Overview of Articles

Unknowable risks, ideological confusion, policy complexity, institutional inadequacies, and periodic mass panic all challenge efforts to balance security needs with civil-liberties protections. Looking at security issues faced by the United States since World War II, the articles in this special issue explore the limited successes and frequent failures to achieve this balance.

A notable feature of the special issue is that the authors of three of the articles—Louis Fisher, Loch Johnson, and Athan Theoharis—have made special contributions, beyond those of mere scholarship, to the cause of protecting privacy and democratic processes against authoritarian impulses of the security state. Fisher, as a senior specialist in the Congressional Research Service, was threatened by superiors for writing critically about both Congress and the executive for their initiation of war against Iraq on the basis of false claims. His involuntary transfer to the Law Library of Congress did not curtail his widely read publications or congressional testimony. Johnson served as special assistant to the Chairman of the Church Committee during its historic mid-1970s investigations of government spying on domestic political groups. Athan Theoharis’s dogged pursuit of Freedom of Information Act requests led to the discovery of J. Edgar Hoover’s secret personal files and enabled him to expose decades of abuses by the Federal Bureau of Investigation (FBI). The editors are honored by their participation in this project.

We begin with Jessica Wang’s article on how rumors, gossip, stereotypes, and cultural myths have, for decades, driven investigations against government scientists and engineers. She puts these phenomena in the context of prior theoretical work on the systematic, often sophisticated use of such “low knowledge” as an instrument of control—benefiting, counterintuitively, powerful actors. She then examines how federal authorities, starting in the 1940s, conducted background checks on atomic researchers to uncover possible communist infiltration in the U.S. government. Investigators, as Wang documents, held almost cartoonish beliefs about the so-called communist personality, and thus conducted crude, unprofessional inquiries to identify disloyal government scientists. Mere gossip was often enough to ruin careers. Anyone familiar with the anticommunist hysteria of the early Cold War will find this account familiar, but Wang shows that the same types of fears and tactics shaped federal investigations in the 1990s against Asian American researchers suspected of working as Chinese spies. Race was the overriding and, in some cases, only basis of suspicion. Wang demonstrates that politicians and intelligence officials can hold the same automatic suspicion of immigrants that sometimes overtakes the American public.

Continuing with concerns of investigative abuse, William Bendix and Paul Quirk examine the government’s overcollection of private documents after the September 11th attacks. Although public concern over privacy violations has centered mostly on the NSA, the authors explain that the FBI has also conducted indiscriminate surveillance on Americans. It has used national security letters—a type of administrative subpoena issued by bureau officials, not courts—to seize records on thousands of U.S. persons each year. Bendix and Quirk show that few members of Congress understood that, by passing the Patriot Act in 2001, they had dramatically expanded the FBI’s ability to conduct warrantless intelligence gathering. It took Congress more than five years to learn the extent to which agents had violated privacy protections with national security letters. Then, notwithstanding the revelation of these far-reaching abuses, Congress shelved multiple reform bills and allowed the Obama administration to produce new, classified rules for records seizures. Bendix and Quirk conclude that a combination of complex surveillance laws and partisan gridlock has encouraged Congress to shirk its deliberative duties on counterterrorism policy.

In the third article, Louis Fisher examines why the most controversial practices in the war on terrorism—including coercive interrogation and extraordinary rendition—have not received judicial scrutiny. The answer, he explains, is that the Bush and Obama administrations invoked the states secrets privilege to block the release of incriminating evidence against the Central Intelligence Agency (CIA), and the federal courts supported the White House without reviewing any of the documents. Fisher argues that the courts, by failing to verify the merits of privilege claims, have effectively surrendered their independence on security issues and have allowed the executive to conceal massively illegal activities, such as torture. The basis of this judicial acquiescence, he claims, is a deeply flawed ruling on executive privilege that the Supreme Court made in 1953. Fisher argues that the federal courts could restore their ability to check executive power by taking a very simple step. They could review classified documents in closed chambers to determine whether the executive has asserted its privilege for legitimate security purposes or for covering up unconstitutional acts.

Loch Johnson provides a somewhat less pessimistic assessment of national-security oversight than other contributors in this issue. He points out that the current system, despite its serious flaws, is much more robust than what existed for most of the country’s history. Before the 1970s, Congress did not monitor intelligence agencies or place restrictions on clandestine programs. At most, it received occasional, vaguely worded reports on classified operations that few members were able to access. Johnson explains that, in the mid-1970s, scandals over domestic spying by the CIA and military pushed Congress to establish the House and Senate Intelligence committees and to start conducting extensive intelligence oversight. Since the 1970s, the panels have had an uneven record monitoring the executive, alternating between periods of neglect and diligence. However, as Johnson notes, even when the committees have acted slowly, they have nonetheless produced reports that exposed executive missteps and proposed meaningful reforms. He points to the 2014 report on torture by the Senate Intelligence Committee as a recent example of Congress holding the CIA accountable for serious abuses.

To conclude this special issue, Athan Theoharis presents a historical overview and a broad appraisal of domestic eavesdropping programs. For him, mass warrantless surveillance by the FBI and NSA in recent years simply reflects a continuation of, not an aberration from, long-standing practices by U.S. intelligence agencies. In the face of indefinite threats, either from Nazi saboteurs or Islamic terrorists, the executive has generally preferred to adopt abusive, unconstitutional methods in an attempt to increase, even minimally, the country’s security rather than follow statutory requirements and heighten any possible risk of attack. Starting with Franklin Roosevelt, presidents and other executive-branch officials have authorized blatantly illegal actions—such as black bag jobs—and intelligence agencies have eagerly complied with orders. But this secret surveillance, as Theoharis explains, has sometimes lost its security purpose and turned into sleazy, politically motivated operations. From the 1940s to the 1970s, for example, FBI agents monitored and compiled embarrassing information on members of Congress, so that bureau officials could gain leverage over lawmakers. The overall lesson here is that an unchecked executive may at times abandon its national-security mission and, as a consequence, undermine both the democratic and defense interests of the country.

In fact, this lesson can be drawn from all the articles in this issue. But while the contributors suggest some legal and institutional fixes to enhance accountability in intelligence programs, their reforms, if implemented, would not dramatically alter the current conflict over security and liberty. This is because it remains an open question whether the increased level of oversight needed to prevent government abuses would hinder authorities from adequately protecting the homeland. So we are left with an intractable problem: The Constitution is not a suicide pact, but neither is the Bill of Rights merely a wish list.