By Jena Ardell
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By Zachary D. Roberts
WashingtonIf ever a phrase has been worn out in Clintonian Washington, it's "attorney-client privilege." however, even as ken Starr's probe winds down and impeachment proceedings recede in memory, the exemption has been invoked yet again to fend off inquisitive congressional republicans. this time, however, the questions have nothing to do with Bill Clinton's bad behavior, and the entity being probed makes the notoriously tight-lipped and obfuscation-prone white house look like a paragon of openness.
The organization in question is the National Security Agency, and for the first time in its history the NSA is trying to use attorney-client privilege to deflect queries from Congress.
"It's news to me," says Stewart Baker, a Washington lawyer who was the NSA's general counsel from 1992 to 1994, of his former employer's tactic. "I never invoked attorney-client privilege when I was there, I don't think anyone there would have seriously suggested invoking attorney-client privilege in response to a congressional inquiry. But, then, the Clinton administration has re-legitimated a number of things Nixon de-legitimated in terms of executive privilege, so it isn't exactly surprising."
Last year, the Voice published an investigation of ECHELON, a top-secret global surveillance project dominated by the NSA and involving the signals intelligence (SIGINT) agencies of Great Britain, Australia, New Zealand, and Canada. Since then, the European Parliament has issued its final report confirming ECHELON's existence, while reporters from Australia's NineNetwork to Britain's Channel 4 to even Business Weekhave conducted their own investigations into the multinational eavesdropping system that New Zealand author Nicky Hager first discovered in 1996. All the investigations have turned up evidence that the ECHELON systemunder which each country is responsible for intercepting civilian and commercial communications in a designated area of the globe, and then sending the intercepts to the NSA's headquarters at Fort Meade, Marylandis subject to virtually no oversight and has likely been used as a mechanism to collect commercial espionage and to illicitly spy on citizens.
Enter, of all people,Representative Bob Barr, seen by many as a latter-day Torquemada for his unsparing obsession with impeaching and convicting Bill Clinton for lying about sex. Hardly an apostle of civil libertarianism (his ACLU ratings have been 7 percent and 33 percent for Congress's last two sessions, and two weeks ago he publicly mulled over using anti-racketeering statutes to prosecute drug legalization advocates), the Georgia Republican occasionally finds a privacy measure he can get behind as long as no one's talking about the president. Not only has he argued for strengthening bank depositor privacy, he's also opposed legislation designed to expand wiretap and warrantless search authority. "As a former U.S. Attorney, I'm very aware of giving law enforcement and intelligence the tools they need to get the job done, but am also very mindful of the tremendous amount of power the government has and how ready it is to abuse that power," he says, with nary a trace of post-impeachment irony in his voice. "In the case of ECHELON, I think it's very important that we look into this because it appears to be a deliberate circumvention of very clear constitutional safeguards against using electronic eavesdropping without court orders, probable cause, or reasonable suspicion."
Ironically, Barr says he got interested in ECHELON while doing research for a speech he was invited to give by the ACLU. Intrigued by the thoroughness of foreign reporting on the topic but perplexed by the relative dearth of coverage in the U.S. press, Barr and House Permanent Select Intelligence Committee chairman Porter Goss called the NSA's Office of General Counsel and asked for ECHELON-related material. While the NSA did send a few documents over to Capitol Hill, the Committee was told that because materials bearing the general counsel's imprimatur were among those requested, they wouldn't be turned over as they were protected under "attorney-client privilege." Growing irked and impatient, Goss and Barr brought ECHELON up again in a later NSA budget hearing; an NSA official told the committee that while the agency was working to meet the committee's request, some documents simply were going to be withheld on the basis of attorney-client privilege.
According to Barr, this struck both him and Goss as odd. Both should know; Goss was a CIA officer in the '60s, and Barr spent most of the '70s in the CIA's Office of Legislative Counsel working with Congress to rewrite oversight laws in the wake of intelligence community scandals. Neither had ever heard of an intelligence agency trying to assert lawyerly confidentiality as a reason not to meet a congressional request. Though Goss declined to be interviewed by the Voice, he noted in a May 7 report that in subsequent conversations with the NSA's Office of General Counsel, the committee staff was alternatively told that the requested documents wouldn't be released not only because of attorney-client privilege, but because under the Freedom of Information Act's Exemption 5 (which allows documents to be withheld if they're "deliberative" or "preliminary" in nature), NSA wasn't required to meet the committee's request.
It eventually became necessary, according to Goss's report, to remind the NSA that under the National Security Act, "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 abilities."' Yet according to the report, the NSA still stuck to the attorney-client argument, even though there is "no law that forbids a congressional committee from exercising its discretion to reject claims of attorney-client privilege."