Column: A History of Bending and Breaking the Rules
You might not love Big Brother. But you must know he’s part of your family.
He’s been with us since J. Edgar Hoover created the modern U.S. surveillance state, with the invaluable help of the National Security Agency, at the dawn of the Cold War. Every president since has embraced Big Brother, some closely. So has every Congress — save one, almost 40 years ago.
President Obama has said he welcomes a debate on the clash between national security and civil liberties. Fine, let’s have one — preferably in public, with witnesses under oath, starting with the NSA’s director and Google’s “don’t be evil” executives. After last week’s reports on the scope of the American intelligence dragnet, the Senate should revive the Church Committee, which exposed the NSA’s spying on Americans in the months before the U.S. bicentennial in 1976.
The NSA is a military intelligence service dedicated to gathering and analyzing the telecommunications of foreign nations — tapping their phones, breaking their diplomatic and military codes — and securing our own. Created in 1952, it immediately began spying on Americans.
From day one, the NSA collected millions of messages from RCA, ITT and Western Union, the three great global telecommunications companies of the day. The program, Shamrock, ran under presidents from Harry Truman to Gerald Ford. Its roots lay in FBI-Army counterespionage against the Soviets. If it caught a spy of great note, that fact remains unrecorded in the annals of American intelligence.
More ominously, the NSA, by request of the CIA and the FBI, eavesdropped on Americans for a decade under Presidents Lyndon Johnson and Richard Nixon. The CIA wanted to snoop on Americans suspected of “civil disorders, radical student or youth activities, racial militant activities, radical antiwar activities ⅛and⅜ related media activities.”
Hoover and the FBI wanted all that and more: wiretaps of civil-rights and black-power advocates. This program, Minaret, created thousands of intelligence reports. NSA instructed its personnel to keep their fingerprints off the reporting.
The NSA and the CIA were created to collect foreign intelligence. When they chased foreign terrorists and spies, these programs were legal. But the CIA has no police powers; it cannot spy on Americans. When the FBI was involved — and it was, at all levels, opening mail, tapping phones, breaking and entering without judicial warrants — that was as illegal as it gets.
In 1973, after Hoover’s death, the Justice Department caught wind of Minaret. Who, me? the NSA said. It falsely contended that its spying on Americans was “an incidental and unintended act,” a lie that didn’t stand for long.
The same thing happened three months into the first Obama administration. After the passage of the new laws on government eavesdropping, the laws that stand today, the NSA was caught in the act of systemically “overcollecting” the domestic communications of Americans in the spring of 2009. Oops, sorry, the NSA said. Never again.
Let’s talk about the laws. After the Church Committee exposed the depths of illegal spying on Americans in 1975 and 1976, Congress created the Foreign Intelligence Surveillance Court. If the intelligence services wanted to open mail or tap a phone, they had to get a warrant from those federal judges, who meet in secret in a lead-lined chamber atop the Justice Department. They almost never say no.
This system served well — until the government started bending the law, then breaking it.
The NSA was in deep trouble in the years before the Sept. 11 attacks. Fiber-optic cables, encrypted email and digital telephony put the agency behind the technological curve in its quest for global electronic eavesdropping.
After the attacks, President George W. Bush and Congress gave the NSA almost unimaginable latitude under the law to collect email and telecommunications inside the U.S.
The NSA again quickly overstepped the Fourth Amendment’s prohibition of unwarranted searches and seizures. The FBI director and the acting attorney general had to threaten to resign in March 2004 before Bush backed down and promised to put the NSA under the limits of the law.
So, after long struggle, Congress repeatedly rewrote the spying statutes. In 2008, late in the Bush administration, it amended the law governing the Foreign Intelligence Surveillance Court. It added a provision allowing the NSA to obtain a “programmatic” search warrant. A programmatic warrant is not a probable-cause warrant. It allows the NSA to collect phone calls and e-mails with no requirement that the senders or recipients might be suspected terrorists or spies.
The NSA acknowledges it has violated the letter and spirit of that law once or twice or three times. Sorry about that. Congress should be sorry, too. A programmatic warrant sounds a little too much like a “general warrant” — a proximate cause of the American Revolution against the British.
The Prism program revealed last week by the Guardian and The Washington Post was one immediate result of the intelligence law revisions. They appear to allow the NSA access to Microsoft, Yahoo, Google, Facebook, Skype, YouTube, AOL and Apple data. They also seem to allow dragnets of metadata from major American telecommunication companies, like Verizon — including logs of calls within the United States — without having to obtain individual warrants.
Obama says this is perfectly legal, that the courts and Congress are on board, and that no Americans have been harmed. He may well be right. But, in the words of Michael Kinsley, the scandal is not what is illegal — it is what is legal.
We are surely in uncharted terrain when government spies and social-media giants collaborate in secret. We have to map this new world to keep our bearings as a democracy. We know that information is power, secret information is power squared, and secret information that’s eyes-only for the president is power cubed. That’s why we have intelligence services.
Secret power can be a danger in a democracy. U.S. intelligence services have a history of operating at the edge of the law and beyond. But fewer judges, politicians and reporters today have the courage to check them than back in the days when the Church Committee let us see the skeletons in the closets of our spooks. That’s why the laws governing intelligence need a public hearing.
Tim Weiner, a former reporter for the New York Times, has won the Pulitzer Prize and the National Book Award for writing on national security. He is the author, most recently, of Enemies: A History of the FBI.