The Silent Power of the N.S.A.

By David Burnham

A Federal Court of Appeals recently ruled that the largest and most secretive intelligence agency of the United States, the National Security Agency, may lawfully intercept the overseas communications of Americans even if it has no reason to believe they are engaged in illegal activities. The ruling, which also allows summaries of these conversations to be sent to the Federal Bureau of Investigation, significantly broadens the already generous authority of the N.S.A. to keep track of American citizens.

The decision by the United States Court of Appeals for the Sixth Circuit involves the Government surveillance of Abdeen Jabara, a Michigan-born lawyer who for many years has represented Arab-American citizens and alien residents, and reverses a 1979 ruling that the N.S.A.'s acquisition of Jabara's overseas messages violated his Fourth Amendment right to be free of ''unreasonable searches and seizures.'' Even while refusing the plaintiff's request for reconsideration, the Court curiously acknowledged the far-reaching nature of the case, recognizing that the N.S.A.'s interception of overseas telecommunications and their dissemination to ''other Federal agencies has great potential for abuse.'' The Court, however, held that the problem was ''a policy matter that lies in the domain of the executive or legislative branch of our Government.''

The N.S.A. is much more than a massive computerized funnel that collects, channels and sorts information for the President and such organizations as the Central Intelligence Agency and F.B.I. The National Security Agency, an arm of the Defense Department but under the direct command of the Director of Central Intelligence, is an electronic spying operation, and its leverage is based on a massive bank of what are believed to be the largest and most advanced computers now available to any bureaucracy in the world: computers to break codes, direct spy satellites, intercept electronic messages, recog- nize target words in spoken communications and store, organize and index all of it.

Over the years, this virtually unknown Federal agency has repeatedly sought to enlarge its power without consulting the civilian officials who theoretically direct the Government, while it also has sought to influence the operation and development of all civilian communications networks. Indeed, under Vice Adm. Bobby Ray Inman, N.S.A. director from 1977 to 1981, the agency received an enlarged Presidential mandate to involve itself in communications issues, and successfully persuaded private corporations and institutions to cooperate with it.

Yet over the three decades since the N.S.A. was created by a classified executive order signed by President Truman in 1952, neither the Congress nor any President has publicly shown much interest in grappling with the far-reaching legal conflicts surrounding the operation of this extraordinarily powerful and clandestine agency. A Senate committee on intelligence, warning that the N.S.A.'s capabilities impinged on crucial issues of privacy, once urged that Congress or the courts develop a legislative or judicial framework to control the agency's activities. In a nation whose Constitution demands an open Government operating according to precise rules of fairness, the N.S.A. remains an unexamined entity. With the increasing computerization of society, the conflicts it presents become more important. The power of the N.S.A., whose annual budget and staff are believed to exceed those of either the F.B.I. or the C.I.A., is enhanced by its unique legal status within the Federal Government. Unlike the Agriculture Department, the Postal Service or even the C.I.A., the N.S.A. has no specific Congressional law defining its responsibilities and obligations. Instead, the agency, based at Fort George Meade, about 20 miles northeast of Washington, has operated under a series of Presidential directives. Because of Congress's failure to draft a law for the agency, because of the tremendous secrecy surrounding the N.S.A.'s work and because of the highly technical and thus thwarting character of its equipment, the N.S.A. is free to define and pursue its own goals.

Despite the impenetrable secrecy surrounding the agency - no public briefings or access to its premises is allowed - its mission was first discussed openly in the 1975 hearings of the Senate Select Committee to Study Government Operations with Respect to Intelligence Activities. Various aspects of the agency's responsibilities also have been touched upon in a handful of depositions filed by the agency in Federal courts, several recent executive orders and a few aging documents found in the towering stacks of the National Archives.

According to these sources, the N.S.A. has two broad goals, one offensive, one defensive. First, the agency aggressively monitors international communications links searching for ''foreign intelligence,'' intercepting electronic messages as well as signals generated by radar or missile launchings. Second, the agency prevents foreign penetration of communications links carrying information bearing on ''national security.''

According to an unpublished analysis by the House Government Operations Committee, the N.S.A. may have employed 120,000 people in 1976 when armed-services personnel were included in the official count. (According to a letter from the Joint Chiefs of Staff, overseas listening posts numbered 2,000.) In comparison, the F.B.I. had one employee for every six working for the N.S.A. The House report also estimated that the agency's annual expenditures were as high as $15 billion.

