The Secret History of Secret Surveillance

Tim Lee runs down some little-known facts about the original growth of the secret, illegal surveillance state as the FBI, with administration approval, decided to ignore a series of court rulings in the 1930s, 40s, and 50s that attempted to restrain its ability to wiretap in a variety of ways. These practices, of course, were per se abusive in many ways, and led to further abuses, and then under Richard Nixon led to the revelation of massive abuses and the creations of the safeguards we're now busy unwinding.

I suppose at this point I've become fatalistic about FISA and am mostly just waiting for this whole cycle to repeat itself.

UPDATE: See also this important followup about crass politicization of surveillance and this crucial point: "Now, I have no evidence that today’s NSA or FBI is doing anything like this. But of course, someone in the 1960s wouldn’t have realized what the FBI was doing then, either."

Comments

Wow, that website is totally unreadable. Black text on a vertically striped black and dark gray background?!?

I usually copy longish things to Word before reading them anyway. But I can't even tell if that is worthy reading before deciding to copy it.

Posted by Cryptic Ned | July 8, 2008 1:41 PM

Matt, I have to disagree with a bit of your cynicism on FISA. I don't think Obama is just refusing to reduce his own (anticipated) powers.

I think, rightly or wrongly, Obama sees that there will currently be a veto of any truly constitutional regulation of wiretapping, and thus the whole thing is moot. So in his pragmatic mind, it is better to take the issue off the table until the White House is not occupied by a fundamentalist.

I think he really does believe he will be that next occupant, and will rectify this and a host of other assualts on the constitution when he's there.

Much like your argument on gay marriage, we have to elect people who are sympathetic to what we want (if getting exactly what we want isn't possible). Granted, the political toxicity of FISA vs. Gay marriage is up for debate.

The point is, there's no reason to just "wait for the whole cycle to repeat itself."

But interestingly, you project a more sophisticated cynicism on this subject that the public at large has also adopted. I think one reason the wiretapping scandal has not created more of a public outcry is that people would be surprised if the government WEREN'T doing this.

Most of us aren't doing anything wrong, and have an implicit trust that our government isn't evil. So if it collects data but isn't allowed to use it for just anyhing, no problem.

No one thinks to ask what would happen if our surfing habits, bank transactions, movie tastes... could be used for a broader range than terrorist activity. It's being collected by corporations and government agencies in ways we never anticipated.

If, while looking at bank transactions for terrorist activity, they find evidence of tax evasion, can this spark an IRA audit of John Q. Non-Terrorist? Is that legal?

I'm surprised there is not more anxiety about this sort of thing, to be honest.

Posted by Reversed | July 8, 2008 1:53 PM

The problem is that Congress cannot defy the Constitution and create un-Consitutional law related to directly restricting, expanding The Executive's Constitutional Powers. The President would fail his oath to defend the Constitution if he allowed Congress to place itself above the Constitution.
The President is directly charged with a duty that is his alone - to be Commander in Chief and in that capacity, unrestricted by Congressional Advise and Consent provisions applied to other acts, and conduct unrestrained by lawyers in robes save for Constitutional review...may devise such measures and tactics needed to kill enemy without trial or Congressional management of CiC Executive actions, find them and their agents w/o warrent.

Posted by chris ford | July 8, 2008 2:11 PM

to view over 300 pages of crimes committed by FBI agents see
www.campusactivism.org
click on home
click on forum
scroll down to FBI WATCH

Posted by msfreeh | July 8, 2008 2:17 PM

I think, rightly or wrongly, Obama sees that there will currently be a veto of any truly constitutional regulation of wiretapping, and thus the whole thing is moot. So in his pragmatic mind, it is better to take the issue off the table until the White House is not occupied by a fundamentalist.

I agree with this guy.

And what about Morton Halperin's Op-Ed in Today's NYTimes:

"I was No. 8 on Richard Nixon’s “enemies list” — a strange assemblage of 20 people who had incurred the White House’s wrath because they had disagreed with administration policy. As the presidential counsel John Dean explained it in 1971, the list was part of a plan to “use the available federal machinery to screw our political enemies.” My guess is that I earned this dubious distinction because of my opposition to the Vietnam War, though no one ever said for sure.

Because I rejected the Nixon administration’s use of national security as a pretext for broad assertions of unchecked executive power, I became engaged with the Foreign Intelligence Surveillance Act when it was proposed in the early 1970s. And because I reject the Bush administration’s equally extreme assertions of executive power at the expense of civil liberties, I have been engaged in trying to improve the current legislation.

