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Analysis

Trump Will Have Wider Spying Powers Than Anything J. Edgar Hoover Ever Imagined

Donald Trump is about to inherit the most powerful surveillance apparatus in history. Combining unprecedented technological capabilities with a lax legal regime, his spying powers dwarf anything J. Edgar Hoover could have fathomed.

December 7, 2016

Cross-posted at Los Angeles Times.

Pres­id­ent-elect Donald Trump is about to inherit the most power­ful surveil­lance appar­atus in history. Combin­ing unpre­ced­en­ted tech­no­lo­gical capab­il­it­ies with a lax legal regime, his spying powers dwarf anything the notori­ous FBI director J. Edgar Hoover could have fathomed.

Many privacy and civil rights advoc­ates worry Trump will seek to expand these powers further in order to spy on Muslim Amer­ic­ans, activ­ists and polit­ical oppon­ents. The truth is, he won’t have to. Because of our coun­try’s rush to strip civil liberty protec­tions from surveil­lance laws after the Sept. 11 terror­ist attacks, Trump will already have all the powers he needs and more.

How did we get here? The laws that until recently safe­guarded Amer­ic­ans from sweep­ing govern­ment intru­sion were estab­lished in the 1970s, after a special Senate invest­ig­a­tion revealed wide­spread abuses of intel­li­gence-gath­er­ing. Almost every pres­id­ent dating to Frank­lin D. Roosevelt had a version of Richard Nixon’s infam­ous “enemies list,” result­ing in wiretaps of congres­sional staffers, exec­ut­ive offi­cials, lobby­ists, law firms and report­ers. Between 1956 and 1971, under the program dubbed COIN­TELPRO (short for “coun­ter­in­tel­li­gence program”), the FBI routinely spied on anti-war protest­ers and civil rights organ­iz­a­tions. The bureau targeted Martin Luther King Jr. with partic­u­lar fero­city, bugging his hotel rooms and using the result­ing evid­ence of infi­del­ity to try to induce him to commit suicide.

To stem the abuses, the govern­ment imple­men­ted laws and regu­la­tions that shared a common prin­ciple: Law enforce­ment and intel­li­gence agen­cies could not collect inform­a­tion on an Amer­ican unless there was reason to suspect that person of wrong­do­ing. In some cases, this meant show­ing prob­able cause and obtain­ing a warrant, but even when no warrant was required, spying without any indic­a­tion of crim­inal activ­ity was forbid­den.

The think­ing was that if offi­cials had to cite object­ive indic­a­tions of miscon­duct, they would­n’t be able to use racial bias, polit­ical grudges or other improper motives as a reason to spy on people. This logic was borne out, as govern­ment surveil­lance abuses went from being routine to being the occa­sional scan­dal­ous excep­tion.

Then came Sept. 11. As swiftly as the prin­ciple had been estab­lished, it was rooted out. In 2002, the FBI abol­ished a rule barring agents from monit­or­ing polit­ical or reli­gious gath­er­ings without suspi­cion of crim­inal activ­ity. A 2007 law allowed the National Secur­ity Agency to collect calls and emails between Amer­ic­ans and foreign “targets” with no warrant or demon­stra­tion of wrong­do­ing by the Amer­ican or the foreigner. Revi­sions to Justice Depart­ment guidelines in 2008 created a category of FBI invest­ig­a­tion requir­ing no “factual predic­ate” — mean­ing no cause for suspi­cion. The list of erosions goes on.

The instinct to remove any restric­tions on surveil­lance when facing a national secur­ity threat is under­stand­able, but misguided. Drag­net surveil­lance does not make us safer. The massive amount of useless data collec­ted today only obscures the real threats buried within. Even the 9/11 Commis­sion, which issued dozens of recom­mend­a­tions to improve national secur­ity, did not propose surveil­lance without suspi­cion.

When privacy advoc­ates and civil liber­tari­ans pushed Congress to restore protec­tions, Obama admin­is­tra­tion offi­cials said it was unne­ces­sary because no abuse had been shown. Despite evid­ence that law enforce­ment was monit­or­ing the Occupy and Black Lives Matter move­ments, lawmakers and much of the public accep­ted the govern­ment’s claim and contin­ued to trust it with broad surveil­lance powers. Warn­ings that future admin­is­tra­tions might be less trust­worthy went unheeded.

Those warn­ings now seem pres­ci­ent. Trump has specific­ally called for more surveil­lance of Amer­ican Muslim communit­ies. His pick for national secur­ity adviser, Michael Flynn, has described Islam as a “cancer,” while his nominee for attor­ney general, Sen. Jeff Sessions, has called the NAACP “un-Amer­ican.” As a possible secret­ary of Home­land Secur­ity, Trump has floated Milwau­kee Sher­iff David Clarke, who compared Black Lives Matter to the Islamic State group and described peace­ful protests against Trump as “temper tantrums” that should be “quelled.” Trump’s tend­ency to hold grudges is legendary: Refer­ring to Repub­lic­ans who did not support his candid­acy, a Trump surrog­ate stated, “Trump has a long memory and we’re keep­ing a list.”

In short, there is every reason to fear that Trump and his admin­is­tra­tion will target people for surveil­lance based on reli­gion, polit­ical activ­ism and personal vendet­tas.

Having gutted legal protec­tions against such abuses, are we power­less to stop them? No, but it will require vigil­ance and action from many quar­ters. Inde­pend­ent over­sight entit­ies, includ­ing inspect­ors general and congres­sional commit­tees, must aggress­ively invest­ig­ate how Trump uses his powers. The federal courts must shed their histor­ical reluct­ance to hear lawsuits chal­len­ging govern­ment surveil­lance. All of us must fiercely defend journ­al­ists and whis­tleblowers who expose surveil­lance over­reach.

Most import­ant: When surveil­lance legis­la­tion comes before Congress — as it will in late 2017, when a key surveil­lance law is set to expire — lawmakers should shore up protec­tions, not further erode them. They have bipar­tisan incent­ive. After all, politi­cians from both parties may be on Trump’s enemies list, too.

(Photo: Think­Stock)