Twice in their history Americans have been forced to confront a challenging question: Is excessive government surveillance a necessity in a threatening world or a crime against democracy? In both instances, the evidence of such operations was gathered and publicized by citizens whose consciences compelled them to risk many years prison in order to inform the public about illicit government actions.
We are currently living through one of those times, in the wake of Edward Snowden’s revelations about the massive surveillance of the National Security Agency. The previous instance, in 1971, led to the first congressional investigations of all intelligence agencies. It’s not clear now what the impact of the second release of such files will lead to.
But most certainly the secrets kept by public officials as diverse as FBI Director J. Edgar Hoover and President Barack Obama (the first constitutional law professor ever to serve as president) were intended to be kept secret forever. Without these acts of resistance that disclosed the secret nature of government intelligence operations, it is unlikely that Americans would have so intensely debated the role of intelligence agencies in the ’70s or now.
Massive intelligence gathering by U.S. agencies began immediately after World War II and continued until 1971. During those decades, the government built covert intelligence operations that far outstripped what most Americans considered acceptable. Polls show that in recent months Americans have gradually been moving toward that same stance in response to the current revelations about the numerous surveillance operations put in place by the National Security Agency against Americans and citizens of allied countries since 9/11.
Hoover’s operations, once revealed, were plainly indefensible. Who could approve of informers injecting activists’ oranges with laxatives? Who could approve of the FBI providing a diagram to the Chicago police guiding a shooter to “Fred’s bed” to kill Fred Hampton, leader of Black Panthers in Chicago? Who could approve the FBI’s use of phony letters to break up marriages of activists whose ideas Hoover didn’t like? Who could approve of the FBI using extreme dirty tricks to encourage Martin Luther King to commit suicide? Who could approve of the FBI conducting massive surveillance of every black community in the nation? Who could approve of the FBI entering a formal agreement to have 100,880 members of the American Legion spy on their neighbors and others and send regular reports to the FBI from 1940 to 1966? Who could approve of the FBI keeping tabs on nearly every notable writer in the country?
If Obama has recently sounded like a paragon of judicious oversight, the actions of his administration belie his words.
During the Cold War, there was virtually no official oversight of intelligence agencies and little or no investigative reporting about intelligence operations. Consequently—and unsurprisingly—the public almost never questioned the actions of the intelligence community. That changed in 1971, when the public first got wind of Hoover’s domestic spying. The outcry was so great that Congress investigated intelligence agencies and constraints were put in place in the mid-’70s —permanent intelligence oversight committees in both houses of Congress, the establishment of the FISA Court, and attorney general guidelines for the FBI.
In the intense post-9/11 environment, it has been as though those constraints never existed. Just days after 9/11, the FBI switched from a law enforcement footing to a stop-the-next-attack footing on orders from the White House and the Justice Department. Following the same mandate, the NSA expanded its mission from surveillance of enemies overseas to extensive electronic surveillance of Americans and of the citizens of allied countries.
The first decade of this century was an eerie echo of of the Cold War decades, when almost no one in any branch of the government ever bothered to inform the public about extensive new intelligence gathering. Secrets were carefully guarded whether or not they strengthened national security, whether or not they protected or harmed public safety. James Clapper, the current director of National Intelligence, has lied to Congress and the American people about his agency’s operations just as Hoover and CIA Director Richard Helms did in the ’70s.
The people who ignited debate about intelligence operations by presenting the public with intelligence secrets in these two very different periods did it from similar principles but from very different positions.
On the night of March 8, 1971, eight people who called themselves the Citizens Commission to Investigate the FBI removed all the paper files from the FBI’s office in Media, Pennsylvania. They distributed copies of the files to journalists, including this writer. They stated in anonymous letters that as antiwar and civil rights activists they had become convinced that FBI spies had penetrated peaceful organizations and events. The leader of the group, William Davidon, a Haverford College physicist, would later say that after he became convinced the FBI was suppressing the right to dissent, he felt it was essential that the American people be presented with documentary evidence of this situation, which he considered a crime against democracy. Burglary, something he hated, seemed to be the only way to find evidence.
The Media burglars found key evidence of suppression of the right to dissent: a statement urging agents to “enhance paranoia” and make people think there was “an FBI agent behind every mailbox,” massive surveillance of black communities throughout the country, and the existence of one of Hoover’s most vicious operations, COINTELPRO, a program that, like his many secret political spying operations, had nothing to do with pursuing crime but instead were crimes, some of them designed to incite violence within and among organizations, committed by the FBI. The Media burglars, who recently revealed their identities after being unknown for 43 years, were outsiders who had no idea whether they would find any significant evidence in that small FBI office. They went on with their normal lives in Philadelphia and were never found by the FBI, despite a massive five-year search.
