U.S.-China Surveillance

As I prepare a paper abstract for submission to an upcoming conference on national intelligence ethics, I’ve been thinking more about the historical context in which new federal standards for US “suspicious activity reporting” (the ISE-SAR) can be understood. Suspicious Activity Reports (SARs) are an increasingly important tool of “domestic intelligence” distinct from the class of documents produced in the course of criminal investigations. Domestic intelligence has a fascinating history. Widespread abuses in the 50s, 60s and early 70s, chronicled in the 14-volume Church committee reports (excerpted below), led to a comprehensive set of policy changes designed to place constraints on the number of government personnel authorized to produce domestic intelligence. These constraints have been largely abandoned in the wake of the September 11th Attacks, especially with the passage of the Intelligence Reform and Terrorism Prevention Act of 2004.

The more recent historical thread of which SARs are a part includes the Terrorism Information and Prevention System (TIPS), Threat and Local Observation Notices (TALON), and the current Guardian and e-Guardian systems maintained by the FBI. Much of the activity we are seeing today appears reminiscent of intelligence abuses chronicled in the Church reports.

In 1975, Senator Frank Church (D-ID) chaired the “United States Senate Select Committee to Study Governmental Operations with Respect to Intelligence Activities.” Over a period of nine months, the committee interviewed more than 800 officials and held 250 executive and 21 public hearings, investigating widespread intelligence abuses by the CIA, FBI and NSA. The Church Committee’s 14 reports, issued between 1975 and 1976, have been called the most thorough investigation of US intelligence agencies ever released to the public.

Here is a selection from BOOK II, A. Violating and Ignoring the Law:

MAJOR FINDING

The Committee finds that the domestic activities of the intelligence community at times violated specific statutory prohibitions and infringed the constitutional rights of American citizens. 1 The legal questions involved in intelligence programs were often not considered. On other occasions, they were intentionally disregarded in the belief that because the programs served the “national security” the law did not apply. While intelligence officers on occasion failed to disclose to their superiors programs which were illegal or of questionable legality, the Committee finds that the most serious breaches of duty were those of senior officials, who were responsible for controlling intelligence activities and generally failed to assure compliance with the law.

Subfindings

(a) In its attempt to implement instructions to protect the security of the United States, the intelligence community engaged in some activities which violated statutory law and the constitutional rights of American citizens.

(b) Legal issues were often overlooked by many of the intelligence officers who directed these operations. Some held a pragmatic view of intelligence activities that did not regularly attach sufficient significance to questions of legality. The question raised was usually not whether a particular program was legal or ethical, but whether it worked.

(c) On some occasions when agency officials did assume, or were told, that a program was illegal, they still permitted it to continue. They justified their conduct in some cases on the ground that the failure of “the enemy” to play by the rules granted them the right to do likewise, and in other cases on the ground that the “national security” permitted programs that would otherwise be illegal.

(d) Internal recognition of the illegality or the questionable legality of many of these activities frequently led to a tightening of security rather than to their termination. Partly to avoid exposure and a public “flap,” knowledge of these programs was tightly held within the agencies, special filing procedures were used, and “cover stories” were devised.

(e) On occasion, intelligence agencies failed to disclose candidly their programs and practices to their own General Counsels, and to Attorneys General, Presidents, and Congress.

(f) The internal inspection mechanisms of the CIA and the FBI did not keep — and, in the case of the FBI, were not designed to keep — the activities of those agencies within legal bounds. Their primary concern was efficiency, not legality or propriety.

(g) When senior administration officials with a duty to control domestic intelligence activities knew, or had a basis for suspecting, that questionable activities had occurred, they often responded with silence or approval. In certain cases, they were presented with a partial description of a program but did not ask for details, thereby abdicating their responsibility. In other cases, they were fully aware of the nature of the practice and implicitly or explicitly approved it.

I will post a few more excerpts from the reports before drawing some parallels to the present SAR initiative.