Review: Exceptional Security Practices, Human Rights Abuses, and the Politics of Legal Legitimation in the American “Global War on Terror”

I’am currently reading Rebecca Sanders Dissertation about “Exceptional Security Practices, Human Rights Abuses, and the Politics of Legal Legitimation in the American “Global War on Terror” ” for my own project. She sheds a bright light on laws concerning surveillance and other exceptional security measures like human rights abuses in Guantanamo bay and many more. Her research question is how legal and normative constraints have an impact on abusive practices like torture and surveillance. What spurred my curiosity was her chapter on surveillance because it chronologically describes the evolution of the current US surveillance practices. What I found particularly enlightening was the historical dimension and its connection to the present: much of the scandal we currently witness is not that new. Findings that the NSA is tapping into Notebook Webcams to spy on Users, that they analyze porn-watching behavior to discredit targets, that they systematically use information to manipulate social movements or discredit transparency advocates like Wikileaks. Many people are outraged over the extensive attack on privacy and the very core values of any democracy. They ask, how could this happen? The easy answer to this is always: “9/11” and “because of terrorism”, but the truth is, its not new, rather old wine in new bottles. The enemies changed, but the mechanisms are still the same. It seems like history is repeating itself. Sanders thesis gives a splendid summary over the surveillance scandals of the past. I selected some noteworthy facts:

The following are either direct quotes or paraphrases of Sanders Thesis. Infos in brackets and links are my additions:

Background of surveillance measures

  • American Bill of Rights, specifically the Fourth Amendment: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” The Fourth Amendment did not prohibit surveillance. Instead, it hitched its legitimacy to authorization by a neutral court based on evidence of criminal wrongdoing. Not surprisingly, however, the meaning of “unreasonable” and “probable cause” have not always been obvious
  • Before WW1 there was a norm that it is not appropriate for states to spy each other, famously summarized by the quote from the Presidents Secretary of State Henry Stimson: “Gentlemen do not read each other’s mail”. It took until 1919 for a secret service to be established (the “Black Chamber”) (256)
  • Federal Communications Act of 1934: “no person not being authorized by the sender shall intercept any communication and divulge or publish the existence, contents, substance, purport, effect, or eating of such intercepted communications”.
  • During WW2 the FBI expanded authority to engage in wiretapping and to investigate national security threats…[J.Edgar] Hoover… ordered wiretapping of hundreds of people, including political enemies, dissidents, Supreme Court Justices, professors, celebrities, writers and others (268f.)
  • The Central Intelligence Agency was mandated to organize peacetime HUMINT collection abroad in the 1947 National Security Act, while foreign SIGINT was initially delegated to the Armed Forces Security Agency, established in 1949. The latter was followed in 1952 with the National Security Agency, headquartered at Fort Meade, Maryland. The CIA’s mandate explicitly prohibits domestic spying. The National Security Act makes clear that “the Agency shall have no police, subpoena, law-enforcement powers, or other internal- security functions.” (264)

