The revelations in recent months of electronic surveillance of Americans’ and foreigners’ communications have ignited a fierce debate in the United States about just how much power the federal government should have in the realm of surveillance for the sake of national security. Edward Snowden’s leaks of enormous amounts of documents detailing National Security Agency data-mining programs like PRISM shed light on previously secret activities by one of the agencies charged with keeping Americans safe. The trial and (eventual conviction) of U.S. Army soldier Bradley Manning for leaking classified documents to Wikileaks had already sparked arguments on security and privacy by the time Snowden and his actions made headlines. And just this month, the Washington Post reported that the NSA, since gaining increased surveillance powers in 2008, has violated rules concerning Americans’ privacy on 2,776 occasions, according to documents obtained from Snowden.
This is not the first era of American history to be marked by highly controversial exercises of federal power (including possible infringements on constitutional rights) in the name of national security. Near the end of the 18th century, the U.S. was in an undeclared naval war with Revolutionary France. As fears of a French invasion of the U.S. grew, President John Adams signed the Alien and Sedition Acts of 1798, four laws designed to crack down on potential dissent in the event of an all-out Franco-American War (and also designed to try to silence criticism of Adams and the Federalist government).
The Sedition Act was clearly the worst of these laws, as it blatantly contradicted the First Amendment’s guarantees of “freedom of speech, or of the press.” The act criminalized “any false, scandalous or malicious” writings criticizing the federal government. It was used to prosecute and imprison Vermont Congressman Matthew Lyon for openly condemning Adams’ “thirst for ridiculous pomp, foolish adulation, and selfish avarice” (Lyon’s words), and to arrest New Jersey editor Luther Baldwin for publicly wishing “that the ceremonial cannon fire greeting President Adams had landed on his backside," among other infamous cases.
How did Hamilton, the primary architect of federal power in early America, feel about these measures? He voiced severe reservations about the Sedition Act as it was originally written, even though he eventually endorsed it as well as the other three bills Adams signed. In a letter to Treasury Secretary Oliver Wolcott, he wrote that “there are provisions in this bill which according to a cursory view appear to me highly exceptionable and such as more than anything else may endanger civil war….Let us not establish tyranny. Energy is a very different thing from violence.” But while this ambivalence indicates a realization on Hamilton’s part that the necessities of national security should not be allowed to overwhelm the principles of liberty , the fact that Hamilton supported repressive measures in the end is surely an example of poor judgment on his part.
Meanwhile, in response to the Alien and Sedition Acts, Thomas Jefferson (Adams’ own vice president) and James Madison, the leaders of the Democratic Republican opposition, went at least as far in the direction of disloyalty to the Constitution as Federalists like Adams and Hamilton went in the direction of trying to find ways around the First Amendment. In their Kentucky and Virginia Resolutions, they declared that if the federal government was infringing on the rights of the people, the states could nullify federal laws they found excessive.
This was no mere attempt to push back against allegedly tyrannical power, it was an incitement to outright rebellion against the U.S. government. If leading Federalists were trying to get around one part of the Constitution, leading Democratic Republicans were threatening to tear the country to shreds (as some of Jefferson’s ideological descendants would attempt to do in the American Civil War).
Fortunately, when an opportunity for peace with France presented itself, Adams took advantage of it, and by the time Jefferson became president in 1801, the Quasi-War, as it later became known, was over. As for the Alien and Sedition Acts, a Democratic Republican Congress repealed the Naturalization Act in 1802, while the other three laws were allowed to expire.
His endorsement of repressive laws was certainly not Hamilton’s finest hour. As a man who had risked his life as a soldier in the war to establish American independence from a monarchy that had overstepped its bounds, and as a lawyer committed to the rights of individuals, he should have known better than to support a measure trampling on so basic a right as speech. With his distrust of mass democracy and his belief in the necessity of a strong central government (both of which were, to different extents, justified in the early days of the American republic), Hamilton allowed his desire for an America dominated by a strong federal executive branch to get the better of him.
