AMY GOODMAN: To talk about the Church Committee, we are joined right now by attorney Frederick Schwarz. He served as Chief Counsel to the Church Committee in the mid-'70s. He's now Senior Counsel at the Brennan Center for Justice at the NYU School of Law and co-author of the forthcoming book, Unchecked and Unbalanced: Presidential Power in a Time of Terror. We welcome you to Democracy Now!

FREDERICK SCHWARZ: Nice to see you.

AMY GOODMAN: It’s good to have you with us. Tell us what happened then.

FREDERICK SCHWARZ: Well, actually, it started in 1946, when all these major companies started turning over all their cables, every single cable that went out of the country to the NSA. Initially, the government looked at those to see encrypted or coded messages coming from foreign embassies, but they began during the ’60s and ’70s to look at cables and other messages from people opposing the war in Vietnam and civil rights leaders. That was just one example of all the excessive surveillance and action that the government agencies were taking against people who were dissidents in the United States during the Cold War.

AMY GOODMAN: Explain Project SHAMROCK.

FREDERICK SCHWARZ: Well, SHAMROCK was the codename — they give all the things codenames — for the handing over of every single cable that left the country for every day from 1946 until it was discovered in 1975, when it was stopped.

AMY GOODMAN: And what happened? How was it used? How did they actually do it then?

FREDERICK SCHWARZ: Well, I don’t know the technology, but they would use electronic devices to check messages they wanted to look at. And it started, as I said, with a relatively benign purpose, one that most people would say is perfectly proper: looking at foreign embassies sending coded messages back to their home countries. But then it was shifted to looking at American anti-Vietnam War protesters and civil rights leaders to examine their communications. So, it’s an example, one of many, of how, when you’ve got a secret program and inadequate laws governing it, it’s going to spread, and it’s going to start perhaps in an appropriate way, and then it will spread into something that’s totally contrary to the First Amendment.

AMY GOODMAN: Could you talk about the cooperation of these companies in spying on Americans?

FREDERICK SCHWARZ: Well, they were asked to do it, and they did it.

AMY GOODMAN: Which ones?

FREDERICK SCHWARZ: It was the companies you mentioned.

AMY GOODMAN: ITT, RCA Global.

FREDERICK SCHWARZ: And the other one, whatever it was.

AMY GOODMAN: Western Union.

FREDERICK SCHWARZ: Western Union, yeah. And, you know, frankly, they then actually were less culpable than today. Then, they simply were violating the privacy rights of their customers, but today, the FISA law, which was passed in 1978 as a consequence of the Church Committee’s revelations, makes clear that the government is not meant to get messages from United States citizens without a warrant, except for a three-day emergency period when they can proceed without a warrant, or when a war is declared, when they have a period of 15 days. But the law is very clear. Beyond that, it’s criminal for the government to obtain messages without a warrant.

AMY GOODMAN: There was a fierce debate within the Church Committee about whether to name these companies that had cooperated with the government and spied on Americans. Talk about that debate.

FREDERICK SCHWARZ: Well, that’s true. There was. I mean, everybody thought it was wrong, and the question was whether to name the companies. And ultimately, the Church Committee decided that it was the right thing to do, and I supported that view. It was the right thing to do, because these companies knowingly had violated the rights of their customers.

AMY GOODMAN: The President weighed in through his attorney.

FREDERICK SCHWARZ: Yeah. President Ford did. And they made a big fight about not disclosing those names, just as they had made a big fight about not disclosing the fact that the CIA had used the Mafia to try and kill Fidel Castro. In both cases, the committee ultimately decided to release the information.

AMY GOODMAN: It wasn’t common for the White House Counsel to personally go to the committee, and he did on this issue, said it would compromise national security?

FREDERICK SCHWARZ: Yeah, it wasn’t the White House Counsel; it was the Attorney General, but he was basically a good guy, Ed Levi, and he issued guidelines that began to curb the FBI, so he was on the side of reform. And in this case, he took a position that we disagreed with.

AMY GOODMAN: And said it would compromise national security.

FREDERICK SCHWARZ: Yeah, but of course, that’s silly. It doesn’t compromise national security. I mean, most issues that really come to public attention, the government wants to conceal something because it’s embarrassing, not because it compromises national security. Take torture today, you know, or sending people to be tortured in Egypt and Syria and so forth. That’s not compromising national security to have it exposed. It’s exposing wrongdoing that’s embarrassing.

