"Most people just don't understand how
pervasive [US] government surveillance is. If you
place an international phone call, the odds that
the National Security Agency is looking are very
good. If it goes by oceanic fiber-optic cable,
they are listening to it. If it goes by satellite,
they are listening to it. If it is a radio
broadcast or a cell-phone conversation, in
principle, they could listen to it. Frankly, they
can get what they want." - John Pike (US
military analyst)
John Pike made that
observation in late February 2002, a mere
five
months after nearly 3,000 people were killed by
the explosive force of fuel-laden jets plowing
into the New York World Trade Center and the
subsequent collapse of the Twin Towers.
But more than buildings were brought down
that September 11. Historical protections of
speech, assembly, protest and privacy enjoyed by
US citizens and legal residents ("US persons")
also came under attack as a stampeded Congress,
goaded by a panicked and paranoid administration,
abdicated its constitutional role - rather, its
constitutional duty - to prevent the undue
concentration of power in the chief executive. The
immediate result was the Uniting and Strengthening
America by Providing Appropriate Tools Required to
Intercept and Obstruct Terrorists Act of 2001 -
better known by its acronym, USA Patriot Act.
This law, as has become more and more
clear over the past three months, was but the
initial move by the administration of President
George W Bush in what has become an extended and
coordinated attack on the civil liberties of US
persons in the name of national security and -
ironically - in the name of bringing democracy and
civil liberties to Iraq.
The extent of
this frontal assault suggests the depth of the
ideological aversion of many Bush advisers and
confidants to the underlying principles on which
the entire US democratic experiment rests. These
include protecting the rights of all citizens,
especially those of various minorities, against an
overbearing majority; providing basic services and
infrastructure on an equitable basis; and being
responsive to the concerns and safety of the
people. In short, it seems that key administration
figures and confidants have difficulty with the
proposition that "government of the people and for
the people" refers to all the people.
A bit of history The very
structure of government outlined in the US
constitution reflects another principle that was
quite real in the American colonies in the 1700s:
skepticism of executive power, whether king or
president, which the Founding Fathers distrusted.
After September 11, in part because of uncertainty
about possible additional attacks, skepticism
among the electorate all but disappeared -
regrettably but understandably. But what should
have been a short-term reaction - akin to what
triggers the "fight or flight" instinct - was
prolonged and so magnified by Bush administration
rhetoric and "alerts" that the public failed to
reclaim its role as the ultimate arbiter of the
balance between freedom and security that is at
the heart of the social contract.
Instead,
those occupying positions of power blithely
claimed that only by invading and restricting
traditional civil liberties would they be able
efficiently to safeguard constitutional liberties
from foreign foes. They remain fond of citing
president Abraham Lincoln's justification for
suspending habeas corpus during the American Civil
War - that the suspension is necessary to provide
for the public safety (what today we call
"national security") - without going to Congress,
which alone under the constitution can suspend
habeas corpus during rebellion or invasion, or to
the courts. Administration advocates conveniently
ignore chief justice Roger Taney's Ex parte
Merryman (1861), which notes previous Supreme
Court opinions that only Congress has the power to
suspend habeas corpus for reasons of "public
safety" (chief justice John Marshall) and this
power includes the exclusive "right to judge
whether the exigency had arisen" (justice Joseph
Story). Advocates also failed to reveal the extent
to which they would go themselves to undercut the
safeguards provided in the constitution and in
law.
The apparent disdain in which at
least some advisers appear to hold individual
rights and an active civil society may stem from
the inefficiencies these concepts introduce into
the art and practice of truly effective
government. Look at the background of key Bush
administration figures. Most have extensive
experience in business, where efficiency can be
the difference between success and failure.
(Pundits not infrequently compare the Bush style
of political governance to corporate governance.)
Some have extensive connections to the military,
not as high-ranking career officers but as
Pentagon civilians at or near the top of the
ladder, where responsiveness to their preferences
and direction is rapid if not automatic - and
invariably "gung-ho".
