The United States government has long spied on its own citizens. Since World War I, multiple government agencies have collected information on citizens through secretive means. The methods have evolved over time, often incorporating newly developed technologies; however, a singular pattern has emerged in which governmental surveillance, sometimes authorized directly by the president, has expanded during times of perceived danger. Only after the discovery of large-scale operations has Congress placed restrictions on the powers of executive agencies to spy on American citizens, while presidents have continued to authorize new expansions of surveillance.
During World War I, Attorney General Thomas Gregory appealed to the public for information on disloyalty. The Justice Department received a flood of reports and volunteer organizations, such as the American Protective League and the Boy Spies of America, were formed to encourage citizen surveillance. The Federal Bureau of Investigation (FBI) first became involved in surveillance after the Bolshevik revolution. Attorney General A. Mitchell Palmer instructed J. Edgar Hoover to create an index tracking radicals. Hoover’s list of more than 200,000 suspected radicals was used during the ‘‘Palmer raids’’ in which thousands of leftists were arrested, with more than 3,000 deported. However, in 1924, Attorney General Harlan Fiske Stone ordered the FBI to cease investigating individuals because of their political activities. Stone’s order was reversed by President Franklin Roosevelt in a secret 1936 directive. The FBI began collecting information on both communists and fascists using undercover agents and informants with the aim of identifying individuals who should be detained to prevent espionage during the coming World War II.
The FBI’s interest in Communists only intensified after World War II. In 1954, Attorney General Brownell provided the FBI with broad authorization to use microphones to spy on possible foreign agents, saboteurs, and subversives. Operating without warrants, the FBI, along with the Central Intelligence Agency (CIA), also opened and photographed hundreds of thousands of items of personal mail moving within the United States in twelve different programs conducted between 1940 and 1973. Illegal FBI searches, surveillance, and wiretapping were widespread, targeting the Party, other organizations, and individuals. The FBI often did not obtain warrants, even where obtainable, because its primary objective was the development of intelligence about subversive groups and individuals rather than criminal trials.
The FBI also collected intelligence on suspected communists from former communists, many of whom were on the government payroll, and dispatched undercover agents and paid informers to infiltrate Party meetings. COINTELPRO, an acronym for Counter Intelligence Program, began in 1956 with a focus on the Communist Party and combined surveillance with tactics intended to disrupt target organizations by spreading misinformation, provoking illegal acts, and sowing distrust among members. COINTELPRO was later expanded to target groups as diverse as the Ku Klux Klan, the Socialist Workers Party, Students for a Democratic Society (SDS), and the Black Panther Party. One operation placed Martin Luther King, Jr., under close surveillance on the justification that he was influenced by several alleged communists in his organization. King’s home and office telephones were wiretapped, and the FBI placed microphones in King’s hotel and motel rooms. Tapes of King’s encounters with female admirers were prepared for delivery to King’s wife, and tapes of his discussions with advisers were sent to his office to create paranoia. COINTELPRO was ended in 1971 after a burglary at an FBI office revealed many of its operations.
The C.I.A. and the U.S. Army also conducted domestic surveillance during the Vietnam War. The CIA’s most extensive effort, entitled CHAOS, ran from 1967 to 1974; it compiled and analyzed information regarding foreign influence on American protest movements, including, but not limited to, the Black Power and anti-war movements. CHAOS also monitored the overseas movements of many Americans at the request of the FBI. In Project MERRIMAC, CIA agents infiltrated Washington area peace and black activist groups, while Project RESISTANCE compiled information about radical groups around the country. Both programs had stated purpose of identifying threats to CIA installations and activities.
The U.S. Army began intelligence activities in the South in 1963, concerned that it would be asked to calm civil unrest in the region. Later, the Army expanded its intelligence operations to urban areas where military force might be required to end riots. By the late 1960s, Army intelligence had penetrated many major protest demonstrations and dissident groups in virtually every American city, placing an estimated 100,000 individuals under surveillance. The Army’s intelligence reports were sometimes distributed to federal and local law enforcement agencies until 1971, when press reports exposed the program, leading to a congressional investigation.
The modern legal framework for domestic surveillance began in 1967, when the Supreme Court found that a warrant was needed for wiretaps in Katz v. United States. In 1968, Congress passed the Omnibus Crime Control and Safe Streets Act, which prohibited domestic eavesdropping without a warrant while recognizing the ‘‘constitutional power of the President’’ to engage in warrantless surveillance of foreign sources and for national security purposes. In United States v. United States District Court (1972), the Supreme Court found that the Fourth Amendment required a warrant for all searches, including electronic surveillance, performed for domestic intelligence purposes. The Privacy Act, passed in 1974, prohibited all federal agencies, including the military, from maintaining records regarding individuals’ political and free speech activities.
