As the battle over reforms to the Foreign Intelligence Surveillance Act rages in Congress, civil libertarians warn that legislation sought by the White House could enable spying on "ordinary Americans." Others, like Sen. Orrin Hatch (R-Utah), counter that only those with an "irrational fear of government" believe that "our country's intelligence analysts are more concerned with random innocent Americans than foreign terrorists overseas."
But focusing on the privacy of the average Joe in this way obscures the deeper threat that warrantless wiretaps poses to a democratic society. Without meaningful oversight, presidents and intelligence agencies can -- and repeatedly have -- abused their surveillance authority to spy on political enemies and dissenters.
The original FISA law was passed in 1978 after a thorough congressional investigation headed by Sen. Frank Church (D-Idaho) revealed that for decades, intelligence analysts -- and the presidents they served -- had spied on the letters and phone conversations of union chiefs, civil rights leaders, journalists, antiwar activists, lobbyists, members of Congress, Supreme Court justices -- even Eleanor Roosevelt and the Rev. Martin Luther King Jr. The Church Committee reports painstakingly documented how the information obtained was often "collected and disseminated in order to serve the purely political interests of an intelligence agency or the administration, and to influence social policy and political action."
Political abuse of electronic surveillance goes back at least as far as the Teapot Dome scandal that roiled the Warren G. Harding administration in the early 1920s. When Atty. Gen. Harry Daugherty stood accused of shielding corrupt Cabinet officials, his friend FBI Director William Burns went after Sen. Burton Wheeler, the fiery Montana progressive who helped spearhead the investigation of the scandal. FBI agents tapped Wheeler's phone, read his mail and broke into his office. Wheeler was indicted on trumped-up charges by a Montana grand jury, and though he was ultimately cleared, the FBI became more adept in later years at exploiting private information to blackmail or ruin troublesome public figures. (As New York Gov. Eliot Spitzer can attest, a single wiretap is all it takes to torpedo a political career.)
In 1945, Harry Truman had the FBI wiretap Thomas Corcoran, a member of Franklin D. Roosevelt's "brain trust" whom Truman despised and whose influence he resented. Following the death of Chief Justice Harlan Stone the next year, the taps picked up Corcoran's conversations about succession with Justice William O. Douglas. Six weeks later, having reviewed the FBI's transcripts, Truman passed over Douglas and the other sitting justices to select Secretary of the Treasury (and poker buddy) Fred Vinson for the court's top spot.
"Foreign intelligence" was often used as a pretext for gathering political intelligence. John F. Kennedy's attorney general, brother Bobby, authorized wiretaps on lobbyists, Agriculture Department officials and even a congressman's secretary in hopes of discovering whether the Dominican Republic was paying bribes to influence U.S. sugar policy. The nine-week investigation didn't turn up evidence of money changing hands, but it did turn up plenty of useful information about the wrangling over the sugar quota in Congress -- information that an FBI memo concluded "contributed heavily to the administration's success" in passing its own preferred legislation.
In the FISA debate, Bush administration officials oppose any explicit rules against "reverse targeting" Americans in conversations with noncitizens, though they say they'd never do it.
But Lyndon Johnson found the tactic useful when he wanted to know what promises then-candidate Richard Nixon might be making to our allies in South Vietnam through confidant Anna Chenault. FBI officials worried that directly tapping Chenault would put the bureau "in a most untenable and embarrassing position," so they recorded her conversations with her Vietnamese contacts.
Johnson famously heard recordings of King's conversations and personal liaisons with various women. Less well known is that he received wiretap reports on King's strategy conferences with other civil rights leaders, hoping to use the information to block their efforts to seat several Mississippi delegates at the 1964 Democratic National Convention. Johnson even complained that it was taking him "hours each night" to read the reports.
Few presidents were quite as brazen as Nixon, whom the Church Committee found had "authorized a program of wiretaps which produced for the White House purely political or personal information unrelated to national security." They didn't need to be, perhaps. Through programs such as the National Security Agency's Operation Shamrock (1947 to 1975), which swept up international telegrams en masse, the government already had a vast store of data, and presidents could easily run "name checks" on opponents using these existing databases.
It's probably true that ordinary citizens uninvolved in political activism have little reason to fear being spied on, just as most Americans seldom need to invoke their 1st Amendment right to freedom of speech. But we understand that the 1st Amendment serves a dual role: It protects the private right to speak your mind, but it serves an even more important structural function, ensuring open debate about matters of public importance. You might not care about that first function if you don't plan to say anything controversial. But anyone who lives in a democracy, who is subject to its laws and affected by its policies, ought to care about the second.
Harvard University legal scholar William Stuntz has argued that the framers of the Constitution viewed the 4th Amendment as a mechanism for protecting political dissent. In England, agents of the crown had ransacked the homes of pamphleteers critical of the king -- something the founders resolved that the American system would not countenance.
In that light, the security-versus-privacy framing of the contemporary FISA debate seems oddly incomplete. Your personal phone calls and e-mails may be of limited interest to the spymasters of Langley and Ft. Meade. But if you think an executive branch unchecked by courts won't turn its "national security" surveillance powers to political ends -- well, it would be a first.