By contrast, Edward Snowden, the NSA private contractor who gave thousands of NSA digital files in June 2013 to journalists Laura Poitras and Glenn Greenwald, was an insider. As he worked inside the CIA and then the NSA, he has said, he became aware of countless operations that he regarded as illegal intrusions on the privacy of Americans and other people throughout the world, as well as intrusions into and manipulation of the data of governments and businesses—essentially invading wherever evolving technology could go, including every type of personal communication equipment. Unlike the Media burglars, he revealed his identity soon after turning over the files he had copied. He did so, he said, because he feared numerous NSA workers would be targeted as the source of the leaks.
When Snowden’s initial revelations were made public in the summer of 2013, President Obama condemned the exposure of the secrets and endorsed criminally charging Snowden under the Espionage Act of 1917. Since then Obama has seemed to soften a little. In his recent speech on surveillance, he appeared to move away from his original insistence that the programs, as they existed, were all essential. And in a particularly eloquent portion of the speech, he acknowledged, “Given the unique power of the state, it is not enough for leaders to say: Trust us, we won’t abuse the data we collect. For history has too many examples when that trust has been breached. Our system of government is built on the premise that our liberty cannot depend on the good intentions of those in power; it depends on the law to constrain those in power.”
But he left untouched the key program on his agenda—the phone metadata collection system. He suggested that changes should be considered only about how it is stored and how it is accessed. The collecting of massive phone data—the very thing that has been increasingly criticized by the public and Congress—would continue under Obama’s plan.
And if Obama has recently sounded like a paragon of judicious oversight, the actions of his administration belie his words. Upon taking office in 2009, he immediately adopted the policies of his predecessor, President George W. Bush, in regard to these matters and has rarely deviated since. One recently resolved case is a particularly disconcerting example of the Obama administration’s willingness to cover up even extremely foolish secrets.
First under Bush, but mostly under Obama, the government fought ferociously to cover up why in 2005 Rahinah Ibrahim, a wheelchair-bound, 39-year-old Stanford University doctoral student was handcuffed and arrested at San Francisco International Airport, told that she was on a terrorist watchlist, and prevented from boarding a flight to Malaysia. Eventually permitted to fly, she was prevented from returning to United States. In addition, her student visa was revoked under a terrorism law. Now a dean of a college of design and architecture in Malaysia, she sued to clear her name and get permission to fly to the United States.
During seven years of litigation, the government appealed the results twice and spent $3.8 million defending its position that it could not reveal why Ibrahim was on the no-fly list. Obama administration officials claimed that disclosing the reason Ibrahim was detained, or even acknowledging that she had been placed on a watch list, would cause serious damage to national security. Repeatedly they claimed state secrets privilege.
The nation’s highest law enforcement officer, Attorney General Eric Holder, and its highest intelligence official, General James Clapper, made these claims for why the government refused to reveal why Ibrahim was on the no-fly list:
Holder: “I agree with the FBI that disclosure that an individual is not a subject of an FBI counterterrorism investigation could … reasonably be expected to cause significant harm to national security … Allowing such disclosures would enable individuals and terrorist groups alike to manipulate the system to discover whether they or their members are subject to investigation … Individuals who desire to commit terrorist acts could be motivated to do so upon discovering that they are not being monitored.”
Clapper: “My assertion of the state secret and statutory privileges in this case precludes defendant or any other agency from making any response … that would serve to disclose classified information regarding plaintiff or any other individual.”
Finally, behind closed doors—closed at the insistence of the Department of Justice—in U.S. District Judge William Alsup’s courtroom in San Francisco, the reason for Ibrahim’s being on the list and barred from returning to the U.S. recently was revealed, and several days later became public:
In 2004, FBI agent Kevin Kelly “misunderstood the directions” on a government form, ignored written instructions that Ibrahim not be placed on the no-fly list, and “checked the wrong box.”
Judge Alsup called it “an error with palpable impact, leading to the humiliation, cuffing, and incarceration of an innocent and incapacitated air traveler,” and added that Ibrahim “poses no threat to air safety or national security and should never have been placed on the no-fly list.”
The government had seven years to think about this mistake. Instead of acknowledging it, the government spent millions of taxpayers’ money trying to guarantee that the mistake would remain hidden. In hindsight, it is stunning that Holder told the judge this case was an example of the administration invoking state secrets privilege “sparingly.”
This behavior is reminiscent of a key demand by J. Edgar Hoover throughout his 48 years as FBI director: “Don’t embarrass the bureau.” Then and now, the deepest embarrassment came from the discovery that the government is willing to go to extreme lengths to cover up and keep secret not only serious matters that could have an impact on national security but its own errors as well. In the Ibrahim case, how was it possible that someone at the NSA or Justice or the FBI didn’t speak up and say, “Fellows, don’t you think we’ve gone too far? Let’s explain.” Perhaps that did not happen because officials assumed, as FBI and CIA officials assumed four decades ago, that they could get away with anything because they would have—in the words of F.A.O. Schwarz Jr., chief counsel of the Senate committee that conducted the first congressional investigations of intelligence agencies—“everlasting secrecy.”
