Current news stories about the National Security Agency
reminded me of a book I read in the early 1980s: James Bamford’s first book on
the NSA, The Puzzle Palace: America’s
Most Secret Agency (Houghton Mifflin, 1982). At that time, the NSA was not
well-known, and, for me, the book revealed capabilities of the U.S. Government
and a history about their use of which I had been unaware. My reaction at the
time was that the NSA could become a very powerful tool for nefarious purposes
if unethical, power-hungry people were to become in charge of the Executive
Branch.
Recently, I read an interesting book, Subversives: The FBI’s War on Student Radicals, and Reagan’s Rise toPower (Farrar, Straus and Giroux, 2012), which focuses on the FBI’s
relationship with Ronald Reagan while he was in the movie industry as an actor
and union leader and then as governor of California unhappy with and fighting
developments at the University of California at Berkeley. Amazingly, it took
the author, Seth Rosenfeld, a former San Francisco newspaper reporter, decades,
beginning in the early 1980’s with multiple lawsuits using the Freedom of
Information Act, to pry from the FBI the documents on which the book is based,
even though J. Edgar Hoover has been long gone. The book’s title, of course, is
ambiguous. Who were the real subversives?
When it comes to the current NSA revelations, defenders and
apologists for what the NSA does and the legal framework it operates under can
point to Hoover and say what matters are the people, not the technology. After
all, Hoover was able to trample on civil liberties and retain power by
gathering compromising information on key political players without today’s
super computers and near limitless digital storage capacity. In a sense, they
have a point; there is no evidence of which I am aware that the NSA has been
used to attack domestic political opponents.
It is, though, a limited point. The defenders and apologists
miss some reasons for the current concerns, including the innate conservatism
of bureaucracies and the temptations of the surveillance apparatus which these
bureaucracies will mightily defend. Does anyone doubt that, upon a new Administration entering office, the intelligence community, including the NSA, would be endeavoring to
convince their new political masters of the vital role that they play and that
their way of doing things, at least for the most part, is essential? They
probably make an effective case.
What then are the concerns?
First, it is not difficult to imagine an Administration,
faced with some difficult problem, bending the law, maybe just a little, in
order to achieve something they believe to be crucial. The problem is that once
one goes down that path, it is perhaps easier to justify the next venture going
into an area colored by a deeper shade of grey. And, since it is all done in
secrecy, there is no need to worry about the media or public comment (as long
as leaks do not occur).
Second, the notion of a FISA court approving programs in
secret, creating a classified body of law, and doing this without the
traditional adversarial procedures that are a key element of our judicial
tradition is both laughable and disturbing. Even granting the need to preserve
operational secrecy, the development of secret judge-made law is contrary to
what most of us thought the American political system stood for.
Third, American history is replete with examples of civil
liberties being eroded, if not just completely obliterated, during times of
fear. Examples include the Palmer Raids (1919-1920) during the Red Scare of the
early 20th century, the internment of Japanese-Americans on the west
coast during World War II, and the excesses of the McCarthy period. Past
excesses have eventually been corrected after doing substantial damage to
people’s lives, but they have gone quite far before being pulled back. Now we
have the rise of the surveillance state, currently justified by the specter of
terrorism since 2001.
Fourth, the collection of information for one purpose easily
leads to other uses. Someone will think that information collected for a
particular purpose, e.g., protecting
against terrorism threats, should be used for some other purpose. Pick your
favorite cause: combatting drug trafficking, fighting corporate crime,
gathering information on “subversives,” etc.
Finally, it is worrying, not reassuring, that some other
governments, such as those of the UK and France, have active surveillance
programs. While one might argue, as some have, that French protestations about
the NSA are hypocritical, that observation is not dispositive of the concerns.
While intelligence agencies of allies may not always
cooperate, since national interests diverge, it seems likely that they also
share surveillance information with one another. In some cases, the particular
shared information may not be legal according to domestic law for the agency
receiving it to collect itself. However, it may not be illegal for the agency
to receive it from another government and to use it and store it. In fact, Mr.
Bamford in his 1982 book writes about the 1978 FISA law in this regard that the
NSA had “skillfully excluded from the coverage of the FISA statute as well as
the surveillance court all interceptions received from the British GCHQ or any
other non-NSA source. Thus it is possible for GCHQ to monitor the necessary
domestic or foreign circuits of interest and pass them on to NSA through the
UKUSA Agreement. Once they were received, NSA could process the communications
through its own computers and analysts, targeting and watch-listing Americans
with impunity, since the action would not be covered under the FIS statute or
any other law” (pp. 372-373). (I have not researched any changes to the law
since this was written. It may not even be possible to ascertain what the law
on this is now, given the secrecy surrounding judicial interpretations.)
At the end of his book, Subversives,
Seth Rosenfeld writes:
“On the morning of May 2, 1972, J. Edgar Hoover was found
dead on the floor of his bedroom. Helen Gandy, his longtime secretary, quickly
executed one of his final orders: to destroy his personal office files.
“Thirty-five file cabinet drawers full of records were
removed from his office and shredded. Gandy would later testify that none of
them involved bureau business, that they were all private. But some documents
survived, having been transferred to other files. They concerned illegal black
bag jobs and other highly sensitive matters…”
Of course, the collection of massive computer records cannot
be managed nor destroyed by one secretary, nor is it reliant on one official
answerable only to himself. Recent polling results suggest that public
attitudes concerning the perceived tradeoff between civil liberties and
security may be changing. There is both domestic and international pressure for
governments to let their publics know more about what they are doing.
Preserving civil liberties requires constant vigilance; unchecked, there are
great temptations for governments to erode these liberties, even if this does
not begin with malicious intent. 