Still, Hamilton should not be judged too harshly. The very fact that he had rather strong initial reservations about the Sedition Act shows that he was seeking an attempt to balance liberty and authority, just as necessary a balance today as it was more than 200 years ago. Political liberty is wonderful, but it is not a moral absolute, and must occasionally be circumscribed by governmental authority. It is true that without a commitment to citizens’ liberties, there is not much point in putting political authority in the hands of a government, elected or unelected. But it is equally true that without a certain degree of authority being given to government for the sake of protecting citizens’ liberties and rights, there is not much point in putting individual liberty on a pedestal — principles, even great ones, are empty words if they are not backed up by force. Authority and liberty are not mutually exclusive. They sometimes conflict, but they can just as easily complement each other.
In light of all this, what should 21st century Americans make of the NSA’s programs and the worries they have raised?
The parallel between worries of a French invasion of the U.S. near the end of the 18th century and American concerns about terrorist attacks in the years since 9/11 is a striking one. In the past case, while shots had been exchanged and America was wisely preparing for war (even a war many of its people did not wish to fight), the chances of an all-out French invasion were slim, and Hamilton and his allies overreached by arguing that a large national army was necessary to fight off a looming threat. (See Chernow’s biography for a full discussion of Hamilton’s efforts to establish such an army, Adams’ reluctant appointment of Hamilton as its effective commander, and the government’s eventual unwise disbanding of the army at Adams’ insistence).
In today’s case, while transnational terrorism, especially of the Islamist variety, remains a threat to American interests, there has been an unfortunate tendency on the part of some government officials to overstate the threat’s severity. As with the Quasi-War, however, even though the threat has sometimes been exaggerated, the key is to find a wise middle ground between excessive fear of outside threats and excessive fear of governmental authority.
In-depth surveillance of the communications of any individual, U.S. citizen or not, by phone, email, or any other means, should be linked to a specific criminal investigation, and should require a warrant from a judge (whether a judge on the Foreign Intelligence Surveillance Court or another court) before proceeding. This has been the American tradition since the ratification of the Fourth Amendment in 1791, and it should continue to be so. The issue of the gathering of metadata is more difficult to resolve, however. While this kind of information may not automatically tell a person at an intelligence agency exactly what person X has communicated to person Y about topic Z, possession of metadata does make it easier to connect the dots. Laws explicitly permitting government gathering and storage of metadata might be beneficial to American security interests, but only if the gathering process is closely overseen by outside observers, particularly members of Congress.
It is also important to maintain a sense of context when discussing intelligence gathering of this sort. The NSA, because it is run by human beings, will make mistakes from time to time, and furthermore, as Thursday’s Washington Post article points out, the violations documented in the NSA’s internal audit were not all due to human activity. This does not mean that NSA personnel are right to overstep the bounds set for them under the law, or that Congressional oversight of the agency is not needed. It does, however, mean that a small number of oversteps (relative to the amount of data gathered by the NSA and its sister agencies in the intelligence community) should be expected and should not be automatic cause for panic.
Anyone who seriously thinks that the actions of the NSA are making or have made the United States into a police state would do well to listen to German Chancellor Angela Merkel, a woman who grew up in East Germany and knows a thing or two about just how harsh a true police state can be. She has rightly said that comparisons between the NSA and the Stasi, the East German secret police, “only amount to trivializing what state security did to people” under communism. An argument that the NSA and other government security agencies should not have broad powers of surveillance is a legitimate one. An argument that any government that engages in such activity for any purpose automatically becomes a totalitarian regime is ridiculous.
To state the obvious (or, at least, that which is obvious to everyone but a deeply paranoid libertarian or a truly irredeemable despot), it is not easy to maintain individual liberty and national security at the same time, especially in a modern republic. Interests and ideals compete and clash, and to view security, liberty, or any other principle as a concern that should overwhelm all others is foolish. Jefferson and Madison may have been right that not all was well with the sorts of power Congress and the president were exercising, but their fervor for liberty (and their political rivalry with Hamilton and Adams) led them to greatly overreact. Today’s Americans must avoid making similar mistakes.
Neither perfect liberty nor perfect security is either possible or desirable, but a sensible, safe balance between the two is both possible and desirable. As Americans and their government navigate the complex world of the 21st century, they should bear this in mind, and calmly decide how and where the balance is to be struck.