Since our republic was created in 1776, the United States has worked to achieve a more perfect union and perfect our representative democracy. Here in the United States, our government is bound by certain fundamental truths, among these being the ideals espoused in the Declaration of Independence, the Constitution, and the Bill of Rights.
For much of our nation’s history, we have had difficulty reconciling the true meaning of our founding documents with the actions and laws of our government. The Civil Rights Movement in the 1960s is one example where, we the people, fell short in ensuring that the rights guaranteed by the Constitution applied to every individual in this country. This has been the case as well concerning the right to privacy for many Americans and this concern has not been a new one; it is one that is closely tied to the government’s inherent position that it should be accountable to the people. This is an organic precept in the formation of our democracy.
The role of government
The hastily called session by the Senate over the summer of 2015 to debate the merits of the USA Freedom Act is one small piece of a bigger issue and of a larger debate that has spanned decades in this country and crosses numerous influences. Among these are the intent of the Constitution and the Bill of Rights, the responsibility of government to protect the people, the role of Congress to monitor and provide oversight of the Executive Branch of government, and the role of the news media in government accountability; a role that is often overshadowed but a role that is well understood from a review of historic events.
The 1960s and ‘70s were very tumultuous decades in the United States. We witnessed changes on many fronts: political, cultural and social norms in the United States became drastically different from the domestic social structures we saw in the 1950s. The war in Vietnam, civil rights and changing social norms gave way to new opinions and new expectations for individuals and for the government.
Vietnam was an incredibility divisive issue from the early ‘60s through the U.S. withdrawal in the mid-1970s. In this conflict, the United States chose broad foreign policy goals over military objectives as it prosecuted the war, a decision matrix that should never be used when the military is involved.
In 1967, then-Secretary of Defense Robert McNamara created a Vietnam Study Task Force that was charged with writing a comprehensive history of the United States’ involvement in Vietnam. McNamara wanted to leave a concise and accurate accounting for historians and the next generation of foreign policy leaders in order to prevent such extensive and massive policy errors in future administrations.
Secretary McNamara resigned as secretary of defense in 1968 and left the report to his successor, Secretary of Defense Clark Clifford. The study included 3,000 pages of historical analysis and 4,000 pages of original government documents in 47 volumes, and the report was classified at the time. It was officially titled, “United States – Vietnam Relations, 1945–1967: A Study Prepared by the Department of Defense.”
Numerous military officers worked on the report as well as several individuals from the RAND Corporation. Among these was a young man, Daniel Ellsberg and his colleague Anthony Russo. The study took several years to compile all the applicable information and edit for content and style. The two men had access to the draft report for several years; during this time. They formed their own opinions about the war in Vietnam, which was at odds with administration policy. As the report was being compiled, it became clear that based on the information being collected, that the White House and the Defense Department had lied to the American people for years about the real objective for the Vietnam War, the progress of the war and the original intent and ongoing strategy for the war in Vietnam.
Reason for war revealed
For years, national leadership had espoused the desire of the United States to aid the Vietnamese people, to stop the spread of communism, curtail Soviet influence in the region, the expansion of democracy, and to advance U.S. interests in French-Indo China; this report would become known as the “Pentagon Papers.” As the “Pentagon Papers” would reveal, none of this was true. The “Pentagon Papers” revealed the U.S. blunders in the overthrown of Ngo Dinh Diem, the desire of several U.S. president’s to escalate the conflict, the need to contain China, and the desire to provoke the North Vietnamese in order to justify the war and continue U.S. involvement in Vietnam.
In 1971, Ellsberg approached The New York Times with a copy of the report that he had helped to compile. The Times discussed the matter internally and decided that the First Amendment would justify the Times’ publication of the report. Most notably, the First Amendment guarantees that,
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
Of importance is that the right to free speech, freedom of the press, and the right of the people to petition the government for a redress of grievances are all contained in the same Amendment.
Publishing the ‘Pentagon Papers’
The New York Times has a right to free speech and the freedom to publish information. In June of 1971, The New York Times began publishing portions of the “Pentagon Papers.” The Nixon administration asked The Times to cease publication since the report was classified. The Times refused and the Justice Department sought an injunction against the newspaper. The Washington Post had also published portions of the report the same year; The Times decided to elevate the matter to court and the issue quickly came before the United States Supreme Court.