The compromise legislation that will come to the Senate floor this week is not the legislation that I would have liked to see, but I disagree with those who suggest that senators are giving in by backing this bill.

The fact is that the alternative to Congress passing this bill is Congress enacting far worse legislation that the Senate had already passed by a filibuster-proof margin, and which a majority of House members were on record as supporting.

What’s more, this bill provides important safeguards for civil liberties. It includes effective mechanisms for oversight of the new surveillance authorities by the FISA court, the House and Senate Intelligence Committees and now the Judiciary Committees. It mandates reports by inspectors general of the Justice Department, the Pentagon and intelligence agencies that will provide the committees with the information they need to conduct this oversight. (The reports by the inspectors general will also provide accountability for the potential unlawful misconduct that occurred during the Bush administration.) Finally, the bill for the first time requires FISA court warrants for surveillance of Americans overseas.

As someone whose civil liberties were violated by the government, I understand this legislation isn’t perfect. But I also believe — and here I am speaking only for myself — that it represents our best chance to protect both our national security and our civil liberties. For that reason, it has my personal support."

http://www.nytimes.com/2008/07/08/opinion/08halperin.html?ref=opinion

--------------
The other things is that some of these netroots bloggers want revenge or "justice" for the Bush years. They're spiteful.

Obama just wants to pragmatically move on and deal with the major problems of the day. I see him being less vindictive.

Posted by Peter K. | July 8, 2008 2:38 PM

Reversed:

Congress could just refuse to pass any new bill, and let the old FISA regulations hold. Bush can't veto a law. Obama is not going along with something that is moot anyway. He is participating in an expansion of executive power at a time when he stands on the cusp of being the one who wields said power. The charitable explanation is that the principle isn't important enough to him to risk losing an election over. In that, he is no better nor worse than the average politician. I'm just wondering what principle is important enough for the candidate for change.

We'll eat and we'll like it because John McCain is undoubtedly going to be much worse. But damn.

Posted by Phil | July 8, 2008 2:46 PM

I don't think Prof. Bainbridge really see the real Bush and Dick Cheney when he said: Nixon engaged in what we corporate law types call self-dealing, since Brainbridge can't see the "self-dealing" way Bush ran his DoJ and all the fall-out uncovered with that scandal.

Bush and Cheney have the kind of control people get only if they threaten people. It was defiantly very syndicated, organized type of criminal management – I mean, lets remember how Dick Cheney wanted every single member of senate to undergo a lie detector test when something got leak to the press (I forget what it was about, something I think Cheney himself leaked) a couple months after 9/11 and even had our cowardly Sen. John Kerry lined up saying, okay, yes – it’s mandatory.

This administration is a very threat oriented adminitration from their threats to Iran, to Valerie Plame's hushband, to various state attorney generals - so I've no doubt they were wiretapping whomever they wanted for the necessity of their type of control. Bush and Cheney were far more self-dealing that Nixon EVER possibly could have dreamed of being.

Posted by Me_again | July 8, 2008 2:46 PM

I don't think Prof. Bainbridge really see the real Bush and Dick Cheney when he said: Nixon engaged in what we corporate law types call self-dealing, since Brainbridge can't see the "self-dealing" way Bush ran his DoJ and all the fall-out uncovered with that scandal.

Bush and Cheney have the kind of control people get only if they threaten people. It was defiantly very syndicated, organized type of criminal management – I mean, lets remember how Dick Cheney wanted every single member of senate to undergo a lie detector test when something got leak to the press (I forget what it was about, something I think Cheney himself leaked) a couple months after 9/11 and even had our cowardly Sen. John Kerry lined up saying, okay, yes – it’s mandatory.

This administration is a very threat oriented adminitration from their threats to Iran, to Valerie Plame's hushband, to various state attorney generals - so I've no doubt they were wiretapping whomever they wanted for the necessity of their type of control. Bush and Cheney were far more self-dealing that Nixon EVER possibly could have dreamed of being.

Posted by Me_again | July 8, 2008 2:49 PM

Opps sorry for the double post.

