Air Force personnel filming protesters, Vandenberg Air Force Base, May 2005

Andrew Lichterman

This week brought another in the long line of disclosures of government spying on Americans in the name of “security.” This time it was the California Office of Homeland Security, revealed by the Los Angeles Times to have compiled information about peaceful antiwar protests. These events included several discussed in previous entries here, such as the Walnut Creek, California demonstration on the third anniversary of the Iraq invasion and a demonstration supporting MacGregor Eddy, arrested protesting the many activities at Vandenberg Air Force Base in support of U.S. aggressive war making.

According to the Los Angeles Times, the California Office of Homeland Security intelligence reports on political demonstrations were prepared by a private contractor, SRA International Inc. The media coverage hasn’t told us much about SRA International, but a quick internet search reveals that they are a large information services company that has many contracts with the federal government. Among their services are “data and text mining,” and among their clients are a number of Defense Department organizations and “various intelligence agencies.” As SRA International’s web site notes, “text mining” for “Homeland Security and Intelligence” applications can include “Surveillance of the Web, e-mails, or chat rooms.” SRA International claims its text-mining techniques allow extraction “from free-text document entities such as persons, organizations, places, artifacts, and other concepts of interest, as well as key links between, and events involving, these entities.”

Although the Times reported claims by the California officials that the monitoring of peaceful protests was done in error, the story really raises more questions than it answers. How did this “mistake” happen? If, as state officials assert, there is no ongoing monitoring program that would sweep up the activities of peaceful protesters in its data-gathering net, what is a high powered (and undoubtedly high-priced) contractor that provides such services as “data and text mining” being paid to do? What kinds of precautions, if any, has the state taken to insure that monitoring that encompasses peaceful protest will cease? Was SRA International involved in the collection of raw data, or only in the analysis of data collected by public agencies? If the former, has SRA been told to stop gathering data on peaceful political protests, or only to stop including such information in its reports to the state? If the latter, who was collecting raw “intelligence” in a manner that swept up information about peaceful protests? It’s not enough simply to tell the contractor not to report information they collect on peaceful protesters (which is all the state appears to have done so far).

The Schwarznegger administration’s first response to getting caught with its hand in the civil liberties cookie jar (again) has been to allow the press (and the press alone) to review redacted copies of the series of reports in question, but apparently not to copy them. This response manifests another casualty of the current “security” frenzy, which is government openness. The California Public Records Act does not permit the state to release documents only to the press; once records have been released any claimed exemptions to public access are waived. Further, I know of no provision in the act allowing the state to release records for inspection without allowing them to be copied. Despite the statutory presumption in favor of releasing records, California officials (like most officials) are trying to get away with as little openness as they can probably with the hope of making this story as difficult for the press to cover as possible short of outright stonewalling. The ACLU has, however, filed a comprehensive public records act request for relevant documents, including SRA International’s contract with the state.

All of this comes as no surprise. Government monitoring of opposition to U.S. weapons and wars has been the rule rather than the exception. The surveillance and infiltration of groups opposed to the wars and nuclear brinksmanship of the Reagan administration was not new, but rather part of a long history of government spying stretching back through the 1960’s and beyond, with perhaps a brief respite after exposure of some of the worst excesses by Congressional investigations in the immediate aftermath of the Vietnam war. As the Church Committee investigation of domestic intelligence programs concluded in 1976,

“Since the re-establishment of federal domestic intelligence programs in 1936, there has been a steady increase in the government’s capability and willingness to pry into, and even disrupt, the political activities and personal lives of the people. The last forty years have witnessed a relentless expansion of domestic intelligence activity beyond investigation of criminal conduct toward the collection of political intelligence and the launching of secret offensive actions against Americans.The initial incursions into the realm of ideas and associations were related to concerns about the influence of foreign totalitarian powers.Ultimately, however, intelligence activity was directed against domestic groups advocating change in America, particularly those who most vigorously opposed the Vietnam war or sought to improve the conditions of racial minorities. Similarly, the targets of intelligence investigations were broadened from groups perceived to be violence prone to include groups of ordinary protesters.” Final Report of the Select Committee to Study Governmental Operations with Respect to Intelligence Activities of the United States Senate, 94th Congress, 2nd Session, 1976, (the “Church Committee,”) BOOK II, the Growth of Domestic Intelligence: 1936 to 1976, made available on the web by Paul Wolf at Cointelpro.com

During the 1980’s (after post-Church Commission reforms supposedly reigned in the worst abuses), on a number of occasions I represented non-violent protesters against nuclear weapons and against illegal U.S. warmaking in Central America. Typically, these cases involved sitting in the road in front of public buildings or weapons plants and other largely symbolic acts of protest. Documents obtained in discovery sometimes revealed that non-violent protesters were being monitored by various agencies, including the “domestic terrorism” unit of the FBI. While working on one of those cases the office of co-counsel was burglarized, with nothing of value taken but legal files apparently examined, likely part of the larger pattern of government break-ins at activist offices around the country during those years. Anyone who believes that the government will limit the use of its investigative tools– including its ability to track connections among people via phone records, or to intercept electronic communications– to “terrorists,” or even to those that they have a reasonable suspicion will commit crimes, is denying both history and current reality.

