Publius and the NSA Surveillance Program

Editor’s Note: This is the first of two posts that will offer contrasting opinions on the NSA electronic surveillance programs. Angelo Codevilla’s essay will appear tomorrow.

On July 24th, 2013, the United States House of Representatives defeated an amendment to the Defense Department’s Appropriations bill for fiscal year 2014 that called for greater restrictions on the National Security Agency’s ability to gather electronic information, including phone records of American citizens. Ninety-four Republicans and 111 House Democrats voted in favor of the amendment, while 134 Republicans and 83 Democrats voted against it. The amendment’s sponsors shared very little in common, other than the fact that they are both from Michigan. Republican Justin Amash, a devotee of free markets and limited government, joined forces with John Conyers, a perennial opponent of American foreign and defense policy since he was first elected to Congress in 1964. Conyers is a devoted leftist; for instance, he attempted to impeach President Ronald Reagan for the invasion of Grenada, and he proposed in 2004 that Ohio’s electoral votes for George W. Bush not be counted because officials in the Buckeye State stole the election.

The Amash-Conyers amendment was defeated by a vote of 217-205, yet in defeat it was hailed in the media as an example of “bipartisanship,” meaning that Republicans finally embraced long-standing positions of the Democratic Party. The significance of this vote should not be underestimated – throughout much of the Cold War and the “War on Terror” the Republican Party defended executive prerogatives over national security and the intelligence community in particular. This defense, once a given, seems to be withering away among the new breed of younger, libertarian Republicans.

The most troubling aspect of this reversal is the claim made by Justin Amash that his effort to rein-in the American intelligence community is in concert with the intentions of the founding fathers. Amash and many of his fellow House Republicans seem to be men of principle, and their commitment to the Constitution (as they understand it) seems genuine, and needless to say, it marks a refreshing change from the disregard for the Constitution found on the other side of the aisle. But their understanding of American history, particularly regarding the intentions of the framers of the Constitution, is as misguided as that of John Conyers or the late Senator Frank Church.

Rand_Paul_FilibusterWhether they know it or not, Congressman Amash and Senator Rand Paul are reciting from the Vietnam-era hymnal of Frank Church and all those on the left who saw the United States government, particularly the secretive arms of that government, as a force for reaction abroad and the creator of an “Orwellian” police state at home. Rand Paul frequently refers to our “imperial presidency” and claims that “our founding fathers” would be opposed to various tactics employed by the Bush and Obama administrations in the war on terror. Amash argues that “if you think there are ‘zero privacy violations’ in an NSA program that collects the phone data of all Americans, then you don’t know what ‘privacy’ means.” Amash sees the United States as “a surveillance state” whose government has “unrestricted power to spy on U.S. citizens.” Amash’s over-the-top rhetoric verges on the paranoid, as when he characterized the efforts of the White House and the Director of the NSA, General Keith Alexander, to block his amendment: “The U.S. government has come out in full force against you, the American people. I will always stand with you.” Might General Alexander rightly believe that he also has the interest of the American people at heart, keeping in mind the intelligence failures associated with 9/11?

The “privacy” that Amash speaks of is the privacy of the Warren Court emanating from Justice William O. Douglas’s infamous penumbra. This is not your founding father’s privacy. This is the “privacy” of absolutists like the American Civil Liberties Union, whose “national security” legislative director describes Amash as “super smart.” The ACLU to the contrary, Congressman Amash and Senator Rand Paul seem to lack a basic understanding of American history, especially regarding the founding fathers and national security. Justin Amash and Rand Paul are free to argue for an absolutist interpretation of privacy, which is all well and good, but enlisting the founding fathers in support of this position is a distortion of history. The founding fathers were averse to transparency (as their secret drafting of the Constitution reveals), 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 clandestine operations. This defense, by the way, was designed to protect American liberty.

A few examples of the principles and practices of the founding fathers will suffice for now: General George Washington approved of mail openings because of the “innumerable advantages” that arise from such an act, and he 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.” Washington was not alone in believing in this method of eavesdropping; Thomas Jefferson, Benjamin Franklin, and John Adams served on a committee charged with disseminating excerpts from intercepted mail for propaganda purposes. In his First Annual Message to Congress President Washington requested and ultimately won approval for a Secret Service Fund which was exempt from traditional congressional oversight (it allowed the president to spend money for services of a sensitive nature without revealing to Congress how those monies were spent). The approval of this Secret Service fund in 1790 came with an assist in the House of Representatives from Congressman James Madison, “the father of the Constitution.”

