ACSBlog: The Blog of the American Constitution Society

The Foreign Intelligence Surveillance Act of 1978, the law that has been subjected to such buffeting during this new age of Big Brother, did not arise from nowhere. The 1978 Act responded to necessity—a need driven by numerous revelations of arbitrary, overbearing, and chilling measures taken by U.S. security services against American citizens. Then, like now, an overarching imperative was invoked to justify a host of wrongs. The Communist Threat then — like the Terrorist Threat now — cloaked extralegal and plainly illegal actions that Americans in their right minds would never have accepted.

With Congress having just enacted legislation that will undermine FISA’s bulwark against unchecked executive branch surveillance of Americans, it is instructive to revisit the era of the 1960s and 1970s when this challenge to democracy was last confronted. The topology of government activity, it turns out, was not so different from today.

Just as now, the government read telegrams, listened in on telephone conversations, opened mail, broke into homes, assembled watch lists, and violated the law. In the 1970s, Congress acted to reign in these activities. Will it do so again?

MONITORING ELECTRONIC COMMUNICATIONS

The Government Listens In

The direct antecedent to today’s government surveillance is activity by the National Security Agency (NSA) and its predecessors. In the age before the cell phone—indeed landline telephones themselves were not universally distributed then—the telegram was the most popular form of instant communication. American intelligence and security agencies, specifically the CIA and FBI, made private arrangements with Western Union and other similar companies as early as the Truman administration to get a look at outgoing telegrams. Literally millions of these communications passed under the eyes of the spooks under Project “Shamrock.”

The targets, at first foreign embassies and persons, expanded to include Americans—civil rights activists, suspected communists, antiwar protesters. The NSA expanded this activity and applied it to telephone calls defined as “foreign communications,” where one end of the conversation lay outside the United States (sound familiar?).

Government Watch Lists

The surveillance activity further expanded and was aimed specifically at Americans under the NSA’s Project “Minaret,” beginning in 1967. Minaret was soon refined with the creation of a “watch list” of individuals and organizations, ultimately encompassing about 9,000 Americans, with 1,200 of them listed simply for opposing an American war. Almost a thousand of those names were given to the NSA by the FBI, and hundreds more came from the CIA. By the time Minaret was stopped in 1973, the NSA had intercepted the telephone conversations of 1,680 Americans and generated 2,000 reports.

The Executive Branch Ignores the Law

More than a thousand pages of these reports was hand-delivered to a CIA unit, “Project Chaos,” which was formed to monitor the political activities of Americans. There were, in addition, hundreds of warrantless wiretaps permanently maintained, a practice not stopped when made illegal in the Omnibus Crime Control Act of 1968. When a House subcommittee began hearings into this government monitoring in 1975, the CIA attempted to avoid testifying—invoking the legal doctrine of “state secrets.” The CIA’s attempt to avoid accountability failed due to the explosiveness of the charges. Nor could the agency evade the more extensive investigative writ of the Church Committee, whose investigation ultimately led to the enactment of FISA.

MONITORING THE MAIL

The Government Opens the Mail

In those days the true equivalent to our telephone culture was the letter. First-class mail was the norm, not the exception, and—believe it—the government could not resist intercepting those communications. The CIA began the project in the 1950s to catch communist spies, but sure enough it turned its attention to Americans.

This mail interception went on for two decades and CIA officers surveyed more than 28 million letters, about 4,000 a day. They photographed the envelopes of 2 million of them, and steamed open and copied 215,000 private communications. This was not something confined to the years of the High Cold War—almost ten percent of the mail surveyed came in the last year of the project, when 8,700 letters were copied. The peak year was actually 1967. And these figures do not include the take of lesser CIA mail opening projects carried out in New Orleans, San Francisco, and Hawaii.

Government Watch Lists

Here too there was a watch list—up to 600 names. The watch list included the Quakers of the American Friends Service Committee, congressional representatives Bella Abzug and Patsy Mink, writers John Steinbeck and Edward Albee, publisher Frederick A. Praeger, scientist Jeremy J. Stone, and political activist Eldridge Cleaver. Among persons whose letters were actually opened were Senators Ted Kennedy and Frank Church, a congressman, and a governor. The program was halted only when a former CIA officer threatened to expose it. Through all its history the CIA mail opening program was credited in producing leads on exactly two Russian spies.

The Executive Branch Ignores the Law

These surveillance programs violated statutory laws governing the sanctity of wire communications and the mails as well as intelligence agency charters and government directives prohibiting actions against Americans. Equally disturbing, this illegally gathered information was placed in files on U.S. citizens maintained by government agencies.

The CIA’s Project Chaos accumulated 9,900 files on individual Americans, over a hundred on organizations, and had a computer database of 300,000 names, including a number of prominent people. At the height of the Church Committee investigation, in fact, the senators demanded to know about alleged CIA files on Senators Walter Mondale, Charles McCurdy Mathias, Philip Hart, and Walter D. Huddleston and Congressman Thomas E. Morgan. The FBI’s file base was many times larger.

BREAKING INTO HOMES

Nor did government stop at this level of intrusive activity. Break-ins to private homes and infiltrations of agents into public organizations have not been touched upon but were widespread. In fact, Watergate’s “Deep Throat”—the FBI’s Mark Felt—was convicted of criminal charges arising from some of these break-ins. And local law enforcement took its cue from the Feds. The New York and Chicago police departments were embroiled for years in legal suits resulting from their similar excesses.

LESSONS LEARNED?

In short, security scares breed contempt for civil and constitutional rights, in the past as at present. Americans would do well to remember that. In the meantime, in approving a postal reform bill on December 20, 2006, President George W. Bush issued a “signing statement” asserting that the U.S. government has the right to open mail.