Unfortunately for
civil liberties and democracy, efficient
government is more characteristic of unchecked (or
minimally checked) power. At the extremes, such
power becomes tyranny, whose trademark activities
include spying on citizens because the tyrant dare
not trust anyone. Indeed, tyranny thrives on the
fear and distrust created when ostensible external
threats to national survival (eg, al-Qaeda) are
declared to have an unknowable number of tentacles
deep within society, waiting to strike at an
opportune time.
(Ironically, in
mid-18th-century colonial America, resentment over
the suppression of the civil rights of the
colonists as British citizens was initially
directed at parliament, not the crown - witness
"no taxation without representation". And Benjamin
Franklin, as late as June 1775, well after blood
ran at Lexington from "the shot heard 'round the
world", seemed to have had more regard for and
trust in the British monarchy than in the British
parliament.)
The Patriot Act
The United States is still far from the
extreme of tyranny. Nonetheless, many observers
find highly problematic the Bush administration's
drive to extend permanently (unless some future
Congress countermands the pending legislation) the
curtailment of civil liberties by the USA Patriot
Act. What this all-out effort suggests is that
government now sees threats everywhere and, in so
doing, has lost its footing in the real world.
Having painted itself into a psychological
corner, unsure of its information and its ability
to collect information and interpret what is
collected, the Bush administration pounded
Congress throughout December with rhetorical
imperatives ("Congress must ...") and apocalyptic
predictions of disaster should the United States
go unprotected by the act for even one day. In the
end, Congress extended the act by five weeks
(until February 3, 2006) and the president, who
had adamantly declared he would never approve a
short-term extension, signed the legislation.
Publicly, the USA Patriot Act remained the
focus and justification for government's intrusion
into daily activities of citizens and others who
are in the United States legally. What most in
Congress, let alone the public, didn't know until
the past few weeks is the extent to which the
administration stretched its new powers through
self-serving and secret administrative rulings,
advisory memos and opinions from the attorney
general's office, and legal interpretations of
statutes from the White House counsel. Not
satisfied with these "justifications", the White
House decided to reorganize - and in the process
expand - domestic intelligence and
counter-intelligence activities wherever possible
by as many agencies as possible within the "spook"
world.
The public face of this expansion
is the Intelligence Reform and Terrorism
Prevention Act of 2004 (PL 108-458). Among other
provisions, the law increases the number of
individuals engaged in collecting and analyzing
information - what is known as human intelligence,
or HUMINT. (One estimate is that 4,000 agents were
added just to the military programs.) This was an
almost inevitable response to the virtually
unanimous conclusion of all post-September 11
inquiries that HUMINT capabilities had severely
atrophied. Structural changes were also made,
chief among which was the creation of a new
"intelligence czar" - the director of national
intelligence. In terms of process, the
bureaucratic "wall" purposefully erected in the
1970s after the last bout of illegal spying to
separate domestic criminal investigations and
foreign intelligence collection was also
eliminated as joint counter-terror analysis
centers staffed by Federal Bureau of Investigation
(FBI), Central Intelligence Agency (CIA) and
military analysts were created.
Given the
revelations about widespread abuse of detainees in
Iraq and Afghanistan, the rolling litany of
justifications for invading and occupying Iraq,
and the practice of "rendition" (transporting a
suspect to a third country where prisoners have
been known to be tortured), the fact that the
White House and its allies maintained such a
supercharged "anti-terror" atmosphere for more
than three years should have been a red flag for
Congress that something was amiss.
Army
spying With barely a ripple of
congressional "oversight", those newly empowered
must have thought almost any practice would be
permitted. After all, the president and most other
officials insisted that in the much-changed
post-September 11 world the old rules and the old
legal signposts were completely outdated and had
to be rewritten.