Jefferson claimed 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,” building on an earlier statement, in case the point was missed, that the Senate “is not supposed by the Constitution to be acquainted with the concerns of the executive department.” Jefferson’s conception of executive power would have undoubtedly inflamed Congressman Amash and Senator Paul, along with the editorial board at The New York Times, especially when the Sage of Monticello observed 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.

The naïve views of Frank Church, Justin Amash, Rand Paul, Glenn Greenwald, and countless others were rejected by the American founders – they did not believe that by applying restrictions to American conduct the rest of the world would leave us alone and mimic our conception of the “rules” of international engagement. Madison wrote in Federalist # 41 “If a federal Constitution could chain the ambition or set bounds to the exertions of all other nations, then indeed might it prudently chain the discretion of its own government, and set bounds to the exertions for its own safety. . . . The means of security can only be regulated by the means and the danger of attack. They will, in fact, be ever determined by these rules and by no others.” If Amash, Paul, and Greenwald would set aside their misty-eyed notions of the founding fathers and grasp that a more complicated constitutional order lies beneath the one discussed in high school civics class, then we might begin to have an intelligent debate on this important subject.

Stephen F. Knott

Stephen F. Knott is professor of National Security Affairs at the United States Naval War College and author of Alexander Hamilton and the Persistence of Myth; Secret and Sanctioned: Covert Operations and the American Presidency; At Reagan’s Side: Insiders’ Recollections from Sacramento to the White House; and Rush to Judgment: George W. Bush, the War on Terror, and His Critics. The views expressed here are entirely his own.

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Comments

  1. craig says

    If Jefferson observes that ‘on great occasions every good officer must be ready to risk himself in going beyond the strict line of the law’, he at least implicitly acknowledges that such actors do not simultaneously enjoy the protections of the law. Ask forgiveness, not permission’ has been the way to get around bureaucracies since time immemorial. But today’s clandestine apparatus has turned that principle on its head: it seeks permission conferred by secret law, instead of asking forgiveness from the public law.

    People are waking up to the public danger inherent in this reversal, because (just as in the criminal justice system) official immunity invites gamesmanship and excess, both privately and organizationally. The only way to deter it is to deny individuals immunity from the public law.

  2. Ron Johnson says

    Let’s pretend that the program runs as described, i.e., no Lois Lerners considered. The 4th Amendment’s focus is on crime. SCOTUS has always distinguished criminal investigation from espionage analysis. I don’t believe that SCOTUS’ espionage analysis involves privacy concerns to any significant degree. Congress passed a limited declaration of war and passed the underlying law regarding this policy: both are public laws. The data stored for use is far less than reported to the IRS every year by everyone with income and that data is certainly reviewed in some detail by the government. The Affordable Care Act provides for data mining of all our healthcare records. I find it odd that so much is being made of the NSA program without any evidence of actual abuse.

  3. Robert says

    The government has never collected any information, nor granted itself any power that it hasn’t abused later.

  4. Mr. X says

    Mr. Johnson,

    The Naval War College clique has closed ranks on the question of ‘evidence of abuse’. Since anyone obtaining documents to demonstrate that a program is abusing citizens faces the choice of criminal prosecution or can flee to a country like a Russia that is outside Washington’s reach, the game is rather stacked from the word go. Congressman Mike Rogers and others can insist they’ve seen no evidence of abuse and anyone whether a CIA or NSA whistleblower is free to approach them, but in practice this is not the case (I use Rogers as an example today because he’s doubling down on denial that CIA was trafficking arms to Syrian rebels — so either he or the Daily Telegraph’s sources are lying).

    First of all, the ‘no evidence of abuse’ canard simply isn’t true. We have eyewitness testimony from Russ Tice (who has been denounced as a ‘fabulist’ and ‘liar’) by Naval War College Professor John Schindler without the slightest explanation as to what Tice is lying about or why. Is Tice lying about the NSA spying on future SCOTUS justice Alito? What about then obscure Illinois State Senator Barack Obama in 2004?

    It’s akin to a court room cross examination where the defense attorney (Schindler) simply attacks a witness for the prosecution as a liar and on irrelevant grounds without ever debunking or showing why the actual testimony is false in any part.

    But you don’t have to take Tice’s word for it.

    We also have the sworn affidavit of Pennsylvania-based private investigator Doug J. Hagmann who writes that the NSA’s Utah Data Center showed up on his caller ID at the conclusion of a phone call with a Fox News journalist who had already in late May 2013 been outed as the target of DOJ wiretapping under court order. So the lines between the NSA’s foreign surveillance and counterrorism mission and the DOJ’s obsessive, Nixonian quest to plug the leaks are blurred, if Mr. Hagmann is telling the truth (and he’s making this statement under penalty of perjury). It’s telling that rather than deny it has wiretapped him the NSA simply rejected his FOIA request to see even a redacted FISA court order against an American citizen on American soil who has not been accused of any crime.

