Putting Security in a Historical Context

Putting Security in a Historical Context


As we continue to discuss and evaluate the particulars unfolding with regards to “Surveillance Gate,” a look at our history and conclusions of our founding fathers would seem to be in order.

In the continuing saga of the surveillance “scandal,” with some congressional Democrats denouncing President Bush as a lawbreaker and even suggesting that impeachment hearings may be in order, it is important to step back and put things in historical context. First of all, the Founding Fathers knew from experience that Congress could not keep secrets. In 1776, Benjamin Franklin and his four colleagues on the Committee of Secret Correspondence unanimously concluded that they could not tell the Continental Congress about covert assistance being provided by France to the American Revolution, because “we find by fatal experience that Congress consists of too many members to keep secrets.”

When the Constitution was being ratified, John Jay–America’s most experienced diplomat and George Washington’s first choice to be secretary of state–wrote in Federalist No. 64 that there would be cases in which “the most useful intelligence” may be obtained if foreign sources could be “relieved from apprehensions of discovery,” and noted there were many “who would rely on the secrecy of the president, but who would not confide in that of the Senate.” He then praised the new Constitution for so distributing foreign-affairs powers that the president would be able “to manage the business of intelligence in such manner as prudence may suggest.”

In 1790, when the first session of the First Congress appropriated money for foreign intercourse, the statute expressly required that the president “account specifically for all such expenditures of the said money as in his judgment may be made public, and also for the amount of such expenditures as he may think it advisable not to specify.” They made no demand that President Washington share intelligence secrets with them. And in 1818, when a dispute arose over a reported diplomatic mission to South America, the legendary Henry Clay told his House colleagues that if the mission had been provided for from the president’s contingent fund, it would not be “a proper subject for inquiry” by Congress.

For nearly 200 years it was understood by all three branches that intelligence collection–especially in wartime–was an exclusive presidential prerogative vested in the president by Article II, Section 1 of the Constitution. Washington, Madison, Jefferson, Hamilton, John Marshall and many others recognized that the grant of “executive power” to the president included control over intelligence gathering. It was not by chance that there was no provision for congressional oversight of intelligence matters in the National Security Act of 1947.

So, the question and emphasis becomes – how should these powers be treated in the future?
Technological innovations have, and will continue, to grow by leaps and bounds.

Interpretation of these powers, in light of technological capabilities, will be critical.

As a nation we would seem to be facing yet another rather pivotal time in our history.

Ultimately, as the courts have noted, the test is whether the legitimate government interest involved–in this instance, discovering and preventing new terrorist attacks that may endanger tens of thousands of American lives–outweighs the privacy interests of individuals who are communicating with al Qaeda terrorists. And just as those of us who fly on airplanes have accepted intrusive government searches of our luggage and person without the slightest showing of probable cause, those of us who communicate (knowingly or otherwise) with foreign terrorists will have to accept the fact that Uncle Sam may be listening.

So, for those who are horrified about the question of wiretapping …

Do you also feel threatened by the searches that have been conducted in airports since 9/11?

– If so, are you willing to take the risk of a similar incident occurring because security has not been increased to include this level of scrutiny.

– If not, how does this differ from wiretapping communications with suspected foreign terrorists?

BTW … my purpose for asking is to better understand the degree of fear and emotionalism that’s been demonstrated in this topic.

  • Jeff

    One of the differences between airport searches and wiretapping is that everyone knows that you will be searched before going on a plane. In essence, you consent to such searches when you choose to fly. I don’t feel like I consent to eavesdropping when I talk on the phone or write an e-mail.

    Also, I think that there is a significant potential for imminent disaster when you get on a plane which is not present when you talk on the phone or write an e-mail.

  • debsay

    Anybody that is talking to somebody on an out of the country phone that is linked by some means to Al Queida shouldn’t expect anything from the USA.

    What does a potential for imminent disaster have to do with whether the searches are acceptable or not?

    If we are talking about potential for imminent disaster, I think that a person being able to talk to an Al Queida operative while in this country without being monitored is a HIGH POTENTIAL FOR IMMINENT DISASTER.