The Senate select committee's study of the N.S.A., one of the most extensive independent examinations ever made of the agency, was initiated in the wake of Watergate and the disclosure of other abuses by Federal intelligence agencies. During the course of the investigation, its chairman, Senator Frank Church, repeatedly emphasized his belief that the N.S.A.'s intelligence-gathering activities were essential to the nation's security. He also stressed that the equipment used to watch the Russians could just as easily ''monitor the private communications of Americans.'' If such forces were ever turned against the country's communications system, Senator Church said, ''no American would have any privacy left. ... There would be no place to hide.'' Over the years, N.S.A. surveillance activities have indeed included Americans who were merely stating their political beliefs. The agency first became involved in this more questionable kind of surveillance in the early 1960's when either Attorney General Robert F. Kennedy or the F.B.I. asked it to monitor all telephone calls between the United States and Cuba. This list of international calls was significantly enlarged during the Johnson Administrtion as Federal authorities became concerned that foreign governments might try to influence American civil-rights leaders. The N.S.A. gradually developed a ''watch list'' of Americans that included those speaking out against the Vietnam War.

According to the subsequent investigation by the Senate Intelligence Committee, a total of 1,200 Americans were targeted by the N.S.A. between 1967 and 1973 because of their political activities. The subjects - chosen by the F.B.I., the Secret Service, the C.I.A. and the Defense Intelligence Agency -included members of radical groups, celebrities and ordinary citizens. When it appeared that Congress might learn about the eavesdropping, the surveillance halted.

The Senate intelligence committee also discovered a second illegal surveillance program, under which the N.S.A., and its military predecessors, examined most of the telegrams entering or leaving the country between 1945 and 1975. The program was abruptly halted in May 1975, a date coinciding with the Senate committee's first expression of interest in it.

The records obtained by the committee indicate that from the project's earliest stages, both Government officials and corporate executives understood that the surveillance flatly violated a Federal law against intercepting or divulging telegrams. Certainly, they were aware that such interception violated the Fourth Amendment, guaranteeing against unreasonable searches and seizures, which also holds that a court warrant can be issued only when there is probable cause to believe a crime has been committed.

Using the information thus gathered, the N.S.A. between 1952 and 1974 developed files on approximately 75,000 Americans, some of whom undoubtedly threatened the nation's security. However, the agency also developed files on civil-rights and antiwar activists, Congressmen and other citizens who lawfully questioned Government policies. For at least 13 of the 22 years the agency was building these files, the C.I.A. had access to them and used the data in its Operation Chaos, another computerized and illegal tracking system set up during the Vietnam War. At its peak, the Chaos files had references to more than 300,000 Americans.

Several months after the hearing, the Senate intelligence committee issued a report that expressed great concern about both the N.S.A.'s activities and the failure of Congress and the Federal courts to comprehend them. ''The watch-list activities and the sophisticated capabilities that they highlight present some of the most crucial privacy issues now facing this nation,'' the committee warned. ''Space-age technology has outpaced the law. The secrecy that has surrounded much of the N.S.A.'s activities and the lack of Congressional oversight have prevented, in the past, bringing statutes in line with the N.S.A.'s capabilities. Neither the courts nor Congress have dealt with the interception of communications using the N.S.A.'s highly sensitive and complex technology.'' The committee recommended that Congress approve specific legislation spelling out the precise obligations and limitations of the agency. With the end of World War II and the start of the cold war, the value of effective intelligence remained high. In 1952, a special Presidential committee recommended the establishment of the N.S.A., replacing the four separate surveillance agencies within the Defense Department, concluding that a unified effort was essential because electronic surveillance of international communications ''ranks as our most important single source of intelligence today.''

The logic of the cold war also dictated that intelligence include not only secret blueprints for the latest weapon or infiltrating the enemy's ranks with spies, but also early signs that a blight had hit China's rice crop, indications that a new oil field had been located in a remote corner of Russia and analysis of radio traffic at an important Soviet-bloc airport.

The already expansive appetite of American intelligence analysts was further sharpened by technical advances that were occurring, not entirely by chance, at the same time. The technology in question was the digital computer, the wondrous tool diligently developed by American scientists working for such companies as I.B.M., the RCA Corporation and Sperry Rand, and covertly underwritten in a major way by the N.S.A. The computers' ability to acquire, organize, store and retrieve huge amounts of data was an essential factor leading to the agency's enlarged definition of intelligence.

