The NSA is in trouble

Raymond G. Van De Walker (
Fri, 28 May 1999 21:27:42 PDT

This is off-topic, but it was too juicy not to share.
>From the House Reports Online via GPO Access

106th Congress                                            Rept. 106-130
  1st Session           HOUSE OF REPRESENTATIVES              Part 1




                  May 7, 1999.--Ordered to be printed


    Mr. Goss, from the Permanent Select Committee on Intelligence,
                        submitted the following

                              R E P O R T

                             together with

                            ADDITIONAL VIEWS

                        [To accompany H.R. 1555]

. . .

As part of its regular oversight responsibilities and preparatory to the committee's legislative action on this bill, the committee was questioning the National Security Agency's (NSA) application of current operational guidelines in light of the enormous technological advances that have been made in the past several years. The committee was seeking to ensure that the NSA was carrying out its signals intelligence mission in consonance with the law, relevant executive orders, guidelines, and policy directives. At bottom, the committee sought to assure itself that the NSA General Counsel's Office was interpreting NSA's legal authorities correctly and that NSA was not being arbitrary and capricious in its execution of its mission.\1\
. . .

During additional conversations with employees of the NSA General Counsel's Office, the Committee reminded the NSA lawyers of the agency's statutory obligations under section 502 of the National Security Act of 1947, as amended. That statute provides, in pertinent part, that the heads of all Intelligence Community elements are obligated to furnish ``any information or material concerning intelligence activities * * * which is requested by either of the intelligence committees in order to carry out its authorization responsibilities.'' 50 USC Sec. 413a(2). These admonitions to the NSA about its responsibilities under the law were met by the argument that ``common law privileges,'' i.e., the attorney-client privilege, survive even mandatory and unambiguous statutory language in the absence of express language to the contrary.

The NSA General Counsel's Office contended, therefore, that its legal opinions, decisional memoranda, and policy guidance, all of which govern the operations and mechanisms of that federal agency, are free from scrutiny by Congress. This would result in the envelopment of the executive in a cloak of secrecy that would insulate the executive branch from effective oversight. It would also undermine the intent of the 94th and 95th Congresses to establish stringent congressional oversight of the Intelligence Community. This outcome would seriously hobble the legislative oversight process contemplated by the Constitution.
. . .

The efforts of NSA, described above, and any other similar effort by Intelligence Community elements, to shield its own interpretations of their agency's legal obligations and decisional memoranda from congressional review must be rejected.
. . .

The lawyers within the Office of the NSA General Counsel, indeed, the General Counsel himself, are paid their wages and expenses from the public fisc. These funds are collected from the people of the United States and authorized and appropriated by the Congress for the conduct of government business in the public interest. It is elementary, therefore, that legal advice and counsel provided by federal government attorneys to federal government officers are subject to oversight and scrutiny by the Congress. See Contempt Report, supra; Attorney-Client Privilege: Memorandum Opinion, supra; Health Care Fraud Hearings, supra; Inslaw Hearings, supra; Congressional Access Report, supra.

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