There’s an interesting contrast between Bamford’s book about the NSA and Theoharis’s tome on the FBI. Theoharis documents an agency that was, at least under J. Edgar Hoover, basically criminal. Between World War II and Watergate, it put legitimate criminal investigation on the back burner while it focused on Hoover’s personal priorities of blackmail, voyeurism, and political manipulation. In contrast, Bamford, writing in 2001, portrays the NSA as a basically law-abiding agency that has yet to seriously abuse its massive powers. In some cases, such as Project SHAMROCK, the NSA did things that were technically illegal, but as Bamford tells it they were nonetheless scrupulous about obeying the spirit of the law, suppressing information about US persons if they were not directly related to legitimate intelligence-gathering or law-enforcement activities.
As we see on pp. 450-1, Bamford in 2001 saw the threats from the NSA as largely theoretical:
NSA’s major push into law enforcement came with the fall of the Berlin Wall and the collapse of communism. “Because the Soviet Union was no longer a threat,” said Baker, “some of the resources devoted to extracting its secrets could be turned to other tasks, to other foreign targets. But some of those foreign targets had a domestic tinge. As topics like international narcotics trafficking, terrorism, alien smuggling, and Russian organized crime rose in priority for the intelligence community, it became harder to distinguish betweeen targets of law enforcement and those of national security.”
Soon, common centers were formed for counterdrug, counterterrorism, counterproliferation, and counter-international-organized-crime activities. They were populated by both law enforcement and intelligence personnel, again dangerously mixing the two areas. “Few foresaw any danger in nibbling a bit at the principle that intelligence and law enforcement must remain separate undertakings,” said Baker. “Today the risk to civil liberties is largely theoretical. However theoretical [those] risks… may be, they cannot be ignored… One of my office’s jobs at the agency was to review requests for intlligence from drug enforcement agencies. In some cases, we suspected they were trying to shortcut constitutional or statutory limits, and their requests were denied. But I have no illusions that our objections would have prevailed if a different message had been coming from the leaders of the agency and the government.”
In the end, the question of whether NSA is secretly abusing its enormous powers comes down to trust. “‘Trust us’ is the NSA’s implicit message,” said David Igatius of the Washington Post. “Trust us to distinguish between the good guys and the bad guys, and to use our powerful surveillance tools for the good of humankind. As an American and a trusting soul, I want to extend confidence to General Hayden and his beleaguered colleagues. The United States needs an NSA that can shed its threadbare old clothes—and, when necessary, can crack the codes and monitor the conversations of people who could get us all killed. But it is unrealistic to expect the rest of the world to be enthusiastic. People will be glad when the NSA bags the biological terrorist as he’s about the deliver the anthrax bomb—even those dyspeptic European parliamentarians. But don’t expect them to give the global policeman much help along the way—or to stop demanding the same privacy rights that Americans have.
Since then, of course, we’ve taken still further steps toward “trust me” government. In Re Sealed Case, dismantled the “wall” between intelligence and law enforcement, allowing law enforcement agencies to direct the surveillance activities of the NSA. And of course, this month Congress undermined judicial oversight of eavesdropping on Americans’ international communications. Which means we’re wholly dependent on the NSA’s goodwill to follow the spirit of the law even when the letter of the law barely constrains it at all.
It’s comforting to know that the culture of the NSA in 2001 seemed to include a firm commitment not to spy directly on American citizens. However, that’s no substitute for genuine, external oversight of the kind that only courts can provide.
As a final note, I’m irritated by the implication here that “international narcotics trafficking” spying is a “intelligence” or “national security” concern. Whatever you might think about drug prohibition, a pound of cocaine is just not a threat to national security in the same way that a dirty bomb is. Counter-narcotics—even when it has an international component—is a law-enforcement activity, and there’s absolutely no reason that the usual civil liberties protections should be loosened even a little bit to make counter-narcotics efforts more effective.
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