
and Deputy Director of the NSA approved certain categories of subject matter
from customer agencies. and were aware that U.S. individuals and organizations
were being included on watch lists. While they did not review and approve
each individual name there were continuing management reviews at levels below
the Directorate.
<P>
NSA personnel sometimes made analytic amplifications on customer watch list
submissions in order to fulfill certain requirements. For example, when
information was received that a name on the watch list used an alias, the
alias was inserted; or when an address was uncovered of a watch list name,
the address was included. This practice by analysts was done to enhance the
selection process, not to expand the lists.
<P>
The information produced by the watch list activity was, with one exception,
entirely a byproduct of our foreign intelligence mission. All collection
was conducted against international communications with at least one terminal
in a foreign country, and for purposes unrelated to the watch list activity.
That is, the communications were obtained, for example, by monitoring
communications to and from Hanoi.
<P>
All communications had a foreign terminal and the foreign terminal or
communicant, with the one exception to be described, was the initial object
of the communications collection.
<P>
The watch list activity specifically consisted of scanning international
communications already intercepted for other purposes to derive
<P>
____________________
<P>
<SMALL>1 See p. 149. </SMALL>
<P>
<HR>
<P>
14
<P>
information which met watch list requirements. This scanning was accomplished
by using the entries provided to NSA as selection criteria. Once selected,
the messages were analyzed to determine if the information therein met those
requesting agencies' requirements associated with the watch lists. If the
message met the requirement, the information therein was reported to the
requesting agency in writing.
<P>
Now let me discuss for a moment the manner in which intelligence derived
from the watch lists was handled.
<P>
For the period 1967-69, international messages between U.S. citizens and
organizations, selected on the basis of watch list entries and containing
foreign intelligence, were issued for background use only add were hand delivered
to certain requesting agencies. If the U.S. citizen or organization was only
one correspondent of the international communication, it was published as
a normal product report but in a special series to limit distribution on
a strict need-to-know basis.
<P>
Starting in 1969, any messages that fell into the categories of
Presidential/executive protection and foreign influence over U.S. citizens
and groups were treated in an even more&nbsp;restricted fashion. They were
provided for background use only and hand delivered to requesting agencies.
When the requirements to supply intelligence regarding international drug
trafficking in 1970 and international terrorism in 1971 were received,
intelligence on these subjects was handled in a similar manner. This procedure
continued until I terminated the activity in 1973.
<P>
The one instance in which foreign messages were intercepted for specific
watch list purposes was the collection of some telephone calls passed over
international communications facilities between the United States and South
America. The collection was conducted at the specific request of the BNDD
to produce intelligence information on the methods and locations of foreign
narcotics trafficking.
<P>
In addition to our own intercept, CIA was asked by NSA to assist in this
collection. NSA provided to CIA names of individuals from the international
narcotics trafficking watch list. This collection by CIA lasted for approximately
6 months, from late 1972 to ear]y 1973, when CIA stopped because of concern
that the activity exceeded CIA statutory restrictions.
<P>
When the watch list activity began, the NSA and others viewed the effort
as an appropriate part of the foreign intelligence mission. The emphasis
of the President that a concerted national effort was required to combat
these grave problems was clearly expressed.
<P>
The activity was known to higher authorities. kept quite secret, and restrictive
controls were placed on the use of the intelligence. The agencies receiving
the information were clearly instructed that the information could not be
used for prosecutive or evidentiary purposes, and to our knowledge, it was
not used for such purposes.
<P>
It is worth noting that some Government agencies receiving the information
had dual functions. For instance, BNDD was concerned on the one hand with
domestic drug law enforcement activities and on the other hand with the
curtailing of international narcotics trafficking. It would be to the latter
area of responsibility that the NSA delivered its intelligence.
<P>
However, since the intelligence was being reported to some agencies which
did have law enforcement responsibilities, there was growing
<P>
<HR>
<P>
15
<P>
concern that the intelligence could be used for purposes other than foreign
intelligence. To minimize this risk, the material was delivered only to
designated offices in those agencies, and the material was marked and protected
in a special way to limit the number of people involved and to segregate
it from information of broader interest.
<P>
In 1973, concern about the NSA's role in these activities was increased,
first, by concerns that it might not be possible to distinguish definitely
between the purpose for the intelligence gathering which NSA understood was
served by these requirements, and the missions and functions of the departments
or agencies receiving the information, and, second, that requirements from
such agencies were growing, and finally, that new broad discovery procedures
in court cases were coming into use which might lead to disclosure of sensitive
intelligence sources and methods.
<P>
The first action taken was the decision to terminate the activity in support
of BNDD in the summer of 1973. This decision was made because of concern
that it might not be possible to make a clear separation between the requests
for information submitted by BNDD as it pertained to legitimate foreign
intelligence requirements and the law-enforcement responsibility of BNDD.
<P>
CIA had determined in 1973 that it could not support these requests of BNDD
because of statutory restrictions on CIA. The NSA is not subject to the same
sort of restrictions as CIA, but a review of the matter led to a decision
that certain aspects of our support should be discontinued, and in particular
the watch-list activity was stopped.
<P>
NSA did not retain any of the BNDD watch lists or product. It was destroyed
in the fall of 1973, since there seemed no purpose or requirement to retain
it.
<P>
With regard to watch lists submitted by FBI, DIA, and Secret Service, these
matters were discussed with the National Security Agency Counsel and Counsel
for the Department of Defense, and we stopped the distribution of information
in the summer of 1973. In September 1973, I sent a letter to each agency
head requesting him to recertify the requirement with respect to the
appropriateness of the request including a review of that agency's legal
authorities [<A HREF="#Exhibit 6">exhibit 6</A>].<SUP>1</SUP>
<P>
Somewhat later, on October 1, 1973, Attorney. General Richardson wrote me,
indicating that he was concerned with respect to the propriety of requests
for information concerning U.S. citizens which NSA had received from the
FBI and Secret Service [<A HREF="#Exhibit 7">exhibit 7</A>].<SUP>2</SUP>
He wrote the following:
<BLOCKQUOTE>
Until I am able more carefully to assess the effect of <I>Keith</I> and other
Supreme Court decisions concerning electronic surveillance upon your current
practice of disseminating to the FBI and Secret Service information acquired
by you through electronic devices pursuant to requests from the FBI and Secret
Service, it is requested that you immediately curtail the further dissemination
of such information to these agencies.
</BLOCKQUOTE>
<P>
He goes on to say:
<BLOCKQUOTE>
Of course, relevant information required by you in the routine pursuit of
the collection of foreign intelligence may continue to be furnished to
appropriate government agencies.
</BLOCKQUOTE>
<P>
___________________
<P>
<SMALL>1 See p. 158.<BR>
2 See p. 160. </SMALL>
<P>
<HR>
<P ALIGN=Left>
16
<P>
The overall result of these actions was that we stopped accepting watch lists
containing names of U.S. citizens and no information is produced or disseminated
to other agencies using these methods [<A HREF="#Exhibit 8">exhibit
8</A>].<SUP>1</SUP> Thus, the watch list activity which U.S. citizens ceased
operationally in the summer of 1973 and was terminated officially in the
fall of 1973.
<P>
As to the future, the Attorney General's direction is that we may not accept
any requirement based on the names of U.S. citizens unless he has personally
approved such a requirement; and no such approval has been given. Additionally,
directives now in effect in various agencies, including NSA, also preclude
the resumption of such activity.
<P>
[The full statement of Lt. Gen. Lew Allen, Jr. follows:]
<P>
<I>[JYA Note: Allen's prepared statement of eight pages is almost identical
to his testimony above except for locution changes, minor notes, paragraph
formatting and the addition of section titles. <A HREF="#Jump">Jump to
continuation of testimony</A>.]</I> <BR>
<P ALIGN=Center>
<SMALL>PREPARED STATEMENT OF LT. GEN. LEW ALLEN, JR., DIRECTOR, NATIONAL<BR>
SECURITY AGENCY </SMALL>
<P>
<SMALL>Mr. Chairman, Members of the Committee, I recognize the important
responsibility this committee has to investigate the intelligence operations
of the U.S. Government and to determine the need for improvement by legislative
or other means. For several months, involving many thousands of manhours,
the National Security Agency has, I believe, cooperated with this committee
to provide a thorough information base, including data whose continued secrecy
is most important to our nation.</SMALL>
<P>
<SMALL>I am now here to discuss in open session certain aspects of an important
and hitherto secret operation of the U.S. Government. I recognize that the
committee is deeply concerned that we protect sensitive and fragile sources
of information. I appreciate the care which this committee and staff have
exercised to protect the sensitive data we have provided. I also understand
that the committee intends to restrict this open discussion to certain specified
activities and to avoid current foreign intelligence operations. It may not
be possible to discuss all these activities completely without some risk
of damage to continuing foreign intelligence capabilities. Therefore, I may
request some aspects of our discussion be conducted in executive session
where there can be opportunity to continue our full and frank disclosure
to the committee of all the information you require. The committee may then
develop an appropriate public statement. We are therefore here, sir, at your
request, prepared to cooperate in bringing these matters before your
Committee.</SMALL>
<P ALIGN=Center>
<SMALL>WHAT I PROPOSE TO COVER</SMALL>
<P>
<SMALL>In the interest of clarity and perspective, I shall first review the
purpose of the National Security Agency and the authorities under which it
operates. Next, I will describe the process by which requirements for information
are levied on NSA by other Government agencies. And finally, I will give
a more specific description of an operation conducted in 1967-73 in response
to external requirements, which I will refer to as "the watch list activity."
This activity has been subject to an intensive review by this committee and
staff in closed session.</SMALL>
<P ALIGN=Center>
<SMALL>NSA'S MISSION</SMALL>
<P>
<SMALL>Under the authority of the President, the Secretary of Defense has
been delegated responsibility for both providing security of U.S. governmental
communications and seeking intelligence from foreign electrical communications.
Both functions are executed for the Secretary of Defense by the Director,
National Security Agency, through a complex national system which includes
the NSA as its nucleus.</SMALL>
<P>
<SMALL>It is appropriate for the Secretary of Defense to have these executive
agent responsibilities, since the great majority of the effort to accomplish
both of these missions is applied to the support of the military aspects
of the national security.</SMALL>
<P>
<HR>
<P ALIGN=Left>
17
<P>
<SMALL>The communications security mission is directed at enhancing the security
of U.S. Government communications whenever needed to protect those communications
from exploitation by foreign governments -- a complex undertaking in today's
advanced electronic world.</SMALL>
<P>
<SMALL>The United States, as part of its effort to produce foreign intelligence,
has intercepted foreign communications, analyzed, and in some cases decoded
these communications to produce such foreign intelligence since the Revolutionary
War. During the Civil War and World War I these communications were often
telegrams sent by wire.</SMALL>
<P>
<SMALL>In modern times, with the advent of wireless communications, particular
emphasis has been placed by the Government on the &nbsp;specialized field
of intercepting and analyzing communications transmitted by radio. Since
the 1930's, elements of the military establishment have been assigned tasks
to obtain intelligence from foreign radio transmissions. In the months preceding
Pearl Harbor and throughout World War II, highly successful accomplishments
were made by groups in the Army and the Navy to intercept and analyze Japanese
and German coded radio messages. Admiral Nimitz is reported as rating its
value in the Pacific to the equivalent of another whole fleet. According
to another official report, in the victory in the Battle of Midway, it would
have been impossible to have achieved the concentration of forces and the
tactical surprise without communications intelligence. A congressional committee
in its investigation of Pearl Harbor, stated that the success of communications
intelligence "contributed enormously to the defeat of the enemy, greatly
shortened the war, and saved many thousands of lives." General George C.
Marshall commented that they-- communications intelligence -- had contributed
"greatly to the victories and tremendously to the savings of American lives."
Following World War II, the separate military efforts were brought together
and the National Security Agency was formed to focus the Government's efforts.
The purpose was to maintain and improve this source of intelligence which
was considered of vital importance to the national security, to our ability
to wage war, and to the conduct foreign affairs.</SMALL>
<P>
<SMALL>This mission of NSA is directed to foreign intelligence, obtained
from foreign electrical communications and also from other foreign signals
such as radars. Signals are intercepted by many techniques and processed,
sorted and analyzed by procedures which reject inappropriate or unnecessary
signals. The foreign intelligence derived from these signals is then reported
to various agencies of the Government in response to their approved
&nbsp;requirements for foreign intelligence. The NSA works very hard at this
task and is composed of dedicated, patriotic citizens, civilian and military,
most of whom have dedicated their professional careers to this important
and rewarding job. They are justifiably proud of their service to their country
and fully accept the fact that their combined remarkable efforts can be
appreciated only by those few in Government who know of their great importance
to the United States.</SMALL>
<P ALIGN=Center>
<SMALL>NSA AUTHORITIES</SMALL>
<P>
<SMALL>Congress, in 1933, recognized the importance of communications
intelligence activities and acted to protect the sensitive nature of the
information derived from those activities by passing legislation that is
now 18 U.S.C. 952. This statute prohibits the divulging of the contents of
decoded foreign diplomatic messages, or information about them.</SMALL>
<P>
<SMALL>Later, in 1950, Congress enacted 18 U.S.C. 798, which prohibits the
unauthorized disclosure, prejudicial use, or publication of classified
information of the government concerning communications intelligence activities,
cryptologic activities, or the results thereof. It indicates that the President
is authorized: (1) to designate agencies to engage in communications intelligence
activities for the United States; (2) to classify cryptologic documents and
information; and (3) to determine those persons who shall be given access
to sensitive cryptologic documents and information. Further, this law defines
the term "communication intelligence" to mean all procedures and methods
used in the interception of</SMALL>
<P>
<HR>
<P>
18
<P>
<SMALL>communications and the obtaining of information from such communications
by other than the intended recipients.</SMALL>
<P>
<SMALL>After an intensive review by a panel of distinguished citizens, President
Truman in 1952 acted to reorganize and strengthen communications intelligence
activities. He issued in October 1952 [Link] a Presidential memorandum outlining
in detail how communications intelligence activities were to be conducted,
designated the Secretary of Defense to be his executive agent in these matters,
directed the establishment of the NSA, and outlined the missions and functions
to be performed by the NSA.</SMALL>
<P>
<SMALL>The Secretary of Defense, pursuant to the congressional authority
delegated to him in section 133(d) of title 10 of the United States Code,
acted to establish the National Security Agency. The section of the law cited
provides that the Secretary may exercise any of these duties through persons
or organizations of the Department of Defense. In 1962 a Special Subcommittee
on Defense Agencies of the House Armed Services Committee concluded, after
examining the circumstances leading to the creation of defense agencies,
that the Secretary of Defense had the legal authority to establish the National
Security Agency.</SMALL>
<P>
<SMALL>The President's constitutional and statutory authorities to obtain
foreign intelligence through signals intelligence are implemented through
National Security Council and Director of Central Intelligence Directives
which govern the conduct of signals intelligence activities by the executive
branch of the Government.</SMALL>
<P>
<SMALL>In 1959, the Congress enacted Public Law 86-36 which provides authority
to enable the NSA as the principal agency of the Government responsible for
signals intelligence activities, to function without the disclosure of
information which would endanger the accomplishment of its functions.</SMALL>
<P>
<SMALL>In 1964 Public Law 88-290 was enacted by the Congress to establish
a personnel security system and procedures governing persons employed by
the NSA or granted access to its sensitive cryptologic information. Public
Law 88-290 also delegates authority to the Secretary of Defense to apply
these personnel security procedures to employees and persons granted access
to the National Security Agency's sensitive information. This law underscores
the concern of the Congress regarding the extreme importance of our signals
intelligence enterprise and mandates that the Secretary of Defense, and the
Director, National Security Agency, take measures to achieve security for
the activities of the NSA.</SMALL>
<P>
<SMALL>Title 18 U.S.C. 2511(3) provides as follows: "Nothing contained in
this chapter or in Section 605 of the Communications Act of 1934, 47 U.S.C.
