Mathieu Deflem
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Derek M.D. Silva
This is a copy of a chapter published in The Cambridge Handbook of Social Problems, edited by A. Javier Treviño. Cambridge University Press, 2018.
Also available as PDF file.
Please cite as: Deflem, Mathieu, Silva, Derek M.D., and Anna S. Rogers. 2018. "Domestic Spying: A Historical-Comparative Perspective." Pp. 109-125 in The Cambridge Handbook of Social Problems, Volume 2, edited by A. Javier Treviño. New York: Cambridge University Press.
Abstract
Domestic spying is a cultural construct that refers to the activities of, and debate on, intelligence agencies oriented at the home population of citizens within nations. In the United States, the debate on domestic spying has been especially intense as the country has a longstanding culture and accompanying legal and political framework devoted to protecting individual rights of non-intervention. Unlike several other democratic nations, the U.S. has no specialized self-standing domestic intelligence agents, with such functions being handled by other agencies of law enforcement and foreign intelligence. This chapter reviews the patterns and dynamics of domestic spying in terms of the historical development of domestic intelligence work and offers a comparative overview of such activities in a number of nations. This comparative-historical outlook should be advantageous both for the analysis of domestic spying as a social problem as well in terms of the normative framing of the debate within cultures committed to civil liberties as well as national security.
Introduction
The debate on domestic spying has in recent years, especially since the elaboration of counterterrorist measures following the tragic events of September 11, 2001, moved to the center of the public consciousness. As of yet less a topic of analysis and discussion in the academic social problems literature, the manifold dimensions involved with domestic spying programs have strong normative connotations that invite an analytical approach from the viewpoint of the sociology of social problems and related social-science perspectives. This chapter will develop such a perspective on the basis of a comparative-historical framework.
A useful academic approach to domestic spying cannot be restricted to contemporary aspects of domestic spying in the United States alone, even though it is probably in no other context than that of the contemporary United States that the issue poses itself in its strongest and most manifest ways given the nation’s liberal culture focused on finding a balance between securing personal rights as well as maintaining public security (Deflem and McDonough 2015). Yet, an informed analysis of domestic spying cannot legitimately restrict itself to the narratives that are presently at work among advocates of civil liberties and critics of domestic intelligence operations, whether in the context of the United States or elsewhere. It will precisely be informative for the illumination of relevant contemporary issues to treat domestic spying as a cultural construct that is always located in space and time and, as a result, needs to be approached from a comparative and historical viewpoint.
Domestic Spying as a Social Problem
Especially in the public media and among civil liberty groups, even more than among the public at large, the expression of domestic spying readily invokes strongly negative connotations of intelligence programs, enacted by more and less formally organized security institutions, that are scrupulously targeted at a nation’s own citizens, rather than employed towards foreign individuals and groups that might pose risks to national security from abroad. As a cultural construct, domestic spying relates to a variety of mechanisms and structures of social control internally directed at gathering information from the population, which in more neutral academic terms can be referred to as domestic intelligence (Deflem and Dilks 2008). In a related social-science perspective as well as in the popular media and among the more general public at large, the additional notion of domestic surveillance emphasizes the observation aspects of such intelligence activities when they are concerned with extracting private information of an often sensitive nature.
As conditions differ across nations in legal, cultural, political, and other relevant respects, domestic intelligence operations are not always neatly defined. As will be reviewed in some detail later in this chapter, some countries have a specialized domestic intelligence agency, but others, most notably the United States, do not. In the case of the United States, in fact, there is not even an official definition of domestic intelligence, which evidently impacts what domestic intelligence is from an institutional viewpoint and what it can and should be in terms of aspired goals and activities. One useful approach is to define domestic intelligence as all the “efforts by government organizations to gather, assess, and act on information about individuals or organizations in the United States or US persons elsewhere that is not necessarily related to the investigation of a known past criminal act or specific planned criminal activity” (Treverton 2008: 15). This definition brings out the important distinction between intelligence as the routine collection of information, on the one hand, and information-gathering activities as part of criminal investigations that seek to solve a crime, on the other (Deflem 2010: 77). Depending on country-specific factors, these two functions of routine intelligence and crime-related information gathering are divided between intelligence and police agencies, respectively, or co-exist to some degree or another within agencies.
Besides the institutions and agents of domestic intelligence, the cultural construct of domestic spying also implies reference to the often contentious debate about the activities or even the very idea of domestic intelligence in strongly normative terms. Such debates typically transpire in liberal political cultures committed to freedom and democracy while also maintaining national interests related to public security. Democratic nations therefore take special political and legal measures in order to assure the effectiveness as well as legitimacy of domestic intelligence work.
In the current era, the domestic spying debate has mostly revolved around important intelligence and security developments enacted within nations since the terrorist attacks of 9/11. In the United States, in particular, a so-called Terrorist Surveillance Program was enacted on the basis of a secret order by then President George W. Bush that involved intelligence on American citizens. Once exposed in the news media in 2005, the program was heavily criticized but subsequently continued under the administration of President Barack Obama, despite the latter’s election on a political platform strongly opposed to Bush-era policies. Another factor in bringing domestic spying to the foreground of recent discussions, with both domestic and international repercussions, were revelations concerning the scale and intensity of domestic and foreign intelligence work by the National Security Agency (NSA), which were exposed by private security contractor Edward Snowden in 2013.
The cases of the Terrorist Surveillance Program and the Snowden revelations on NSA mass surveillance, on which much of the current debate on domestic spying is focused, do not stand alone in the history of (domestic) intelligence in the United States nor are they informative of the pattern and dynamics of domestic intelligence issues across the world. A historical and comparative outlook will therefore be useful to reveal both a broader and a more precise picture.
