The Rights of the People (6 page)

Martin Luther King, Jr., was under surveillance for many years. In the strangely twisted world of federal law enforcement, he was seen as a communist sympathizer, a subversive threat. King’s inspiring “I Have a Dream” address at the 1963 March on Washington may be ranked with the greatest oratory in American history, but the FBI’s Domestic Intelligence Division worriedly called it a “demagogic speech” that made King “the most dangerous and effective Negro leader in the country.”

The FBI campaign, termed a “war” by one official, was designed to “neutralize” King: “No holds were barred,” one bureau document declared. When hidden microphones in a hotel room caught King in a compromising situation, the FBI mailed him the tape with a note that he and his aides interpreted as suggesting that the recording would be made public unless he committed suicide.

In this mental framework, facts were not allowed to get in the way of a good investigation. Nonviolent peace and civil rights activists were seen as national security threats; the women’s liberation movement, Senator Adlai Stevenson, and the NAACP were categorized as dangerous enough to rate expensive surveillance. “The NAACP was investigated to determine whether it ‘had connections with’ the Communist Party,” the Church committee stated. “The investigation lasted for over twenty-five years, although nothing was found to rebut a report during the first year of the investigation that the NAACP had a ‘strong tendency’ to ‘steer clear of Communist activities.’ ”

The truth is, presidents of both parties liked seeing the information. Truman received intelligence on the inside negotiating positions of labor unions and on journalists’ upcoming articles. President Dwight D. Eisenhower got reports on “purely political and social contacts with foreign officials” by Eleanor Roosevelt and Supreme Court Justice William O. Douglas, among others. The administration of John F. Kennedy ordered FBI wiretaps on “a Congressional staff member, three executive officials, a lobbyist, and a Washington law firm.” His brother Attorney General Robert F. Kennedy saw the results of the King taps. President Lyndon B. Johnson got the FBI to provide intelligence on certain senators; do electronic surveillance at the 1964 Democratic Convention; and report on the
staff of his opponent in the presidential campaign, Senator Barry Goldwater.

Extensive wiretapping provided President Richard Nixon with considerable personal and political information “unrelated to national security,” according to the Church committee. At one point, the CIA asked to renew its mail-opening program, which it falsely told Nixon had been halted. Nixon said yes, then five days later reversed himself, but the program continued anyway. And then, during the 1972 presidential campaign, Nixon’s operatives broke into the Democratic National Committee offices at the Watergate office complex to plant bugs. His cover-up led to his downfall as he resigned to avoid impeachment.

Such cavalier disdain for both presidential authority and the rule of law typified intelligence gathering for many decades, as the official who headed the FBI’s intelligence division for ten years told the Church committee: “Never once did I hear anybody, including myself, raise the question: ‘Is this course of action which we have agreed upon lawful? Is it legal? Is it ethical or moral?’ We never gave any thought to this line of reasoning, because we were just naturally pragmatic.” Such pragmatism, the committee concluded, meant that intelligence officials proceeded as if governed by “a higher law,” their own interpretation of the interests of national security.

As in the wake of earlier deviations, the country came back. After the Church committee’s stunning report, Congress passed a series of privacy laws, including the Foreign Intelligence Surveillance Act (FISA), which imposed a modicum of judicial review on wiretapping, bugging, and other spying directed against agents of foreign powers inside the United States. An administrative wall was erected to prevent intelligence information, which was gathered under loose controls, from seeping into criminal investigations, where constitutional rights had to be observed. A clandestine court was established to hear secret applications for warrants—not an ideal way to check executive authority, but some oversight nonetheless.

Since September 11, 2001, even that inadequate process has been weakened and evaded while the United States has strayed seriously for the sixth time in its history. The American experience demonstrates how permeable the barriers of time can be in the ebb and flow of individual rights. The past is not walled off from the present; the virtues and the violations come forward.

