Why Americans Do Not Like Their Government Spying on Them

Should the US Create a Domestic Intelligence Agency?

When the FBI’s COINTELPRO came under fire from the Select Committee to Study Governmental Operations with Respect to Intelligence Activities (1976), one of the major problems to emerge from the Congressional investigation was that the FBI had been illegally spying on Americans. The revelation was a major embarrassment for the intelligence community at the time, as the anger of the American public had already reached a boiling point with respect to Vietnam, the Pentagon Papers, Watergate, and the major assassinations of the 1960s. In the post-9/11 world, the conversation over whether the US should have a domestic intelligence agency that is legally permitted to spy on citizens has emerged. Indeed in the decades that have passed since the shake-up of the intelligence community in the 1970s that saw James Angleton ousted from his counterintelligence post at the CIA, the American public has been conditioned to view safety and security as more important than individual freedoms and rights (Valentine, 2014). The

Defining Domestic Intelligence Agency

The definition of intelligence has broadened since the formal inception of the American intelligence community. Since the 1950s it has moved on from obtaining and analyzing information about adversaries to disseminating false information (counter-intelligence) to engaging in psy-ops (psychological warfare) against adversaries (such as the Phoenix Program in Vietnam) to engaging in black ops (off the books operations) against American citizens (as in Operation CHAOS) (Valentine, 2014). Intelligence in the US has never been strictly defined but rather used as a catch-all, umbrella appellation to justify various actions related to national security (National Counterintelligence and Security Center Strategy 2018-2022, 2018). Defining the term domestic intelligence, however, is important because the term refers to something new within the intelligence community—an agency whose focus is not on external adversaries and threats to US national security but rather an agency whose focus is on internal adversaries and threats. Jackson (2009) defines domestic intelligence as any effort “by government organizations to gather, assess, and act on information about individuals or organizations in the United States or U.S. persons elsewhere that are not related to the investigation of a known past criminal act or specific planned criminal activity” (pp. 3-4). While law enforcement agencies routinely collect information that is not directly linked to a crime, the purpose of doing so is to prevent future crime (Jackson, 2009). For a domestic intelligence agency, the collection of information would consist of “explorative activity [that] inherently involves gathering a broader spectrum of data about a greater number of individuals and organizations who are unlikely to pose any threat of terrorist activity” (Jackson, 2009, p. 5). In other words, domestic intelligence would be similar to a giant tech company, like Google, collecting information on individuals, harvesting that information and compiling the Big Data into data warehouses, and retrieving that data for analysis when deemed appropriate. One could potentially make the case, in fact, that the Big Tech companies of today are already acting in some capacity as a wing of a surreptitious domestic intelligence agency.

Existing US Legal Framework: Why No Domestic Intelligence Agency Exists and What Would Need to Change to be Able to Create One

Domestic intelligence in the US does not formerly exist under the roof of one agency, though domestic intelligence is gathered by various agencies as it pertains to their work. Law enforcement, for example, collects information that might help to prevent future crime. The difference between law enforcement and intelligence, however, is that law enforcement focuses on prosecution, whereas intelligence agencies focus on collecting information for the sake of serving national security interests. Still, multiple state fusion centers exist that have allowed for law enforcement and intelligence work to become conflated in a kind of quasi-collaborative arrangement. It is quasi-collaborative because even in the wake of 9/11 there still exists a reluctance among agencies to share information (Jackson, 2009).

One reason for this is that as the ACLU (2005) points out, “the National Security Act of 1947 contained a specific ban on intelligence operatives from operating domestically.” The 4th Amendment clearly states that Americans may not be spied upon by the government—i.e., have their privacy invaded—without a warrant that is based on probable cause. Though law enforcement officers have been granted some exceptions to this rule, such as in the case of danger to a person or the risk of evidence being destroyed, the fact remains that Americans’ right to privacy is protected legally by the 4th Amendment. Even were a murder to occur in a house, the police do not have the legal right to conduct an extensive search of that house without a warrant. It is the 4th Amendment that stands in the way of a domestic intelligence agency acting as the NSA did when it began spying on citizens during the Bush Administration (ACLU, 2005). When Snowden blew the whistle on what the NSA was doing, he fled fearing persecution from the federal government, but the reality is that he was alerting the public to illegality at the highest levels. That fact has been confirmed by an appeals court that ruled the data collection by the NSA was in fact illegal (Reuters, 2020).

For a domestic intelligence agency to be able to eavesdrop on phone calls or collect digital information from individuals without their knowledge or consent, the Constitution would have to be amended. New legislation might be passed through Congress, but if challenged it could be ruled unconstitutional by the Supreme Court. Thus, to allow for a fully functioning domestic intelligence agency, a new amendment would be required.

Pros and Cons of Creating a Domestic Intelligence Agency

Pros

The first pro of creating a domestic intelligence agency is that it would foster the idea within the public that the government is committed towards preventing another 9/11 (Burch, 2007).

The second pro is that it would theoretically eliminate the “turf war” battles between law enforcement and intelligence agencies. For example, the FBI has been viewed as conflicted because it is tasked both with law enforcement and with intelligence actions, and critics view it as first and foremost a law enforcement agency. By creating a stand-alone domestic intelligence agency, the US would no longer be troubled by whether proper attention is being given to intelligence operations or if intelligence is being thwarted by law enforcement operations taking precedence. Domestic intelligence would be its own agency with its own resources, chain of command, accounting system and so on.

