The Eyes Have It
Secret surveillance programs designed to thwart future terrorist attacks raise questions about how far is too far
The nondescript vans motored along city streets, drove through parking lots, and idled on the driveways of suburban homes. Inside, government technicians monitored sensitive gauges, testing for the presence of radiation in the air. The classified program, run by the FBI and the Energy Department's Nuclear Emergency Support Team, checked some 120 sites day and night for nearly two years following the 9/11 attacks, searching the greater Washington, D.C., area for evidence of a terrorist dirty bomb or nuclear device.
No such evidence was ever found, and the monitoring is now largely restricted to special events and times of high alert. But the program has left a bitter taste with some close to it, who have complained that the monitoring--much of it done on private property--was done without search warrants, sources say. The law remains unclear on how far federal agents can go in these cases, but the operation, revealed December 22 by U.S. News, has added to concerns about the reach of U.S. security agencies since 9/11. A string of revelations in recent weeks suggests that domestic spying programs may be far broader than previously thought. Among the reports:
The National Security Agency, charged with monitoring overseas communications, has secretly eavesdropped on hundreds, possibly thousands, of Americans without obtaining warrants. The New York Times, which broke the story, also revealed that the NSA is engaged in a large "data mining" operation, plumbing through U.S. phone calls and E-mails in search of terrorist links.
The FBI has run post-9/11 counterterrorism investigations into animal rights, environmental, and antiwar groups, including Roman Catholic peace activists, People for the Ethical Treatment of Animals, and Greenpeace, according to documents obtained by the American Civil Liberties Union under the Freedom of Information Act.
The FBI has dramatically expanded its use of "national security letters," formal requests for Americans' phone records, E-mail, and financial transactions. Historically, such letters were used only rarely; today, however, the FBI reportedly issues over 30,000 of the letters a year, without review by any court.
_ Defense Department intelligence operatives are keeping tabs on groups protesting the Iraq war and military recruiting efforts. A 400-page database obtained by NBC News lists nearly four dozen antiwar meetings or protests, including some occurring far from any military facility or recruiting center.
New York Police Department undercover officers have joined antiwar and even bicycle-rider rallies, according to videotapes screened by the press. In at least one case, an apparent undercover officer incited a crowd by faking his arrest.
Government officials have offered spirited defenses in most of these cases. The allegations of spying have been misinterpreted and exaggerated, they say, and insist that the public expects law enforcement and intelligence agencies to be aggressive in the age of terrorism. President Bush was unapologetic about the NSA's warrantless intercepts. "I've reauthorized this program more than 30 times since the September 11 attacks," he told a press conference, "and I intend to do so for so long as our nation . . . faces the continuing threat of an enemy that wants to kill American citizens." Americans, Bush aides say, want the president to err on the side of security.
The FBI, too, has mounted a strong defense. No investigations are opened, officials say, unless there is "specific information about a potential criminal or terrorist threat." Mere mention of groups or individuals in an FBI file, agents say, does not mean they are under investigation. "After 9/11, the big brouhaha was the failure to connect the dots," says former FBI executive Oliver "Buck" Revell, who oversaw counterterrorism investigations from 1980 to 1991. "If you want them to collect intelligence, you're going to have to let them collect intelligence."
But the mounting allegations of domestic spying have sparked widespread concern and prompted members of Congress to action, among them Arlen Specter, the Pennsylvania Republican who chairs the Senate Judiciary Committee and who will convene hearings later this month. "I want to know precisely what they did," Specter said. "How the NSA utilized their technical equipment, whose conversations they overheard, how many conversations they overheard, what they did with the material, what purported justification there was." Democrat Rep. Robert Wexler is demanding documents on the Defense Department's secret monitoring program, part of a little-known agency called the Counterintelligence Field Activity. Among the groups on CIFA's list: the Truth Project, a nonviolent, antiwar outfit in Wexler's Florida district run by, he says, "a 79-year-old grandmother."
Civil liberties watchdogs worry that, in the reaction to 9/11, security agencies are going overboard, much as they did during the 1960s and early '70s, when huge programs of illegal spying and dirty tricks led to reforms (box)."These agencies haven't remembered what happened to them in the '70s," says University of Georgia scholar Loch Johnson, who as a staff member on the House and Senate intelligence committees helped draft those reforms. "You heard the same arguments back in the Johnson and Nixon administrations: 'Why do you want to shackle our hands?' "
At the heart of the debate over domestic spying is a reassertion of presidential power. Legal advisers to the president have made a case for sweeping executive authority during wartime. The White House's authority to render terrorism suspects jailed without trial and run warrantless eavesdropping, they argue, is authorized by a congressional war resolution passed after 9/11 and by the Constitution's grant of war-making power to the commander in chief. Among the prime supporters of this position is Vice President Dick Cheney, who as White House chief of staff under Gerald Ford saw Congress take back considerable amounts of executive power after the abuses of the Nixon era.
But Congress and the courts may now be pushing back. Legal challenges to the administration's detention policy and the FBI's national security letters are winding their way through the courts. On Capitol Hill, the controversy has already taken one casualty: the renewal of the U.S.A. Patriot Act, the wide-ranging antiterrorism bill Congress passed after 9/11 to give law-enforcement agencies broader investigative powers. Concerned about the civil liberties implications of the bill, Congress extended the measure, but only until February 3. That means the act's renewal will be debated again in late January--probably at the same time as the Senate hearings on surveillance. A question for the White House now is how the controversy might affect the confirmation chances of Supreme Court nominee Samuel Alito. In 1984, as a Reagan administration lawyer, Alito drafted a memo supporting immunity for officials from lawsuits if they approved domestic wiretaps without warrants.
In the end, the White House may be helped by some unlikely allies--national security veterans who, while critical of the administration, warn against overreacting to charges of domestic spying. They say that needed work by the NSA and others to track terrorists may suffer from what they see as the White House's earlier overreaching, particularly on its endorsement of secret detentions and brutal interrogation techniques. "We have an administration that has taken a number of actions seen as seriously inconsistent with American values and expectations," says Elizabeth Rindskopf Parker, a former general counsel to both the NSA and the CIA and now dean of the University of the Pacific's McGeorge School of Law. "But we have to be careful not to throw the baby out with the bath water."
With Angie Marek and Ken Walsh
This story appears in the January 9, 2006 print edition of U.S. News & World Report.