Operating in secrecy, as it is required to, the FISA Court by now has written a body of secret law that is not examined in the usual chain of judicial review. It functions, some analysts have said, like a parallel Supreme Court, but without any exposure of its decisions. No one except intelligence officials and the judges themselves know the substance or rationale of the court’s decisions. It also lacks the presence of an adversary, a lawyer in hearings to test the government’s surveillance requests to the court. The overall secrecy of all aspects of the court and the lack of an adversarial process leave the court open to questions about how it has been possible for intelligence agencies to have such an extraordinary success rate before the court: In its thirty-five-year history, the court has rejected only eleven out of more than 34,000 surveillance requests.
PEOPLE IN OTHER COUNTRIES were enraged when they learned from reports on the NSA files that the agency had conducted blanket surveillance not only of some European countries but at thirty-eight embassies and missions, describing them as “targets.” These efforts were aimed not only against countries that might be expected to be U.S. adversaries, but also against the embassies of U.S. allies—France, Italy, Greece, Japan, Mexico, Brazil, South Korea, and Turkey and European Union missions and home offices.
NSA surveillance of the EU has been extensive. It took place at the union’s offices in Washington, at the United Nations, and also at its offices in Brussels. In order to hear and record discussions, NSA installed bugs in EU meeting rooms at its Washington office. Its computer network was infiltrated, giving the American intelligence agency access to emails and documents generated on EU computers. Antennas were installed to collect transmissions. The same methods were used at the Brussels headquarters of the EU and were directed from the nearby headquarters of NATO.
In collaboration with Britain’s GCHQ, the NSA spied on international heads of state who attended two London conferences. The spy agencies monitored the leaders and their staffs by, among other methods, setting up an ersatz Internet café for the participants. As the leaders used the café’s computers, all communications executed from the computers were collected by the spies, thanks to interception software that had been installed on them by the NSA. In addition, at one of the London conferences, forty-five intelligence analysts intercepted the leaders’ cell phone calls and tracked who they were calling.
Germans reacted with more outrage than any other people to the revelations that they were under NSA surveillance. According to one of the agency’s files, 500 million German communication connections were monitored every month. “It is reminiscent of methods used by enemies during the Cold War,” said German justice minister Sabine Leutheusser-Schnarrenberger when she learned about the NSA program.
“The spying has reached dimensions that I didn’t think were possible for a democratic country,” said Elmar Bok, chairman of the Foreign Affairs Committee in the European Parliament. “The U.S., once the land of the free, is suffering from a security syndrome. They have completely lost all balance. George Orwell is nothing by comparison.”
German officials, including Chancellor Angela Merkel, seemed to share Germans’ concerns at first. But German officials became defensive and then nearly mute on the matter after German journalists reported that the NSA surveillance of Germans was being conducted with full cooperation of the German government. High-level NSA officials and their German counterparts have been working together closely, including holding frequent joint meetings at their headquarters in both countries. Germany, in the midst of expanding its own domestic surveillance operations, has been relying on assistance from the NSA. So strong was German outrage that before it was known that intelligence collaboration took place at the highest levels of the two governments, some called for a criminal inquiry of any German complicit in the NSA efforts.
All of this—learning about the NSA spying in Germany and about Germany’s collaboration with the NSA—was a source of anger and deep disappointment for many Germans. Their reaction is shaped by several factors, including the importance many of them have placed on their country’s very close post–World War II relationship with the United States and also by their deep-seated antipathy for government surveillance of citizens.
Germans have absorbed profound lessons from their recent history. Their intimate experience with living under two totalitarian systems—the Nazi regime and the communist government of the former East Germany—means, wrote one German commentator, “that the consequences of state monitoring are still in living memory.” Many Germans retain strong memories of the monstrous secret police, the much-hated Stasi, who, along with their army of informers, penetrated every aspect of East Germans’ lives. As a result of knowing from their experience that government surveillance of citizens can breed government control of citizens, Germans are nearly as possessed by the idea that massive government surveillance must never happen again as they are by their commitment that a Holocaust must never happen again. Furthermore, they see a relationship between these two catastrophes in their tragic past—that some people become what they may not want to become but, rather, what they think their government wants them to become, when they live in fear that their leaders know everything about them.
AS NSA FILES KEPT EMERGING, intelligence officials eventually admitted that collecting massive private information from Americans’ communications has led to minimal benefit regarding the discovery of terrorists’ plans. Successive reports also have made it clear that the NSA, nevertheless, has made extraordinary efforts to drill deeper and deeper to gather the communications of Americans and citizens in other countries through both legal and extralegal means and by defeating the encryption methods people have been told guarantee the privacy of their records and personal communications.
