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scheduled to testify before the committee in public session”a situation
unprecedented for NSA. (The testimony on which the report was based
had, of course, been given in closed session.) There, in the packed
hearing room with television cameras rolling, Allen faced the full
committee. Church himself raised the issue of Shamrock, although he
did not name the companies. "In his view," said Snider, "the program was
illegal, and its disclosure would not harm national security." But after a
flurry of objections by Republican members of the committee, including
Senators Barry Goldwater and Howard Baker, Church agreed to reserve
any further discussion of Shamrock for closed session.
Over the next few days, the White House continued to plead with the
committee to drop all mention of Shamrock from its final report. "For the
first time since the Committee began operations," said Snider, "Attorney
General Edward Levi, speaking expressly on behalf of the president,
personally appealed to the Committee not to publish the Shamrock
report on the grounds that publication would damage national security."
But the weight of opinion among committee members was for disclosure.
"Senators were bothered that the telegrams of Americans had for years
been handed over to an intelligence agency," said Snider. "Whatever its
legality, it should not have happened. . . . Why was the identification of
the companies a national security concern? Yes, the report might be
embarrassing to them and they might even get sued because of it, but
why should that make it classified?"
So the committee voted to disregard the White House objections and
leave in the damning material. "It remains to this day the only occasion I
know of where a congressional committee voted to override a presidential
objection and publish information the president contended was
classified," said Snider.
Months later, in March 1976, the committee was notified that "a
lower-level employee" at NSA had discovered a file relating to Shamrock”
the first such file found. (The committee's report had been based on



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testimony it heard.) "The file proved to be a mother lode of information,"
said Snider. "The documents also cast doubts on the veracity of the
companies' claims that they could find no documentation pertaining to
Shamrock. After all, this had concerned the highest levels of their
corporate management for at least four years."
By 2000 Snider had risen through the intelligence community to
become the CIA's inspector general. Looking back, he said, "I came to see
that relations between intelligence agencies and the private sector
endured. Lawyers became more involved than they used to be, but
questions of legality were no longer ignored or unresolved. Agreements
were put in writing and signed by the responsible officials.
"I also came to think that the investigation, in the long term, had a
beneficial effect on NSA. With no desire to undergo another such
experience, NSA adopted very stringent rules in the wake of the Church
Committee to ensure that its operations were carried out in accordance
with applicable law. Where the communications of U.S. citizens were
concerned, I can attest from my personal experience that NSA has been
especially scrupulous. As upsetting and demoralizing as the Church
Committee's investigation undoubtedly was, it caused NSA to institute a
system which keeps it within the bounds of U.S. law and focused on its
essential mission. Twenty-three years later, I still take some satisfaction
from that."
Among the reforms to come out of the Church Committee
investigation was the creation of the Foreign Intelligence Surveillance Act
(FISA), which for the first time outlined what NSA was and was not
permitted to do. The new statute outlawed wholesale, warrantless
acquisition of raw telegrams such as had been provided under
Shamrock. It also outlawed the arbitrary compilation of watch lists
containing the names of Americans. Under FISA, a secret federal court
was set up, the Foreign Intelligence Surveillance Court. In order for NSA
to target an American citizen or a permanent resident alien”a "green
card" holder”within the United States, a secret warrant must be
obtained from the court. To get the warrant, NSA officials must show that
the person they wish to target is either an agent of a foreign power or
involved in espionage or terrorism.
But because these issues fall under the jurisdiction of the FBI within
the United States, NSA seldom becomes involved. Thus, according to a
senior U.S. intelligence official involved in Sigint, NSA does not target
Americans at home. "I want to make it clear," said the official, "[that] we
do not intentionally target known U.S. persons in the United States”
period. And therefore, we don't go to court to get a warrant to target any
such people because we don't do any of those ... FBI worries about spies
in the United States." The same goes for foreigners suspected of
terrorism, he said. "Osama bin Laden . . . comes into the United States,


