Spies Among UsPrint
Military snooping on civilians, which escalated in the turbulent '60s, never entirely went away and is back again on a much larger scale
By Clay Risen
December 1, 2008
John O’Brien first became suspicious of his employer, the Army’s 113th Military Intelligence Group, when he saw a dossier labeled “Adlai Stevenson III” on his boss’s desk. It was September 1969, and O’Brien had recently transferred to the 113th’s headquarters in Evanston, Illinois, after three years in West Germany. His new unit mostly ran background checks on military personnel and Pentagon civilians, though it also kept an eye on reports by the FBI and in the media about potential civil disturbances—a major concern, given the calamitous riots that had occurred in hundreds of American cities since 1964.
But Stevenson was hardly a troublemaker. Son of the two-time Democratic presidential candidate Adlai E. Stevenson, he had been a state representative before becoming Illinois treasurer in 1967. So why was the Army maintaining an intelligence file on him? Because, O’Brien was told, Stevenson had expressed support for Jesse Jackson, who was then an activist in Chicago. Jackson had ties to a variety of civil rights and anti-war groups, and these groups were suspected in turn of having ties to violent radicals. That, apparently, was enough to qualify Stevenson as a subject of concern.
O’Brien soon learned that the Army, even while waging war in Southeast Asia, was keeping tabs on tens of thousands of Americans, famous and unknown, most with no relevance to the military and only tangential connections to dissident organizations—all in the name of preparing for possible civil disorder. Over the next year, O’Brien himself went on weekly undercover missions, often posing as a reporter, to gather information at speeches, meetings, and rallies, targeting even the most innocuous of dissenters and making no distinctions between the violent and the nonviolent. “In the discussions I had with my superior officers, they could not differentiate between the Weathermen faction of the SDS and the American Friends Service Committee,” he later told a Senate subcommittee.
Nor was the 113th the only unit on the job. The Army had been called into three cities during the riots that erupted after the assassination of Martin Luther King Jr. in April 1968. Now the Army Intelligence Command, the parent unit of the 113th and six other regional groups, was in a state of heightened paranoia, monitoring anyone even remotely connected to dissent or radicalism—from Benjamin Spock to the American Nazi Party—and feeding thousands of reports a month into a database located in a Washington, D.C., suburb. Started in 1965 with a focus on preparing for civil disturbances, the program had metastasized into a surveillance vacuum cleaner that sucked up data on clergymen, politicians, anti-war activists, and civil rights workers. In turn, the Army’s intelligence bureaucracy shared information with the FBI, the CIA, and local law-enforcement departments.
O’Brien’s missions were top secret, but not for long. In January 1970, Christopher Pyle, a former captain in the Intelligence Command, published an exposé of the military’s domestic spying apparatus in The Washington Monthly. The Army, he wrote, “has created an activity which, by its existence alone, jeopardizes individual rights, democratic political processes, and even the national security it seeks to protect.” The article prompted congressmen in both parties to call for an investigation. The Army first denied the allegations and then furiously spun them. By the time Senator Sam Ervin, a Democrat from North Carolina, and his subcommittee on constitutional rights opened hearings in February 1971, the military was caught in the biggest domestic spying scandal in American history.
The Founding Fathers had recognized the potential danger that a domestically active military posed to civil liberties, and throughout the Constitution and the Bill of Rights they had embedded a doctrine of civilian control as well as extensive limits on the military’s domestic activity. Likewise, the 1878 Posse Comitatus Act, drawing a strict line between defending the nation from external threats and maintaining domestic order, forbade uniformed soldiers from carrying out law-enforcement duties.
In the late 1960s, however, many in the Pentagon saw in the rise of Black Power and anti-war protests a need to blur the line; they suspected that the groups were receiving foreign support and took that as a threat to national security. By quickly focusing a large bureaucracy backed by ample resources on the American public, they took steps along the very path that had so frightened the Framers.
