Lawfare Daily: Unearthing and Reckoning with the Intelligence Excesses of the Cold War

[Intro]

Brian Hochman: This is really, like, the worst sins of the American government's activities in the period of the Cold War. Everything from the attempted harassment, surveillance of Martin Luther King, to the assassination plots against Fidel Castro, to the CIA's extraordinary record of drug testing on non-volunteer human subjects.

Michael Feinberg: It's the Lawfare Podcast. I'm Michael Feinberg, senior editor at Lawfare here today with Matthew Guariglia and Brian Hochman.

Matthew Guariglia: Any political movement you've seen over the last 50 years since the Church Committee report have had some variation—maybe not as illegal and as violent as under the Church Committee report—and oftentimes a lot of this burden has been shouldered by local police and maybe not the federal government, but to some extent, the playbook for how to disrupt a political movement is still very much relevant and still very much readable in the Church Committee report.

Michael Feinberg: Today, we're talking about their recently published edition of the Church Committee report containing revelations from the bombshell 1970s investigation into the national security state.

[Main Episode]

Before we get too deep into what the Church Committee found and what we can learn from it, I was wondering if you two, in whatever order you choose, would sort of tell our listeners about how you came to write this book.

Matthew Guariglia: So, Brian and I are both scholars who have been interested in the history of surveillance and policing more broadly. So I was actually a reporter during the 2013 NSA revelations, and it was there that I kind of encountered the Church Committee for the first time, and started combing through book two about surveillance on American citizens and got really interested in it, and always kind of kept it in the back of my mind that I wanted to do something about the Church Committee report.

Fast forward to 2019, I started working at the Electronic Frontier Foundation, legal nonprofit that focuses on technology policy and civil liberties, and I started to work a lot more hands-on with national security law and the realities of national security surveillance.

And it was around that time that Brian's book, “The Listeners” came out, which is the history of wiretapping. So, I'll toss it over to Brian.

Brian Hochman: Yeah. So, both of us have shared an interest, I think, a fascination with the workings of the Church Committee and its findings.

The other thing I guess I'd add is that historians have long regarded this document and consulted this document as a holy grail of American political history in the years following World War II, basically from 1945 to 1975. And everyone cites it, but very few Americans have read it or are familiar with it.

And what we've done is try to make a document that is eminently readable and eminently resonant to our contemporary moment to introduce it to a new audience of readers.

The original document, which has been floating around on the internet for years, is about 3,100 pages long. So, one of our primary tasks, of course, was to narrow things down to its core findings, its core revelations, and also reframe it so that a new generation of scholars, and also interested readers, can learn from it.

Michael Feinberg: My law school actually had, as part of its congressional records, the entire transcripts of the Church Committee, or at least those that had been not held in any sort of classified manner. It was considerably longer than 3,100 pages, so as somebody who, for a project, had to read it, cover to cover, and then another volume, cover to cover, and so on and so forth, you have done yeoman's work in making this accessible to the general public.

Why don't we start by having you give an overview of why the committee was convened and the sort of stuff that it was hoping to bring to light.

Brian Hochman: So the committee is convened in early 1975, shortly after a bombshell report is published on the front page of the New York Times, right around Christmas 1974, alleging an extraordinary record of wrongdoing at the CIA and that record of wrongdoing, in part, involved the CIA violating its charter and operating on American soil.

So this was a real watershed revelation, in keeping with an activist press in the Watergate era. Very quickly the Senate convenes a committee, the House convenes a committee. And the Senate investigation begins to widen its focus beyond the CIA, to explore possible illegal, unconstitutional, or unethical activities at other government agencies operating under the aegis of national security and also in, basically, in the dark, in secret.

The FBI very quickly comes under the investigations focus, and also the NSA, which was an agency, at that point, in 1975 that most Americans, even Americans who worked in Washington for the federal government, had never heard of.

And over the course of about 16 months, the committee works tirelessly, calls hundreds of witnesses, who are interviewed behind closed doors. It holds upwards of, I believe, 21 public hearings, and produces this final report in 1976 that really blows the lid off of a variety of wrongdoings on the part of the spy agencies—and also importantly confirms what many Americans, particularly Americans who were fighting against the Vietnam War, or fighting on behalf of the civil rights, or were agitating for labor, what Americans had long suspected the government was doing.

