The More Things Change…

by on July 7, 2008 · 5 comments

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:

  • In 1937 and 1939, the Supreme Court ruled that wiretapping was illegal under the 1934 Communications Act. President Roosevelt responded in 1940 with a “secret directive authorizing FBI wiretaps during ‘national defense’ investigations. The president privately reasoned that the Court’s rulings governed only criminal cases.” Roosevelt required the FBI to seek specific authorization from the attorney general for each wiretap, but the FBI found this requirement too onerous, and “installed wiretaps without the attorney general’s advance approval” on at least 17 occasions.
  • In 1954, the Supreme Court held that trespassing in order to install bugs violated the Fourth Amendment. The FBI asked the attorney general for authorization to ignore the ruling and continue illegally bugging peoples’ homes, but the attorney general sought plausible deniability, writing that he “would be in a much better position to defend the Bureau in the event that there should be a technical trespass if he had not heretofore approved it.” The FBI continued bugging, without bothering its nominal superiors with the details.

  • Theoharis writes that “The Roosevelt, Truman, and Eisenhower administrations had unsuccessfully lobbied Congress to legalize national security wiretapping in 1941, 1951, 1953, and 1955. Their failures did not influence their policies on such uses.”

    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.

    • http://www.codemonkeyramblings.com MikeT

      This is why we need real law-and-order US Attorneys. When my dad was a treasury agent, he got a number of people busted because he found a US Attorney who was a no-nonsense guy on enforcing federal law related to wiretapping abuses, and turned over the evidence needed to prosecute some of his colleagues for running a dragnet. The US Attorney was all over those guys like white on rice when he got that information, and most of them went to prison.

      The problem is that most “law-and-order” people actually believe that “law-and-order” applies to the people only, unless government agents really embarrass the government.

    • http://www.codemonkeyramblings.com MikeT

      This is why we need real law-and-order US Attorneys. When my dad was a treasury agent, he got a number of people busted because he found a US Attorney who was a no-nonsense guy on enforcing federal law related to wiretapping abuses, and turned over the evidence needed to prosecute some of his colleagues for running a dragnet. The US Attorney was all over those guys like white on rice when he got that information, and most of them went to prison.

      The problem is that most “law-and-order” people actually believe that “law-and-order” applies to the people only, unless government agents really embarrass the government.

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