There are new features of current U.S monitoring of non-violent political opposition, furthermore, that are particular cause for concern. The first is the growing computer-enabled capacity to analyze and store vast amounts of data, giving the government the ability to examine far greater numbers of our documents and transactions than ever before. The second is the use of private contractors to perform government law enforcement and military functions, including the collection and analysis of data on private persons for purported “intelligence” reasons.

The combination of growing technological capacity for gathering and analyzing immense amounts of information with the privatization of law enforcement and “intelligence” functions poses a grave threat to what is left of our democracy. Both the capacity and incentives for pervasive government surveillance are likely to grow in the coming years. The government is spending billions on surveillance technology and infrastructure (much of it in “black budget” accounts we never will see). If the history of past “national security” programs is any guide, these surveillance efforts will develop ever more powerful institutional and economic constituencies. A “surveillance-industrial complex” could be especially powerful because information itself — and perhaps secret, private information most of all–is a significant currency of power. And in a society with increasing disparities in wealth, with political elites ever more concerned about controlling, rather than serving, the “public,” the means of mass surveillance are likely to be turned inward with ever increasing frequency.

The logic of data-mining technologies themselves, together with the potential for private profit in every expansion of the domestic “intelligence” industry, constitute a mix peculiarly corrosive to civil liberties. Robert Heverly warned of the dangers in a 2002 commentary on the Defense Advanced Research Project Agency’s Total Information Awareness initiative and other federal data gathering programs:

“In the past, government could collect information, but it couldn’t necessarily use it all. Human intervention was required to make connections between pieces of information. When government wanted to tyrannize its citizens, it gathered information and placed it in Manila file folders. Perhaps some of these files were centrally located under the control of a person charged with determining the importance of that information. Yet the government had only so many resources; there were only so many people who could be tyrannized at one time. People reviewed people, and people could do only so much. The danger of mass tyranny was not based on information itself, but on the leg power of government. But today computers allow different government agencies to share information; information collected for one purpose is now reviewed for others. Computers analyze according to their programs, spitting out potential relationships between facts and figures.”

When information was collected for particular purposes and held by particular organizations, investigators had to make a request for it, often accompanied by some type of administrative or legal procedure– procedures that also left a paper trail that could be tracked, and perhaps challenged, if only in some cases after the fact. Now, the goal is to develop increasingly integrated computer networks that will allow information collected for one purpose to be used for many others. Requiring administrative or legal determinations before a particular piece of information can be collected or reviewed runs impedes the full exploitation of the new computer-enabled information gathering and analysis technologies. This type of “wide net” investigative freedom is what legislation like the Patriot Act is intended to make legally permissible, while increased capabilities in data gathering and analysis make it technologically feasible.

It is worthy of note that one of the Presidential signing statements reserving powers to interpret Congressional program limits as the Bush administration deems consistent with its own conception of Executive power addressed a Congressional attempt to limit the Total Information Awareness program. The signing statement asserted that language concerning the permissible applications of Total Information Awareness program technologies, included in a classified annex to the Defense Appropriations Act of 2004, was only “advisory in effect.” (There is no little irony in the President’s legal rationale in this instance, a claim that the provisions were invalid as an attempt “to enact secret law.”)

Yale Law School professor Jack Balkin points out the additional dangers flowing from the sweeping claims of wartime authority used by the Bush Administration to justify broad mass-surveillance operations (in a blog post worth reading in full):

“The National Surveillance State poses two distinct dangers. The first is that the executive’s power to conduct war will displace the area previously assumed to fall within the criminal justice system. Hence the Executive increasingly has the choice to treat dangers within the United States as matters of war and national security rather than as matters of crime and criminal justice. The latter, but not the former, come with a series of traditional civil liberties protections that constrain and check the Executive. If the government can create a parallel law enforcement structure that routes around the traditional criminal justice system, and which is not subject to the oversight and restrictions of the criminal justice system, it may be increasingly tempted to make use of that parallel system for more and more things…The second danger of the National Surveillance State is not that the criminal justice system will increasingly be displaced by a parallel track of military and national security enforcement, but that the criminal justice system will become increasingly like the parallel track, that is, that it will lose the civil liberties protections, checks and balances, and oversight by independent actors (e.g., judges) that we normally associate with the criminal process in the United States.

With the steady stream of domestic spying scandals revealing bits and pieces of an emerging surveillance-industrial complex lying close beneath the vast datasphere that encompasses more and more of our public and private lives, we may be seeing a dynamic at work that has certain parallels to nuclear arms racing. In a fear-driven political climate where “security” can be used to trump all other concerns, including civil liberties and democracy, what is possible can all too easily be represented as what is necessary. The Cold War arms race was fueled in large part by power and profit interests having little to do with the “common good,” exploiting the climate of fear and to sell an endless and ever more sophisticated and expensive array of military technologies and services to the State. But for the emerging surveillance-industrial complex, our civil liberties will not be mere collateral damage in larger campaigns selling weapons and wars. They will be squarely in the sights of those who can only expand their “freedom of action” (and their profits) by diminishing the freedoms of the rest of us. And here too, as in the case of nuclear weapons, everything may have changed except our way of thinking.