So there's a combination in the investigation, the hearings, and then ultimately the report of both revelation and also confirmation that I think is quite important to note.

And those revelations and confirmations, just to give your listeners a sense of what was involved, this is really like the worst sins of the American government's activities in the period of the Cold War. Everything from the attempted harassment, surveillance of Martin Luther King; to the assassination plots against Fidel Castro, Patrice Lumumba, and Rafael Trujillo in the Dominican Republic; to the CIA's extraordinary record of drug testing on non-volunteer human subjects.

All of that and much more is contained in this report, and it's a really harrowing read, even 50 years later.

Michael Feinberg: So, I'd like to elaborate upon your answer and make it actually a little more harrowing for our listeners who may not be as familiar with these archives.

It wasn't just that Martin Luther King, Jr., was being harassed, the FBI through its COINTELPRO operations actually tries to induce him into committing suicide. And, you know, the MKUltra program that CIA was running, which I think is what you were referring to in terms of testing drugs on unwitting subjects, I mean, if I recall, somebody threw himself out of a window at one point under the influence of LSD he had unwittingly taken.

There were real human consequences to this beyond the relatively straightforward violation of civil liberties and founding charters. I mean, there was an actual human cost to a lot of these programs.

Matthew Guariglia: Yeah, absolutely. I mean, Martin Luther King was sent two audio tapes of recordings made by surveillance in hotel rooms that were designed to humiliate him to get him to commit suicide, in order to pres—

So, you know, according to the note, supposedly written by the FBI, to preserve the legacy of him and of the Civil Rights Movement, they tried to discredit him with universities, with religious institutions, with the Pope. They, especially after receiving the Nobel Peace Prize, the FBI really tried to discredit him with a lot of significant institutions that had given him a lot of his credibility and his platform.

As well as, you know, a lot of the other things you said had very real human consequences. I mean, people very much did die as a result of this. This wasn't just, you know, audio taping in people's houses. This was things like framing people to look like they were informants. This was trying to stoke tensions and violence between various factions and groups in movements including, you know, street gangs against various political groups in the Civil Rights Movement and in the Black Power Movement.

So, you know, people were killed, marriages were broken up, families were destroyed by these tactics that were meant to do exactly that. They were meant to make the cost of political participation so high that people would rather drop out and not be involved and not be public figures, rather than have this massive machine of the state working against them to destroy their lives and potentially kill them.

Brian Hochman: You cite, Michael, some of the most extraordinary, even spectacular human costs of this period, both the surveillance and harassment of Martin Luther King, the mysterious death of army scientist, Frank Olson, who was the unwitting participant in an MKUltra experiment, who either was thrown or leapt to his death in New York shortly after having received a dosage of LSD without his knowledge. These are the classic cases. These are the cases that Americans remember. To the extent that they remember it at all.

But it's, I think, important to note just how dramatic the costs are, even on a mundane, quotidian level. Individuals’ livelihoods were destroyed, marriages were broken up, as Matthew pointed out. And just a general era of distrust was sown by the intelligence agencies in this period.

A really remarkable story that we heard a former staffer of the Church Committee tell us in our research on the subject, and we tell this story in our introduction to the book was the story of a University of Michigan professor, a mathematician, named Anatol Rapoport.

Rapoport was a world-renowned theorist, mathematician, and also an outspoken anti-war activist—was very involved in the student movement as a faculty member at the University of Michigan in the late 1960s. In and around 1966, 1967 letters start flooding into the offices of university administrators complaining about Rapoport, letters start coming into the Michigan state legislature, and the FBI pays him a visit, basically making his job untenable and he had to resign, what was then a very lucrative, cushy faculty position, and move his family to Canada to Toronto.

Years later, Loch Johnson, a former staffer of the Church Committee, while he was on the Church Committee

Michael Feinberg: And he ends up writing his own book about the hearings as well.

Brian Hochman: Yeah, he does. So while he's at work for Senator Church, he pays Rapoport a visit in Toronto and, basically, hands him his very thick FBI file and the two men sat together thumbing through its pages and Rapoport started to cry, knowing just the cost of his political stance. It basically had totally changed his life.

I also like to think, we like to think that those tears were also tears of vindication, that he finally recognized what had been done to him, that he had known all along, and here it was in the official record. So, that's not quite the story of Martin Luther King, that's not quite the story of Dr. Frank Olson.