Findings by the Church Committee after the Watergate Scandal

  • In 1971, a small circle of Nixon insiders formed the so-called “plumbers unit” led by former CIA agent Howard Hunt. They used surveillance searches and leaks to attack the Presidents political opponents. Amongst their activities was the theft of Daniel Ellsberg‘s medical records from his psychiatrist’s office in an effort to discredit the Pentagon paper leaks (270)
  • In 1972 a group of conspirators acting under the auspices of the Committee to Re-elect the President organized a robbery of the Democratic National Committee Headquater in the Watergate Hotel. However, the Watergate incident was not unprecedented: in 1930, President Hoover similar ordered agents to break into Democratic offices to obtain political intelligence.
  • The FBI, CIA, NSA and other military intelligence agencies collected staggering amounts of [big] data: the FBI hold over 500,000 domestic [banned by the 4th amendment] and a list of 26,000 people subject to round up in case of emergency; the NSA obtained copies of every international cable sent out of the United States between 1947 and 1975; the CIA’s illegal mail opening program created a database of 1.5 million people.
  • By the early 1970s, nearly 250,000 Americans were under active surveillance.
  • Volume 3: Internal Revenue Service describes the role of the IRS in gathering financial and personal data on political activists. A Special Service Staff (SSS) was created specifically for the task. Amongst its 8000 individual and 3000 organizational targets were the American Civil Liberties Union, the American Library Association, the Conservative Book Club, the Ford Foundation, the National Association for the Advancement of Colored People, The Lawyers Committee for Civil Rights Under Law, the National Urban League, and the University of North Carolina. (272)
  • Project HTLINGUA starting in 1952: extensive interception of Americans’ mail. The CIA systematically screened over 28 million of pieces of mail destined to and from the Soviet Union and other suspect destinations, secretly opening 215,820 envelopes. This mail opening continued for two decades despite the fact that it was clearly illegal. (272f). [If you wonder how that works you should visit a STASI Museum in Germany or watch the Film “Life of the others”]
  • Most of those associated with these invasions of privacy have flatly acknowledged the illegality of their actions. … According to CIA Inspector General Glennon: “we assumed that everyone realized it was illegal. The very point we were trying to make was the Agency would be in deep embarrassment if they were caught in this activity.” (273)
  • Project MINARET Between 1967 and 1973, the NSA intercepted communications of Americans thought to be associated with drug trafficking, terrorism, threats to the President, and civil disturbances such as the anti-war movement. The head of the NSA, Lt. General Allen testified that “our communications intelligence activities are solely for the purpose of obtaining foreign intelligence in accordance with the authorities delegated by the President stemming from his constitutional power to conduct foreign intelligence. Yet, he also admitted that the NSA monitored communications of U.S. citizens based on “watch lists.”
  • Project SHAMROCK: The operation stretched from the 1940s to the 1970s, during which time the NSA and its predecessor agencies received copies of every international telegram transmitted via the United States from three telegraph companies––RCA Global, ITT World Communications, and Western Union International.  Neither the government nor the companies kept documentary records of their operational arrangements (273f).
  • Summed up by Senator Hart, SHAMROCK “resulted in companies betraying the trust of their paying customers who had a right to expect that the messages would be handled confidentially. It was undertaken without the companies first ascertaining its legality. It was not disclosed to the Congress until this year.” It continued without interruption for nearly 30 years, even though apparently no express approval of the project was obtained from any President, Attorney General, or Secretary of Defense after 1949.
  • Operation CHAOS was the CIA’s domestic spying program, conducted in direct defiance to its statutory role as laid out in the 1947 National Security Act. Initiated by President Johnson in 1967 to seek out foreign influence over the anti-war, black power, and new left movements, CHAOS infiltrated domestic organizations with undercover agents and cooperated with the NSA’s illegal surveillance. Lasting almost seven years, the operation created a CIA database of 300,000 names with extensive files on 7200 citizens.
  • FBI Counterintelligence Program (COINTELPRO), which is discussed in Volume 6: Throughout the 1960s and early 1970s, the FBI surveilled, harassed, sabotaged, and engaged in counter-intelligence operations against peace and civil rights campaigners, developing 500,000 intelligence dossiers.Methods included about 100 warrantless wiretaps a year, mail opening, break-ins, and the extensive use of informants. The FBI was particularly preoccupied with Dr. Martin Luther King and the Southern Christian Leadership Conference, which it labeled a “black hate group.” Hoover bugged King’s home and office in order to dig up dirt on the civil rights leader. Other targets included the anti-war movement, the student movement, the new left, communist groups and right wing organizations like the Ku Klux Klan.
  • Other activities: examples of the use of what is called misinformation to prevent dissenters from meeting or engaging in protest activity, examples of efforts to neutralize people by breaking up their marriages or ruining their jobs, examples of where decisions have been made to risk the death of suspect individuals by intentionally exacerbating tensions between groups known to be violence prone and known to have a desire to injure each other, where there were intentional acts taken by the Bureau, with full authority, to exacerbate that tension.
  • “because COINTELPRO was almost entirely illegal, it required a whole new level of secrecy, not so much to protect national security as to protect the Bureau itself from embarrassing disclosures.”For instance, after Hoover’s death, the Bureau destroyed the majority of his personal files, which included “do not file” and “black bag job” documents. It seems that the FBI provided minimal information to the government about many of their activities, and only moved to curtail them once they became public. (277)

The Church Committee’s conclusions regarding domestic abuses are 

  • …the reports paint a disturbing picture of the political abuse of intelligence, the failure of accountability mechanisms, and a “vacuum cleaner” approach that indiscriminately monitored lawful activity. This vacuum cleaner, notes Schwarz Jr., is evident by the sheer volume of spying. Unwillingness to take legality seriously or consider it at all, excessive secrecy, the avoidance of any outside scrutiny, and attempts to sanitize dirty tricks rhetorically all contributed to these practices. However, he emphasizes, they were not merely the product of perverse “rogue elephant” intelligence agencies. Presidents were responsible through both acts of omission and commission, ordering them at worst or ignoring them at best. (278)

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