Putting Security in a Historical Context

By  | 

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.