Not So Approachable

NSA fends off house right-wingers, claiming attorney-client privilege

None too pleased with this, Goss opened both barrels on the NSA in his report, devoting over 3000 words to an agency he characterized as being "in serious trouble" and noting that his committee "would be extremely displeased to conclude that a general counsel of an intelligence agency was interfering with the legitimate and constitutional rights of the committee to oversee the intelligence activities of an executive branch agency through an erroneous assertion of privilege." Despite citing legal precedents, common-law principles, and legislative and intelligence community history to buttress his conclusion that the NSA's claims are "unpersuasive and dubious" and "must be rejected," the NSA still refused to comply. Finally, on May 23, Barr inserted, with Goss's blessing, an amendment into the FY 2000 Intelligence Authorization Act mandating the NSA, CIA, and Department of Justice provide Congress with a report about the U.S. intelligence community's electronic surveillance standards and practices.

According to Baker, the former NSA counsel, part of the spy agency's resistance is probably rooted in fear of leaks from the Hill. "There's always been a sort of de facto limitation on the extent of congressional questioning into sources and method—if there's anything newsworthy there, it's guaranteed to leak," he says. "I can imagine for security reasons that NSA would be very reluctant to divulge [this information], especially in a context that's borderline partisanship—no one thinks Representative Barr is asking for this so he can praise the Clinton administration's defense of civil liberties." Indeed, Barr's conservative fellow travelers at Judicial Watch just filed a suit on his behalf against the White House, alleging that it violated federal privacy laws by leaking confidential government information on him during the impeachment process.

That said, Baker adds, whatever the NSA's rationale, Goss's report did a good job of making the agency look unreasonable. According to Steven Aftergood, director of the Federation of American Scientists' Project on Government Secrecy, the NSA is being more than unreasonable: "At first glance, NSA's argument is preposterous, and it is at second glance, too," he says. "When an oversight committee is asking for something that is precisely within their purview and it happens to be a great matter of public interest and concern, and NSA comes up with 'attorney-client privilege,' it looks like NSA is grasping for straws."

But given how entrenched and pervasive Washington's culture of secrecy is, this isn't that surprising. While one might expect that detailed public reports about something like ECHELON would naturally lead elected officials to ask the NSA for answers and that the NSA would comply, Baker is succinct: "If they do, we ain't there yet."

When contacted for this story, the NSA refused to comment, and demanded questions be faxed to Fort Meade. No response to the fax was received by deadline. Research: Kristen Nelson

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