Reprinted with permission from the THE NEBRASKA LAWYER from the 13 November/December 2014 edition.
By G . Michael Fenner
Is Edward Snowden a hero or a traitor? Let me work my way up to an answer to that question.
I. A Brief History of the U.S. Surveillance of Domestic Communications
I will start with an oversimplified history of American surveillance of domestic communications: not surveillance of communications taking place outside the U.S. As someone once said, “Outside the United States, the CIA prowls the
alleys without a leash.”2 If your data leaves the country—even if only routed through an outside server—our intelligence community can access it at will. We learned not so long ago that the CIA got ahold of Mayer, Brown & Platt attorney-client privileged documents because the client was outside the U.S. and the documents were
captured outside the U.S.
CIVIL WAR: Domestic surveillance by the Federal Government was first used on a significant scale under President Lincoln during the Civil War. But, of course, this
was surveillance of an enemy that was operating domestically. WWI: During WWI a Military Intelligence Division (MID) was created within the Army. Its charge included locating German spies and saboteurs. It didn’t find many enemy agents, so it turned its attention to the investigation of Americans MID considered dangerous: real or suspected labor unionists, pacifists, socialists, Communists, and civil rights activists.
AFTER WWI: After the war, MID joined with the newly created FBI. They compiled dossiers on thousands of American citizens, conducted illegal raids, made illegal arrests, and subjected many citizens to interrogation. They helped local authorities crush labor strikes and suppress racial disturbances.
WWII: During World War II, domestic military surveillance expanded substantially. By then, military intelligence was called G-2. FDR gave G-2 responsibility for protecting defense plants, and it established a network of thousands of informants. G-2 reported on radical labor and political groups and what it called “semiradical” groups concerned with pacifism and civil liberties. Do you see a pattern here?
AFTER WWII: Shortly after WWII the federal government persuaded—and here’s where the surveillance begins to look a little bit modern. The federal government persuaded the three major American telegraph companies to hand over most of their traffic. That program continued until 1975 and collected the telegrams of 75,000 American citizens.3
THE 60’s: In the 60’s, under J. Edgar Hoover, the FBI devoted considerable resources to the secret surveillance of anti-war protestors, desegregationists, and Communists. At the same time, the CIA was heavily engaged in secret domestic surveillance. Much of Hoover’s surveillance was illegal. And all domestic surveillance by the CIA was directly contrary to federal statutory law. The causative events were, by and large, the civil rights movement and the protests against the war in Viet Nam.