An insidious culture of surveillance

An insidious culture of surveillance

By Thomas Oliphant, Globe Columnist

12/20/05 "Boston Globe" -- -- IT ALWAYS STARTS SMALL, almost logically.

In a basically free society, abuses of civil and human rights often initially make sense, which appears to have been the case when President Bush took his baby steps toward a system of warrant-free, electronic surveillance of persons inside the United States -- some citizens, some not.

Over time, however, the inch that government first takes becomes a mile, and that also appears to have been the case, as senators and congressmen from both parties, who were too trusting initially, are beginning to understand. The one enduring lesson that conservatives used to teach effectively is that government that is not checked, balanced, and watched like a hawk can gradually become oppressive.

And now, it's happened again.

The latest abuse of civil rights and the Constitution began with the first round of captures of Al Qaeda operatives in Afghanistan and Pakistan in the weeks and months following the 9/11 attacks.

Some of these terrorists were caught in possession of their cellular telephones and laptop computers. Naturally, it occurred to the US agents involved to see where these cellphones and hard drives led -- a perfectly understandable notion.

And then, as night follows day, it all got out of hand, morphing into a system of snooping that can only be justified by authoritarian theories of executive supremacy, complete with legal justifications for a super-secret program that are themselves super-secret.

The clue that even the government recognizes it is doing wrong lies in the almost laughable inability of top officials to discuss all this without resort to the tortured euphemism that authoritarians always rely on.

President Bush's truculent response on Saturday to the surveillance program's belated unmasking by The New York Times -- which held up its story for a year for reasons that remain largely undisclosed -- included the claim that it was designed ''to intercept the international communications of people with known links to Al Qaeda and related terrorist organizations."

As always, the problem arises from the government's claim that it alone decides what a ''link" and ''related" mean; if thousands of people have had their ''communications" monitored, it follows that those links are decidedly tenuous, if not nonexistent.

On Sunday, the designated TV spokeswoman, Condoleezza Rice, invented ''seams", ostensibly exploited by terrorists, between foreign intelligence and domestic law enforcement capabilities out of whole cloth. In fact, the government has bugged thousands of people, and it remains to be seen just how careful the targeting actually was.

One powerful piece of evidence that it got out of hand is the fact that surveillance has been government-wide in the last few years. American groups involved in nothing more than traditional protest and activism have been infiltrated and followed, by the FBI red-flagged by military intelligence agencies. There is a culture of surveillance now, not a few carefully limited operations against severe and immediate threats.

To those who are continually surprised that government behaves in this manner, it helps to remember that we have been down this road before. It is not as if international terrorism is the only modern threat the US has had to confront. There used to be a country called the Soviet Union, armed with thousands of nuclear weapons and motivated by a particularly devious kind of expansionism. During Vietnam, the war was so controversial that at any given moment, a large chunk of the country was involved in trying to stop it -- legally. In both cases, these supposedly dire threats to national security gave birth to a large bureaucracy of oppression whose exposure during Watergate led to what we all thought were lasting reforms.

Even before Watergate exploded, there were two important Supreme Court decisions that appeared to define the limits of government power and (in the late 1970s) one important statute that appeared to close an obvious loophole.

In 1967, much closer to the dawn of the electronic age, the principle was established that evidence from wiretaps should be discarded from legal proceedings unless it was produced under the authority of a court-issued warrant based on a finding of probable cause that a crime had been committed.

Obviously, that didn't cover purely intelligence-related fruits from electronic snooping, so five years later a unanimous court ruled that the wiretapping of alleged domestic subversives without a warrant was unconstitutional.

That left an obvious loophole with regard to the agents of other countries, and Congress presumably filled it in 1978 by enacting the Foreign Intelligence Surveillance Act. This statute established a secret court here that had to approve government applications for surveillance, a court that quickly established procedures for very rapid approvals in emergency situations.

You would think that had established an understandable, fair and efficient mechanism, but here we go again with another government for whom any procedure, any check or balance, is too cumbersome. You wonder why Bush claims he needs the so-called Patriot Act at all.