Covert Intelligence versus the American Body Politic?

In theory, most Americans would concede this point.  In President John F. Kennedy’s address to the American Newspaper Publishers Association in 1961 he described the ethos of the American people and their aversion to the opaqueness of internal government workings.  President Kennedy stated:

Secrecy is also necessary if the U.S. wants to accept defectors from opposing states or, at the very least, to maintain a continuous flow of information from insiders who are willing to provide such information to the U.S. without the source being compromised.  An example of this was in China were a third party, Wikileaks, released secret information to the public that revealed that the U.S. received specific intelligence as to the type of missiles, launch site, and launch time for missiles being tested by the Chinese Army.  The public disclosure revealed that the U.S. disseminated that information to its allies in the region so that its allies were not caught unaware by the launch.[7]

The disclosure will allow the Chinese government to quarantine their strategic missile corps and remove officers or civilian scientists who have been providing the sensitive information to the U.S.  This will have the affect of ending that avenue for the United States to gather intelligence related to China’s strategic missile corps and will weaken the United States’ ability to respond to potential missile threats from China in the future.  There is no way to gauge how long it will take the U.S. to rebuild its access to that vital information, but it stands to reason that this loss of intelligence will be detrimental to U.S. interests.

Just how far reaching a disclosure of intelligence information can be is very difficult to quantify.  In 1931, a book was published in the Saturday Evening Post called, The American Black Chamber.[8]  The author was former Chief of the Cipher Bureau, Herbert Yardley.  He was a cryptologist who explained in his book how the U.S. government broke the Japanese codes used in diplomatic cables in the 1922 Washington Naval Conference.[9]

At the time it may have seemed innocuous.  World War I was over and the U.S. was ascending on the world stage.  Soon, however, the world would plunge into World War II and the U.S. would enter its Great Depression.  The Japanese intelligence community was made aware of their deficiencies in secure communications from Mr. Yardley’s publication and transformed their communications to make it harder for their codes to break.  This made it substantially more difficult for American intelligence to decode information coming out of Japan and its embassies and culminated in the shortcomings of American defense systems that allowed Pearl Harbor to be attacked on December 7, 1941.[10]

Actions have consequences, and the scope and magnitude of those consequences are not always apparent.  Although Congress has passed laws with the aim of protecting secret information considered vital to the United States’ national security; media organizations, like the New York Times and WikiLeaks, leak secret information for public consumption based on the argument that they have a public duty to protect free speech.  The debate centers around the proposition that since the 1st Amendment states, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press…”[11], that means no law may therefore be passed to limit the scope of free speech in America.  Since Wikileaks got access to the secret cables between the U.S. and its allies, the argument would stand that Wikileaks has a right to release what it finds because the 1st Amendment guarantees their ability to do so.  The Supreme Court has not always endorsed this view since it has allowed for the curbing of free speech particularly when state secrets and national security are involved.  As one Supreme Court Justice noted, “the freedom to believe in one’s speech is absolute, but the freedom to act is not.”[12]

A modern day example of this dilemma is the New York Times’ disclosure of the Swift program that was being used by the Treasury Department and the CIA to track the transfer of funds for terrorist operations.[13] Through the Swift program the U.S. had access to data collection from a Belgian cooperative of lending/financial institutions that were responsible for the annual wireless transfer of over $6 trillion.  With this information the CIA was able to follow the money trail to track Al Qaeda operations abroad.  When the program was disclosed (over objections from the office of the President of the United States) in 2006, Al Qaeda stopped transferring funds through international wires and started using couriers and cash.  Al Qaeda’s adaptation based on the public release of this secret information has made it much more difficult for the CIA to track Al Qaeda operations and could prevent the U.S. from being able to respond to terrorist threats in the future.

Whichever philosophical viewpoint one holds there are very few Americans who advocate the complete dismantling of the U.S. intelligence apparatus as a whole.  To the contrary, the need for intelligence to safeguard those principles about which James Madison spoke and helped to enshrine in the Constitution is necessary to protect citizens of the U.S. from states or non-state actors who seek to deny, limit, or terminate individual liberty to the American people.

