Domestic Spying

26 Jan, ’07

If you give up a little bit of your freedom here, and a little bit there, you’ll soon find that you don’t have any freedom.

The domestic spying issue is in the news again, this time not only involving the NSA and FBI, but now we’re informed that both the CIA and the Pentagon are also in on the act. In 1947, then President Harry Truman established the CIA to oversee and coordinate all US government intelligence functions. The agency was only to operate abroad, and was to have no police or law enforcement functions. Domestic intelligence gathering (commonly called Counterintelligence) was a function reserved to the FBI. The various military intelligence organizations were responsible to their parent service, and to the CIA. In 1952 the NSA was established as the nations cryptologic organization, and is responsible for gathering intelligence data from intercepted foreign electronic communications. The NSA is specificially restricted (by US Signals Intelligence Directive 18) from intercepting or collecting information on US citizens, entities, corporations, or organizations. (Backed by a Supreme Court ruling that forbids US intelligence agencies from spying on US citizens.)

In 2002, President Bush signed a secret order authorizing the National Security Agency to eavesdrop on U.S. citizens and foreign nationals in the United States, despite the legal prohibitions against such domestic spying. The aim of this spying program was to rapidly monitor the phone calls and other communications of people in the United States believed to have contact with suspected associates of al Qaeda and other terrorist groups overseas. The authorities were apparently worried that vital information could be lost in the time it took to secure a warrant from the special surveillance court. Thus the NSA has monitored the e-mail, telephone calls and other communications of hundreds, and perhaps thousands, of American citizens.

The law governing clandestine surveillance in the United States, the Foreign Intelligence Surveillance Act, prohibits conducting electronic surveillance not authorized by statute. (That act was enacted by Congress in response to the domestic spying and intelligence gathering conducted by the CIA, FBI, NSA, and DoD during the Vietnam era.) According to the law, a government agent must show he was "engaged in the course of his official duties and the electronic surveillance was authorized by and conducted pursuant to a search warrant or court order of a court of competent jurisdiction". The current NSA activities are justified by a classified Justice Department legal opinion arguing that congressional approval of the war on al-Qaeda gave broad authority to the president. Congressional sources familiar with aspects of the program made it clear there were serious questions about the legality of the NSA actions. The sources also said the work of the NSA is so secret that it is difficult to determine whether or not it is acting within the law. The NSA's operation is outside the court's jurisdiction, and according to a New York Times report, the Justice Department may have sought to limit how much the court was made aware of NSA activities.

For more than four years, NSA has tasked military intelligence agencies to assist its broad-based surveillance effort directed at people inside the country suspected of having terrorist connections, even before President Bush signed the 2002 order that authorized the NSA program, according to an informed U.S. official. The effort, which began within days after the attacks, has consisted partly of monitoring domestic telephone conversations, e-mail and even fax communications of individuals identified by the NSA as having some connection to al Qaeda events or figures, or to potential terrorism-related activities in the United States, the official said.

It has also involved teams of Defense Intelligence Agency personnel stationed in major U.S. cities conducting the type of surveillance typically performed by the FBI: monitoring the movements and activities -- through high-tech equipment -- of individuals and vehicles, the official said. The involvement of military personnel in such tasks was provoked by grave anxiety among senior intelligence officials after the 2001 suicide attacks that additional terrorist cells may be present within U.S. borders and could only be discovered with the military's help.

Just a day before the nation celebrated the life of the once-federally-spied-upon Martin Luther King Jr., the New York Times reported that both the Pentagon and the CIA have been issuing subpoenas to domestic financial institutions to investigate possible terrorism. Although the military and the CIA are barred by law from spying on Americans within the United States, the Pentagon has stepped up its surveillance of American citizens after 9/11 as part of what it calls "force protection", the protection of military installations on American soil.

Now it’s revealed that both agencies have been using "National Security Letters" -- which are self-issued subpoenas for documents. These subpoenas are widely used by the FBI since they do not require a judge's approval. In 2005, the first year the Justice Department was required to report how often they used this power, the DOJ said it issued 9,254 such letters to get information on 3,501 U.S. citizens and green card holders. Unlike the FBI's version, the military and CIA’s letters are supposedly voluntary. While nobody is legally required to act on these letters, who’s going to refuse the FBI, DoD, or the CIA, when they invoke the magic words, “National Security”? Pentagon spokesmen said the letters "provide tremendous leads to follow and often with which to corroborate other evidence in the context of counterespionage and counterterrorism".

I’m told that if a person doesn’t have anything to hide, they shouldn’t be concerned about any “invasion of privacy”. If that’s so, why is it that we don’t run around in public stark naked?