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Our Hacking Government

In response to:

They Know Much More Than You Think from the August 15, 2013 issue

To the Editors:

In James Bamford’s informative article about the NSA [“They Know Much More Than You Think,” NYR, August 15], he doesn’t mention that in the late 1960s and early 1970s, when there was no cyber, the US government was already hacking into the privacy of its citizens. There were several thousands, of whom I was one, and after Nixon came to power it was called the Enemies’ List. Unknown to us, our phones were tapped, our letters opened, our bank accounts examined, and journeys around the US and abroad were logged. If we gave speeches they were quoted at length.

I found out the extent of this intrusion when the Freedom of Information Act became law and I asked one of my Vermont senators (I was teaching at Dartmouth) to obtain my files. He did this, and eventually I had a collection about a foot high, redacted only so that informants’ names were blacked out. In all these files, which were considerably duplicated between many agencies, there was not a single allegation or even suggestion that I had acted illegally. There were plenty of copies of pieces I had written in this journal and in The Nation, usually on Vietnam.

I asked the postmistress of my tiny post office in Thetford Hill, Vermont, where I lived, why she had cooperated in handing over letters of mine, or out, to be read, and she wept, saying that she had been forced. I got the same embarrassed story from the manager of my bank in Hanover. Some time in the late 1970s the case of the few thousand of us on the list came before a court—maybe the Supreme Court, I can’t recall—and the government was forced to give each of us what at the time seemed like a very large check. I can’t recall the sum.

What’s going on now, in the US and here in the UK, displays the same illiberal instincts but on a gigantic scale. Pretty depressing.

Jonathan Mirsky
London, England

James Bamford replies:

I appreciate Jonathan Mirsky highlighting the illegal spying that took place during the Nixon years and I would have enjoyed discussing this topic except for space limitations. I do, however, go into the domestic spying during that period extensively in my first book about the NSA, The Puzzle Palace. As he notes, “What’s going on now, in the US and here in the UK, displays the same illiberal instincts but on a gigantic scale.” This enormous increase in scale also increases the dangers by many orders of magnitude should another president like Nixon get elected and decide to secretly turn the NSA inward for political purposes. In such an event, as Senator Frank Church said, “There would be no place to hide.”

Another reader, Professor John Paul Jones of the University of Richmond, commented on the secret and illegal agreement between Herbert O. Yardley, who headed the Black Chamber during the 1920s, and Western Union president Newcomb Carlton. Yardley persuaded Carlton, as well as the heads of other telegraph companies, to give the Black Chamber access to the telegrams transiting their systems every day. Professor Jones suggested that it would have been perfectly legal for Western Union to turn over the messages because the Radio Communications Act of 1912 only applied to messages transmitted by radio, not by wire.

However, according to a Senate Intelligence Committee report, these messages went “either by radio or by undersea cable,” in which case the Radio Communications Act would apply. Secondly, there were other laws then in effect that would have also been violated. As Professor Jones himself notes, after 1909 it was a crime in New York to connive with a telegraph company “clerk, operator, messenger or other employee” to wrongfully obtain telegraph messages. Obviously, Newcomb Carlton qualified as an employee, as did the people handing over the messages on a daily basis. And thirdly, the Interstate Commerce Commission had jurisdiction over telephone, telegraph, and cable communications and forbade any “officer, agent, or employee” of those companies from disclosing “any information” about those communications.

Finally, Professor Jones also casts doubt on the “long history of illegal access to the communications of Americans by the NSA and its predecessors.” A reading of the Senate Intelligence Committee report on the NSA’s Operation Shamrock, however, should erase his doubts. The committee called the operation, which gained illegal access to millions of telegrams of Americans from 1945 until it was discovered by a committee investigation in 1975, “probably the largest governmental interception program affecting Americans ever undertaken.” The report said it clearly violated the Communications Act of 1934, which prohibits employees from divulging “any interstate or foreign communication by wire or radio.” In addition, the committee noted that Shamrock also appeared to “violate the privacy of these citizens, as protected by the Fourth Amendment.”

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