Domestic Intelligence in the United States: A History
Ever since the founding of the United States, as with any political community organized as a nation state, domestic intelligence has been of central importance, particularly in seeking to organize relevant security and intelligence institutions. Also relevant from the start, and with continuing implications and ongoing debate until today, is the determination of the permissible scope of domestic intelligence operations, on the one hand, and the need secure civil liberties with national security interests, on the other. The following review will highlight the most important aspects of these developments (Batvinis 2007; Hulnick 2009; Morgan 1980; Schaefer 2009).
Historical Beginnings
Upon the founding of the nation, internal surveillance practices in the United States were only enacted as needed when a crisis arose. By example, concerns about French agents promoting Jacobinism during the administration of second U.S. President John Adams inspired passage of the Alien and Sedition Acts of 1798 to lengthen the period of residency to allow for U.S. citizenship, to enable the President of the United States to deport anyone in the name of ‘peace and safety,’ and to impose penalties for the promulgation of ideas against the United States and their dissemination in the news media. Foreshadowing some of the issues still relevant today, these laws were ultimately repealed as violations of the First Amendment to the U.S. Constitution concerning freedom of speech.
In 1861, during the Civil War, President Abraham Lincoln suspended the writ of habeas corpus, through which prisoners can seek relief from unlawful imprisonment. The Habeas Corpus Act of 1863 subsequently allowed the Union armies to round up citizens suspected of being spies and saboteurs (Morgan 1980: 20). When upon the cessation of hostilities, the military relinquished its intelligence role, private detective agencies, notably the Pinkerton Agency, filled the void as no federal intelligence and security agencies were yet developed. One exception was the U.S. Secret Service, created in 1865, whose officers engaged in intelligence work during the Spanish-American War.
In 1870, the U.S. Justice Department was created, but it initially had no law enforcement agency and relied on other agents, especially from the Secret Service, for internal intelligence activities, for instance to investigate corruption among members of Congress (Deflem 2006). The first special investigators were assigned to the Justice Department at the end of the 19th century to investigate selected federal crimes. After Congress had opposed the creation of a dedicated Justice Department enforcement agency, President Theodore Roosevelt in 1908 established the Bureau of Investigation by executive order (the word ‘Federal’ was added in 1935). Originally charged with only a few federal offenses concerning interstate commerce, the Bureau would gradually expand its responsibilities on the basis of new federal criminal laws, such as the 1912 Mann Act that prohibited the interstate transportation of prostitutes. Domestic intelligence responsibilities would follow alongside of these expanding tasks.
The main domestic threat in the United States during the earliest decades of the 20th century argued to justify domestic intelligence came from threats from individuals and anarchist groups. President William McKinley was assassinated by an anarchist in 1901, leading to efforts, both domestic and international, to target radical ideological individuals and groups (Deflem 2002: 66-68). Domestically, the Secret Service in the Department of the Treasury, not the Bureau of Investigation in the Justice Department, was at this time still the agency that provided for domestic intelligence. This situation changed in 1916, when the Justice Department requested an amendment to take control over investigations from the Secret Service.
After the United States joined World War I, the Bureau of Investigation and other branches of the Justice Department secured primary responsibility over domestic intelligence work. An expanded federal legal framework, passed during and because of the war, promoted a continued expansion of domestic intelligence institutions. In 1917, the Immigration Act (expanding the category of excludable aliens from the US) and the Espionage Act (making it illegal to oppose wartime policies) were passed. The Sedition Act (forbidding criticism of the government) and the Immigration Act (allowing for the exclusion of ‘subversive aliens’) followed in 1918.
After the war, U.S. domestic intelligence changed focus from German enemy agents to radical and anarchist individuals and groups. A specialized General Intelligence Division was created in the Justice Department under the supervision of J. Edgar Hoover and engaged in numerous raids against radicals, collecting some 10,000 people believed to be communists (Deflem 2002: 118-119, 122). These so-called Palmer Raids (named after Attorney General A. Mitchell Palmer) raised concerns over the domestic powers of the Justice Department and its investigators. In response, President Calvin Coolidge chose Harlan Fiske Stone, a well-known critic of the Palmer Raids, to become the new Attorney General in 1923, but a year later J. Edgar Hoover was appointed Director of the Bureau of Investigation. With its responsibilities restricted to a limited number of criminal law enforcement duties, the gathering of domestic intelligence was initially not within the province of Bureau operations.
The Centrality of World War II
The most important change to the rise of the domestic intelligence apparatus in place in the United States today took place during the build-up towards World War II. As early as 1934, President D. Franklin secretly directed the Bureau of Investigation to investigate the American Nazi movement. Invoking the Appropriations Act of 1916, the FBI became the central agency responsible for many aspects of domestic intelligence work from here on out (Theoharis 2004: 46). In 1938, President Roosevelt and FBI Director Hoover secretly met to form the Interdepartmental Intelligence Conference, involving the FBI along with the Office of Naval Intelligence and the Military Intelligence Division. This initiative was a historically crucial moment in the building of American domestic intelligence because it was the first time that a “structure composed of specialized agencies with core competencies in such matters would focus on, direct, and coordinate all espionage, counterespionage, and sabotage investigations involving the federal government” (Batvinis 2007: 68).
