We do not believe the Executive has, or should have, the inherent
constitutional authority to violate the law or infringe the legal rights
of Americans, whether it be a warrantless break-in into the home or
office of an American, warrantless electronic surveillance, or a
President’s authorization to the FBI to create a massive domestic
security program based upon secret oral directives.
-Final Report of the Church Committee, 1976
The revelation that President George W. Bush authorized the unlawful warrantless surveillance of Americans has resurrected the discussion of the proper balance to be struck between liberty and security.
This discourse is not new in the United States. Benjamin Franklin warned, “They who would give up an essential liberty for temporary security, deserve neither liberty or security.” Franklin was prescient. Throughout our history, we have grappled with this apparent tension. Unfortunately, all too often, we have lost our liberties – without becoming more secure. It has been primarily the executive branch that has overreached across the lines that separate the three branches of our government. In this post-9/11 world, under the guise of his “Global War on Terror,” George W. Bush has arrogated to himself a level of presidential authority that rivals any such usurpation in the past.
Surveillance in this country has been aimed at slaves, immigrants, political radicals, suspected lawbreakers, the poor, workers, and anyone with a credit card or a computer. It has frequently been used by the government to suppress criticism of its policies.
In 1798, the Federalist-led Congress, capitalizing on the fear of war, passed the four Alien and Sedition Acts to stifle dissent against the Federalist Party’s political agenda. The Naturalization Act extended the time necessary for immigrants to reside in the U.S. because most immigrants sympathized with the Republicans. The Alien Enemies Act provided for the arrest, detention and deportation of male citizens of any foreign nation at war with the United States. Many of the 25,000 French citizens living in the U.S. could have been expelled had France and America gone to war, but this law was never used. The Alien Friends Act authorized the deportation of any non-citizen suspected of endangering the security of the U.S. government; the law lasted only two years and no one was deported under it.
The Sedition Act provided criminal penalties for any person who wrote, printed, published, or spoke anything “false, scandalous and malicious” with the intent to hold the government in “contempt or disrepute.” The Federalists argued it was necessary to suppress criticism of the government in time of war. The Republicans objected that the Sedition Act violated the First Amendment, which had become part of the Constitution seven years earlier. Employed exclusively against Republicans, the Sedition Act was used to target congressmen and newspaper editors who criticized President John Adams.
Subsequent examples of repressive legislation passed and actions taken as a result of fear-mongering during periods of xenophobia are the Espionage Act of 1917, the Sedition Act of 1918, the Red Scare following World War I, the forcible internment of people of Japanese descent during World War II, and the Alien Registration Act of 1940 (the Smith Act).
During the McCarthy period of the 1950s, in an effort to eradicate the perceived threat of communism, the government engaged in widespread illegal surveillance to threaten and silence anyone who had an unorthodox political viewpoint. Many people were jailed, blacklisted and lost their jobs. Thousands of lives were shattered as the FBI engaged in “red-baiting.”
COINTELPRO (counter-intelligence program) was designed to “disrupt, misdirect and otherwise neutralize” political and activist groups. In the 1960s, the FBI targeted Dr. Martin Luther King Jr. in a program called “Racial Matters.” King’s campaign to register African-American voters in the South raised the hackles of FBI director J. Edgar Hoover, who disingenuously claimed King’s organization was being infiltrated by communists. In fact, the FBI was really concerned that King’s civil rights and anti-Vietnam War campaigns “represented a clear threat to the established order of the U.S.” It went after King with a vengeance, wiretapping his telephones and securing personal information which it used to try to discredit him and drive him to divorce and suicide.
In response to the excesses of COINTELPRO, a congressional committee chaired by Senator Frank Church conducted an investigation of activities of the domestic intelligence agencies. The Church Committee concluded, “[I]ntelligence activities have undermined the constitutional rights of citizens and … they have done so primarily because checks and balances designed by the framers of the Constitution to assure accountability have not been applied.” The committee added, “In an era where the technological capability of Government relentlessly increases, we must be wary about the drift toward ‘big brother government’ … Here, there is no sovereign who stands above the law. Each of us, from presidents to the most disadvantaged citizen, must obey the law.” The committee stressed that the “advocacy of political ideas is not to be the basis for governmental surveillance.”
Congress established guidelines to regulate intelligence-gathering by the FBI. Reacting against President Richard Nixon’s assertion of unchecked presidential power, Congress enacted the Foreign Intelligence Surveillance Act (FISA) in 1978, to regulate electronic surveillance while protecting national security.
FISA established a secret court to consider applications by the government for wiretap orders. It specifically created only one exception for the President to conduct electronic surveillance without a warrant. For that exception to apply, the Attorney General must certify under oath that the communications to be monitored will be exclusively between foreign powers, and that there is no substantial likelihood that a United States person will be overheard.
In 2002, in direct violation of FISA, Bush signed an executive order that authorizes the National Security Agency to wiretap people within the United States with no judicial review. It is estimated that the NSA has eavesdropped on thousands of private conversations in the last four years. Additionally, the NSA has combed through large volumes of telephone and Internet communications flowing into and out of the United States. It has collected vast personal information that has nothing to do with national security.
Electronic surveillance was first used during the Holocaust when IBM worked for the Nazi government organizing and analyzing its census data. Death camp barcodes – linked to computerized records – were tattooed onto prisoners’ forearms.
The advent of digital technology raised surveillance to a new level. Social Security numbers, credit cards, gym memberships, library cards, health insurance records, bar codes, GSM chips in cell phones, toll booths, hidden cameras, workplace identification badges, and the Internet all provide the government with effective tools to keep track of our finances, our politics, our personal habits, and our whereabouts through data mining. The Privacy Foundation determined in a 2001 survey that one-third of all American workers who use the Internet or email on the job are under “constant surveillance” by employers.
One month after the terrorist attacks of September 11, 2001, United States Attorney General John Ashcroft rushed the U.S.A. Patriot Act through a timid Congress. The Patriot Act lowered the standards for government surveillance of telephone and computer communications, and empowered the government to monitor books people read. It created a crime of domestic terrorism aimed at political activists who protest government policies, and set forth an ideological test for entry into the United States.
In 1944, the Supreme Court upheld the legality of the Japanese internment in Korematsu v. United States. Justice Robert Jackson warned in his dissent that the ruling would “lie about like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need.”
That day came with the recent decision of a New York federal judge, dismissing a case that challenged the detention of hundreds of Arab and Muslim foreign nationals shortly after 9/11. None has been convicted of any crime involving terrorism. U.S. District Judge John Gleason ruled in Turkmen v. Ashcroft that the round-up and indefinite detention of foreign nationals on immigration charges based only on their race, religion or national origin does not violate equal protection or due process. This is not surprising in light of the anti-immigrant hysteria sweeping our country today.
In his 1928 dissent in Olmstead v. United States, Justice Louis Brandeis cautioned, “The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well meaning but without understanding.” Seventy-three years later, former White House spokesman Ari Fleischer, speaking for a zealous President, warned Americans “they need to watch what they say, watch what they do.”
Milton Mayer described the escalation of surveillance that accompanied the rise of German fascism: “What happened was the gradual habituation of the people, little by little, to be governed by surprise, to receiving decisions deliberated in secret; to believe that the situation was so complicated that the government had to act on information which the people could not understand, or so dangerous that, even if people could understand it, it could not be released because of national security.” We should heed his words.