Recent suppression of the truth about intelligence operations was assumed to be possible not only in regard to covering up harm done to individuals treated unjustly, as Ibrahim was, but also in regard to the NSA’s largest operations, including the phone metadata operations Obama wants to keep in place.
Unlike the iconic Hoover, Clapper, the director of national intelligence, and the heads of other intelligence agencies today, have been faceless bureaucrats not well known to the public. But Clapper became less faceless when he confessed, after Snowden’s files revealed the existence of the massive surveillance of Americans’ phone calls, that he had lied the previous March when, under oath before the Senate Select Committee on Intelligence, he said “No, sir” in response to a question from Senator Ron Wyden (D-Oregon): “Does the NSA collect any type of data at all on millions or hundreds of millions of Americans?” After Snowden provided evidence of the truth, Clapper admitted his prior testimony had been “clearly erroneous—for which I apologize.”
In addition to speaking out against some aspects of the phone metadata operations, the president ruled out continuation of the NSA bugging the phones of the leaders of allied countries. Snowden files that revealed German Chancellor Angela Merkel’s phone had been tapped by the NSA caused a firestorm of reaction.
The president and members of Congress have paid little attention to other NSA revelations, including ones that raise questions about the possibility that Internet freedom is being seriously damaged by use of the Internet by the NSA as a giant worldwide surveillance machine now seen by the government as a mechanism for new forms of warfare and, indeed, as a new landscape for war. As one top-secret memo released by Snowden put it, cyber operations will be turned into “another capability alongside air, sea, and land forces.”
Europeans have expressed more outrage than Americans as these secrets have been revealed from the Snowden files. Germans seemed to be the most outraged. Commentators there have observed that Germans’ deep anger and disappointment at what they learned from the Snowden files arose from a few factors, key among them the importance many Germans have placed on their country’s very close post-World War II relationship with the United States and also their deep-seated antipathy for government surveillance of citizens.
Germans have absorbed profound lessons from their recent history. Their intimate experience with living under two totalitarian systems—the Nazi regime and the Communist government of the former East Germany—mean, wrote one German commentator, “that the consequences of state monitoring are still in living memory.” Many Germans retain strong memories of the monstrous secret police, the much hated Stasi, who, along with their army of informers, penetrated every aspect of East Germans’ lives.
As a result of knowing from their experience that government surveillance of citizens can breed government control of citizens, Germans are nearly as possessed by the idea that massive government surveillance must never happen again as they are by their conviction that a Holocaust must never happen again. Furthermore, they see a relationship between these two catastrophes in their tragic past—that some people become what they may not want to become but, rather, what they think their government wants them to become when they live in fear that their leaders know everything about them.
As NSA files continue to become public, important questions still need to be asked about the implications of extreme expansion of capability, as well as change of mission post-9/11 at the NSA, and perhaps other intelligence agencies as well. Interestingly, Senator Frank Church, the Idaho Democrat who chaired that first congressional investigation of intelligence agencies in the ’70s, predicted what could happen if careful oversight was not exerted over the NSA. In a 1976 warning little heeded by Congress, journalists, or the public, he said that the NSA had unique invasive capacities—miniscule, of course, compared to its capacity now. Fearful of what would happen if the NSA ever turned its highly charged spying powers onto Americans—as it now has—Church warned:
“The National Security Agency’s capability at any time could be turned around on the American people, and no American would have any privacy left, such is the capability to monitor everything: telephone conversations, telegrams, it doesn’t matter. There would be no place to hide. If a dictator ever took over, the NSA could enable it to impose total tyranny, and there would be no way to fight back.”
A dictator is not in place, but a tyranny-ready technological surveillance infrastructure is.
It’s not clear what will be done about this situation. Some members of Congress, in a bipartisan effort, have proposed laws that would curb the newly discovered excesses of the NSA. Some, like Senator Diane Feinstein (D-Calif.), the chair of the Senate Intelligence Committee, are pushing to protect some of the most invasive practices by mandating them by law.
In the ’70s, the most important impact of the revelations in the Media burglars’ stolen files and subsequent revelations, was the Church Committee’s extensive investigation and assessment of the intelligence agencies’ secret use of their power against individuals and organizations and in the shaping of government policy. It was that public process led to the reform of intelligence agencies.
Schwarz, the general counsel of the Church committee, recently issued a call for Congress to conduct a similar investigation now. Others who worked on that 1975 investigation have joined him in that call.
An extensive congressional investigation now, not yet officially suggested, may be the best way to determine if the NSA—fueled since 9/11 by the the demand that it prevent the next terrorist attack, by increasingly powerful technology capacity abetting ever wider and deeper surveillance, by an inability to adequately analyze the growing haystacks of data and by insufficient oversight—is in line with a national consensus that developed in the ’70s and that most Americans may still think is valid:
Never again should an intelligence agency not be accountable to the public.
Betty Medsger, a former Washington Post reporter, is the author of The Burglary: The Discovery of J. Edgar Hoover’s Secret FBI, published by Alfred A. Knopf.