605, shall limit the constitutional power of the President to take such measures
as he deems necessary to protect the nation against actual or potential attack;
or other hostile acts of a foreign power, to obtain foreign intelligence
information deemed essential to the security of the United States or to protect
national security information against foreign intelligence activities. .
."</SMALL>
<P>
<SMALL>In <I>United States</I> v. <I>Brown</I>, U.S. Court of Appeals, Fifth
Circuit, decided August 22, 1973, the court discussed this provision of the
law as follows:</SMALL>
<P>
<SMALL>"The constitutional power of the President is adverted to, although
not conferred by, Congress in Title III of the Omnibus Crime Control and
Safe Streets Act of 1968."</SMALL>
<P>
<SMALL>Thus. while NSA does not look upon section 2011(3) as authority to
conduct communications intelligence, it is our position that nothing in chapter
119 of title 18 affects or governs the conduct of communications intelligence
for the purpose of gathering foreign intelligence.</SMALL>
<P>
<SMALL>Finally, for the past 29 years, Congress has annually appropriated
funds for the operation of the NSA, following hearings before the Armed Services
and Appropriations Committees of both Houses of Congress in which extensive
briefings of the NSA's signals intelligence mission have been conducted.
We appear before both the House and the Senate Defense Appropriations
Subcommittees to discuss and report on the U.S. signals intelligence and
communications security programs, and to justify the budgetary requirements
associated with these programs. We do this in formal executive session, in
which we discuss our activities in whatever detail required by the Congress.
In considering the fiscal year 1976 total cryptologic budget now before Congress,
I appeared before the Defense Subcommittee of the House Appropriations Committee
on two separate occasions for approximately 7 hours. In addition, I provided
follow-up response to over one hundred questions of the Subcommittee</SMALL>
<P>
<HR>
<P ALIGN=Left>
19
<P>
<SMALL>members and staff. We also appeared before armed services subcommittees
concerned with authorizing research, development, test and evaluation
(RDT&E), construction and housing programs and also before the Appropriations
Subcommittees on construction and housing.</SMALL>
<P>
<SMALL>In addition to this testimony, congressional oversight is accomplished
in other ways. Staff members of these subcommittees have periodically visited
the Agency for detailed briefings on specific aspects of our operations.
Members of investigations staff of the House Appropriations Committee recently
conducted an extensive investigation of this Agency. The results of this
study, which lasted over a year, have been provided to that committee in
a detailed report.</SMALL>
<P>
<SMALL>Another feature of congressional review is that since 1955 resident
auditors of the General Accounting Office have been assigned at the Agency
to perform on-site audits. Additional GAO auditors were cleared for access
in 1973 and GAO, in addition to this audit, is initiating a classified review
of our automatic data processing functions. NSA's cooperative efforts in
this area were noted by a Senator in February of this year.</SMALL>
<P>
<SMALL>In addition, resident auditors of the Office of Secretary of Defense,
Comptroller, conduct indepth management reviews of our organization.</SMALL>
<P>
<SMALL>A particular aspect of NSA authorities which is pertinent to today's
discussion relates to the definition of foreign communications. Neither the
Presidential directive of 1952 nor the National Security Council directive
No. 6 defines the term foreign communications. The NSA has always confined
its activities to communications involving at least one foreign terminal.
This interpretation is consistent with the definition of foreign communications
in the Communications Act of 1934. There is also a directive of the Director
of Central Intelligence dealing with security regulations which employs a
definition which excludes communications between U.S. citizens or entities.
While this directive has not been construed as defining the NSA mission in
the same sense as has the National Security Council directive, in the past
this exclusion has usually been applied and is applied now. However, we will
describe a particular activity in the past when that exclusion was not applied.
NSA does not now, and with an exception to be described has not in the past
conducted intercept operations for the purpose of obtaining the communications
of U.S. citizens. However, it necessarily occurs that some circuits which
are known to carry foreign communications necessary for foreign intelligence
will also carry personal communications between U.S. citizens, one of whom
is at a foreign location. The interception of communications, however it
may occur, is conducted in such a manner as to minimize the unwanted messages.
Nevertheless, many unwanted communications are potentially available for
selection. Subsequent processing, sorting, and selecting for analysis is
conducted in accordance with strict procedures to insure immediate and, wherever
possible, automatic rejection of inappropriate messages. The analysis and
reporting is accomplished only for those messages which meet specified conditions
and requirements for foreign intelligence. It is certainly believed by NSA
that our communications intelligence activities are solely for the purpose
of obtaining foreign intelligence in accordance with the authorities delegated
by the President stemming from his constitutional power to conduct foreign
intelligence.</SMALL>
<P ALIGN=Center>
<SMALL>OVERALL REQUIREMENTS ON NSA</SMALL>
<P>
<SMALL>NSA produces signals intelligence in response to objectives, requirements
and priorities as expressed by the Director of Central Intelligence with
the advice of the U.S. Intelligence Board. There is a separate committee
of the Board which develops the particular requirements against which the
NSA is expected to respond.</SMALL>
<P>
<SMALL>The principal mechanism used by the Board in formulating requirements
for signals intelligence information has been one of listing areas of
intelligence interest and specifying in some detail the signals intelligence
needed by the various elements of Government. This listing, which was begun
in 1966 and fully implemented in 1970, is intended to provide guidance to
the Director of the National Security Agency, and to the Secretary of Defense,
for programing and operating NSA activities. It is intended as an expression
of realistic and essential requirements for signals intelligence information.
This process recognizes that a single listing, updated annually, needs to
be supplemented with additional detail and time-sensitive factors, and it
establishes a procedure whereby the USIB agencies can express directly to
the National Security</SMALL>
<P>
<HR>
<P ALIGN=Left>
20
<P>
<SMALL>Agency, information needs which reasonably amplify requirements approved
by USIB or higher authority. In addition, there are established procedures
for non-Board members, the Secret Service, and the BNDD at the time in question,
to ask the NSA for information. The NSA does have operational discretion
in responding to requirements, but we do not generate our own requirements
for foreign intelligence. The Director, NSA is directed to be responsive
to the requirements formulated by the Director of Central Intelligence. However,
I clearly must not respond to any requirements which I feel are not
proper.</SMALL>
<P>
<SMALL>In 1975 the USIB signals intelligence requirements process was revised.
Under the new system, all basic requirements for signals intelligence information
on U.S. Government agencies will be reviewed and validated by the Signals
Intelligence Committee of USIB before being levied on the NSA. An exception
is those requirements which are highly time-sensitive; they will continue
to be passed simultaneously to us for action and to USIB for information.
The new system will also attempt to prioritize signals intelligence requirements.
The new requirements process is an improvement in that it creates a formal
mechanism to record all requirements for signals intelligence information
and to establish their relative priorities.</SMALL>
<P ALIGN=Center>
<SMALL>THE WATCH LIST</SMALL>
<P>
<SMALL>Now to the subject which the committee asked me to address in some
detail -- the so-called watch list activity of 1967 to 1973.</SMALL>
<P>
<SMALL>The use of lists of words, including individual names, subjects,
locations, et cetera, has long been one of the methods used to sort out
information of foreign intelligence value from that which is not of interest.
In the past such lists have been referred to occasionally as watch lists,
because the lists were used as an aid to watch for foreign activity of reportable
intelligence interest. However, these lists generally did not contain names
of U.S. citizens or organizations. The activity in question is one in which
U.S. names were used systematically as a basis for selecting messages, including
some between U.S. citizens, when one of the communicants was at a foreign
location.</SMALL>
<P>
<SMALL>The origin of such activity is unclear. During the early '60's, requesting
agencies had asked the NSA to look for reflections in international
communications of certain U.S. citizens traveling to Cuba. Beginning in 1967,
requesting agencies provided names of persons and organizations, some of
whom were U.S. citizens, to the NSA in an effort to obtain information which
was available in foreign communications as a by-product of our normal foreign
intelligence mission. The purpose of the lists varied, but all possessed
a common thread in which the NSA was requested to review information available
through our usual intercept sources. The initial purpose was to help determine
the existence of foreign influence on specified activities of interest to
agencies of the U.S. Government, with emphasis then on Presidential protection
and on civil disturbances occurring throughout the nation. Later, because
of other developments, such as widespread national concern over such criminal
activity as drug trafficking and acts of terrorism, both domestic and
international, the emphasis came to include these areas. Thus, during this
period, 1967-73, requirements for which lists were developed in four basic
areas: international drug trafficking; Presidential protection; acts of
terrorism; and possible foreign support or influence on civil
disturbances.</SMALL>
<P>
<SMALL>In the '60's there was Presidential concern voiced over the massive
flow of drugs into our country from outside the United States. Early in President
Nixon's administration, he instructed the CIA to pursue with vigor intelligence
efforts to identify foreign sources of drugs and the foreign organizations
and methods used to introduce illicit drugs into the United States. The BNDD,
the Bureau of Narcotics and Dangerous Drugs, in 1970 asked the NSA to provide
communications intelligence relevant to these foreign aspects, and BNDD provided
watch lists with some U.S. names. International drug trafficking requirements
were formally documented in USIB requirements in August 1971.</SMALL>
<P>
<SMALL>As we all know, during this period there was also heightened concern
by the country and the Secret Service over Presidential protection because
of President Kennedy's assassination. After the Warren Report, requirements
lists containing names of U.S. citizens and organizations were provided to
NSA by the Secret Service in support of their efforts to protect the President
and other senior officials. Such requirements were later incorporated into
USIB documentation. At</SMALL>
<P>
<HR>
<P ALIGN=Left>
21
<P>
<SMALL>that time, intelligence derived from foreign communications was regarded
as a valuable tool in support of Executive protection.</SMALL>
<P>
<SMALL>About the same time as the concern over drugs, or shortly thereafter,
there was a committee established by the President to combat international
terrorism. This committee was supported by an interdepartmental working group
with USIB representatives. Requirements to support this effort with
communications intelligence were also incorporated into USIB
documentation.</SMALL>
<P>
<SMALL>Now let me put the watch list in perspective regarding its size and
the numbers of names submitted by the various agencies:</SMALL>
<P>
<SMALL>The BNDD submitted a watch list covering their requirements for
intelligence on international narcotics trafficking. On September 8, 1972,
President Nixon summarized the efforts of his administration against drug
abuse. The President stated that he ordered the Central Intelligence Agency,
early in his administration, to mobilize its full resources to fight the
international drug trade. The key priority, the President noted, was to destroy
the trafficking through law enforcement and intelligence efforts. The BNDD
list contained the names of suspected drug traffickers. There were about
450 U.S. individuals and over 3,000 foreign individuals.</SMALL>
<P>
<SMALL>The Secret Service submitted watch lists covering their requirements
for inteLligence relating to Presidential and Executive protection. Public
Law 90-331 of June 6, 1968, made it mandatory for Federal agencies to assist
the Secret Service in the performance of its protective duties. These lists
contained names of persons and groups who, in the opinion of the Secret Service,
were potentially a threat to Secret Service protectees, as well as the names
of the protectees themselves. On these lists were about 180 U.S. individuals
and groups and about 525 foreign individuals and groups.</SMALL>
<P>
<SMALL>An Army message of October 20, 1967, informed the NSA that Army ACSI,
assistant chief of staff for intelligence, had been designated executive
agent by DOD for civil disturbance matters an requested any available information
on foreign influence over, or control of, civil disturbances in the U.S.
The Director, NSA, sent a cable the same day to the DCI and to each USIB
member and notified them of the urgent request from the Army and stated that
the NSA would attempt to obtain communications intelligence regarding foreign
control or influence over certain U.S. individuals and groups.</SMALL>
<P>
<SMALL>The Brownell Committee, whose report led to the creation of NSA stated
that communications intelligence should be provided to the Federal Bureau
of Investigation because of the essential role of the Bureau in the national
security.</SMALL>
<P>
<SMALL>The FBI submitted watch lists concerning their requirements of foreign
ties and support to certain U.S. persons and groups. These lists contained
names of "so-called" extremist persons and groups individuals and groups
active in civil disturbances, and terrorists. The lists contained a maximum
of about 1,000 U.S. persons and groups and about 1,700 foreign persons and
groups.</SMALL>
<P>
<SMALL><A NAME="CIA note">The CIA</A> submitted "watch lists" covering their
requirements on international travel, foreign influence and foreign support
of "so-called" U.A. extremists and terrorists. Section 403(d)(3) of Title
50, U.S. Code, provided that it was the duty of the Central Intelligence
Agency to correlate and evaluate intelligence relating to the national security
and to provide for the appropriate dissemination of such intelligence within
the government using, where appropriate, existing agencies and facilities.
These lists contained about 30 U.S. individuals and about 700 foreign individuals
and groups.</SMALL>
<P>
<SMALL>The DIA submitted a watch list covering their requirements on possible
foreign control of, or influence on, U.S. antiwar activity. The list contained
names of individuals traveling to North Vietnam. There were about 20 U.S.
individuals on this list. DIA is responsible under DOD directives for satisfying
the intelligence requirements of the major components of the DOD and to validate
and assign to NSA requirements for intelligence required by DOD
components.</SMALL>
<P>
<SMALL>Between 1967 and 1973 there was a cumulative total of about 450 U.S.
names on the narcotics list, and about 1,200 U.S. names on all other lists
combined. What that amounted to was that at the height of the watch list
activity, there were about 800 U.S. names on the watch list and about one-third
of these 800 were from the narcotics list.</SMALL>
<P>
<SMALL>We estimate that over this 6-year period, 1967-1973, about 2,000 reports
were issued by the National Security Agency on international narcotics
trafficking and about 1,900 reports were issued covering the three areas
of terrorism, Executive protection and foreign influence over U.S. groups.
This would average about two reports per day. These reports included some
messages between U.S.</SMALL>
<P>
<HR>
<P ALIGN=Left>
22
<P>
<SMALL>citizens with one foreign communicant, but over 90% had at least one
foreign communicant and all messages had at least one foreign terminal. Using
agencies did periodically review, and were asked by the NSA to review, their
"watch lists" to insure inappropriate or unnecessary entries were promptly
removed. I am not the proper person to ask concerning the value of the product
from these four special efforts. We are aware that a major terrorist act
in the United States was prevented. In addition, some large drug shipments
were prevented from entering the United States because of our efforts on
international narcotics trafficking. We have statements from the requesting
agencies in which they have expressed appreciation for the value of the
information which they had received from us. Nonetheless, in my own judgment,
the controls which were placed on the handling of the intelligence were so
restrictive that the value was significantly diminished.</SMALL>
<P>
<SMALL>Now let me address the question of the "watch list" activity as the
National Security Agency saw it at the time. This activity was reviewed by
proper authority within NSA and by competent external authority. This included
two former Attorneys General and a former Secretary of Defense. The requirements
for information had been approved by officials of the using agencies and
subsequently validated by the United States Intelligence Board. For example,
the Secret Service and BNDD requirements were formally included in USIB guidance
in 1970 and 1971, respectively. In the areas of narcotics trafficking, terrorism
and requirements related to the protection of the lives of senior U.S. officials,
the emphasis placed by the President on a strong, coordinated government
effort was clearly understood. There also was no question that there was
considerable Presidential concern and interest in determining the existence
and extent of foreign support to groups fomenting civil disturbances in the
United States.</SMALL>
<P>
<SMALL>From 1967-1969 the procedure for submitting names was more informal,
with written requests following as the usual practice. Starting in 1969 the
procedure was formalized and the names for "watch lists" were submitted through
channels in writing. The Director and Deputy Director of the NSA approved
certain categories of subject matter from customer agencies, and were aware
that U.S. individuals and organizations were being included on "watch lists."