Some of their resulting missteps are comic. One commander, after reviewing a surveillance tape of Coretta Scott King remarking on her husband’s “I have a dream” speech, asked his subordinates to research the details of that dream. More ominously, though, the Army spying scandal shows that the hypothetical line between domestic order and national defense is never as clear as we would like it to be in the real world of overtaxed and undercoordinated law enforcement agencies and a strong defense establishment.
Despite revelations brought out in Ervin’s hearings, over the next years Congress failed to pass a series of bills that would have drastically curtailed the military’s domestic surveillance capacities. Only the 1978 Foreign Intelligence Surveillance Act (FISA) came close, creating a system of oversight for monitoring domestic activity linked to a foreign intelligence operation. But a doctrine preventing domestic intelligence gathering by the military failed to emerge, and in the wake of the terrorist attacks on September 11, 2001, the Pentagon again turned its efforts to monitoring American citizens. Many of the units and resources deployed in the government’s controversial terrorist surveillance work are military in origin, including the National Security Agency, the Defense Counterintelligence and Human Intelligence Center, and the domestic intelligence operations of the U.S. Northern Command, which was established after 9/11 to protect the homeland. (And this is to set aside the many other civil-liberties violations by the Bush administration, such as the 2006 Military Commissions Act, which denies habeas corpus to “unlawful combatants.”) “We are deputizing the military to spy on law-abiding Americans in America,” Senator Ron Wyden of Oregon, a leading civil-liberties advocate, told The Washington Post in 2005. And that was before the revelation that the White House had ordered the routine violation of the already flimsy FISA rules.
Despite hard work by reporters and civil libertarians, there is still much the public doesn’t know about the government’s domestic intelligence apparatus. That is why, particularly after Congress last year gutted FISA’s checks on domestic surveillance, a clear-eyed understanding of the Army’s 1970s spying scandal is important: it reminds us how easily legitimate concerns about domestic unrest can give rise to powerful tools for social control.
The Pentagon formed the Army Intelligence Command (AINTC) on January 1, 1965, but the history of domestic military surveillance in this country goes back at least a century earlier. Secretary of State William Seward deployed Army agents to monitor Confederate sympathizers during the Civil War, and in the 1870s President Rutherford B. Hayes used the Army Signal Corps to spy on organized labor. During World War I the Army’s General Intelligence Division maintained a file of more than 450,000 index cards on dissidents, and the Counter Intelligence Corps kept tabs on millions of workers in defense-related industries during World War II. Army surveillance efforts diminished in the late 1940s, in part because of the FBI’s expanded role in counter-dissent intelligence but also because the military was preparing the country for nuclear attack.
Military involvement in domestic affairs began to increase again in the late 1950s and early 1960s as the Army took a lead role in the enforcement of school desegregation. Particularly after the violent integration of the University of Mississippi in the fall of 1962, Army commanders began calling for better intelligence before embarking on domestic missions. The following May, Maj. Gen. Creighton Abrams, who had been involved in the Army’s planning at the university, proposed to his Pentagon commanders that the Army establish “a major intelligence project . . . to identify personalities, both black and white, develop analyses of the various civil rights situations in which they become involved, and establish a civil rights intelligence center to operate on a continuing basis and [k]eep abreast of the current situation throughout the United States.” A June 1963 memo from Maj. Gen. Harold Johnson, who would be chief of staff at the height of the Army’s domestic surveillance efforts, declared the need to combat domestic “threats” with the same weapons and tactics the Army deployed overseas: “Electronic warfare could and should be used against an agent or agents not necessarily a declared enemy or foreign, but nevertheless operating against the best interests of the United States.” Neither Abrams’s plan nor Johnson’s memo was formally put into effect, but both generals gave voice to what many in the Army were thinking, and both visions were to be largely realized over the coming years.