Although the U.S. government was formally committed to neutrality on the war that had erupted in Europe after Nazi Germany had invaded Poland, President Roosevelt in 1939 formally charged the FBI to investigate violations of neutrality laws, espionage, sabotage, and subversive activities, thereby adding an additional 150 agents to the Bureau. During World War II, the FBI was responsible for all domestic intelligence as well as foreign intelligence in South America. Although FBI Director Hoover had hoped for the Bureau to be in charge of all intelligence activities, the leading U.S. intelligence agency for all foreign nations besides South America was the Office of Strategic Services (OSS), the forerunner of the Central Intelligence Agency (CIA), which was created in 1947 (Hulnick 2009).
During the war, the FBI expanded greatly, both in terms of personnel and financial support, powers it would not relinquish thereafter (Deflem 2006; Keller 1989). With the advent of the Cold War, the FBI’s domestic intelligence focus shifted towards communism as well as other radical and extremist groups, such as the Ku Klux Klan. Anti-communist intelligence already dated back to the war when in 1943 a large investigation called Comintern Apparatus (or COMRAP) was initiated to investigate if the Soviet Union was trying to recruit US citizens as agents. Various specialized indexes, such as the Custodial Detention Index and the Security Index, were created to collect information on suspected extremists and radicals. Domestic spying against suspected communists among the U.S. citizenry took on infamous proportions when the House Un-American Activities Committee, with assistance of the FBI, focused attention on U.S. citizens in positions of power who might have connections to communism. Related activities by Senator Joseph McCarthy also fueled the notion that domestic intelligence was needed to halt a suspected Communist subversion process.
The 1947 National Security Act led to the Central Intelligence Agency, the focus of which was to be on external rather than internal threats. An inevitable competitor of the CIA, the FBI by implication nonetheless was granted domestic intelligence responsibilities and greater autonomy to conduct such activities under an expanding legal framework, such as by passage of the Communist Control Act in 1954. In part supported by the public’s fear of a threat of communism from abroad, counterintelligence programs at home were expanded as well. Most famous is the COINTELPRO program that was targeted at communist groups but later grew to include other internal threats (Davis 1992). At the same time as the FBI expanded its domestic surveillance powers, the CIA’s domestic intelligence gathering capacities also increased. For example, the CIA oversaw a program known as CHAOS that focused on external influences on Americans’ ideologies related to any protest activities in the US.
The most far-reaching FBI domestic intelligence program was Communist Infiltration (COMINFIL), which began in 1956 and continued even after the sharp decline of American participation in the Communist Party. The 1960s expanded domestic intelligence towards the civil rights movement, protest groups, and hate groups. While primary responsibilities in these matters were handled by (local) law enforcement, the FBI was involved whenever connections with Communism were feared or argued to exist. Such COINTELPRO programs were specifically initiated for socialist workers groups, white supremacists, black extremists, political student groups, and anti-Vietnam War organizations, amongst others.
The Modern Era
The 1970s proved to be an important decade in the history of American domestic intelligence. U.S. President Richard Nixon attempted to increase the amount of domestic surveillance that would be allowed, but the only outcome of this effort was a lowered minimum age for informers so that college students could be included. As the legislators and the public at large generally became more and more concerned about privacy issues, several hearings were held by the US Senate Committee on the Judiciary Subcommittee on Constitutional Rights. Of course, the Watergate affair also impacted the debate as the CIA came under fire for its domestic spying role and was itself being investigated in 1975. The Senate Select Committee to Study Governmental Operations with Respect to Intelligence Activities, or the Church Committee (named after chairperson Senator Frank Church), completed these investigations, and found several abuses of power by the CIA, the FBI, as well as intelligence agencies in the military. For instance, the CIA was discovered to have been involved in domestic intelligence activities by seeking to uncover foreign intelligence by means of opening and photographing first class mail within the United States (Sinha 2013).
In light of concerns revealed about the powerful reach of the FBI and following the death of Director Hoover in 1972, Congress passed the Foreign Intelligence Surveillance Act (FISA) in 1978. FISA regulations require a court to approve the use of electronic surveillance on foreign agents and international terrorists operating within the United States.
In the 1980s, the FBI shifted its effort towards investigating organized crime and terrorist attacks against U.S. citizens, concerns on which the Bureau readily received popular support. The legitimacy of the FBI, however, would again be severely damaged during the 1990s under influence of several problematic incidents involving federal officers using lethal force against U.S. citizens, most notably the shootings at Ruby Ridge in 1992 and the siege at Branch Davidian headquarters in Waco, Texas in 1993. Both of these incidents also motivated the Oklahoma City Bombing on April 19, 1995, at that time the worst terrorist attack on American soil, whereby 168 people died. The investigation and subsequent prosecution of the perpetrator, Timothy McVeigh, would again be considered an FBI success.
In part because of the collapse of Communism in Eastern Europe from the late 1980s onwards, the 1990s witnessed a shift towards terrorism and the domestic implications of its response. The terrorist age as we know it today was initially launched with the 1993 bombing of the World Trade Center, which led to the death of 6 people. The investigations into the attack successfully lead to the arrest of the person who was driving the truck that transported the bomb used as well as the arrest of other perpetrators involved. Subsequently, the FBI could strengthen its anti-terrorist role in the wake of the attack on the Khobar Towers in Saudi Arabia in 1996, the coordinated bombings of the American embassies in Kenya and Tanzania in August 1998, and the bombing of the USS Cole naval ship in October 2000.
Needless to argue, the most impactful recent milestone event for domestic intelligence was September 11, 2001, after which police and intelligence powers were expanded and strengthened in numerous ways. The USA PATRIOT Act authorizing special investigative powers of surveillance was passed in October 2001, and a new Department of Homeland Security, with a host of institutions and security agencies, was created in November 2002. The present state of and debate on domestic spying in the United States is greatly shaped by the 9/11 experience.
