Challenging the surveillance state

When Eric Isaacson heard that the Electronic Frontier Foundation (EFF) planned to sue the National Security Agency on behalf of a coalition of nonprofits and advocacy organizations over the agency’s mass collection of Americans’ telephone data, he thought of the perfect plaintiff.

“Just at the mention of organizations that would oppose surveillance, it jumped into my mind that First Unitarian Church of Los Angeles has a long history of being subject to government surveillance and harassment, and that it would be absolutely ideal,” said Isaacson, a lawyer and a member of First Unitarian Universalist Church of San Diego who has written many amicus curiae briefs for UU organizations supporting marriage equality.

In the 1950s and ’60s, the FBI closely monitored the Los Angeles church and its longtime minister, the Rev. Stephen Fritchman, because of their controversial political stances. (The FBI monitored other UU congregations, too.) On July 16, 2013, the EFF filed its lawsuit in federal court in San Francisco, with First Unitarian Church of Los Angeles as lead plaintiff. It claims that the government’s telephone records program discourages people from banding together to advocate for political causes, in violation of the First Amendment freedom of assembly. The Unitarian Universalist Service Committee (UUSC) and twenty other plaintiffs are also part of the lawsuit.

For the Rev. Rick Hoyt, the church’s minister, joining the suit is a way for his congregation to make sure future generations will not have to worry that associating with a church or a political group will land them on a government watch list. It is also a way for the church to live into Unitarian Universalism’s deepest values.

“The heart of this lawsuit,” Hoyt said, “is that the actions of the NSA—by spying on organizations like First Unitarian Church—make people uneasy about coming together and, instead, encourage them to stay isolated, [and] to not communicate through email or through phone calls, to avoid coming to the attention of the government.”

The Rev. Dr. William F. Schulz, president of the UUSC and former executive director of Amnesty International USA, sees a practical connection between the Service Committee’s participation in this lawsuit and its work on behalf of human rights.

“Given that we have relationships with partner groups in more than twenty countries around the world, it was very important to us that our partner groups not be discouraged or reticent about being in conversation with us because of any policies of the U.S. government that might threaten them,” said Schulz.

The other plaintiffs include such unlikely partners as Greenpeace, Franklin Armory, the California Association of Federal Firearms Licensees, and Students for Sensible Drug Policy Foundation. Libertarian and Second Amendment groups may seem out of place in a coalition led by a Unitarian Universalist congregation, but Hoyt feels just as strongly about their right to assemble as he does about his own congregation’s.

“While I would debate them on some of the issues that they are defending, I want them to have the ability to form their organizations and to plan their arguments without fear of government spying and government hindrance on what they’re doing,” he explained.

EFF also believes this broad mix of political ideologies makes a stronger legal case. “Part of the point of putting together that spectrum of clients is to show that these organizations are affected by the NSA surveillance programs and that they object even though they don't necessarily share views on lots of other issues,” said Andrew Crocker, an EFF legal fellow.

The Electronic Frontier Foundation’s First Amendment challenge to the NSA’s phone records program gained fresh urgency on June 5, 2013, when the Guardian published a classified order from the Foreign Intelligence Surveillance Court (FISC) that required Verizon to give the FBI and the NSA daily call data on its U.S. customers. That data—or “metadata,” as it is often called—included technical routing information for each call, the incoming and outgoing phone numbers, and the call’s time and duration. This was the first of what would become many disclosures from a cache of documents leaked by former NSA contractor Edward Snowden.

Over a year later, journalists around the world are still publishing new information about the NSA’s mass surveillance programs gleaned from the Snowden documents. For many Americans, however, the agency’s collection of their telephone metadata is still the most disturbing.

“Metadata paints a very accurate picture of who we are, what we do, who we know, and where we go,” explained Kade Crockford, who directs the Technology for Liberty Project at the American Civil Liberties Union of Massachusetts and who edits its Privacy SOS blog. “When you take all of those things together, it really gives spies pretty much everything they want when they’re looking at masses of information about human beings and our associations and our patterns and our lives.”

Edward Felton, director of the Center for Information Technology Policy at Princeton University, explained how metadata can reveal so much about us.

