Address to the American Civil Liberties Union of Massachusetts Suffolk Law School, Boston, MA, May 24, 2004
By Christopher Pyle
Carol has asked me to say something about McCarthyism, then . . . and now. After all that has been said, and said so well, I'm not sure I have much to add, and I am painfully conscious of the fact that I am all that stands between you and dinner.
The Army-McCarthy hearings were my first introduction to American law and politics. My father and I watched them together. He was a teacher; I was in the ninth grade. We would race home from school at 2:15 to watch the hearings on our first TV set, which he bought for the occasion. Then I would spend the next day arguing about the hearings with my friends.
Twenty years later, I would obtain copies of some of the files that the FBI, the CIA, Army Intelligence, and the Treasury Department had collected on me. There were a lot of them, and most were trivial beyond belief. The oldest file had been opened by the FBI in 1960, when I was a junior in college, because I had signed a petition calling for the abolition of the House Committee on UnAmerican Activities. I must have signed the petition after seeing a film of HUAC's interrogations on the West Coast. What struck me at the time was not the petition, but the number of my fellow students who thought the inquisitions were a swell idea.
About the same time, I met the Reverend Willard Uphaus, who had just spent a year in jail because he wouldn't reveal who had attended his World Peace summer camp to the Attorney General of New Hampshire. The Supreme Court had upheld the minister's conviction. Uphaus was the first alleged subversive I had ever met, and I remember thinking at the time that somebody must be very clever, or extremely dumb, to think that this frail and gentle man, a card-carrying Christian in his late 70s, posed a danger to the republic. What I couldn't figure out was why anyone thought that Communists would want to overthrow the government of New Hampshire.
In 1967 I was a captain in Army Intelligence, teaching law to counter-intelligence agents in Baltimore, Maryland. In the school's library I found a remnant of McCarthyism stamped inside the cover of a book. The stamp read:
"THIS BOOK IS IN THE INTELLIGENCE CORP'S LIBRARY FOR RESEARCH PURPOSES ONLY. ITS PRESENCE ON THE LIBRARY SHELF DOES NOT INDICATE THAT THE VIEWS EXPRESSED IN THE PUBLICATION REPRESENT THE POLICIES OR OPINIONS OF THE COUNTER INTELLIGENCE CORPS OR THE MILITARY ESTABLISHMENT."
The book was the Constitution of the United States.
Shortly after I discovered that disclaimer, I was given a tour of the headquarters of the U.S. Army Intelligence Command. There, in March 1968, I learned that 1,500 plainclothes Army agents, working out of 300 offices coast-to-coast, were spying on every civil rights and anti-war demonstration of 20 people or more. Obviously I wasn't a very good teacher, because most of my former students were conducting investigations that were not part of their mission, were unauthorized by law, and violated the Constitution.
During that tour, my briefers showed me a set of six mug books entitled "persons active in civil disturbances." They called these books "the blacklist," and they were quite clearly intended for round-up purposes. My guides also showed me a giant warehouse full of files on people like you and me. The warehouse was so large that the files had to be retrieved by a computerized cherry picker that ran down the aisles on rails.
Needless to say, I was impressed. I congratulated my hosts for doing a wonderful job, and asked if they had anything I could show my students back at the Intelligence School. They proudly tore off a five-and-a-half foot long teletype printout - an intelligence summary for the week of March 11 through 18, 1968, and gave it to me. I thanked them again and, after we turned in our badges and left the building, I turned to a fellow instructor and said: "When I get out of the Army, I'm going to write an article about this."
What we had seen, of course, was not McCarthyism. It was something worse. It was a giant Hoover vacuum cleaner, the most basic equipment of a police state. The people running this machine weren't bad folks. They were ordinary people just trying to do their jobs.
Well, I wrote the article, which was published in January 1970. Over the next five years I quietly recruited 125 Army agents to tell what they knew about the surveillance to members of Congress, the ACLU, and the press. Senator Sam Ervin, Jr., who had censured Joe McCarthy in 1954, hired me to organize hearings and write reports for his Subcommittee on Constitutional Rights. NBC paid me to work on a TV documentary and the Washington Monthly gave me press credentials. I also worked for Senator Church's Select Committee on Intelligence. So, with these connections as cover, I managed not to be prosecuted for giving that printout to John Shattuck and others at the ACLU.
The printout gave the ACLU standing to sue the Army for spying on lawful political activity. Or so we thought. The trial court dismissed our case, because we couldn't prove, without access to the Army's files, that the spying had caused any harm. The court of appeals reversed. It held that "a present fear of future harm" from being the target of unconstitutional spying was enough to establish standing. One of the judges voting for us was Edward Tamm, who had been an FBI official in the late 1940s and knew what secret surveillance systems can do.
Unfortunately, the Nixon administration appealed. I remember standing in the well of the Supreme Court with Senator Ervin and asking, "Do you suppose Bill Rehnquist will come through the drapes?" Rehnquist, an assistant attorney general to John Mitchell, had just been appointed to the Court. "No," Ervin said, "that would be unethical."
Well, Rehnquist did come through the drapes, and he cast the deciding vote against letting us rummage in the Army's files. He cast that vote despite the fact that he had testified before Congress that our case had no legal merit. He had also been custodian of crucial documents in our case, which the Pentagon had given him to keep them away from Senator Ervin's sub-committee.
John Shattuck and I wrote a belated motion for rehearing and another asking Rehnquist to recuse himself, but to no avail. He had to vote, Rehnquist replied, because otherwise there would have been a tie. Only later would we learn that he had been party to the Nixon administration's decision to keep the Army spying on civilian politics.
