I’m boning up on the history of the FBI, reading Athan Theoharis’s The FBI and American Democracy. So far, I’ve gotten from the FBI’s inception (100 years ago this month) to midcentury. The most remarkable thing about it is how familiar it all seems. As Theoharis tells the story, the FBI has, from its inception, pushed for ever broader authority to spy on Americans. During the first half of the 20th century, it pushed relentlessly for broader statutory authority. When Congress would not give it the authority it wanted, it sought authorization from senior executive branch officials for authorization to break the law. If authorization wasn’t fortcoming, the bureau would often do what it wanted anyway and not tell its nominal superiors of its activities.
A few illustrative anecdotes:
And so it goes. The FBI repeatedly and systematically broke the law, and faced no real consequences for doing so. One can only assume that if the nature and extent of their eavesdropping activities had been publicly known, there would have been greater public outcry over them. But the public never learned of these activities until long after the fact.
In light of this history, I think it’s a safe bet that today’s law enforcement and intelligence agencies are engaged in the same sort of illegal surveillance, possibly with the blessing of senior Bush administration, or possibly without their knowledge. The programs that have already been disclosed are almost certainly the tip of a very large iceberg. The NSA is now much larger, more secretive, and has access to much more sophisticated technology than J. Edgar Hoover could have dreamed about. We probably won’t know what they’ve been up to until several decades in the future. But it would be incredibly naive to assume that these agencies’ illegal activities are limited to those that have already been disclosed publicly.
This also illustrates why excessive secrecy is so dangerous. History tells us that it’s sheer fantasy to think that intelligence-gathering agencies will voluntarily follow the law. Federal agencies follow the law only because the harsh light of public scrutiny compels them to do so. The Hoover-era FBI was at least constrained by the fact that they had to hide their programs from Congress, the courts, and (in some cases) the White House itself. If Congress formally enshrines open-ended secrecy as a principle of domestic surveillance law, as the pending FISA bill does, we’ll be giving future J Edgar Hoovers free rein. Obviously, the specific targets of wiretapping should not be public knowledge while they’re being undertaken, but there’s absolutely no reason that the broad outlines of eavesdropping programs should not be publicly disclosed, debated, and authorized (or not) by law.