Abuse of Power: How Cold War Surveillance and Secrecy Policy Shaped the Response to 9/11

Introduction

Introduction Those who cannot remember the past are condemned to repeat it. —George Santayana, The Life of Reason B lind-sided by the devastating terrorist attack of September 11, 2001, George W. Bush administration officials endorsed what they contended were unprecedented changes in federal surveillance policy. Such changes, they claimed, were essential to anticipating and preventing future terrorist attacks. First, administration officials drafted and successfully lobbied the Congress to enact the USA PATRIOT Act, a far-reaching law that legalized Federal Bureau of Investigation (FBI) interception of the communications and records of suspected terrorists without having to obtain a prior court warrant. Second, seven months later, in May 2002, at a joint press conference with FBI Director Robert Mueller III, Attorney General John Ashcroft issued new FBI investigative guidelines to change the “culture” of the FBI from that of a “reactive” law enforcement agency to one that was “proactive,” put “prevention above all else,” and would anticipate and prevent crime. The administration’s contentions, however, were misleading and, in fact, misrepresented the more complex history of long-term FBI operations and authority. For the FBI did not first abandon a law-enforcement approach in May 2002, having sixty-six years earlier (under a secret August 1936 oral directive of President Franklin Roosevelt) conducted investigations having as their objective to anticipate and prevent crime (in this case, espionage or sabotage orchestrated by Nazi Germany, the Soviet Union, and their American recruits). Thereafter, FBI intelligence operations exceeded those based on a criminal standard.1 In Chapter 1, xii / Introduction I chronicle the evolution of the FBI’s intelligence operations, the attendant changes in tactics and priorities instituted during the World War II and cold war eras, and the ways these changes transformed the FBI’s culture, conduct, and approach. Nor was it the case that FBI agents had been hamstrung in the months and years preceding the 9/11 attack because they were denied the authority essential to uncovering potential terrorist operations. In fact, FBI agents already commanded broad legal authority—under the 1968 Omnibus Crime Control and Safe Streets Act and the 1978 Foreign Intelligence Surveillance Act—to intercept domestic and international communications when conducting intelligence and counterintelligence operations. In addition, under a key provision of the 1996 Antiterrorism and Effective Death Penalty Act, investigations could be launched based on the nebulous standard that a suspected individual or organization provided “material support” to terrorism. Furthermore, dating from the 1980s and intensifying in the 1990s, counterterrorism became an FBI priority. Under new “domestic security/terrorism” guidelines that Attorney General William French Smith issued in March 1983, FBI agents were authorized to “anticipate or prevent crime” and “initiate investigations in advance of criminal conduct.” Moreover, in the 1990s, FBI officials established special units to coordinate such investigations—a Radical Fundamentalist Unit in 1994 and an Usama2 Bin Laden Unit in 1999. Significantly, during the World War II and cold war years, even though the 1934 Communications Act banned wiretapping and the Supreme Court in 1937 and 1939 ruled that this ban applied to federal agents, FBI agents (under a secret presidential directive) employed wiretaps during national-defense investigations. FBI officials on their own authorized FBI agents to conduct break-ins, mail openings, and bugs when investigating suspected subversives . FBI officials privately conceded that such techniques were illegal or contravened the Fourth Amendment ban against unreasonable searches and seizures. In Chapter 2, I survey the history of FBI wiretapping authority; in Chapter 3, I identify the targets of such interceptions, some of which extended well beyond legitimate national-security threats. Resisting public and congressional requests for access to records documenting FBI surveillance operations, Bush administration (and, subsequently, Barack Obama administration) officials claimed that disclosure would imperil the nation’s security interests. Their claims reiterated the justifications of FBI and White House officials during the World War II and cold war years. In Chapter 4, I describe the various programs and procedures that were adopted during this earlier era to preclude discovery of the scope and targets of FBI surveillance operations. Because of their ability to conduct policy in secret, FBI officials were able to preclude an independent assessment of the effectiveness of the FBI’s coun- Introduction / xiii terintelligence operations, a history discussed in detail in Chapter 5. Chapter 6, in turn, discusses how FBI counterintelligence investigations moved far beyond legitimate security concerns to monitor the personal and political activities of prominent...