I've always regretted that decision, and not just for the precedent it set. A 4-4 tie would have upheld the court of appeals' decision and gotten us into the Army's files, where we might well have discovered the infamous Huston Plan of June 1970. In that plan, Nixon ordered all the domestic intelligence agencies to engage in modes of spying on civilian protesters that were - and he admitted it on paper - clearly illegal. If we had found the Huston Plan, the ACLU, rather than the Washington Post, would have broken the larger Watergate story, and on the basis of something more extensive than a "third rate burglary."
Fortunately, you don't need to win every battle in order to win a war. What killed the Army's spying were the stories of former agents that were leaked to the press, week after week. The Army was so frustrated by our leaks that it established a secret 50-man damage control unit in the Pentagon. The sole task of this rather large plumbing firm was to find out who was behind the leaks and discredit them. Fortunately I had a source in the unit. He was code-named "Yellow Pants," after the mustard-colored corduroys he was wearing the day we first met, and he helped us to discredit the discreditors.
Well, to make a long story short, it took six years, but the Army Intelligence Command was abolished. All its files were burned and a wall of separation was erected between domestic intelligence activities and law enforcement.
Today, nobody remembers why that wall was erected. Back then it was still possible to think that the Fourth Amendment meant something; that everyone is entitled to some privacy, and that even searches for intelligence purposes had to have a modicum of judicial supervision. No longer. Today the wall is down, and both law enforcement and intelligence agencies can make leisurely end runs around the Fourth Amendment, either through the low standards of the Foreign Intelligence Surveillance Act, or through the even lower standards of the Patriot Act.
Back then we worried about a domestic intelligence network of a few loosely allied agencies congenitally distrustful of each other. Today we have a burgeoning network of at least 15 federal agencies, tied to more than 100 foreign intelligence agencies, 2,000 police departments, and a growing number of corporations with high powered search engines and no legal brakes. Even the Army Intelligence Command is back, together with a new continental Army command that seeks "actionable intelligence" not just to clean up after a terrorist attack, but to prevent terrorists from striking.
All our intelligence agencies - even the FBI - now possess powerful new computer systems linked to other computer systems by the fiber-optic equivalent of the great Alaska pipeline. If President Eisenhower were alive today, he would be warning us of the international industrial surveillance complex. If Senator Ervin were alive, he would be warning us about powerful search engines like Matrix, which has a contract with the Justice Department and claims to have identified 120,000 potential terrorists with its handy-dandy computer algorithms.
In 1970 the Army put me on President Nixon's "enemies list" because a general thought I must be working for the Chinese Communists. Today, a quick computer search of my bank records would reveal that I was living on the GI Bill. Back then, the government tried to punish Cindy and me with a tax audit, only to discover that she had overpaid by $158. They had to give us the money back.
Today the government doesn't have to burglarize the office of Daniel Ellsburg's psychiatrist. Under the PATRIOT Act, it could access at least some of those records by computer. The Army wouldn't have to send colonels up to Capitol Hill to spread false stories that I had fathered four children out of wedlock. It could imbed false information in my files and leak its location to Bob Novak.
In 1970 the Army put a "mail cover" on my mailbox, hoping to identify my sources. Today it would tap my e-mail and that of the reporters to whom I leaked stories.
Back then derogatory information was slowly collected, infrequently swapped, and hard to retrieve. No longer. What used to take gumshoes weeks of door-knocking to collect can now be accessed with a few keystrokes. Today enormous amounts of highly personal information, much of it inaccurate, cascades through the pipeline. Most of it, including the garbage, is stripped of its source notations before being stored in hundreds of computers here and around the world. Years from now, when someone queries those computers, they will independently report the same false story as if it were God's awful truth.
In McCarthy's day, guilt by association was common, but the number of those accusations was limited by the relatively small amount of data that the old Hoover vacuum cleaners could collect or that the cherry pickers could recover from the warehouse. Today there is a much greater risk of erroneous suspicions based on an astronomically higher number of computer-generated associations.
For example, in September 2002 a Syrian-born Canadian named Maher Arar was picked up at Kennedy Airport because his name had come up on an international watchlist. Our government thought he might be a terrorist and, rather than torture him itself, it delivered him to Syrian military intelligence. The Syrians kept him in a cell the size of grave and tortured him for ten months, before releasing him to the Canadians.
Why was Mr. Arar on the list? The Royal Canadian Mounted Police had reported that the lease to his apartment had been witnessed by an Egyptian who had a brother who had been mentioned in an Al Qaeda document. The Syrians reported that Arar's mother had a cousin who had joined the Muslim Brotherhood nine years earlier, six years after her son had made a new life for himself in Canada. That's it. That's all they had on him. But that was enough for him to be shipped abroad, to be tortured, and that kind of computer driven suspicion can happen to any of us.
Today we no longer have mere domestic spying or guilt by association. We have the indefinite detention of American citizens without trial in military, as well as civilian, jails. We have the humiliation of Muslim prisoners, not just in Iraq, but in the federal detention center in Brooklyn, New York. And we have torture: torture-by-proxy in the case of Maher Arar, and direct torture by Army intelligence, the CIA, private contractors, and military policemen who operate secret gulags in foreign lands.
Today we remember Joe McCarthy, J. Edgar Hoover, and Nixon's plumbers, but what they did was mere child's play compared to what is happening today. Thanks to the unblinking witness of digital cameras, we will probably restrain the torturers. We may even drive George W. from office, but I have real doubts as to whether we can effectively restrain this new generation of computerized surveillance agencies. Win or lose, however, we had better try, because all our liberties depend on it.
Christopher Pyle, a former intelligence officer, teaches constitutional law at Mount Holyoke College.