Supreme Court ruling
The high court heard arguments of the matter in question and on June 30, 1971, the court issued a landmark ruling for freedom of the press advocates everywhere in the United States. In a 6-3 decision, the Supreme Court ruled that the government failed to meet the heavy burden of proof required for prior restraint injunction and Justice Hugo Black opined the following in the majority opinion:
“Only a free and unrestrained press can effectively expose deception in government. And paramount among the responsibilities of a free press is the duty to prevent any part of the government from deceiving the people and sending them off to distant lands to die of foreign fevers and foreign shot and shell.”
For years the government had lied to the American people and for years had advanced a flawed strategy that cost young Americans their lives. Had it not been for Ellsberg and The New York Times and the Washington Post, none of this information would most likely have ever been made public during the Vietnam era.
Another problem brewing
The Nixon administration would have another problem on their hands beginning in 1972. After the break-in at the Democratic National Headquarters at the Watergate Hotel. Two young reporters would spend the better part of two years piecing together the details of what had transpired, both at the Watergate Hotel and within the Nixon White House and the Committee to Reelect the President.
Bob Woodward and Carl Bernstein would trace money from the re-election campaign of President Nixon to the White House. While Watergate played out in the Washington Post, President Nixon was organizing a cover-up of the White House’s involvement in the break-in.
President Nixon had for some time used a recording system in the White House for meetings with high-ranking officials. Several meetings with White House staff included discussions of his knowledge of the break-in after the fact and his desire to conceal the involvement of the White House. Eventually, the question of access to the tapes went to the United States Supreme Court.
Watergate tapes ordered released
On July 24, 1974, in the matter of United States v. Nixon, the Supreme Court ruled unanimously that claims of executive privilege over the potential release of the tapes were void. If a crime had been committed and the matter was under investigation of criminality either by Nixon himself, or by White House staff, the tapes must be released for consideration of criminal prosecution.
The Supreme Court ordered President Nixon to release them to the special prosecutor. On July 30, 1974, President Nixon complied with the order and released the subpoenaed tapes. On August 8, 1974, in a televised speech from the Oval Office, President Nixon resigned. Two years of work primarily on behalf of the Washington Post to discover the truth and make it known to the public came to fruition. The White House had been involved in the cover-up of the break in and had actively worked to obstruct justice.
A free and unfettered press that was void of any government regulation or parameter brought to light years of criminal activity by the Nixon White House. Had it not been for a free press’ ability to gather and publish such information, we might not have ever known what really happened that night in the summer of 1972 at the Watergate Hotel and the real motives behind it.
CIA caught in the spotlight
The 1970s would continue to bring to light revelations of the government breaking the law and abridging the rights of citizens. The early 1970s saw several news reports from major news outlets of the government spying on Americans without a warrant or a court order. In 1974, The New York Times published an article about the Central Intelligence Agency spying on American citizens, the famed journalist Seymour Hersh wrote,
“The Central Intelligence Agency, directly violating its charter, conducted a massive, illegal domestic intelligence operation during the Nixon Administration against the antiwar movement and other dissident groups in the United States according to well-placed Government sources.”
The ‘bad news’ would continue to come to light during this time period. In 1971, a group known as the Citizens’ Commission to Investigate the FBI broke into the FBI office in Media, Pennsylvania, and stole a trove of documents. These documents detailed the FBI’s program known as “COINTELPRO” an acronym that stood for “Counter Intelligence Program.”
This program was a series of covert and illegal programs and operations conducted by the FBI with the goal of surveilling, infiltrating, discrediting and disrupting domestic political organizations that had views contrary to administration policy or worked to counter U.S. domestic, defense, or foreign policy.
COINTELPRO took place from 1956 to 1971, during this time the FBI targeted groups and individuals that they thought were, “subversive,” methods for this included discrediting individuals and groups through the use of techniques like using forged or fake documents that would discredit someone, and by planting false reports in the news media. Harassment was often a tactic as well as wrongful imprisonment.