International frontiers are also porous boundaries. They cannot seal American soil from contamination by lawless American behavior in the
outside world: Some of the toxic disrespect for rights in the “war on terror” has seeped into the domestic criminal justice process. Nor can our practices on civil liberties be defined as neatly as we might think by the lines dividing political parties or types of crime, Republicans from Democrats or terrorism from narcotics.

The neoconservative Republicans who dominated the administration of George W. Bush after September 11 strayed egregiously from constitutional principles essential to democracy, a detour made ironic by their evangelical passion for spreading democracy worldwide. Yet they got plenty of cooperation from Democrats, only one of whom in the Republican-led Senate—Russ Feingold of Wisconsin—opposed the 2001 Patriot Act, which undermined the protections enacted after the Church committee’s exposure of domestic spying. Even as a majority in both houses, Democrats in 2008 passed a measure legalizing much of the National Security Agency’s warrantless eavesdropping, for which Bush had been so vilified when it was exposed two years earlier. The new law got the vote of Barack Obama, then a senator in the midst of a heated presidential campaign.

Civil liberties had not been protected under the Democratic president Bill Clinton, who endorsed amendments that undermined various privacy laws, for example, by circumventing normal subpoena and warrant requirements. In 1994 he signed into law an expansion of the Foreign Intelligence Surveillance Act, with its secret courts and secret warrants, to allow not only clandestine electronic surveillance but physical searches as well. Two years later, he broadened the law to apply not just to foreign intelligence but “to international terrorism.” In 1995 he authorized “extraordinary renditions,” secret transfers, of suspected terrorists to Egypt after they were captured by the CIA in Croatia, Albania, and possibly elsewhere.
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He signed an immigration law in 1996 that expanded retroactively the list of relatively minor crimes for which noncitizens had to be deported, even if committed decades before. He put his pen to a 1996 antiterrorism act establishing Special Administrative Measures under which certain prisoners—not only terrorists—are so closely restricted that privileged attorney-client conversations are monitored by the government, legal documents are screened before going to defendants, and lawyers are barred from conveying their clients’ statements to third parties. Clinton thereby laid the groundwork for some of the abuses that followed 9/11.

In the period that Bush labeled “the war on terror,” America lived at a juncture formed by historical coincidence: a terrorist threat driven by religious militance, a right-wing administration bolstered by another brand
of religious militance, a Congress controlled by the administration’s party, and a national consensus dissolved by corrosive polarization. This permitted extra-constitutional policies, both secret and overt, both outside the country and within.

Obama’s election in 2008 shook the kaleidoscope sharply but did not discard all pieces of the troubling pattern. His administration released documents on torture but withheld photographs of abuse in Abu Ghraib prison, transferred some terrorism suspects to criminal courts but reserved the option of indefinite detention, and continued widespread monitoring of Americans’ communications. He sought legislation to force companies to give government the keys to their codes, in effect to facilitate surveillance by requiring that encrypted networking Web sites such as Skype and Facebook, and e-mail devices such as BlackBerry, be redesigned to empower the FBI and intelligence agencies to unscramble conversations and messages. His Justice Department invoked state secrecy (in one case using language identical to the Bush administration’s) to block lawsuits by those who had been spied on or subjected to “extraordinary rendition.”
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In fact, Obama continued the practice of capturing suspects overseas and spiriting them to other countries, and fought their efforts to gain access to federal courts. He rejected calls to investigate the torture and surveillance programs, an investigation that could have been as self-correcting as the Church committee’s work more than three decades before. Clearly, it would be a long way back from the country’s sixth major detour.

As no one can forget, the morning of September 11, 2001, had a deceptively beautiful beginning, heralding one of those crystal days between late summer and early autumn. The clarity of the air provided unlimited visibility, deadly visibility. In Boston, New York, and Washington, a total of nineteen men, some carrying box cutters, passed through airport security. They boarded four passenger jetliners fully loaded with fuel, and after takeoff seized control of the cockpits. Two planes were driven at high speed, one after another, into the two looming towers of the World Trade Center in lower Manhattan, bringing the symbols of financial might down in a whirlwind of fire and debris. A third rammed the Pentagon, carving a cavernous wound in the fortress of American military power. The fourth, recaptured by passengers who had learned by cell phone about the other attacks, plunged to earth in Pennsylvania before it could reach its supposed target of the Capitol or the White House.