    When Clinton expanded this power to include warrantless searches to include public housing in high crime areas – nothing to do with foreign intelligence – Were you as upset about that as you are about this???? Because I don’t get it… Everyone knows that during a war the Constitution affords the President expanded powers – how do we know this – because in a war these powers have always been used.

    How is this ‘more threatening’ than locking up legislators that disagreed with the President? Actually having one deported to the South because it was known that he suppored the South? Having reporters locked up for printing stories against him as agitators? How is this ‘more threatening’ than the President ordering over 100,000 American Citizens to be placed in camps for the remainder of the war because of the possibility of espionage? There were never any charges brought against these citizens, they were just locked up…. How is this ‘more threatening’ than the same programs under Clinton? His justification was ‘economic’ in nature, and then he even tried to expand it to include PHYSICAL WARRANTLESS SEARCHES OF PEOPLE’S HOMES – PUBLIC HOUSING IN HIGH CRIME AREAS… not just telephone calls!!! I definately believe that I have a HIGHER expectation of privacy in my home than I do on a phone (especially a cell phone, e-mail, chat rooms, bulletin boards, etc)

  • http://moderatemusings.blogspot.com Clint

    Exactly Jeff. Flying on a plane is a choice we make. When we decide to fly we understand the invasions of privacy that will take place. If you don’t like those invasions, then don’t fly.

    When we talk on the phone or through email, we don’t assume that the government could be listening. This is not to say that all electronic eavsdropping by the feds is wrong. If there is probable cause that two parties are discussing an attempt to commit a terrorist act within this country, then by all means, listen away. But the key phrase here is “probable cause,” and the only way to guarantee this is through a legal warrant, even if that means obtaining one after-the-fact due to urgency issues.

    The president saying “I promise we are doing everything by-the-books” just isn’t good enough. There is just too much freedom for abuse, not just by this president, but any of his successors who claim precedent. I am sure that the War on Terror will be continuing long after President Bush leaves the White House, and thus so will the need for electronic surveillance.

  • Jeff


    I don’t agree with Clinton’s searches, either, or the Japanese internment camps, for that matter.

    I agree al-queda poses a high threat. Average citizens, however, are not a threat. I just think that you should have to give some evidence to a court (under FISA within 72 hours of the wiretap) that the person is linked to al-queda or engaged in crime in order to wiretap them. Al-queda’s phone calls are threatening, mine and yours are not. The government should have to offer some proof to a court that they are surveilling the former, not the latter.

  • Chris

    I’m interested in the constant references to Clinton conducting warrantless searches of housing projects. When did he actually do this? I ask in all sincerity because I have been searching for some evidence of this and can’t find any.

    I think it’s disingenuous to say people shouldn’t have a right to talk with an al Qaeda member. Those who want to infringe on our civil rights always frame the argument in the context that those whose rights are being violated are guilty of a crime. It’s a variation of the “you shouldn’t be bothered by this if you have nothing to hide” canard. If the police want to conduct random searches on the street for drugs, it’s framed as “I support stopping and searching drug dealers.” The point is, until the surveillance takes place, we don’t know if the subject is guilty of anything or not. Supporters of the President continue to obfuscate this issue, which isn’t about whether or not we can wiretap terrorists. It’s about the President claiming a right to wiretap whomever he wants, using some mushy “we’re at war” logic, despited the fact that there are very clear mechanisms in place to do exactly what he wants to do within the law.

    It’s also useless to point out what Lincoln did during the Civil War, or the internment of Japanese-Americans. Lincoln was dead wrong, and the internments were the most shameful episode in Roosevdelt’s presidency, and are defended by virtually no one. Is that really the rationale for Bush’s actions?

    Finally, until the Congress formally declares war on someone, Bush has no right to claim the powers of a war president. He has declared war on a tactic. There are many groups, including the IRA, that have engaged in terror. Are we in favor of wholesale warrantless wiretapping of Irish-Americans? How about if Bush declares a war on crime? Then I guess we’re all fair game.