In 1974, Seymour Hersh of the New York Times published a lengthy article detailing the CIA’s collection information on U.S. citizens’ political activities and covert operations abroad. Sensitized by the Watergate scandal, which had begun with a White House– authorized illegal search of Democratic Party headquarters, the Senate formed the Select Committee to Study Governmental Operations with Respect to Intelligence Activities, better known as the Church Committee after its chairman, Frank Church of Idaho. Holding hearings in 1975 and 1976, the Church Committee published fourteen lengthy reports covering a broad array of activities by intelligence agencies both within the United States and abroad including assassinations of foreign leaders.
In response to the Church Committee, President Ford ordered the CIA to cease surveillance of American’s domestic activities and prohibited National Security Agency interceptions of communications beginning or ending in the United States. Ford’s attorney general, Edward Levi, instituted guidelines restricting FBI investigations to criminal conduct and specifically prohibiting the agency from monitoring organizations or individuals’ political activities. In 1978, Congress passed the Foreign Intelligence Surveillance Act, or FISA. FISA created a special court which, operating in secret, would hear government petitions for warrants to engage in surveillance against foreign governments or their agents within the United States; a special appellate court would also hear any appeals when warrants were denied. Those warrants do not have to show ‘‘probable cause’’ that a crime is being committed but rather that the target is the agent of a foreign power. FISA closed the loophole for, under the 1968 Crime Control Act, allowing for presidential discretion to allow domestic intelligence operations without warrants.
After the terrorist attacks of September 11, 2001, President George W. Bush and the Congress moved to expand legal authority for surveillance. The USA PATRIOT Act (2001) eliminating old barriers between information gleaned from domestic and foreign intelligence operations under the original FISA statute by allowing FISA warrants in cases where foreign intelligence is not the primary purpose, so long as there is some relationship to foreign intelligence, or where the target is a nonresident alien. Attorney General John Ashcroft also rescinded the Levi guidelines that had prohibited FBI investigation of political activities.
Since the 2001 attacks, government agencies’ attempts to use computer algorithms to search through multiple databases for patterns of suspicious behavior have drawn protest. The technique, also called ‘‘data mining,’’ reverses the usual presumptions for searches under the Fourth Amendment, looking through large data set patterns that might incriminate otherwise unsuspected individuals. The Defense Department envisioned one such program, named Total Information Awareness or TIA, which would have used both government databases and many of the large commercial databases, such as credit histories and mailing lists. Both the program’s location in the military and its seeming comprehensiveness alarmed many Americans, and Congress prohibited any further spending in 2003. Another program, the Multi-State Anti-Terrorism Information Exchange, or MATRIX, was funded by the federal departments of Justice and Homeland Security but was led by the Florida Department of Law Enforcement. The project envisioned the pooling of the collective databases held by state law enforcement agencies for purposes of identifying patterns of criminal activity. Although it was officially limited to criminal investigative purposes and only used already available government databases, MATRIX became controversial when it received publicity in 2003. Officials in participating states withdrew from the program, and MATRIX was officially terminated in 2005.
The Bush administration has also encouraged Americans to report on each other. In 2002, Attorney General Ashcroft proposed a Terrorism Information and Prevention System (TIPS) that would train gas and electric meter readers, mail carriers, cab drivers, as well as private citizens to identify suspicious behavior and report it to the authorities. TIPS was abandoned after congressional reaction. A Pentagon office, the Counterintelligence Field Activity, or CIFA, has continued to collect information from civilians and military personnel who suspect others to be potential terrorists. CIFA’s system grew from an Air Force program known as ‘‘Eagle Eyes’’ that recruited military personnel, family members, military contractors, and community groups to report suspicious activity near Air Force bases.
In December 2005, the New York Times reported on a secret Bush administration program that had used the National Security Agency (NSA) to eavesdrop on communications between individuals in the United States and foreign countries as part of the War on Terrorism. Part of the Defense Department, the NSA’s operations, had been explicitly limited to foreign surveillance only. The Bush administration defended the operation as necessary and claimed two legal justifications.
The first justification was the president’s constitutional authority as commander-in-chief and obligation to defend the nation from enemy attack. This justification is problematic given Congress’s ability to establish law and its purposeful limitation of executive power in the 1968 Crime Control Act and FISA. However, language in the only published appellate opinion by the Foreign Intelligence Surveillance Court of Review, In re Sealed Case (2002), speaks of an assumption that the president has ‘‘inherent authority to conduct warrantless searches to obtain foreign intelligence information.’’
The second justification was drawn from congressional passage of the Authorization for Use of Military Force (AUMF) (2001) that preceded U.S. operations in Afghanistan. The AUMF included language that empowered the president to ‘‘use all necessary and appropriate force’’ against terrorists and their sponsors. The administration’s broad interpretation of the AUMF has not been shared by the Supreme Court. In Hamdi v. Rumsfeld (2004), a case involving indefinite military detention of a U.S. citizen without legal representation, the Supreme Court considered the administration’s argument that the AUMF authorized such detentions and declared that a ‘‘state of war is not a blank check for the President.’’
Congressional investigations and legal challenges to the Bush surveillance program were pending at the time this article went to press.
References and Further Reading
Cases and Statutes Cited