U.S. Domestic Intelligence Post 9/11
The events of 9/11 have far from settled the question whether or not the United States would benefit from a specialized domestic intelligence agency, how problems associated with information sharing information among the different existing security and intelligence organizations can be handled, and how US citizens’ privacy and other civil liberties can and should be balanced with national security needs. In fact, the present era of domestic intelligence in the United States is no less complicated than it has been historically. Charting the basic components of contemporary conditions and issues, attention must go to the domestic intelligence capabilities of law enforcement, both at the federal and local level, as well as the secret intelligence programs that were implemented following the events of 9/11 and the debate that has erupted when they were revealed.
Domestic Intelligence and Law Enforcement
American law enforcement agencies, as their counterparts in many nations across the world, have witnessed considerable shifts and transformations since the events of September 11, including a more resolute adoption of intelligence work. Most outstanding in this respect at the federal level has been the re-organization of the FBI as a federal security agency whose primary responsibility is terrorism (Deflem 2006, 2010: 45-48). Terrorism had already moved to the foreground of the FBI’s mission during the 1990s, especially following the World Trade Center Bombing in 1993 and the Oklahoma City Bombing in 1995, but the terrorist attacks of September 11 made terrorism the FBI’s primary focus. Closely related is a resolute orientation in the FBI towards developing domestic intelligence capabilities. While functionally akin to the activities of self-standing domestic intelligence services such as they exist in other countries (see below), the FBI’s role is more restrictive in terms of terrorism and related major security concerns.
Additionally of note is that contemporary domestic intelligence work in the U.S. has also been advocated to be developed at the local level of municipal and state law enforcement agencies, presenting an altogether new role to these agencies (Deflem 2010: 73-86). As of now, local intelligence capabilities among local police are only developed, however, in selected organizations of large metropolitan areas, such as the New York City Police Department, where special needs are argued to justify such special re-organizations. Smaller police agencies have generally refrained from activities that could perceived as spying on the local population.
The complex nature of the system of U.S. domestic intelligence and security agencies presents special problems even in an attempt to merely chart relevant organizations and activities (Treverton 2008). Pertinent agencies in the world of intelligence, security, and law enforcement cover more than just terrorism and national security issues and can also pertain to major crimes such as money laundering and drug smuggling. While the FBI generally takes the lead on domestic intelligence matters, there are other groups that play a relevant role, such as the foreign intelligence service CIA, the NSA, and agencies in the Department of Justice as well as the Department of Homeland Security. The domestic intelligence structure in the United States is as such essentially multi-layered. Seeking to coordinate the various intelligence activities, a new cabinet-level Office of the Director of National Intelligence was established in 2004, but this new coordinating agency is not found to have any meaningful impact (Deflem 2010: 41-42).
Additionally contributing to the complexity of the U.S. situation is that relevant policy decisions and legal frameworks may exist relatively independent from the work that is done at the level of the agencies of intelligence and law enforcement (Deflem 2010: 54-71). By example, the Patriot Act (the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorist Act) which was signed into law on October 26, 2001 has received much scrutiny. However, much less observed is the fact that the Act mostly specifies ways to allow for expanded powers of investigation and intelligence gathering, with an emphasis on advanced technological means of inquiry, which police and other security organizations had already developed irrespective of the new federal law (Deflem 2010: 60-61).
Secret Domestic Intelligence Revealed
Domestic intelligence work by the FBI in the post-9/11 era has at times been the subject of scrutiny and debate, for instance with respect to the rights of Muslim U.S. citizens to worship without the interference of government surveillance. Nothing has compared, however, to the vigorous debates that have erupted following the revelations of secretly conducted intelligence programs by the National Security Agency (NSA) in 2005 and 2013.
In December 2005, it was revealed through news reports in the New York Times that the NSA had been engaged in a domestic surveillance program that been secretly ordered by President Bush in the wake of the events of 9/11 (Deflem 2010: 39-40; Deflem and Dilks 2008; Wong 2006). Created in 1952, the NSA’s main function is to protect the integrity of information systems in the United States while investigating and intercepting the codes used by potential foreign adversaries. Referred to as the Terrorist Surveillance Program, the secret program President Bush authorized in 2002 allowed the NSA to engage, without formal court approval, in surveillance of communications involving a U.S. citizen whenever a foreign party was also involved and either one was suspected of involvement with al Qaeda or related terrorist groups. In 2006, it was additionally revealed that the NSA was keeping logs of multiple billions of domestic phone calls.
Upon revelation of the NSA program, the American Civil Liberties Union (ACLU) and other civil liberties groups filed lawsuits against the Agency. President Bush in a public televised address defended the actions as necessary for national security in the post-9/11 era, while critics argued that the Fourth Amendment provision on illegal search and seizures had been violated. In 2006, a federal judge ruled the program to be unconstitutional, whereupon new federal laws were passed to allow for non-court approved foreign intelligence while providing protections towards domestic intelligence.
The most recent revelations concerning intelligence work by U.S. agencies that have had problematic consequences occurred in the summer of 2013 when The Guardian and Washington Post newspapers reported on the purported massive scale and deep nature of surveillance work by the NSA that was revealed by private security contractor Edward Snowden (Sinha 2013). A former CIA employee and computer security expert, Snowden worked for a computer company’s NSA-related sharing activities when he began suspecting the NSA’s surveillance activities violated constitutional protections. The intelligence files Snowden copied and turned over to a few select journalists revealed that the NSA had been engaged in far-reaching and deeply penetrating intelligence work. Though mostly pertaining to foreign individuals and groups, these activities also included domestic spying programs that involved the monitoring and collection of U.S. citizens’ emails, cell phones, and the internet, including the data of private companies such as Yahoo and Google. The Snowden revelations brought about a renewed and invigorated attention towards so-called ‘mass surveillance’ within the United States, although it primarily involved global surveillance directed abroad from the United States, but also from other nations. A closer look at the (domestic) intelligence conditions in selected other countries will therefore be useful.