While they did not review and approve each individual name there were continuing
management reviews at levels below the Directorate. National Security Agency
personnel sometimes made analytic amplifications on customer "watch list"
submissions in order to fulfill certain requirements. For example, when
information was received that a name on the "watch list" used an alias, the
alias was inserted; or when an address was uncovered of a "watch list" name,
the address was included. This practice by analysts was done to enhance the
selection process, not to expand the lists.</SMALL>
<P>
<SMALL>The information produced by the "watch list" activity was, with one
exception, entirely a byproduct of our foreign intelligence mission. All
collection was conducted against international communications with at least
one terminal in a foreign country, and for purposes unrelated to the "watch
list" activity. That is, the communications were obtained, for example, by
monitoring communications to and from Hanoi. All communications had a foreign
terminal and the foreign terminal or communicant, with the one exception
to be described, was the initial object of the communications collection.
The "watch list" activity specifically consisted of scanning international
communications already intercepted for other purposes to derive information
which met "watch list" requirements. This scanning was accomplished by using
the entries provided to NSA as selection criteria. Once selected, the messages
were analyzed to determine if the information therein met those requesting
agencies' requirements associated with the "watch lists." If the message
met the requirement, the information therein was reported to the requesting
agency in writing.</SMALL>
<P>
<SMALL>Now let me discuss for a moment the manner in which intelligence derived
from the "watch lists" was handled. For the period 1967-69, international
messages between U.S. citizens and organizations, selected on the basis of
"watch list" entries and containing foreign intelligence, were issued for
background use only add were hand delivered to certain requesting agencies.
If the U.S. citizen or organization was only one correspondent of the
international communication, it was published as a normal product report
but in a special series to limit distribution on a strict need-to-know
basis.</SMALL>
<P>
<SMALL>Starting in 1969, any messages that fell into the categories of
Presidential/executive protection and foreign influence over U.S. citizens
and groups were treated in an even more restricted fashion. They were provided
for background</SMALL>
<P>
<HR>
<P ALIGN=Left>
23
<P>
<SMALL>use only and hand delivered to requesting agencies. When the requirements
to supply intelligence regarding international drug trafficking in 1970 and
international terrorism in 1971 were received, intelligence on these subjects
was handled in a similar manner. This procedure continued until I terminated
the activity in 1973.</SMALL>
<P>
<SMALL>The one instance in which foreign messages were intercepted for specific
"watch list" purposes was the collection of some telephone calls passed over
international communications facilities between the United States and South
America. The collection was conducted at the specific request of the BNDD
to produce intelligence information on the methods and locations of foreign
narcotics trafficking. In addition to our own intercept, CIA was asked by
NSA to assist in this collection. NSA provided to CIA names of individuals
from the international narcotics trafficking watch list. This collection
by CIA lasted for approximately 6 months, from late 1972 to early 1973, when
CIA stopped because of concern that the activity exceeded CIA statutory
restrictions.</SMALL>
<P>
<SMALL>When the "watch list" activity began, the National Security
Agency&nbsp;and others viewed the effort as an appropriate part of the foreign
intelligence mission. The emphasis of the President that a concerted national
effort was required to combat these grave problems was clearly expressed.
The activity was known to higher authorities. kept quite secret, and restrictive
controls were placed on the use of the intelligence. The agencies receiving
the information were clearly instructed that the information could not be
used for prosecutive or evidentiary purposes, and to our knowledge, it was
not used for such purposes.</SMALL>
<P>
<SMALL>It is worth noting that some Government agencies receiving the information
had dual functions. For instance, BNDD was concerned on the one hand with
domestic drug law enforcement activities and on the other hand with the
curtailing of international narcotics trafficking. It would be to the latter
area of responsibility that the NSA delivered its intelligence. However,
since the intelligence was being reported to some agencies which did have
law enforcement responsibilities, there was growing concern that the intelligence
could be used for purposes other than foreign intelligence. To minimize this
risk, the material was delivered only to designated offices in those agencies,
and the material was marked and protected in a special way to limit the number
of people involved and to segregate it from information of broader
interest.</SMALL>
<P ALIGN=Center>
<SMALL>WATCH LIST ACTIVITIES AND TERMINATION THEREOF</SMALL>
<P>
<SMALL>In 1973, concern about the National Security Agency's role in these
activities was increased, first, by concerns that it might not be possible
to distinguish definitely between the purpose for the intelligence gathering
which NSA understood was served by these requirements, and the missions and
functions of the departments or agencies receiving the information, and,
second, that requirements from such agencies were growing, and finally, that
new broad discovery procedures in court cases were coming into use which
might lead to disclosure of sensitive intelligence sources and methods.</SMALL>
<P>
<SMALL>The first action taken was the decision to terminate the activity
in support of BNDD in the summer of 1973. This decision was made because
of concern that it might not be possible to make a clear separation between
the requests for information submitted by BNDD as it pertained to legitimate
foreign intelligence requirements and the law-enforcement responsibility
of BNDD. CIA had determined in 1973 that it could not support these requests
of BNDD because of statutory restrictions on CIA. The NSA is not subject
to the same sort of restrictions as CIA, but a review of the matter led to
a decision that certain aspects of our support should be discontinued, and
in particular the watch list activity was stopped. NSA did not retain any
of the BNDD watch lists or product. It was destroyed in the fall of 1973,
since there seemed no purpose or requirement to retain it.</SMALL>
<P>
<SMALL>With regard to "watch lists" submitted by FBI, CIA, and Secret Service,
these matters were discussed with the National Security Agency Counsel and
Counsel for the Department of Defense, and we stopped the distribution of
information in the summer of 1973. In September 1973, I sent a letter to
each agency head requesting him to recertify the requirement with respect
to the appropriateness of the request including a review of that agency's
legal authorities .</SMALL>
<P>
<SMALL>On October 1, 1973, Attorney. General Richardson wrote me, indicating
that he was concerned with respect to the propriety of requests for information
concerning U.S. citizens which NSA had received from the FBI and Secret Service.
He wrote the following:</SMALL>
<P>
<HR>
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24
<P>
<SMALL>"Until I am able more carefully to assess the effect of <I>Keith</I>
and other Supreme Court decisions concerning electronic surveillance upon
your current practice of disseminating to the FBI and Secret Service information
acquired by you through electronic devices pursuant to requests from the
FBI and Secret Service, it is requested that you immediately curtail the
further dissemination of such information to these agencies.</SMALL>
<P>
<SMALL>Of course, relevant information required by you in the routine pursuit
of the collection of foreign intelligence may continue to be furnished to
appropriate government agencies. . ."</SMALL>
<P>
<SMALL>The overall result of these actions was that we stopped accepting
"watch lists" containing names of U.S. citizens and no information is produced
or disseminated to other agencies using these methods. Thus, the watch list
activity which U.S. citizens ceased operationally in the summer of 1973 and
was terminated officially in the fall of 1973. As to the future, the Attorney
General's direction is that we may not accept any requirement based on the
names of U.S. citizens unless he has personally approved such a requirement;
and no such approval has been given. Additionally, directives now in effect
in various agencies also preclude the resumption of such activity.</SMALL>
<P>
<BR>
<A NAME="Jump">General ALLEN</A>. Sir, with your permission, I may make some
concluding remarks after the questions, if I may.
<P>
The CHAIRMAN. Very good. Thank you very much for your initial statement.
<P>
With respect to the legal questions that are raised by the various watch
lists that you have described, I might say for the benefit of everyone concerned,
that it is the committee's intention to call on the Attorney General in order
that the questions regarding the possible illegality of these watch list
operations, and also questions relating to the constitutional guarantees
under the fourth amendment, can be taken up with the proper official of the
Government -- the Attorney General of the United States. We would hope to
have Attorney General Levi here to discuss the legal and constitutional
implications of your statement at a later date, perhaps next week. So I would
hope that on that score, members would not press you too far since the proper
witness, I think, is the Attorney General.
<P>
General ALLEN. Yes, sir.
<P>
The CHAIRMAN. Now, Mr. Schwarz will commence the questions.
<P>
Mr. SCHWARZ. Mr. Chairman, I would like to ask just two questions which lay
a factual basis for the questioning of the Attorney General, and I hope that
is not out-of-line in light of your comment. They are not designed to have
him discuss law, but to lay a factual basis for a dialogue next week.
<P>
The CHAIRMAN. Very well. We will listen to your questions and then pass on
them.
<P>
Mr. SCHWARZ. Very well. General Allen, were any warrants obtained for any
of the interceptions involving U.S. citizens which you have recounted in
your statement?
<P>
General ALLEN. No.
<P>
Mr. SCHWARZ. And the second question: you have stated that NSA does not,
in fact, intercept communications which are wholly domestic. That is,
communications between two domestic terminals, and that its interceptions
are limited to wholly foreign, or second terminals, one of which is in the
United States and one of which is outside. With respect to wholly domestic
communications, is there any statute that prohibits your interception thereof,
or is it merely a matter of your internal executive branch directives?
<P>
<HR>
<P>
25
<P>
General ALLEN. My understanding, Mr. Schwarz, is that -- at least the NSC
intelligence directive defines our activities as foreign communications,
and we have adopted a definition for foreign communications consistent with
the Communications Act of 1934. And therefore, I think that is the --
<P>
Mr. SCHWARZ. But you believe you are consistent with the statutes, but there
is not any statute that prohibits your interception of domestic communication.
<P>
General ALLEN. I believe that is correct.
<P>
Mr. SCHWARZ. I have nothing further, Mr. Chairman.
<P>
The CHAIRMAN. Just so I may understand your last answer, General, so that
the definition of foreign intelligence is essentially one that has been given
you by an executive directive from the NSC, and is not based upon a statutory
definition.
<P>
General ALLEN. Yes, sir.
<P>
The CHAIRMAN. Very well. We are going to change our procedures today to give
the Senators at the end of the table who are usually the last to ask questions,
and sometimes have to wait a good length of time, instead of moving from
the chairman outward. This I must say, has the consent of our vice chairman,
Senator Tower -- so we will move to the ends of the table first, and that
means our first Senator to question is Senator Hart.
<P>
Senator HART of Colorado. Thank you, Mr. Chairman.
<P>
General Allen, there are two broad areas that this committee is concerned
about in terms of legislative recommendations. One is congressional oversight,
and the other is the issue of command and control. And it is in these two
areas that I would like to ask a couple of questions.
<P>
First of all, you went to some lengths in your statement to talk about the
history of NSA's briefing of Congress and various congressional committees.
In that history, was there any occasion when officials of the NSA briefed
members of Congress about the watch list activities?
<P>
General ALLEN. Sir, I honestly don't know about that, prior to my coming
on in the summer of 1973. And the reason for that is that the testimony is
in executive session -- and there are conversations, and I really don't know
whether previous Directors discussed it with Congress or not.
<P>
I would say that I have no evidence that they did.
<P>
Senator HART of Colorado. That they did or did not?
<P>
General ALLEN. I would say that I have no evidence that previous Directors
discussed the watch list matters with Congress prior to the summer of 1973
when I came on board. Since I went on board, there have been a number of
occasions where this has been discussed with various elements of Congress
which, to a certain degree, began early in 1974 with the investigations of
the House Appropriations Committee investigating team.
<P>
Senator HART of Colorado. With what degree of specificity did you brief elements
as you say, of Congress about the watch list activities? With the same degree
of specificity that is contained in your statement today -- the numbers of
names and so forth?
<P>
General ALLEN. The investigation that I refer to by the Appropriations Committee
investigative team did go into the matter in substantially more detail than
we have described today. There were a number of pages in their report that
we related to that.
<P>
<HR>
<P>
26
<P>
I would suspect that other briefings probably were of less detail -- well,
no, I would say the briefing before Mr. Pike's committee was in more detail,
discussed today in closed session.
<P>
Senator HART of Colorado. For the purposes of our record today, did you conduct
some historical review, whether, prior to your assumption of the Directorship,
such briefings on watch list activities took place?
<P>
General ALLEN. Well, to the extent that we're able to conduct those activities,
we have. And we have no evidence that they did take place.
<P>
Excuse me, I have just been pointed out an exception to that, and that is,
Mr. Nedzi was briefed on the -- at a previous time on the general subject
of how these kinds of communications are handled. And I presume that he was
given a fairly thorough insight into this.
<P>
Senator HART of Colorado. Do you know when that was?
<P>
General ALLEN. We will find that out, sir.<SUP>1</SUP>
<P>
Senator HART of Colorado. The same question applies to the other program
which we have under consideration here today, and over which there is some
dispute.
<P>
Could you tell us whether Congress, or any elements of Congress, were briefed
on that program?
<P>
General ALLEN. I do not know. I do not know that they were.
<P>
Senator HART of Colorado. If you could find out and let us know, I think
we would appreciate it.
<P>
The second broad area is the area of command and control: Who is in charge
here? Who gives the orders? How high up are the officials who know what is
going on? In this connection, it is my understanding that officials presently
at NSA have testified, or given us information, that your predecessor, Admiral
Gayler, and the former Deputy Director. Dr. Tordella, were completely aware
of the watch list program, and their sworn testimony in the case of each
or both of them is that they were not aware of this, or only became aware
of it sometime after they assumed their positions.
<P>
Could you give us a definitive answer as to whether both Admiral Gayler or
Dr. Tordella knew about the watch list activities?
<P>
General ALLEN. I am certain they did, sir. And I think the testimony you
refer to must be misinterpreted in some way, because clearly, Admiral Gayler
and Dr. Tordella knew, and have testified -- I think, perhaps, sir, you may
be referring to a question that did arise in our more complete closed discussions
with the staff in which there was a question as to whether these analytic
amplifications which NSA made to the lists -- that is, where names were added
by NSA people to enhance the selection process of the requirement already
specified -- whether those were approved by the proper command structure
within NSA. And there has been a little bit of uncertainty about that.
<P>
It is fairly clear to me in my research that there was an appropriate
Directorship, Deputy Director review of those procedures. It has been a little
unclear as to whether each name was approved, and so on.
<P>
Senator HART of Colorado. In that connection, Admiral Gayler was asked, "Did
people tell you the list included names of U.S. citizens or other entities?"
and then came a rather long answer which includes
<P>
___________________
<P>
<SMALL>1 In a Nov. 6, 1975, letter from David D. Lowman, Special Assistant
to the Director, NSA, the select committee was informed that the date of
the briefing referred to above was Jan. 10, 1975. </SMALL>
<P>
<HR>
<P>
27
<P>
the following statement: "This particular subject didn't come to my attention
until about the time this domestic problem was surfaced by the President.
<P>
The staff then asked, more specifically, when that was, and he said, "I became
aware of that, I guess it was a year or so after I got there." So Admiral
Gayler does not suggest that he was briefed on the existence of watch list
activities until perhaps more than a year after he assumed the Directorship.
<P>
Do you know why that would be?
<P>
General ALLEN. No, sir, I don't. I was not aware of that aspect of his testimony.
I do know, for example, of information that has been made available to the
committee, that he was aware, and made fully aware, in 1971, early 1971
[<A HREF="#Exhibit 5">exhibit 5</A>].<SUP>1</SUP> Your time refers, actually,
to before that.
<P>
Senator HART of Colorado. When did he assume the Directorship? In 1969?
<P>
General ALLEN. Yes; it must have been 1969. Yes, sir.
<P>
Senator HART of Colorado. So a period of time passed in which the Director
of NSA apparently did not know that this activity was going on. We find that
extraordinary.
<P>
You have stated that NSA officials or personnel were placing names on the
list. There seems to be some dispute about that also. Admiral Gayler and
Dr. Tordella both deny that they knew that NSA was putting names on the list,
yet, I think the suggestion here is that this was knowledge that the Director
and the Deputy Director didn't know about.
<P>
Is that the case?
<P>
General ALLEN. Well, we have clearly had a conflict in people's recollections
in that period of time. It is the clear recollection -- and there certainly
are some internal memorandums that reflect -- that the procedures by which
amplifications are made to lists were explained to the Director and Deputy
Director at the time, and that they were aware of them.
<P>
It apparently is also true that in the period of time when they gave testimony,
they didn't recall that particular briefing.