The problem? The White
House and the Pentagon didn't want to wait for the
rules to be changed. In fact, as chronicled by the
New York Times (December 11), NBC Nightly News
(December 13), and the Los Angeles Times, US
Army counter-intelligence agents undertook a
nationwide program to infiltrate organizations the
military deemed potential "threats" to military
personnel and bases.
Of course, this is
not the first time the military has engaged in
domestic spying. Successive US administrations in
the 1960s and 1970s exhibited profound distrust,
even disdain, for those who challenged government
by exercising the civil and political rights
provided in the constitution. Impassioned Vietnam
War protesters and civil-rights advocates believed
they could force changes in government policy and
practice if they but persisted in mass civil
disobedience. Fearing the same outcomes, officials
secretly tasked intelligence agencies normally
focused on external enemies - the Pentagon and the
CIA - to gather, record and exchange information
with US law-enforcement agencies about "US
persons" (citizens and legal residents)
participating in anti-Washington events anywhere
in the country. By the time the illegal army
snooping ended in 1971, it had records on more
than 100,000 civilians.
Although
Christopher Pyle of the New York Times broke the
story of the secret spying in 1970, official
inquiries did not begin until 1974. The first, the
President's Commission on CIA Activities within
the United States (also known as the Rockefeller
Commission after its chairman, vice president
Nelson Rockefeller), looked at the role of the CIA
in domestic spying and other secret domestic
programs (eg, the MKULTRA Project involving
psychological experiments on humans). Many
observers at the time regarded the 1975 report as
a whitewash of the CIA's directorate of
operations. The next year, senator Frank Church
led a new and much broader enquiry into the
activities of the CIA and the Pentagon and their
interactions, including the sharing of information
with local law-enforcement agents. Reforms were
put in place that barred the CIA and the Pentagon
from spying on and maintaining records on US
persons residing in the United States.
The
army's current activities appear to be less
extensive, but that may be simply because the
media obtained evidence much more quickly. This
came in the form of a 400-page dossier of 1,519
"suspicious" organizations or activities the army
labeled "threats". To date, NBC Nightly News,
which has a copy of the report, has released
only eight pages. However, included in the
gatherings "penetrated" by army
counter-intelligence agents was a November 2004
planning session of locally known,
non-confrontational, part-time counter-recruiting
activists who openly gathered in the Quaker
Meeting House in Lake Worth, Florida.
Reports from the army's field agents are
sent to a central Counter-Intelligence Fusion Unit
(CIFU) established outside Washington, DC, in
2004. Its size and budget are not known.
Information from field agents arrive as TALON
(Threat and Local Observation Notice) reports
usually classified "secret" no matter what
"information" they might have. Generally, what is
"classified" is the fact that the military is
spying on citizens who are doing nothing more than
exercising their rights under the first and fourth
amendments of the constitution. Two days after the
story broke, the Pentagon promised to "review" the
TALON database.
Lest we forget, TALON is
not the first post-September 11 attempt to expand
human-intelligence collection inside the United
States. In 2002, attorney general John Ashcroft's
Justice Department tried to initiate a "Terrorism
Information and Prevention System" (Operation
TIPS). This program would have used civilians such
as electric- and gas-meter readers and postal
employees to report "unusual" activities in a
neighborhood. Attacked for its similarities to
communist "neighborhood block" watch groups such
as Cuba's Committees for the Defense of the
Revolution (CDRs), which the State Department
criticizes in its annual human-rights reports, the
scheme collapsed when the postal service refused
to participate.
Undeterred, the Pentagon
announced in 2002 the launch of its Total
Information Awareness (TIA) data-mining project to
"re-create" the lives of every terrorist to
preempt future attacks. As criticism of this new
assault on privacy and civil liberties mounted,
the Pentagon retitled the project "Terrorism
Information Awareness". Either way, since anyone
theoretically might be a terrorist, TIA
potentially applied to everything done by everyone
alive.