The AINTC corralled the intelligence groups of the five stateside armies under one command, based at Fort Holabird, Maryland, near Baltimore. Its ostensible purpose was to conduct background checks on soldiers and civilian employees, but it was also charged with keeping the Army abreast of potential civil-disturbance situations. The AINTC was to start gathering intelligence only once it became clear that the Army might be sent into a particular city. Soon, though, AINTC commanders came to see their domestic intelligence mission as a way to widen their bureaucratic turf, and nothing in the Army’s civil-disturbance plan, code-named STEEP HILL, prevented them from collecting intelligence before the plan went into effect. The office of the Army’s general counsel, in a classified analysis, later determined that “STEEP HILL was perhaps most deficient in that it did not limit the degree to which Army Intelligence field elements were to monitor civilian affairs.” Subsequently, Army officials would argue that nearly continuous monitoring seemed only prudent.
Meanwhile, career-oriented AINTC commanders found themselves in the right place at the right time. In the summer of 1965, a five-day riot across 45 square miles of South Central Los Angeles left 34 dead and $50 million in damages. Although federal troops weren’t deployed, the Fourth Infantry Division at Fort Lewis, Washington, was put on alert, and the Pentagon sent supplies and other assistance to the California National Guard. Suddenly the risk of Army deployment to “hot zones,” and not just to tense integration sites, was real—and so was the demand for intelligence.
At first, intelligence was collected randomly. Reports on incidents, personalities, and organizations came in from the FBI, local and state law enforcement agencies, and the media; the information was sorted and filed in Fort Holabird’s expanding records collection. The files, in turn, were condensed and organized into a six-volume “mug book”; one entire volume was dedicated to “Individuals Active in Civil Disturbances.” The AINTC then forwarded the data to the Pentagon’s Counterintelligence Analysis Branch (CIAB), which processed it into usable reports. At first dedicated exclusively to analysis of overseas intelligence, the CIAB created a North America desk in 1965; in 1967 it added a “left-wing” desk, and by 1968 the branch had 15 agents gathering intelligence exclusively on the United States—more than any other region, including Vietnam. The CIAB in turn produced the “Compendium,” a distilled version of the mug books that went out to the Secretary of the Army and down the chain of command to the satellite field offices of the military intelligence groups.
The scope of what the AINTC considered relevant to its civil-disturbance mission grew rapidly. Almost immediately, the NAACP, King’s Southern Christian Leadership Conference, the Quakers, and other peaceful activist groups were labeled organizations of “interest.” Moreover, much of the intelligence received from local police departments and the FBI was taken at face value, despite the fact that much of the information on civil rights groups came from racist police in the South. Quality was never a criterion, and no limit was placed on what constituted relevant information. One report noted, without clarification, that its subject was a “sex pervert”—as if that were germane to a role in fomenting a potential riot. “It is difficult to imagine how records of an individual’s religion, annual income, and marital status would be of use to a task force commander trying to quell a riot or contain a violent demonstration,” noted a Senate investigative report. Even an internal Army review conceded that “the data was not very impressive in terms of completeness or scope.” Rather, Christopher Pyle later told Ervin’s subcommittee, the intelligence “was evaluated primarily on the basis of volume, production, and speed.”
The Senate report characterized the files as “data rich and theory poor.” But that wasn’t entirely correct. There was a theory: employing the counterinsurgency assumptions that guided the escalating war in Southeast Asia, the Army believed the riots were led by a core group of instigators who must have received training in insurgency tactics from overseas. Those same mysterious overseas elements must have been behind the anti-war movement as well, the thinking went, since widespread discontent with American military operations made little sense to commanders whose careers had been tempered during the headily patriotic days of World War II. It was a straightforward, ironclad sequence: dissent, one intelligence collection plan warned, could easily morph into violence, which “could lead in time to a situation of true insurgency.”
