Looking ahead to the next round of FISA debates, Democrats and civil liberties advocates need to rethink their public relations strategy. In fact, this recommendation applies beyond FISA to the larger civil liberties debate. It’s not enough to say that "Administration Policy X" threatens civil rights, the public needs to understand in a very concrete way why those rights matter. My non-empirically informed sense is that much of the public just doesn’t feel in their gut that these protections benefit them.
The reason, though, that these rights do matter -- the reason we care about them -- is quite simple. The rights protect people from abuse of power. Accordingly, the FISA amendment is a bad idea because the executive branch will inevitably abuse these new sweepingly-broad surveillance powers. It’s a lesson as old as written history -- unchecked authority is eventually used for improper reasons. Indeed, it’s the theoretical rationale of our entire constitutional structure.
To be sure, not every abuse of authority is as extreme as, say, actions in Nazi Germany. And people throw around unhelpful terms sometimes. But the unlikely probability of the most extreme abuses shouldn’t distract from the very real -- and inevitable -- abuse that will come if this law stays on the books. To understand what I mean, just look at the origins of FISA.
People should understand that FISA didn’t arise out of abstract policy debates. Congress enacted FISA in response to decades of well-documented, egregious abuses of secret, unchecked surveillance authority (generally in the name of fighting the enemy, who was then Communism). This long sordid historical record can and should inform the modern debate. We don’t have to rely solely on predictions or abstract balancing tests. We’ve already seen what happens when secret executive agencies exercise unchecked surveillance powers. More to the point, unless someone knows how to change the nature of man, we can’t (and shouldn’t) rely on an administration's goodness or trustworthiness to exercise broad power properly. (On that note, few presidents have made Edmund Burke look better than George W. Bush).
In that spirit of illustrating “why it matters,” below is a list of some of the abuses that Congress documented in the mid-1970s -- the same abuses that led to FISA. These abuses came to light during a Watergate-era Senate committee investigation regarding intelligence operations. Named after its Chairman, the “Church Committee” brought these abuses of power to light.
I’m getting this information from Peter Swire’s 2004 George Washington Law Review article (pdf), “The System of Foreign Intelligence Surveillance Law.” (I learned about it via Orin Kerr’s Computer Crime casebook). For the most part, I cut and paste large pieces of Swire’s article. (These quotes may differ slightly from the SSRN pdf above because I’m quoting from Lexis, which has the final edited version). On to the article.
To begin with the big picture, the Church Committee reached the following conclusion after reviewing this sorry history (and this is a quote from the Committee Report):
The tendency of intelligence activities to expand beyond their initial scope is a theme which runs through every aspect of our investigative findings. Intelligence collection programs naturally generate ever-increasing demands for new data. And once intelligence has been collected, there are strong pressures to use it against the target.Swire goes on to explain that surveillance information was used as a weapon against political opponents:
The Church Committee documented that: “Each administration from Franklin D. Roosevelt's to Richard Nixon's permitted, and sometimes encouraged, government agencies to handle essentially political intelligence.” Wiretaps and other surveillance methods were used on members of Congress, Supreme Court Justices, and numerous mainstream and nonmainstream political figures. The level of political surveillance and intervention grew over time. By 1972, tax investigations at the IRS were targeted at protesters against the Vietnam War, and "the political left and a large part of the Democratic party [were] under surveillance."
Perhaps the most disgusting use of this power related to the FBI’s treatment of Martin Luther King. Swire writes:
The FBI's COINTELPRO - counterintelligence program - "was designed to 'disrupt' groups and 'neutralize' individuals deemed to be threats to national security." Targets for infiltration included the Ku Klux Klan and the Black Panthers. A special target was Martin Luther King, Jr., from late 1963 until his death in 1968. The Church Committee report explained:In the words of the man in charge of the FBI's "war" against Dr. King, "No holds were barred... . The program to destroy Dr. King as the leader of the civil rights movement included efforts to discredit him with executive branch officials, Congressional leaders, foreign heads of state, American ambassadors, churches, universities, and the press."
In one especially ugly episode, Dr. King was preparing to go to Sweden to receive the Nobel Peace Prize when the FBI sent him an anonymous letter threatening to release an embarrassing tape recording unless he committed suicide.
On the chilling of First Amendment rights, Swire writes:
The FBI's COINTELPRO program targeted "speakers, teachers, writers, and publications themselves." One internal FBI memorandum "called for 'more interviews' with New Left subjects 'to enhance the paranoia endemic in these circles' and 'get the point across there is an FBI agent behind every mailbox.’”
. . .
The hearings in the 1970s produced documented cases of harm to individuals from intelligence actions. For instance, an anonymous letter to an activist's husband accused his wife of infidelity and contributed strongly to the breakup of the marriage. Also, "a draft counsellor deliberately, and falsely, accused of being an FBI informant was 'ostracized' by his friends and associates." In addition to "numerous examples of the impact of intelligence operations," the Church Committee concluded that "the most basic harm was to the values of privacy and freedom which our Constitution seeks to protect and which intelligence activity infringed on a broad scale."
Swire provides the following quote from the Church Committee relating to how these agencies distorted intelligence assessments:
The FBI significantly impaired the democratic decisionmaking process by its distorted intelligence reporting on communist infiltration of and influence on domestic political activity. In private remarks to Presidents and in public statements, the Bureau seriously exaggerated the extent of communist influence in both the civil rights and anti-Vietnam war movements.
And finally, if you think these were isolated incidents, Swire provides some numbers:
The number of Americans and domestic groups caught in the domestic intelligence net is further illustrated by the following statistics:
- Nearly a quarter of a million first class letters were opened and photographed in the United States by the CIA between 1953-1973, producing a CIA computerized index of nearly one and one-half million names.
- At least 130,000 first class letters were opened and photographed by the FBI between 1940-1966 in eight U.S. cities.
- Some 300,000 individuals were indexed in a CIA computer system and separate files were created on approximately 7,200 Americans and over 100 domestic groups during the course of CIA's Operation CHAOS (1967-1973).
- Millions of private telegrams sent from, to, or through the United States were obtained by the National Security Agency from 1947 to 1975 under a secret arrangement with three United States telegraph companies.
- An estimated 100,000 Americans were the subjects of United States Army intelligence files created between the mid 1960s and 1971.
- Intelligence files on more than 11,000 individuals and groups were created by the Internal Revenue Service between 1969 and 1973 and tax investigations were started on the basis of political rather than tax criteria.
- At least 26,000 individuals were at one point catalogued on an FBI list of persons to be rounded up in the event of a "national emergency."
Of course, the point is not that these precise actions will be repeated. The point is that these actions are the predictable result of unchecked power mixed with political motives. If we return unchecked power to executive agences, we’ll be having similar hearings years down the road.
Civil rights protections aren't perfect. But they are pretty good at deterring the most egregious abuses of power. If the FBI had to submit this stuff to a judge, it just wouldn't have happened.
The bottom line is this -- If men were angels, we wouldn’t need FISA. Because they’re not, we do.