Nor has the administration been at
all reticent about supplementing human agents with
electronic collection programs. Shortly after
September 11, the government began monitoring
Muslim business, family, and even religious sites
for "excessive radiation emissions" in at least
six major US cities. The problem was - and remains
- that the FBI neither obtained court approval nor
had probable cause for invading the privacy of
offices and homes.
Some in Congress are
calling for expanding the use of military assets
in domestic spying. As recorded in the
Congressional Record (May 21, 2002), Congressman
Curt Weldon proposed creating a National
Operations and Analysis Hub (NOAH) within the
army's Intelligence and Security Command. Linking
28 federal agencies, NOAH would be a
national-level intelligence "fusion" center that
would develop and offer alternative courses of
action for policymakers to consider. Left unstated
are what controls would be imposed and who would
decide what options to forward to decision-makers.
NSA eavesdropping As invasive
as these practices have been, the spying program
that has caused such uproar in legal and judicial
circles is the presidentially directed warrantless
interception by the National Security Agency (NSA)
of electronic communications involving "people
with known links to al-Qaeda and related terrorist
organizations". Citing still-secret internal - and
therefore undoubtedly highly biased -
administration legal opinions, Bush declared he
was empowered by the constitution, statute, and
legal precedent to order the surveillance without
seeking warrants from the Foreign Intelligence
Surveillance Court. Although few outside the
administration agree, Bush has remained defiant -
which makes one wonder what super-secret unknown
exists behind the NSA program.
Like the
CIA, the NSA and its predecessor military service
communications intercept organizations that have a
history of violating laws. For example, although
the Communications Act of 1934 prohibits anyone
from intercepting and revealing private radio
transmissions, the Army Security Agency did just
that in the 1960s - and continued to do so even
when it was told by the Federal Communication
Commission that its activity was illegal.
According to Frank Bamberg, who has written about
the NSA from the "insider's" perspective, Cold War
programs such as "Shamrock" and "Minaret" produced
copies of telegrams sent from or to the United
States and tracked "persons of interest".
More recently many governments, especially
in Europe, have become concerned about "Echelon",
a worldwide electronic intercept network that
includes the NSA and its equivalents in the United
Kingdom, Canada, Australia and New Zealand. Using
computers programmed to spot predetermined words,
phrases, names and locations, these agencies are
able to examine mountains of data and find
possible high-value messages. And the fact that
five nations are involved also enables the NSA to
"plausibly deny" it is eavesdropping illegally on
conversations because a request to another country
to conduct the intercept allows the NSA
technically to remain within the law.
While the domestic collection of
information by the US Army had come under close
scrutiny by the Church Committee, its final report
omitted consideration of "the monitoring of
international communications by the National
Security Agency". A Justice Department
investigation of NSA practices, although not
returning indictments, impelled Congress in 1978
to pass the Foreign Intelligence Surveillance Act
(FISA), which specifies when warrantless
intercepts of electronic conversations or data
transfers are permitted. The act created the
secret Foreign Intelligence Surveillance Court,
which approves requests for eavesdropping for
national-security reasons, and a Foreign
Intelligence Appeals Court. The latter has never
heard a case, while the former has approved more
than 18,745 applications. More telling about the
use of the FISA Court by the Bush White House is
the report that, since 2001, the court has felt
obliged to modify 179 of 5,645 warrant
applications and defer or reject six more. By
comparison, only two applications were modified
between 1978 and 2000 and none were turned down.
Under FISA, after a declaration of war by
Congress, the president may initiate warrantless
electronic surveillance for 15 days. In other
cases, warrantless national-security electronic
surveillance can be maintained for 72 hours. Under
all other circumstances or at the end of these
time periods, authorities must have in hand a FISA
court warrant. But since early 2002, these
timelines and requirements have not been followed
by virtue of a presidential directive. Once again,
Bush asserted that a president possesses in
wartime "inherent powers" under the constitution
to circumvent traditional, "slow-moving" legal
processes. He also claims that the Authorization
for the Use of Military Force (AUMF) resolution,
passed by Congress right after the attacks of
September 11, gave him wide latitude for action as
it authorized him "to use all necessary and
appropriate force against those nations,
organizations, or persons" implicated in the
attacks.
