PRIVACY SEPTEMBER 28, 2013
Almost no one noticed when the book was quietly released this summer. It has perhaps the most benumbing title in publishing history. Yet inside this volume of previously confidential legal opinions is the story of how the surveillance state grew into a monster.
Imagine the past five years of the Obama administration as they might have been. In this alternate universe, the national security state expanded by the Bush administration is disciplined by appropriate legal and constitutional constraints. The new president, despite technological advances that create vastly enlarged possibilities for ubiquitous surveillance, implements the basic reforms he had championed as a freshman senator from Illinois, protecting the privacy of innocent Americans without compromising the ability of law enforcement and intelligence agencies to track possible terrorists. With his support and leadership, Congress amends the Patriot Act to require that the government produce a warrant, or at least “specific and articulable facts,” establishing someone as a suspected terrorist before his or her data can be searched and seized. Foreign intelligence judges review those applications individually. Edward Snowden has a harder time leaking troves of secret data, because the data are no longer collected and shared in centrally accessible databases. The violations he does reveal involve closed chapters of U.S. history, not stains on the Obama record.
Of course, none of that happened. Although President Obama could have reined in the surveillance state, as we all know, he did not. The snowballing privacy abuses that Snowden exposed, starting with the PRISM program and culminating most recently in the disclosure of the National Security Agency’s encryption-cracking efforts, have threatened U.S. constitutional values and foreign policy interests without making us safer.
In expanding the surveillance state and the White House’s wartime authorities, Obama has continued a grand and unfortunate presidential tradition—fresh details of which have quietly come to light. They are found in a volume of 66 previously confidential legal opinions, issued between 1934 and 1976, that the Justice Department’s Office of Legal Counsel (OLC) released over the summer. Bearing a title that is wonky even by Washington standards,1 the book nevertheless is riveting reading, amounting to a secret history of the rise of the national security leviathan. But just as the book shows how that apparatus has been built up, it also tells a second story: of how public outrage, loud and sustained, can tear it back down.
The Office of Legal Counsel was founded in 1934 to provide legal and constitutional advice to the White House on what Homer Cummings, the attorney general at the time, called “the more troublesome questions arising in the administration of the executive branch of the Government.” It has since been staffed by some of the most influential constitutional lawyers of the twentieth century, including future Supreme Court justices Antonin Scalia and William Rehnquist. During the inherently subjective conditions of wartime, the OLC has tended to answer the president’s legal questions in a similar way: by finding justifications to expand executive power, often despite legal restrictions to the contrary. With important exceptions, the previously secret OLC memos repeatedly stress the “unique” threats posed by the current conflict, rather than bedrock values and rights.
The opinions that the OLC has released aren’t legally irresponsible; they are legally cautious, in their determination to defend the executive’s position by any means necessary. But their legal caution has led, in the aggregate, to the erosion of constitutional principles. As some OLC advisers themselves have warned, executive branch lawyers have helped to chip away at the First and Fourth Amendments, brick by brick, leading to the eventual collapse of their most basic protections.
One of those bricks fell on the eve of World War II, when the precursor of the OLC weighed in on the constitutionality of “Presidential control of Wireless and Cable Information Leaving the United States.” In his opinion, Assistant Solicitor General Charles Fahy had little hesitation about validating the president’s authority to intercept electronic communications to parties abroad. There was just one problem: The Supreme Court had explicitly held that the Communications Act barred such a move. But Fahy briskly dismissed the restrictions. “Notwithstanding these provisions,” he argued, “I believe that under his emergency powers” the president could authorize the wiretapping that Congress and the Court had forbidden.
In another previously secret opinion, on May 16, 1942, Assistant Solicitor General Oscar Cox advised President Franklin D. Roosevelt (accurately as it turned out) that the Supreme Court would probably uphold his decision to intern Japanese-American citizens on grounds of military necessity. “The existing case law indicates some doubt,” on the government’s power to do so, Cox acknowledged, “but the conditions of modern warfare are different.” Two decades later, during the Kennedy administration, Assistant Attorney General Robert Kramer discovered his own new frontier. Despite the fact that international law traditionally required a state of war to exist between two countries before a naval blockade was permissible, Kramer advised Attorney General Robert F. Kennedy that his brother could unilaterally proceed with a blockade against Cuba. Kramer argued that the United States was clearly engaged in a “cold war,” and this created an exception.
The OLC has done more than approve the expansion of the president’s war powers. It has also supplied the legal rationale for cracking down on those who’ve brought state secrets to light. As early as World War II, the OLC justified the prosecution of journalists and whistle-blowers under the Espionage Act of 1917—the same law some now invoke against Snowden and Fox News’s James Rosen. On June 7, 1942, during the Battle of Midway, the Chicago Tribune ran a story revealing that the United States had broken Japanese Naval codes and was reading the enemy’s encrypted messages. In a kind of analog preview of the Snowden and Chelsea Manning affairs, the paper got the scoop when one of its reporters, traveling on a U.S. attack transport, claimed he found on an officer’s desk a dispatch listing the Japanese ships taking place in a naval engagement. (In fact, he probably had an inside source.) The reporter kept the dispatch, or copied it, and later, after flying back to San Francisco, wrote an article—Navy Had Word of JAP Plan to Strike at Sea”—based on the classified information.
Nine days later, on June 16, 1942, Oscar Cox, the author of the Japanese internment memo, advised the White House that the reporter (as well as his editor and publisher) might be criminally prosecutable. Cox acknowledged that it was doubtful that the reporter specifically intended to injure the United States. Nevertheless, he concluded, the reporter should have known he was revealing to the Japanese details of our spying capabilities, and this was enough to bring charges. Cox concluded with a moralistic flourish: “The reporter’s conduct in taking and copying a dispatch of immense importance—as this one seems obviously to have been—is characterized by real turpitude and disregard of his obligations as a citizen. ... He thoroughly deserves punishment.”