<P>
Senator HART of Colorado. Well your testimony here this morning is a little
confusing also. In your statement you say, we do not generate our own
requirements for foreign intelligence, and yet the indication is that the
staff or officials of NSA, do, or had in the past, added names out of the
Office of Security, and so forth.
<P>
General ALLEN. I'm sorry, sir, that is another question. That does not actually
relate to foreign intelligence. I believe it is not the subject of discussion
today.
<P>
The question of adding names that relate to the amplifications in the foreign
intelligence field was in no case a matter of adding anything new to the
list. It was a matter of adding aliases, it was a matter of adding addresses
in some cases where an organization had been specified, and it would assist
picking up messages of that organization, the names of officials of the
organization were added to enhance the selection process.
<P>
Senator HART of Colorado. But it is your testimony that out of the NSA itself
there was no generation of new names or organizations?
<P>
___________________
<P>
<SMALL>1 See p. 166. </SMALL>
<P>
<HR>
<P>
28
<P>
General ALLEN. That is correct.<SUP>1</SUP><BR wp="br1">
<BR wp="br2">
Senator HART of Colorado. In connection with the role of the Intelligence
Board, you indicate in your statement that the U.S. Intelligence Board reviewed
these activities and was kept cognizant of them. We have testimony -- statements
before this committee by people involved in the Board's activities in the
past, that the Board itself, in being apprised that watch list activities
were going on was not aware of the fact that communications of U.S. citizens
were being monitored.
<P>
Is that the case, or not?
<P>
General ALLEN. Well the difficulty that we have here, sir, as I understand
it, is there is no record that the U.S. Intelligence Board in its sessions
ever considered or had this information presented to them. The circumstances
are that the requirements process of the U.S. Intelligence Board, which is
directed toward substantive requirements, did include in it various subject
statements -- that is, that related to these particular subjects. And on
occasion, included such subjects as in satisfying the watch list individuals
provided by whatever agency it was. So those things are in the U.S. Intelligence
Board guidelines. It could be only presumed that U.S. Intelligence Board,
which consists of membership of the requesting organizations, knew that the
lists they were directing to us to follow were lists which their agency was
preparing and did contain some U.S. names.
<P>
Senator HART of Colorado. And therefore, it is your testimony, or is it not,
that the intelligence board knew that so-called civil disturbance names were
being included on this list?
<P>
General ALLEN. Well, the U.S. Intelligence Board certainly knew that, because
my predecessor, General Carter, made it a very specific point to notify them
immediately upon getting, what he considered to be the first request in this
area. And that was his purpose for doing that.
<P>
Senator HART of Colorado. Including the civil disturbance names?
<P>
General ALLEN. Well, yes, sir. His message is here in the record
[<A HREF="#Exhibit 2">exhibit 2</A>]<SUP>2</SUP>, but it states that he is
being asked to respond to this requirement and to seek intelligence regarding
foreign influence on certain organizations.
<P>
Senator HART of Colorado. One final question, General.
<P>
In connection with the Huston plan, one recommendation of that group was
that communications intelligence capabilities should be broadened and that
the President was requested to authorize broadening of those capabilities.
<P>
To your knowledge, did President Nixon know about the extent of this watch
list?
<P>
General ALLEN. To my personal knowledge?
<P>
Senator HART of Colorado. Well, to your knowledge as Director.
<P>
General ALLEN. No. I have no such knowledge one way or another as to President
Nixon's personal knowledge.
<P>
_________________
<P>
<SMALL>l After reviewing a transcript of this testimony, NSA advised the
committee that 50 to 75 names were add in its "amplification" of watch lists
and that this "was usually done either by adding the name of an executive
officer of an organization, or by adding the organization name associated
with a person who was placed on the watch list by another agency." (Letter
from David D. Lowman, Special Assistant to the Director, NSA, to the select
committee Nov. 6, 1975.)</SMALL> <BR wp="br1">
<BR wp="br2">
<SMALL>2 See P. 147. </SMALL>
<P>
<HR>
<P>
29
<P>
Senator HART of Colorado. So you, or perhaps Mr. Buffham, can't account for
the fact that the President was being asked to broaden a capability that
he did not know existed in the first place?
<P>
General ALLEN. Well, you asked me what I thought President Nixon knew.
<P>
Senator HART of Colorado. Yes.
<P>
General ALLEN. And I say I really don't know. There is some evidence as to
what Mr. Huston thought because we have the various things which he wrote,
and the documents that he prepared. Mr. Huston apparently believed that this
activity which he knew of, and which he had seen the output of, was being
conducted in a very restrictive and minimal manner -- which was true -- and
that it would be of value to those problems which the President had on his
mind if it were expanded. And he also recognized that the NSA would not respond
to that kind of a request for expansion or broadening of this activity without
very clear and specific Presidential direction to do so. So it is my
understanding that Mr. Huston was making such a recommendation, and of course
it did not come to pass.
<P>
Senator HART of Colorado. That is all, Mr. Chairman.
<P>
Thank you.
<P>
The CHAIRMAN. Thank you, Senator Hart.
<P>
Senator Schweiker?
<P>
Senator SCHWEIKER. Thank you, Mr. Chairman.
<P>
General Allen, who were the two Attorneys General and the Secretary of Defense
who approved this activity?
<P>
General ALLEN. Our statement said they reviewed the activity.
<P>
Senator SCHWEIKER. Reviewed it?
<P>
General ALLEN. Yes, sir. We have documentation available in looking back
at our records of this, that Admiral Gayler reviewed this activity in detail
with Mr. Laird, Mr. Kleindienst, and Mr. Mitchell, on a couple of occasions,
one very clear one relating to Mr. Laird and Mr. Mitchell. Approval is an
awkward -- it is not fair to those people in the sense that the memo for
record shows that he discussed it with them in some detail, that there was
agreement as to the procedures that were to be followed, and that he then
submitted a memorandum back to them saying this is what we discussed and
this is the procedure we followed.
<P>
Senator SCHWEIKER. That is Admiral Gayler reviewed it with him -- with them,
I should say?
<P>
General ALLEN. Yes, sir.
<P>
Senator SCHWEIKER. And then, just a moment ago, we heard there was some
discrepancy as to whether Admiral Gayler knew about the watch list himself.
<P>
General ALLEN. Well sir, that was at the time -- apparently Admiral Gayler's
recollection had to do with a year or so afterward. I believe, as we look
back at the records, it is probably true that that was not quite so long
as a year.
<P>
Senator SCHWEIKER. General Allen, in the course of intercepting international
communications, does the NSA accidentally or incidentally intercept
communications between two American citizens if one of them happens to be
abroad?
<P>
General ALLEN. Yes, sir.
<P>
<HR>
<P>
30
<P>
Senator SCHWEIKER. And what procedures, and what do you do after you intercept
a message between two American citizens either in terms of what you feel
the law is or what your directives are?
<P>
General ALLEN. The directives are that we do not do anything to those
communications, and we reject it as early -- reject such communications as
early in the process as it is possible for us to do. For example, if by tuning
the receiver, it is possible to reject them, that is what one does. It it
turns out to be somewhat later in the process, one does it then. But the
rules are clear, and that is that one rejects those messages as quickly in
the selection process and as automatically as it is physically possible to
do.
<P>
Senator SCHWEIKER. Is there any law that you feel prohibits you from intercepting
messages between American citizens if one is at a foreign terminal and the
other is at a domestic terminal, or do you feel there is no law that covers
this situation?
<P>
General ALLEN. No, I do not believe there is a law that specifically does
that. The judgment with regard to that is an interpretation.
<P>
Senator SCHWEIKER. General Allen, in a few words, what was Project MINARET?
Would you just describe, just briefly, what the objectives of Project MINARET
was?
<P>
General ALLEN. Well, sir, that was the project we have been talking about.
That was a code word used for it during part of the time we described.
<P>
Senator SCHWEIKER. Relating to the individuals, organizations involved in
civil disturbances, antiwar movements, demonstrations, and things such as
that; is that correct?
<P>
General ALLEN. Yes, sir. MINARET is a term that began in 1969, and as we
described somewhat formalized the process by which these messages were handled,
which had begun apparently about 1967 [<A HREF="#Exhibit 3">exhibit
3</A>].<SUP>1</SUP>
<P>
Senator SCHWEIKER. Now, in the initial communication on MINARET, is it true
that one of the equally important aspects of MINARET was not to disclose
that NSA was doing this?
<P>
General ALLEN. That appears in the documentation regarding it. Yes, sir.
<P>
Senator SCHWEIKER. And what was the reason for not disclosing to the other
intelligence agencies -- because this information only went to other intelligence
agencies -- what was the reason for not disclosing to the other intelligence
agencies, who were the consumers, that NSA was doing this?
<P>
General ALLEN. It is hard for me to really answer it because I am not exactly
sure as to what was the feeling of the people at the time. My understanding
is that the concern was that the people at NSA felt it was terribly important
that the activity be solely related to foreign intelligence, and that by
delivering these kinds of messages to an agency which also had a law enforcement
function, there was a danger that the material would end up being used for
a purpose which would not be appropriate. Therefore, for that reason there
were a set of procedures adopted which made the material be handled in a
distinctive and separate way to where it went to only specified individuals,
only hand-carried clearly marked "For Back Ground Use Only;" also devoid
<P>
_____________________
<P>
<SMALL>1 See p. 149. </SMALL>
<P>
<HR>
<P>
31
<P>
of the kind of designators that are placed on the kind of intelligence
information which NSA produces for a broader range of users.
<P>
Senator SCHWEIKER. Might there have been some concern that this was a
questionable legal area and that therefore dissemination of who was doing
it and how they were doing it might also have been injurious to the Agency?
<P>
General ALLEN. It is possible. I think that of course the concern was that
if the material was -- the basic concern is, I imagine it was in people's
minds at that time, was that if the material were used for some purpose
associated with prosecutive or evidentiary basis, that the sources and methods
which were used to obtain that intelligence would then be vulnerable to
disclosure or demands by courts to see it; so there was a very great concern
to insure that this material was handled in such a way as to minimize the
possibility that it would be used in that fashion.
<P>
Senator SCHWEIKER. Would it be possible -- granted this is not your policy,
and that you state you have not done this -- would it be possible to use
this information and apparatus that you have to monitor domestic conversations
within the United States if some person with malintent desired to do it ?
Not that you have done it, not that you intend to do, not that you don't
have a prohibition about it; I am just asking you about capacity or capability.
<P>
General ALLEN. I don't think I really know how to answer the question. I
suppose that such a thing is technically possible. It is clearly in violation
of directives procedures which are established throughout the entire structure
and which are monitored with great care.
<P>
Senator SCHWEIKER. And it has not been done by your agency, is that correct?
<P>
General ALLEN. Yes, sir.
<P>
Senator SCHWEIKER. The names that were put on the watch list could have been
sent in by any one of almost, I guess, a dozen security agencies or intelligence
agencies. Did you have any criteria as to whether you accepted their names
or not? In other words, suppose the FBI put names on a list; did you reject
any of their names, or did you just accept that as the input and the
recommendation or the suggestion from the FBI, for example ?
<P>
General ALLEN. It is my understanding, in going back and discussing how that
process worked at that time, that there were in at least two cases, discussions
about substantial increases to names for a couple of different problems.
These problems looked to the people at NSA as though they were in the law
enforcement area and therefore these agencies were told not to submit those
kinds of names, and they were not so submitted. So, there was that kind of
a review made, at least in some cases.
<P>
In general it is true that the agencies did submit names and NSA accepted
them based on the assurance of senior officials at those agencies that that
was an appropriate thing to do.
<P>
Senator SCHWEIKER. So it is NSA's basic position that the responsibility
as to determining what criteria was used for putting names on the list, with
the exceptions you have noted in terms of specifics, was basically the
responsibility of the originating agencies, is that correct?
<P>
General ALLEN. Yes, sir. You will note in the record that when I arrived
at NSA, one of the first things that I did was to contact each
<P>
<HR>
<P>
32
<P>
of the agency heads and request them to reexamine exactly that point, and
to reassure me that they had reviewed these names on the list and that their
requests for information were appropriate within their statutory and executive
authorities. That, of course, ended up with having the effect of terminating
the program. But the view that we had was that that responsibility was one
held by the requesting agency.
<P>
Senator SCHWEIKER. Do you think that the responsibility should rest with
each agency? I am thinking of prospective legislation. Where do you think
that responsibility should lie as to who makes demands on your agency at
this point for the future? Shall we forget the past?
<P>
General ALLEN. Well, for the future, we certainly have directives now which
prohibit this kind of activity in the future, and those are internal NSA
directives which I have issued. There are also, I understand, similar directives
at the requesting agencies. I believe that it has to be a responsibility
of both, and I think the question of oversight was in the executive branch
is one that is appropriate for the executive.
<P>
Senator SCHWEIKER. Yes. And yet, Mr. Huston wrote a memo that I've referred
to a moment ago, where the memo indicated, at least as far as the memo was
concerned, he wasn't even aware that the kind of activity we are talking
about was going on. This was a memo to Haldeman, to the whole White House
structure, and unless somebody was misleading people in terms of writing
a false memo, or badly informed, the memo went out implying that none of
this activity really was being conducted now.
<P>
Is that not correct?
<P>
General ALLEN. No, sir, that is not correct.
<P>
Senator SCHWEIKER. The Huston memo didn't say that you needed more authority
to do what you were doing?
<P>
General ALLEN. The Huston memo, according to my recollection, sir, said that
the NSA was providing some intelligence pertinent to this problem at the
present time in accordance with very restrictive and in a minimal way, and
that in order to do more of it, presumably in accordance with the President's
desires, they would have to receive additional instructions in order to do
that.
<P>
Senator SCHWEIKER. Yet, the watch list was going on in full blast at the
time with any agency having a right to put in any name that they wanted.
I have trouble reconciling that.
<P>
General ALLEN. Well, Number one, sir, I am not sure what you mean by "full
blast." The program I described was in process. Agencies were, I trust,
constrained in their placing names on it, and NSA at least exercised some
constraints in their accepting of names. There was a great deal of constraint
in the manner in which the information was handled. There were also no activities
undertaken by NSA, with the one exception we noted, to obtain these
communications, only to select them. And, it was to these issues, I think,
that Mr. Huston was probably referring when he said he thought there should
be an expansion.
<P>
Senator SCHWEIKER. One final question, General.
<P>
You testified that in 1973, the CIA decided to discontinue certain activities
because those activities might be in violation of the CIA's statutory charter.
Now, NSA has no such charter, and yet, I think obviously you, too, are concerned
about the activities of the past.
<P>
<HR>
<P>
33
<P>
Shouldn't we have a charter for NSA, and shouldn't we write into law some
things that won't be misconstrued or misunderstood or might be abused in
the future? Shouldn't NSA have a charter like the CIA does?
<P>
General ALLEN. Well, sir, I really must leave that judgment up to the Congress.
It is certainly clear now that the directives relating to foreign intelligence,
and that the interpretations of foreign communications as they are appropriate
at this time, are both clear in executive directives, and are enforced.
<P>
Senator SCHWEIKER. Thank you, Mr. Chairman.
<P>
The CHAIRMAN. Thank you very much, Senator Schweiker.
<P>
Senator Morgan is next.
<P>
Senator MORGAN. General Allen, I noticed in your testimony that you said
between the years 1967 and 1973 you had at most about 450 names on the watch
list for the purpose of watching for narcotics. Is that correct?
<P>
General ALLEN. Yes, sir, I believe so.
<P>
Senator MORGAN. And about l ,200 other names altogether.
<P>
General ALLEN. Yes, sir.
<P>
Senator MORGAN. So during that period of time of about 6 years you had about
1,650 names on the watch list.
<P>
General ALLEN. Yes, sir.
<P>
Senator MORGAN. And I believe you said --
<P>
General ALLEN. U.S. names, sir.