369
he crosses the border," said the intelligence official. "We wouldn't do the
guy. It would be FBI who'd do him, because he's a terrorist in the United
States." Thus, the vast majority of the 886 eavesdropping warrants
approved by the Foreign Intelligence Surveillance Court in 1999”the
highest number ever”were from the FBI.
Judicial protections, however, stop at the border. "FISA doesn't cover
the U.S. person who's outside the United States," added the official. To
target Americans outside the country, all that is needed is the approval
of the U.S. attorney general. Nevertheless, the number of Americans
targeted by NSA overseas is very small. "At any one time," said the senior
intelligence official, "there may be five. . . . These persons are”there's
virtually no doubt that they are agents of foreign powers. Either they're
terrorists or they're some kind of officer or employee of a foreign
government. We're not talking about Jane Fonda."
He added: "We'll find out that person X in a foreign country is a
terrorist. And maybe he has a green card and he used to live in the
United States. He's got a green card, we treat him as a U.S. person. So
most of the people that we're after are not citizens but resident aliens
who have gone back to another country."
On the other hand, NSA does not need a FISA Court order to spy on
foreign embassies and diplomats within the United States, just an okay
from the attorney general, which is good for a full year.
The deliberate targeting of Americans is only one issue. The other is
what is done when an American”or a citizen of one of the other UKUSA
nations”incidentally turns up in the reams of intercepted traffic. This is
becoming more and more likely as technology advances. "The networks
have collapsed into one another," said one senior NSA official, "and many
of our targets are on the same network that we use. It is now just 'the
network'”the global telecommunications infrastructure."
Heavy restrictions are placed on the dissemination of names of
UKUSA residents. This is in stark contrast to the freewheeling use and
distribution of European names, such as Dècle's. NSA's bible governing
"whom we may target, how we collect, select, and store such information,
and how we disseminate information on U.S. persons" is United States
Signals Intelligence Directive 18 (USSID 18), "Limitations and Procedures
in Signals Intelligence Operations of the United States Sigint System." It
was first drawn up in May 1976, shortly after the Church Committee
investigation, and it is occasionally updated.
By 1999 a number of people were questioning whether USSID 18
should be completely rewritten to better reflect the workings of modern-
day signals intelligence. "These concerns are legitimate," said an NSA
operations panel. "USSID 18 is not easy to read and understand. It deals
with a complicated subject and, therefore, is a document that must be


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read carefully. This is not justification, however, for it to be rewritten."
Key to the directive is the definition of "U.S. persons," because it
determines whether a given intercept will be swept in, analyzed, and
disseminated. "A person known to be currently in the United States," it
says, "will be treated as a United States person unless positively
identified as an alien who has not been admitted for permanent
residence; or unless the nature or circumstances of the person's
communications give rise to a reasonable belief that such person is not a
United States person."
On the other hand, "A person known to be currently outside the
United States, or whose location is unknown, will not be treated as a
United States person unless such person can be positively identified as
such, or the nature or circumstances of the person's communications
give rise to a reasonable belief that such person is a United States
person."
In 1994 a forty-seven-page document entitled "U.S. Identities in
Sigint" was issued to further clarify under what circumstances the
names of U.S. persons must be deleted or may be retained in Sigint
reports. While in most cases U.S. names must be removed, the document
said, this rule does not apply under certain circumstances”for example,
in the event of an emergency "such as a hijacking or a terrorist attack."
"When specific, actionable threat information involving U.S. persons is
obtained," said one instruction, "reporting elements issue a report with
as much information as possible, including U.S. names, in the interest of
protecting U.S. persons." NSA uses "Implied Consent Procedures" in
cases such as kidnappings or hijackings, "where a U.S. person is held
captive by a foreign power or a group engaged in international terrorism
and consent for NSA collection could be implied."
Another exception allows for reporting the communications of U.S.
persons when there is "evidence of a crime." These are cases, said the
present NSA director, Michael Hayden, where "we bump into violations,
or potential violations of law”threats to physical security, possible
espionage, possible disclosure of classified information. ... In the last
sixteen months, that has happened a total of eighteen times. In those
eighteen instances, there were ten instances in which the information
was about U.S. persons. Six instances in which it appeared the
information was about U.S. persons but we were far, far from definite.
And two others”the remaining two other instances, the information was
about individuals of unknown nationality. We simply didn't know."
In 1980, while intercepting everything in and out of Libya, NSA
analysts discovered that President Jimmy Carter's brother Billy was
doing business with and acting as an unregistered agent of the Libyan
government. Bobby Ray Inman, who was then the NSA director, showed