AMY GOODMAN: And, of course, for the companies, it’s very embarrassing and it could open them up to lawsuits.

FREDERICK SCHWARZ: Yeah. It didn’t back then, and it has now, and who knows how those lawsuits are going to come out?

AMY GOODMAN: Well, I wanted to play for you a comment made last week by New York Times reporter, James Risen. He, of course, broke the story about the NSA’s domestic surveillance program and wrote the book, State of War: The Secret History of the CIA and the Bush Administration. He spoke also at the forum on the NSA sponsored by the New York Public Library and the Century Foundation.

JAMES RISEN: I’ve never confirmed this, but I’ve heard that within the NSA, among the very few people who knew about this program, there were some serious concerns. Some people considered resigning. Some people refused to participate in the program. And what I heard was that the people who were the most concerned were the people who had lived through the whole Church Committee period, and that it was the young people who said, “Oh, yeah. Let’s do that, you know.”

AMY GOODMAN: So it was the young people, he said, were the ones who said let’s go ahead and do that —

FREDERICK SCHWARZ: Yeah.

AMY GOODMAN: — in the modern controversy. The older ones, remembering Church, went a different route.

FREDERICK SCHWARZ: It’s interesting. I think the Church Committee did teach lessons to people, that if you — you shouldn’t violate the law. You shouldn’t use secrecy to cover up things, merely because they’re embarrassing. Another thing that I know he said at that conference was about General Hayden. I should say for a minute, the NSA is a very important agency for the United States. It has done and it does do very important things through their electronic intelligence work. But with respect to General Hayden, in the book, I’ve looked in the draft of the book, which is coming out next winter — I’ve looked at General Hayden’s comments, and I think in his confirmation hearings, the Senate Intelligence Committee really needs to look very carefully at whether he was candid or honest in the comments he made after 9/11. You know, to make a fair judgment on that, you have to know not only what he said, but exactly what was being done when. But I think there’s a credibility issue.

AMY GOODMAN: Candid about?

FREDERICK SCHWARZ: About whether the government — I think — see, the comments by both President Bush and General Hayden reassured the public that they were always getting warrants, but we now know they weren’t. So there’s a credibility issue there.

AMY GOODMAN: Going back to President Ford and the Church Committee, didn’t Ford try to extend executive privilege to the private companies?

FREDERICK SCHWARZ: I don’t know if they used that label. I don’t think they did. They were really saying it’s unfair to the private companies, more than the use of the label “executive privilege,” which really wasn’t being used back then, by the way, that label. Nixon began to use it, but it wasn’t as common as it now is. We have a greater problem with secrecy today than we did back then.

AMY GOODMAN: In what way?

FREDERICK SCHWARZ: Because it’s being used more often, I think, to try and cover up and keep secret things, simply because they’re embarrassing.

AMY GOODMAN: You think Congress needs to form a new Church Committee?

FREDERICK SCHWARZ: Well, whether Congress should do that or it should be done like the 9/11 Commission was by a private group, yes, I think it should be done. Congress now and the country now is much more partisan, much more divided than it was in 1975-76, and that makes a fair investigation much harder.

AMY GOODMAN: How concerned are you about what’s happening today?

FREDERICK SCHWARZ: Well, you know, what I really think, what I’m really concerned about is the theory that Dick Cheney first voiced many years ago and he’s continued to voice and Bush’s lawyers have voiced, which is the theory that the President has the right to break the law. Now — and indeed that the Constitution gives the President the right to break the law. That’s never been suggested before. It’s being suggested now, and if it’s not put down and defeated, we are in a slippery slope moving toward a much more totalitarian government that’s like the monarchy which we supposedly — we tried to put behind us when we had the revolution 200 years ago.

AMY GOODMAN: Frederick Schwarz, I want to thank you very much for being with us.

FREDERICK SCHWARZ: Okay. Thank you.

AMY GOODMAN: Senior Counsel at the Brennan Center for Justice at NYU School of Law, served as the Chief Counsel to the Church Committee 30 years ago and is co-author of the forthcoming book, Unchecked and Unbalanced: Presidential Power in a Time of Terror. Thanks for joining us.