Many if not most legal experts
outside the administration reject this
presidential interpretation as stretching
congressional intent. The constitutional "inherent
power" has generally been interpreted as limited
to the president's commander-in-chief function,
which is germane to military forces and
battlefield situations outside the homeland.
Nonetheless, Bush has allowed eavesdropping on
conversations beginning and ending in the United
States as well as electronic intercepts of
communications originating, passing through, or
terminating in the United States, far from any
"battlefield" as that term is normally understood.
Moreover, the FISA statute itself specifies that
the act is "the exclusive means by which
electronic surveillance ... may be conducted" and
makes no exceptions.
When asked why the
administration chose to rely on presidential
dictate rather than seek legislative remedies,
Attorney General Alberto Gonzales, who at the time
was White House counsel, replied, "We were advised
that that [obtaining a legislated change to the
Foreign Intelligence Surveillance Act] would be
difficult, if not impossible."
FISA is not
the only law the Bush administration has flouted.
In the 2003 United Nations debate prior to
Security Council consideration of a resolution
authorizing the use of force against Iraqi
president Saddam Hussein, the US and the UK
intercepted communications from other council
members. UN officials have long assumed that their
offices are bugged and their communications
routinely intercepted by the United States, but in
this instance it was quite evident that the US was
violating treaty provisions (and hence US law)
against spying on UN officials and UN delegations.
Media reports that have not been
challenged by the NSA indicate other
"irregularities" if not full-blown violations of
law. As a high-level State Department official in
the first Bush term, John Bolton, now serving as
US ambassador to the UN, received "raw"
(unanalyzed) intercepts of conversations of US
government officials and private citizens opposed
to going to war with Iraq. To hide the intercepts,
the collection effort was reportedly run as an
exercise. In accordance with the law, NSA
destroyed its records when the "exercise" ended,
but this was after copies had been provided to
Bolton and other key pro-war supporters.
Other reports describe an NSA practice of
attaching persistent "cookies" to inquiries by
those who log on to the agency's unclassified
website. Attaching "cookies" is not a problem as
long as they are temporary. Permanent ones would
allow the NSA to follow any subsequent Web surfing
by a person who had visited NSA on the Web - a
clear case of invading privacy. An agency
spokesperson called the practice a "mistake".
Lying As pervasive as is the US
government's disregard of the constitution, laws
and treaties, and the expressed intent of Congress
with respect to civil rights, the administration
has also engaged in manipulating and even creating
news under cover of "information warfare".
One of the first indications of what was
to come was the uproar over the Pentagon's Office
of Strategic Influence. Created in February 2002
to bolster the US image abroad, the office
suffered a fatal image blow itself when word
leaked that it would provide false news items to
foreign media. Secretary of Defense Donald
Rumsfeld closed the operation quickly, all the
while protesting that there were no plans to
manipulate news stories.
Meanwhile, the
White House was trumpeting the explosion of
independent media outlets in Afghanistan and Iraq.
At the same time, as outlined in an October 30,
2003, Defense Department directive titled
"Information Operations Roadmap", the US Army's
4th Psychological Operations Group located at Fort
Bragg, North Carolina, was busy churning out
positive "news" stories (ie, propaganda) about
coalition activities that were sent to non-US
media worldwide - but without revealing the
source. At the same time, the Pentagon hired US
public relations firms to "help" foreign
governments relay US-friendly messages, help that
not infrequently included paying newspapers US$40
to $2,000 to run the stories or foreign
journalists to write stories from information
given them. Separately, the US Agency for
International Development has been funding the
operation of 30 radio stations in Afghanistan. And
all this was in addition to the officially
acknowledged radio and television stations run by
US and other coalition authorities in Iraq and
Afghanistan.