The importance of the broadest possible intelligence gathering became even more critical when computer know-how began to spread beyond a technological elite based primarily in the United States to scientists in many nations. Simply stated, the spread of advanced computer skills and the related mathematical concepts meant that governments could reduce the chances that their top-secret messages would be intercepted and decoded, while at the same time increasing their ability to collect all kinds of economic and technical intelligence.

As a result of these changes, according to several United States officials, the intelligence apparatus of the Soviet Union began eavesdropping on millions of telephone conversations between Washington and New York and several other major cities in the early 1970's. Because of the unusual sensitivity of the subjects, however, the Federal Government did not exactly trumpet the news of the Soviet surveillance.

In 1977, about three years after this surveillance became known to the United States Government, the Carter Administration formally announced that the Russians were conducting wholesale eavesdropping from at least four locations in three different cities, New York, Washington and San Francisco. The targets of real concern were the Government, defense contractors and other large companies whose activities would contribute to Soviet collection of economic intelligence. Henceforth, classified information relating to national defense and foreign relations would be transmitted only by secure means. The Administration proposed the immediate purchase of an additional 100 ''voice scramblers'' for what is called the Executive Secure Voice Network. The central switching point for the network was determined to be the N.S.A., a fact that was unacknowledged by the Administration.

President Carter's decision immediately broadened the category of information requiring Government scrutiny and significantly extended the authority of the N.S.A. Yet no unclassified document defines what kinds of information would be useful to an adversary. A timetable of the trains running between Washington and New York could be useful to an enemy spy. Newspaper articles could serve as source material for intelligence operatives all over the world. Certainly, prececent had been established in 1971, when the N.S.A. was the lead agency in the Nixon Administration's attempt to stop newspapers from printing the Pentagon Papers, the bureaucratic history of the war in Vietnam. After blocking publication for 15 days, the Supreme Court ruled that the Government had failed to show why the material should not be published and that ''without compelling reasons'' prior restraint would be an unreasonable infringement of the freedom of the press.

Until that time, the Federal Government sought to control and protect only those military and diplomatic secrets that had been declared confidential, secret or top secret under a long-established and formally prescribed classification procedure. But now, President Carter had decided to create a huge new category of material worthy of Government protection: information that ''would be useful to an adversary.''

Telephone links in the areas where Soviet spies were known to be listening were rerouted via underground cable. To further reduce the leakage of the new category of information, the President directed the N.S.A. to approach large corporations and other institutions, collect information about their communications networks and assist them in safeguarding their material. The Carter directive sanctioning the N.S.A.'s involvement in the planning, organization and development of private communications systems not handling classified secrets was only one of several ways in which the power of the agency grew. Within the last few years, for example, the N.S.A. has forcefully moved to control the development and dissemination of inventive approaches intended to help the individual citizen, corporation or political organization maintain privacy.

On April 21, 1978, George I. Davida, then professor of electrical engineering and computer science at the University of Wisconsin at Milwaukee, received an order to keep secret all details of his invention, a computer security device. The N.S.A. informed Davida that under a little-known provision of the patent law a violation of the order could subject him to up to two years in jail and a 10,000 fine.

After the agency's orders were publicized by several newspapers and magazines, the N.S.A. decided to pull in its horns. Inman, the N.S.A.'s director, told a House committee that the two orders exemplified ''not a faulty law but inadequate Government attention to its application.'' He characterized the agency's handling of the voice-scrambling equipment as a ''well-meaning attempt to hold the line that had clearly already been passed by.''

A few years before, the director of the National Science Foundation, Richard C. Atkinson, and Inman had begun privately discussing whether the role of the spy agency in supervising cryptographic research should be expanded. The precise outcome of the talks remains murky, but the N.S.A. apparently won the debate. Today, the National Science Foundation routinely allows the N.S.A. to review any request for the funding of cryptographic research. The N.S.A. also has begun providing financial support for related unclassified civilian research. The first recipients of such support were two Stanford professors of electrical engineering, John T. Gill 3d, and Martin E. Hellman, a code expert who for many years had been sharply critical of the N.S.A.

