America: Choosing Security Over Liberty Since 1798

Sorry, Edward Snowden -- the United States has a long, dubious history of putting national security before people's freedoms.  

In the past week, Americans have learned of a dizzying array of heretofore unrevealed surveillance programs, part of a hidden security structure ostensibly designed to prevent terrorist attacks from ever occurring on U.S. soil again. Reactions from commentators have ranged from furious outrage to reasoned concern to outright dismissal of the programs' implications. Those in the latter camp have begun to rail against former Booz Allen Hamilton contractor Edward Snowden for his release of the National Security Agency documents that have sparked a furious debate over the balance between privacy and security in the digital age; meanwhile, opponents have dismissed him as an unhinged narcissist or a sociopathic nerd.

Whether his actions are moral or justifiable is up for debate, but Snowden himself made his motivations clear in his email correspondence with Washington Post reporter Barton Gellman. In his view, America's security state has simply become too large and intrusive in the face of the relatively minor threat of terrorism. "We managed to survive greater threats in our history … than a few disorganized terrorist groups and rogue states without resorting to these sorts of programs," he told Gellman.

It's a fascinating quote. But one must wonder whether his statement -- so compelling on its surface -- holds true after an examination of U.S. history. Precisely when, exactly, was the period that he refers to, when a threat greater than those we face today was bravely met without any serious infringements on liberty? Was there ever such a period?

Moving backward through history, we can first quickly dispense with the last 12 years. Following 9/11, President George W. Bush's administration enacted policies that will likely become synonymous with executive overreach, the policies many of President Barack Obama's supporters are now disappointed he didn't do more to rein in. These included the National Security Agency's program of illegally wiretapping American citizens without a warrant, first revealed in 2005, which set the stage for today's concerns about whether the agency is in the habit of using its vast infrastructure to find and store every crumb of data about millions of people in the country. Muslim Americans also saw themselves the frequent victims of assaults on their civil liberties, finding themselves on the receiving end of enhanced scrutiny and frequent harassment from law enforcement.

It's equally doubtful that Snowden was thinking of the 1960s and 1970s when he spoke to Gellman. Befitting a period of social change and upheaval, many of the threats the government sought to counter during this period were internal in nature. It was also a time when U.S. security agencies, both domestic and foreign, held more power than they ever have at any point, as Congress routinely ignored its oversight responsibilities. The work of the Federal Bureau of Investigation is best remembered for the harassment of civilians taking part in the civil rights movement or other activities deemed subversive. Even as lauded a peace advocate as the Rev. Martin Luther King Jr. found himself the target of FBI snooping, as agents gathered dirt to potentially discredit him and his movement. The FBI's Counterintelligence Program -- better known as COINTELPRO -- reached into the lives of people across the ideological spectrum, from the Black Panthers to the Ku Klux Klan, all in the name of protecting security.

It took Congress finally stepping in after Watergate to bring the FBI and other agencies to heel. In the course of the Senate Select Committee to Study Governmental Operations with Respect to Intelligence Activities, better known as the Church Committee, a vast network of actions hidden from the public was exposed, ranging from the reading of Americans' mail to crackdowns on Vietnam protesters to Projects SHAMROCK and MINARET.

Under SHAMROCK, all telegraphs to and from the United States were captured as signals intelligence, regardless of their origin or destination. At the program's peak, 15,000 telegrams a month were intercepted. MINARET, meanwhile, analyzed these electronic communications and passed along information on predetermined U.S. citizens to other intelligence and law enforcement agencies for follow-up. MINARET operated from 1969 until 1973, while SHAMROCK was allowed to continue from 1945 all the way until 1975 when NSA Director Lew Allen finally shuttered it. If you were to try to design a perfect historical analogue to today's digital concerns, the activities revealed in the Church Committee's investigations would come close -- with the added concern that the content of those documents were examined, rather than just logging the author and recipient before sending it on its way. (The concept of "metadata" was still a few decades away.) The committee's findings led to a series of reforms, including the passage of the Foreign Intelligence Surveillance Act, which instituted the Foreign Intelligence Surveillance Court (FISC) to provide much stricter oversight of the executive branch's actions. Unfortunately, those reforms have been chipped away at by successive administrations since then, and the FISC was responsible for authorizing the NSA's metadata collection.