“Calling patterns can reveal when we are awake and asleep; our religion, if a person regularly makes no calls on the Sabbath, or makes a large number of calls on Christmas Day; our work habits and our social aptitude; the number of friends we have; and even our civil and political affiliations,” Felton said in an August 2013 court filing in the case ACLU v. Clapper.

The New York Times reported that in November 2010 the NSA began allowing its analysts to create graphs of some Americans’ social connections by searching its vast collections of telephone and Internet metadata.

For EFF’s Andrew Crocker, that violates more than just Americans’ right to privacy. The EFF fears that people will be less likely to join potentially controversial religious and political groups—or even to come to them for social services—if they know the government is watching. “There is a very direct connection between just the metadata collected—the numbers dialed and the connections between numbers—and [someone’s] association with the organization,” Crocker said. “That is both very revealing and a violation of the First Amendment.”

In March of this year, President Barack Obama called for changes to the bulk metadata collection program. They include both leaving metadata with telephone companies rather than with the NSA and requiring the NSA to ask for approval from FISC for each number they query “absent an emergency situation.” Some reforms are already in effect, but others require congressional action.

Regardless of how these and other attempts at reform turn out, many experts see echoes of the past in current government programs. “When there are no rules at all that apply to the government's acquisition of incredibly sensitive, private information about us, what’s going to happen is that we will have no privacy left,” explained Crockford of the Massachusetts ACLU. “Anyone like J. Edgar Hoover who could get their hands on this kind of information would be able to absolutely destroy people’s lives.”

According to historian Taylor Branch, FBI director J. Edgar Hoover successfully shifted the FBI from a law-enforcement agency to a domestic intelligence operation during his nearly fifty-year administration. Working alongside military intelligence, the NSA, and local police departments, his FBI kept close tabs on civil-rights leaders, anti-war activists, and suspected Communist Party members. Because of their involvement in left-wing causes, Unitarians and Universalists attracted government surveillance, too.

Ask any UU minister who served a church in the 1970s or earlier about government surveillance and you are likely to hear rumors about the FBI tapping ministers’ phones or sending undercover agents to organizing meetings in church basements. Many of these reports are unconfirmed, but government documents released under the Freedom of Information Act back up at least some of the suspicions.

One 1968 document from the FBI’s infamous Counterintelligence Program (COINTELPRO) discussed open meetings held at First Unitarian Church of South Bend, Indiana, by the Michiana Committee to End the War in Vietnam—which a Bureau source claimed was a Communist Party front group. Another FBI memo, from April 1969, described plans by civil rights leader the Rev. Andrew Young to speak at a dinner at Cedar Lane Unitarian Church in Bethesda, Maryland, in memory of the Rev. Dr. Martin Luther King Jr. The memo noted that the FBI had alerted the Metropolitan Police Department, the Secret Service, and “interested military agencies.”

Then, of course, there was the battle between the FBI and the Unitarian Universalist Association over the Pentagon Papers. Daniel Ellsberg, then a military analyst at the RAND Corporation, leaked the secret Pentagon history of U.S. involvement in Vietnam in 1971—first to the New York Times and then to the famously anti-war Senator Mike Gravel of Alaska, a Unitarian Universalist. After reading a portion of the Papers into his subcommittee’s records, Gravel approached several publishers about releasing them in book form. The only one that agreed to publish the full Pentagon Papers was the UUA’s publishing house, Beacon Press.

The FBI subpoenaed the UUA’s bank records almost immediately, hoping to find payments to Gravel or Ellsberg. A protracted Supreme Court case found that Gravel’s senatorial immunity did not extend to the press. However, a federal judge dismissed the charges against Ellsberg after CIA agents broke into Ellsberg’s psychiatrist’s office and the FBI illegally wiretapped calls related to the case. The FBI’s interest in Beacon Press faded amidst the Watergate scandal. In the end, the Nixon administration’s brash criminality was all that kept the UUA’s donor lists out of government hands.

But First Unitarian Church of Los Angeles’s well-documented experiences of government surveillance epitomize what many Unitarian Universalist congregations went through for their political activities during the McCarthy and Vietnam eras.

The FBI probably began monitoring the Rev. Stephen Fritchman in the early 1940s, when he was director of youth work at the American Unitarian Association (AUA) and editor of the Christian Register, the AUA forerunner of this magazine. He was also active in Boston’s network of Popular Front organizations, where FBI informants kept careful watch.