<P>
Senator MORGAN. U.S. names, that is right. And that the most that you had
at any one time was about 800 names.
<P>
General ALLEN. Yes, sir.
<P>
Senator MORGAN. Now all of these names, or U.S. names, were names that had
been involved in communications between a foreign station and either this
country or some other foreign station.
<P>
General ALLEN. Well, the reports which were generated as a result of those
names fit that description, yes, sir.
<P>
Senator MORGAN. That is right. And you were watching, of course -- you put
those names on, you testified for many purposes; one, in an effort to stem
the narcotics traffic. Is that one of the reasons?
<P>
General ALLEN. Yes, sir.
<P>
Senator MORGAN. And I believe you testified earlier that some large shipments
of narcotics were identified through this watch list and were prevented from
coming into this country.
<P>
General ALLEN. That is my understanding, yes, sir.
<P>
Senator MORGAN. Well, that was your testimony and your best information,
was it not?
<P>
General ALLEN. Yes, sir.
<P>
Senator MORGAN. You testified also that on one occasion an assassination
attempt on a prominent U.S. figure abroad was identified and prevented by
the use of this watch list. Is that correct?
<P>
General ALLEN. Sir, I would have to set the record straight. We did identify
that in an earlier version. In reviewing that particular item, there is some
question in our mind as to whether the actual watch list procedures that
we described here were the reason for selecting out the message that made
that revelation. So, in an attempt to be completely fair, I would like to
not say that was a result of the watch list.
<P>
<HR>
<P>
34<BR wp="br1">
<BR wp="br2">
Senator MORGAN. It did come from a message though that you intercepted.
<P>
General ALLEN. Yes, sir.
<P>
Senator MORGAN. You gave us another example as a value of this service, a
notification to the FBI of a major foreign terrorist act that was planned
in a large city in this country, which action was prevented because of
information you received?
<P>
General ALLEN. Yes, sir.
<P>
Senator MORGAN. Is this the sort of information that you are looking for
and watch for?
<P>
General ALLEN. Yes, sir.
<P>
Senator MORGAN. In all that period of time, in all of those 6 years then,
is it fair to say you had about 1,650 American names out of about 200 million
Americans?
<P>
General ALLEN. Yes sir.
<P>
Senator MORGAN. All right, sir. Now have you made all of that information
available to the members of this committee or to the staff of this committee
in executive session before?
<P>
General ALLEN. Yes sir.
<P>
Senator MORGAN. Now there is another project that has been alluded to but
has not been named here today. Have you also testified to the members of
this committee and/or to the staff all the information relevant to that project?
<P>
General ALLEN. Yes, sir.
<P>
Senator MORGAN. Have you been willing at all times to disclose any and all
information about the NSA to the members of this committee in executive session?
<P>
General ALLEN. Yes, sir.
<P>
Senator MORGAN. And are you still now ready -- are you now ready and willing
to disclose that or any other information?
<P>
General ALLEN. In closed session? Yes, sir.
<P>
Senator MORGAN. In closed session, to this committee of the United States
Senate.
<P>
General ALLEN. Yes, sir.
<P>
Senator MORGAN. Now you testified also about the law with regard to this
disclosure of information. If you would bear with me just a minute -- I believe
you testified that:
<BLOCKQUOTE>
The Congress of the United States in 1933, both the House and the Senate,
enacted a law encoded in 18 U.S. Code 952, which prohibits the divulging
of the contents of decoded foreign diplomatic messages or information about
them.
</BLOCKQUOTE>
<P>
And you also said that:
<BLOCKQUOTE>
Again in 1950, the Congress, both the House and the Senate, enacted another
law encoded in 18 U.S.C. 798, which prohibits the unauthorized disclosure,
prejudicial use, or publication of classified information of the government
concerning communication intelligence activities, cryptologic activities,
or the results thereof. Is it your opinion that that is still the law?
</BLOCKQUOTE>
<P>
General ALLEN. Yes, sir.
<P>
Senator MORGAN. Is it your opinion that the information with regard to the
other project, if disclosed publicly would be detrimental or could be detrimental
to the national security of the United States?
<P>
General ALLEN. Yes sir.
<P>
<HR>
<P>
35
<P>
Senator MORGAN. To your knowledge, is it still not the position of the President
of the United States that that information should not be disclosed publicly?
<P>
General ALLEN. That is my understanding, sir.
<P>
Senator MORGAN. And the Attorney General of the United States has so communicated
that to this committee. But you are still willing, in the first place, you
have communicated that information, all that you have been asked for, to
this committee and you are now willing to communicate any other information
within your command to this committee in executive session.
<P>
General ALLEN. Yes, sir.
<P>
Senator MORGAN. All right. Thank you, sir.
<P>
Thank you, Mr. Chairman.
<P>
The CHAIRMAN. Thank you, Senator Morgan. Senator Mathias?
<P>
Senator MATHIAS. Thank you, Mr. Chairman. General, on the last page of your
statement, you say that:
<BLOCKQUOTE>
Thus, the watch list activity, which involved U.S. citizens, ceased operationally
in the summer of 1973 and was terminated officially in the fall of 1973.
</BLOCKQUOTE>
<P>
I think that is perhaps the most important sentence in your statement. And
I want you to tell us if that is now the status.
<P>
General ALLEN. Yes, sir, it is.
<P>
Senator MATHIAS. And this was done on the advice of Attorney General Richardson,
but in fact, by the agency itself. Is that correct?
<P>
General ALLEN. Yes, sir. I terminated the -- well, the distribution of materials
was terminated in the summer. I requested each of the agencies to review
it and it was shortly after that that the Attorney General also then wrote
to me and said he was questioning the requests from FBI and the Secret Service.
<P>
Senator MATHIAS. Well, this is the kind of judgment and restraint that I
wish more of the agencies of the Government had exercised throughout the
years. I think, General, you are to be congratulated for the action that
you took. I think it is a very important addition to the administrative history
of the Federal Government. I think it is an example that I wish others would
follow. I have no further questions.
<P>
Senator GOLDWATER. He is Air Force, that does not surprise me.
<P>
Senator MATHIAS. Do you want that on the record?
<P>
General ALLEN. Yes, sir.
<P>
The CHAIRMAN. Senator Mondale?
<P>
Senator MONDALE. Thank you, Mr. Chairman.
<P>
General Allen, I would like to say for the record that I think that the work
of the NSA and the performance of your staff and yourself before the committee
is perhaps the most impressive presentation that we have had. And I consider
your Agency and your work to be possibly the most single important source
of intelligence for this Nation. Indeed, so much so that I am not convinced
that we fully perceived the revolution that has occurred in recent years
in intelligence gathering as a result of technological breakthroughs, and
it is your agency which basically deals with that area. But it is that most
impressive capacity which works so often for the purposes of defending this
country and informing it that also scares me in terms of its possible abuse.
That is why I am interested in knowing what limitations exist, in
<P>
<HR>
<P>
36
<P>
your opinion, upon its use that could be described as an abuse of the legal
rights of American citizens. As I understand your testimony, you limit yourself
to the interception of communications between -- either to or from -- a foreign
terminal and one in the United States. You do not intercept messages to and
from persons within the United States.
<P>
General ALLEN. That is correct, sir.
<P>
Senator MONDALE. But I also understand that this is a matter of policy and
not of law, that the basis for this limitation is a judgment on the part
of our Government that that ought to be as far as you go. There is not, in
your judgment, or in the judgment of the Agency, a restriction that would
limit you precisely to those policy guidelines that you now have.
<P>
General ALLEN. Well, I believe that is correct, sir, as far as the precise
restriction is concerned. But there is no misunderstanding with regard to
the executive directives that exist, the restriction is to foreign intelligence
purposes and foreign communications which are defined in some way.
<P>
Senator MONDALE. Given another day and another President, another perceived
risk, and someone breathing hot down the neck of the military leader then
in charge of the NSA; demanding a review based on another watch list, another
wide sweep to determine whether some of the domestic dissent is really foreign
based, my concern is whether that pressure could be resisted on the basis
of the law or not.
<P>
General ALLEN. Well, it is very hard for me, of course, to project into a
future unknown situation. And there are certainly risks that seem to have
occurred in the past. I can certainly assure you that at the present time,
under any combination of the present players, as I understand the rules and
the players themselves, there is no possibility of that.
<P>
Senator MONDALE. I will accept that. But what we have to deal with is whether
this incredibly powerful and impressive institution that you head could be
used by President "A" in the future to spy upon the American people, to chill
and interrupt political dissent. And it is my impression that the present
condition of the law makes that entirely possible. And therefore we need
to, in my opinion, very carefully define the law, spell it out so that it
is clear what your authority is and it is also clear what your authority
is not. Do you object to that?
<P>
General ALLEN. No, sir.
<P>
Senator MONDALE. I am verve heartened hear that answer. In the old days of
the watch list, as I understand your earlier testimony, when a name was presented
to you from the FBI, from the CIA, or from other sources, your agency really
could not determine whether the purpose of including that name was for a
legal objective or for an illegal purpose. In a sense, your role was largely
ministerial. The names were received. They were placed on the watch list.
You intercepted information and sent it to the consumer agency. But why they
really asked for it, other than the very generalized description they would
often give you, or how the information was used, was largely unknown to the
NSA. Is that correct?
<P>
General ALLEN. Well, it is certainly to some degree correct, sir. The points
that you have made were recognized at the time and there were
<P>
<HR>
<P>
37
<P>
steps taken to try to protect against the dangers that you point out. For
example, there was, as a matter of practice, a description of the foreign
intelligence requirement to which names were requested.
<P>
Senator MONDALE. Yes, they would say this would be for drugs or this is for
personal security of the President, or this is for the purpose of determining
whether there is foreign influence in terms of the antiwar movement, and
so on. But there was no way that you really knew in most cases, what may
have been behind a request or how that information was being used. Was there?
<P>
General ALLEN. Yes, sir. In a strict sense that is certainly correct.
<P>
Senator MONDALE. Thus similarly, the IRS is in the same position that if
some agency like the FBI in its COINTEL Program is pursuing an illegal objective,
you may be tasked to intercept messages in order to procure information for
an illegal purpose. That too, then, ought to be defined very carefully to
protect your agency from abuse. Would you agree with that?
<P>
General ALLEN. Yes, sir.
<P>
Senator MONDALE. I find that answer heartening. During the watch list days,
you were oppressed heavily, along with the other agencies, to find evidence
of foreign involvement, direction, or control of the antiwar movement. Would
you say that you found much evidence of such foreign control and direction?
<P>
General ALLEN. Sir, my understanding of that is not complete. From a review
of results of those messages which we did provide other agencies, they
essentially did deal with foreign influences and foreign support to certain
domestic activities. And so, in that sense, I would say that the results
of the NSA activity did show foreign influence. It is also my understanding
that when that information was put in perspective by particularly the CIA,
I believe, that their conclusion was that the degree of foreign control was
very small.
<P>
Senator MONDALE. The first part of your answer surprised me a little bit
because almost uniformly we have heard evidence from the various other agencies
that they found little or no foreign direction, even though they were being
pressed so hard to find it by the --
<P>
General ALLEN. Well sir, you must bear in mind that we were only dealing
with messages that related to a foreign contact or a foreign interaction
for the person involved. So all we saw was that. And so our perspective on
it is clearly biased. What we saw was foreign involvement and foreign support.
I don't want to use the word control because I do not know how to assess
that. But my understanding is that the agencies evaluating it concluded as
you said.
<P>
Senator MONDALE. One of my concerns, and I think this has come up with the
other agencies -- the Postal Department, the IRS and so on -- is that when
you are tasked to review something as vague as foreign involvement or direction,
it becomes so vague that it is very hard to restrain the review at all. And
we have one example that it is agreed that we could raise today. A leading
U.S. antiwar activist -- and we know him to be a moderate, peaceful person,
as a matter of fact, someone who quit the antiwar movement even though he
was desperately against the war, because he so much opposed some of the militancy
and violent rhetoric -- sent a message to a popular singer in a foreign country
asking for contributions to a peace concert -- and also his participation.
The message noted the planned participation
<P>
<HR>
<P>
38
<P>
in this concert of some of the most popular musicians and groups in the United
States at that time and asked the recipient "either to participate directly
in providing the entertainment, or support the concert financially." Now,
we have agreed not to use the names. I do not know why we have agreed not
to use the names, but we have.
<P>
The CHAIRMAN. I might say there, Senator, the reason being that we have not
first cleared it With these individuals and there is a matter of their own
privacy that we have to take into account.
<P>
Senator MONDALE. All right, fine. But in any event, when you are picking
up stuff like this from peaceful people who just are opposed to a war which
now most Americans feel was unwise, do you not think that it raises very
serious questions about how you contain snooping and spying on American citizens
-- particularly when your agency is required to pursue an objective which
virtually defies definition and so easily can spill over in a way to undermine
and discourage political criticism and dissent in this country?
<P>
General ALLEN. I am afraid, sir, I have to dodge the basic philosophic nature
of your question because the facts are, that as a technical collection agency,
NSA was asked a far more simple question, which is a little hard for me to
go back and construct all the emotion at the time. It is certainly not the
same as today. But that question was that the Defense Intelligence Agency,
in this particular case, asked for information on the funding of certain
U.S. peace and anti-Vietnam war groups. And this message was from such an
organization or person to an overseas location where foreign funding and
support was requested. It's certainly true that in this time in history one
would certainly have a substantially different view of that than at the time.
<P>
Senator MONDALE. But it shows how very difficult it is to define the outer
parameters of a search like that does it not? I mean, if we could use the
names today, I think people would be surprised at governmental concern or
the feeling that Government had the right to snoop in such messages, would
they not?
<P>
General ALLEN. Well, I only can say I don't know how to answer your question.
The requirement to us, the request for information was very specific and
very constrained and addressed to a very narrow point. The broader aspects
of your question, I think I am not really qualified to answer.
<P>
Senator MONDALE. I think that is why we have to define your requirements
to include some very precise limits on the interruption of citizens' rights,
because as I see it now, at least as the agency has defined its restrictions
in the past, you are largely unrestricted. It has been the interpretation
of your agency that you can roam very far indeed.
<P>
Thank you very much, Mr. Chairman.
<P>
The CHAIRMAN. Thank you Senator Mondale.
<P>
Senator Goldwater.
<P>
Senator GOLDWATER. First, I want to be on the record as opposed to public
hearings on this matter.
<P>
General, as I remember correctly, when you were before our committee you
stated that the law did not allow you to testify on any aspect of the NSA.
Is that correct?
<P>
General ALLEN. That is what I believe to be the case, yes, sir.
<P>
<HR>
<P>
39
<P>
Senator GOLDWATER. Then, theoretically, you are violating the law in being
here.
<P>
General ALLEN. It would seem so, yes, sir.
<P>
Senator GOLDWATER. Well I wanted to ask that question to get two rules that
bear on this committee that maybe some of our members have forgotten about.
In the Senate Rule 36 paragraph 5 it says:
<BLOCKQUOTE>
Whenever, by the request of the Senate or any Committee thereof any documents
or papers shall be communicated to the Senate by the President or the head
of any Department relating to any matter pending in the Senate, the proceedings
in regard to which are secret or confidential, under the rules, said documents
and papers shall be considered as confidential and shall not be disclosed
without leave of the Senate.
</BLOCKQUOTE>
<P>
I wanted to make that a part of the record in the event that any classified
information might be offered by members of this committee under the assumption
that we have the power to downgrade or down classify classified information.
<P>
Then, we in our own rules, under Senate Resolution 21 "a select committee
is required to protect classified information."
<P>
Section 7 reads as follows:
<BLOCKQUOTE>
The Select Committee shall institute and carry out such rules and procedures
as it may deem necessary to prevent . . . (2) the disclosure, outside of
the Select Committee, of any information which would adversely affect the
intelligence activities of the Central Intelligence Agency in foreign countries
or the intelligence activities in foreign countries of any other department
or agency of the Federal government.
