by publius
Looking ahead to the next round of FISA debates, Democrats and civil liberties advocates need to rethink their public relations strategy. In fact, this recommendation applies beyond FISA to the larger civil liberties debate. It’s not enough to say that “Administration Policy X” threatens civil rights, the public needs to understand in a very concrete way why those rights matter. My non-empirically informed sense is that much of the public just doesn’t feel in their gut that these protections benefit them.
The reason, though, that these rights do matter — the reason we care about them — is quite simple. The rights protect people from abuse of power. Accordingly, the FISA amendment is a bad idea because the executive branch will inevitably abuse these new sweepingly-broad surveillance powers. It’s a lesson as old as written history — unchecked authority is eventually used for improper reasons. Indeed, it’s the theoretical rationale of our entire constitutional structure.
To be sure, not every abuse of authority is as extreme as, say, actions in Nazi Germany. And people throw around unhelpful terms sometimes. But the unlikely probability of the most extreme abuses shouldn’t distract from the very real — and inevitable — abuse that will come if this law stays on the books. To understand what I mean, just look at the origins of FISA.
People should understand that FISA didn’t arise out of abstract policy debates. Congress enacted FISA in response to decades of well-documented, egregious abuses of secret, unchecked surveillance authority (generally in the name of fighting the enemy, who was then Communism). This long sordid historical record can and should inform the modern debate. We don’t have to rely solely on predictions or abstract balancing tests. We’ve already seen what happens when secret executive agencies exercise unchecked surveillance powers. More to the point, unless someone knows how to change the nature of man, we can’t (and shouldn’t) rely on an administration’s goodness or trustworthiness to exercise broad power properly. (On that note, few presidents have made Edmund Burke look better than George W. Bush).
In that spirit of illustrating “why it matters,” below is a list of some of the abuses that Congress documented in the mid-1970s — the same abuses that led to FISA. These abuses came to light during a Watergate-era Senate committee investigation regarding intelligence operations. Named after its Chairman, the “Church Committee” brought these abuses of power to light.
I’m getting this information from Peter Swire’s 2004 George Washington Law Review article (pdf), “The System of Foreign Intelligence Surveillance Law.” (I learned about it via Orin Kerr’s Computer Crime casebook). For the most part, I cut and paste large pieces of Swire’s article. (These quotes may differ slightly from the SSRN pdf above because I’m quoting from Lexis, which has the final edited version). On to the article.
To begin with the big picture, the Church Committee reached the following conclusion after reviewing this sorry history (and this is a quote from the Committee Report):
The tendency of intelligence activities to expand beyond their initial scope is a theme which runs through every aspect of our investigative findings. Intelligence collection programs naturally generate ever-increasing demands for new data. And once intelligence has been collected, there are strong pressures to use it against the target.
Swire goes on to explain that surveillance information was used as a weapon against political opponents:
The Church Committee documented that: “Each administration from Franklin D. Roosevelt’s to Richard Nixon’s permitted, and sometimes encouraged, government agencies to handle essentially political intelligence.” Wiretaps and other surveillance methods were used on members of Congress, Supreme Court Justices, and numerous mainstream and nonmainstream political figures. The level of political surveillance and intervention grew over time. By 1972, tax investigations at the IRS were targeted at protesters against the Vietnam War, and “the political left and a large part of the Democratic party [were] under surveillance.”
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