Liberty and Security Forever? The Very Long Surveillance State Debate

Rogue NSA whistle-blower Edward Snowden: whether hero and villain, he's a symbol of over 200 years of American debate over balancing liberty with security.

Rogue NSA whistle-blower Edward Snowden: whether hero and villain, he’s a symbol of over 200 years of American debate over balancing liberty with security.

Are you free? No, seriously, are you really free? Do you feel that your government is protecting you from terrorists? If so, how much power should the government have to protect you from harm? Furthermore, how much power should the government have to protect itself from harm, and should you play a role in defending the state that affords you liberty and protection? These types of questions are actually quite difficult to answer if you really dig into the details of what duties and obligations come with being an American citizen.

Maintaining the supposed existential balance between liberty and security has been a hot topic in U.S. political discourse in the 12 years since the September 11, 2001 terrorist attacks, but it flared up significantly in the summer of 2013 when former National Security Agency (NSA) contractor Edward Snowden leaked classified documents to the media that detailed the NSA’s PRISM program. PRISM collects information from internet servers via Facebook, Google, Youtube and other sites. When combined with other NSA methods of collecting signals intelligence from internet companies and various communications infrastructure, the NSA effectively had the power to conduct warrantless surveillance on American citizens in the name of rooting out potential terrorists.

Snowden’s revelations caused an uproar among civil liberties advocates from all sides of the political spectrum who claimed that the NSA’s programs directly violated constitutional rights to privacy.  In response, most of the reigning political class, regardless of party, defended the NSA programs as necessary to protect American interests against terrorism. Sen. Diane Feinstein (D-CA), chairman of the Senate Select Committee on Intelligence, claimed that “it’s called protecting America,” while the House Republicans, including chairman of the House Committee on Intelligence, Mike Rogers (R-MI), held a hearing in June to defend the NSA programs as essential to national security interests. President Barack Obama has also defended the NSA, leading to accusations that he was carrying out “George W. Bush’s Fourth Term.”

The debate between liberty and security, however, is as old as the American republic itself, and presumes a possible balance between the two ideals that may be impossible to achieve. Supporters of the right to privacy against government intrusion often invoke Benjamin Franklin’s famous quote: “Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety.” The quote has been floating through the internet ether for years, but it’s never contextualized. A while back, Brookings Institute fellow Benjamin Wittes researched the origins and context of Franklin’s quote. He found that it stems from a 1755 letter likely addressed on behalf of the Pennsylvania Assembly to protest the colonial governor’s refusal to let the Assembly tax Penn family lands to raise cash to defend the Pennsylvania frontier from French and Indian attacks. Thus, the colonial governor was a little too cozy with the Penns, and, as Wittes observes:

Franklin was writing not as a subject being asked to cede his liberty to government, but in his capacity as a legislator being asked to renounce his power to tax lands notionally under his jurisdiction. In other words, the “essential liberty” to which Franklin referred was thus not what we would think of today as civil liberties but, rather, the right of self-governance of a legislature in the interests of collective security.

So Franklin was complaining about the governor denying the PA Assembly’s rights as representatives of the people to raise money to defend the people’s interests. This is, of course, quite different from how the quote is used to comment on current “liberty vs. security” debates. You can read Wittes’ longer paper for Brookings that elaborates a bit more on Franklin’s quote here. I’m addressing the quote in this post because it’s generally used to support a black and white idea positing an attainable harmonic balance between liberty and security.

Alexander Hamilton's Federalist Party says you are an enemy of the state, you Jeffersonian scum!

Alexander Hamilton’s Federalist Party says you are an enemy of the state, you Jeffersonian scum!

Wittes thinks that no such balance is possible, and suggests instead that we consider liberty and security as “existing in a kind of ‘hostile symbiosis’ with one another—that is, mutually dependent and yet also, under certain circumstances, mutually threatening.” I think that this idea makes a bit more sense with regards to the liberty/security debate, especially when we consider two historical incidents in U.S. history, The Alien and Sedition Acts of 1798, and military conscription during World War I, where government power was controversially used in the name of protecting the country. Both incidents demonstrate that regardless of the reasons for alleged excessive government power in the name of security, these acts will always be simultaneously accused of inhibiting and upholding American freedoms.

Among the first major pubic flare ups of the liberty/security debate occurred in 1788 when, amidst an undeclared naval war with revolutionary-era France, the Federalist-controlled Congress passed four wartime laws collectively known as the Alien and Sedition Acts. These laws were designed both to thwart French influence in the U.S. and smite the Federalists’ political enemies, the Jeffersonian-Republicans, whom Federalist leaders like Alexander Hamilton accused of harboring French anarchist sympathies. The first three laws empowered the president to detain and deport any suspected enemy aliens during wartime and extended the U.S. naturalization process from 5 to 14 years. The fourth law, the Sedition Act, threatened jail times and fines to anyone caught writing, publishing, or possessing  “any false, scandalous and malicious writing or writings against the government of the United States.”

President John Adams never made use of his power to deport suspected aliens, but under the Sedition Act, 14 Republicans, primarily journalists, were prosecuted for criticizing the laws. Republicans howled, with good reason, that the Alien and Sedition Acts violated the First Amendment. In response, Thomas Jefferson and James Madison wrote up the Virginia and Kentucky Resolutions, which argued that the Federalists’ Laws gave the federal government unconstitutionally excessive powers, reaffirmed the role of states’ rights, and declared the right for states to nullify Federal laws.