The theory was conveniently broad in its implications. It linked the civil rights and anti-war movements and vilified both, offered a simple explanation for the confounding number of riots and anti-war protests, and provided a firm justification for the military’s expanding intelligence operations. No longer was this just a matter of prudence. Enemies of the state, whoever they were, had taken the Cold War into America’s inner cities and college campuses, and the Army’s mission was to root them out. As Maj. Gen. William Yarborough, the voluble AINTC head during 1967 and 1968, told his subordinates after the 1967 Detroit riot, “Start gathering biographical data on every name that comes up in these things [intelligence reports]. Get his picture—his background. When the patterns start to develop, we will find that they were tied in with each other—they were trained in Havana or Peking or some damned place.”
As inner-city riots became an annual summer event and anti-war protests broke out on campus after campus, Army Intelligence began taking a more active approach to information gathering. Plainclothes agents had been sent into the field on occasion—for instance, in August 1966, several had been stationed around Los Angeles to observe the anniversary of the Watts riot—but covert missions had never been a part of policy. That changed with the March on the Pentagon in October 1967.
For months the National Mobilization Committee to End the War in Vietnam had been planning a large demonstration on the National Mall, which would culminate in a march across the Potomac to the Pentagon. In preparation for widespread violence, the Army prepositioned 2,485 troops, mostly from the crack 82nd Airborne Division, outside Washington, with another 15,000 on alert along the East Coast. But the real emphasis was intelligence. The 108th Military Intelligence Group, based in Manhattan, sent young agents disguised as hippies to infiltrate planning circles. Some 45 agents in New York managed to board buses that were full of protesters headed to Washington; along the way the agents regularly snuck off to report back by pay phone. Watch lists were given to the National Security Agency, which monitored phone communications for evidence of foreign involvement. And the Army ordered its communications surveillance unit, the Army Security Agency, to be ready to jam protesters’ radio transmissions—an explicitly illegal step under the ASA’s charter.
A further 125 agents, scattered throughout the crowd on the day of the protest, were issued specially coded draft cards so that, in case of arrest, they could be swiftly picked out of the crowd and released. Despite the precautions, one agent was clubbed by an overzealous military policeman. Another, Sgt. Alan Gibbs, so successfully inserted himself into a group of protesters that he helped fill water guns with “disappearing ink”—which they said would make the Pentagon disappear.
The Washington March on the Pentagon, combined with riots that summer in Newark and Detroit, spurred a round of soul-searching in the Army’s domestic intelligence circles. In all three cities, they had failed to develop intelligence that couldn’t be gleaned from the media; moreover, they had yet to prove their premise that the riots and the anti-war movement were two prongs of the same foreign influence. In response, Army leadership established an investigatory panel to develop intelligence collection reforms. The group’s final report, delivered in December 1967, baldly stated that “radical groups,” such as the Communist Party USA, the Progressive Labor Party, the Revolutionary Action Movement, and the Student Nonviolent Coordinating Committee, “would like nothing more than to gain control of the dissident groups in the urban areas to facilitate an organized nationwide rebellion.” The report concluded, “Continuous counterintelligence investigations are required to obtain factual information on the participation of subversive personalities, groups or organizations and their influence on urban populations to cause civil disturbances.”
Two major policy changes followed. The first was a complete reform of the Army’s civil-disturbance preparations, based on constant surveillance of American inner cities. The most unstable cities were assigned to particular military units; each commander then put together specially tailored planning “packets”: thick, regularly updated notebooks documenting such vulnerable retail establishments as liquor and gun stores, the location of critical infrastructure, the demographic and economic layout of the city, and background information on local militants, community activists, and business leaders. The commanders then made regular forays, in mufti, into their designated cities to meet with their precinct liaisons and get tours of their territory. The Army, in other words, was preparing to occupy its own cities.
The second change, a corollary to the first, was to open the gates on domestic intelligence collection. No longer would the AINTC rely on local, state, and FBI reporting. It would now routinely send its own agents into the field, often undercover, to gather information on events, organizations, and private and public citizens who might have a connection to dissent in any form. This jaundiced view of the public was further compounded by the practical implication of the report’s recommendations, which was to give enormous discretion to local commanders. “The personal politics on the part of some of the supervisors dictated in many instances the selection of individuals to be surveilled,” John O’Brien later testified.