Domestic Intelligence Around the World: A Comparative Look
The global constellation of domestic intelligence consists of a complicated amalgam of stated and implied functions and objectives, underlying philosophies, and institutions. It is instructive, not least of all to properly situate the American experience, to take a look at the main characteristics of domestic intelligence in a number of different countries. This review, of course, is necessarily selective, but it should nonetheless be useful in view of providing a clarification of issues and problems useful to assess the state and direction of the domestic spying debate in the United States. The countries discussed in the following pages are known for their political, cultural, and economic connections and/or similarities with the United States as well as, importantly, the fact that they have a specialized domestic intelligence agency unlike the United States.
The Commonwealth: Canada and The United Kingdom
In more than geographical respects the nearest neighbor to the United States, Canada has had relatively few cases of homegrown-based terrorism in recent years, yet it is suspected that the country has been an unwilling host to more representatives of international terrorist networks than any other country in the world. In Canada, the Canadian Security Intelligence Service (CSIS) is responsible for domestic intelligence (Chalk 2009a; Deflem 2010: 89-91). Created by an act of Parliament in 1984, CSIS was established as the sole agency responsible for internal surveillance, a function which until then was overseen by the Royal Canadian Mounted Police (RCMP). The creation of a dedicated intelligence agency was decided upon after the Royal Commission of Inquiry into Certain Activities of the Royal Canadian Mounted Police had highlighted problems with the co-existence of intelligence and police powers in the RCMP. In the 1980s, CSIS primarily focused on counter-espionage, but from the 1990s onwards its focus has been more and more directed at counterterrorism. The Service is part of Public Safety Canada, the government department that was created in 2003 in succession of Public Safety and Emergency Preparedness. Strikingly, Canada has no foreign intelligence service.
CSIS conducts a wide range of intelligence efforts, from signals intelligence to human intelligence. Relying on a multitude of data sources (such as electronic surveillance, bugging and wiretapping, and opening emails), all CSIS operations have to be approved by a federal court affidavit. The Service also oversees domestic security screening, for instance to determine the legitimacy of individuals applying for citizenship and to assess the potential threat of foreign nationals posing a risk to Canadian security. Though formally separated from law enforcement, CSIS is a partner in the so-called Integrated National Security Enforcement Teams that have been established since 2002 to enhance information sharing among intelligence as well as with police agencies. Similar to the often-reported tension that exists in the United States between the FBI and the CIA, Canada’s central agencies for intelligence (CSIS) and policing (RCMP) have been known to regularly be at odds over respective responsibilities. This inter-agency tension was especially strong in the immediate years following the creation of CSIS as the Service was specifically set up against the RCMP’s earlier dual mandate of intelligence and police. Since then, a system of liaisons has improved communications between the agencies.
Not unlike other countries committed to liberty and privacy, concerns exist over the potential of Canada’s CSIS to violate citizen rights. To prevent such problems, the CSIS Act that set up the agency also established two main oversight bodies: the Security Intelligence Review Committee and the CSIS Inspector General, both of which are held accountable by the Minister of Public Safety to monitor compliance of CSIS activities with policies and laws. Furthermore, all domestic intelligence activities have to be authorized in the Canadian federal court system.
Given Canada’s specific system of external oversight, the Canadian Security Intelligence Service has been used “as a model for informing the development of newly configured domestic security institutions in countries emerging from highly authoritarian nondemocratic rule” (Chalk 2009a: 57). Nonetheless, CSIS has not been without problems and criticisms, both in terms of suspected flaws in efficiency and for at times misrepresenting its activities to the courts.
The United Kingdom is probably best known world-wide as a nation that has both a domestic and a foreign intelligence agency, the famous MI5 and MI6, respectively (Clutterbuck 2009; Deflem 2010: 92-93). The current intelligence situation in the United Kingdom dates back to the creation of the Metropolitan Police Force in 1829, which brought out the role of intelligence gathering towards the prevention of crimes, including public disorder and revolutionary activities. These activities included deploying plain clothed officers to act on criminal matters while gathering intelligence related to public disorder, meetings of revolutionary groups, and refugees. In 1883, a Special Branch formed within the Criminal Investigation Department (CID) of the Metropolitan Police to respond to a campaign of bomb attacks carried out in the name of Irish Republicanism.
In 1909, the Secret Service Bureau was created in order to counter the threat of foreign espionage. In the years after World War II, the functions of the Security Service and of the police were more carefully differentiated. Issues of terrorism erupted from the 1960s onwards in view of terrorist activities associated with the Irish Republican Army (IRA). As a result, the Security Service (MI5) has been working closely with other intelligence agencies such as the Secret Intelligence Service (MI6), which is tasked with gathering information from outside the UK, and the Government Communications Headquarters, which is focused on intelligence-related electronic communications. The events of 9/11 drastically transformed the Security Service, when it began to focus primarily on the threat posed by al Qaeda and similar Islamism extremist networks.
