The Fourth Amendment of the U.S. Constitution, implemented only two years after that document became law of the land, clearly states:
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
This seems to mean little to intelligence agencies under recent administrations, particularly since revelations of the CIA’s ability to spy on our every move – and the NSA’s ongoing wholesale surveillance of virtually all of our online and telephone conversations, absence of legal justification or judicial warrants notwithstanding. However, it’s nothing new. In fact, U.S. government spying on Americans has been going on for almost a century – invariably, in the name of “national security.”
Shortly after the U.S. entered the First World War on the side of England and France in 1917, the FBI and the War Department embarked on a massive program of monitoring the activities and communications of German-Americans, fearing subversion. Ironically, a significant number of prominent German-Americans – including Frank Luke, Edward Rickenbacker, Chester Nimitz and Dwight Eisenhower – were serving in the U.S. military at the time. This did not stop government surveillance, however. The surveillance eventually expanded to include socialists, trade unionists, pacifists, recent immigrants and anyone else suspected of “disloyalty.”
There were two major problems: first of all, Americans of German ancestry made up nearly 10% of the population in those days. Secondly, very few Americans (about 9%) had telephones. Surveillance in those days was incredibly labor-intensive, requiring thousands of postal workers to physically examine millions of letters and an army of “deputized” vigilantes to carry out “shoe-leather” spying on citizens. All of this was finally phased out during the 1920s – ironically, by GOP lawmakers who (back then, at least) believed in Americans’ right to privacy.
By World War II, telephones had become much more common. This opened the door to a new form of surveillance technology: wire-tapping. The Treasury Department had started engaging in warrantless wiretapping against bootleggers during Prohibition. In Olmstead v. U.S. (1928),Supreme Court ruled that evidence obtained from such activities was admissible in a court of law. By 1940, telephone ownership had more than doubled, providing powerful new tools to root out suspected subversion. That year, President Franklin Roosevelt turned over all domestic surveillance and counterintelligence to the FBI – then under the directorship of J. Edgar Hoover.
It still required a massive number of personnel, however. In 1924, there were 650 agents working at the FBI; by 1943, that number had gone up to over 13,000. So had FBI overreach; in addition to exposing possible espionage by Nazi agents, Hoover began compiling information on the personal lives of prominent Americans – something that alarmed Roosevelt’s successor. Shortly after taking office, President Harry Truman wrote in his diary, “We want no Gestapo or Secret Police…[the] FBI is tending in that direction. They are dabbling in sex-life scandals and plain blackmail.” Nonetheless, Truman established the National Security Agency in 1952 – ostensibly, to “defeat terrorists and their organizations at home and abroad, consistent with U.S. laws and the protection of privacy and civil liberties.”
Despite Truman’s concerns, the gathering of personal information on prominent figures continued. Over the next two decades, J. Edgar Hoover assembled extensive files on presidential candidate Adlai Stevenson, President John F. Kennedy, civil rights leader Martin Luther King Jr. and even Elvis Presley and John Lennon. By the time of his death in 1972, Hoover had assembled dossiers on thousands of prominent people which were used for blackmail purposes. During the 1960s, the FBI’s infamous Counterintelligence Program (COINTELPRO) was busy threatening and harassing those deemed “enemies of the State.”
When U.S. involvement in Vietnam came to an end in 1975, Democratic Senator Frank Church of Idaho, himself the target of illegal surveillance by the NSA because of this opposition to the Vietnam War, led an investigation into FBI activities under Hoover. According to Professor Loch Johnson of the University of Georgia, who was Senator Church’s aide at the time, “The intent of COINTELPRO was to destroy lives and ruin reputations.” The Senate Committee under Church concluded that “Too many people have been spied upon by too many government agencies, and too much information has been collected.”
The last two decades of the 20th Century were relatively idle ones for the intelligence community. In 1978, President Jimmy Carter signed the Foreign Intelligence Surveillance Act (FISA), which authorized the federal Chief Justice to appoint seven district judges whose job were to review warrants in connection with national security investigations and suspected foreign spies. Eight years later, Congress passed an amendment to the 1968 Omnibus Crime Control and Safe Streets Act. That amendment, known as the Electronic Communications Privacy Act (ECPA), updated and expanded the law to include wireless and “data” communications – paving the way for today’s internet and smart phone surveillance.
As was the case was during WWI and II, it was a perceived national emergency that led to further expansion of the Security State. The PATRIOT Act was passed only six weeks after the events of September 11th, 2001, with virtually no lawmaker actually having studied or even read it. It amended both FISA and ECPA, giving the NSA and other intelligence agencies unprecedented power. At the same time, the law reduced checks and balances on that power by the judiciary and citizen interest groups. Less than two years later, the Bush II Administration established yet another intelligence agency, the Department of Homeland Security.
In 2005, a story in the New York Times reported that Bush had covertly authorized the NSA to monitor the communications of anyone in the U.S. – without warrants. The justification was to allow the agency to locate and track any messages that might be sent to Al-Qaeda. To many legal experts, this authorization pushed the boundaries of established law – and may even have been unconstitutional. Despite those concerns, the power of the Security State has continued to expand under Bush II and Obama. The PATRIOT Act was reauthorized by George W. Bush in 2006 and by Barack Obama in 2010 and 2011.
In June 2015, Obama signed the USA Freedom Act, which increased oversight of some of the law’s most controversial provisions, such as “sneak-and-peek” searches, and required the NSA to go through three high-level Department of Justice officials before it was allowed to collect metadata. While this was intended to protect Americans’ privacy, a great deal of personal information can be gleaned from metadata. According to former NSA contractor and whistleblower Edward Snowden, metadata is also gathered from credit card companies, phone records, social media activity, cellphone apps and GPS location. In these efforts, the NSA has had the willing cooperation of Corporate America.
It is a frightening scenario we have been facing with the latest expansion of the Security State, now well into its fifteenth year. If there is any silver lining to this situation, it is that the intelligence community may be fracturing. Under the glare of daylight, it is becoming apparent that intelligence agencies have overreached themselves by engaging in a conflict with the Executive Office, possibly out of sheer vindictiveness for Trump’s long criticism of those agencies. At the same time, this conflict is creating a civil war among factions of the intelligence community.
What will happen is anyone’s guess – but it won’t be good for the Security State.