Although the controversy over the Alien and Sedition Acts helped the Jeffersonian-Republicans defeat the Federalists in the 1800 election, the Virginia-Kentucky Resolutions proved controversial in their own right when southerners later used them to defend states’ rights to uphold slavery and multiple courts declared the theory of “nullification” to be unconstitutional.

Two centuries after the Alien and Sedition Acts, another long-controversial issue, conscription, again aroused debates over the balance between liberty and security. In order to field troops for American entry into World War I, Congress passed the Selective Service Act in 1917 to raise a national army via the draft. Like previous American drafts, the 1917 draft proved controversial because it often disproportionately affected the poor, who were considered more expendable as soldiers. Proponents of the draft in both the Democratic and Republican parties defended it as necessary to make those who benefitted from American freedoms defend those freedom abroad. Opponents of the draft, by contrast, criticized it as an unconstitutional affront to personal liberty.

A U.S. Draft Poster from World War I. Millions of Americans resisted despite the immanent threat posed by European ape men.

A U.S. Draft Poster from World War I. Millions of Americans resisted the draft despite the immanent threat posed by European ape men.

Resistance to the draft was particularly strong in the South, where a generation of southerners raised on Populist agrarian radicalism rejected the Great War as a tool to serve the financial and industrial interests of northeastern elites. As Jeannette Keith observes in her excellent book Rich Man’s War, Poor Man’s Fight: Race, Class, and Power in the Rural South during the First World War, “28 percent of the nation’s deserters came from the states of the former Confederacy,” and, “if southern men refused to even register at a rate that reflected their proporation of the national population,” then a half-million never even signed up for the draft.*

Keith calls World War I “the birthplace of the American surveillance state.” Through laws like the Espionage Act, the Sedition Act, and the Trading with the Enemy Act, “Congress effectively criminalized antiwar speech.”* Southerners’ evasion of the federally induced World War I draft spurred the federal government to implement widespread domestic surveillance in the South in the name of rooting out anti-war traitors. The Bureau of Investigation’s spy network targeted regular southerners in addition to pacifists, leftists, Wobblies (Industrial Workers of the World Union members), and African-Americans. Keith explains that the Bureau of Investigation’s Agents in the rural South “spent a lot of time tracing down antiwar talk and threatening dissenters until they promised to shut up. The bureau used fear to suppress dissent.”*

In 1788 and 1917 the federal government obviously lacked the infrastructural capability to reach modern NSA level spying capabilities, but the delicate balance between liberty and security was the core issue that arose with the Alien and Sedition Acts and the WWI draft.

Debates in 2013 over the NSA’s spy network continue this tradition of trying to find some kind of balance between liberty and security, but such a balance may be, by nature, unattainable. As Benjamin Wittes notes, “some surveillance…is destructive of freedom. But sometimes, the relationship between surveillance and liberty is symbiotic—that is, increasing government surveillance powers can actually be liberty-enhancing.”* The Alien and Sedition Acts and the WWI Surveillance laws were, for the most part, unconstitutional. But when the draft has been implemented for “good wars” like World War II, Americans have reinterpreted it as a “liberty-enhancing” part of patriotic duty. After all, we now call the World War II generation the “Greatest Generation,” even though they were a generation that was conscripted to fight for the nation’s greater good at their own expense.

Like the draft, how Americans feel about NSA surveillance largely depends on were we draw the line with regard to the invasion of privacy, the reach of federal government power, and the legitimacy of the stated security goal. Many supported the World War II draft in the name of defeating the twin evils of Fascism and Communism. Attitudes toward the draft turned sour, however, when is was employed to wage a perceived “unjust war” in Vietnam. Likewise, government power to spy on U.S. citizens has been criticized when used by megalomaniacs like J. Edgar Hoover, but defended in the name of upholding national security interests against international terrorism.

Whether or not the NSA’s surveillance powers are an unconstitutional affront to Americans’ freedoms will be a major subject of debate for years to come. Although the NSA programs have been credited with foiling multiple terrorist attacks, the NSA has come under deserved scrutiny for spying on American citizens in violation of its stated rules against doing so without justified suspicion.

Government power should always be viewed with a measure of suspicion, but government power can also serve a purpose: after all, the modern United States is a vast country, with a vast population and massive financial, industrial, and military interests that simply cannot be adequately protected by a technologically neutered state. Despite my seemingly infinite wisdom, I don’t have an easy answer for where the line between liberty and security should be drawn, but perhaps that’s because looking for such a line is a futile exercise. Better to recognise that the two interests are instead “mutually dependant” and “mutually threatening,” depending on the (always complicated) circumstances.

* See Jeanette Keith, Rich Man’s War, Poor Man’s Fight: Race, Class, and Power in the Rural South during the First World War (Chapel Hill: University of North Carolina Press, 2004), 2, 11-12.

*See Benjamin Wittes, “Against a Crude Balance: Platform Security and the Hostile Symbiosis Between Liberty and Security,” Brookings Institute Project on Law and Security, pg. 4.

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