The hijackers were quickly identified as Muslim followers of Osama bin Laden, the militant son of a wealthy Saudi family, whose al-Qaeda movement had been training jihadists in Afghanistan to strike at the promiscuous, crusading American empire, as he saw it. His success surely surpassed his plan. In the end, he did more than destroy buildings and kill nearly 3,000 people. He traumatized the nation and provoked Americans into damaging their own moral enterprise, at least for a time.

Government officials never show fear, but they feel it, as they often confess in later memoirs and interviews. Sometimes it’s for a good cause, as during Mikhail Gorbachev’s liberalization of the Soviet system. “Fear” was the word that one of his closest colleagues, Politburo member Aleksandr Yakovlev, used when I asked what he had been feeling at the time. I thought he might say pride or exhilaration, but no, he had feared the unknown consequences of their uncharted path. “I am surprised I am still alive,” Yakovlev declared. It got me wondering if Václav Havel felt fear as he brought Czechoslovakia out of communism, and if Nelson Mandela, beneath his inspirational assuredness, endured fear as he led South Africa from its bondage of apartheid. Perhaps if you’re not at least a little scared, if you do not go to the edge of your comfort zone and beyond, you are not doing anything worthwhile.

In other circumstances, though, fear in high places can infect values, as it did following September 11. With heavy responsibility for preventing further attacks, those in powerful offices moved rapidly into a wartime mentality, with all the world a battlefield. Vice President Dick Cheney was frequently secreted in “an undisclosed location,” probably Mount Weather, the underground command complex fifty miles west of Washington, to keep him apart from the president so the government could not be decapitated. Cofer Black, who headed the CIA’s Counterterrorist Center, was so convinced that more was coming, possibly with blackmarket nuclear weapons, that “he warned a colleague not to travel to New York for the weekend,” Jane Mayer reports in her book
The Dark Side
. “His wife told [a] friend that when Black came home, he would turn off the lights and just sit there in the dark with a glass of something to drink and a cigar, lost in apocalyptic gloom.”
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Systematically terrified early each morning with the scariest intelligence organized into the so-called Threat Matrix, President Bush and other top officials were “plunged into a state of controlled panic,” in Mayer’s words, especially after the attacks were followed by powdered anthrax mailed to a few victims. When you start every day seeing a list of dire threats to national security, it must be hard to keep your equilibrium.

The immediate targets of governmental reaction were Muslim residents of the United States, mostly those here illegally, but some legal immigrants as well. In the first seven weeks, at least 1,182 foreigners were seized on little more than hunches, rumors, and vindictive calls from estranged spouses or hostile neighbors. Their names were kept secret, and their families and lawyers had trouble finding them in scattered jails, where they were held with common criminals and abused by guards who presumed them guilty of terrorism, which none turned out to be.

Thereafter, immigration authorities gave priority to finding and deporting 6,000 Muslims among the 300,000 foreigners who had defied previous orders to leave the country. In addition, over the objection of James W. Ziglar, the commissioner of Immigration and Naturalization, the Justice Department commanded “nonimmigrant” male adult citizens of twenty-five predominantly Muslim countries to register with the immigration agency. Several thousand who dutifully appeared, but lacked legal immigration papers, were arrested before the program was dropped as ineffectual: No terrorists hastened to register.
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Then, during the 2004 presidential election campaign, sloppy intelligence from the CIA about “priority leads” to possible plots sent federal agents scurrying to interrogate more than 2,500 foreigners, 79 percent of whom were from Muslim countries. They were peppered with astute questions about their opinions of America, the mosques they attended, and whether they had chemical or biological weapons. Some were detained, those with expired visas were deported, but none was charged with national security offenses.
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