</BLOCKQUOTE>
<P>
So you are probably, in your opinion, operating outside the law. I just wanted
to set the stage so that this committee would not try to operate outside
the rules of the Senate and the rules of its own committee.
<P>
I have no questions.
<P>
The CHAIRMAN. Thank you Senator Goldwater. I think at the appropriate time
I will reply to the suggestion that the committee is operating outside of
the rules of the Senate or outside of the law. I do not believe that to be
a correct statement of the position of this committee. But I will not interrupt
the line of questioning at this time, because I think Senators would like
to have a chance to complete the questioning of the witness.
<P>
Senator GOLDWATER. Mr. Chairman, I did not charge that we had operated outside
the rules. I said we may.
<P>
The CHAIRMAN. Very well, we will discuss that at greater detail unless the
Senator would like to discuss it now. I thought we would go through the line
of questioning first.
<P>
Senator GOLDWATER. I just want to protect you and all of us.
<P>
The CHAIRMAN. All Right, fine. Thank you Senator Goldwater. I really appreciate
that.
<P>
Senator TOWER. I must say, Mr. Chairman, I am very touched by Senator Goldwater's
concern for your safety.
<P>
The CHAIRMAN. I am too, Senator. Let us see, Who is next here? Senator Baker.
<P>
Senator BAKER. Mr.Chairman, thank you very much.
<P>
General, I notice in your statement in speaking of the utilization of the
watch list and your efforts in that respect over the years. This sentence:
"Examples of the value of this effort including the notification
<P>
<HR>
<P>
40
<P>
to the FBI of a major foreign terrorist act planned in a large city which
permitted action to prevent completion of the act and thus avoid a large
loss of life." Are you at liberty to elaborate on that at this point?
<P>
General ALLEN. I really am not, sir.
<P>
Senator BAKER. And the balance of the statement is equally provocative to
me. It says: "An assassination attempt on a prominent U.S. figure abroad
was identified and prevented." Can you give us any further information on
that? I am not urging you to go beyond the confines of those things you are
permitted to testify to at this point.
<P>
General ALLEN. Sir, we will certainly provide that in executive session to
you and go into some detail.
<P>
Senator BAKER. On both those points in executive session?
<P>
General ALLEN. Yes.
<P>
Senator BAKER. Then I will not, General, insist on it at this time except
to ask you whether or not I am to assume by your statement that both of these
activities, which I will hear more about in executive session later, were
in fact prevented as a result of your activities in conjunction with the
watch list.
<P>
General ALLEN. No, sir. Well, Senator Morgan asked the question and you have
an earlier draft of the statement, the one with regard to the assassination
attempt, on more careful review, we really could not support that it was
a watch list entry that caused us to select the message that revealed that
particular act. So that was an error on my part to have included that. The
situation is correct in the interception of the message and all of that is
correct. But it is unfair to say that we selected because of the watch list.
<P>
Senator BAKER. But both of them were involved with your watch list activities.
<P>
General ALLEN. Yes, sir.
<P>
Senator BAKER. Well, I will look forward to your further statement on that
a little later. On the general watch list operations, General, did you ever
receive the written approval of any Attorney General of the United States
about these activities?
<P>
General ALLEN. Not to my knowledge, no, sir.
<P>
Senator BAKER. Was any ever sought that you know of?
<P>
General ALLEN. No, sir. The briefings which a predecessor of mine have had
some of those characteristics and the record shows that they were briefed
in some detail and had some agreement on the procedures to follow. But it
is probably unfair to the Attorneys General involved to say that it was a
specific written approval.
<P>
Senator BAKER. Do you know of particular circumstances where a President
or an Attorney General or any Cabinet member for that matter may have suggested
names to be included on the watch list?
<P>
General ALLEN. No, sir, I do not.
<P>
Senator BAKER. Were any names ever suggested to the NSA that were rejected
for inclusion on the watch list?
<P>
General ALLEN. My understanding, sir, as we have looked back at the history
of that is that there were substantial numbers of names which were suggested,
a large number from the FBI and from another agency as well which were rejected
in the sense that a discussion took place as to the appropriateness of these
names. The NSA people pointed
<P>
<HR>
<P>
41
<P>
out to them that it was too close to law enforcement and that therefore they
should not be included. And, therefore, they were rejected. But that is not
documented in the sense of it was turned down before it got to the Director
of the FBI and he did not in fact submit the name.
<P>
Senator BAKER. That is a fairly general statement. But let me tell you the
impression that I draw from it. You are saying that in these particular cases
that the NSA said these names and the purposes for which you would include
these names are not close enough to intelligence gathering, which is our
bag, and are probably only justified as law enforcement, which is your bag,
and therefore we are not going to include them. Is that the essence of what
you have said?
<P>
General ALLEN. Yes, sir.
<P>
Senator BAKER. Who made that determination? Did you make that determination?
<P>
General ALLEN. No, sir. It was made at a lower level within the agency, so
the request never came. I am reminded it was actually not the FBI but the
Department of Justice.
<P>
Senator BAKER. I see. All right.
<P>
General ALI EN. And it was turned down before it got to the Attorney General.
<P>
Senator BAKER. Thank you very much, Mr. Chairman.
<P>
The CHAIRMAN. Thank you, Senator Baker.
<P>
Senator BAKER. Before we go on, General I do want to be briefed on the other
two points, Mr. Chairman, either in executive session or if the General would
agree to fill me in on the details at a later time, I would be grateful for
that.
<P>
The CHAIRMAN. Very well. Senator Tower.
<P>
Senator TOWER. General, you are familiar of course with the efforts that
have been made by the committee, by representatives of the administration
and your agency to be circumspect in this public inquiry. Now, taking into
account that effort and the good faith of all concerned, is there, in your
opinion, a substantial risk still that these open hearings may impact adversely
on the mission of your agency?
<P>
General ALLEN. Yes, sir.
<P>
Senator TOWER. Thank you, General.
<P>
The CHAIRMAN. General, your answer to the last question reflects the position
of the administration, does it not, which is opposed to any public hearings
on all matters past or present relating to the NSA.
<P>
General ALLEN. That was terribly broad, sir.
<P>
The CHAIRMAN. Well it seemed to me that the administration took a terribly
broad position.
<P>
General ALLEN. I believe it is probably fair to say on all matters that relate
to the intelligence operations of the NSA.
<P>
The CHAIRMAN. And it is also clear that although the administration opposed
these hearings this morning on the watch list question, they did declassify
the documents at the committee's insistence and did authorize you to appear
as a witness this morning to respond to the committee's questions.
<P>
General ALLEN. That is correct, sir.
<P>
<HR>
<P>
42
<P>
The CHAIRMAN. I have listened with great interest to your testimony, General,
and to the answers. And it seems to me that the real area of concern for
this committee has nothing to do with the fact that on occasion, your operation,
watch list operation related to a perfectly good and important matter. I
do not think that anybody here would quarrel about the fact that information
affecting the protection of the President is a very important matter and
if you have a capacity to help in that regard, I do not suppose any member
of this committee would want to argue that that is irrelevant or unimportant.
<P>
The same thing can be said about narcotics. We are all concerned about narcotics.
So our inquiry here has not as its purpose criticizing given objectives that
you sought to serve, of the kind that you described. But, rather the lack
of adequate legal basis for some of this activity and what that leads to.
For example, you yourself testified that in connection with some information
that you obtained on narcotics and turned over to law enforcement agencies
of the Government, prosecutions could not be initiated because it was not
possible to introduce that evidence into court. It was not lawful and under
the rules of the court and laws of the land it could not be used. So prosecutions
could not be initiated. Is that not correct?
<P>
General ALLEN. Well, I do not know sir. The reason that that concern was
felt at the time was because the information could not be used in court because
to do so would reveal intelligence sources and methods.
<P>
The CHAIRMAN. Well, for whatever reason we will question the Attorney General
on the legality of the use of that information. But for one reason or another,
it could not be used in actual prosecutions. Now, Senator Mondale, it seemed
to me, touched upon the root cause of our concern. Here we have an agency,
the NSA, that is not based upon a statute, like the CIA, which undertakes
to define its basic authority. And your testimony makes clear that whatever
foreign intelligence may mean, it is being defined, from time to time by
the executive. Is that not correct?
<P>
General ALLEN. Yes, sir.
<P>
The CHAIRMAN. Now, ordinarily, the executive does not decide such basic matters.
Ordinarily, as in the case of the CIA, an agency of this importance finds
its fundamental power derived from legislation. Suppose for example we had
a President, we cannot be so certain what kinds of things may happen in this
country, suppose we had a President one day who would say to you: "I have
determined with my advisers, who are my appointees, that foreign intelligence
is seamless and it is quite impossible to differentiate between domestic
and foreign intelligence because we need to know it all, and some of it we
can gather from domestic sources. And so, in the overriding interest of obtaining
the maximum amount of foreign intelligence you are instructed to intercept
messages between Americans that are purely domestic and various agencies
of the Government will furnish you with lists of people whose messages you
are to intercept -- all without warrant, all without any judicial process,
all without any sanction in the law."
<P>
Now, under those circumstances, is there anything in the present law that
would permit you to say we cannot do this, Mr. President, and we refuse to
do it because it is illegal?
<P>
<HR>
<P>
43
<P>
General ALLEN. Yes, sir.
<P>
The CHAIRMAN. What provision is there in the law?
<P>
General ALLEN. It is my understanding that the interpretations which deal
with the right to privacy of unreasonable search and seizure of the fourth
amendment.
<P>
The CHAIRMAN. Well all of those questions --
<P>
General ALLEN. Those domestic intercepts which cannot be conducted under
the President's constitutional authority for foreign intelligence, then we
are not authorized by law or constitutional authority and they are clearly
prohibited.
<P>
The CHAIRMAN. But those very questions were raised with respect to some of
the watch list activities. In other words, do you not think that it would
be in the interest of all of us if we had some statutory law like most all
other agencies have that defines the basic mission and defines as a matter
of law foreign intelligence and contains whatever other guidelines may be
necessary to be sure that this tremendous capability you possess is outward
looking and is confined to legitimate intelligence concerns of the country?
<P>
General ALLEN. Clearly, sir, neither I nor the agency I represent has objection
to laws which are needed by this country. And we look to the Congress to
make those decisions. On the other hand, I certainly do not want to leave
the impression, sir, that there are these broad ranges of evil activities
which would be done which in themselves -- in my understanding of the status
of the law and the executive branch directives -- are clearly prohibited.
<P>
The CHAIRMAN. The executive branch directives which are largely determinative
of the scope of your action at any given time are subject to change within
the executive branch. The point I make is that there is a legislative
responsibility here. And since it normally obtains with respect to the work
of all other Federal agencies, it would seem to me advisable that it should
also obtain with respect to the NSA. I have no further questions of you General.
<P>
Are there any other further questions on the part of the members of the
committee? Yes, Senator Mondale.
<P>
Senator MONDALE. May I ask, is it Mr. Buffham?
<P>
General ALLEN. Yes that is correct.
<P>
Senator MONDALE. If he is not sworn in, he doesn't have to be. I just want
to ask, you were I understand, representing the NSA, or at least representing
General Gayler, in the preparation of the Huston plan, is that correct?
<P>
Mr. BUFFHAM. Yes, sir.
<P>
Senator MONDALE. Can you help explain to us the mystery of why NSA appeared
to be requesting authority from the President to do what it was already doing?
What, in addition, was expected if the President signed off? What did you
want to be able to do that was not then thought to be within the authority
of the NSA?
<P>
Mr. BUFFHAM. Well, the activities which were ongoing at that time were very,
very carefully controlled and very, very restrictive and very, very minimal.
The procedures which Senator Schweiker described under MINARET were drawn
up to insure the most careful handling of this very, very restricted, very,
very minimal effort. It appeared when this -- when we were asked to cooperate
by the President in providing more information that would be helpful in the
domestic area, it appeared
<P>
<HR>
<P>
44
<P>
to us that we were going to be requested to do far more than we had done
before and it appeared to us that this might actually involve doing some
collection, which we had never done before, doing some collection for this
purpose. And we did not feel that we could engage in such activity unless
there was approval at the very highest levels. So that was the reason that
there was a reservation on NSA's part, and the feeling that any increase
in these activities must have Presidential approval.
<P>
Senator MONDALE. So it was your judgment at that time that you were being
asked, or were about to be asked, to do something that went substantially
beyond --
<P>
Mr. BUFFHAM.. That we could do, but we weren't certain. It appeared as if
this was a request to increase activities.
<P>
Senator MONDALE. Could you tell the committee what kinds of things you would
expect to follow had the Huston plan been approved, in terms of the use of
the NSA?
<P>
Mr. BUFFHAM. I don't think we ever made an analysis of that, Senator.
<P>
Senator MONDALE. But you indicated you were concerned about what would be
expected of you -- the degree to which you would have to go beyond your current
practices -- should the Huston plan be approved. Can you tell us what things
concerned you?
<P>
Mr. BUFFHAM. Well, remember there was a lot of confusion on this particular
item. The committee, which Admiral Gayler was a member of, was tasked to
draw up a plan not a plan, it was tasked to draw up an analysis of what kind
of foreign threat existed and where there were gaps in intelligence and they
were not asked to make any recommendations, they were merely asked to identify
gaps and to suggest various alternatives which could remedy possibly that
gap.
<P>
Senator MONDALE. One of the remedies suggested was to greatly broaden the
authority of the NSA to intercept messages.
<P>
Mr. BUFFHAM. That was one of a series of alternatives under that particular
item. There was no recommendation made by Admiral Gayler or any members of
that Ad Hoc Intelligence Committee. What happened was that after the committee's
report went to the White House, Mr. Huston analyzed all of the alternatives
and he selected those which, in his judgment, he felt the President should
approve. And he then prepared a memorandum to the President through Mr. Haldeman,
which was approved and then later, withdrawn and rejected and never implemented.
But those were Mr. Huston's ideas of what should be done.
<P>
Senator MONDALE. What did Mr. Huston have in mind? Had this approval been
given to the NSA?
<P>
Mr. BUFFHAM. That I do not know, sir.
<P>
Senator MONDALE. You have no idea whatsoever? I am told this option was submitted
by the NSA.
<P>
Mr. BUFFHAM. No. This was one of three or four alternatives drawn up under
that particular item.
<P>
Senator MONDALE. Did the NSA want it? Did Admiral Gayler oppose it?
<P>
Mr. BUFFHAM. Admiral Gayler did not want it, to my knowledge.
<P>
<HR>
<P>
40
<P>
Senator MONDALE. He opposed it? Is there anything in writing suggesting --
<P>
Mr. BUFFHAM. He was specifically asked, as all the members of the committee
were asked by Huston, not to make recommendations, but merely to specify
alternatives. But the determination as to what alternative, if any, was to
be selected was to be a White House matter. Now, the only exception to that
was that Mr. Hoover, after the report had been signed by the other members,
he gave his personal views as to what should be done with those various
alternatives, and that was not checked with the other members of the ad hoc
committee report.
<P>
In other words, Admiral Gayler did not know that Mr. Hoover was going to
submit separate comments, and Admiral Gayler did not submit separate comments
himself; because it was his understanding, as it was all of us that were
involved in that exercise, that that was not what was required or desired.
<P>
Senator MONDALE. Mr. Buffham, is it your testimony that you do not have any
idea what Mr. Huston had in mind by the option which we are discussing; namely,
to greatly broaden the discretionary authority of the NSA?
<P>
Mr. BUFFHAM. Well, I don't know positively. But I would assume that he would
have thought that the other intelligence agencies would then increase the
numbers of names on their lists, and ask NSA to do something by way specifically
targeting those people, including for collection. And that was not a practice
that was done then or ever has been done by NSA.
<P>
Senator MONDALE. It was one that concerned you a great deal?
<P>
Mr. BUFFHAM. Yes; it concerned all of us in the NSA.