The FBI’s stated motivation was “protecting national security, preventing violence, and maintaining the existing social and political order.” Then-FBI Director J. Edgar Hoover issued directives authorizing COINTELPRO which ordered agents to “expose, disrupt, misdirect, discredit, neutralize or otherwise eliminate” the activities of these movements and their leaders. These groups included: communist and socialist organizations, organizations and individuals associated with the Civil Rights Movement, including Dr. Martin Luther King Jr. and others associated with the Southern Christian Leadership Conference, and similar civil rights groups. Surely this type of abuse was stopped in 1975?
Abusive wiretaps continue
Part of the issue here was the interception of personal communications among and between private citizens with no warrant or court order; violating their right to due process and protections of the Fourth Amendment. In 1972, the United States Supreme Court issued a unanimous decision in the case United States v. U.S. District Court, commonly referred to as the “Keith Case” that the requirements of the Fourth Amendment, in cases of domestic surveillance and targeting of a domestic security threat, which include the following provisions from the Constitution:
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
The High Court ruled in this case that wiretaps used illegally without a court order and the information garnered from them were a violation of the Fourth Amendment and must be disclosed to the defense in a criminal proceeding. This ruling established the precedent that a warrant would need to be obtained before beginning electronic surveillance even if domestic security issues, questions, or law violations were involved.
A law enforcement entity or national security entity could not wiretap or electronically monitor an individual American’s electronic communication without a warrant. Furthermore, this information had to be provided to the individual and their defense attorney(s) in a criminal proceeding. Opining for the majority ruling is the following:
“The price of lawful public dissent must not be a dread of subjection to an unchecked surveillance power. Nor must the fear of unauthorized official eavesdropping deter vigorous citizen dissent and discussion of Government action in private conversation. For private dissent, no less than open public discourse, is essential to our free society.”
Justice Lewis Powell Jr.
“History abundantly documents the tendency of Government — however benevolent and benign its motives - to view with suspicion those who most fervently dispute its policies. Fourth Amendment protections become the more necessary when the targets of official surveillance may be those suspected of unorthodoxy in their political beliefs. The danger to political dissent is acute where the Government attempts to act under so vague a concept as the power to protect “domestic security.” Given the difficulty of defining the domestic security interest, the danger of abuse in acting to protect that interest becomes apparent.”
Justice Lewis Powell Jr.
Congress steps in
With such egregious and widespread abuses, Congress took up the task of oversight for these Executive Branch agencies to ensure that abuses of the law and constitutional protections did not continue in the government’s effort and need to collect intelligence and law enforcement information. As a result, the Church Committee was formed in 1975. Chaired by Idaho Sen. Frank Church, the United States Senate Select Committee to Study Governmental Operations with Respect to Intelligence Activities began the business of investigating the intelligence gathering techniques and methods for illegality and impropriety committed by the Central Intelligence Agency and Federal Bureau of Investigation.
Much of what is noted above would be disclosed by witnesses and personnel called to testify before the Church Committee. In 1975 and 1976, the Church Committee published 14 reports on various U.S. intelligence agencies’ formation, operations and the alleged abuses of law that had been committed. As the committee published the final report, the longstanding, widespread and egregious abuses by Executive branch entities became known to the public and were now part of the Congressional Record and also demonstrated the innate importance of the news media in keeping government accountable to the people.
The Church Committee’s findings was up to this point, the peak of government organizations spying on American citizens through a conglomerate of agencies.
A major recommendation of the Church Committee was the creation of The United States Foreign Intelligence Surveillance Court, often referred to as the FISA Court. No one would deny the government’s need and duty to gather relevant and pertinent information to protect the national security from foreign governments and the need for domestic law enforcement agencies to conduct investigations and prosecute criminals who had committed crimes. However, these investigations must be done legally within the confines of constitutional protections and by the applicable agencies with legal authority.
The FISA Court established and authorized by the Foreign Intelligence Surveillance Act of 1978, has the responsibility to oversee requests for surveillance warrants against suspected foreign intelligence agents inside the United States by federal law enforcement agencies. Since 1979, more than 33,000 warrants have been issued by the FISA Court. The FISA Court was designed to allow law enforcement the ability to do its job while also providing for due process of suspects, primarily through the Fourth Amendment.
