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The chairman of the House Permanent Select Committee on Intelligence
has released a report to his
congressional colleagues informing them that America’s largest spy
agency, the National Security Agency, is refusing to cooperate in an
inquiry into the NSA’s ECHELON global spy system.

The NSA is responsible for intercepting and decoding electronics
communications and other signals intelligence.

Rep. Porter Goss, R-Fla., reports that the general counsel of the NSA
is claiming an attorney-client privilege between his office and the
director of the NSA, which extends to the entire agency, and is refusing
“with disturbing frequency” to turn over documents that outline the
agency’s criteria for conducting domestic surveillance. Documents
requested by Goss’ intelligence committee include legal opinions,
decisional memoranda and policy guidelines for handling intercepted
phone, fax and email messages involving U.S. citizens.

The congressional inquiry has been prompted by several members of
Congress who are responding to the recent revelations of rampant
agency abuse of the ECHELON system,
as well as the relationships it maintains with other
foreign intelligence agencies that are sometimes used to circumvent U.S.
laws prohibiting domestic spying.

In his report, Goss warns that the privilege claim could result in
the “envelopment of the executive in a cloak of secrecy that would
insulate the executive branch from effective oversight.” Intelligence
affairs are nothing new to the committee chairman, having served 10
years as a clandestine service officer for the CIA during the 1960s. But
while he understands that America’s spy agencies need to operate in
secrecy, he warns that Congress cannot recognize this newly-discovered
attorney-client privilege because the “privacy interests of the citizens
of the United States could be at risk.”

The National Security Act of 1947 grants broad oversight powers of
the intelligence community to Congress, requiring that all spy agencies
must turn over “any information or material concerning intelligence
activities that is requested by either of the (House or Senate)
intelligence committees to carry out its authorization
responsibilities.”

But the NSA general counsel contends that the a common law privilege
between government attorneys and executive branch officials supersedes
any law, a claim rejected last year by the U.S. Court of Appeals in the
case of Independent Counsel Ken Starr’s subpoena of White House attorney
and presidential confidant Bruce Lindsey.

Attorneys for the NSA also claim that some of the documents requested
by the committee are preliminary and deliberative in nature, and
therefore subject to Exemption 5 of the Freedom of Information Act
(FOIA), which allows federal agencies to withhold information if the
documents do not indicate a final disposition. But staff attorneys for
the intelligence committee have responded that this position puts
Congress in the category of a “citizen requester” and ignores the
specific provision of the law that Exemption 5 “is not authority to
withhold information from Congress.”

The privilege claim has civil liberties experts concerned that the
move is a cover-up. John Young, a privacy advocate and owner of the
intelligence watchdog Cryptome website
is concerned that the U.S. intelligence agencies need more, not less,
accountability.

“Americans are subject to illegal surveillance and interception of
electronic communications in the course of legitimate intelligence and
law enforcement activities due to lack of controls to fit the specifics
of advanced technologies. Thus, they may be the last to know what means
ostensibly being used to protect them are invading their privacy,” said
Young. “That is why we need thorough congressional oversight of these
agencies to ensure that the rights of citizens are protected.”

Rep. Bob Barr, R-Ga., a former CIA analyst, called the NSA’s
privilege claim “bogus” and an attempt to “deny the chairman and the
committee members proper information with which to carry out their
oversight responsibilities.”

Barr introduced an amendment to the Intelligence Authorization Act
for Fiscal Year 2000 (H.R. 1555) that requires the director of central
intelligence, the director of the NSA and the attorney general to
jointly prepare a report that will detail the legal standards used to
initiate and gather domestic intelligence. The House approved the
amendment May 13 before sending the bill to the Senate.

The House and Senate intelligence committees were formed in the 1970s
to monitor the spy agencies after it was revealed that the CIA, the NSA
and the FBI had engaged in illegal domestic spying and communication
intercept operations, such as COPROINTEL, Project Minaret and Project
Shamrock.

Concerned with the dangers of unsupervised intelligence activity, the
late Senator Frank Church issued a warning 20 years ago about the threat
of illegal domestic spying by the NSA: “I know the capacity that is
there to make tyranny total in America, and we must see to it that this
agency and all agencies that possess this technology operate within the
law and under proper supervision, so that we never cross over that
abyss.”

If the NSA prevails in its privilege claim and successfully avoids
substantive congressional oversight, many observers fear that the bridge
over the abyss may grow closer to completion.


Patrick Poole is a lecturer in government
and economics at Bannockburn College in Franklin, Tenn., and the author
of a Free Congress Foundation report on ECHELON.

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