Like most of the country, the Army expected 1968 to be an annus horribilis: urban disorder was getting worse each year, and anti-war dissent, combined with campus activism, was reaching a boil. “Racially oriented civil disturbances can be expected to continue with increasing intensity in urban areas in the United States during 1968,” read an Army intelligence report issued a few days before King’s assassination. “Although hard evidence of any actual or planned communist conspiracy to dominate and control racial and anti-war protest movements is not now available, the threat of such conspiracy is sufficiently strong as to cause immediate concern and necessitate constant observation.”
King’s death on April 4 led to riots in 120 cities, three of which—those in Baltimore, Chicago, and Washington—required regular Army troops to restore order. Responding to the violence, the Army created the Directorate for Civil Disturbance Planning and Operations, the nexus for reacting to future riots and the primary consumer and defender of AINTC data. Manned 24 hours a day, the directorate was ready to send as many as 10,000 troops to each of 25 cities, a level of preparedness that necessitated a constant flow of intelligence. The AINTC was ready for the job; a new, post-April intelligence plan had it eagerly extending its fingers into all aspects of American public life. As Assistant Secretary of Defense Robert Froehlke later characterized the AINTC’s new direction, “So comprehensive were the requirements levied in the plan . . . that any category of information related even remotely to people or organizations active in a community in which the potential for riot or disorder was present, would fall under their scope.”
In the summer of 1968, agents infiltrated mule trains headed to Washington for the Poor People’s Campaign, a last-ditch civil rights protest that culminated in an extensive tent city near the National Mall. Agents spent some 26,000 man-hours spying on the protesters once they encamped, including photographing the site from atop the Washington Monument. Army agents were also out late that August in Chicago during the Democratic National Convention; one group, disguised as “Midwest Video Associates,” taped hundreds of hours of protest speeches in Grant Park as well as interviews with the likes of Abbie Hoffman and David Dellinger. “Over time,” Christopher Pyle later wrote (in a Ph.D. dissertation on his former employer’s surveillance effort), “a new bureaucracy developed within the Intelligence Command—a semi-autonomous hierarchy of specialists devoted to the full-time surveillance of dissent.”
That bureaucracy came into its own in 1969. By then, urban unrest was subsiding, only to be replaced in the paranoid eyes of Army intelligence by the equally ominous threat of anti-war and campus radicalism. Of similar concern was growing opposition to the war from within the military itself, known by the acronym RITA (Resistance In The Army), which Army commanders feared could undermine morale and security. In response, undercover agents were sent into classrooms, local anti-war organizations, and even, in one case, a fraternity at a North Dakota college (this after reports that the frat had plans to “tear up” their town; agents on the scene soon learned that the “plans” amounted to a massive keg party).
At the height of operations, the CIAB received an average of 1,200 spot reports a month, a third of which came from direct Army observation. This was combined with a foot-and-a-half-high stack of reports received daily from the FBI (the AINTC tended to look down on the Bureau’s investigative skills and resources in order to justify its own prodigious efforts) to produce a constant stream of data on tens of thousands of Americans, information that was made accessible to other military agencies as well as law enforcement departments, the Passport Office, the CIA, and government employers. The AINTC began to computerize its files; by the end of the year, it had a computer archive of some 117,500 documents. Millions more sat waiting to be uploaded.
But even as the AINTC commanders zealously built up their bureaucracy, higher-ups were growing nervous. In late 1968, Yarborough was replaced as the head of AINTC by Maj. Gen. Joseph McChristian, who took a more skeptical attitude toward his unit’s civil-disturbance intelligence mission. In early 1969, just as he was leaving office, Undersecretary of the Army David McGiffert placed new restrictions on Army covert operations. McGiffert and other Lyndon Johnson–era appointees felt that the intelligence efforts were a potential embarrassment for the Army and a dangerous diversion from the AINTC’s primary focus on security clearances. But their successors in the Nixon administration disagreed, and by the summer of 1969 the program was safe again.
