By Paul Rosenzweig, The George Washington University Law School
Qui custodiet ipsos custodes? Who will guard the guards? If any single phrase captures the challenge of surveillance in a democratic state, it is this language from the Roman satirist Juvenal. Let’s take a look at how the surveillance state worked in America. Let’s also try to understand who these watchmen of America were.
How do we make sure that those who are responsible for keeping us safe are not a threat to the citizens of the very union they are bound to protect? In East Germany, the Stasi internal security apparatus saw itself as both a sword and a shield of the Communist Party and advanced the party’s interests over those of individual citizens.
So, what can a liberal Western nation do to prevent that sort of repression from occurring? America faced the question, in a very significant way, during the early 1970s.
American Surveillance in the 1970s
At the time, the US government was discovered to have engaged in illegal and, often immoral surveillance activities. Scrutiny focused on the Central Intelligence Agency, the National Security Agency, and the Federal Bureau of Investigation.
Formerly secret government initiatives—with names like COINTELPRO, which was an FBI Counterintelligence Program to spy on communists in the United States, and, later on, the Ku Klux Klan and the Black Panther Party—along with MKULTRA, which was a CIA initiative to research mind-control and chemical weapons—became hotly debated household terms.
As the revelations grew, public concern became acute—so much so, that Congress and the Executive Branch each undertook extensive reviews. In the end, we had an answer to Juvenal’s question of who will guard the guards. And the entire structure of federal covert operations was transformed.
This is a transcript from the video series The Surveillance State: Big Data, Freedom, and You. Watch it now, on Wondrium.
American Surveillance Revolutionized
It was a true revolution in citizen oversight of national security activities. Democracy was strong enough, and sufficiently supple, to restrain Stasi-like influences in the United States, though not without some broken china. The Senate Church Committee—formally known as the Select Committee to Study Governmental Operations with Respect to Intelligence Activities—proved the strength and flexibility of American ideology.
Though some today think that we did not go far enough, the response of democracy in the 1970s was a strong counter-example to the Stasi state. Confronted with abuse, we reinvigorated the power of those who watched the watchers, our congressional intelligence committees, inspectors general and a new institution called the Foreign Intelligence Surveillance Court.
This demonstration of democratic oversight of secret governmental functions was a successful application of American values.
American Surveillance: Post WWII
Let’s begin by casting our minds back to the 1950s, in the immediate aftermath of World War II. Americans of that era were afraid of communism and vigorously defended themselves against the slightest hint of it.
Today, we rightly look back with a mixture of shame and disdain at one of the most virulent forms of that pursuit: the anti-communist rantings of Wisconsin Sen. Joseph McCarthy, and the mole-hunting inquiries of the House Un-American Activities Committee, which was known as HUAC.
But the excesses of people like the McCarthy are often mistaken for the underlying motivation of all who serve in the government. And that’s plainly incorrect.
One recurring theme we see, over time, is the idea that most, though certainly not all, individuals who work within the U.S. intelligence community are motivated by a heartfelt concern for national security.
Learn more about secrecy, democracy, and the birth of the CIA.
American Surveillance: Why It All Began
Indeed, without in any way, manner, shape, or form defending the McCarthyite excess, it’s useful to understand what was driving the CIA, the NSA, and the FBI during the 1950s and ’60s. The world had just seen the Soviet coup in Czechoslovakia in 1948, the fall of China to Mao Zedong in 1949, the Korean War beginning in 1950, and, of course, the Soviet Union’s successful detonation of an atomic bomb—largely on the back of its own espionage operation.
Meanwhile, the United States and the Soviet Union had failed to reach a postwar settlement that would allow for amiable coexistence. Most American policymakers—including presidents Harry Truman, Dwight Eisenhower, and John Kennedy—all saw the Soviet Union as intent upon controlling as much of the world as it could.
Learn more about some of last century’s infamous spies.
Events That Prompted Setting Up of American Surveillance
In the late 1940s and early 1950s, a series of espionage incidents seemed to confirm that view. One of the earliest was the discovery, in 1945, of thousands of classified government documents in the offices of Amerasia, a magazine with ties to the Communist Party of the United States of America.
The era also saw the investigation into whether a former top US diplomat, Alger Hiss, was secretly a communist; the prosecution of a US Department of Justice official named Judith Coplon, who was allegedly a KGB spy; and the still historically controversial arrest and execution of Julius and Ethel Rosenberg, after their convictions of conspiring to spy for the Soviet Union.
Yet, none of this excuses the unwarranted, and often illegal, activities undertaken by the intelligence community in its anti-communist fervor.
With the benefit of perfect 20/20 hindsight, we can see this historical vision as hysteria, motivated by fear. And perhaps from that, we can learn some lessons for today. But calling it unreasoning hysteria does not lessen the urgency with which the fear was felt.
Common Questions about Surveillance in America
The intelligence agencies that came under scrutiny in the 1970s were: the Central Intelligence Agency, the National Security Agency, and the Federal Bureau of Investigation.
Some secret government intelligence initiatives of the 1970s include COINTELPRO—which was an FBI Counterintelligence Program to spy on communists in the United States, and, later on, the Ku Klux Klan and the Black Panther Party—and MKULTRA—which was a CIA initiative to research mind-control and chemical weapons.
An example of early espionage in the US is the discovery, in 1945, of thousands of classified government documents in the offices of Amerasia, a magazine with ties to the Communist Party of the United States of America.