Fritchman’s Communist sympathies would doom his career in Boston. Despite AUA President Frederick May Eliot’s steady support, Fritchman regularly clashed with board members, the executive committee, and other influential ministers over theRegister’s editorial slant and whether Unitarian youth organizations should align with alleged Communist Party front groups like the World Federation of Democratic Youth.

The disputes came to a head in May 1946, when Linscott Tyler, a former FBI agent, approached AUA trustee Frank B. Frederick with claims that the Bureau had documentary evidence of Fritchman’s involvement with the Communist Party.

That summer, the AUA executive committee held a series of closed, off-the-record meetings with Tyler and others who claimed Fritchman was using the Register to push Communist Party propaganda. According to the Rev. Charles Eddis’s invaluable history, Stephen Fritchman: The American Unitarians and Communism (2011), Tyler made similar accusations against members of the Unitarian Service Committee, who were also under FBI surveillance.

An unsigned summary of the Fritchman controversy, archived with Eliot’s papers at Harvard Divinity School, summed up Tyler’s testimony like this:

Tyler, an ex-FBI man, reports that Fritchman is a member of the Communist Party, that Fritchman is being constantly watched by the FBI, that his telephone wires have been tapped, that the FBI has records and moving pictures relating to Fritchman’s activities.

Indeed, the Los Angeles church still has an inches-thick file of FBI documents on Fritchman that Fritchman himself obtained through the Freedom of Information Act.

FBI agents may not have been the only ones watching. A curious letter complaining about Fritchman landed on President Eliot’s desk in January 1946. Its author, a former minister, claims to have served in the Army Service Forces’ intelligence branch during World War II. Fritchman’s name came up often during military investigations of “subversive activities,” the letter said.

In October 1946, the House Un-American Activities Committee (HUAC) called Fritchman and representatives from the Unitarian Service Committee to testify before it. By then, the controversy over Fritchman had leaked into the newspapers. Letters of support and complaint from across the country were coming into the AUA’s Boston headquarters at 25 Beacon Street.

After a protracted and very public drama, the AUA board of directors finally let Fritchman go in May 1947. An open letter circulated that summer by a group of Fritchman’s supporters and reproduced in Eddis’s book accused his enemies of tapping his phone, searching his home and office, trailing him, providing material on him to HUAC, and, in turn, asking HUAC for more evidence against him.

It is probably no longer possible to confirm whether anyone at the AUA was monitoring Fritchman. However, we do know that Frederick, the AUA trustee, contacted Hoover and asked him to share the FBI’s evidence on Fritchman with the AUA board of directors. Hoover declined, citing FBI policy. After HUAC subpoenaed Fritchman for the second time, the Rev. A. Powell Davies—minister of All Souls Unitarian Church in Washington, D.C.—also urged Eliot to request evidence against Fritchman from HUAC for use by an AUA disciplinary committee, despite multiple AUA resolutions denouncing HUAC.

By January 1948, First Unitarian Church of Los Angeles had called Fritchman to serve as its minister. If he found Boston suffocating, the radical Los Angeles church was a breath of fresh air. According to Fritchman’s 1977 autobiography, Heretic, a member quizzed him after one of his candidating sermons about how he would answer if called again to testify before Congress. The question proved timely: HUAC soon subpoenaed him for the second time.

A few members left early in his tenure, but most of the congregation seems to have been taken with Fritchman. “He was a very charismatic person. He really seemed to care about people a lot,” recalled Ann Maupin, who first joined the church in 1953. “He was funny and quite radical, I think.”

“The church was quite a haven for the Hollywood Ten, for example, people who were blacklisted,” Maupin said. “So they came to us.”

According to Fritchman’s autobiography, many church members were already under FBI surveillance when he took over the pulpit. Informants regularly attended its Sunday services, and FBI agents often visited members at their homes afterwards. He describes meeting in his office with a young church member who tearfully confessed to being a paid FBI informant.

In such an environment, where ties to a radical organization could mean a congressional subpoena or even blacklisting, the church had to be extremely careful about maintaining its members’ privacy. Fritchman would interview prospective members in the privacy of his office, and the church kept neither membership rolls nor a directory.

“People used to suspect that the FBI was in there infiltrating and listening. We didn’t have a directory of members because we didn’t want their names to be available to people,” Maupin explained. “We have a directory now, but we didn’t then.”