In the fall of 2001 – the plot thickens
As a result of the terrorist attacks on Sept. 11, 2001, The USA PATRIOT Act is signed into law by then-President George W. Bush. The act seeks to expand the powers of the federal government by changing several parts of the Foreign Intelligence Surveillance Act of 1978, the Electronic Communications Privacy Act of 1986, the Money Laundering Control Act of 1986 and Bank Secrecy Act, as well as the Immigration and Nationality Act. “Title II: Surveillance procedures” of the act, titled, “Enhanced Surveillance Procedures” covers aspects of the surveillance of suspected terrorists. Various provisions of the bill allowed for the disclosure of electronic communications to law enforcement agencies. Title II also established several controversial provisions: “sneak and peek” warrants and roving wiretaps.
For most of the national security apparatus, it was, business as usual. There had been objections in Congress and the general public to the bill but no one up to this point had found any evidence of abuse.
Is this still the case?
The 9/11 Commission report, formally named the “Final Report of the National Commission on Terrorist Attacks Upon the United States”published numerous pages of information about the Sept. 11 terrorist attacks, not included anywhere in this report was information about American citizens being involved in the planning of the attack or aiding the conspirators before the attack was perpetrated. In fact, 15 of the 19 hijackers were Saudi Arabian nationals with the other four hijackers being from neighboring countries in the Middle East.
Al Qaeda front man Osama bin Laden was also from Saudi Arabia. Congress recently provided information about Saudi Arabian nationals’ involvement in 9/11 planning by declassifying previously classified portions of the “9/11 Commission Report.”
Consider for a moment, the following sentiments:
“In the need to develop a capacity to know what potential enemies are doing, the United States government has perfected a technological capability that enables us to monitor the messages that go through the air. Now, that is necessary and important to the United States as we look abroad at enemies or potential enemies. We must know, at the same time, that capability at any time could be turned around on the American people, and no American would have any privacy left such is the capability to monitor everything —telephone conversations, telegrams, it doesn’t matter. There would be no place to hide.
If this government ever became a tyrant, if a dictator ever took charge in this country, the technological capacity that the intelligence community has given the government could enable it to impose total tyranny, and there would be no way to fight back because the most careful effort to combine together in resistance to the government, no matter how privately it was done, is within the reach of the government to know. Such is the capability of this technology.
I don’t want to see this country ever go across the bridge. I know the capacity that is there to make tyranny total in America, and we must see to it that this agency and all agencies that possess this technology operate within the law and under proper supervision so that we never cross over that abyss. That is the abyss from which there is no return.”
The irony in these statements is that they were not expressed yesterday or recently, these are the comments made by Sen. Frank Church some 40-plus years ago. He noted the surveillance power of the federal government on, of all television programs – “Meet the Press” in August of 1975.
The importance of a free press
In each case of government overreach and abuse, it was we the people, through a free press who brought to light the transgressions of the government. The lesson learned is that the law applies to everyone and every entity, even to the government. In each instance as well, the right to privacy was questioned, whether it be in the form of executive privilege or personal privacy; and the debate will continue.
Supreme Court Justice Hugo Black wrote in the Griswold v. Connecticut opinion that, “privacy is a broad, abstract and ambiguous concept.” There is no one sense of the concept or practice of privacy which can be extracted from the various court decisions which have touched upon it. The mere act of labeling something “private” and contrasting it with “public” implies that we are dealing with something which should be removed from government interference, regulation, oversight and/or cognizance. The United States has had a long, complicated history with privacy rights of the individual. The question for judicial interpretation is one of immense subjectivity and equally impassioned debate, how far does the right to privacy really extend and to what end?
After all, there is no, “right to privacy” in the black-ink text of the Constitution.
Paramount among the responsibilities of a free press is the duty to prevent any part of the government from deceiving the people, sending them off to distant lands to die of foreign fevers, foreign shot and shell, or violating their constitutional rights as citizens of their inherent rights as human beings.
Here’s to the free press for keeping the lamp of liberty burning and ensuring that the government is held accountable to the people. We know from history and from experience that it is only a free and unrestrained press which can effectively expose deception in government.
Douglas is a graduate of the University of Georgia and the University of North Georgia. He is a member of Phi Kappa Phi, Pi Gamma Mu, Golden Key, and Pi Sigma Alpha National Honor Societies.