Brief Amici Curiae of Experts in the History of Executive Surveillance: James Bamford, Loch Johnson, and Peter Fenn in First Unitarian Church of Los Angeles v. National Security Agency

Abstract

This case presents pressing questions regarding the executive's power to collect, store, and use Americans' telephony and other personal data for the purposes of conducting surveillance operations. In the wake of recent disclosures revealing National Security Agency data collection programs, the First Unitarian Church of Los Angeles and 21 other membership and political advocacy organizations filed this lawsuit to challenge the NSA's collection of telephony data as an infringement of their members' First and Fourth Amendment rights.In this amicus brief, experts in the history of American surveillance -- James Bamford, author of The Puzzle Palace; Peter Fenn, who served as Washington Chief of Staff for Senator Frank Church and as a staff member to the Senate Intelligence Committee; and Dr. Loch Johnson, who served as special assistant to the Church Committee chair and as staff director of the House Subcommittee on Intelligence Oversight -- explain the historical parallels between the executive surveillance programs that are presently coming to light and the development of abusive surveillance practices from the 1940s to the 1970s. All amici were directly involved in the comprehensive review of twentieth-century American intelligence operations completed by the Church Committee in the 1970s, giving them a uniquely thorough understanding of these parallels.Drawing from the experts’ extensive knowledge, the brief explains the clear parallels between the development and growth of the abusive practices of the mid-twentieth century -- when American intelligence agencies helped conduct politically motivated surveillance of Americans ranging from ordinary teachers, journalists and peace activists to civil rights leaders, members of Congress, and a Supreme Court justice -- and today’s vast surveillance programs. History shows that abusive surveillance does not require bad actors to grow and flourish: instead, it is the natural outgrowth of too much secrecy and too little oversight by other branches of government. In light of this clear historical pattern, the brief argues that the court should carefully apply existing legal limits on the government’s surveillance powers to address the risks posed by the executive branch and the intelligence agencies’ claims to expansive power to determine the limits of their own activities.