The government apparently harbors a different perception. At a pre-trial court hearing last summer, following Johnson’s disruption of a National Coal Corporation shareholders’ meeting and consequent arrest, a Knox County Sheriff’s deputy walked up to the stand and flipped open a thick, three-ring binder. He told the judge he represented the county’s anti-terrorism taskforce, and that Johnson, along with others from local environmental organization Katuah Earth First!, were under investigation by the Office of Homeland Security. These, he said, pointing at the binder, were their files.
Johnson recalls the deputy’s testimony with mild amusement. “They were trying to paint us as violent eco-terrorists,” he says. “I was like, well, that’s interesting, but it wasn’t a big shocker. They’ve been after radical environmentalists for some time, especially in the Pacific Northwest.”
Coincidentally, it was the same summer that Johnson and his partner Amanda Womac, who’s also involved in Katuah Earth First!, began having trouble with their home phone and DSL connection. The phone line was constantly fuzzy with static, and the Internet was frequently down. Finally, they had BellSouth install a new line, but it made them suspicious.
“We asked the phone repairman straight-up if our phone was tapped,” Womac says. “He said, ‘Ma’am, they don’t tell us if these phones are tapped or not.’ It’s just one of those things. There’s no real way of knowing.”
Johnson says he’s been working under the assumption that his phone has been tapped for years. But it doesn’t really bother him, he says, because he doesn’t have anything to hide. “It’s just another way of intimidating political dissidents and activists,” he explains.
Womac’s voice, on the other hand, is rimmed with anger when she talks about it. “I wish people would pay attention more to this. It’s totally illegal to be tapping home phones if they don’t have a warrant. We’re not terrorists. We’re not involved in al-Qaeda. We’re environmentalists.”
Despite apprehensions that their communications are still under surveillance, Johnson and Womac speak their opinions openly, Womac from a cell phone and Johnson from a landline, fueled by defiance rather than fear. Even if their phones really aren’t tapped, they say, the fact that government agencies are perpetuating such paranoia—whether intentionally or not—should be considered a crime in and of itself.
“It’s just the world we’re living in under W,” Womac says indignantly. “Put a tap on my phone if you want, but I’m still going to talk shit on you.”
The NSA has yet to confirm or deny the allegations. NSA spokesperson Don Weber offered the following explanation to our inquiry, “Given the nature of the work we do, it would be irresponsible to comment on actual or alleged operational issues as it would give those wishing to do harm to the United States the ability to adjust and potentially place Americans in danger; therefore, we have no information to provide.”
The phone companies involved, on the other hand, are quick to refute accusations of wrongdoing. Nadine Randall, of BellSouth media relations, notes that the company conducted an internal review following the allegations and concluded that, “no such contract [between BellSouth and the NSA] exists and we have not provided bulk customer calling records to the NSA.”
AT&T spokesman Marc Bien’s statement—“If and when AT&T is asked by government agencies for help, we do so strictly within the law and under the most stringent conditions”—leaves slightly more room for interpretation, as does the explanation given by Teresa Brock, East Tennessee District Manager for Verizon Wireless. “We do cooperate with government authorities,” she says, “but we’re confident that we’re complying with all the statutes.” Verizon, she says, has a hotline set up that deals specifically with government subpoenas for customer calling records, so they go through due process.
But some organizations, such as San Francisco-based advocacy group Electronic Frontier Foundation (EFF), aren’t taking such cryptic responses for an answer. EFF filed a lawsuit against AT&T in January, accusing the company of aiding the NSA in both wiretapping (actually listening in on phone conversations) and data mining (monitoring data about calls: who the calls are being made to, duration of call, etc.). The suit’s point of contention is that neither the NSA nor AT&T went through the proper legal channels to obtain such private information.
“Congress needs to take a really close look at what’s going on here,” says EFF media coordinator Rebecca Jeschke. “There was never any legal authorization to do this. We’re not against wiretapping, per se, and we’re certainly in favor of finding terrorists; we just feel like this step shouldn’t be skipped. FISA [the Foreign Intelligence Surveillance Act, which regulates the collection of foreign intelligence data with legal guidelines] is there for a reason.”
By law, the government may monitor an individual’s communications if it has “reasonable basis” to believe that the individual may be involved in terrorist activity. “Reasonable basis” replaced “probable cause” as the standard on Dec. 22 of last year, making it easier for the NSA to justify its actions.
“Right now, they only need ‘reasonable basis,’ but the long and short of it is no matter how the government tries to reword what it’s doing, we feel that the law is very clear,” Jeschke says.
