America’s Secret Police

     You’d better be wearing your seat belt, Gentle Reader. It’s not often I get to start an essay with a title that provocative, so you can be confident that what’s coming will have a bit of an edge to it.

     Is there a phrase in the lexicon of politics and government more ominous than “secret police?” Doesn’t it give you a little chill to imagine that We The People suffer such an indignity? It’s a pretty good distance from MAD Magazine’s “Spy vs. Spy” comic, you know. Back when that was popular, we had a Cold War, an arms race, and mandatory hide-under-your-desk drills to keep us mindful of the Red Menace.

     But what is a secret police, anyway? Is it a police agency whose existence is concealed? Is it an agency that enforces secret laws – laws John Q. Public isn’t allowed to know about until he’s been accused of violating them? Or is it an agency whose existence is openly acknowledged, but whose operatives, operations, and methods are kept secret? Have you ever given it any thought?

     Maybe it’s time.

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     The Soviet Union of late, unlamented memory possessed a number of police agencies. Two of them, the KGB and the GRU, were often referred to as secret police, despite being well known to the USSR’s people. Most of the agents of those agencies were open about their jobs. Indeed, a post in the KGB or GRU was regarded as a sign of status in the USSR. It marked you as one not to be trifled with.

     If the KGB and GRU qualified as secret police by any standard, it could not have been that they or their operatives were kept secret. However, what those operatives were doing at any given time was kept secret...at least, until the agency was ready to pounce on a target.

     The Soviet Union’s secret police conducted their “investigations” in secret. They selected their target quietly. They operated to gather “evidence” against him quietly, and by means that were seldom disclosed. Most telling of all, they operated under the presumption that a citizen of the Soviet Union had no right to privacy – in other words, no right to have any secrets.

     That was the pattern for the secret police of all the Warsaw Pact countries, for Communist China, North Korea, and Cuba, and for every other totalitarian hellhole this sorry planet has ever endured. The secret police weren’t secret. Their methods weren’t secret either. What they were doing at any given moment was kept secret. That was necessary if they were to penetrate the secrets of their targets.

     Secret police are about your secrets, not theirs.

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     To the extent that Americans have any privacy – i.e., any capability to keep secrets – it lies in the right of private property, which the Fourth Amendment to the Constitution guarantees. In recent years, the courts have extended property-like protections to our electronic communications: telephone calls and the Internet. However, the police are unhappy about that. They argued, successfully, that those privacy protections obstruct their investigations of individuals and organizations suspected of felonious activities. So systems were erected to permit police wiretapping and electronic monitoring of such persons and organizations, subject to the approval of the courts.

     At that point we’d already hit a stunning departure from the traditional scope of police work. Yet it’s likely that you didn’t notice it.

     The Foreign Intelligence Surveillance Act and the Foreign Intelligence Surveillance Court are extensions of that earlier police argument. The averred aim was, of course, to better guarantee our “national security.” Ironically, and despite the rather phantasmal aspect of “national security,” the argument has greater plausibility at the international level than it does at the domestic level. However, the fly in the ointment remained the same.

     For covert surveillance of a target to yield worthwhile evidence of wrongdoing, the target must be kept from knowing that his communications are being monitored. In other words, he must be induced to be a witness against himself without ever knowing it.

     Consider also that such monitoring almost always takes place before there’s any other evidence of an operation against the United States, its properties, or its wider interests. The monitors are looking for evidence of a crime that might not have been committed at all. That same logical flaw invalidates the argument for police wiretapping of suspicious domestic persons and organizations. A court that grants a communications surveillance warrant without first being presented credible evidence of a crime already committed or in progress has violated the rights of privacy-in-communication that an American is supposedly guaranteed.

     And the target is not allowed to know.

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     By the argument above, the FBI, CIA, and NSA constitute secret police agencies materially indistinguishable from those that terrorized the Soviet Union. They exist to penetrate Americans’ secrets, regardless of whether their targets have done anything criminal by our domestic laws, or averse to America’s “national security” according to the National Security Act or Espionage Act. Their very nature renders them largely beyond effective supervision, for the elected executives and legislators nominally tasked with supervising them are often themselves targets. It is in the nature of clandestinely gathered “intelligence” that an imaginative “analyst” can concoct an accusation of heinous conduct from the surveillance capability alone. Who could falsify the allegations of an agency permitted to work in such a fashion? Who is so completely without secrets of his own that he would dare?

     Note that our supposed guarantees of communications privacy are essentially irrelevant to the above. What matters most is the covert targeting.

     How about it, Gentle Reader? Are you at all disturbed by the notion that America’s secret police might be after your secrets? Have I got you looking over your shoulder yet, or are you certain that your comings, goings, and miscellaneous doings couldn’t possibly be of interest to our national snoops?

     Consider Harvey Silverglate’s “three felonies a day” argument before you answer.

     “Show me the man and I’ll find you the crime.” – Lavrenti Beria, the first head of the OGPU, later to be renamed the KGB