Despite an idealistic vision of the country's devotion to the Constitution and its Bill of Rights amendments, it may come as a shock to any American who has not been paying attention that the US government has been conducting illegal unconstitutional surveillance on its citizens for much of the last hundred years.
In what may have been the country's earliest coordinated effort at unconstitutional snooping, a government agency ominously named Black Chamber was in cahoots with Western Union after WWI to retrieve copies of telegrams in violation of the Radio Communications Act of 1912 and the Fourth Amendment.
Once publicly revealed, the operation was shut down only to resurface in 1945 when the Army Signals Security Agency, predecessor to the NSA (National Security Agency) began Operation Shamrock with the interception of millions of international communications from a 'watch list' of Americans.
Assured by government promises of legal immunity, RCA, Western Union and ITT Communications had agreed to provide confidential information to the government's Military Intelligence Division despite a violation of the Communication Act of 1934 and the Fourth Amendment.
James Bamford's well-researched The Shadow Factory -- The Ultra-Secret NSA from 9/11 to the Eavesdropping on America describes the details of how Shamrock's existence was revealed in 1975 and that Rep. Bella Abzug (D-NY), known for her colorful chapeaux and equally colorful personality, opened an investigation as Chair of the House Government Information and Individual Rights subcommittee.
With a bee in her bonnet, subcommittee hearings were scheduled. Bamford goes on to chronicle the rest of the story on Shamrock, claiming that with White House Chief of Staff Donald Rumsfeld and Attorney General Edward Levi's encouragement, President Gerald Ford was willing to play hardball to protect the government's role in spying on Americans. After a series of high level bureaucrats including a personal visit by the Attorney General, failed to convince Abzug to cancel the hearings in the name of 'national security,' the three telecom companies, with encouragement from the White House, refused to testify. Upping the stakes, according to Bamford, both Levi and NSA Director Lew Allen also refused to testify.
By the time Abzug's subcommittee issued subpoenas to the absent CEOs, Rumsfeld had become Secretary of Defense and was replaced by Dick Cheney as WH Chief of Staff. Bamford goes on to examine the role of both Rumsfeld and Cheney as believers in vigorous executive privilege as they urged Ford to resist the subcommittee's requests while advising the CEOs to not comply with the subpoenas. In addition, Bamford states that "for the first time in American history, the concept of executive privilege was extended to a private corporation," as if private corporations had the same Constitutional rights as a president.
As the wheels of justice moved in reverse, a little known Assistant Attorney General in the Office of Legal Counsel at the Justice Department came to Rumsfeld and Cheney's attention for his confrontational style as he prepared incisive legal arguments in favor of continued warrantless surveillance and granting unrestricted rights to the Executive Branch. By 1986, Antonin "Nino" Scalia would be appointed to the Supreme Court on a 98-0 vote.
Never a shrinking violet or intimidated by authority, Abzug, a graduate of Columbia University Law School who represented victims of the McCarthy era in the 1950's, was fully aware of the Constitutional precedents at risk. Knowing that Ford Administration appointees would hide behind official 'classified' lingo promising to reveal all in a closed door session, Abzug understood the necessity of pushing back in the interests of public disclosure.
Once the subcommittee voted to issue contempt citations for its recalcitrant witnesses, the three CEOs testified as to their involvement with Shamrock and turned over lists of names, as the Ford Administration capitulated.
That same year, Sen. Frank Church's (D-Id) Senate Committee on Government Operations conducted historic hearings that revealed illegal intelligence gathering on American citizens by the CIA and FBI.
In response to the government's covert role revealed by both investigations. Congress adopted the Foreign Intelligence Surveillance Act (FISA) signed by Ford's successor, Jimmy Carter, in 1978. The Act, which did not apply to US citizens, provided much needed Judicial and Congressional oversight of the government's surveillance activities of foreign agents in the United States and created a Foreign Intelligence Surveillance Court (FISC).
Appointed by the Chief Justice and staffed by eleven judges to serve seven year terms, the Attorney General provides the Court with evidence to approve surveillance and the Court provides compliance reports to Congressional intelligence committees. From 1980 through 2006, the Court approved a total of 22, 985 surveillance warrants out of 22,990 requests. Since 1978, the Act appeared to function as expected until the Bush Administration launched an unprecedented assault on the civil liberties of American citizens with warrantless surveillance.
