NSA headquarters in Fort Meade circa 1950. (Wikimedia Commons)

The standard justification for the National Security Agency’s recently disclosed domestic data-collection program—it doesn’t break any laws—makes me think of Michael Kinsley’s observation that what’s truly scandalous is not what’s illegal, but what’s legal. It should make us all less comfortable, not more, if it’s true that the wide-ranging data-collection programs exposed by Edward Snowden received the blessing of all three branches of the federal government.

Many commentators have argued, as Thomas Friedman did last week in The New York Times, that virtually any domestic surveillance by agencies like the NSA is legitimate in the post-9/11 world. But this misses the longer history: nearly every tool for domestic surveillance that the US intelligence community has attempted to use since 9/11 was on its wish list decades before the attacks. And The Nation has been there to track those tools every step of the way.

In 1966, New York Post journalist Anthony Prisendorf wrote about the Bureau of the Budget’s attempts to create a National Data Center, which would centralize the government’s sprawling information about every single American. The backlash was fierce. Prisendorf quotes one analyst from, of all places, the RAND Corporation—described in a 1959 Nation exposé as a think tank “set up to mask a relationship between the Air Force and the scientists which either or both did not care to make explicit”—who noted that if the data collection capabilities were made available to a future administration hostile to civil liberties “it would make for an extremely efficient police state.” Prisendorf added:

Centralizing government files would eliminate perhaps the best safeguard of personal privacy—bureaucracy. Compiling all that is recorded about an individual is now often a difficult and, consequently, a discouraging task. If the National Data Center were established, the mere push of a button would end all that.

Moreover, he argued, the existence of the data center “would lead to pressures—within and outside the federal government—for the creation of a Personal Data Bank.” The proposal for the National Data Center was dropped a few years later because of lack of public support—and after public hearings in Congress raised questions about its constitutionality. But the NSA plays a long game: it is currently building a massive data accumulation center in the Utah desert that makes the 1960s proposal look like child’s play. NSA whistleblower William Binney—profiled in The Nation last month by Tim Shorrock—has claimed that the Utah facility is intended for storing precisely the kind of personal information files that opponents of the National Data Bank in the 1960s feared the plan could lead to. There were no public hearing in Congress this time around, nor any hint that in a democracy there should be some input from the public whose privacy is in question.

In a 1975 article with the memorable title, “The Issue, of Course, Is Power,” civil liberties lawyer and frequent Nation contributor Frank Donner argued that the committees that had just been appointed to study US intelligence activities should particularly focus on the use of domestic surveillance for political and anti-populist objectives. Abuse of such capabilities, Donner argued, was not incidental, but inevitable:

Every activity of the target, however legitimate and indeed constitutionally protected, is treated with suspicion and monitored: who knows; it may be a vital piece in a sinister not-yet-revealed subversive design. Since, in the intelligence mind, the stakes are so large—our very survival as a nation—overkill is almost deliberate. Ultimately, the intelligence institution exploits reasons of state to achieve autonomy and, by a parallel process, its operations become ends in themselves.

Donner went on to dismiss one of the arguments ritually hauled out, as it has been in recent weeks, to defend widespread domestic surveillance: that the collected data is used only by the government agencies that are supposed to use it, and access is prohibited to all others. Surveillance operations, Donner wrote,

have become a collaborative endeavor by a constellation of federal, state and urban agencies. An agency that is barred by its mandate or lack of funds from a particular area of domestic intelligence enters into a liaison relationship with other units with a similar or overlapping missions for the purpose of exchanging data, operational information, and files.

The same point has been made repeatedly in our pages by the investigative reporter David Burnham. In a 1978 article titled “The Capacity to Spy on Us All,” Burnham catalogued the ways in which the Carter administration, which had come to office decrying Nixon’s disregard for civil liberties, had actually gone beyond its Republican predecessors in utilizing new surveillance capabilities against US citizens. Sound familiar? Burnham also reported that the FBI had obtained warrants to install “pen registers” on two telephones used by a suspected gambler in New York City. The registers were designed to track the same kind of “metadata”—numbers dialed, length of conversations and, now, location—that the newly disclosed PRISM program apparently targets en masse. Now, as then, such data is both easier to legally acquire and arguably more useful to law enforcement, as Jane Mayer wrote in The New Yorker. Finally, Burnham notes that the Foreign Intelligence Surveillance Act, then being debated in Congress, was intended not only to limit wiretapping but also to systemize and authorize practices like “electronic vacuum sweeping” that were otherwise of questionable legality, not to mention constitutionality. The result, Burnham feared, was deeply troubling:

At a time when advanced surveillance techniques, high-speed computers and other electronic devices make possible ever more intrusive invasions of individual privacy, the critical examination of every new government program must become even more rigorous. For while each individual step may be defended as only an insignificant addition to the machinery already in place, the combined force of these actions could at any time precipitate drastic changes in both the ability and the willingness of the American people to make independent choices about their future.

The underlying argument, that domestic surveillance operations are not necessarily as constrained by law as their defendants tend to claim, is one that Burnham returned to in a 1983 cover story, “Tales of a Computer State,” about the role of private corporations in domestic snooping. As the Snowden revelations have confirmed, companies are apparently powerless to resist government requests for access to their data:

The decision of the Census Bureau during World War II to give the Army demographic data that pinpointed the residences of Japanese-Americans in California—despite a law prohibiting such sharing of information—is instructive. How much pressure would the chairman of the board and the chief executive officer of TRW [a credit agency with a large computerized store of information on individuals] have to bring on the vice president in charge of the company’s information division to persuade him to give the C.I.A. access to credit reports stored in the division’s computers?

To the notion that “it can’t happen here,” as in the title of Sinclair Lewis’s 1935 novel, Burnham would might justifiably reply: Why not? It has before.

The question looms before us: Can the United States continue to flourish when the physical movements, the buying habits and the conversations of most citizens are under surveillance by private companies and government agencies? Sometimes the surveillance is undertaken for innocent purposes, sometimes it is not. Does not surveillance, even the innocent sort, gradually poison the soul of a nation? Does not surveillance limit personal options for many citizens? Does not surveillance increase the powers of those who are in a position to enjoy the fruits of that activity?

For more on the history of domestic surveillance as covered in The Nation, read Burnham’s major investigative report on the FBI and Tim Shorrock’s 2006 feature, “Watching What You Say: How Big Telecom May Be Helping Government Spies.” More recently, Nation articles by Shorrock, Jaron Lanier, and David Cole have continued our coverage of this alarming story.