    Finally today we have the story by Stewart M. Powell demonstrating that NSA is handing over data it obtains through mass wiretapping for criminal prosecutions unrelated to terrorism or espionage. We do not know for a fact what exactly this data constitutes whether it’s just ‘metadata’ or actual recorded phone calls but we do know this directly contradicts Prof. Schindler’s assertions that NSA is notorious for refusing to share data with other agencies and jealously guards all domestic intercepts from DHS, FBI, BATF, IRS, or even the White House. And if metadata is being freely handed over could that include the phone numbers dialed by Members of Congress to gay escort services, known drug dealers, or other compromising data that could skew the outcome of any vote to defund aspects of the NSA’s programs?

    http://www.sfgate.com/default/article/NSA-handing-over-non-terror-intelligence-4706227.php

    “The NSA intercepts, whether they are mail covers, metadata or what have you, are in essence general warrants,” said Harold Haddon, a prominent criminal defense attorney from Denver. Using information from those warrants as the basis for a criminal prosecution “is a bright-line Fourth Amendment violation,” Haddon said, referring to the constitutional protection against unreasonable search and seizure.

    • Stephen Knott says

      Mr. X,

      And which “clique” do you belong to? Or do you prefer to remain anonymous?

      Dismissing the content of an argument by attributing base motives to someone who disagrees with you is cowardly, as is hiding behind an “X.”

    • craig says

      Compare and contrast Mr. X’s observation with my earlier one.

      Classification has become the means for preventing oversight. Our law against disclosure of classified materials has become a farce and an analogue to British libel law. In British libel law, truth is no defense against a claim of defamation; in American national security law, reporting a crime is no defense against disclosure.

      The whole drama of l’affaire Snowden is that he has no mechanism by which to act internally as a whistle-blower without subjecting himself to the full weight of federal prosecution. He can obtain neither permission nor forgiveness within the system. ‘Suck it up and keep quiet’ is sometimes necessary as a temporary war restriction, but omerta as a governing principle reveals the fundamental incompatibility between perpetual wartime footing and a free society.

      This administration has interfered with and intimidated its own departments’ inspectors general, and has prosecuted more leakers than all previous administrations combined. Current news reports indicate that State employees involved in the Benghazi fiasco are being polygraphed monthly to prove that they have not spoken with Congress!

      Given no safe avenue for reporting within either the executive branch or the branch empowered with oversight, it is reasonable to believe that a hypothetical true patriot unable to abide official malfeasance would have few other choices in conscience than to do as Snowden did.

  5. Mr. X says

    (I use Rogers as an example today because he’s doubling down on denial that CIA was trafficking arms to Syrian rebels — so either he or the Daily Telegraph’s sources are lying [about why the CIA had 35 personnel on the ground in Benghazi the night of the attack on the CIA's annex]).

    Links:

    http://www.sfgate.com/default/article/NSA-handing-over-non-terror-intelligence-4706227.php
    NSA handing over ‘non-terror’ intelligence and we have no idea what that means

    http://canadafreepress.com/index.php/article/55649
    Text of licensed private investigator to the Fortune 500 Doug J. Hagmann’s affidavit regarding NSA Utah Data Center collecting contents of his phone call to unnamed Fox News reporter (James Rosen?) on May 30, 2013

    http://www.examiner.com/article/canada-free-press-columnist-being-investigated-by-nsa-foia-filed
    More on Hagmann’s background that would be of interest to this White House and its obsessive pursuit of leakers, the Benghazi coverrup, etc.

    http://cfp.canadafreepress.com/PeschmannNSADenialRedacted.pdf
    FOIA non-response from the NSA

  6. Tom Cross says

    Benjamin Franklin was Postmaster in the American colonies. In 1753 he required his employees to swear “not to open or suffer to be opened any Mail or Bag of Letters.” In 1782 Congress passed a law prohibiting the opening of mail without the consent of the addressee or a warrant.

    As for Jefferson, in 1798 he wrote “The infidelities of the post office and the circumstances of the times are against my writing fully and freely… I know not which mortifies me most, that I should fear to write what I think, or my country bear such a state of things.”

    You’ve cherry picked your facts here with the intent of providing a distorted impression of history, while simultaneously accusing others of doing exactly the same thing. In no way to such distortions contribute to intelligent debate.

  7. stephen knott says

    Tom,

    Cherry picking is when you cite Ben Franklin’s edict from 1753 and then suggest that his position was indicative of the entire founding generation when they drafted the Constitution in 1787.