Bamford and others have described in detail how the Administration's wiretap program caught the attention of Assistant Attorney General Jack Goldsmith in 2004 when the obvious became apparent -- that the Bush warrantless surveillance program was illegal and unconstitutional. Goldsmith prepared a memo outlining his concerns as Deputy AG Jim Comey, the second highest law enforcement officer in the country, agreed that the program could no longer be certified by the Department of Justice. Sharing their conclusion with Attorney General John Ashcroft, it was decided to allow the program to terminate the next day.
What happened next was more dramatic than any West Wing script ever anticipated, when Ashcroft suddenly doubled over in pain. Rushed to George Washington Hospital, Ashcroft had major surgery for gallstone pancreatitis which left the AG in a seriously debilitated condition.
From there the story becomes more bizarre. Bamford describes how Comey, now acting in Ashcroft's absence, informed the White House that the Department would not re-authorize NSA's surveillance program. Faced with the potential of a shutdown at NSA as the deadline approached or the potential of criminal charges and seeing Comey as a 'loose cannon,' White House Chief of Staff Andrew Card and WH Counsel Alberto Gonzales made a frantic bee-line to the hospital.
As Comey headed home that evening, he received an urgent call from Mrs. Ashcroft that two visitors were on their way. Comey immediately called FBI Director Robert Mueller to meet him at the hospital and with red lights flashing and sirens wailing, Comey's FBI driver put the peddle to the metal. Running up the stairs and arriving in Ashcroft's room just ahead of the White House aides, Mueller ordered Comey's FBI security detail to not allow him to be removed from Ashcroft's room.
Upon Gonzales and Card's arrival, Ashcroft, still in a weakened condition, refused to sign the necessary document to continue the program.
According to Bamford, soon after, Comey received an irate call from Card demanding that he come immediately to the White House. Comey replied that he would only meet with Card if a witness was present. Accompanied by Solicitor General Ted Olson, Comey arrived at the White House at almost midnight and reiterated the Department's position that the NSA program was outside the law as he continued to refuse to authorize its existence.
The next day the President of the United States used his executive authority to reauthorize the warrantless surveillance program over his Attorney General's objections. As a result, Attorney General Ashcroft, both Comey and Goldsmith along with a handful of other Department of Justice attorneys and FBI Director Mueller all prepared their letters of resignation. After a one on one meeting with both Comey and Mueller, realizing the potential for an en masse resignation of the country's top law enforcement officials, Bush agreed to scrap the most egregious elements of NSA's illegal 'data mining.'
Beginning with adoption of the Patriot Act in 2001 (98-1) the floodgates opened for covert government surveillance not only for the NSA, FBI, CIA and Homeland Security but for hundreds of municipal and state governments, a green light to infiltrate and spy on millions of American citizens. All it took was a frightened bi-partisan majority to open the legislative doors to allow a steady erosion of Fourth Amendment protections against 'unreasonable search and seizure' and 'probable cause' requirements while fragmenting FISA's original intent of limited surveillance and required judicial and Congressional oversight.
For all of its good intentions in 1978, FISA has since been thrust into dangerous, uncharted territory morphing into a vehicle of unintended consequences, subject to a series of amendments in 2008 that further eviscerated the Fourth Amendment.
As already well-documented by Glenn Greenwald and the ACLU, the Obama administration has accelerated the erosion of due process and Constitutional protections beyond the Bush era even as candidate Obama promised that "with the firm intention -- once I'm in as president -- to have my attorney general conduct a comprehensive review of all our surveillance programs, and to make further recommendations on any steps needed to preserve civil liberties and to prevent executive branch abuse in the future."
Just as the Operation Shamrock experience instilled a lifelong passion in Cheney for omnipotent executive privilege, Jack Goldsmith resigned from the Department of Justice in 2004 with Jim Comey and John Ashcroft resigning soon after George Bush's inauguration in 2005. Robert Mueller remains FBI Director.
As the Act is due for reauthorization by December 31st it can be expected that legislative action will occur in the shadows of a lame duck session after the elections when what remains of the Act's original intent will be at its most vulnerable.
As the actions of fearless Members of Congress like Abzug and Church whose first priority was to truth and public servants like Jim Comey and Robert Mueller who stood, face to face, against a sitting President, is it too much to hope that somewhere there is a government official or two who might dig deep to find the courage and integrity to speak out, loud, clear and insistent, while there is still something of democracy worth saving?