How security interests can have adverse consequences for society

In this blog entry, Athan Theoharis, author of Abuse of Power: How Cold War Surveillance and Secrecy Policy Shaped the Response to 9/11,   provides another example of how investigations can violate privacy rights.

On March 27, 2011, the New York Times published reporter Charlie Savage’s review of FBI records released in response to his Freedom of Information Act request. Savage had requested the records of FBI investigations conducted between December 2008 and March 2009 under guidelines issued by Attorney General Michael Mukasey in September 2008. The released records confirmed that FBI agents had initiated 11,667 “assessment” investigations during this four month period of which only 447 resulted in more intensive “predicated” investigations. That such investigations were apparently indiscriminate and uncovered no criminal or national security threats is not surprising since under the Mukasey guidelines FBI agents were directed to “prevent” or “protect” against crimes and national security threats and accordingly could initiate investigations “beyond federal crimes” or that “may concern lawful activities” subject to the supervision solely of the heads of FBI field offices without any oversight by FBI headquarters or the Justice Department.

These stark statistics, however, fail to capture the potential consequences of such investigations beyond their apparent violation of privacy rights. Indeed, because Savage did not obtain the records created through these investigations, he could not address three more serious questions: what criteria triggered such investigations as reflected in their overall pattern; were legitimate security interests advanced; and how was the acquired information used–given the Mukasey guideline’s additional requirement that “compromising information concerning domestic officials or political organizations or information concerning U.S. persons intended to affect the political process in the United States” was to be disseminated to the White House.

Lacking access to the records of the investigations conducted under the Mukasey guidelines, we can better understand their potential for abuse by evaluating released FBI records relating to earlier FBI intelligence investigations (that is as well not based on the standard of a probable cause to violate a federal law) conducted during the years 1936-1976 that relied on what FBI officials privately conceded were “sources illegal in nature” (wiretaps, bugs, break-ins, mail opening). FBI intelligence investigations had been authorized under a secret directive of President Franklin Roosevelt of August 1936 ostensibly to anticipate and prevent espionage or sabotage. Congress first uncovered the abuses of such investigations in 1975 with Attorney General Edward Levi in response issuing new “domestic security” guidelines in March 1976 to preclude future abuses. Levi’s restrictions, however, were subsequently rescinded under more permissive guidelines issued by Attorneys General William French Smith (in 1983), John Ashcroft (in 2002) and Mukasey (in 2008).

Accessible (but admittedly not comprehensive) FBI records relating to the FBI’s World War II and Cold War intelligence investigations confirm that the FBI’s expanded investigative authority neither anticipated nor prevented Soviet espionage operations-which in rare occasions were uncovered after the fact due more to good luck than FBI discovery. These records further reveal that FBI investigations had not been confined to radical activists (potential recruits as spies or saboteurs owing to their “subversive” proclivities) but extended to collecting derogatory personal and political information on prominent Americans (First Lady Eleanor Roosevelt; Democratic presidential nominees Adlai Stevenson, John Kennedy, George McGovern; Republican President Dwight Eisenhower; Republican Senator Henry Cabot Lodge; civil rights leader Martin Luther King; feminists Gloria Steinem and Bella Abzug), reporters and columnists (Drew Pearson, Joseph Alsop, Harrison Salisbury, Hanson Baldwin, I. F. Stone, William Beecher), attorneys (Thomas Corcoran, Bartley Crum, Martin Popper), writers (Ernest Hemingway, Norman Mailer, Max Lowenthal–the author of a critical history of the FBI, Walter and Miriam Schneir–co-authors of a critical history of the Rosenberg case), Hollywood personalities (Dalton Trumbo, Edward G. Robinson, Frederick March, Rock Hudson)–and even conducted a “content analysis” of the comic strip “Pogo.”

The acquired information, while of no value in advancing legitimate law enforcement or counter-espionage interests, moreover, did not molder in FBI files but instead was often exploited to advance a political agenda. FBI officials, for one, willingly served as the political intelligence arm of the White House providing presidents (from Franklin Roosevelt through Richard Nixon) with helpful information that promoted their policy, at times even partisan interests. FBI officials, in addition, sought both to contain those individuals and organizations which they deemed “subversive” and to influence public opinion by leaking information to members of Congress (Richard Nixon, Karl Mundt, Joseph McCarthy, Pat Mc Carran), congressional committees (House Committee on Un-American Activities, Senate Subcommittee on Internal Security), and sympathetic reporters (Don Whitehead, Courtney Ryley Cooper, Walter Trohan, Frederick Woltman) on the strict condition that the recipient would not disclose the FBI’s assistance.

This earlier history suggests that non-criminal investigations do not necessarily advance legitimate security interests but can have adverse consequences for a society based on the rule of law and accountability. The mindless obsession over security of the post 9/11 era threatens to repeat the very practices of the Cold War era that precipitated outrage and condemnation when first exposed during the mid-1970s.