But it is a story nonetheless, a story that was far more common, I think, than we might recognize. And those costs also, I think should be part of our accounting of this historical period.

Michael Feinberg: So I wanna tease something out of what you just said as we move from the most infamous, and the most known, most egregious actions and get into the, sorta, more quotidian, day-to-day activity, although I certainly imagine it was not quotidian to the victims.

How much do we know about what happened? Was this a concerted effort on the part of the FBI? Was it simply a case of rogue agents facing no real guardrails and there's sort of a perfect storm of circumstances where this happens multiple times across the country? Or is it hard to say whether it was concerted?

Do we know?

Matthew Guariglia: It certainly weren't rogue agents, like this was a fully institutionalized and, to some extent, a centralized attempt to dismantle any kind of left-wing political movements and to, in their minds, swart out communist influence over the American political sphere, through sabotage, surveillance, humiliation, any means necessary.

And when we say that this was centralized, I mean there were official documentation about how to do a black bag job, how to break into somebody's house. There was, you know, an official designation, “do not file,” in which paperwork discussing the use of these illegal tactics were, was generated and, once it was, expected to be burned or incinerated or shredded by whatever field offices had done that work.

So, there was certainly a well bureaucratized and centralized way of doing illegal surveillance on Americans that was not just a couple of rogue people. It was a large, well spread program.

Michael Feinberg: What we've been talking about so far is, with the exception of the drug testing, is largely FBI activity. Are other agencies and organizations also active on the domestic front at this time?

Brian Hochman: The CIA is active on the domestic front as I mentioned, in violation of its charter, the program that, essentially we, we now know got Seymour Hersh reporting on all of this mess, was a CIA program called CHAOS, which was an attempt to create files on the anti-war movement, particularly the student movement and the new left across the country, at the discretion, or the direction rather of multiple presidents.

So the CIA is a part of this, the NSA is part of this, dating all the way back to the 1940s, reading the telegrams of Americans that had been sent over the wires of major telecom firms, and also sharing that information with the FBI and the CIA. And there was also a great deal in the report that implicated the Defense Department, the National Security Council, and, of course, the White House.

This went all the way up the chain and was the product of a sort of bipartisan consensus in Washington from Eisenhower, roughly Eisenhower forward that the FBI, the CIA, the entire national intelligence bureaucracy, essentially, could operate at the discretion of the president outside of the boundaries of law, beyond the guardrails of the Constitution, and sometimes, as we note in our introduction, beyond the realm of common sense.

Some of the most extraordinary stories narrated in the report involves, say the CIA, partnering with the criminal underworld, with the mafia, to assassinate Fidel Castro. This is not an ordinary outcome of a system that has just gone rogue. Really, what this is a product of, is a series of top-down directives, of protecting the political status quo at home, and protecting American foreign policy interests abroad, at all costs and by any means necessary.

Michael Feinberg: So, as this is being unearthed by Senator Church and his committee, is it coming out in drips and drabs, or does the public really not get wind of it until the committee has concluded its business?

Matthew Guariglia: The, a lot of the committee hearings are televised, so they are on, you know, primetime television, being listened to by Americans. You know, they are talking about the revelations in newspapers. They're columnists on both sides, calling this either a threat to national security, or a triumph of civil liberties.

They are partisan accusations that they're going, you know, much harder investigating the sins of Republican White Houses and not Democratic White Houses. So, it is something definitely being litigated in public.

Michael Feinberg: And what's the general reaction to the public as they start to absorb what these agencies that, if we're being fair, and I mean among the three of us, I'm probably the most partisan for the national security state.

So, what is the reaction of the public when they realize that these major agencies with, at the time almost unlimited budget and power, are operating essentially without any oversight whatsoever?

Brian Hochman: So it's a complicated question. More complicated than you'd think.

During the hearings and as the stories are trickling out, there is shock. There is outrage. There's also confirmation of a semi-paranoid story that a certain segment of Americans had believed all along. And you would think, as a result that the committee had extraordinarily high approval ratings, but it didn't. And there's a couple reasons for that.