Back in the 1950s, the United States faced a true existential threat in the form of the Soviet Union, and nuclear war seemed a very real possibility. In this climate, the federal government used every tool at its disposal to root out potential subversives -- often bending or just outright shattering constitutional principles in the process. In an example of overreach in the legislative branch, that which is supposed to be most closely aligned with the interests of the people, the House Un-American Activities Committee and the Senate's Permanent Subcommittee on Investigation used the sweeping powers Congress had granted itself to conduct countless numbers of hearings into the communist threat to the homeland, including high-profile investigations of Hollywood's writers and actors and Sen. Joseph McCarthy's infamous allegations of communists throughout the government. The committees' investigations led to massive infringement on the rights of freedom of speech and freedom of association.

Going back another leap takes us to World War II, before Snowden's parents were even born. During the war years, the United States massively infringed on Americans' right to privacy in ways at least as great as we see today. In the days after Pearl Harbor, the Office of Censorship was set up under the First War Powers Act, granting its director "absolute discretion" in censoring internal communications. Under this arrangement, postal censorship was put into place in the United States, with all mail that passed through the U.S. Postal Service subject to opening, inspection, and follow-up investigation. The program worked closely with the Office of Strategic Services, later to become the CIA, and was deemed necessary to prevent messages between espionage agents planted within the country from going unnoticed. The end of the war saw the creation of the NSA, the new iteration of the wartime Armed Forces Security Agency, and the institution of Projects SHAMROCK and MINARET. And in perhaps one of the most repugnant instances of violating liberty for security, thousands of Japanese-Americans were rounded up and placed into internment camps on the West Coast for the duration of the war. No charges were brought against the families moved to these camps; their relatives' country of origin was evidence enough.

And Snowden probably wouldn't have been thrilled with the U.S. activities during World War I, which saw President Woodrow Wilson and Congress come together to pass the Espionage Act of 1917 -- making it a crime to interfere with military operations -- and the Sedition Act of 1918, which expanded the former to criminalize any speech that cast the government or the war in a negative light and which allowed the postmaster general to refuse to deliver any mail that he personally felt would inhibit the war. (If the government prosecutes Snowden for his actions, it would likely be under the Espionage Act.) The Civil War was no triumph of liberty over security either. In fact, it saw the beginning of the modern executive consolidation of power with regard to national security. Abraham Lincoln outright suspended the writ of habeas corpus, the constitutional provision allowing for a speedy trial, to advance the war effort, something no president since then has attempted to do against U.S. citizens. Lincoln also tasked his postmaster general (then a cabinet position), Montgomery Blair, with examining mail in order to root out Confederate sympathizers. As in world wars I and II, all post was considered a legitimate target for intelligence-gathering activities.

Even the Founding Fathers, the supposed exemplars to which Americans set their gaze in times of trouble, failed on this issue. President John Adams signed into law the Sedition Act of 1798 in the face of the "Quasi-War" against France. Under this provision, the U.S. government set aside the First Amendment it had so recently penned and restricted the ability of its citizens to publish documents or give speeches seen as anti-government -- all in the name of protecting the country from a threat that never materialized and that few Americans now remember.

Indeed, the truth is that we -- and Snowden -- do not live in an anomalous time. Rather, history is replete with instance after instance of the U.S. government suppressing or outright violating the rights of its people in the name of furthering national security. In each case, and at each point in history, we see evidence that goes against the idea of a utopian past in which freedoms and liberty went unimpeded while Americans' remained safe and protected within its borders.

This isn't at all to say that the NSA or the Obama administration should get a free pass on allowing these surveillance programs to grow and flourish under their watch. Nor is it meant to make light of the fact that the government now has the ability to copy and store the billions upon billions of pieces of information it intercepts indefinitely in databases for future use, something previous administrations could only dream of. Not nearly enough debate has gone on in the harsh light of day over just what freedoms we are willing to exchange in the name of security. But in conducting that debate, we would do well not to delude ourselves into falsely remembering a time when the United States was innocent of breaking the trust of its people in the name of protecting them. That time never existed.

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Oversight Now

Why Congress needs to go big -- and restrict the power of a runaway executive branch.

From indiscriminate drone strikes to indiscriminate surveillance, an escalating series of disclosures is shaking public confidence in the secret decision-making that has prevailed since Sept. 11, 2001. This growing demand for reappraisal of presidential power is characteristic of postwar periods. As the Vietnam War wound down in the early 1970s, newspaper headlines were also reporting a series of scandalous abuses. Congress then responded with serious efforts at fundamental reform. It reasserted its authority over presidential war-making in the 1973 War Powers Resolution, restricted the abuse of emergency powers in the 1976 National Emergencies Act, and imposed the rule of law on the intelligence services by creating a special Foreign Intelligence Surveillance Court, known as the FISA Court, in 1978.

