The Founders and the Shadows

In popular history, clandestine operations, and their control by the executive, are a cancerous growth that began in the 20th century with the so-called “imperial presidency” and the rise of the Central Intelligence Agency and National Security Agency. This is fiction. Unfortunately, this fairy tale account of American history is gospel in far too many quarters. It was accepted as fact by the Church Committee in the 1970s, resurrected again in the majority report of the Iran-Contra Committee in 1987, and now finds renewed life on the libertarian right. As Jefferson noted, for the founders, the “laws of necessity, of self-preservation, of saving our country when in danger,” overrode traditional standards of conduct or any written law.


MikeD said...

We have some bait and switch occurring in this article. We are led to believe, by the author, that the Founders would completely have supported domestic spying ("If he were alive today — and enmeshed in the debate over domestic spying — Washington would likely clash with the modern civil libertarian view of the sanctity of private communications.") And then, to present evidence for this thesis, the author proceeds to tell us of Washington's use of military intelligence, as it pertained to winning the Revolutionary War. Hiring spies to determine British troop dispositions, "signals intelligence" of intercepting enemy communications undetected, utilizing "distasteful" (as strong a negative adjective as his method could reasonably muster) interrogation techniques, counter-espionage, why it even cites his plan to capture a foreign political dignitary as "ruthless".

In all of this, a couple of facts are glossed over. One, Washington was acting as a military commander opposing a foreign army. Not a single act or plan the article cites raises an eyebrow as to modern propriety. And second, he was not bound by the Constitution as President of the United States. The most evidence the author provides leading one to conclude the Founders would support domestic spying is that they requested (and received) funds from Congress to perform intelligence activities. Not one example of which was internally directed at American citizens. Not one.

Instead we're told how Washington started it (but no indications of how he used it), and then we're told Jefferson used it to deal with the Indians (a hostile foreign power), acquiring economic intelligence from the Spanish (a neutral foreign power), political intelligence from the Dutch (a neutral foreign power), and provide secure communications for American diplomacy. Madison, we're told, was encouraged to use the intelligence funds to hire arsonists to burn down buildings in London (capital of a hostile foreign power), did use them to cause unrest in "Spanish-held territory" (i.e. Florida), and dared lie about it to Congress and "foreign governments". Now the former is so far the only thing which would raise red flags today. The latter is laughable, and only serves to show the author's naivete. Seriously, who would object to lying to foreign powers as to American intelligence activities? They surely lie to us about theirs.

One unifying aspect of all the examples the author uses is that in each and every case, the "dark side" powers being utilized are externally directed. Every one. That is to say, the author provides exactly zero evidence that any of this is directed at domestic sources, or in any way contrary to the US Constitution. And yet, that's precisely what this "libertarian right" member objects to. The domestic spying revealed to be ongoing by the previous and current Administrations runs directly counter to the Fourth Amendment, AND to United States Signals Intelligence Directive 18.

And one final word on that... USSID 18 was the lodestar for SIGINT operations conducted while I was in Military Intelligence. We treated the directive with a reverence and respect of almost sacred levels. Failure to adhere to USSID 18 would not get you a stern talking to, we were assured, but hard jail time. And USSID 18, clearly laid out, in no uncertain terms, that US intelligence sources were strictly forbidden, and the instant you became aware that one or more of the participants in a piece of intercept was a US citizen, the intercept had to be immediately stopped, reported, and discarded. Period. I cannot cite examples of this for you, because any such examples would be classified. I believe I will be eligible to talk about it some time around 2072 (75 years from my debrief). So hit me up then, and we can chat.

Grim said...

A fair point. The same Founders who practiced espionage earnestly against foreign opponents also literally wrote the 4th Amendment to protect domestic communications and papers from government spying. Does that make them hypocrites, or does it mean that they "really" wanted domestic spying? Or does it mean, as I think they would themselves have claimed, that there is an important distinction on a government spying on its citizens versus against foreigners?

Certainly there are pragmatic reasons for a state founded on the defense of liberty to protect private communications from itself using the law. Otherwise, the state relies upon adherence to moral principles to avoid shattering the liberty that is its basic purpose. How reliable is human, especially political, adherence to moral principles? Not very, if history is any guide at all.

MikeD said...

Or does it mean, as I think they would themselves have claimed, that there is an important distinction on a government spying on its citizens versus against foreigners?

Well, I'm sure you can guess that this is the definition I favor. What really makes me scratch my head are those on the Left who seem to be hunky dory with spying on Americans, but are just outraged that we would spy on other countries (some of which actually wish us ill). For me, it's right up there with "only the police should have guns" alongside "black lives matter, cops are murdering african-americans!" Well, which is it? Are we supposed to hand a monopoly on lethal force to cops as the only ones we can trust, or not trust cops because they use lethal force? I wish they'd make a clear decision on that one.

Tom said...

One of the main differences between the American left and right is that the right sees their enemies as foreign while the left sees their enemies as domestic.

At least, I think that was true 10 years ago. Today, I don't know about the right only seeing foreigners as the enemy. Times are changing.

Grim said...

Yeah, that was eight years ago.

Ymar Sakar said...

Yea, I concur with Tom's point. It's good that change is coming. It's what people voted for, after all.