Domestic spying is a cultural construct that is used,
especially among civil libertarians and the media, to refer to internally directed
surveillance programs initiated by a variety of formal agencies of social control and
intelligence. In the current U.S. context, domestic spying primarily refers to the debate
that erupted following several revelations about surveillance programs set up, without
court approval or congressional oversight, to aid in the fight against terrorism. Although
the debate on domestic spying is recent, internal surveillance programs have considerable
historical antecedents.
Domestic Surveillance Programs
U.S. domestic surveillance programs date back to
the 1930s, when President Franklin D. Roosevelt secretly ordered the Bureau of
Investigation (renamed Federal Bureau of Investigation in 1935) to investigate the
American Nazi movement. On September 6, 1939, three days after the British and French
declaration of war on Nazi Germany, Roosevelt formally placed the FBI in charge of all
surveillance activities relating to espionage, sabotage, subversive activities, and
violations of U.S. neutrality laws. During World War II, the FBI was responsible for all
domestic intelligence work and foreign intelligence in South America, while the Office of
Strategic Services was the leading intelligence agency for all other regions.
Domestic surveillance in the United States
remained primarily in the hands of the FBI after the war. Most distinct amongst these
efforts was the Bureaus COINTELPRO or counterintelligence programs from the 1950s
onwards that acted against Communist groups and a wide range of other organizations,
including leftist groups, civil rights organizations, and the Ku Klux Klan. In the early
1970s, COINTELPRO was formally abolished, leading to passage of the Federal Intelligence
Surveillance Act (FISA) in 1978, which permits electronic surveillance within the United
States on foreign agents and international terrorists on the condition that a judge in a
specialized FISA court issues a warrant.
Presently, several partly interacting and
overlapping surveillance agencies handle domestic intelligence duties, including the FBI,
the National Security Agency (NSA), the Central Intelligence Agency (CIA), the Office of
the Director of National Intelligence, and various federal and local law enforcement
agencies.
In the current context of counter-terrorism,
domestic spying debates erupted following several revelations reported in the popular
media about domestic surveillance programs, conducted by the National Security Agency,
that were secretly authorized by the President following the terrorist attacks of
September 11. In addition to these NSA surveillance programs, debate also raged over the
expanded opportunities afforded to the U.S. intelligence and law enforcement community
under provisions of the PATRIOT Act, a federal bill passed in 2001, which broadened police
powers against terrorism. In November 2005, the Washington Post disclosed a rapidly
growing practice of domestic spying under the provisions of by the PATRIOT Act by the FBI
seeking information on the basis of so-called national security letters. Such
letters enable the FBI to secretly review the private telephone and financial records of
suspected foreign agents. However, the letters program also included U.S. citizens and
residents who were not suspected of any wrongdoing.
Most important in the recent debate on domestic
spying, the New York Times on December 16, 2005 reported on a secret domestic surveillance
program conducted by the NSA. This so-called Terrorist Surveillance Program, initiated in
early 2002 on the secret authorization of President Bush, allows the NSA to intercept,
without a court-approved warrant, communications that involve one overseas and one
domestic party or at least one party suspected of holding ties to al-Qaeda or an
affiliated terrorist group.
The response to this revelation was intense. In
January 2006, the American Civil Liberties Union (ACLU) and the Center for Constitutional
Rights filed lawsuits, arguing that the NSA eavesdropping program violated Americans
civil rights. That same month, the Electronic Frontier Foundation filed a class-action
lawsuit against the telephone company AT&T, accusing it of providing the NSA with
unfettered access to customer phone calls and internet communications in violation of the
Fourth Amendment, as well as federal wiretap and communication laws. On a political level,
two Senate Judiciary hearings held in February 2006 discussed the status of the NSA
program. Another revelation about contemporary domestic surveillance programs came when
the newspaper USA Today reported in May 2006 that the NSA had kept logs of billions of
domestic calls, a program that began, without court approval, soon after 9/11.
