What James Madison (and the rest of the Founding Fathers) would have thought of the NSA and Edward Snowden.
One notable topic not addressed in President Barack Obama's State of the Union speech this year -- at least not in clear, direct language -- was the NSA scandal. Toward the close of his remarks, the president did say that, in the vein of pursuing terrorist networks, he intended to work with Congress to: "reform our surveillance programs because the vital work of our intelligence community depends on public confidence, here and abroad, that privacy of ordinary people is not being violated." There was no admission of wrongdoing or a true promise to scale back surveillance but it did allude, however subtly, to the idea that the agency's perceived violation of privacy is somehow wholly un-American.
This idea is actually something that FP's David Rothkopf has picked apart in recent columns, writing that, in the years since 9/11, the NSA has engaged in systematic violations of personal privacy and human dignity. On top of which, he believes (as he notes in one column), that by not reining in the NSA, President Barack Obama has failed to protect Americans and others worldwide who have a right to privacy. Rothkopf also argues that by highlighting the National Security Agency's abuses of power, Edward Snowden is carrying on the legacy of James Madison and underscoring the importance of the Fourth Amendment. The conclusion that Rothkopf ultimately makes is that the NSA's overreach today would not have gone over well with Madison or the Founding Fathers.
While there are plenty of grounds on which one can disagree with the tactics employed by the Bush and Obama administrations in combating terrorism, it is a distortion of history to assume that these tactics run counter to the principles and practices of the nation's founders -- as well as a distortion of their position on the importance of intelligence gathering and executive secrecy. James Madison, "the father of the Constitution," is a case in point, for he is frequented portrayed as the personification of a restrained chief executive who championed transparency and was slavishly obedient to the letter of the Constitution. In a sense, Madison was obedient to the Constitution, believing that the power given the president under Article II of that document gave the chief executive the unfettered capability to conduct clandestine operations.
From George Washington to Thomas Jefferson, the key members of the founding generation believed that intelligence operations were essential to the defense of the United States, including the 18th-century equivalent of today's electronic eavesdropping -- clandestine mail opening. Certainly none of the Founders spoke about a "right to privacy," nor did James Madison initiate the effort to amend the Constitution with what became known as a "Bill of Rights." In fact, Madison thought a listing of such rights was misguided, as did Alexander Hamilton and other supporters of the proposed Constitution: "I have never thought the omission [of a Bill of Rights] a material defect, nor been anxious to supply it even by subsequent amendment, for any other reason than that it is anxiously desired by others," wrote Madison.
Rothkopf assembled a number of impressive quotes by Madison in support of the idea that he and other members of the founding generation would be appalled at the "Orwellian" actions of the NSA. (Others, like Rand Paul and Larry Klayman, have also invoked Madison and the Founding Fathers in their opposition of NSA surveillance.) But as the "Happy Warrior" of 1920s American politics, New York's Gov. Al Smith, was fond of saying: let's look at the record.
For starters, Madison collaborated with Alexander Hamilton in drafting The Federalist Papers, which claimed that presidential "secrecy and dispatch" were essential to a successful foreign and military policy. Madison and his co-authors argued that "the business of intelligence" was left for the president to manage "in such a manner as prudence may suggest." As a congressman in 1790, Madison led the effort to create a presidential "secret service fund" that was exempt from traditional congressional oversight -- this allowed the president to spend money for services of a sensitive nature, including intelligence gathering, without revealing to Congress how those monies were spent. (In 1805, as the nation's secretary of state, Madison actually procured a prostitute at the request of a foreign ambassador, dipping into this same public fund, no doubt thinking that a happy ambassador would make for a good friend of the United States.)
Later, as president, Madison withheld information in 1810-1811, when he launched covert operations from the executive office, the details of which were kept from Congress and the American public for decades. Madison's State Department simply lied to British, French, and Spanish envoys about the American machinations in toppling the feeble Spanish regime in West Florida, as well as about their involvement in a failed effort to overthrow the stronger presence of the Spanish government in East Florida. Madison authorized the expenditure of $50,000 from the secret service fund in 1812 (spending the entirety of that fund) to purchase letters written to and from various New England Federalists that allegedly revealed treasonous links with Great Britain. The letters were in the possession of a British spy and were purchased by Madison and Secretary of States James Monroe, who presented them to Congress in an attempt to fuel the war fever and discredit the president's Federalist opponents, all of whom were American citizens.
