April 2015 Bar Bulletin
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April 2015 Bar Bulletin

Edward Snowden: Hero or Traitor?

By G. Michael Fenner


First of two parts

Is Edward Snowden a hero or a traitor? Let me work my way up to an answer to that question.1

A Brief History of the U.S. Surveillance of Domestic Communications

I will start with an oversimplified history of American surveillance of domestic communications: not surveillance of communications taking place outside the U.S. As someone once said, "Outside the United States, the CIA prowls the alleys without a leash."2

If your data leave the country-even if only routed through an outside server-our intelligence community can access it at will. We learned not so long ago that the CIA got ahold of Mayer, Brown & Platt attorney-client privileged documents because the client was outside the U.S. and the documents were captured outside the U.S.

CIVIL WAR: Domestic surveillance by the Federal Government was first used on a significant scale under President Lincoln during the Civil War. But, of course, this was surveillance of an enemy that was operating domestically.

WWI: During WWI, a Military Intelligence Division (MID) was created within the Army. Its charge included locating German spies and saboteurs. It didn't find many enemy agents, so it turned its attention to the investigation of Americans MID considered dangerous: real or suspected labor unionists, pacifists, socialists, Communists, and civil rights activists.

AFTER WWI: After the war, MID joined with the newly created FBI. They compiled dossiers on thousands of American citizens, conducted illegal raids, made illegal arrests, and subjected many citizens to interrogation. They helped local authorities crush labor strikes and suppress racial disturbances.

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