History of Privacy in the US (Part 3)
Investigative journalists, whisteblowers, and attorneys have kept surveillance programs in check.
The people that balance electronic surveillance abuse are not technical leaders of innovation. In fact technical leaders of innovation often cooperate with governments in conducting surveillance abuse in the first place.
In this newsletter I will document how several digital surveillance abuse programs in the US were eventually kept in check by people that worked with the press and judicial system. The United States Fourth Amendment was designed to allow the judicial system to keep searches in check. The US First Amendment (freedom of speech) aids in that regard by protecting the rights of the press to speak out even against US Federal Government mistreatment of others.
The case studies in this newsletter will demonstrate the press and the judicial system were the true agents in protecting our digital privacy.
FBI: COINTELPRO
The following is the tale of J. Edgar Hoover’s downfall as the first FBI Directory after a 50-year reign. This tale was told brilliantly by Tim Weiner in his book Enemies: A History of the FBI.
J. Edgar Hoover’s downfall as FBI Director was his own undoing. By 1970 he was infamous even in the White House for his ruthless tactics to stay in power as director. If you read my past articles you will know why: he even blackmailed people in the White House. US President Richard Nixon began forcing J. Edgar Hoover from power. Although no one explicitly said this the Nixon Administration probably tasked the group of thieves that called themselves The Citizens’ Commission to Investigate the FBI to steal secret documents from FBI headquarters on March 8, 1971. Remember Nixon was later convicted in the WaterGate Scandal.
The Citizens’ Commission to Investigate the FBI delivered copies of the stolen files to Congress and the press. To destroy Hoover’s reputation the Nixon Administration wanted the world to know the FBI wiretapped the private conversations of several important figures in the twentieth century: from the Ku Klux Klan to Martin Luther King Jr—and they wanted the world to know J. Edgar Hoover was behind it all. The press eventually gave the scandal the name COINTELPRO after deciphering its contents.
Now that the whole world knew of Hoover’s reign of surveillance Hoover found himself struck against an onslaught of political attacks and hatred towards his abuse of power—Hoover felt his life’s work being destroyed and an increased sense of loneliness. After Hoover’s last conversation with President Nixon on April 6, 1972, the President to help remove Hoover from office. The press’s reports on COINTELPRO took down Hoover from his throne at last. In a past post I said Hoover mostly went unchallenged. That part is definitely true but Solove in his book “Nothing to Hide” did not make clear that the Nixon Administration secretly plotted to oust J. Edgar Hoover behind his back in his last two years as FBI Director.
Unfortunately there were two others major cases of surveillance abuse that took place during the exact same time as the abuses of COINTELPRO. One of them was captured by the Pentagon Papers.
The Pentagon Papers
Aside from the COINTELPRO papers that were stolen from the FBI office was another scandal. The Pentagon Papers documented how US Presidents misled the public about the degree of US involvement in the Vietnam War. Presidents including Harry S Truman, Dwight D. Eisenhower, John F. Kennedy, and Lyndon B. Johnson all distorted information about the degree of US involvement in the Vietnam War.
The New York Times sued the US Government for the right to publish information on The Pentagon Papers. This was done in a famous trial named New York Times Co. vs United States. On June 30, 1971, US Supreme Court ruled that the press had the right to publish The Pentagon Papers as this right was guaranteed in the US First Amendment. At first the Nixon Administration, whom knew the Pentagon Papers would hurt the President’s reputation, began trying to get rid of anyone that would hurt their reputation.
Both the FBI and Nixon Administration targeted Daniel Ellsberg. Ellsberg was the main White House staff that secretly leaked information about the Pentagon Papers initially to Congress. Even only two weeks after The New York Times released The Pentagon Papers the FBI suspected Ellsberg was the main reason the world now knew. Now that The Pentagon Papers were gaining traction in the press both the FBI and Nixon Administration tried to throw Ellsberg in prison to forever discredit him. They both failed.
The FBI tried to throw Ellsberg in prison by charging him with violating the The Espionage Act of 1917. This Act was passed to punish people that leaked confidential information. However the FBI’s attempts to throw Ellsberg in prison failed when US Supreme Court, and the rest of the world, learned about The WaterGate Scandal
The WaterGate Scandal
The WaterGate Scandal was the most heinous scandal of presidential misconduct in US History. It began with US President Nixon’s paranoia that The Pentagon Papers would destroy his chances of re-election. Instead, Nixon was his own undoing.
President Nixon was so paranoid of is his public image he made up his mind to find anything that can ruin Ellsberg. So he sent people to steal documents from Ellsberg’s office that would hurt Ellsberg’s image. This failed. Nixon continued to wiretap his opponents. Nixon was paranoid the Democratic Party were plotting to badmouth Nixon in public in the upcoming 1972 Presidential election. So he sent people to wiretap the Democratic Party appartus. This time Nixon and his cronies were caught.
During the weekend after June 17, 1972, police arrested five suspects inside the Democractic National Committee in the WaterGate complex. The culprits were former FBI and CIA agents working for the suspiciously named organization CREEP. No really. That’s what it was called.
On June 19, 1972, the very Monday after the WaterGate break-in, US Supreme Court justices unanimously outlawed the warrantless wiretapping of American citizens. Nixon, now forced to stand trial, had his lawyers say the President had the right to wiretap at will. Instead, even a federal appeals court, including newly appointed Justice Lewis Powell by Nixon himself, ruled even the US President had to obey the Fourth Amendment.
The case study of the WaterGate Scandal illustrates an important agent in defending Americans and the rest of the world from surveillance abuse: The US Supreme Court. Never in US History did Supreme Court permit the warrantless wiretapping of US citizens without a specific search warrant. Only foreign spies such as spies from Soviet Russia. This violated the principle that only specific search warrants under probable cause—never general warrantless searches—were allowed. Yet in defiance US Presidents, attorneys, and the FBI all conducted general warrantless surveillance. Presiden Nixon became the only US President to resign after being impeached.
The COINTEL PRO Aftermath
The WaterGate Scandal revealed the FBI had ties with Nixon’s warrantless surveillance. The Socialist Workers Party was the most important organization that was suspicious. Hundreds of FBI Agents pretended to be loyal followers of this party. Once the Socialist Workers Party realized this they sued the FBI in Socialist Workers Party v. Attorney General of the United States. By December 7, 1973, the FBI was forced to release all of its documents on its illicit activities. FBI leaders tried in vain to apologize to the public. But by 1976 the reputational damage was permanent.
In the words of FBI leader Bill Dyson:
“…nobody will support me…The Bureau won’t support me. The Justice Department won’t support me. The citizens won’t support me.” — Bill Dyson, leader of FBI’s FALN program.
The press and the US Judicial Branch have done its job keeping government surveillance in check.
Up Next: NSA Surveillance from Bamford to Snowden
In the next article I will demonstrate how the press and judicial system worked together to keep NSA Surveillance in check.