The UK government did not officially acknowledge the existence of the Security Service until the Security Service Act of 1989. The Service does not restrict its domestic intelligence gathering activities to counterterrorism, but gathers information and intelligence on all possible threats posed to the security of the United Kingdom. The principle intelligence gathering techniques used by the Security Service, such as covert human intelligence sources and interception of communications, must be formally authorized subject to the Regulation of Investigative Powers Act 2000. The most intrusive techniques, such as eavesdropping operations, must even receive personal authorization from the Home Secretary, to whom the Director General of the Security Service must answer.
Whereas in the United States intelligence and investigative powers co-exist within the FBI, MI5 is distinct from police agencies with which the domestic intelligence agency maintains cooperation. Specifically, MI5 works with law enforcement agencies through ‘Special Branches’ (Masse 2003). These special branches are located in various police agencies to counter terrorism and other security concerns at the local level. MI5 is responsible for collecting intelligence and assessing associated security risks, while the police forces are responsible for collecting evidence for use in legal proceedings.
The MI5 intelligence service is subject to several accountability mechanisms. Political oversight exists at the ministerial and parliamentary level as the Service is subject to the authority of the Home Secretary, who in turn is responsible to Parliament for the Service’s activities. The Intelligence and Security Act of 1994 created the parliamentary Intelligence and Security Committee, made up of counselors who report annually to Parliament. Additionally, an Investigative Powers Tribunal is mandated to investigate any complaints coming from the public about the Service.
Continental Europe: France and Germany
Turning to the European continent, France has the sometimes dubious distinction of having among the most extensive experience with intelligence and related law enforcement systems (Warnes 2009a). The French domestic intelligence organization is the General Directorate for Internal Security (‘Direction générale de la sécurité intérieure,’ DGSI) that was formed in 2008 by uniting the two earlier agencies of the ‘Direction de la Surveillance du Territoire’ (Directorate of Territorial Surveillance, DST) and the ‘Direction Centrale des Renseignements Généraux’ (Central Directorate of General Intelligence, DCRG). These two agencies were set up in the wake of World War II.
Originally, the DST mission was to research and prevent, on the territory of the French Republic, activities planned or committed on behalf of foreign powers that threatened the security of France. The mandate of the DCRG differed in its focus on inquiries concerning intelligence destined to inform the French government in matters of internal security. The DCRG’s mandate was thus broader and oriented at collecting information relating to terrorism as well as a wide range of social and political activities. In any case, since the amalgamation of the two agencies in the General Directorate for Internal Security in 2008, all domestic intelligence functions are united in one agency. Within the agency, various specialized units exist, such as on economic protection, terrorism, and counter-espionage.
As in other democratic nations, French intelligence operations face the dilemma of aspiring to work efficiently while not violating citizen rights. Civilian oversight concerning intelligence work has most recently been strengthened by placing the DGSI directly under the Ministry of the Interior, outside of the structure of the French national police.
Likewise known for its longstanding traditions of elaborate security and surveillance systems, Germany has a unique domestic intelligence structure because there are numerous independent intelligences in the 16 national ‘Länder’ (states) of the country (Warnes 2009b). As ordered by the allied powers after World War II, then West-German authorities were in 1949 instructed to create an intelligence organization that was completely independent from the police. This arrangement brought about a separation of intelligence and policing functions alongside of a division of powers at the federal and state levels that exists until this day. At the federal level, the Federal Office for the Protection of the Constitution (‘Bundesamt für Verfassungsschutz,’ BfV) fulfills the role of Germany’s domestic security agency. Besides espionage in foreign nations, the BfV collects and analyzes intelligence on individuals and groups in Germany that pose any threat to the constitution and domestic security of the country. The organization is also responsible for cooperation among its counterparts at the level of the 16 states and the coordination of all domestic intelligence.
Under influence of left-extremist activities in the 1970s, involving assassinations and kidnappings, intelligence activities in Germany have a longstanding history of focusing on radical and extremist groups. As a result of the discovered al Qaeda connections with terrorist cells in Germany, the BfV has been actively involved in monitoring the threat of Islamist extremism as part of the agency’s monitoring of all activities directed against the free democratic order. Collected intelligence is entered into the BfV’s intelligence database, which, because of the separation between intelligence and police, is not accessible to state and federal police authorities. Historically, cooperation between Germany’s intelligence and police agencies was limited, but a 1973 law changed this situation and mandated systems of police-intelligence cooperation be developed. Oversight of Germany’s domestic intelligence occurs through several different controls, mostly emanating from the federal parliament.
Implications and Lessons for the United States
Analyzing the case studies of democratic nations with specialized domestic intelligence agencies, some common themes emerge in terms of organization and policy (Chalk 2009b). Typically, countries that have separate domestic intelligence agencies reserve powers of arrest and detention for law enforcement agencies (Deflem 2010: 91-96). Rigorous systems of civilian oversight are instituted, more so than is the case where only foreign intelligence is concerned. Similar to law enforcement officials relying on information from members in the community to solve crimes, domestic intelligence services also have to rely on cooperation from the public and can therefore not be as divorced from the public as foreign intelligence agencies often are. Further, in matters of counterterrorism, in particular, domestic intelligence agencies are not the only players but perform a role next to, and in cooperation with, other intelligence and security organizations. Finally, it is interesting to observe that while foreign intelligence agencies, such as the CIA in the United States, are sometimes found (and criticized) to be involved in domestic intelligence work, specialized domestic intelligence agencies at times also engage in foreign intelligence work.
The question can be asked if it is possible to draw lessons from these experiences for the United States or even to develop a U.S. domestic intelligence agency similar to those found in other democracies. From a scholarly informed viewpoint, it can readily be stated that any precise conclusions from comparative analyses are always precarious at best. Strikingly, however, the United States has witnessed, in the aftermath of the events of 9/11 and the failures that were then and have since been attributed to the intelligence and security community, occasional calls to create a dedicated domestic intelligence service.