Posted by Me_again | July 8, 2008 2:52 PM

to view over 300 pages of crimes committed by FBI agents see
www.campusactivism.org
click on home
click on forum
scroll down to FBI WATCH

Posted by msfreeh | July 8, 2008 2:53 PM

Well, actually, there were a number of people in the 60s who knew exactly what Hoover was up to- the Congressmen, Presidents, and Vice Presidents that Hoover was blackmailing.

Creating an era of rightwing hysteria in which 50,000 Americans died while murdering 2,000,000 Vietnamese, of course, is not a crime in the sense that shooting someone for their wallet is a crime.

We call one of these events a crime, the other, we call a "mistake".

Posted by serial catowner | July 8, 2008 2:59 PM

Obama is not going along with something that is moot anyway. He is participating in an expansion of executive power at a time when he stands on the cusp of being the one who wields said power

It's really not about power of the wiretap as much, I think about showing AT&T and Verizon that Dems can get-a-long with Big Corporate powers too.

Obama is giving AT&T and Verizon a gift here, a get out of jail free gift - because as Glenn says it carries a 5 year jail penalty.

So I think that Kevin Drum is right that we are not leaving this war in Iraq. Obama really is flip-flopping on his pre-war timeline statements of Iraq.

The one thing that got Bill Clinton so damn mad at Obama was over the fact that Bill is quite the hands on guy, and he really wanted to get into Iraq and renegotiate these ultra-greedy, no-bid contracts that Bush and Cheney are forcing on Iraq.

Todays comment by Prime Minister Maliki that he wants the US to withdrawal comes RIGHT after we see that Bush was involved in some no-bid contact proceedings, than, it was reported that Iraq countered with a 25% plus labor profit deal/inclusion, whatever (I think Bush rejected it out of hand) so now we are at "well get out then".

It's Bush's threat negotiation, take or leave em but WE ain't leaving.

Anyway, nobody should be under the illusion that Obama isn't flip-flop on his withdrawal plans in Iraq, because if any Western Oil contracts get signed - than we ain't leaving Iraq BECAUSE we'll need to stay and protect our "economic interest". That is why Obama needs to be held to account - because he is LYING, because this FISA reverse is a corporate deal card - Obama wants to play corporate poker, basically just like Bill Clinton did it (except of course, Obama is so green at this that I think he will get his *ss handed to him to via voters of the Dem Party wanting him to keep his damn promises, which he has no intention of keeping).

Posted by Me_again | July 8, 2008 3:28 PM

some guy named "Phil":

Congress could just refuse to pass any new bill, and let the old FISA regulations hold. Bush can't veto a law.

Yes he can. He can argue it's unconstitutional. Actually he has done precisely that. Have you been paying attention?

Posted by Peter K. | July 8, 2008 3:47 PM

Future, super-effective lie detector test --

"Madame candidate, are you currently being blackmailed?"

Posted by sandy beach | July 8, 2008 5:10 PM

> Yes he can. He can argue it's unconstitutional.
> Actually he has done precisely that. Have you been
> paying attention?

And the reason Cheney will obey the new FISA is...? Oh yeah, he won't. Particularly after W guts it with a "signing statement".

Cranky

Posted by Cranky Observer | July 8, 2008 9:31 PM

Or, for those who think the new FISA compromise is not problem, you could read this analysis:

The new FISA compromise: it's worse than you think
http://arstechnica.com/articles/culture/fisa-compromise.ars

Specifically, the new legislation dramatically expands the government's ability to wiretap without meaningful judicial oversight, by redefining "oversight" so that the feds can drag their feet on getting authorization almost indefinitely. It also gives the feds unprecedented new latitude in selecting eavesdropping targets, latitude that could be used to collect information on non-terrorist-related activities like P2P copyright infringement and online gambling. In short, the FISA Amendments Act of 2008 opens up loopholes so large that the feds could drive a truck loaded down with purloined civil liberties through it. So the telecom immunity stuff is just the smoke; let's take a look at the fire.

Read the whole thing.

Tell me again how the Democrats have your back.

Posted by Richard Steven Hack | July 8, 2008 9:41 PM

Cranky:

"And the reason Cheney will obey the new FISA is...? Oh yeah, he won't. Particularly after W guts it with a "signing statement"

Yeah, I'm sure the signing statement was part of the deal the Congressional Democrats (not Obama by the way) and Bush came to an agreement on. Boy you guys are dumb fucks.

You just enjoy crying "Sell out!" and being all self-righteous. At least get the facts straight.

Posted by Peter K. | July 9, 2008 11:01 AM