<P>
Senator MONDALE Were you concerned about its legality?
<P>
Mr. BUFFHAM. Legality?
<P>
Senator MONDALE. Whether it was legal.
<P>
Mr. BUFFHAM. In what sense; whether that would have been a legal thing to
do?
<P>
Senator MONDALE. Yes.
<P>
Mr. BUFFHAM. That particular aspect didn't enter into the discussions.
<P>
Senator MONDALE. I was asking whether you were concerned about whether that
would be legal and proper.
<P>
Mr. BUFFHAM. We didn't consider it at the time; no.
<P>
Senator MONDALE. But at least you would not do it without the President's
direct authority.
<P>
Mr. BUFFHAM. That is correct.
<P>
Senator MONDALE. All right. May I ask one more question of the General Counsel
? In your opinion, was the watch list legal?
<P>
Mr. BUFFHAM. I think it was legal in the context of the law at the time.
<P>
Senator MONDALE. Has any law changed that legality?
<P>
Mr. BUFFHAM. well, we have since had decisions such as in the <I>United
States</I> v. <I>U.S. District Court</I> case in 1972 which placed -- which
stated in effect that the President does not have the authority to conduct
a warrantless surveillance for internal security purposes.
<P>
<HR>
<P>
46
<P>
The CHAIRMAN. May I just suggest that in line with my earlier statement,
it seems to the committee that the Attorney General of the United States
should be asked about the legal and constitutional questions that are raised
by the disclosures this morning. I do not mean to cut you off, Senator.
<P>
Senator MONDALE. I will live with that. But what I was trying to demonstrate
is what I think the private record discloses; that they thought that to be
legal. I think that is important to the determination of this committee of
how these laws are interpreted. I believe they still think it is legal. That
is what worries me.
<P>
Mr. BUFFHAM. May I make just one comment, Mr. Chairman? There is one court
decision on the matter. It was held in that decision to be lawful.
<P>
Senator MONDALE. Then you think it is lawful? That is what it held?
<P>
Mr. BUFFHAM. I think it was lawful at the time.
<P>
Senator MONDALE. That is my point. They still think it is legal.
<P>
Senator MORGAN. Mr. Chairman, could we ask him to give us a decision some
time?
<P>
Senator GOLDWATER. He said it was lawful at the time.
<P>
The CHAIRMAN. I think all relevant decisions on the matter should be supplied
by the General Counsel of the Agency. But we will look, in the main, to the
Justice Department on these legal questions. General, thank you very much
for your testimony. If there are no further questions, you are excused at
this time.
<P>
The CHAIRMAN. Now we have another matter that needs to be brought up before
the public hearing concludes this morning, and I will speak of it just as
soon as these gentlemen have an opportunity to depart. Please come back to
order. At the outset this morning, I mentioned that this hearing would be
conducted in two parts. The reason for doing so has been made evident in
the course of the proceedings. Although the administration had objected to
a public hearing on any matter relating to the NSA, the committee, by majority
vote, believed that it was necessary to bring the facts relating to the watch
lists to the attention of the American people through a public hearing. As
I mentioned earlier, though the administration opposed the hearing, it did
cooperate to the extent of declassifying the materials, and consenting to
General Allen's appearance as a witness. Now, we come to the second part,
another matter that the committee must decide upon to which the administration
has given no consent either to furnish witnesses or to declassify materials.
<P>
Senator Goldwater, I think, had special reference to this second aspect.
<P>
Senator GOLDWATER. It does, but I would like to correct the record. We did
not take a vote on this subject.
<P>
The CHAIRMAN. Yes, in executive session yesterday, with a quorum present,
the procedures which we have followed today were presented and approved without
objection. And I took that to mean, in accordance with normal procedure,
that the committee had given its consent.
<P>
Senator GOLDWATER. I left a note to be recorded against it, and I had assumed
a vote would be taken. But it was not.
<P>
The CHAIRMAN. Well, had a vote been taken, or anyone on the committee had
moved to take a vote, Senator, your objection would have been recorded as
you requested.
<P>
<HR>
<P>
47
<P>
Now, in connection with the second matter, I would like first to respond
to some of the questions that were raised earlier by Senator Goldwater with
respect to the legality of our making a public disclosure of the second subject.
I personally have no problem with the legality of doing so. The Constitution
of the United States provides, in article I, section 5, clause 2, that each
House may determine the rules of its proceeding; and in clause 3, that each
House shall publish its proceedings, except parts as may, in their judgment,
require secrecy. This committee was empowered by a resolution of the Senate
to inquire into this subject matter, including the NSA. And that resolution,
S. Res. 21, gives the committee the power to pass such rules as it may deem
necessary on disclosure, and makes clear that the committee rules can authorize
disclosure. So that the rules are based solidly on S. Res. 21, the underlying
resolution by which the committee was created.
<P>
Senator GOLDWATER. Would the Senator yield?
<P>
The CHAIRMAN. If I may just complete the --
<P>
Senator GOLDWATER. I wish you would read section 2 of that also.
<P>
The CHAIRMAN. Yes, I will. I was just getting to the Senate rule, and I will
read it all. In pursuance of S. Con. Res. 21, the committee adopted its rules,
and the relevant rule is section 7. Section 7.5 is the relevant rule. If
counsel will find it for me, I will read it. It reads:
<BLOCKQUOTE>
No testimony taken, including the names of witnesses testifying, or material
presented at an executive session, or classified papers or other materials
received by the staff or its consultants while in the employ of the Committee,
shall be made public in whole or in part, or by way of summary, or disclosed
to any person outside the Committee, unless authorized by a majority vote
of the entire Committee; or after the determination of the Committee in such
manner as may be determined by the Senate.
</BLOCKQUOTE>
<P>
So, it appears to me that making a public disclosure of the matter now under
consideration is subject to the will of this committee; and I would like
to read into the record the reasons why I believe such a public disclosure
should be made; after which I will invite Senator Tower, who disagrees with
me on this subject, to express for the record the reasons why he thinks such
a disclosure should not be made.
<P>
It being 25 minutes of 1 now, Senator, it may not be possible for this whole
matter to be discussed or debated. But if it cannot be resolved at this time,
it will be taken up in the next session of the committee this afternoon,
and with the hopes that the committee can then reach a final determination
by vote.
<P>
Senator TOWER. Mr. Chairman, if you would yield at that point.
<P>
The CHAIRMAN. Yes.
<P>
Senator TOWER. I will state my reasons briefly at the conclusion of your
remarks. Obviously, it is difficult to pursue the matter in open session,
because those who oppose disclosure have some difficulty in explaining the
reasons why in an open session.
<P>
The CHAIRMAN. And for that reason, I will certainly accommodate the request
in the interest of fairness, so that there can be a full and complete discussion
within the committee and the vote then can be taken by the committee. I would
anticipate this could occur this afternoon when the committee goes into executive
session The reasons why I believe that this second matter should be made
public are as follows. This committee has proceeded with great caution
<P>
<HR>
<P>
48
<P>
throughout its investigation, which has covered a broad range of NSA activities.
Testimony has been taken from numerous NSA officials, all in executive session
until this morning. The committee has also received extensive briefings from
General Allen and others in private.
<P>
Most of these activities we have found to be legitimate, clearly within the
scope of the intelligence purposes of the agency, and for reasons that the
committee feels relate to sensitive national security matters, should be
kept secret. But our investigation did uncover two NSA activities which I
believe are properly subject to some form of public disclosure. Because,
one, the would appear to be unlawful; two, they have now been terminated,
and thus do not represent ongoing activities; three, they can be discussed
without revealing the NSA's sensitive techniques; and four, legislation is
needed to prevent their repetition. What has occurred yesterday could occur
tomorrow, if we leave it all to executive decision.
<P>
Now, as I have said, as to one of these -- the watch list -- the administration
agreed to declassify the documents, and authorize General Allen to testify
as he has. As to the other, the executive branch has consistently opposed
public hearings or any other form of public disclosure. Yesterday, the committee,
in the manner I described in response to Senator Goldwater, agreed that we
nevertheless would disclose facts concerning the second program to the American
public.
<P>
I believe that the public is entitled to an explanation of why that decision
was made yesterday, in face of the administration's strongly stated opposition.
I do not suggest that the administration has acted in any way other than
in good faith to exercise its responsibilities as it perceives them. However,
Congress has a right and duty to exercise some judgment on its own. It must
do so fairly, properly, and with due regard to the views of the executive.
But it cannot simply abdicate to the executive.
<P>
We believe that -- or at least let me speak for myself -- I believe that
yesterday's decision does represent a proper exercise of the constitutional
responsibility of the committee, which is charged with an investigation of
this importance, and charged by the legislative branch to perform it. As
I understand it, the executive branch makes two arguments, which were stated
often in executive sessions of the committee, against a public disclosure
of this second matter. Neither of them, as I heard the many spokesmen who
came up to present them, made any particular point of sensitive technology,
or anything of a character that would reveal the nature of NSA's operations.
Their arguments seemed, rather, to focus first on their concern that the
disclosure of the identity of certain companies and activities would make
other companies hesitate to cooperate with our intelligence agencies in the
future; and second, that such a disclosure might be of embarrassment to the
particular companies concerned.
<P>
I believe that the answer to the first argument is that companies should
hesitate to comply with requests of the Government at least long enough to
determine if the actions they are requested to do are lawful and do not violate
the constitutional rights of American citizens. And I believe the answer
to the second argument is that fairness to the companies themselves requires
that the facts be fully and fairly stated, which I think this committee is
in a position to do.
<P>
<HR>
<P>
49
<P>
I believe that it would be inappropriate to keep secret the facts of this
second program, since in my judgment they establish apparent violations of
section 605 of the Federal Communications Act, and of the fourth amendment
to the Constitution. Second, the program involved neither ongoing activity
nor technological secrets. And third, exposing it is directly related to
whether the NSA needs a legislative charter to govern and control its activities
in the future. Finally, the public debate that we hope will ensue from this
session may make both the Government and private companies more careful to
weigh the legality of programs that may be suggested in the future.
<P>
So in balancing the arguments for and against disclosure, which we have done
most carefully, we have consulted extensively with the executive branch.
Several times we have delayed our action to make certain that we had heard
all of the executive branch's arguments. We have engaged in extensive
interrogations of General Allen and Director Colby and the Secretary of Defense,
Mr. Schlesinger, and finally, from the Attorney General and representatives
of the President. So we believe we have listened fully to the arguments that
they wish to present.
<P>
If the committee remains firm in its decision, the second matter is what
form of disclosure would be most appropriate. Since witnesses have not been
made available by the executive branch, it seems to me that the most appropriate
form of disclosure would be that of a statement issued on the authority of
the committee itself, carefully drawn to present the key facts unemotionally
and without fanfare. As to the accuracy of the statement, it would be carefully
checked with the Agency itself so that there would be no factual distortions
in the presentation. The statement, I might emphasize, would be based on
testimony received by the committee in executive session. It would not quote
in whole or in part from the text of any classified document presented by
the executive branch to the committee. Because the testimony given in executive
session before this committee was classified by the committee itself, pursuant
to the committee's rules, the committee has every right to release such facts
based upon such testimony. Indeed it has the right to release the testimony
itself should it so decide.
<P>
So the decision taken yesterday to release this information was based primarily
on the belief that programs of such dubious legality should be disclosed;
because, absent real national security factors, which are not present in
this case, classification should not be used to hide or cover wrongdoing.
And, as I have said, in the technical sense, I do not think that classified
information is being released at all.
<P>
The decision to make this matter public should, in my view, be tested not
only against its particular facts but also in the light of several general
principles. First, in a democratic society, there should be a strong preference
in favor of letting the people know what their Government has been doing.
Democracy depends upon an informed electorate. As one of our Founding Fathers,
Edward Livingston, stated:
<BLOCKQUOTE>
No nation has ever found any inconvenience from too close an inspection into
the &nbsp;conduct of its officers, but many have been brought to ruin and
reduced to slavery by suffering gradual impositions and abuses which are
imperceptible, only because the means of publicity had not been secured.
</BLOCKQUOTE>
<P>
Second, the general principle for disclosure is particularly apt in the context
in which this committee finds itself. For 30 years this
<P>
<HR>
<P>
50
<P>
country has had a huge and highly secret intelligence apparatus whose actions
have not been subject of an informed public debate. Laws governing their
activity have all too often been lacking, as with the NSA, or overly vague,
as with the CIA. The agencies have sometimes acted in ways that appear to
be unconstitutional and illegal. The Congress and the public should now be
given a chance to decide whether changes in the laws and procedures governing
the intelligence agencies are necessary. That has not happened for 30 years,
and surely we can afford a debate at least once in a generation.
<P>
Third, it does not follow, of course, that everything we learn in the work
of this committee should be disclosed. And from what I have previously said,
much of what we have learned about the NSA, which, in the judgment of the
committee, falls clearly within its province, will not be disclosed. This
country should have strong and effective intelligence services, but we must
act legally. Keeping unlawful programs secret can only serve in the long
run to weaken our intelligence efforts.
<P>
Unless the people are convinced that the intelligence agencies are acting
within the law and in the best interests of the United States a democratic
people will not support these agencies for long. "Eternal vigilance," as
Thomas Jefferson said, "is the price of liberty." And as James Madison concluded,
"the right of freely examining public characters and measures and the free
communication thereon is the only effective guardian of every other right."
For these reasons, I believe that it would be proper for the committee to
approve the disclosure of the second matter to which the discussion relates.
<P>
Now, I defer to Senator Tower.
<P>
Senator TOWER. Thank you, Mr. Chairman.
<P>
Mr. Chairman, I was unavoidably absent from the meeting yesterday in which,
without objection, it was decided that this matter would be spread on the
public record today. Had I been there, I &nbsp;would have objected, and perhaps
this debate could have ensued at that point. My justification for not being
there is that I am the ranking minority member of the Banking Committee which
was at that moment considering the plight of New York City. So I was buried
in the bowels of the fiscal mismanagement of that great city, and I am sorry
that I was not there.
<P>
I really see no legislative basis for this public disclosure. I do not think
it is necessary, from the standpoint of our legislative mandate. It appears
that Committee Rule 7.5 is the only point having any merit at all. And in
my view, it must fail. This rule provides for procedures insuring the protection
of classified materials. This rule does not authorize the unilateral release
of classified information. A proper reading would be that the rule goes to
disclosure of information not declassification. A majority vote is necessary
prior to committee release of any material of a classified nature. But it
is spurious to state that a simple majority vote is enough to declassify
a document or information, an action which I do not believe has before been
recognized as a congressional prerogative.
<P>
Let me read from the resolution, which I believe is superior to any rule
that we may adopt:
<BLOCKQUOTE>
The Select Committee shall institute and carry out such rules and procedures
as it may deem necessary to prevent the disclosure outside the Select Committee
</BLOCKQUOTE>
<P>
<HR>
<P>
51
<BLOCKQUOTE>
of any information which would adversely affect the intelligence activities
of the Central Intelligence Agency in foreign countries or the intelligence
activities in foreign countries of any other department or agency of the
Federal government.
</BLOCKQUOTE>
<P>
At this point, I read into the record a note from Mr. David D. Lowman, Special
Assistant to the Director, NSA, for Congressional Review, to Mr. Barry Carter
of the Select Committee staff.
<BLOCKQUOTE>
Barry, we have reviewed Senator Church's proposed statement on SHAMROCK.
With the exceptions noted here previously, the statement is essentially correct.
After reviewing the document, we have concluded that since it does reveal
sources, methods and capabilities, its classification should be Secret, Handle
via COMINT Channels Only.
</BLOCKQUOTE>
<P>
It is my view that it is not necessary for us to make this matter public.
Therefore. we should not, by virtue of the risks that we run in doing so.
It occurs to me that today's disclosure, should we do so. would be cited
in some future date as a precedent to allow each Member of Congress and committee
the right to decide what should be publicly available from what the executive
branch has determined to be secret. This would mean revelation through public
channels to our enemies and would lead to chaos and ultimately destruction
of the very fragile intelligence effort.