One, it's important to note that the Church Committee hearings are coming just a couple months, after half a year after the Watergate hearings. The Watergate moment comes to this dramatic conclusion. So there was a certain sense among the American public that we've been through some of this before. We're a little tired of this narrative of distrust. We're tired of partisan grandstanding. We're tired of politics. We just kind of wanna move on. And as a result, I don't think at least in its public phase, the committee had as much of an impact as it could have.

The second thing that complicates the story of the committee's approval, or lack thereof, on the part of the American public is Frank Church himself. Church was an extraordinarily promising politician, a kind of paradox by contemporary standards. He's an outspoken, civil liberties, civil rights, anti-imperial voice in Congress from a deep red state: Idaho.

And as the hearings drag on, as the report starts to come together, Church announces a run for the White House in 1976 and this story, his campaign, which eventually fell short, complicated the theater on the Senate floor. Many believed—many felt that what was going on was merely in the service of his own political brand, when in reality what was going on was simply a political figure and an entire committee following the facts and reporting the truth in a bipartisan way to the extent possible. Church's campaign starts to muddle that story. And by late 1975, the American public had a, sort of, tired of the proceedings, and there was a concerted backlash, stoked also by the White House at the time. That's a different story.

So there is a kind of mixed bag at the time, and it's hard as a result, just, you know, from our contemporary vantage point, just given how shocking these findings are, it's hard to really grapple how that could be. But if you're thinking about what it's like as an American viewer turning on your TV, seeing yet another round of hearings after the Watergate controversies, people were sort of fed up.

Michael Feinberg: And it does have a real impact on the culture.

I don't think it's coincidental that this is the same time you start seeing movies like “The Parallax View,” “Three Days of the Condor,” “Winter Kills,” which criminally few people have seen. But there, there does become this real genre of the seemingly paranoid protagonist fighting the invisible security state.

Matthew Guariglia: And I think that comes from a number of incidents, not just the kind of revelations about large scale CIA surveillance and you know, over that December 1974. But also, you know, there was a succession of scandals, which led Americans, many Americans to think that like there were no parts of the government untouched by the rise of conspiracy.

So, you know, at the FBI, the 1971 break in at the Media, Pennsylvania office, which revealed COINTELPRO to the public for the first time. The Pentagon Papers, which revealed the government was lying about the war in Vietnam. And then eventually the death of J. Edgar Hoover in 1972, which allowed a lot more about how the FBI had been run to leak out.

So I think there was a succession of scandals that led to a climate of paranoia and conspiracy that both inspired the Church Committee, but also inspired the larger public and culture makers in general.

Michael Feinberg: So one thing I wanna, sort of, ask you that gets about how it inspired the larger public—the Church Committee is not, as you mentioned, operating in isolation.

In a roughly similar timeframe, I realize they're not contemporaneous wholly, but like, you also have the Pike Committee in the House, and you have the Rockefeller Commission convened by the White House, but nobody talks about the latter two. So, what makes the Church Committee different from other inquiries into the national security state that are happening in roughly the same era?

Brian Hochman: So, the Rockefeller Committee is the first investigation to follow up on Hersh’s reporting, and that was an investigation run out of the White House. And because it was run out of the White House, there was a real limited scope, and Congress understood that because the White House controlled the investigation, and I think the American public understood that because the White House controlled the investigation, that really the full facts wouldn't come out.

At the same time that the Church Committee is convened, the House convenes the Pike Committee. And that committee, while it did produce a report that was eventually leaked to the Village Voice, a year later ends up getting mired in some partisan squabbling, a number of leaks to the press that I think lowered the committee's credibility in the minds of the American public.

The Church Committee was extraordinarily diligent in its effort to deal with sensitive government information, to not leak its findings to the press, and also to follow the facts wherever they led.

And this is one of the extraordinary things about the findings that are reflected in the report, is that they cast a harsh light on both Democratic administrations and Republican administrations. And because there was no fear, no favor in the reporting, as the saying goes, I think there, there was a real aspect to the Church Committee that the Pike and the Rockefeller committees lacked.

The Pike Committee's report, which was eventually leaked to the Village Voices, is a pretty interesting document, a remarkable document, but it's not nearly, to my mind as well sourced, or really as well written, as the Church Committee report is. And it's one of the reasons why when we first started this project, we wanted to go to the real historiographic gold standard, as opposed to bringing in some of these other documents of the period.