Broadly speaking, this effort has proved to be a failure -- not least because the presidency waged successful campaigns to weaken Congress's initiatives from the very beginning. President Richard Nixon vetoed the War Powers Resolution, which required presidents to end military operations if Congress did not explicitly approve them within 60 days. Although two-thirds of both houses overrode his veto, his denunciation of the act's constitutionality opened a path for future presidents to evade the resolution's demand for timely congressional approval -- either by ignoring the 60-day restriction entirely, as in the case of Kosovo, or by blatantly misconstruing its provisions, as in Libya.

A similar fate awaited the efforts of special committees chaired by Sen. Frank Church and Rep. Otis Pike in the 1970s. They proposed an ambitious charter to regulate covert action and ban foreign assassinations. Advised by the young Dick Cheney and Donald Rumsfeld, President Gerald Ford deflected this initiative by issuing an executive order that purported to accomplish the Church-Pike objectives -- creating a special oversight board on intelligence activities and restricting their domestic impact. This left it open for future presidents to reinterpret and modify these executive directives without congressional approval. Ford's clever action took the steam out of Congress's effort, forcing the reformers to content themselves with a relatively weak system of judicial oversight imposed by FISA. Most obviously, the statute did not require the FISA Court to publish opinions that announced its views on contested matters of statutory interpretation, nor did it create a framework within which executive branch advocates for privacy, as well as national security, could effectively have their say.

We have a lot to learn from this history as the United States enters into another period of reappraisal. At least President Barack Obama does not, like Nixon and Ford, deny the existence of fundamental problems. He has not only emphasized James Madison's warning that "No nation could preserve its freedom in the midst of continual warfare." He has also called on Congress to engage in a broad-ranging reassessment of the present national security regime, including efforts to "refine and ultimately repeal" its authorization for use of military force (AUMF) in the aftermath of the 9/11 attacks.

The question is whether Congress can rise to the occasion. With libertarian Republicans and liberal Democrats providing the political energy for reform, and national security hawks providing the necessary reality checks, a more successful rerun of the 1970s may suddenly be within the range of political possibility.

But one thing should be clear. It isn't enough to pass a few narrow statutes dealing with one or another headline scandal. Congress should instead follow the precedent set by Church and Pike. It should once again establish special panels that can take a broader view than can be expected from standing committees that concentrate on defense, intelligence, and the judiciary. The challenge is to move beyond tunnel vision, and see how current war-making and surveillance practices generate systematic pathologies. The Patriot Act's broad terms were adopted and extended as an integral part of the AUMF's all-out war against al Qaeda. But today they need dramatic revision as the AUMF is refined and repealed. The same is true in redefining the proper scope of high-tech surveillance and war-making techniques.

This is especially important because it would be wrong for Congress to suppose that only some statutory fine-tuning is necessary to create a sound institutional structure. To the contrary, the earlier wave of landmark statutes contained serious flaws, and those statutes have been severely eroded by presidents of both parties over the past generation. Congress can only do better this time if it learns from past mistakes.

The special committees of the 1970s took 15 months before advancing their ambitious proposals. It may well take longer this time. Church and Pike didn't have to deal with issues of war-making authority because Congress had passed the War Powers Resolution before they began work. But only a similarly robust congressional effort holds any hope for real change over the next few years. It is not nearly enough for the standing committees to hold a few hearings in the poorly disguised hope that the present storm will subside without any significant action. The Rand Pauls and Ron Wydens must keep the pressure up for the creation of select committees that could adapt the Church-Pike vision to the 21st century.

If they fail in the short term, the need for a special effort in the next Congress should serve as a rallying cry for civil libertarians during the 2014 elections. Under pressure from the voters, the last two years of the Obama presidency need not simply repeat the "speak of reform, behave unreformed" pattern that has become all too familiar. We might witness a different scene, one in which libertarian Republicans and liberal Democrats force the leadership to create select committees that will enable Congress and the president to hammer out a new national security regime for the post-Obama era.

Partisans of the status quo will claim that a serious congressional effort will only make the problem worse, generating statutes that will give a legal imprimatur for a new cycle of executive abuse. But this downside risk will be minimized during Obama's last two years, when he will turn increasingly to the legacy he is leaving behind. The challenge instead is to press him finally to redeem his fine words by building a solid structure for the future. This will demand real statesmanship from Congress. But it is the only serious path that will allow the country to heed Madison's warning about the dangers of "continual warfare."

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