Before al Qaeda, before the CIA or even the National Security Agency (NSA), there was Operation Shamrock. In the late summer of 1945, while radioactive dust was still drifting off the cities of Nagasaki and Hiroshima, the U.S. Army's Signal Security Service approached the heads of America's major communications companies with a request it claimed no patriot could refuse. The companies didn't refuse.
At the time, telegrams were sent by punching holes in long strips of paper tape and scanning that tape. At the end of every day, a government agent would appear at each company and take away a copy of the paper roll with all the day's communications recorded on it. Thus, for more than thirty years, until 1975, the federal government secretly collected every international telegram sent to and received by every American, in one of the most sweeping surveillance operations in U.S. history.
All this was done without the sanction of a federal statute or the oversight of any official Congressional committee.
Electronic surveillance programs such as Operation Shamrock, implemented in secrecy without debate or legal authority, serve as a cautionary tale on how such surveillance programs impinge on the principles underpinning our democracy.
The New Era of Executive Unilateralism and Electronic Surveillance
In the past year, Americans learned of several new and vast electronic surveillance programs started in the wake of September 11, 2001. Dipping into the ocean of e-mails, telephone calls and financial transactions produced every day by millions of American citizens, these programs collect traces left by anyone who makes a phone call, sends an e-mail, takes money from an ATM or pays a bill.
Like Shamrock, these new surveillance programs lack any sanction in federal statute. Instead, they are wholly the product of unilateral executive branch action. President George W. Bush himself authorized these programs, and the Administration, acting in secret and without the benefit of Congressional debate or legislation, successfully avoided both clear constraints on its spying and the protection of independent oversight.
No one doubts the magnitude of the threat posed by al Qaeda and its allies. No one doubts the need for electronic surveillance of terrorist suspects' communications and financial transactions. In the new era of surveillance we doubtless confront quite difficult questions.
But should we make difficult policy decisions involving a balance of liberty and security in the absence of congressional or public oversight and outside the framework of the rule of law? Was the President right to authorize law-breaking programs? Have their costs to constitutional liberties been balanced by...