It's not just also, I should say, the White House and the House of Representatives that are investigating the agencies, the agencies are also investigating themselves.

The CIA produces this extraordinary document called the “Family Jewels” in 1973, which is basically a catalog of the agency's sins under past directors, going all the way back to the founding of the agency after World War II. And this document becomes the document that produces Seymour Hersh’s reporting the Pike Committee, the Church Committee, and also, the Rockefeller Committee. So everyone is examining themselves, and that culture of self-examination is both a result of pervasive distrust, and also a catalyst for pervasive distrust among the American public.

Michael Feinberg: And just for our listeners to know, pretty much any time you have seen a movie where the CIA is inextricably intertwined with some aspect of American history, the inspiration is in the “Family Jewels.” Every conspiracy of which people are aware involving the CIA is written in there. But if I recall, the whole thing does not become publicly available until I think about a decade ago, right?

Brian Hochman: I believe so, and by then, much of its contents are well known as a result of subsequent investigations, memoirs that various players involved had written over the years.

But much of the investigative field of the Church Committee still remains classified. As many pages as there are, as many materials as there are public, you can find them online, you can find them in our book, many more, an untold number of materials, remains classified.

And given the state of the nation's declassification apparatus, who knows when we'll ever see any of it.

Matthew Guariglia: And many of Frank Church's own papers remain under protection, under lock and key, at Boise State University. And in fact, in part of the research we did for this, looking up what CIA and FBI files we could find on Frank Church and members of the committee, one of the stories that we came across was the CIA, decades later, trying to get access to some of the papers in Frank Church's personal papers at Boise State and pretty brave archivists and librarians telling them that they were absolutely not available to them.

Michael Feinberg: Alright, so, in theory, when Congress conducts a hearing like this, it is with the goal of affecting some sort of legislative change.

So what is the result? When the last witness is interviewed, the last document produced, and, I guess at the time this was being written, they run out the typewriter ribbon and have finished their report. What happens next, in terms of how these agencies that have been committing these civil liberties violations, are treated going forward?

Matthew Guariglia: I mean, there is a race to create some infrastructure of transparency and accountability, which had not been before. I mean, the system of congressional oversight before was rather informal. It was, you know, you take your buddy and the CIA out to dinner, and you ask them like, what are you up to right now?

And so, they really wanted to formalize that with the creation of the permanent intelligence committees, which—whose whole job would be, in Congress, to keep an eye on and to get reporting from intelligence committees about what they're up to, including classified information. So, the creation of the Permanent Select Intelligence Committee is one.

And the other big one is FISA, is the Foreign Intelligence Surveillance Act, which creates the FISC, the Foreign Intelligence Surveillance Court, which is supposedly a new judicial check on conducting overseas surveillance for intelligence reasons.

So, you have these creations of both the legislative and the judicial branch that attempts to create some kind of mechanisms for oversight and accountability, which, as we've learned over the years, don't hold up that well over the decades. That there is some rubber stamping that goes on that, that despite how much the Church Committee and its staffers and its members were eager to create more oversight and accountability, that there were some lapses and some developments over time, which I don't think held up quite as well as they had hoped.

Michael Feinberg: So let's get into that. In both of your views, maybe we'll start with you, Matthew, and then go to you Brian—What did they do that worked, and what did they do that turned out not to be enough?

Matthew Guariglia: I think the two big takeaways from the Church Committee report, and one of the reasons why we wanted to re-release it into the public now, and to put it out in this kind of digestible, readable fashion is because,

one, I think it is still the most complete explanation and blueprinting of the government's plans, for their playbook for disrupting political movements, that their tactics pre-existed the Church Committee report, and they have gone on past the Church Committee report. I mean, any political movement you've seen of the last 50 years since the Church Committee report have had some variation, maybe not as illegal and as violent as under the Church Committee report, and oftentimes a lot of this burden has been shouldered by local police and maybe not the federal government, but to some extent the playbook for how to disrupt a political movement is still very much relevant and still very much readable in the Church Committee report.

I think the other reason why it's useful, especially right now and moving forward, is that it provides a template for how to do a wide reaching and very deep congressional investigation of very sensitive materials that might be useful to lawmakers going forward as we move into the second Trump administration and onward.

Brian Hochman: I don't think I could have said it any better than that. The only other thing I'd add on this front, and this is somewhat circumventing your question in terms of successes and failures, what worked and what didn't.

