History's Lesson about Domestic Surveillance

The plot thickened in the domestic spying controversy with the recent disclosure that the National...

May 23, 2006

*Cross-posted from ACSBlog

 The plot thickened in the domestic spying controversy with the recent disclosure that the National Security Agency has been collecting phone call records
of tens of millions of Americans. This revelation, by individuals
familiar with the program, follows the President's admission in
December that the NSA has been eavesdropping without warrants on international calls and emails of individuals with suspected links to terrorism if one party is in the United States.

Whose telephone calls is the NSA listening to? Whose phone records
is it subjecting to "data mining" to develop more comprehensive
profiles? We do not know the precise targets of secret NSA surveillance
since the administration has blocked any congressional investigation
into the agency's operational details. To be sure, the President says the NSA investigates only those with "known links" to al Qaeda and other terrorist groups. But history cautions against accepting that explanation at face value.

Throughout the Cold War, presidents of both parties spied on
American citizens, and did so with increasing frequency and audacity.

Created by secret presidential directive in 1952, the NSA soon grew
into a vast intelligence-gathering machine which spread ever-deeper
into Americans' private lives and communications. One NSA program,
known as Operation Shamrock, intercepted millions of telegrams to and
from the United States. The NSA placed the names of law-abiding
American citizens on 'watch lists,' and then disseminated their private
communications to other government agencies such as the FBI and CIA.

It's easy now to dismiss these Cold War-era abuses as the product of
misguided communist hysteria. But that would obscure the dangers
unchecked surveillance poses to free speech and privacy rights today.

NSA will inevitably view wholly legitimate activity through the lens of
national security if permitted to operate in secret and without
external checks. The agency's definition of "terrorist threat" will
become increasingly elastic, causing it to target an ever-expanding
range of lawful activity.

During the 1950s and 60s, the NSA and other agencies looked at the
struggle for racial equality in vague, Cold War terms like "subversive
activity." National icons like Dr. King -- whom we now think of as
American as apple pie -- were considered security threats. Dr. King and
other civil rights and anti-war leaders were not only subjected to
illegal surveillance, but the information gathered was used to
undermine their work.

If history is any guide, today's surveillance dragnet will
inescapably sweep in those at the forefront of this generation's civil
and human rights struggles. Intelligence agencies, for example, may
view legitimate advocacy on behalf of Arab and Muslims in the United
States or against the war in Iraq in terms of the administration's
amorphous and ubiquitous "war on terrorism." Similarly, journalists and
others investigating politically sensitive topics such as abuse at
Guant√°namo Bay or secret CIA-run prisons are prone to an
ever-expanding net of government spying.

Constitutional freedoms have already been chilled by fears that the
government is eavesdropping on private conversations. Civil rights
organizations worry their outreach and advocacy efforts are being
monitored; human rights lawyers avoid talking to clients and witnesses;
and journalists and their sources are afraid to communicate with each

History not only highlights the dangers of unchecked surveillance; it also points to a solution. In the mid-1970s, the Church Committee conducted a far-reaching Senate investigation into U.S. intelligence agencies,
including the NSA. The Committee's fourteen reports helped prompt
significant legislative reforms, including the Foreign Intelligence
Surveillance Act of 1978, which carefully regulates
intelligence-gathering, including of suspected terrorists.

An investigation of this administration's intelligence activities is
necessary to vindicate the principles of openness and accountability on
which a democratic society depends. Thus far, however, the only people
being investigated are the officials who helped make the existence of
the secret spying program known to the American public.

In addition, any further surveillance must be conducted in
accordance with the statutory framework established by Congress and the
Fourth Amendment. The NSA, for example, must obtain a warrant from the
Foreign Intelligence Surveillance Court before eavesdropping on
telephone calls of American citizens and residents. If current
procedures need to be fine-tuned, then any necessary changes must be
made by the legislature, not by executive fiat.

Circumventing legal checks ultimately does not protect America's
security. Instead, it jeopardizes the country's tradition of
constitutional freedoms and commitment to the rule of law.

Jonathan Hafetz: "History's Lesson About Domestic Surveillance" (PDF)