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the intercepts to the U.S. attorney general and an investigation was
launched, leading to what became known as the Billygate scandal.
Analysts are forbidden to mention in their reports not only the actual
names of U.S. citizens and green card holders but also the names of U.S.
companies. "As a general rule," says one internal document, "analysts
must select generic terms to replace the U.S. identity and must present
the report details in such a way that the customer cannot determine the
identity."
Any time a U.S. identity is mentioned in a Sigint report, the
Operations Directorate must keep a record of it for a quarterly report
sent to the agency's inspector general. "Please remember," said one
internal memorandum, "that if a U.S. identity is disseminated in any
fashion, e.g., product, analytical exchange, etc., NSA is then required to
account for the times the identity is disclosed outside of the Sigint
System, whether the disclosure is intentional or not."
In an attempt to prevent inappropriate intercepts and dissemination,
frequent training sessions are conducted for intercept operators and
analysts (seventeen such sessions were held in November 1998, for
example). Analysts are offered difficult hypothetical scenarios similar to
situations they might encounter, and correct responses are taught. "You
have reason to believe that the [cell phone] user is involved in
international narcotics trafficking," says one hypothetical, "but you have
no information telling you whether or not he is a U.S. person: Can you
collect?"
Despite all the hypotheticals, real-world operations frequently give rise
to complex questions concerning just what names and titles to leave in or
take out of finished Sigint reports. The following issues have come up in
the past few years.


• In January 1993, a few weeks before President-elect Clinton
was going to be sworn in as president, a question arose concerning
how to refer to him and his cabinet choices when their names
turned up in intercepts. While it violates USSID 18 to refer to U.S.
persons by name, senior U.S. executive branch officials can be
referred to by title without special permission. The problem was
that they were not yet sworn in.


"The NSA Office of the General Counsel," said an NSA document, "has
advised that titles of these candidates may be used in reports . . . as
follows: title of position to which candidate has been nominated followed
by the word 'designee' (e.g., Secretary of Defense Designee). These titles
should be used until such time as the candidates have been confirmed


372
and the Clinton Administration assumes responsibility. Names of the
candidates should not be used without prior approval. ... As always,
titles should only be used if they are necessary to understand or assess
foreign intelligence."
It is interesting to note that NSA analysts must also delete the names
of United Nations officials from reports and, in the case of senior officials,
must include only their titles. Generic terms”such as, perhaps, "UN
official"”must be substituted for the names of lower-ranking officials.


• Six months after the inauguration, NSA analysts found the
name of Hillary Rodham Clinton turning up in intercept reports.
What was her status?


A federal court had determined that her work on health care policy
put her in the category of a full-time government official. As a result,
"Mrs. Clinton may be identified in reports," said an internal NSA
memorandum, "only by title (currently, Chairperson of the President's
Task Force on National Health Care Reform) without prior approval when
that title is necessary to understand or assess foreign intelligence and
when the information being discussed relates to her official duties.
Should Mrs. Clinton be assigned to other task forces or official duties in
the Executive Branch, those titles may also be used, as necessary.
Reports containing information about Mrs. Clinton that is not clearly
foreign intelligence must be checked, at a minimum, through Office and
Group level 05 [policy] elements. As with other senior officials of the
Executive Branch, no reports may be published concerning Mrs.
Clinton's private life or activities absent evidence of criminal wrongdoing
and even then only after review by senior NSA management and the OGC
[Office of the General Counsel]."


• In 1994, former president Jimmy Carter was invited to travel to
Bosnia and Herzegovina by Bosnian Serb president Radovan
Karadzic to participate in efforts to help end the war that had been
raging there. In December 1994, Carter tentatively accepted the
offer and stated that he would travel to Bosnia as a representative
of the Carter Center for Peace.


The Balkans were a key target area for NSA, so the Operations
Directorate anticipated that a number of intercepts would mention
Carter or would even be to or from him. For this reason, it issued a
directive regarding whether Carter's name would appear in NSA reports
sent out to "customers":


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