The answer to the question of whether or not covert intelligence agencies within an open government and society is or is not anathema to the American body politic is not to be found in absolute terms.  The dilemma is one of how it should be structured, proper safeguards, and appropriate accountability.  The answer to the question of whether or not the Intelligence Community[14] should be loathed by the American people because of its nature to be disinclined towards transparency is; that it should not be, but depending on how it conducts itself within the legal limits placed on it, it can be. 

Should It Be Considered Anathema?

Before exploring whether or not the Intelligence Community can be anathema to America’s open society, whether it should be anathema to American society needs to be discussed first. 

The purpose of the Federal Government is to ensure its citizens’ unalienable rights, which include the right to “Life, Liberty, and the pursuit of Happiness.”[15] Each individual is perfectly free, as God is perfectly free, and the American people come together as a collective to form a union with the express goal of protecting and preserving their said freedoms.[16]  Simply put, the Federal Government’s role is to safeguard its citizens’ civil liberties from hostile foreign or domestic entities.

To safeguard those freedoms the federal government of the U.S. must maintain certain defenses, e.g., the Armed Forces, to prevent invasion from a hostile nation-state or, as the U.S. has seen in more recent times, non-state actors such as Al Qaeda.  The assets that the U.S. uses to maintain its defenses can only be used effectively and morally if there is responsible intelligence being collected and processed to indicate where threats against the security of its people lie.

It would be an abuse of power for the U.S. to receive intelligence that an attack from a European nation is imminent within the next 24 hours and use that information to arbitrarily engage Norway with its nuclear first strike capabilities.  Neither would it be appropriate to attack all European nations.  Each instance would constitute an abuse of the United States’ power. 

Intelligence is also necessary for the purpose of providing insight into the psychology and intentions of other countries and groups.  If Mexico and the U.S. were in a state of harmony with one another and Mexico started building tanks, the U.S. may not understand why Mexico would have a need for additional tanks.  They may misperceive Mexico’s intentions and think that Mexico was massing forces in preparation for an act of aggression against the U.S.  To respond, the U.S. begins building aircraft that can bomb Mexico’s tanks.  Mexico may have only been building the tanks to increase their security, but now that they see the U.S. is building aircraft, they now begin to manufacture their own aircraft and an arms race has begun.  This pushes each state closer to a war with each other that neither intended nor wanted.  This all occurs because of the misperception created by not knowing why each state was taking the actions that they did.  This is known as the security dilemma.[17] The intelligence that a covert organization can gain access to can provide to world leaders information about the intent of newly manufactured military capabilities and assist them in making rational decisions to prevent arms races and prevent the security dilemma from occurring.

So, should covert organizations be considered anathema to American democracy and its people?  No.  There is a legitimate function/role that the Intelligence Community serves in providing U.S. leaders and those responsible for maintaining United States’ defenses with current and relevant intelligence to make informed decisions to protect the U.S. from those who would wish to do her harm.

The Japanese attack on Pearl Harbor on December 7, 1942 and the terrorist attacks on the World Trade Center buildings on September 11, 2001 are just two examples that demonstrate the aggression that the U.S. faces and will continue to face in the future.  Both instances illustrate the need for the Intelligence Community as a bulwark against such calamities.

One final example of the importance and practical purpose of secret intelligence capabilities is Iran and the Stuxnet Worm.[18]  While no state will ever come forward to admit their role in the 2010 event because it would constitute an act of war it never the less shows the importance of industrial espionage capabilities that a state needs to have.  In September 2010, a virus was transmitted to Iran’s Bushehr nuclear facilities that succeeded in disrupting Iran’s pursuit of nuclear capabilities.  The virus, known as the Stuxnet Worm, worked by changing the centrifuge speed to disrupt the uranium enrichment process while simultaneously giving false data that everything was working normally to those who monitored the computer systems.  This only could have been achieved with access to proprietary information to Siemens Industrial software that was used at the nuclear facility.  If the CIA, NSA, or similar secret intelligence agency that was responsible for gathering the data used to conduct the attack, didn’t conduct espionage to be able to infiltrate Iran’s nuclear facility software then Iran may have access to nuclear weapons today.  Should a covert intelligence organization that prevents a nuclear holocaust (Iran’s stated goal to wipe Israel off the map)[19] be considered an anathema?