EFF isn’t alone in its challenge to the NSA and telecom providers. On May 12, a class-action lawsuit was filed against Verizon on behalf of its subscribers, and on May 24, American Civil Liberties Union of Tennessee (ACLU-TN) joined its parent organization’s nationwide campaign to urge local officials to investigate phone companies—in Tennessee’s case, BellSouth. ACLU-TN filed a formal complaint with the Tennessee Regulatory Agency and is encouraging individuals to make their discontent with the government’s actions known as well.
“Our country’s legacy of privacy should not be forfeited based on a dubious promise of security,” says Hedy Weinberg, executive director of ACLU-TN. “ACLU believes we can be a nation that is both safe and free. And there’s never been a more urgent need to preserve individual privacy and our system of checks and balances than today. We’re really at a point in our history when we need to stand up for our constitutional rights in order to preserve some of the most fundamental protections provided by the constitution.” In this case, the constitutional rights at stake are the first and fourth amendments.
The current situation, however, suggests that where there’s a constitutional amendment, there’s a loophole. And most of these loopholes can be traced back to a single source: the USA PATRIOT Act. This act, which swept through Congress with little debate just 45 days after Sept. 11, 2001, permits the government to override many existing laws for the stated purpose of fighting terrorism. Under the law, private data may be collected on citizens and non-citizens by various methods, including the wiretapping of telephone conversations and the observation of Internet activities.
Weinberg points out the paradox of such secrecy. “The NSA is saying that this information they’re compiling is about state secrets, that all the details involve classified information and therefore they’re unable to investigate any potential wrongdoing,” she says, “but that doesn’t change the fact that this partnership between the government and phone companies is an unprecedented and illegal invasion of our privacy. The creation of a massive database is a clear indicator that our government has gone too far.”
Freeberg explains that the U.S. government didn’t begin infringing upon that right until sometime later, following the rise of detective agencies that were hired by companies to infiltrate and report on unions. During World War I, the government began employing such detectives for surveillance work and empowering “an amazing number of private citizens to spy on their neighbors and report suspicious activity,” Freeberg says. “Groups like the American Protective League basically passed out tin badges and set people loose on their neighbors, with the sanction of the Attorney General.”
Development of the ACLU aside, he says, there was little protest from either civilians or the government at the time. Congress passed the Espionage Act of 1917 (the same law, notes Freeberg, that now-Attorney General Alberto Gonzales recently cited to threaten the New York Times for publishing stories about clandestine camps in Eastern Europe), and despite the war’s conclusion a year later, in-country spying and the widespread xenophobia that accompanied it continued to gain momentum. Palmer instigated a new bureau, under the auspices of J. Edgar Hoover, to investigate individuals suspected of sedition. A listening device called the “detectaphone,” a primitive forerunner of modern wiretapping technology, was also developed during this era.
“After WWI, the Attorney General A. Mitchell Palmer launched a series of raids on suspected radicals, some American citizens and others ‘aliens,’” Freeberg says. “Thousands were rounded up in January 1919, and the Attorney General warned that the country was under attack by a radical foreign conspiracy, linked to the Russian Bolsheviks.”
The warrant-less searches, arrests and deportations of suspected leftists and radicals were finally curbed to some extent in 1920, when Palmer’s critics rallied and Congress threatened to impeach him. In 1921, Congress repealed the Sedition Act, an amendment to the Espionage Act that forbade Americans to use “disloyal” language when talking about the U.S. government or armed services, which it had passed in 1918. But in America, and elsewhere, the practice of government surveillance had just begun.
The “Red Scare” resurfaced in the late ’40s and continued through the mid-’50s, coining the term “McCarthyism,” which some Americans have applied to the situation facing America today.
“That is, in a way, where we began,” says Samuel F. Yette, a Washington correspondent for Newsweek during the Richard Nixon/Henry Kissinger era and former associate editor of Ebony . Born and raised in Harriman, Tenn., he is currently stationed at Knoxville College as the school’s writer-in-residence.
His 1971 book, The Choice: The Issue of Black Survival in America , addresses the issue of government surveillance during the Civil Rights Movement. In it, he points out the strengthening of the executive branch that took place when Nixon took office, marked by the President’s support of wiretapping, no-knock searches and preventative detention camps. Now, 30 years later, he parallels that strengthening to that which the nation has experienced under the Bush administration.
“We have been creeping toward a police state since I wrote the book in 1971,” Yette says, noting that some of the political figures who were in power during the late ’60s are still in office today. One of them is Michael Hayden, who oversaw the controversial surveillance techniques employed by the NSA since Sept. 11, 2001 as the agency’s director and was sworn in as director of the CIA last week. Yette notes that Hayden was a functionary in the military’s use of surveillance during the time period he covers in his book.