I think, obviously, the oversight architecture that the Church Committee created over time proved somewhat ill-suited for the task at hand, particularly following the attacks of September 11th and the rise of the war on terror, the game changed somewhat, and as a result, I think the spirit of the committee's recommendations began to erode over time. There's also, of course, an important story about technological change that happens in this same period.

I want to say though, I think there are some real successes. While the political spectacle of the Church Committee hearings and its report did sow distrust among the American public, it still created a record. And that record has stood the test of time. It really is, the Church Committee report, a kind of skeleton key to the American century and generations of historians, of policymakers, of scholars have returned to its findings to unlock the hidden corridors of the nation's secret intelligence bureaucracies.

And that I think does matter. There is some value to truth. I think we should still lay that claim now more than ever in the year of our Lord, 2026. And that, for me is the great success.

And maybe I say that as a historian and less as a policy wonk or certainly not as someone who himself has maybe, you know, endured some of the hardships that targets of the surveillance that the Church Committee documented, endured, but I think that abstract outcome needs to be on the table somewhere.

And while there are some political hiccups, while there are more missed opportunities than successes in terms of oversight, I think the truth is a valuable thing, and the committee's work, and its findings and its report especially, have stood the test of time.

Michael Feinberg: I wanna ask you two questions to follow up on what both of you have said about, sort of, the long-term value and duration of the report. The first question is gonna be a soft ball. The second question is gonna be deliberately contrarian, but I think we can, you know, get a good discussion out of it.

And I say this as a very recent refugee from the deep state—Would you guys agree that for, essentially from the passage of FISA and the establishment of the Senate Select Committee on Intelligence and its House counterpart, pretty much up until September 10th, 2001, that we have a pretty good run of, generally speaking, respecting civil liberties.

You're allowed to disagree. I'm just saying comparatively speaking to what came before then and what came after.

Matthew Guariglia: Yeah, there, I think there was still certainly infiltration of groups for their political beliefs. There has been a lot of scholarship written about infiltration of environmental movements, anti-globalization movements in the 1990s, the anti-apartheid movement. So there were a lot of political movements that certainly had their share of infiltration, and maybe even sabotage, based on people's First Amendment-protected beliefs and their political expressions.

And that being said, I mean, I think also when September 10th, September 11th happens, you know, the day before, there was already a lot of infrastructure laid that set the tone for what came the next day, that the Patriot Act changed a lot of things, but it did not create a lot of infrastructure which had already been in place.

I mean, the NSA's ability to tap overseas cables and listen to telecommunications overseas, and including, as we live in an increasingly globalized world, the U.S. sides of those phone calls when people call overseas, a lot of that predated September 11th.

So I think if there was something to look for in that pre-9/11 moment, I would say that like, yes, there, there was definitely some violations of civil liberties. It definitely was not, I would say, as extreme as it was in the pre-1975 moment, or in the post-2001 moment.

But I definitely think that the groundwork was being laid for abuse, and that the groundwork was being created in a way that might not have considered what would happen when less responsible people ,or even just people more inflamed in the passions of war, of national terror, of fear, what would happen if they got their hands on that infrastructure.

Michael Feinberg: Okay, so I don't think we actually disagree on any main points, to the extent that we are in disagreement on this. I think it's simply a question of degree and extent.

But I wanna posit an account of what happens after September 11th that is different than the one you are going towards, and I'm not sure I even believe what I'm about to say, but I think it's worth at least discussing.

Does the state become more rapacious and willing to seize, collect and process communications and personal information that it should not have access to, or does the massive proliferation of networked technology create an environment where citizens are simply willing to give that stuff up? And they might not think about it as giving it up to the government, but they're certainly willing to give it up to incredibly large and small Silicon Valley companies, multinational corporations—

You know, I think back on my time as an FBI agent working national security matters, and obviously I'm not gonna get into specifics, but the number of times I was able to collect information about somebody from a party they willingly gave it to, no matter how personal or private it was, versus how many times I had to generate surveillance that solely involved government equities, it's no comparison.

The amount of information I could get off a publicly available database like Lexus or ChoicePoint dwarfs what my predecessors in the FBI could have gotten 40 years earlier through a year of investigation.