An initial Freedom of Information Act request for the FBI’s records on First Unitarian of Los Angeles turned up over 5,000 pages, which could not be processed and released in time to include in this article. However, numerous documents from the agency’s online archive of already-released materials referenced Fritchman and the church.

For example, an appendix in one FBI file on singer Paul Robeson, who regularly performed at the church, discussed its “Communist infiltration.” According to the document, a source told the FBI that the church had been “utilized for meeting[s] by Communist Party members and sympathizers over a period of years.” It said that speakers espoused “Communist causes” and that the church distributed “Communist Front group literature.” It mercifully concluded, “Membership in the First Unitarian Church does not in itself connote membership in or sympathy with the Communist Party.”

Fritchman or the church come up in FBI documents that also mention the Rev. Ralph David Abernathy, Albert Einstein, Eleanor Roosevelt, and the American Friends Service Committee, to name just a few. Other people who were the subject of FBI files and who probably also raised suspicions—including W.E.B. Du Bois, Langston Hughes, Margaret Mead, Linus Pauling, and Pete Seeger—spoke at First Unitarian Church, too.

The level of detail about the church’s day-to-day operations in these documents makes it clear that congregants’ anxieties about FBI informants were well founded. And the FBI wasn’t the only government agency that was watching the church. According to a 1987 Los Angeles Times article, the Los Angeles Police Department’s Public Disorder Intelligence Division also monitored the congregation between 1975 and 1978. Such investigations by local police often took place with the knowledge and cooperation of federal agencies.

None of this surveillance made the church back down from taking public stands. In 1952, California passed a constitutional amendment requiring religious organizations to sign a loyalty oath in order to keep their tax-exempt status. Along with several other churches, First Unitarian Church refused. It lost its tax-exempt status until 1958, when the Supreme Court ruled the loyalty oath unconstitutional in First Unitarian Church v. Los Angeles.

Nor did government surveillance keep the church from growing in membership or reputation during Fritchman’s tenure. It quickly became a haven for blacklisted artists like the Hollywood Ten, radicals, young people, and others with few places to turn in mainstream society.

“That’s why a lot of people came there. It was a place that sheltered them and gave them a community. It was very exciting people—artists, writers, actors,” said Maupin. But for her, it was also much more than that.

“There were people so excited and happy about what they were doing, and it was very impressive,” she recalled, her voice ringing with enthusiasm. “It became my second family.”

In March, Judge Jeffrey White of the U.S. District Court for the Northern District of California issued a restraining order in the church’s lawsuit against the NSA demanding that the NSA preserve as evidence the telephone metadata it had collected. Now both EFF and the government are waiting to schedule their oral arguments, after which Judge White will make a summary judgment. Whoever loses that decision will almost certainly appeal to the Ninth Circuit Court of Appeals as numerous lawsuits against NSA surveillance slowly wind their way toward the Supreme Court.

In the meantime, the congregation continues its work in the community. Every Saturday morning, it distributes groceries to over 600 local residents and provides area children with free math lessons. Its free computer lab is open every weekend, and it provides low-cost exercise classes during the week. And this past February it opened 85 units of affordable housing next door to the church.

Suing the NSA in federal court may seem like a big deal, but Rick Hoyt, the church’s minister, does not see it as any different from the church’s quieter, daily work. “We use the power of the organization to amplify our individual voices and become effective change agents in the world,” he said. “If people are reluctant to join or to become publicly associated with the church, then the church loses its ability to do what the church is here to do.”

The congregation’s first-hand experience with government surveillance, its commitment to social justice, and its engagement with the local community are what made Eric Isaacson recommend it to EFF in the first place. The legal case itself is obviously important. But looking forward, Isaacson also hopes the church’s history can give flesh and bone to an issue that has dominated the headlines but still remains distant for many Americans.

“It’s very important for religious organizations—particularly ones that have had that experience, like First Unitarian Church of Los Angeles—to get up front and talk about it,” said Isaacson. “A lot of people think that the NSA spying is too abstract, not concrete enough. They don’t worry about it very much. I think the experience of First Unitarian Church of Los Angeles helps to make the concerns real and concrete and understandable.”

Companion Articles

• L.A. church joins lawsuit against government surveillance
• UUA supported publication of Pentagon Papers