The third pro is that with a stand-alone domestic intelligence agency it would be easier and more effective to recruit operatives, agents, informants, and so on. This would ensure that domestic terror groups are understood more fully and are tracked more carefully. With competing agencies attempting to pool information while simultaneously seeking to draw resources away from others, there is a drain on what could be accomplished were domestic intelligence operations housed under one roof (Burch, 2007).

Cons

One con is that introducing yet another intelligence agency simply adds to an already bloated bureaucracy roundly despised by much of the American public.

Additionally, creating a new domestic intelligence agency does nothing to address the issue of lack of collaboration among the agencies that already exist. Just because there is a new domestic intelligence agency does not mean other agencies are going to be any more willing to share information with it than they have been willing in the past to share information with one another. Collaboration would still be a major challenge for the new agency.

Finally, the potential for new abuses of power would arise. In the past, the intelligence community has shown itself willing to abuse its mandate, violate the constitution, and infringe on the rights of individuals in their data collecting initiatives. For example, when testifying before Congress on the FBI’s COINTELPRO, FBI Assistant Director William Sullivan stated that “never once did I hear anybody, including myself, raise the question: ‘Is this course of action which we have agreed upon lawful, is it legal, is it ethical or moral.’ We never gave any thought to this line of reasoning, because we were just naturally pragmatic” (The Select Committee to Study Governmental Operations with Respect to Intelligence Activities, 1976, p. 14). If the FBI was willing to act in this manner then, what would lead Americans to think a new agency given the legal authority to collect intelligence domestically would not go further and find new ways to violate the constitutional rights of individuals?

Personal Opinion and Lessons Learned from Case Studies in Jackson’s Analysis

In my opinion, the US has always served as a symbol of freedom and individual rights to the rest of the world, and one of the pillars of that freedom is the concept of personal responsibility. Other nations have not taken the same approach in their governments and have become draconian and totalitarian in their methods. American society is unique on the world stage. Were a domestic intelligence agency to be formally introduced, it would alter the genetic makeup of American society and culture and introduce a new totalitarian element that many Americans would likely refuse. It would inevitably result in political fallout and, unless the constitution were amended to permit such an agency, it is difficult to foresee how the Supreme Court could justify such an agency were the challenge to its lawful existence brought before the Justices.

Does the US need a domestic intelligence agency? This is perhaps a better question to ask. Given that the intelligence community is already quite large one should take pause before arguing that a new agency dedicated to domestic spying is really needed. What would a new domestic intelligence agency do that other intelligence agencies in the US cannot do already? Why could there not be more collaboration between the intelligence community and the private sector so that information about potentially dangerous events are routed to the appropriate authorities by companies like Google, who have intimate access to information traded on the Internet. The federal government could not be accused of spying, and the trafficking of information from the private sector to the intelligence community could be seen as being in the public interest’s common good.

On the other hand, since 9/11 the threat of domestic terrorism has been broadcasted endlessly, and various mass shootings have fueled that narrative. However, incidents like the Ft. Hood shooting could have been prevented had the FBI acted on the tips they were given by the Ft. Hood shooter’s colleagues, who literally reported the radicalization of the shooter to the FBI and requested the Bureau’s intervention. Would a domestic intelligence agency have been better prepared to act? It is possible that it would have been better positioned to intercept the shooter before the incident took place. Yet, to operate in the realm of hypotheticals does not exactly answer the question. The reality is that there is a distinct trade-off between been a free state that accepts certain risks and a police state in which there is essentially a stark limitation to one’s privacy and freedom to privacy. To bring about a domestic intelligence agency in the US would be to confirm the existence of an Orwellian police state in the minds of many critics already upset with the federal government for what the NSA has done as well as other governmental abuses in the past.

Many countries, like England, Australia and Germany, have their own domestic intelligence agencies. England has MI5. Australia has the Australian Secret Intelligence Organization. Germany alone has a “unique domestic intelligence structure in which numerous independent intelligence agencies reflect the national administrative structure of the 16 national states” (Jackson, 2009, p. 93). England’s MI5 has not been especially effective in preventing all terror attacks in the United Kingdom. Though the UK does not experience the kind of mass shootings that have become common in the US, guns are also illegal in the UK. Outlawing guns in the US would fly in the face of American culture so badly that people would surely revolt and there would be chaos. The right to bear arms is, after all, protected by the Constitution in the 2nd Amendment. Just like Americans have the right to privacy, they also have the right to own guns. England does not permit its own citizens this right. Does America really want to become like England? There are cultural lines that must not be crossed in the name of security and safety. American culture is something that American citizens feel very strongly about. It is not the same as German culture, English culture or Australian culture. It is its own system of ethics, morals and values that is distinctly American and interwoven with the laws of the Constitution. One reason changing the Constitution is so difficult is that the Founding Fathers understood what an alteration to those original set of laws would mean, and they did not want that process taken lightly or abused. They wanted there to be a clear consensus among the public and the representatives elected to vote on behalf of that public.