One NSA document revealed the agency scoops up millions of personal digital address books. According to NSA files reported by the Washington Post, the NSA collects address books at a daily rate of 444,743 from Yahoo, 105,068 from Hotmail, 82,857 from Facebook, 33,697 from Gmail and 22,881 from unnamed other providers. Every day NSA collects approximately 500,000 “buddy lists” on live-chat services and from web-based email accounts. Intelligence officials confirmed that the NSA collects lists from personal address books and other personal digital lists of “millions or ten of millions” of Americans. Because this collection takes place in undersea lines and not on American soil, the NSA has concluded it does not need to seek legal authorization from the special court that must authorize surveillance of Americans by the NSA.
The agency has gone to great lengths, along with its British counterpart, the GCHQ, to ensure that it has access to personal communications throughout the world, even to those digitized records that Internet companies and companies that conduct business on the Internet guarantee are protected by encryption and, therefore, are secure—bank transactions, purchases, and medical records. These revelations about the NSA defeating encryption were made by three news organizations, the Guardian, The New York Times, and ProPublica, the news website, all of which had access to the same NSA files released by Snowden.
NSA’s successful attack on encryption is the result of a ten-year campaign by the NSA and GCHQ to defeat all encryption methods. The attitude of the two intelligence agencies toward their citizens is evident in the name each agency gave its decryption program. They named them after major civil war battles in their respective countries—Bullrun at NSA and Edgehill at GCHQ. Contempt also is evident in how the NSA referred in a file to the customers whose systems it violates as a result of defeating encryption: “adversaries.”
From the files, it is unclear the degree to which communication companies cooperate with the NSA on opening access to information users have been told would be inaccessible. But given the methods the NSA has used to obtain access, the cooperation of the companies, or even whether any given company knows NSA has access, may be a moot point.
NSA has used covert means within the communication industry to open gates to citize
ns’ encrypted personal data. Through “covert partnerships,” the American and British agencies inserted secret vulnerabilities, known as backdoors or trapdoors, into commercial encryption software. NSA also has used supercomputers to break encryption with what the agency calls “brute force.” A key approach to destroying encryption has been the use of covert action “to ensure NSA control over setting of international encryption standards.” An NSA file revealed that the agency works covertly “to get its own version of a draft security standard issued by the U.S. National Institute of Standards and Technology approved for worldwide use. An NSA file trumpets the fact that “eventually, NSA became the sole editor” of international encryption standards. Agency success in damaging, if not destroying, encryption also has been aided, according to one NSA file by “identifying, recruiting and running covert agents in the global telecommunications industry.” In one NSA file, the agency celebrated its success at “defeating network security and privacy.”
By these actions, some security experts say, the NSA is attacking the Internet itself and the privacy of all users. Bruce Schneider, an encryption specialist and fellow at Harvard’s Berkman Center for Internet and Society, told the Post, “By deliberately undermining online security in a short-sighted effort to eavesdrop, the NSA is undermining the very fabric of the Internet.”
THAT FIRST FILE from the Media FBI office that captured public attention in 1971, a directive to agents who spied on antiwar activists, stated that they should “enhance the paranoia … get the point across there is an FBI agent behind every mailbox.” Paranoia—or the reality it portends—exists today throughout the world. It has been enhanced primarily by two fears—fear that there will be more terrorist attacks, and fear of governments’ use of increasingly invasive electronic surveillance of their own citizens and the citizens of allied countries. Now people anywhere may wonder if there is intelligence-gathering equipment behind every email, every phone call, every Skype conversation, every Facebook message, every chat room conversation, every Internet search, every stored document—looking at or listening to every form of personal communication accessible through modern technology.
28
Questions
J. EDGAR HOOVER BECAME director of the FBI the same way he continued being director of the bureau for forty-eight years—by not being asked questions.
Questions were not asked before he was appointed despite the fact that danger signs already were present. There was evidence then that he was willing to use government power to trample rights and damage people. There was evidence of his use of deception to build and maintain his power. There were signs he already was building the other FBI—the secret FBI the Media burglars exposed for the first time almost fifty years later.
When Harlan Fiske Stone, the eminent former dean of Columbia University Law School and future chief justice of the U.S. Supreme Court, appointed J. Edgar Hoover director of the Bureau of Investigation in 1924, he guaranteed that the bureau was likely to become precisely the opposite of what he, the new attorney general, thought it should be.
It was surprising that Stone chose Hoover. His appointment as head of the bureau, which had been founded in 1908 and would be renamed the Federal Bureau of Investigation in 1935, seemed to counter what the new president, Calvin Coolidge, had asked Stone to do when he appointed him attorney general in April 1924: clean out the corrupt and disgraceful Department of Justice and Bureau of Investigation and restore honor to both.
Stone had publicly stated during a Senate investigation in 1920 that the Palmer Raids—mass arrests in 1919 of 10,000 people that are still regarded as one of the worst violations of civil liberties in the nation’s history—were an “intolerable injustice” that resulted in “cruelty to individuals.” Hoover, the man Stone selected to run the bureau, had, as head of the Justice Department’s Radical Division, planned the raids, named for the attorney general who authorized them, A. Mitchell Palmer. Hoover also was deeply involved in their ugly aftermath—the cruel prison conditions, the denial of due process, and the push for detainees to be deported.