In several significant cases, OLC advisers showed a greater devotion to the rule of law. The volume of previously secret opinions includes several impressive instances where the office advised the president that the law forbids him from doing whatever he wants in times of war. In 1937, for example, when the Roosevelt administration sought to limit Americans’ access to the rhetoric of a certain influential exiled Marxist, then–OLC head Golden Bell declined to sanction the plan. “The Federal Communications Commission does not have statutory authority,” wrote Bell, “to censor the telephone transmission from Mexico into the United States of a speech by Leon Trotsky.”
At times, the OLC’s defenses of civil liberties have defied ideological expectations. In 1974, Antonin Scalia, OLC head under President Ford, recommended that the Department of Justice grant a Freedom of Information Act request filed by an attorney seeking the files that the FBI had compiled on his client, a faculty member at Arizona State University. The bureau had received a letter, signed by “a concerned alumnus,” comparing professor Morris Starsky, an active member of the Socialist Workers Party, to Heinrich Himmler or Lavrentiy Beria. The accusations had temporarily cost Starsky his job. “In the last analysis,” Scalia concluded stirringly, “the only policy reason for withholding most of the requested documents is to prevent a citizen from discovering the existence of possible misconduct and abuse of government power directed against him. In my view, this is not only no reason for asserting the exemption; it is a positive reason for declining to use it, even where other reasons for asserting it exist.”
But even when the OLC has argued for restraint, the presidents on the receiving end of its memos have sometimes ignored that advice. Consider a case from the spring of 1940, when Attorney General Robert Jackson objected to a program authorized by J. Edgar Hoover and FDR allowing the warrantless wiretapping of suspected spies. The program had drawn public criticism, and the attorney general warned Roosevelt that Congress and the Supreme Court had big problems with it. The following June, Jackson pressed his argument again, transmitting to Roosevelt a previously secret memo written by an OLC attorney-adviser named Thomas Emerson. In the memo, Emerson rejected the rationalethat the Naval Intelligence Service, the precursor to the National Security Agency (NSA), was employing to tap, intercept, and record private telephone calls to and from government buildings— namely, that anyone who used a phone line assumed the risk that the government might be listening in. (This dubious logic reappeared recently in the “assumption of risk” doctrine cited in the Verizon and PRISM cases, in which the Bush and Obama administrations have argued that anyone who turns over data to a third-party database tacitly accepts the possibility that telephone or Internet companies may divulge the data to the government.)
Emerson would go on to become one of the greatest civil libertarians of his generation. As a professor at Yale Law School, he wrote the leading First Amendment treatise of his era and he successfully argued before the Supreme Court the landmark 1965 right-to-privacy case, Griswold v. Connecticut, that eventually led to Roe v. Wade. In his memo to Jackson, he recognized the Navy’s legal ruse for what it was: “My own feeling is that this proposal is a subterfuge” that “might well lead to a total breakdown” of the legal prohibitions on wiretapping, he wrote. “It is hard to see how an invasion of the right to privacy can be authorized by an individual who does not have actual knowledge of the invasion.”
Roosevelt was unmoved. Despite Emerson and Jackson’s eloquent warnings, he proceeded with the wiretapping program as he saw fit.
The most insightful memo in the OLC volume comes from the poetically named Golden Bell. In 1937, the office was asked to opine on the same question that Obama has faced with Syria: Can the president intervene in foreign conflicts—in Roosevelt’s case, the Spanish Civil War and the China-Japan conflict— without congressional authorization? In arriving at his opinion, Bell consulted the competing views of the American Founders. “Like Hamilton and Madison, average man is never consistently either a strict or a liberal constructionist,” Bell wrote. “He views the Constitution and the government merely as instruments through which he may on the one hand secure the performance of those acts of which he approves and on the other prevent the performance of those acts of which he does not approve.” Therefore, Bell concluded, if the president wanted to do something of which the general public approved, the public would accept any legal argument that allowed the act to go forward. But if the proposed executive action proved unpopular, the typical American would accept any legal argument that stayed the president’s hand.
Bell concluded by coining a phrase that would later be borrowed by Robert Jackson after his appointment to the Supreme Court: “In the field of foreign relations, the Chief Executive moves in a zone of twilightwhere he may proceed with assurance of his powers under the Constitution only when the people follow and approve.”
When President Obama changed course and decided not to press forward unilaterally on planned strikes against Bashar Al Assad’s regime, he was effectively heeding that constitutional catechism. Congress and the public had signaled their opposition to military action, and Obama responded by acknowledging the need for congressional support. After decades of presidents ordering foreign interventions without consulting the House and Senate, his move represented a dramatic and welcome reversal.
On the NSA, Obama has made the opposite calculation. Footage of missile attacks leaves lasting impressions, but surveillance by its nature is covert, and so the public reaction to it has been diffuse. Although some congressmen have objected to the programs, the Foreign Intelligence Surveillance Court has cavalierly blessed them, and citizens have tended to protest only when they feel their personal rights are threatened.
There may not be many more NSA bombshells left. But if the OLC’s secret history teaches us anything, it’s that people who care about privacy need to keep the pressure on President Obama to rein in the surveillance state. More than 70 years ago, Franklin D. Roosevelt, we now know, continued his warrantless surveillance based on the prediction that the public would let him get away with it. It seems that Obama has operated under the same assumption as he continues to let NSA computers pry into American lives. That’s why it’s so important that the public finally prove him wrong.
Jeffrey Rosen is the legal affairs editor of The New Republic.