NSA personnel, the customs inspectors of the information superhighway, have the ultimate goal of intercepting and reviewing every syllable and murmur zapping into, out of, or through the United States. They are close to achieving it. More than a dozen years ago, an NSA director gave an indication of the agency’s capability. “Just one intelligence-collection system,” said Admiral William O. Studeman, referring to a listening post such as Sugar Grove, “can generate a million inputs per half hour.” Today, with the secret cooperation of much of the telecommunications industry, massive dishes vacuuming the airwaves, and electronic “packet sniffers,” software that monitors network traffic, diverting e-mail and other data from fiber-optic cables, the NSA’s hourly take is in the tens of millions of communications. One transatlantic fiber-optic cable alone has the capacity to handle close to 10 million simultaneous calls. While most communications flow through the NSA’s electronic net unheard and unread, those messages associated with persons on the agency’s watch lists—whether guilty or innocent—get kicked out for review.
As history has shown, the availability of such vast amounts of information is a temptation for an intelligence agency. The criteria for compiling watch lists and collecting information may be very strict at the beginning of such a program, but the reality—in a sort of bureaucratic law of expansion—is that it will draw in more and more people whose only offense was knowing the wrong person or protesting the wrong war.
Moreover, as Internet and wireless communications have grown exponentially, users have seen a corresponding decrease in the protections provided by the two institutions set up to shield the public from eavesdroppers. The first, the FISA court, has simply been shunted aside by the executive branch. The second, the congressional intelligence committees, have quite surprisingly abdicated any role. Created to be the watchdogs over the intelligence community, the committees have instead become its most enthusiastic cheerleaders. Rather than fighting for the public’s privacy rights, they are constantly battling for more money and more freedom for the spy agencies.
Last November, just a month before The New York Times broke the story of the NSA’s domestic spying, the American Bar Association publicly expressed concern over Congress’s oversight of FISA searches. “The ABA is concerned that there is inadequate congressional oversight of government investigations undertaken pursuant to the Foreign Intelligence Surveillance Act,” the group stated, “to assure that such investigations do not violate the First, Fourth, and Fifth Amendments to the Constitution.” And while the administration did brief members of Congress on the decision to bypass FISA, the briefings were limited to a “Gang of Eight”—the majority and minority leaders of the House and Senate and the chairmen and ranking members of the two intelligence committees. None of the lawmakers insisted that the decision be debated by the joint committees, even though such hearings are closed.
Frank Church, the Idaho Democrat who led the first probe into the National Security Agency, warned in 1975 that the agency’s capabilities
could be turned around on the American people, and no American would have any privacy left, such [is] the capability to monitor everything: telephone conversations, telegrams, it doesn’t matter. There would be no place to hide. If this government ever became a tyranny, if a dictator ever took charge in this country, the technological capacity that the intelligence community has given the government could enable it to impose total tyranny, and there would be no way to fight back, because the most careful effort to combine together in resistance to the government, no matter how privately it is done, is within the reach of the government to know. Such is the capacity of this technology.
It was those fears that caused Congress to enact the Foreign Intelligence Surveillance Act three years later. “I don’t want to see this country ever go across the bridge,” Senator Church said. “I know the capacity that is there to make tyranny total in America, and we must see to it that [the National Security Agency] and all agencies that possess this technology operate within the law and under proper supervision, so that we never cross over that abyss. That is the abyss from which there is no return.”