<P>
President Truman decided that this matter should be kept secret. President
Ford has personally and specifically requested of the committee that it be
kept secret. Of course, a Member of the other body has threatened to make
this matter available to the public before we have acted on it. I do not
think we should rush to do the same. I think quite to the contrary, we should
implore the House not to. I think one member out of 435 in the House of
Representatives should not be encouraged to reveal matters that impact on
the lives and safety of the people in the other 434 congressional districts
in this country. They have a stake in this matter, too.
<P>
Now, I think that if this information is released, as the chairman has proposed,
the ripple effect will seriously impair the confidence that other nations
have in dealing with us, impact on the efficacy of Strategic Arms Limitation
Agreement, progress in mutual balance of force agreements, non-nuclear
proliferation arrangements. Already the intelligence services of other countries
are showing some indisposition to cooperate with the United States, for fear
that their own methods, their own resources, their own activities, to the
embarrassment of their respective governments, or to the detriment of their
intelligence-gathering capability, will be affected. For these reasons, Mr.
Chairman, I urge that this matter of the details of the SHAMROCK operation
not be made public. I would urge the members of the committee to reconsider
the decision of yesterday in an executive session.
<P>
The CHAIRMAN. Thank you, Senator Tower.
<P>
Before we close, are there any other comments ? Senator Mondale.
<P>
Senator MONDALE. Mr. Chairman, I just wanted to comment briefly on what I
thought I heard to be the argument, that somehow the classification and
determination of the executive department should govern how this committee
decides to release or not to release information to the public. I do not
think we can accept that definition for a moment. If we do, I think we are
no longer a coequal branch of government.
<P>
<HR>
<P>
52
<P>
We have just been through one of the most dispiriting periods of American
history, and the defense that was always raised, every time you wanted to
find out about it, was national security. So it seems to me there are occasions
when the national security interests clearly dictate and require secrecy.
And there are instances when national security is raised, not to protect
this Nation's security, but to protect some contemporary politicians from
embarrassment. It is our job, as members of the Congress, to decide where
that line is and to do so with a firm notion of our sacred responsibility
not only to investigate but to inform the public.
<P>
I am glad that it has been decided that we will hold this debate in private.
I think it ought to be thoroughly aired, but finally, it is our responsibility
as members of the Senate and of this committee to make our own determination
as to whether or not these matters, if disclosed, would undermine the Nation's
security. I look forward to that argument.
<P>
But I did want to say that I do not think for a moment that we can accept
the simple declaration by the Executive that it is classified, as precluding
or undermining our capacity to make an independent judgment.
<P>
The CHAIRMAN. Thank you, Senator.
<P>
I agree with that. I think we would be a prisoner of the Executive if we
took such a position.
<P>
Senator TOWER. May I say, Mr. Chairman, that I have been cooperative, I believe,
and have supported every effort to obtain the documents that we require.
That is one thing. I believe that we should have those documents. We should
have access to them; we should have access to witnesses, and we should be
fully informed, and we should make thorough investigations.
<P>
The question here is whether or not this information should be made public.
Yes. there is a right of the people to know, but that must be balanced against
the fact that when these matters are made public record, they are available
also to our enemies. Let me cite one example. A weekly magazine published
the fact that we had been reading the telemetry on Russian weapons systems
from Turkey. As soon as that matter was made a matter of public record it
was also available to the Soviets, and that source was then and thereafter
denied us. This impacts on our capability for verification in terms of strategic
arms capabilities and deployment. I do not think that the public interest
was served in the release of that information. Indeed, it was not served.
So I think there are some very strong examples that can be cited.
<P>
I appreciate the chairman's disposition to take this matter up in executive
session and, hopefully, I can prevail there. I have no illusions about these
matters.
<P>
The CHAIRMAN. Well, I think the Senator always states his case with great
authority and has persuaded the committee on occasion. I hope he will not
persuade the committee on this occasion, because the examples he gives that
are so terrifying have nothing to do with the case at hand, which relates
to quite a different matter.
<P>
Senator TOWER. Yes, they do, because we are talking about people's rights
to know here.
<P>
The CHAIRMAN. I think what we are talking about --
<P>
<HR>
<P>
53
<P>
Senator TOWER. I think it is proper to cite examples of where that right
can be subordinated.
<P>
The CHAIRMAN. Of course, Senator, when you cite your examples, who would
argue with them? But the case at hand has to do with unlawful conduct that
relates to certain domestic companies in this country. And it is not a matter
of such gravity that it would even impair the national security of the United
States.
<P>
Senator TOWER. Well --
<P>
The CHAIRMAN. In ways that your examples suggest.
<P>
Senator TOWER. That is a matter to be debated in executive session.
<P>
The CHAIRMAN. Yes. Very well, we will debate it in executive session.
<P>
Senator TOWER. There is more to be said then.
<P>
The CHAIRMAN. A good deal. Senators who wish to be heard; I want to recognize
first -- Senator Morgan wants to be recognized. First, let me recognize Senator
Baker.
<P>
Senator BAKER. Mr. Chairman, thank you. I will not take very long. I simply
want to say, as a matter of legal argument, that the rules of this committee
can be no broader nor create any authority and jurisdiction beyond the rules
of the Senate from which we derive our authority, and it seems to me that
the rules of the Senate, at least arguably, say that a classified document
cannot be declassified or released to the public without the prior consent
of the executive department, or at least, not without changing the rules
of the Senate itself. So the argument that our committee rules give us that
authority by majority vote, I think must be tempered by the preposition that
the committee rules are subordinate to and can be no greater than the rules
of The Senate itself, which appear to say something else.
<P>
Beyond that, as the chairman knows, and as I believe other members of the
committee know, I have sometimes been the only member of the committee, always,
however, in a minority, who has contended that all of our proceedings should
be in public, and I am rather perturbed really, that we are about to go into
executive session on this matter and to deal with only just a report. I am
rather perturbed rather that we are going into public session instead of
executive session, when you compare the relative potential for harm, the
relative comparison for the potential for embarrassment in the case of the
assassination plots, which were some time ago, versus the potential for
destruction of intelligence sources and methods when we are dealing with
an ongoing program today. In a word, if you are going to have public hearings
on NSA, you sure should have had them on assassinations because I think
assassinations are far less sensitive, in term of the welfare of this country,
than the NSA situation is, the SHAMROCK situation.
<P>
Now Mr. Chairman, I think that the proper course for us to take and the course
we will, no doubt, debate in executive session this afternoon, is to try
to gain access to as much information as we can and to obtain the concurrence
of the executive department on as much information as we can before we proceed
then to public hearings. I favor public hearings. I do not, however, favor
public hearings until we have exhausted every opportunity to obtain the
declassification of as much information as possible. I will oppose the unilateral
declassification
<P>
<HR>
<P>
54
<P>
by this committee of this information, which I am afraid is the sum total
and the functional effect of what is being proposed.
<P>
The CHAIRMAN. I thank the Senator. I know his position on public hearings,
but frequently in executive session, he has voted against them on the grounds
that we were not adequately prepared.
<P>
Senator BAKER. No, I have not.
<P>
The CHAIRMAN. I think in this case we are very adequately prepared because
we have had all kinds of executive hearings, and we have heard the executive
agencies and their spokesmen again and again relating to all the particulars
of this particular subject.
<P>
Senator BAKER. Mr. Chairman, if I understand you correctly, I believe you
said that in executive session I had voted against public hearings. I do
not believe the record will disclose that. I think the record will disclose
that I voted against declassifying or proceeding with a particular piece
of information. I do not believe the record will show that I voted against
public hearings on any issue.
<P>
The CHAIRMAN. The record can speak for itself, but in any event, I have heard
the Senator make the argument before in connection with public hearings that
we were not prepared.
<P>
Senator BAKER. And I persist in the hope that someday I may prevail.
<P>
The CHAIRMAN. I do not know what more exhaustive preparation could have been
laid than the one that has been laid for the matter now before the committee.
Senator Morgan.
<P>
Senator MORGAN. Mr. Chairman, I would not want to go away from here with
anyone having the misunderstanding that information has been withheld from
this committee.
<P>
As General Allen testified this morning -- and that is correct according
to my knowledge -- he has furnished to us all of the information that we
have asked for and has indicated his willingness to furnish it to us. The
thing that concerns me -- and I was in and out of the meeting yesterday
afternoon. Like Senator Tower, I had to be on the Banking Committee and on
the floor -- the thing that concerns me is so many people express their concern
about going public with this hearing after we have been able to work out
almost every difficult situation in the past.
<P>
I know from your own statements that the President himself has personally
intervened with you or talked with you. No later than this morning he talked
with me about it again through his emissary. He has expressed his concern.
I have a great deal of confidence in the President. I think we ought to pass
judgment on it ourselves, but I just would want the record to reflect that
nobody is withholding information from this committee. There is one other
thing I think Senator Tower's comments pointed out -- the danger of going
public. A couple of times Senator Tower referred to a couple of things that,
so far, maybe we should not refer to, but since he referred to President
Truman, let me say President Truman long long ago was involved in this and
gave his word and, because of it, I am awfully reluctant to go against the
word of the President of the United States. If we cannot depend on the word
of the President of the UniTed States, I do not know who else the American
people can look to.
<P>
The CHAIRMAN. Well, I think just to complete that since the Senator has stated
it, President Truman also said that his word would not
<P>
<HR>
<P>
55
<P>
be binding. He could not bind future administrations. So I really believe
that was a long time ago and the commitment was one that he, himself, put
a condition on, and moreover the program changed. It changed greatly after
the original agreement was entered into.
<P>
So, anyway, this is a matter for executive debate.
<P>
Senator GOLDWATER. Mr. Chairman, I want to emphasize that had we known that
this subject was going to be decided yesterday, I would have stayed away
from the floor, where I had to be to engage in a debate on the promotion
of an Air Force General, and these other gentlemen would have been there,
too. I do not even know if there was a quorum present, but the rule calls
for a majority vote, and I do not believe the question was ever put, so that
the answer could have been from the Chairman by unanimous consent it is agreed.
I have not found a member yet that could substantiate that kind of a move,
so we have not voted on this. In fact, as I recall it, we have only had a
couple of votes in the whole history of this Committee.
<P>
The CHAIRMAN. Well, Senator, it is clear that this will be debated once more
in executive session and will then be voted, so there will be no basis for
a complaint that the rules have not been completely, faithfully, and scrupulously
adhered to.
<P>
If there is no further comment, this public session is now adjourned.
<P>
[Whereupon, at 1:07 p.m., the committee recessed, subject to the call of
the Chair.]
<P>
<HR>
<P>
<H3 ALIGN=Center>
INTELLIGENCE ACTIVITIES -- THE NATIONAL SECURITY AGENCY AND FOURTH AMENDMENT
RIGHTS
</H3>
<P ALIGN=Center>
_________________
<P ALIGN=Center>
THURSDAY, NOVEMBER 6, 1975
<P>
U.S. SENATE<BR>
SELECT COMMITTEE TO STUDY GOVERNMENTAL OPERATIONS WITH RESPECT TO INTELLIGENCE
ACTIVITIES,
<P>
Washington, D.C.
<P>
The committee met, pursuant to notice, at 10:05 a.m., in room 318, Russell
Senate Office Building, Senator Frank Church (chairman) presiding.
<P>
Present: Senators Church, Tower, Huddleston, Hart of Colorado, Goldwater,
Mathias, and Schweiker.
<P>
Also present: William G. Miller, staff director; Frederick A. O. Schwarz,
Jr., chief counsel; Curtis R. Smothers, counsel to the minority; and Charles
Kirbow, professional staff member.
<P>
The CHAIRMAN. The committee will please come to order. Last week, it will
be remembered, a question developed over whether or not the committee should
make a public disclosure on one operation that had been conducted in the
past by the NSA. The committee took that question under advisement and had
the statement that it was proposed for the chairman to read, carefully checked
for accuracy, and carefully checked to make certain that it would reveal
no method or technology that would be harmful to the intelligence operations
of the United States. The committee then voted on Monday, November 3, by
a vote of seven to three, that the information should be made public, subject
to confirmation by the Senate Parliamentarian that doing so would not constitute
a violation of the Senate rules. The committee received such confirmation
from the Parliamentarian yesterday and that was read to the committee in
the session yesterday afternoon.
<P>
The reasons, it seems to me, for the disclosure are clear. The program certainly
appears to violate section 605 of the Communications Act of 1934, as well
as the fourth amendment of the Constitution. That program has been terminated
as of now, and the statement to be given today does not divulge technology
or sensitive intelligence methods. Indeed, no particular technology was ever
involved in the procedure that was used. It amounted to a simple turnover
of telegraph traffic to the Government.
<P>
The committee believes that serious legal and constitutional questions are
raised by this program. For that reason, the committee voted to disclose
it. The following statement is the one that has been reviewed by the committee
and voted on for disclosure this morning.
<P>
SHAMROCK was the cover name given to a message-collection program in which
the Government persuaded three international telegraph companies, RCA Global,
ITT World Communications, and
<P>
(57)
<P>
<HR>
<P>
58
<P>
Western Union International, to make available in various ways certain of
their international telegraph traffic to the U.S. Government. For almost
30 years copies of most international telegrams originating in or forwarded
through the United States were turned over to the National Security Agency
and its predecessor agencies.
<P>
As we discuss more fully below, the evidence appears to be that in the midst
of the program, the Government's use of the material turned over by the companies
changed. 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. In defense of the companies
the fact is that the Government did not tell them that it was selecting out
and analyzing the messages of certain U.S. citizens. On the other hand the
companies knew they were turning over to the Government most international
telegrams, including those of U.S. citizens and organizations. There is no
evidence to suggest that they ever asked what the Government was doing with
that material or took steps to make sure the Government did not read the
private communications of Americans.
<P>
The select committee made its first inquiries into this operation last May.
It was not until early September, however, that the select committee received
a response to its questions. At that time, we obtained preliminary briefings
from NSA operational personnel. Subsequently, we examined three NSA officials,
including former Deputy Director Louis Tordella. These persons were the only
ones at NSA with substantial knowledge of the SHAMROCK operation. The committee
also reviewed all existing documentation relating to the operation. The select
committee again examined NSA officials in executive sessions. Subsequently,
the companies which had participated were contacted. Sworn testimony was
taken from officials in each company, and company counsel have worked with
the committee to reconstruct, as nearly as possible, what has taken place
over the last 30 years.
<P>
During World War II, all international telegraph traffic was screened by
military censors, located at the companies, as part of the wartime censorship
program. During this period, messages of foreign intelligence targets were
turned over to military intelligence.
<P>
According to documents in possession of the Department of Defense, the Department
sought in 1947 to renew the part of this arrangement whereby the telegraph
traffic of foreign intelligence targets had been turned over to it. At that
time, most of these foreign targets did use the paid message facilities of
the international carriers to transmit messages.
<P>
At meetings with Secretary of Defense James Forrestal in 1947, representatives
of the three companies were assured that if they cooperated with the Government
in this program they would suffer no criminal liability and no public exposure,
at least as long as the current administration w as in office. They were
told that such participation was in the highest interests of national security.
<P>
Secretary Forrestal also explained that the arrangements had the approval
of President Truman and his Attorney General, Tom C. Clark. Forrestal explained
to the companies, however, that he could not bind his successors by these
assurances. He told the companies, moreover, that Congress would consider
legislation in its forthcoming session which would make clear that such activity
was permissible. In fact, no such legislation was ever introduced.
<P>
<HR>
<P>
59
<P>
In 1949, the companies sought renewed assurances from Forrestal's successor,
Louis D. Johnson, and were told again that President Truman and Attorney
General Clark had been consulted and had given their approval of these
arrangements. As I will explain later in this statement, neither the Department
of Defense nor any of the participating private companies has any evidence
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