But, compared to his fellow Founding Fathers, James Madison was the picture of forthrightness. Secrecy and the use of unrestrained clandestine intelligence operations are as American as George Washington, who ran his own mini-NSA during the American Revolution because of the "innumerable ... advantages" that arise from such intelligence gathering, even if this required snooping on your fellow citizens. With all due respect to Glenn Greenwald and Edward Snowden, Washington knew how to tell a lie, and was ruthless in his quest for intelligence, urging his agents to "leave no stone unturned" in their pursuit of secrets. In fact, the Founding Fathers engaged in covert mail opening throughout the revolutionary war; Washington went so far as to provide instructions on successful mail-opening techniques: "contrive a means of opening them [letters] without breaking the seals, take copies of the contents, and then let them go on." Thomas Jefferson, Benjamin Franklin, and John Adams all served on a committee charged with disseminating excerpts from this intercepted mail for propaganda purposes.
When it comes to the Founders' alleged commitment to transparency, it should be noted that many of these same men would go on to suspend the rules of the Articles of Confederation and draft a new Constitution in strict secrecy. Madison's notes on the Constitutional Convention were not released until 1840, over 50 years after the framers assembled in Philadelphia, while the United States Senate met in secret for its first years of existence, following the example set by the Continental Congress. While not a member of the Constitutional Convention, Thomas Jefferson echoed the sentiments of his peers in Philadelphia when he noted that "all nations have found it necessary, that for the advantageous conduct of their affairs" certain secrets should "remain known to their executive functionary only." Jefferson also wrote in 1790 that the Senate "is not supposed by the Constitution to be acquainted with the concerns of the executive department." And in a letter dated 1807, he wrote that "on great occasions every good officer must be ready to risk himself in going beyond the strict line of the law" if necessity so required.
And though it may not fit with the exalted opinion many Americans have of the founding generation, there's evidence showing that in the 41 years between the time Thomas Jefferson wrote the Declaration of Independence and the time James Madison left the White House in 1817, the Founders sanctioned secret operations involving espionage and deception, kidnapping (George Washington authorized an attempt to kidnap George III's son), bribing foreign leaders, using the clergy and journalists for intelligence gathering, overthrowing a foreign government (the Pasha of Tripoli), and covertly assisting insurgencies designed to overthrow colonial governments in Latin America.
The lessons from this assertive use of executive power were not lost on a future American president confronted with disloyalty on the part of his fellow citizens. For all practical purposes, President Abraham Lincoln considered the telegraph companies of his day as wholly owned subsidiaries of the federal government, which routinely intercepted the private communications of American citizens. None of this was seen as a violation of the Fourth Amendment, nor did anyone think that Lincoln had somehow radically diverged from the practices of his esteemed forefathers. A court case generated by Lincoln's unilateral control of intelligence and espionage during the Civil War, Totten vs. United States (1875), led the Supreme Court to unequivocally declare that the president had the authority to "obtain clandestinely" intelligence information "in time of war" or simply "upon matters affecting out foreign relations."
A more accurate appraisal of the Founding Fathers' legacy reveals that they were averse to transparency, were opposed to congressional oversight of intelligence operations, and believed that -- in the Byzantine world of international relations -- America's defense rested in part on the use of intelligence gathering. All of these actions, it should be noted, were designed to protect American liberty. It's really not at all clear -- as Judge Richard Leon said in his verdict -- that Madison "would be 'aghast'" at the sweeping nature of the NSA programs targeting the personal data of U.S. citizens" in its efforts to uncover those consorting with terrorists abroad.
The restraint on intelligence gathering and the accompanying argument of "privacy" rights that Edward Snowden and Glenn Greenwald invoke is not our Founding Fathers' privacy, nor is it their understanding of the power granted the president in Article II of the Constitution -- this is the "privacy" of absolutists like the American Civil Liberties Union. Additionally, the notion that the so-called "privacy" protections of the Bill of Rights should be extended "worldwide" would be categorically rejected by the Founding Fathers. Snowden and Greenwald and their supporters are free to argue for an absolutist interpretation of privacy and the dismantling of the American "surveillance state," but enlisting the Founding Fathers in support of this position is a distortion of history.