''Five years ago, I was very much on the opposite side of the fence from N.S.A.,'' said Hellman. ''I wouldn't say I have been co-opted. As a result of them being more friendly and coming part way, I felt I should be more friendly. I guess I am now the first guinea pig.''

Hellman is not sure why the agency was interested in funding nonclassified research, and he acknowledges potential problems. ''One of the fears is that they are trying to buy people. If they support you, then they own you, and you really are going against them if they ask you not to publish something and you do.''

There are, of course, many ways to influence men. In early 1979, Inman spoke to the Armed Forces Communications and Electronics Association, the first public speech ever given by a top N.S.A. official. Speaking in the guarded language of his profession, Inman noted that the agency's mission could ''no longer remain entirely in the shadows.'' One reason for this change, he explained, was that the protection of communications was no longer of interest just to the Government; it also had become a major concern to private institutions. Because of this new interest, tensions, which he did not define, had developed between ''the national-security interests of the Government and the telecommunications-security interests of both the public and private sector.'' The time had come, he said, to begin a dialogue between the N.S.A. and the academic and industrial worlds.

The result of this dialogue so far has been the recommendation by a special committee of the American Council on Education, a prestigious organization of over 1,400 colleges and universities, that all researchers engaged in cryptographic research submit their work to the N.S.A. before publication. Only one of the nine members of the special committee opposed this ''voluntary'' system of prior restraint, George Davida. Davida, who believes such a system Page 67 is unconstitutional, said, ''The increase in the computerization of society has led to the construction of a large number of data bases that are 'electronic windows' into the most intimate details of people's lives. What is even more disturbing is that it is usually impossible to know who is looking in. Thus, these data bases are like one-way mirrors.''

''Encryption,'' he continued, referring to the coding of material placed in computers, ''can serve as a curtain. Therefore, the need for civilian (or nongovernmental) effort in cryptography is a strong one.''

Davida noted that the data bases used right now for statistical purposes, employment records, credit-card operations and many other operations essential to American life are all subject to possible N.S.A. scrutiny. ''The only effective method for maintaining separation of such data involves encryption,'' he declared.

Shortly after Inman persuaded the academic community to accept his system of prior restraint for cryptology, he was named Deputy Director of Central Intelligence by President Reagan, who replaced him with Air Force Lieut. Gen. Lincoln D. Faurer.(Later, Inman left the C.I.A. to become the director of the Microelectronics and Computer Technology Corporation, a private consortium of 10 high-technology companies.) Inman soon warned that many researchers would face mandatory Government censorship of their papers unless a system of review was established to limit the access of the Soviet Union to the benefits of American technology.

Speaking before the annual meeting of the American As-sociation for the Advancement of Science last year, Inman said that other areas where restrictions were required because publication of certain ''technical information could affect the national security in a harmful way. Examples include computer hardware and software, other electronic gear and techniques, lasers, crop projections and manufacturing procedures.''

Many scientists immediately objected. ''If you want to win the Indianapolis 500, you build the fastest car; you don't throw nails on the track,'' commented Peter J. Denning, head of Purdue University's Department of Computer Sciences and former president of the Association for Computing Machinery.

The American Association for the Advancement of Science passed a brief resolution on the day Inman spoke: ''Whereas freedom and national security are best preserved by adherence to the principles of openness that are a fundamental tenet of both American society and the scientific process, be it resolved that the A.A.A.S. opposes governmental restrictions on the dissemination, exchange or availability of unclassified knowledge.''

A few months before Inman's speech, Dr. Edward Teller, the physicist credited with being a major proponent of and contributor to the construction of the hydrogen bomb, wrote an essay attacking Government attempts to restrict scientists, saying, ''Secrecy is not compatible with science, but it is even less compatible with the democratic procedure.''

No laws define the limits of the N.S.A.'s power. No Congressional committee subjects the agency's budget to a systematic, informed and skeptical review. With unknown billions of Federal dollars, the agency purchases the most sophisticated communications and computer equipment in the world. But truly to comprehend the growing reach of this formidable organization, it is necessary to recall once again how the computers that power the N.S.A. are also gradually changing lives of Americans - the way they bank, obtain benefits from the Government and communicate with family and friends. Every day, in almost every area of culture and commerce, systems and procedures are being adopted by private companies and organizations as well as by the nation's security leaders that make it easier for the N.S.A. to dominate American society should it ever decide such action is necessary.