On the battlefield, deception
and propaganda are tools available to commanders
to confuse the enemy, perhaps induce surrender,
and warn or reassure civilian non-combatants. And
while it is legal to disseminate propaganda
abroad, it is illegal in the US to do so at home.
The Pentagon insists that it has strict guidelines
in play that will prevent any false reports it
sends to foreign media from being subsequently
picked up by US outlets. (Of course, US allies
might not be pleased to learn news has been
manipulated, especially if the "news" is false.)
Such assurances give little comfort,
especially after revelations that Bush
administration officials sent videos to US
television outlets extolling domestic policies
without making clear that the videos' source was
the government. According to the Government
Accountability Office, omitting attribution to the
source changes the message from one of fact to
propaganda, which by law cannot be distributed
inside the United States.
Other instances
of misrepresentations by various administration
representatives are not hard to find. Criticism of
the wars in Afghanistan and Iraq would undercut
troop morale, according to Bush. Yet a 2005
year-end survey by the Military Times found that
"four years of combat have done little to dent the
morale of the professional military". The
president also has repeatedly asserted that
Congress sees the same intelligence he gets. The
bipartisan Congressional Research Service states
that "the president, and a small number of ...
cabinet-level officials ... in contrast to members
of Congress, have access to a far greater overall
volume of intelligence and to more sensitive
intelligence information".
Conclusion Just as the
constitutionality of the 1970s War Powers Act has
never been tested, it seems unlikely that Bush's
expansive claim that the congressional AUMF
resolution empowered him to redefine the
boundaries of executive action vis-a-vis the two
other branches of government will be challenged.
Congress did err in leaving to the
president the right to determine who around the
globe was in any way a participant in September 11
and bring them to justice. However, neither the
AUMF nor other resolutions circumscribe the 1978
FISA statute, which Congress clearly intended to
remain in force during conflicts. Similarly, the
president's declaration in the signing statement,
issued when he signed legislation containing the
anti-torture amendment sponsored by Republican
Senator John McCain, that he would view the
requirements within the context of his powers as
commander in chief tries to end-run the
prohibitions against torture or degrading and
inhumane treatment of detainees regardless of
their "war" status.
To its credit, the US
judiciary is now acting as a brake on
administration actions justified as within the
"inherent powers" of the commander-in-chief
function. One member of the FISA panel resigned
from the secret court to protest administration
actions. Moreover, at least with regard to the
anti-torture legislation and FISA, since the US
Supreme Court ruled in 1952 that presidential
power to act unilaterally is, in the words of
justice Robert Jackson, "at its lowest ebb" in
light of "the expressed or implied will of
Congress" - new revelations that either statute
has been ignored willfully just might drive the
"war powers" issue to the Supreme Court. As
Jackson wrote in the 1952 decision, "There are
indications that the Constitution did not
contemplate that the title Commander in Chief of
the Army and Navy will constitute him also
Commander in Chief of the country, its industries,
and its inhabitants."
In 1975, the
Rockefeller Commission Report stated: "The
individual liberties of American citizens depend
on government observance of the law ... the mere
invocation of the 'national security' does not
grant unlimited power to the government." Just
over 30 years later, in January, responding to
questions at his confirmation hearings for a
position on the US Supreme Court, Judge Samuel
Alito strongly affirmed that no one, president or
Supreme Court justice, is above or outside the
law.
Freedom rests on the principle of the
rule of law and equality before the law. So when
government, fearing the citizenry in the exercise
of their constitutional rights, ignores its duty
to safeguard those rights and even undercuts them,
despotism looms in the future and democracy
becomes an endangered species.
Dan
Smith is a military-affairs analyst for
Foreign Policy In Focus, a retired US Army
colonel, and a senior fellow on military affairs
at the Friends Committee on National
Legislation.