Yette says that while the government’s reliance on warrant-less surveillance techniques has only heightened over the years thanks to new developments in technology—never before has it been possible to compile such an extensive database of personal information—he has observed an increased outspokenness on the part of the press in addressing the issue.
“[During the Nixon administration], there were reporters who came to me and said, ‘You know, nobody is tapping our phones,’” he recalls. “Then later, the same reporters came to me and said, ‘OK, yes, they’re tapping our phones, and I’m concerned about it,’ but they would not say that publicly.”
When asked whether and how this trend, so deeply embedded in history, may be reversed, Yette sounds doubtful. “I feel like we’re at a place where…well, it’s a little like the North Pole, in that we are approaching a point where we cannot reverse it. And I really think that’s a fearful place.”
In May, after reading the USA Today story alleging collusion between the NSA and phone companies, Shafranovich decided to exercise one of his rights as American citizen. Following instructions listed on the NSA’s online Freedom of Information Act (FOIA) page, he filed a Privacy Act request asking that the government furnish him with a “list of all phone records collected by the NSA from telecommunications companies under my home and cell phone number used…in any databases or record systems maintained by the NSA.”
A week later, he received the following response: “Because of the classified nature of the National Security Agency’s efforts to prevent and protect against terrorist attacks…we can neither confirm nor deny the existence of records responsive to your request.”
Shafranovich was appalled and filed an appeal soon after. “They’re not even telling you that they have your records but they can’t let you see them; they’re telling your your records may or may not even exist, that it’s in your best interest for them not to even tell you,” he says. It’s not fair, he says, that the NSA insists that the public can’t hide anything from them, yet they can hide everything from us.
But it’s not Shafranovich’s first encounter with such a mentality. He recalls the story of how his Russian father, as a young man, had a dream of studying anthropology, but the government would not allow him to enter university. It was for his father’s own good, they said. “The officials in charge say they’re doing what’s best for you, and it’s the same thing here,” Shafranovich says. “They’re collecting information on us because it’s what is best for us, so tough luck. But my parents had no idea what was going on behind closed doors, and neither do we now. And this is supposed to be America. This is supposed to be a free country.”
Both FOIA, which was put in place in 1966 to regulate requests for government documents, and the Privacy Act, which was passed in 1974 (in response to Nixon’s abuses of privacy) to regulate requests for documents specifically concerning individuals, are critical to this country’s system of checks and balances. But some have observed a steady decline in the theoretical effectiveness of either process.
“It used to be that we could request files from the FBI, but so much was redacted that the info was never very helpful,” says Carol Nickle, a local attorney. “Even 20 years ago, a lot of it was redacted.”
Dr. Jennifer Hendrix, a UT professor of constitutional law and civil procedure, says she suspects the acts’ significance may have reached an all-time low under the current administration.
“There’s really a federal government-wide shutting down of information to the public, and they’re using various exemptions in the FOIA to say, ‘We can’t even tell you whether we’re monitoring your phone calls,’” she says. “You can certainly ask, but my understanding of the position that the administration is taking on this and many, many other issues is, ‘We don’t have to tell you.’”
But can the issue really be portrayed in such black and white terms as “acceptable” and “unacceptable,” “necessary” and “too far”? Maybe not, says Gary Litton, a private investigator and owner of South Knoxville spy-equipment store Spy-Tech. The issue of privacy—its definition, its bounds—is complex. “To start with, there’s what we call ‘reasonable expectancy of privacy,” he explains. To draw an example from Litton’s line of work, when persons are walking down the street, out in the open, they’re fair game to be watched or observed. But when they’re behind closed doors inside their own home, it would be illegal to set a camera up outside the window and spy on them—they have reason to expect that their actions are private.
In the case of national security, however, Litton explains that it’s a catch-22. “My personal opinion is that it’s probably wrong, it’s probably overstepping our boundaries, but by the same token I think [Bush] felt like he had to do it,” he says. “And I don’t think the phone companies did anything wrong. I mean, if the government came to you asking for records, what would you do? You’ve got to answer to God. You’ve got to answer to your country. And I don’t know who the higher authority is than the U.S. government.”
Litton also takes issue with the distrust some Americans harbor for their government. They don’t understand, he says, that freedom and security are symbiotic; it takes small compromises in one to ensure the other. “We feel like we have to have an answer for everything. But where do we get off saying, ‘No, you can’t have my phone records,’” he says. “If the government saved my family from terrorism, whether by legal or illegal means, I’d be happy for them.”
