A Libertarian Vision for Intelligence and Surveillance

Between the end of the Civil War and the outbreak of the Spanish-​American War, Army intelligence largely withered aside from mapmaking and maintaining cavalry scouts. The Navy fared slightly better, establishing what would become the Office of Naval Intelligence in 1882 and slowly building a cadre of U.S. Navy officers periodically posted abroad to monitor foreign naval, military, and political developments. ³ America’s emergence on the global stage in the late 1890s presaged the expansion of America’s intelligence apparatus.

It was not until the early 20th century that the United States developed the human, technological, and legal tools to give it some measure of advance warning about possible foreign dangers. But as Americans would learn the hard way, those capabilities were a double-​edged sword: they could be used abroad or at home.

From the end of the Civil War until 1908, the U.S. Secret Service was the lone civilian investigative and intelligence component of the federal government. During the Spanish-​American War, Secret Service agents not only spied on Spanish government officials in North America but also busted up an alleged Spanish spy ring operating on American soil. ⁴ But the Secret Service also turned its gaze on Americans, especially in the wake of President William McKinley’s assassination in September 1901.

McKinley was killed by Leon Czolgosz, a mentally unstable self-​proclaimed anarchist. After McKinley’s death, the Secret Service was at the forefront of a national crackdown on known or suspected anarchists, with the names, addresses, and associates of those accused of anarchist beliefs maintained in ledgers at the Treasury Department, the parent entity of the Secret Service. ⁵

President Theodore Roosevelt made overly aggressive use of the Secret Service for a range of investigations, including against political opponents in his own party, usually under the guise of anti-​corruption investigations. The agents were typically detailed to other federal departments or agencies who requested them. The backlash came in the spring of 1908, when Congress banned the Secret Service from paying the salaries of Secret Service agents detailed to other agencies; the move effectively limited the Secret Service to protecting the president and chasing counterfeiters. ⁶

Roosevelt was undeterred. He ordered Attorney General Charles Bonaparte to create a cadre of federal investigators within the Justice Department using generally appropriated funds. Launched on July 26, 1908, the new unit was known as the Bureau of Investigation (BoI). By November 1908, the BoI was spying on American journalists; by the spring of 1909, it was spying on American socialists. ⁷

Once America entered World War I, the BoI, the Secret Service, the Army’s Military Intelligence Division, and the Office of Naval Intelligence engaged in domestic spying against a huge range of individuals and groups. As historian Roy Talbert Jr. noted:

The enemies were varied: Socialists, pacifists, supporters of pacifists, Germans, German-​Americans, Americans suspected of being pro-​German, Americans suspected of being neutral, the [Industrial Workers of the World], black activists, and labor agitators active in too many sensitive industries. ⁸

Armed with new, draconian laws such as the Espionage Act, ⁹ the Trading with the Enemy Act, ¹⁰ and the Food Control Act, ¹¹ federal agents investigated Americans with little or no probable cause, disregarding the Fourth Amendment. Newspapers were either censored by the edition, or in the case of the socialist Milwaukee Leader, banned from the mails entirely. ¹² Hundreds were convicted under the Espionage Act, often on the basis of spurious gossip or outright falsehoods gathered by civilian and military intelligence and law enforcement officials.

After the war, Congress repealed some of the laws used for political persecution—the Sedition Act and the Food Control Act—but the Espionage Act and the Trading with the Enemy Act were left in place. In doing so, Congress effectively codified tools the BoI, the Secret Service, and military intelligence agents could use against alleged domestic enemies in peacetime or in war.

Indeed, during the interwar period, the BoI—renamed the Federal Bureau of Investigation (FBI) in 1935—as well as its military counterparts, conducted domestic surveillance against various individual Americans and groups—African Americans, organized labor, and, as war came to Europe and the Pacific from the mid-​1930s on, German Americans and Japanese Americans. ¹³ Also during this period, the “Congressional witch hunt” style of investigation came into vogue, starting with the Fish Committee in 1930.

Named after Representative Hamilton Fish III (R-NY), the committee investigated the professional, and even to some degree the personal, lives of those it alleged had Soviet or other communist connections. In its final report in early 1931, the Fish Committee branded the American Civil Liberties Union (ACLU) as being “closely affiliated with the communist movement in the United States” and stated that “fully 90 per cent of its efforts are on behalf of communists .…” ¹⁴ The advocacy organization represented a range of Americans. And although the ACLU certainly had defended a large number of alleged or actual communists in federal courts, the committee produced no evidence that it was controlled or funded by the Soviets.

The Fish Committee’s charges against the ACLU were wildly misleading at best, and outright lies at worst. But the greatest damage to the rights of Americans was caused by the precedent of the Fish Committee itself. A congressional committee had been authorized and used to attack Americans, individually or based on group affiliation, for their political beliefs.

