Insights Into the Secret World of Eavesdropping

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MADELEINE BRAND, host:

Part of the concern over the warrantless wiretapping is that it circumvented a court set up to oversee this activity. That court, the Foreign Intelligence Surveillance Act Court, came out of Senate committee hearings 30 years ago, hearings also set up to investigate White House eavesdropping. It was called the Church committee, led by Idaho Senator Frank Church.

Sen. FRANK CHURCH (Democrat, Idaho): This morning, the committee begins public hearings on the National Security Agency, or as it is more commonly known, the NSA.

BRAND: The Church committee and what it uncovered is the subject of an article in Slate.com by Patrick Radden Keefe. Keefe is also the author of the book Chatter: Dispatches from the Secret World of Global Eavesdropping. I spoke with him earlier about why next weeks hearings will be a lot different from the hearings 30 years ago.

Mr. PATRICK RADDEN KEEFE (Author and Reporter, Slate.com): Basically, in late 1974, Seymour Hersh broke a big story in the New York Times about domestic spying, in this case, by the CIA and the NSA, in the United States on anti-war protestors, and that launched a big Congressional investigation.

BRAND: And tell us about that investigation. What happened? Who exactly were they investigating? And what were the allegations?

Mr. Mr. KEEFE: Well, it was a long-term investigation. There were two committees. The Church committee was the Senate committee, and there was also a subcommittee in the House known as the Pike committee after the representative in charge of that, and they took a really aggressive, really almost gumshoe, approach. They sent out young congressional aides to basically go knocking on doors around Washington, and asking around at the agencies, and trying to figure out just what it was that these intelligence agencies had done. The upside of that approach is that they actually learned a huge amount. And there are these enormous, voluminous reports that the committee ended up putting together about abuses by the intelligence agencies.

And as far as the NSA was concerned, what came out was a program called Shamrock, which was, again, very similar to what we're seeing today. You basically had the three big telecom companies at the time; anytime a telegram went into or out of the United States they would make a copy and give all of those copies to the NSA. And a lot of the people at the NSA ended up listening in on were not people in any way affiliated with the foreign intelligence agencies, or Soviet-bloc countries, or Vietnam, or what have you. They were just anti-war protestors. I mean, it ran the gamut, literally, from Jane Fonda to Martin Luther King.

BRAND: And at the time during these congressional investigations, there were actually subpoenas issued to the heads of the major telecom companies. And you say that was very effective.

Mr. KEEFE: Yeah, it was an incredibly fruitful strategy on their part. If you think about it, if you are a representative for the government, if you work for one of these intelligence agencies, or you are an employee of the president, there are a number of arguments you could use to, basically, trump a congressional subpoena to say I don't have to testify. I don't have to tell you what it was I was working on. But if you're a private civilian who runs a telecom corporation and, in fact, you've been supplying the NSA with all this information, you don't have that recourse; you can't claim executive privilege.

And so what happened during the Church Committee era was that the House subcommittee actually subpoenaed the heads of these companies, the CEOs. And at first it looked as if they wouldn't come. And President Ford actually wrote a letter saying I want to extend executive privilege to these private citizens. It was sort of, would they? Wouldn't they? And they eventually did show up; probably realizing it was too far a stretch of executive privilege. And they did testify, rather colorfully, about all of the cooperation between these private phone companies and the intelligence agencies.

BRAND: So it seems a good idea for all the heads of major telecom companies now to be subpoenaed for next week's hearings.

Mr. KEEFE: It would. I mean, I actually think it's the only way certainly the Judiciary Committee is going to get any kind of traction. Because right now, the only witness scheduled to testify is Alberto Gonzalez, who has already said at great length, or rather, he said the same thing again and again what his view on this is. We don't know whether any NSA employees, current or former, will be testifying. And if they were brought before the committee, they could obviously claim executive privilege. They could claim that they didn't need to testify.

If you brought in the CEO of AT&T, or the CEO of Verizon, then I think they would be obliged to talk.

BRAND: So, is it likely that they would be subpoenaed?

Mr. KEEFE: Well, we don't know of any plans for it to happen, so far. My sense of this Judiciary Committee is that it's going to be nowhere near as bold as the Church Committee was, nowhere near as aggressive. So, I suspect that the thinking will be oh, you know what? We'll bring the lawyers in and we'll sort of keep it to a strictly legal discussion.

I think this is a little short sighted, if only because the details of what was actually going on, what the NSA was actually doing have kind of gotten lost here. And there's not a lot of agreement about what that involved. And, you know, how it was they chose their target? How many people they listened to? How long they listened for? All those factual details will have real legal implications. So to my mind, having a legal discussion without actually bringing in the CEOs and finding out exactly what was going on, is in a way a bit of a farce.

BRAND: Patrick Radden Keefe is the author of the book Chatter. He'll be covering next week's Senate Judiciary Committee hearings for the online magazine, Slate.

And thank you, Patrick.

Mr. KEEFE: Thank you.

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