Tales From The National Surveillance State: Domestic Surveillance by the Pentagon and the CIA

JB

The practice of national security letters by the Pentagon and the CIA is not new but the amount and scope has greatly accelerated under the Bush Administration; former Defense Secretary Donald Rumsfeld sought to greatly expand the military's intelligence gathering powers following the 9/11 attacks and therefore pushed for aggressive readings of existing law to enable the military to investigate more and more domestic activities, even though both the military and the CIA are generally banned from domestic surveillance.

The temptation for the Pentagon and the CIA to push the envelope on domestic surveillance is entirely understandable, even if it is legally dubious and creates enormous dangers for civil liberties. The National Surveillance State arises because of the changing demands of and possibilities for governance in an age that features both increased possibilities of terrorism moving across national borders and more powerful methods of electronic surveillance. Although by law the CIA and the Pentagon are supposed to deal only with "outside" threats to the country, it is increasingly difficult to decide what is "inside" and what is "outside" the United States, and what is a question of domestic law enforcement and what is a question of military defense.

As I have explained previously, the National Surveillance State tends to produce a second, parallel track that routes around the traditional criminal justice system with its checks and balances that are designed to limit executive overreach and arbitrariness. In this parallel track of investigation, apprehension, detention, and punishment, the Bill of Rights does not apply. Indeed, precisely for this reason the temptation to use and to augment this parallel track becomes irresistible for government servants; their primary mission is to protect the country from harm, and predictably, they seek to eliminate any unnecessary impediments to fulfilling their mission.

Thus, over time, the military and the CIA, faced with an increasing urgency to deal with developing threats that cross national boundaries, will push the envelope on their existing powers, expanding what were previously marginal practices, using them more extensively, and making them far more common. As they expand the parallel track, they recreate the very dangers to personal freedom that led to the checks and balances characteristic of the primary track of traditional law enforcement.

Indeed, not only is there pressure to expand the parallel track, there is pressure to "reform" the traditional track-- with its multiple checks on executive overreaching-- to allow it to harness the information obtainable in the parallel track. Thus, at the same time the CIA and the Pentagon have been breaching the boundary between foreign and domestic surveillance, the Federal government-- through the Patriot Act and other changes in practice-- has beefed up the use of national security letters (which do not require prior judicial review) and expanded the scope of executive surveillance over persons in the United States (the NSA domestic surveillance program being one obvious example). Moreover, the government has argued that the fruits of this surveillance, like the fruits of any other legal surveillance, should be admissible in the ordinary criminal justice system.

We should not assume that a change of administrations will cure these tendencies; they are the result of larger forces and systemic pressures. Our task is to find new ways to guard against the guardians of our security in the electronic age.