All of this was, of course, clearly illegal. Setting aside instances of abuse, the AINTC system violated the Posse Comitatus Act’s ban on the use of the military for law enforcement. It also violated the established tradition of keeping the military out of domestic affairs, a prohibition intended not only to protect civil liberties but also to prevent the possibility of the military becoming entwined with domestic politics. In some countries, such as Turkey, the military has the virtual right to launch a coup if it senses a threat to its own interpretation of domestic order. The Founders wisely recognized the risk of such a system, and they established a political order with strong checks against it. Now, in secret, the Army was eroding those checks.
Then, in January 1970, came the bombshell. In his Washington Monthly piece, Pyle disclosed the extent of the AINTC effort in thorough detail. The system, he warned, was setting the stage for a major crackdown on dissent, perhaps even the emergence of an authoritarian state: “The United States may be able to survive the centralization of intelligence files without becoming totalitarian, but it most certainly cannot become totalitarian without centralized intelligence files.” Pyle’s article came just two months after Seymour Hersh, writing in the St. Louis Post-Dispatch, exposed the massacre of Vietnamese villagers at My Lai, and it helped legitimize criticism of the Pentagon in the eyes of mainstream politicians and the general public. It sparked the interest of the staunch civil libertarian Senator Ervin, who in mid-1970 began investigating the charges. Ervin brought on Pyle as a paid consultant, and in February 1971 the senator opened hearings.
Entitled “Federal Data Banks, Computers and the Bill of Rights,” the hearings were extensive, frustrating, and anticlimactic. “The room was packed to the rafters with reporters,” recalls Pyle, now a professor at Mt. Holyoke College. “It was the first time someone had challenged an intelligence agency.” But the Pentagon did a skillful end run around the Ervin committee: the Army set up a review panel to investigate Pyle’s charges, even as it publicly denied the program’s existence. In February it ordered all databases at Fort Holabird destroyed, and in June it issued a new, seemingly more restrictive intelligence collection plan.
The new rules on domestic spying sounded tough, but sufficient loopholes existed to leave significant discretion to mid-level Army commanders, while the need for judicial oversight was ignored. In response, Ervin originated a measure to ban domestic surveillance except in extreme cases, and then only with heavy external oversight. The bill never got out of committee. In 1972 Ervin filed an amicus brief in an ACLU suit against the Department of Defense; the case, Laird v. Tatum, was thrown out on a 5-4 decision by the Supreme Court. Ervin tried the legislative route again in 1974, but by then the country and Congress had moved on to other civil-liberties concerns—namely Watergate (for which Ervin would again chair hearings) and the emerging evidence of widespread FBI and CIA surveillance and harassment of domestic dissent.
As the opening investigation into a long series of disclosures regarding civil-liberties threats during the 1970s, the Ervin hearings set the tone for the Church Committee hearings of 1975 and for the Foreign Intelligence Surveillance Act establishing the FISA courts three years later. But the Church hearings, for all their light, didn’t put out much heat. Other than FISA, no significant legislation resulted. And by the end of the decade, the national paranoia engendered by the Army spying scandal, Watergate, and other instances of government overreach had passed (although not before driving a spate of Hollywood films, from The Conversation to All the President’s Men). “I think it’s fair to say nothing was learned from the Army spying investigation,” Pyle says today.
Since 9/11, America has seen a revival of military domestic surveillance activities that closely parallel the efforts of the late 1960s, but on a much larger and more invasive scale. Most prominent has been the NSA’s warrantless wiretapping program, first revealed in late 2005 by The New York Times. Though clearly a violation of FISA, the program was strengthened by two subsequent pieces of legislation, the Protect America Act of 2007, which allowed warrantless surveillance of communications beginning or ending outside the United States, and the FISA Amendments Act of 2008, which extended the length of time the government could conduct a wiretap without a warrant, from 48 hours to a week.
