America: Choosing Security Over Liberty Since 1798

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.