Desirable or not, it is possible to entertain the question whether the U.S. should develop a domestic intelligence agency (Burch 2007; Masse 2003). Taking by example the United Kingdom and its domestic intelligence service MI5, which from time to time has been suggested as a model for developing a similar agency in the United States, it is to be noted that there are perhaps not many but definitely some noteworthy political, legal, and cultural differences between the United Kingdom and the United States (Masse 2003). At the political level, the UK’s national parliamentary structure is distinct from the US where power is decentralized in a federalist system. Moreover, in the UK parliamentary system the power of the executive lies in the Cabinet (formed by the Prime Minister), while in the U.S. federal system power rests with the presidency. As a result, the British executive has fewer constrains in policy development and implementation than the US President.
Aside from governance structure, and perhaps the most significant difference between the two systems as it relates to domestic intelligence, is that the UK has no formal, written constitution securing rights for individuals as the U.S. Constitution does (Masse 2003). Whereas the US Supreme Court has final jurisdiction over the constitutionality of federal and state laws, the UK’s Parliament has final authority over law. And while the British system is based on common law established by courts and Parliament, the US system has a written constitution that establishes individual rights of its citizens against government intrusion. As such, the British system can be said to be more flexible than the American rule of law as it can adapt much more quickly (Marks 2010: 83).
At the operational level, relationships between domestic intelligence and law enforcement as well as between domestic and foreign intelligence are different in the US and the UK (Masse 2003). Since domestic intelligence and law enforcement are separated in the UK, coordination and cooperation pose a challenge. Should the US intelligence and law enforcement apparatus be structured in a similar way, problems of coordination would be exponentially increased due to quantity of police organizations across the US (with its more than 13,000 state and local law enforcement agencies) (Masse 2003). Similarly, there is a difference between how the UK and US approach the relationship between domestic and foreign intelligence activities. In the US, the separation between domestic and foreign intelligence work has been argued to have blurred to a greater extent.
Culturally, finally, the UK and the US differ with respect to public attitudes and perceptions on each respective country’s intelligence apparatus (Masse 2003). Many US citizens believe that intelligence is something that should be primarily, perhaps even exclusively, oriented at foreign countries. Americans are unlikely to tolerate the intrusiveness that comes with the British domestic intelligence apparatus (Deflem and McDonough 2015; Marks 2010). The dubious practices of the McCarthy era and the excesses of Hoover’s FBI are still remembered as problematic episodes in what can go wrong with domestic intelligence.
Irrespective of civil-liberty concerns, the issue of effectiveness of intelligence and related security tasks cannot be ignored, especially not in light of the continued threat of terrorist activities and other dangers affecting national security. It can be suggested that the experiences of countries similar to the United States but with self-standing domestic intelligence agencies, such as the ones reviewed above, can be examined to reveal critical factors needed for creating an effective domestic intelligence system (Burch 2007). Those in favor of establishing a U.S. domestic intelligence agency often argue for its value in preventing terrorist activities. However, intelligence organizations focused solely on domestic intelligence gathering have also not proven their ability to prevent terrorist attacks, as demonstrated, for instance, by the failure to prevent the terrorist bombings against London transportation systems in July 2005. While systems to provide legal and political oversight are generally well developed in nations that have specialized domestic intelligence agencies, they may lack a degree of independence to get valuable work done efficiently. In any case, rather than creating a separate agency, the trend in the United States has been towards enhanced cooperation and coordination among existing and newly developed agencies.
The Debate on Domestic Spying
From a social-problems point of view, it must remain important to offer a sound academic analysis of the patterns and dynamics as well as structures and processes of domestic intelligence in a variety of contexts located in space and time. At the same time, it should also be possible to uncover why certain social events and issues invoke strongly normative responses that hint at the negative impact of observed social realities and the need for change. As such, the debate on domestic spying incorporates both considerations related to the practical and relatively technical aspects of domestic intelligence work as well as the normative concerns that such intelligence activities invoke regardless of attained or aspired effectiveness.
Effective Intelligence
From a practical perspective interested in establishing effective security, domestic intelligence work in the United States and elsewhere raises several important issues. First, the activities of domestic intelligence and law enforcement operate in different fields. Law enforcement aims to prosecute crime, while domestic intelligence seeks to gather information (Burch 2007; Treverton 2008). There is an increase in so-called ‘intelligence-led policing’ that is justified on the basis of terrorism and other contemporary concerns. As such, the worlds of law enforcement and intelligence may have come closer together in light of operational strategies. In the United States, in particular, however, the shift towards domestic intelligence in law enforcement does not meet with great popular support. Such practices are reminiscent of the days of anti-Communism when the FBI and other agencies were criticized for being overly intrusive.
In the United States as in many other parts of the world, increased bureaucratization of intelligence gathering systems has led to challenges associated with the sharing of information as agencies enjoy relative independence from one another (Deflem 2010). A great many organizations are involved in gathering information, but they do not always share information with each other in a systematic way. Recent efforts such as the creation of the Department of Homeland Security and presidentially directed collaboration efforts have not been found to effectively increase cooperation among agencies on the ground. As highly professionalized bureaucracies, relevant agencies in multiple departments and jurisdictions remain autonomous from each other. For instance, although the FBI is the lead-agency in matters of terrorism and intelligence activities on a national level, there is no clear leader in domestic intelligence (Hulnick 2009).