Hitler’s rise to power in Germany in the early 1930s subsequently triggered the creation of yet another “investigative” committee—the McCormack-​Dickstein Committee, which operated between 1934 and 1935. ¹⁵ That committee was followed in 1938 by the Special Committee on Un-​American Activities, better known as the Dies Committee for its chairman, Representative Martin Dies (D-TX). ¹⁶

Both the McCormack-​Dickstein and Dies Committees employed investigators to look into the activities of individual Americans and groups—and the McCormack-​Dickstein Committee went so far as to place informants inside alleged or actual pro-​Nazi groups, essentially usurping traditional federal law enforcement functions. Commenting on the legacy of the Dies Committee, author August Raymond Ogden rather understatedly observed, “It stands in the history of the House of Representatives as an example of what an investigating committee should not be.” ¹⁷

Instead of learning the correct lessons from the Dies Committee experience, Congress doubled down on the committee’s tactics by permanently reauthorizing the House Un-​American Activities Committee (HUAC) in 1945, which would for the next 30 years cooperate closely with the FBI in investigating Americans with alleged “subversive” or communist ties. As the official House of Representative website’s brief history of HUAC notes, “At the height of the Cold War rivalry between the United States and the Soviet Union, HUAC’s influence soared and contributed to a climate of domestic fear stoked by its sensational and often unsubstantiated investigations.” ¹⁸

As the size of the federal law enforcement and intelligence apparatus grew, federal courts issued a series of decisions that chipped away at the core protections embodied in the Bill of Rights.

The 1914 decision Weeks v. United States made it illegal for investigators to seize from a person’s home and use in court, without a warrant, things like telegrams or cables. But the case did not address whether federal authorities could simply go to Western Union and demand—without a warrant—copies of the telegrams or cables of an American. ¹⁹ In fact, federal agents did precisely that in the run-​up to WWI, after which companies like Western Union volunteered to supply such information to the BoI and the Secret Service. ²⁰

During WWI, the Supreme Court ruled the Espionage Act constitutional, a decision that resulted in the prosecution and persecution of political figures such as former Socialist Party presidential candidate Eugene V. Debs. ²¹ A decade later, in Olmstead v. United States, the Court ruled that federal wiretaps conducted off the property of a person under surveillance that intercepted the subject’s personal telephone calls did not violate the Fourth Amendment. ²² And during World War II, in Korematsu v. United States, the Court upheld the conviction of the Japanese American plaintiff for his refusal to evacuate his home on the West Coast under Executive Order 9066. Detailed intelligence reports confirming that the overwhelming majority of Japanese Americans posed no security threat were not provided to the Court. ²³

During the Cold War, federal courts generally continued to affirm the right of federal law enforcement and intelligence agencies to collect information on Americans. That began to change in the late 1960s.

In December 1967, the Supreme Court reversed its finding in Olmstead, declaring in Katz v. United States that (in the words of Justice Potter Stewart) the Fourth Amendment “protects people, not places” and that it applies to oral statements as well as tangible objects. ²⁴ Four years later, the first of a series of domestic surveillance revelations would ultimately lead to the creation of the Senate Select Committee to Study Governmental Operations with Respect to Intelligence Activities, better known as the Church Committee, after its chairman Senator Frank Church (D-ID). ²⁵

The multihearing, multivolume investigation conducted by Church and his colleagues laid bare the radical domestic surveillance and political repression orchestrated by the FBI, the National Security Agency (NSA), and the Central Intelligence Agency (CIA) from 1945 onward. ²⁶ Although the FBI’s campaign to discredit Dr. Martin Luther King Jr. became one of the best-​known episodes of abuse, it was only one of many carried out against Americans from virtually every walk of life.

As a result of the Church Committee’s findings, Congress created dedicated intelligence oversight committees in each chamber and also passed the Foreign Intelligence Surveillance Act (FISA) in 1978—a law designed to prevent mass warrantless surveillance of Americans.

The FISA statute created the Foreign Intelligence Surveillance Court (FISC) to review executive branch applications ostensibly for foreign intelligence–related surveillance—the first time Congress had created a court designed to operate in complete secrecy and without the normal adversarial process used in Article III federal courts. ²⁷ For decades, the FISC operated without the public really understanding what kinds of surveillance it was approving and what that meant for the sanctity of Americans’ communications.

Al Qaeda’s unprovoked attack on the United States on September 11, 2001, ushered in a new, radical era of federal surveillance. Just six weeks after the attacks and with minimal debate, Congress passed the USA PATRIOT Act, a bill that vastly increased the scope and kinds of information federal authorities could collect, often without needing a court-​approved warrant. ²⁸ During the same period, the NSA began a secret, warrantless surveillance program named Stellar Wind that bypassed the FISC entirely for over two years. ²⁹

The New York Times exposure of the Stellar Wind program in December 2005 touched off a years-​long debate over newly out-​of-​control executive surveillance powers carried out in the name of “national security.” ³⁰ The ensuing debate produced the so-​called Protect America Act (which essentially simply made the previously illegal Stellar Wind program legal), ³¹ but critics managed to insert an expiration provision into the law that triggered another legislative showdown in 2008.

The result was the FISA Amendments Act, ³² a bill that supporters claimed would preclude the kind of mass surveillance that had targeted Americans under the Stellar Wind program. The law, originally passed in 2008, was renewed in 2012. For a time it appeared that the debate over federal surveillance powers was winding down.