So, I'm just curious, like, is this just the state's fault, or have we actually entered an era where, A, Americans don't care or don't do the research that would make them care about giving up their data, and we've just centralized it.

Matthew Guariglia: Well, I will take this answer quickly and then punt to the person who wrote a history of wiretapping. But I think, you know, what you're getting at here is the rise of kind of third-party doctrine, which I imagine most of your listeners are familiar with.

But if you're not, it's this idea that, you know, the Fourth Amendment, the government's ability to search and seize and collect information on you, has to be done with a judicial warrant unless you've given that information to a third party and once it's given to a third party, you relinquish control over who that third party gives it to.

So when you hand data over to Facebook or to Google or to Verizon, the arrangement between Verizon or Google and the government is different than your relationship to the government—that they could give over, if they wanted to, that information without a warrant, without you really being able to say.

Now a lot of companies require a warrant, but not all of them. And even if they do require a warrant, it's their own internal policy. It's not the law. And so I think to some extent, yes, there is a rise of we all give so much data to third parties that we don't necessarily imagine will wind up in the hands of the government, so I think that is true.

But I also think that there is a renewed impetus in a globalized world for the government to see threats coming from potentially anywhere, in a world where somebody could be radicalized through their Facebook messages to somebody in the Middle East or Russia or wherever, that I think there is a paranoia and a motivation for the government to not only inadvertently collect a tremendous amount of data through third parties because it's very easy and because the infrastructure is there and because to some extent the legal justifications are there through FISA and the FISC.

But also, I think there is an interest in doing that because they think radicalization in a globalized world could come from anywhere that, you know, it doesn't necessarily look like somebody from another country getting on a plane and arriving here. It often can be based in communications.

And I think about the kind of administrative subpoenas that have allowed the Department of Homeland Security to watch every wire transfer of money from Western Union to Latin American countries, and, in the hopes of finding, you know, narcoterrorism or drug trafficking or human trafficking, but really they're just watching, you know, hundreds of thousands of people send money back home to their families.

And so that's the kind of globalization that has created, I think, a desire to collect that data, as well as the digital infrastructure to collect it very easily.

Brian Hochman: This conversation is difficult to parse and it opens up a can of worms.

But I wanna come back to something that Matthew said earlier that I think is important to note, that the architecture, the infrastructure existed on September 10th and in the post-9/11 period, that architecture, that infrastructure gets mobilized towards a certain set of ends.

So how do we think about where that infrastructure, that architecture comes from? I think we have to think about two parallel histories, a political history on one hand, and a corporate history on the other, to the extent that these histories can even be disentangled from each other.

So, let's think about the corporate history, the post-9/11 surveillance state, call it, even though I don't quite like that term, emerges on the back of a rise of technology companies whose entire business model, eventually becomes, by 2010, 2011, the monitoring and monetizing of personal information. So this is the Internet's entire business model to a certain extent, and we can't understand what goes on after 9/11 without understanding those seemingly non-political set of incentives.

The other story has to do with the history of technology and the politics of technology. And already by the early 1990s, the federal government has basically mandated new technologies, particularly new communications technologies, be designed and implemented with surveillance readiness.

Michael Feinberg: We're speaking of, what we in the government would refer to as lawful access programs.

In other words, a telecommunications provider, and I think it's largely limited to telecommunications providers, cannot build a system of communication that cannot comply with a court order.

Brian Hochman: Yeah. This is the result of a 1994 law called the Communications Assistance for Law Enforcement Act, also known as CALEA, which was the product of an extraordinary backroom drama between the FBI and the big telecom companies that were at the time starting to roll out new devices, new features, new infrastructures that we associate with the digital communications revolution; everything from fiber optic cables to cell phones.

That law is inextricably bound up with the politics of the war on drugs, which is an important, I think, political backstory here that gives birth to, gives rise to, in a kind of indirect and sometimes direct way, to the war on terror, architecture, infrastructure. And I think it's impossible, while that law is solely limited to communications technologies, it's impossible to think of that solely in like narrow legalistic terms. I think CALEA, while it's a kind of forgotten piece of federal regulation today, unless you work in like communications policy, you don't really think about it. It establishes a norm.

And the norm for all technology products, for all communication services, for anything that we plug into, we talk on, we later text on for all of our likes, our dislikes—the norm is that, at some point if the government comes knocking with a lawfully signed warrant, the companies themselves need to, in a very timely manner, be able to hand over the information.