As revealed throughout the history of domestic intelligence services, information sharing is both a key objective as well as a continuing challenge to intelligence and related security work (Deflem 2010; Treverton 2008). In particular, the FBI and CIA in the United States are infamously known for not cooperating well, if even at all. More generally, domestic intelligence agencies are known not to easily exchange information among one another, and a ‘wall’ is often observed to exist between intelligence groups and law enforcement agencies. The competition that exists between agencies has also impacted intelligence sharing because each respective agency wants be credited for its successful investigations. Additionally problematic in a decentralized system of governance such as the United States are the difficulties that are found in information exchange among different levels of domestic intelligence at the federal, state, and local level. In response, fusion centers for information sharing have been set up by the Department of Justice and joint enforcement teams have been established, such as the Joint Terrorism Task Forces directed by the FBI (Deflem 2010: 48, 63-64). But such efforts have not always been working well as local agencies may not always be willing to relinquish to the federal command under which such cooperation efforts are placed.
In most recent years, especially since and because of the events of September 11, the scope of investigations has broadened for many intelligence and security organizations, and their intelligence-gathering efforts have consequently expanded. Moreover, new communications technologies have greatly facilitated the transmission of information so that the information that circulates for collection has increased exponentially over the past decades (Treverton 2008). As a result, the amount of data that has been collected by intelligence and security agencies has expanded greatly. Yet, while billions upon billions of data may have been collected, the separation of actionable information from the giant mass of collected information has become a more and more daunting task.
Legality and Ethics
The debate on domestic spying among civil libertarians, security officials, and the public at large revolves around important normative matters that have legal and political implications and foundations (Deflem and Dilks 2008). From a legal perspective, intelligence officials and political representatives will typically argue that domestic intelligence activities are constitutionally and legally enacted and justified in view of special circumstances, such as the precarious state of international and domestic security in the wake of the events of September 11. Following the revelations of the NSA Terrorist Surveillance Program, by example, President Bush justified secret domestic intelligence activities on the basis of the Authorization of Military Force that passed on September 14, 2001 (Deflem 2010: 38-39; Deflem and Chicoine 2013). The federal law gave congressional approval to the executive to use all necessary means, particularly military measures, against persons and organizations responsible for the 9/11 terrorist attacks. Not only would these special powers be used to justify the Presidential decision to launch military interventions abroad, such as those initiated in Afghanistan in 2001 and in Iraq in 2003, they would also allow investigations into suspected terrorists inside the United States and to gather intelligence on U.S. citizens when deemed necessary in the interest of national security.
Critics of the special counterterrorism means enacted in the wake of 9/11 have argued that presidential powers must always be overseen by judicial and congressional oversight and scrutinized on the basis of the principles of checks and balances among the branches of government. Therefore, for instance, it was argued that the NSA warrantless surveillance program even on legal grounds alone was not justified because it violated the National Security Act of 1947 which mandates that members of the intelligence oversight committees in Congress be informed of such activities (Deflem and Dilks 2008).
Extending from the political and legal framework, the normative issues involved with domestic spying operations typically revolve around concerns over the need for security, on the one hand, and the invasion of privacy and other civil liberties, on the other. In the post-9/11 era, the arguments to defend intelligence and surveillance programs are especially defined in terms of a host of ongoing threats to security, not least of all terrorism, but also the proliferation of weapons of mass destruction and the shifting global dynamics, with important local implications, of related security issues. Under such precarious conditions, it can be suggested that citizens should and are indeed reasonably willing to surrender some measure of their privacy and other civil liberties and that the gains and positive contributions of provisions of security, surveillance, and intelligence cannot be simply ignored (Dunér 2005). From this perspective, it has been suggested that domestic intelligence can and, indeed, must be maintained and if necessary expanded, either in the form of a specialized agency, which in the case of the United States would have to be newly developed (Posner 2005), or by strengthening existing intelligence capabilities (Svendsen 2012).
Critics, on the other hand, have argued that domestic spying is under most if not all circumstances to be scrutinized as unnecessary violation of personal rights and privacy (Deflem and McDonough 2015). Coming from both civil-liberties advocates, such as the ACLU, as well as certain scholars in law and surveillance studies, domestic surveillance activities are condemned as fundamental violations of central principles of rights protection and democracy. Recent advances in technologies of communication related to computerized data systems and the internet have made these concerns even more poignant.
In view of concerns over privacy rights, some scholars have argued that formal systems of accountability, such as judicial review and congressional oversight, will never be sufficient to prevent abuses in the case of domestic spying as such legal provisions necessarily face limits when the secretive world of intelligence gathering is involved (Berman 2014). There are indeed, as noted time and again in the popular media, many challenges raised in relation to the protection of civil liberties and effective oversight of domestic intelligence organizations. For example, although in the years after September 11, 2001 there were several attempts to create a new intelligence agency in the United States, arguments against such an agency have consistently prevailed on the basis of considerations related to privacy rights (Jackson 2009).
In the years immediately following the events of 9/11, survey results show, U.S. citizens were relatively accepting of counterterrorism measures even when they curtailed civil liberties (Deflem and McDonough 2015). In more recent years, however, findings reveal that popular concerns have shifted from a fear of terrorism to a fear of counterterrorism, surveillance, and a loss of privacy. The revelations concerning domestic spying aspects of the NSA global surveillance programs have intensified these sentiments. In light of both concerns over national security issues involving radicalization and terrorism, on the one hand, and continued cultural dispositions towards the protection of privacy and civil liberties, on the other, domestic intelligence activities will continue to present special problems, both practically as well as legally and ethically. Under these circumstances, the debate on domestic spying is unlikely to go away any time soon.
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