However, all of that changed in June 2013, when NSA contractor-​turned-​whistleblower Edward Snowden revealed to the world that the FISC had been approving mass surveillance of the telephone calls of Americans. ³³

In the months and years after Snowden’s initial revelations, Americans engaged in the largest, most sustained public debate about federal spying powers since the Church Committee nearly 40 years earlier. Indeed, Snowden’s revelations—and others that followed—demonstrated that the very structure designed to prevent mass surveillance against Americans had led to that very mass surveillance—exactly what Bill of Rights defenders had always feared.

The question remains: What, if anything, can be done to rein in federal surveillance and related political repression while still avoiding 9/​11-​like disasters?

The Founders constructed the Fourth Amendment with great care and deliberation. The idea that people or their property should be searched and seized only when the government has real probable cause to believe they have committed a crime was foundational to the American Revolutionary experience. Warrantless seizures and searches were the proximate cause of the Revolution.

The Founders never intended their experience under the British crown to be repeated by the new government they created. That they failed has nothing to do with the text of the Fourth Amendment. It has everything to do with subsequent chief executives, courts, and Congresses failing to uphold that text. Despite the damage done to the Fourth Amendment, and thus to our rights, the damage can be undone, and fairly simply.

A key step is to repeal both the PATRIOT Act and the FISA Amendments Act. In the case of the former, we know that the law has not stopped a single terrorist attack on this country. ³⁴ In the case of the latter, no executive branch official has ever been able to demonstrate that the massive, continuing collection of the overseas phone calls, text messages, and related digital data of innocent Americans has made us one bit safer. That Congress has continued to renew both acts shows how little learning takes place on Capitol Hill … which brings me to the core problem: Congress and the American voter.

As the old saying goes, “The people get the government they deserve.” The failure of American voters to make the protection of their own liberty a top issue with politicians is the cause of the loss of our Fourth Amendment rights.

American voters could choose House members who would impeach executive branch officials or federal judges who order or allow warrantless mass surveillance of citizens. American voters couldchoose senators who would only appoint judges who take a strict approach to the Bill of Rights in general and to the Fourth Amendment in particular. American voters could elect a chief executive who unconditionally pledges to uphold the letter of the Bill of Rights and to expose and stop any unconstitutional surveillance activities he or she discovers upon assuming office.

Assuming all of those conditions could be met—and, in fact, they could—what would intelligence collection in a truly liberty-​centric government look like?

First, the FBI would be prohibited from initiating suspicionless “assessments” of individuals—de facto investigations that require no criminal predicate to initiate. ³⁵ In a foreign intelligence context, the FBI should investigate Americans only when it has met the Constitution’s probable cause standard that a crime has been or is being committed.

Second, Congress should pass legislation barring government at any level from requiring electronic device manufacturers to create flaws in their software or hardware—so-called encryption backdoors—to facilitate government surveillance. In the digital age, our smartphones, tablets, and computers contain essential data on our lives: our personal and business contacts, our most cherished photographic and video memories, our private and business communications. The international standard for protecting those communications uses encryption—a process involving the conversion of our data into a protected code to prevent unauthorized access.

The ability to conduct secure communications via encryption protocols—especially for online purchases—is a cornerstone of the 21st-​century economy. Protecting those communications is already a complicated and difficult task. Even with the best intentions, software designers make mistakes, including mistakes in encryption protocols. Government-​mandated flaws in encryption would increase, not reduce, cybercrime—and in the process make us all more vulnerable to cyberattacks. If we are to have confidence in our digital communications and in the protection of our rights, Congress must outlaw so-​called encryption backdoors forever.

Third, to ensure compliance with this new liberty-​centric approach, the Government Accountability Office (GAO)—Congress’s agency watchdog—should be tasked to monitor FBI, CIA, and NSA compliance with the Fourth Amendment. GAO personnel would be stationed at each of these agencies, with unfettered access to the intelligence collection sources, methods, and databases used by each, to ensure that no data on innocent Americans were being collected, stored, or otherwise used in violation of the Constitution.

The GAO would also be tasked with conducting ongoing audits of Intelligence Community programs and activities to ensure that they actually work at getting information on foreign actors potentially threatening the United States. We know from past GAO audits that the Pentagon has squandered tens of billions of dollars on various programs—wasting taxpayer money and making the country less, not more, safe. The same rigor should be applied to all Intelligence Community programs as well.

In this life, nothing is perfect. We have no guarantee that those in government charged with protecting our rights will, in fact, do so. That reality is all the more reason that the recommendations outlined above are so important. Implemented together, they would create a more robust and redundant constitutional safeguards network that would make it harder for authoritarian-​minded government officials—elected, appointed, or in the civil service—to violate our rights with impunity.

Making the right choices on who is allowed to exercise federal law enforcement and surveillance power is arguably the most important civic responsibility of every American. Creating a truly liberty-​centric future begins with each of us demanding that elected and appointed officials honor our constitutional rights—or face the consequences. Those wishing to live as a free, self-​governing people have no other choice.