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Will Senate actually investigate NSA spying on Americans?

The National Security Agency's electronic ear is supposed to listen in on terrorists. But whistleblowers say they were tuning in to unrelated conversations including phone sex.

The U.S. Senate is investigating allegations by two National Security Agency whistleblowers who have described widespread monitoring of innocuous telephone conversations by the Bush administration's clandestine program.

The reports fill in some details about how the NSA's program works in practice. The two whistleblowers, Adrienne Kinne and David Murfee Faulk, are former military linguists who worked for a secretive NSA operation they say routinely intercepted phone calls of U.S. military officers, American journalists, American aid workers, and others who were calling home from abroad.

The two ex-military employees came forward independently and spoke to ABC News and journalist Jim Bamford for his book on the NSA called The Shadow Factory that's due out next week.

Jay Rockefeller, the West Virginia Democrat who heads the Senate Intelligence Committee, on Thursday called the allegations "extremely disturbing" and said there would be an investigation.

If the allegations prove true, that would fly in the face of assertions by President Bush that innocent conversations would never be intercepted.

Bush said in December 2005, after The New York Times published its original article on the government's warrantless wiretapping efforts, that the NSA program would "intercept the international communications of people with known links to al Qaeda and related terrorist organizations. Before we intercept these communications, the government must have information that establishes a clear link to these terrorist networks."

The NSA whistleblowers tell a different story -- including that phone sex conversations were intercepted, recorded, and passed around the office for laughs. "These were just really everyday, average, ordinary Americans who happened to be in the Middle East, in our area of intercept and happened to be making these phone calls on satellite phones," Kinne told ABC News. Faulk said that he listened in on American troops "calling home to the United States, talking to their spouses, sometimes their girlfriends, sometimes one phone call following another."

A pair of extraordinary articles (#1 and #2) published last month in the Washington Post indicate that Bush was kept ill-informed about much of the program by Vice President Cheney and the vice president's staff.

The articles, by Barton Gellman, were excerpted from his new book called Angler: The Cheney Vice Presidency. They describe how Cheney's lawyer, David Addington, and the vice president himself defended the surveillance program, overruled concerns from the Justice Department about the legality of the program -- and came within a hairsbreadth of sparking a mass Justice Department resignation that would have put Richard Nixon's Saturday Night massacre to shame.

What is unclear is Sen. Rockefeller's own role in staying mum about the NSA scheme after being briefed on it. So, to one extent or another, were other Democratic politicians, including Nancy Pelosi and Harry Reid.

Rockefeller wrote a two-page handwritten letter to Cheney on July 17, 2003 -- over a year before the NSA program became public -- saying he had "concerns" about the surveillance. But Rockefeller never did anything beyond that, such as contacting a lawyer, even though the Senate Intelligence committee is officially charged with "vigilant legislative oversight over the intelligence activities of the United States to assure that such activities are in conformity with the Constitution and laws of the United States."

That history could make Rockefeller less than enthusiastic about investigating what truly happened, as Salon's Glenn Greenwald has not so delicately suggested.

We've been down this road before
It should be no surprise that when the NSA (or any government agency) receives broad surveillance powers with scant oversight, they end up being used not to nab al-Qaida members, but to eavesdrop on phone sex conversations between a lonely G.I. and a paramour back home. Video surveillance cameras supposedly designed to let cops catch criminals are used for voyeuristic purposes too.

History echoes this point. In decades past, government agencies have subjected hundreds of thousands of law-abiding Americans to unlawful surveillance, illegal wiretaps and warrantless searches. Eleanor Roosevelt, Martin Luther King Jr., feminists, gay rights leaders, and Catholic priests were spied upon. The FBI used secret files and hidden microphones to blackmail the Kennedy brothers, sway the Supreme Court, and influence presidential elections.

One way that the United States finally put this era behind it in the mid-1970s was to have a Senate committee perform a true independent investigation. It was chaired by Democratic Sen. Frank Church and called the Church Committee. Here are some excerpts from its report:

* The intelligence community engaged in some activities which violated statutory law and the constitutional rights of American citizens.

* Legal issues were often overlooked by many of the intelligence officers who directed these operations.

* On some occasions when agency officials assume, or were told, that a program is illegal, they still permitted it to continue. They justified their conduct in some cases on the ground that the failure of "the enmemy" to play by the rules granted them the right to do likewise, and in other cases on the ground that the "national security" permitted programs that would otherwise be illegal.

* Internal recognition of the illegality or the questionable legality of many of these activities frequently led to a tightening of security rather than to their termination. Partly to avoid exposure and a public "flap," knowledge of these programs was tightly held within the agencies. Special filing procedures were used, and "cover stories" were devised.

* On occasion, intelligence agencies failed to disclose candidly their programs and practices to their own General Counsels, and to Attorneys General, Presidents. and Congress.

* When senior administration officials with a duty to control domestic intelligence activities knew, or had a basis for suspecting, that questionable activities had occurred, they often responded with silence or approval. In certain cases, they were presented with a partial description of a program but did not ask for details, thereby abdicating their responsibility. In other cases, they were fully aware of the nature of the practice and implicitly or explicitly approved it.

Sound familiar? Today, though, the senator heading the modern equivalent of that committee is on record opposing legislation to make it more difficult to snoop on Americans overseas, while endorsing retroactive immunity for telephone companies that illegally opened their networks to the NSA. Alas, Jay Rockefeller is no Frank Church.