But there are other, less well known military spying measures. Northern Command, responsible for the Army’s homeland security operations, has 290 intelligence analysts poring over data related to potential domestic security threats. More ominous is the Defense Department’s Counterintelligence Field Activity (CIFA) unit, a top-secret group ostensibly meant to coordinate foreign intelligence efforts, which, in August 2008, was rolled into the Defense Counterintelligence and Human Intelligence Center. Part of CIFA’s job was to maintain a database of “non-validated” intelligence—that is, rumors—concerning possible threats to domestic military facilities. In much the same way that the vague mandates of the AINTC opened the door to investigative overreach, the CIFA database soon included files on Quaker meetings, anti-war protests, and other expressions of peaceful dissent. And like the AINTC files, the intelligence collected by CIFA includes large amounts of hearsay and gossip—“garbage,” says Pyle, who has examined some of the CIFA database—that the Pentagon treats as established fact. This helps explain why, as of late 2008, there are approximately a million names in the Terrorist Screening Database.
It is particularly worrisome that most of today’s domestic surveillance activities fall under the military’s control. On the one hand, the military has vast resources at its disposal, agencies and assets often poorly understood by the public and even by Congress. On the other hand, these are blunt instruments designed for use against foreign enemies and wielded by people poorly trained in the intricacies of civil liberties. Even more so than 40 years ago, the military is staffed by fewer Chris Pyles and by more William Yarboroughs, the true believers for whom dissent is a poorly understood, vaguely treasonous activity. And, at least until Barack Obama’s inauguration on January 20, they are commanded by an executive branch that rejects reasonable limits on its power to command military and intelligence units and sees no obligation to reveal or explain its actions.
Ultimately, the Army spying scandal demonstrates how surveillance agencies, like other bureaucracies, will expand if left unchecked. Lacking substantive tasks, they will engage in busywork, the better to justify demands for more power and more resources. Why should we assume that today’s bureaucracies are different from their predecessors? As the nsa and other surveillance bodies expand their power to peer into American life for evidence of foreign contamination, is there any reason to doubt that they will refuse to come up empty-handed?
The standard answer is that self-restraint on the part of the agencies involved is sufficient to check abuse. But in the 1960s—and, as we are beginning to learn, today—self-restraint, even when properly exercised, couldn’t prevent mistakes, couldn’t correct for incompetence or bias, couldn’t check the well-intentioned but wrong-headed conviction that anything is acceptable in the name of broadly construed “national security.” And this is to set aside the possibility of abuse: evidence has already emerged, most recently in James Bamford’s The Shadow Factory, that intelligence officers regularly listened in on intimate phone conversations between Americans—conversations that were unrelated to terror investigations—passing the most titillating snippets around the office.
Writer and former constitutional law litigator Glenn Greenwald has called the latest FISA reforms “illegality and corruption at the highest level of government, on the grandest scale, and of the most transparent strain.” Illegal, perhaps, but not corrupt—and that is what is so frightening. The Bush administration officials behind the warrantless wiretaps likely believed they were acting in the nation’s best interests, as did the vast majority of the men involved in the AINTC scandal. But given inadequate parameters and oversight, both groups aggressively pursued their mission. They interpreted rapid social changes in simplistic, paranoiac terms. Focused on their objectives, they built extensive surveillance systems that few had anticipated and even fewer could control.
Although the response to the tumult of the 1960s was particular to the times, the lessons are universal. Constant vigilance is a necessity not only against the enemy but also against those who see the enemy around every corner. “Experience should teach us to be most on our guard to protect liberty when the government’s purposes are beneficent,” wrote Louis Brandeis in his 1928 dissent in Olmstead v. United States, regarding federal wiretapping and the Fourth Amendment. “The greatest dangers to liberty lurk in the insidious encroachment by men of zeal, well-meaning but without understanding.”
Clay Risen is a senior staff editor at The New York Times and the author, most recently, of The Bill of the Century: The Epic Battle for the Civil Rights Act.
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