    Washington, Adams, Jefferson, and Franklin, to name a few, all supported mail opening operations during wartime.

    I noticed you made no mention of the Secret Service Fund established in 1790. Cherry picking perhaps? Are you aware of Jefferson’s position on executive prerogative power? Additionally, I would recommend that you do a little reading on the use of covert operations by President Washington, Jefferson, and Madison before you talk about “distortions.”

    • craig says

      Who’s cherry-picking now? It makes no sense to cite Jefferson’s position on executive prerogative power without also noting his position on ‘watering the tree of liberty’ with executives who exceed their just powers.

    • Tom Cross says

      You wrote an essay in which you argued that people who evoke “privacy” in the context of expressing concern about domestic telecommunications surveillance by the NSA are not referring to any notion of privacy that the founders would have understood. You supported this view by providing examples of instances in which founders spied on people’s mail. The most obvious implication here is that you don’t think the founders cared about the privacy of mail and therefore would not understand modern concerns about the privacy of telecommunications. In fact, you went on to argue that modern concerns about the privacy of telecommunications are based on Griswold vs. Connecticut.

      My response was an attempt to set the record straight – the founders did, in fact, care about a variety of personal privacy issues including the privacy of mail. The Constitution protects people, as well as papers, houses, and effects, from unreasonable searches and an early Congress passed a law prohibiting the opening of mail. Certainly, founders who created these legal protections would have understood privacy concerns associated with telecommunications surveillance. Those privacy concerns are not some modern offshoot of Griswold that would have been completely alien to people living in the late 1700’s.

      Perhaps you really mean to make a more narrow argument, one that did not come through clearly in your original essay – that although the founders would have understood privacy concerns associated with telecommunications surveillance, and might have sought to constrain such surveillance during peace time, they would not have had a problem with telecommunications surveillance during wartime. Is that the point that you are really trying to make?

      If this is your point of view, let me put forth that I don’t think any those who are concerned about these NSA surveillance programs are thinking about them in this light – they are not thinking about them as temporary war time measures. If the administration put forth that although these programs raise privacy concerns, they are a necessary evil while we are at war, and they will be shut down once the war is over, I think that would be interesting. It certainly would raise the profile of the debate over repealing the AUMF, which the President has endorsed, ironically.

      However, I don’t think anyone is suggesting that these are special wartime measures or that they’ll be put away once the AUMF is repealed. These programs are intended to be with us forever, and as such, a consideration of the founder’s views on privacy in peace time is quite relevant.

      • Stephen Knott says

        Tom,

        Again, the historical record indicates, without question, that the founders believed in the importance of intelligence gathering, including mail opening. While the founding fathers engaged in the widespread use of intelligence/covert operations, most Americans are not taught this, because it doesn’t fit with our rose-colored view of the founding.

        Additionally, Lincoln, Wilson, FDR etc. all sanctioned mail opening for intelligence gathering purposes. It is not until the Warren Court that the expansive reading of the 4th amendment prohibiting certain elements of U.S. gathering and surveillance that you, Amash, Conyers, and others share, becomes “law”(U. S. versus U.S. Court, 1972.) William O. Douglas has a hand in this decision. Again, this may be the way modern Americans want to approach this issue, but we should at least have the intellectual honesty to admit that it is contrary to the principles and practices of the founders.

  8. Stephen Knott says

    Craig,

    “Executives”? I believe the cherry picked quote you cited refers to “patriots” and “tyrants” …. I’m sure you don’t believe that George W. Bush and Barack Obama are patriots, so I guess you believe they are tyrants (of the elected variety, conducting a judicially sanctioned program, authorized and funded by Congress). Wow. Some tyranny.

  9. Stephen Knott says

    “Applicability is left as an exercise for the reader.” In other words, Jefferson’s writings have no intrinsic meaning, and can be distorted at will.

    • craig says

      Perhaps you didn’t take as many higher math classes in college, and are unfamiliar with the infamous textbook trope “…is left as an exercise for the reader” that is invoked whenever the reader would benefit from actually seeing the logical chain of events.

      How do you spot a tyrant? Maybe Potter Stewart knows one when he sees one.

      • Stephen Knott says

        Craig,

        Time for you to drop the Math and take a few English language courses. Focus on definitions (tyrant, etc.) Also throw in some U.S. history courses while you’re at it.

  10. Joseph R. Stromberg says

    “Again, the historical record indicates, without question, that the founders believed in the importance of intelligence gathering, including mail opening.”

    In the circumstances, one begins not to care very much much what the founders believed. If they gave us a constitution as bad as many conservatives hope it was, we’ll be needing another one, one of these days.

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