Washington—If 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 Week have 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 system—under 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, Maryland—is 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.”
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
This article from the Village Voice Archive was posted on July 6, 1999