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HOME C-NEWS PENTAGON CIA MKULTRA HEGEMONY STORE
SURVEILLANCE OF AMERICANS: HOW THE SENATE ANTI-TERRORISM BILL PUTS THE CIA BACK IN THE BUSINESS OF SPYING ON AMERICANS
The Senate anti-terrorism legislation, the Uniting and Strengthening America Act (S. 1510, "USA Act") puts the Central Intelligence Agency back in the business of spying on Americans. It permits a vast array of information gathering on U.S. citizens from school records, financial transactions*, Internet activity, telephone conversations and information gleaned from grand jury proceedings and criminal investigations to be shared with the CIA (and other non-law enforcement officials) and foreign governments pertaining to American citizens. The bill also gives the Director of the Central Intelligence Agency, acting in his capacity as head of the Intelligence Community, enormous power to manage the collection and dissemination of intelligence information gathered in the U.S. This new authority supercedes existing guidelines issued to protect Americans from unwarranted surveillance by U.S. agencies such as the FBI.
To Appreciate the Dangers of the USA Act, We Should Take a Moment to Revisit One of the Shameful Chapters in Recent History that Led to Restrictions on the CIA.
Until the mid-1970's, both the CIA and the National Security Agency ("NSA") illegally investigated Americans. Despite the statutory prohibition in its charter prohibiting the CIA from engaging in law enforcement or internal security functions (50 U.S.C. 403-3(d)(1)), the CIA spied on as many as seven thousand Americans in Operation CHAOS. This operation in the 1960's and early 1970's involved spying on people who opposed the war in Vietnam, or were student activists or were so-called black nationalists. Operation CHAOS involved an extensive program of information sharing from the FBI and other agencies to the CIA. CIA received all of the FBI's reports on the American peace movement, which numbered over 1,000/month by June of 1970, according to a Senate report issued by the Senate Select Committee to Study Governmental Operations With Respect To Intelligence Activities ("Church Committee Report"). The Church Committee Report revealed how simple passive information sharing from other agencies to the CIA became authorized spying and data collection on lawful American political activity protected by the First Amendment. Once CIA officials expressed interest in particular types of information on American individuals and groups, other federal and local agencies were persuaded to covertly spy on citizens at the CIA's behest. The Church Committee reported:
After these abuses were exposed, the CIA's domestic surveillance activities and collection of information about Americas were greatly curtailed. For example, the Foreign Intelligence Surveillance Act made it clear that the Department of Justice would have the leading role in gathering foreign intelligence in the United States. The question before the United States Congress today is whether there is justification to tear down these safeguards and once again permit the CIA to create dossiers on constitutionally protected activities of Americans and to eliminate judicial review of such practices.
Sharing Information Developed in Criminal Proceedings about Americans with the CIA
The "USA Act" permits the wide sharing of sensitive information gathered by law enforcement agencies with intelligence agencies including the CIA and the NSA, and other federal agencies including the INS, Secret Service, and Department of Defense.
For example, Section 203(a) of the bill would permit law enforcement agents to provide to the CIA foreign intelligence and counterintelligence information revealed to a grand jury. No court order would be required. In authorizing this flow of sensitive information, Section 203(a) would re-define "foreign intelligence information" for purposes of this section to permit more liberal sharing of information about U.S. persons - citizens and lawful permanent residents of the United States.
As a result, the foreign intelligence information about Americans that could be shared with the CIA need not be information that is necessary to protect against attacks, or is necessary to the national defense or security of the United States. This "necessity" requirement of the Foreign Intelligence Surveillance Act effectively operates to protect Americans from unwarranted surveillance for "intelligence" as opposed to criminal purposes. This requirement is eviscerated under the information sharing provisions of the USA Act. The sharing of grand jury information is not limited to information about the person being investigated. Thus, a witness called before the grand jury to provide evidence against the person being investigated or others might be less forthcoming if it is known that the supposedly secret information could be shared with the CIA.
Section 203(b) would permit law enforcement officers, to share with the CIA intercepts of telephone and Internet conversations. No court order would be necessary to authorize the sharing of this sensitive information. This section also broadens the definition of foreign intelligence information to include more information about Americans. It includes no meaningful restrictions on subsequent use of the recorded information. For example, there is nothing in the statute that prevents this information from being used to screen candidates who apply for government jobs. Also, Section 203(b) does not prohibit the CIA from sharing with a foreign government surveillance information gleaned from a criminal investigation, even if sharing that information that could put risk members of his family living abroad.
Section 203(d) broadly permits the sharing of any foreign intelligence or counterintelligence information obtained as part of a criminal investigation to be disclosed to the CIA and other intelligence, defense and immigration authorities. No court order would be required, and for purposes of this information sharing, "foreign intelligence information" would be re-defined to permit more sharing of information about Americans. Section 905 of the bill likewise permits disclosure to the CIA of foreign intelligence information obtained in connection with a criminal investigation, but this section does not re-define "foreign intelligence information."
These proposals represent extraordinary extensions of the current authorities of the foreign intelligence agencies, including the CIA, to obtain information about Americans. While some sharing of information may be appropriate in some limited circumstances, it should only be done with strict safeguards.
The bill should be amended to prohibit the sharing of information about U.S. persons with the CIA and elements of the intelligence community. To fail to do this is to risk the abuses that the Church Committee exposed decades ago.
Foreign intelligence information about non-U.S. persons that is developed in a criminal case should be shared only pursuant to court approval. The House terrorism bill, the PATRIOT Act (H.R. 2975) requires court approval before information can be shared. This provision should be included in the Senate Bill.
Finally, all information developed in a criminal case that is shared with non-law enforcement officials should be clearly marked to indicate how it was obtained and how it can and cannot be used or disseminated. The current limitations on information sharing evolved from a long history of intelligence abuses against United States persons. Having the court, not the government, decide which information should be shared provides an extra level of privacy and helps protect against potential abuses.
Recommendation: This provision could be improved by adding the additional safeguards of: barring the sharing of information about U.S. persons, requiring judicial review, marking the information to indicate how it was obtained and how it can and cannot be used or disseminated, and by specifying limitations on sharing information with foreign governments.
Empowering the Director of Central Intelligence To Manage Domestic Intelligence Gathering
Section 901 of the USA Act would empower the Director of the Central Intelligence Agency ("DCI"), to establish the priorities for the collection and dissemination of intelligence information gathered in the U.S. He would exercise this power while acting in his capacity as head of the intelligence community. The Attorney General currently performs this function.
Though this provision includes language purporting to prohibit the DCI from directing or undertaking electronic surveillance operations, it includes no similar prohibition relating to physical searches for intelligence purposes. More importantly, Section 901 appears to contemplate that the DCI would be empowered to identify to the Department of Justice and to the FBI potential targets of intelligence surveillance in the United States, including particular people and groups to be surveilled. Such a power would be inherent to the ability to "establish requirements and priorities" for the collection of foreign intelligence information under the Foreign Intelligence Surveillance Act.
It amounts to a rather clear case of giving the CIA an enhanced role in domestic intelligence gathering - including the gathering of intelligence about United States citizens - in the U.S. It also runs directly contrary to the statutory prohibition in the CIA's charter barring it from engaging in internal security functions (50 U.S.C. 403-3(d)(1)).
Recommendation: This provision should be deleted from the bill.
*For more information on how the USA Act permits the seizure of confidential student records and personal financial information, See ACLU Fact Sheets entitled: How the Senate Anti-Terrorism Bill Puts the Privacy of Student Records at Risk and How the Senate Anti-Terrorism Bill Puts Financial Privacy at Risk.
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