The raids—lauded at first but soon regarded as a national shame—involved mass roundups of people by the bureau and local police in several cities without search warrants. People were pulled out of their beds as they slept, grabbed in dance halls and meeting places, and thrown into prisons, where they were kept in filthy conditions, denied lawyers or access to family members, and in some cities tortured. Intended by Hoover as a way to rid the country of thousands of immigrants he regarded as radicals, the raids did not fulfill his purpose. Most of the people swept up were citizens and therefore not subject to being deported. In the end, 556 were deported. When Palmer was questioned two years later at a Senate hearing on the raids, at one point the disgraced attorney general, unable to answer a particular question, deferred “to Mr. Hoover, who was in charge in this matter.”
How was it possible that Stone, one of the most respected legal minds in the country and appointed attorney general with a mandate to reform the corrupt Department of Justice and its Bureau of Investigation, would choose as FBI director a man who planned and executed this mass raid that was a major source of the department’s shame he was appointed to clean up?
Given what Stone either knew or could have known if he had asked questions, it is difficult to understand why Stone decided Hoover was the right person to lead the nation’s top law enforcement agency, a position in which he would have enormous power either to protect or damage citizens’ right to dissent, a right that Stone cherished and thought the government should zealously protect. Even more difficult to answer is the question of why Stone apparently did not ask basic questions about J. Edgar Hoover before he named him, on May 10, 1924, to be the acting director of the bureau and then, in December 1924, director.
This decision by Stone, which was, as he said, the most important decision he made while he was attorney general, had many far-reaching historic impacts on the nation. He placed Hoover in a position where, unquestioned, he could carry out secret programs that were—and were intended by him to be—a threat to countless Americans’ efforts to express dissent. Stone, surely unintentionally, set young Hoover on the path that produced a deep scar on the country’s civil liberties for more than half a century, a scar still visible. The scar was etched over years in secrecy in the middle of a national myth in which Americans embraced Hoover as a hero—millions of little boys wore G-man badges they retrieved from cereal boxes, dreaming of becoming FBI agents as much as they dreamed of becoming cowboys, while the secret FBI engaged in serial violations of civil liberties and worse.
The nature of much of Hoover’s behavior during his early years as director remained largely unknown for years, with only his version of those years available. Even the Church Committee, despite the depth of its research and scrutiny of the director and the bureau, did not discover in the mid-1970s much information about Hoover’s earliest years as director. In fact, until the 1980s it was assumed that Hoover conducted little or no political spying during the first twelve years he was director and that such activities did not begin until the administration of Franklin Delano Roosevelt, in the years leading up to World War II. The truth about Hoover’s earliest years as director did not emerge until a decade after the Church Committee completed its work when scholars Athan Theoharis, Kenneth O’Reilly, and David Williams, through Freedom of Information Act requests, gained access to extensive files about that era in the bureau. It was learned then that the roots of the behavior revealed by the Media burglars and by the Church Committee were planted in those early years. For instance, Hoover did not dismantle the political surveillance operations he had put in place under Palmer, despite orders from Stone to do so. The impulse to build secret files on perceived enemies was always there, and nothing—not even an order from Stone, the man he warmly recalled as his mentor when Stone died in 1946—prevented him from indulging that obsession.
Ironically, Hoover was appointed director during, and as
part of, the first major effort to bring major reform to the bureau. The second such effort, much more extensive in its investigation, recommendations, and impact, was the Church Committee. Also ironically, the Church Committee investigation was needed mostly because of the most significant failure of the first reform effort—the appointment of Hoover as bureau director.
SURELY HOOVER HIMSELF was surprised that Stone appointed him, though he indicated otherwise years later. Hoover certainly knew Stone’s thinking about the Palmer Raids and their impact. He was in the Senate hearing room on February 1, 1920, the day a committee staff member read the letter Stone had written in response to a request for his assessment of the raids. Stone had strongly condemned key injustices that had taken place during the Palmer Raids:
It was inevitable that any system which confers upon administrative officers power to restrain the liberty of individuals without safeguards substantially like those which exist in criminal cases, and without adequate authority for judicial review of the actions of such administrative officers will result in abuse of power and in intolerable injustice and cruelty to individuals.
Hearing those words, Hoover certainly knew he was one of those unnamed administrative officers who had planned and carried out the actions Stone declared intolerable.
There has been speculation, but never definitive information, about why Stone chose Hoover—about what he knew and did not know about Hoover’s prior roles and about his ideas regarding the fundamentals of law enforcement practices and intelligence operations. New Yorker writer Jack Alexander wrote in 1937 that “unable to find a man who filled the bill to his liking, Stone resolved to look for a promising young man who could be trained along the line of his pet theories.” In other words, if young Hoover had followed Palmer’s bad orders, he could be expected to follow Stone’s good ones. This analysis suggests that Hoover’s main qualification was that he could follow orders. Later, it was clear that, instead, he was someone who, in relation to his superiors, calculated how to appear to be following orders.
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