Dwayne Collins, East Tennessee regional advisor for the Tennessee Office of Homeland Security, echoes Litton’s sentiments. “You’ve got security on one side and freedom on the other side. If you want freedom, you’re going to have to give up a little security. And if you want security, well, guess what? It’s a balancing act,” he says.
The federally-funded Tennessee Office of Homeland Security was created in January 2003, the focus being on “prevention, protection, detection and deterrence” of not just terrorism but of crime in general. The Knox County district, which oversees 16 counties, is one of the largest districts in Tennessee. Officials from all branches of local emergency management—sheriff’s department, police department, fire department, volunteer rescue, EMS, etc.—form a council that oversees district Office of Homeland Security activity.
Collins admits that while East Tennessee is more likely to endure a natural disaster than a terrorist attack, it’s important to be prepared. “We can’t close our eyes and ears to the threat, and we can’t lay our learning down,” he says. “It’s been five years since anything has happened, but show me the crystal ball that says it won’t happen again.”
The public itself, he says, plays just as an important role in homeland security as the government. He likens it to a neighborhood watch; if people observe something suspicious, they should report it. And having a tighter-knit homeland security unit within the state government makes it easier for such reports to make their way to people who can help. For instance, when some Tennesseans noticed people taking pictures of area dams, they reported it appropriately simply because there was a specific place where they could report it.
But homeland security can’t rely on eyes and ears on the ground for everything, Collins says. “I think people who are concerned with [government surveillance], it’s like, ‘What are you trying to hide?’” he says. “We have to trust our president to make the right decision. Me, I’m an honest man trying to do the right thing, so I have nothing to hide.”
Can the NSA, which has gone out of its way to avoid to procuring routine FISA warrants, say the same?
Others would argue that reality has strayed from such well-meaning objectives; individuals whom the government should have no reason to peg as terrorists have had their privacy violated by unnecessary data-mining and eavesdropping efforts. For these people, blind faith in the president is not synonymous with security.
Kareem Shora, legal director of the Washington, D.C.,-based American-Arab Anti-discrimination Committee, says his organization has fielded multiple complaints since 2001 from Arab-Americans who have been contacted by the FBI following phone calls they’d made to friends and family living in middle-eastern countries.
“You’re a U.S. citizen. You have the right to call anyone in the world. If your relatives happen to live in Iran or Iraq or Egypt or Syria or Lebanon or any other Arab country and you’re calling them on the telephone, it should not automatically be considered suspicious activity,” Shora says. “That’s racial profiling. That’s un-American.”
Speaking on behalf of the Muslim Community of Knoxville, Reem Abdelrazek says it’s a problem that has affected several local Arab-Americans as well. He says the problem stems from lack of effective oversight by either the judicial or legislative branches of the government and the vagueness of the criteria used to determine who may or may not be affiliated with al-Qaeda. “What I think we need to emphasize is that we share concerns about both security and privacy, and that if today the collection of call records is allowed to proceed without apparent judicial oversight, then what’s to prevent such a program from expanding to actual monitoring of call contents? In fact, how do we, as an American public, know for sure that such monitoring is not taking place already?”
Considering the government’s present veil of secrecy, it’s a question that the American public is not likely to have an answer to anytime soon. And that unknowing, whether necessary or deceitful, has given way to a wave of paranoia that may or may not be grounded in reality. But perhaps that’s just part of the game; if the government knows what’s best for us, who are we to argue?
As General Hayden said during his address at the National Press Club on January 23, “The purpose of all this is not to collect reams of intelligence, but to detect and prevent attacks. The intelligence community has neither the time, the resources, nor the legal authority to read communications that aren’t likely to protect us, and NSA has no interest in doing so. These are communications that we have reason to believe are al-Qaeda communications, a judgment made by American intelligence professionals, not folks like me or political appointees, a judgment made by the American intelligence professionals most trained to understand al-Qaeda tactics, al-Qaeda communications and al-Qaeda aims.”
So how is it that innocent people like environmentalists, and Arab-Americans, and others who’ve no apparent interest in terrorist activity get dragged into the crossfire if there’s such a distinct emphasis on al-Qaeda? Why can’t that emphasis on al-Qaeda be verified in federal court, and in front of Congress? And is the program even yielding any results, aside from milking the average American’s suspicions that Big Brother is watching?
Mike Whalen, environmentalist John Johnson’s attorney, answers the storm of questions with one fell swoop: “I’m sure they can’t tell you, because they’d have to kill you first.”