And I think that these are two really important stories to think about, how the political and the corporate and the technological, which is a kind of third story that bisects the two, how they help create this broader architecture.

Now, this doesn't answer, I think the right question that you're asking Michael about how users themselves, willfully or not, surrender their personal data, but they exist in a universe that's created by a set of norms and a set of technological infrastructures that hue toward the monitoring and the monetizing of personal information.

And this creates a set of conditions that get exploited in the post-9/11 period, and we certainly see those conditions exploited today.

Michael Feinberg: Yeah. I do want to note there is—one thing that I always found interesting is I think there actually is a split within the intelligence community now about how involved they should be in terms of mandating lawful access, because, I don't know that a lot of people realize, when it comes to just, for example, end-to-end encrypted messaging services. The heads of NSA and CIA have been, you know, heavily in favor of keeping those away from the government, they think the best thing we can do for national security is to not try and break end-to-end encryption. Whereas the FBI, with its law enforcement mission, let's just say, has taken a different view.

So I don't want people to walk away thinking that it's monolithic. I don't want to walk away wholly trusting the intelligence community, either, just to recognize that—and maybe this is one of the second or third order better consequences of things like the Church Committee—but there's a recognition among the, at least some members of the intelligence community, that these issues have nuance and it's not black or white.

Matthew Guariglia: I mean, I think there's something to be said that like there are a lot of people in government who benefit from secure encryption, who need to be able to communicate with people securely, and building back doors in, if for no other reason than for the FBI or law enforcement to use it, is still the creation of a backdoor that other people, including bad actors, could be able to have access to.

Michael Feinberg: Yeah, it's impossible to make a backdoor to which somebody else cannot craft.

Matthew Guariglia: And I think there's one other part of this conversation that we haven't brought up yet is, we've only been talking about federal law enforcement and the intelligence community, and I think one of the other stories of, you know, the war on drugs in the post-Church Committee era up through September 11th and to the present, is the militarization and the digitization of local police.

I mean, local police departments now, especially at large cities, have the intelligence capabilities that maybe even the NSA did not have in the 1970s. And with their crowd control capabilities and their militarization, I mean, there is a lot to be said about, you know, if you, if we're looking for where civil liberties infractions are, when it comes to law enforcement, we have to, even in the pre-9/11 period, we have to start to take into account, in a way that often people didn't in the pre-Church Committee world, local police.

And of course this predates 1975. It goes back to, you know, local police sabotage of the Civil Rights Movement; it goes back to red squads and radical squads in the 1920s and before that. But I think local police, and especially now with how technologically advanced a lot of them are, and a lot of—I mean, the NYPD is essentially an intelligence agency itself. And a lot of the large police departments are.

And so, I think that, you know, we miss a huge part of the conversation about civil liberties and surveillance and the state of policing if we're only looking at the federal government.

Michael Feinberg: Well, on that slightly despairing note, that tells us all: we have much more to worry about in terms of safeguarding our privacy and communications and personally identifiable information than we thought before we began this conversation.

Let's leave it there. I wanna thank both of you, Matthew, and Brian, not just for coming on the podcast today, but also for putting together this book, which, for anybody interested in the history of law enforcement and national security in the United States, really provides a roadmap to the entire modern era that previously was not available.

So, you have done a real service to history and scholarship on these issues. And I will just say that I wish you'd done it about 30 years earlier when I was in law school combing through the original transcripts. So, thank you.

Brian Hochman: Thank you so much. Really appreciate it. Thank you.

[Outro]

Michael Feinberg: The Lawfare Podcast is produced by the Lawfare Institute. If you want to support the show and listen ad-free, you can become a Lawfare material supporter at lawfaremedia.org/support. Supporters also get access to special events and other bonus content we don't share anywhere else.

If you enjoy the podcast, please rate and review us wherever you listen. It really does help, and be sure to check out our other shows, including Rational Security Allies, the Aftermath, and Escalation, our latest Lawfare Presents podcast series about the war in Ukraine. You can also find all of our written work at lawfaremedia.org.

The podcast is edited by Jen Patja with audio engineering by Cara Shillenn of Goat Rodeo. Our theme song is from Alibi music.

And as always, thanks for listening.