The Domestic Spying Debate
The debate on domestic spying contains important
considerations of both a legal and normative nature. From the legal viewpoint, the Bush
administration insisted that it had the power to authorize the wiretapping program under
both the U.S. Constitution and the congressional resolution of the Authorization of
Military Force that authorized use of wartime powers against those responsible for the
9/11 terrorist attacks. The constitutional powers of the U.S. President as
commander-in-chief would allow President Bush to pursue, without explicit congressional
permission, any enemy operating inside the U.S. Additionally, the wartime powers of the
President would allow him to bypass the courts to spy on Americans without warrants, a
Presidential power that not even Congress can restrict, as the President not only has the
authority but also the duty to protect the nation. It is further argued that the
Congressional resolution on the Authorization of Military Force that passed shortly after
9/11 also granted the President the right to use all necessary and appropriate
force, thereby effectively suspending the FISA requirements which are considered
outdated and inappropriate in view of the contemporary war on terror. When President Bush
in a televised address admitted that he had authorized domestic, warrant-less monitoring
of calls involving an overseas party, he defended his actions as crucial to national
security.
Opponents argue that the Presidents
expansion of executive power violates constitutionally framed mandates for judicial and
congressional oversight. Congress and the courts have a constitutional right and
obligation to provide a check against extra-legal activities in the executive branch. The
uncovered domestic spying programs, they claim, violate Fourth-Amendment protections
against illegal search and seizure. The Supreme Court has likewise held that most
surveillance by government agencies must be based on a judicial finding of probable cause
of criminal wrongdoing.
Other arguments against domestic spying invoke
concerns over two specific federal acts. First, critics say the program violates
provisions of the 1978 FISA Act which requires warrants. The PATRIOT Act only allows for
the collection of data for up to 72 hours before a warrant must be requested from the
courts, and the Authorization of Military Force resolution does not give the President the
power to bypass this law. Second, because only eight members of the House and Senate were
briefed about relevant developments, the NSA program violates the National Security Act of
1947 which requires that intelligence oversight committees of Congress be kept informed of
U.S. intelligence activities. Absent such congressional approval, prosecutions of captured
terrorists may be jeopardized by defendants claims that the evidence against them
was collected illegally. In August 2006, a U.S. District Court ruled the NSA surveillance
program to be unconstitutional. At this writing, an appeal is still pending.
Underlying the legal debate on domestic spying
are conflicting positions about its normativity. On the one hand, proponents suggest that
special surveillance programs are necessary because of the severity and nature of the
current terrorist threat and, moreover, that they have effectively prevented other
terrorist attacks on U.S. soil. Under present-day circumstances, they claim, most
Americans would agree that some of their rights have to be sacrificed in order to preserve
national security. On the other hand, opponents argue measures implemented against
terrorist groups should not curb civil rights, which are an essential part of a free and
open society. Making exceptions on constitutional restrictions on presidential power in
the area of counter-terrorism might lead to wrongly justify other special provisions, such
as on the use of torture and the indefinite detention of citizens. Modernizing the rules
of counter-terrorism surveillance in the United States could allow for the use of new
means but only within proper limits that prevent innocent citizens from being
investigated.
Given the continued anxieties over the terrorist
threat and the likewise persistent concerns over civil rights, the debate on domestic
spying is likely to stay in the public consciousness for some time in the foreseeable
future.
See also
Civil Rights; PATRIOT Act; Police; Terrorism;
Terrorism, Counter-Terrorism Approaches; Surveillance
Further Readings
- Keller, William W. 1989. The Liberals and J.
Edgar Hoover: Rise and Fall of a Domestic Intelligence State. Princeton, NJ: Princeton
University Press.
- Morgan, Richard E. 1980. Domestic Intelligence:
Monitoring Dissent in America. Austin, TX: University of Texas Press.
- Posner, Richard A. 2005. Remaking Domestic
Intelligence. Stanford, CA: Hoover Institution Press.
- Risen, James. 2006. State of War: The Secret
History of the CIA and the Bush Administration. New York: The Free Press.
- Wong, Katherine. 2006. The NSA Terrorist
Surveillance Program. Harvard Journal on Legislation 43: 517-534.
- http://www.cas.sc.edu/socy/faculty/deflem/zdomspy.html