The Intelligence Community should not be an anathema to the open society in the U.S. because the Intelligence Community serves a vital function in the preservation of the United States’ open society.  For this reason, the issue of whether having secret intelligence gathering organizations should not be debated in terms of whether it should exist at all, but rather how to create safeguards to prevent it from becoming an anathema.  Historically, when the Intelligence Community started to become an anathema, the discussion revolved around how to bring the Intelligence Community back from the brink.[20]

There are political pundits, scholars, and professional experts who make arguments to the American people that the CIA has corrupted and even committed a coup against the federal government of the U.S.[21]  They argue that the CIA should be disbanded for their failings and breaches of their fiduciary duties.  They claim to be in favor of abolishing the Intelligence Community, but their argument is never based on the function of intelligence gathering and dissemination that these secret organizations are responsible for.  The argument isn’t that there should be no Intelligence Community, only that the current intelligence institutions are not complying with appropriate restrictions. 

There certainly is not an outcry from the American people to do away with the United States’ secret intelligence gathering capabilities.  Stalwarts of the intelligence community like the Central Intelligence Agency are 64 years in the making and cannot be undone in one congressional session without severe risks to the safety of the country. 

Under What Circumstances Can It Be?

Can the Intelligence Community become an anathema to the American body politic?  The dilemma for the American people is: what is the Intelligence Community doing in their name around the world and at home? 

There have been times in the Intelligence Community’s history when they have clearly overstepped the legal and moral limits that American society places on them.  Espionage has existed in some form or fashion in the United States’ history since the Revolutionary War when George Washington used the ‘Culper Ring’ in New York to spy on the British.[22]  Leaking of sensitive information has existed since the founding of the U.S. as well.  A famous case involved Thomas Paine, the author of Common Sense, being fired from a Continental Congress committee responsible for intelligence oversight after he leaked information about the help the Continental Congress was receiving from the French in public pamphlets.[23]

It wasn’t until the invention of the telegraph that the U.S. could use technology to pry into nations’ private communications and that modern espionage came into being.  Prior to the advent of the telegraph espionage carried a connotation of a wartime/military function, but now espionage could be utilized in new ways which society had yet to measure the means against the ends.  It was in1922 when the Cipher Bureau broke the Japanese codes for their communication cables that the U.S. had its first test with the morality of using covert organizations to ascertain another nations’ proprietary information. 

The U.S. used their access to Japanese confidential cables to ensure an advantage in negotiations with the Japanese.  In 1929, when all of this was brought to light and Secretary of State Henry Stimson took his office, he promptly ended the program and completely eliminated the Cipher Bureau’s budget.  His reasoning was succinctly summed up with his commentary that, “Gentlemen do not read each other’s mail.”[24] This was America’s first modern standoff with covert intelligence organizations within the government and Secretary Stimson’s decision effectively ended the Cipher Bureau’s potential threat to become an anathema.

Until the 1970s, ethical questions that may have normally been raised from the use of the Intelligence Community went largely unasked as the U.S. slowly emerged from its necessity of relying on secret organizations to support World War II.  As Cicero once noted, “For among times of arms, the law falls mute.”[25] The only exception were questions that were raised regarding President James Polk and his use of clandestine agents sent to Mexico as emissaries.  The practice of sending officials with a dual mission to spy on Mexico as well as conduct official business became known as, “spying in striped pants.”[26] The accusations were that President Polk was misusing personnel of his intelligence community and the data they collected for military use to purposefully try to stoke the flames for a war with Mexico.  The end goal was to acquire more land from Mexico than just the Texas annexation.[27]

Looking at the circumstances around these events there seems little doubt that President Polk wanted to acquire more than just Texas from Mexico. However, whether or not he misused intelligence assets to start the Mexican-American War never became a concern for the American people primarily because the U.S. engaged in hostilities with Mexico, and the American people viewed Mexico as an enemy.  A blind eye is turned to abuses of power for the sake of the nation’s survival.  That is why questions about actions taken by the Intelligence Community went largely unasked for nearly 100 years, from the Mexican-American War of the late 1840’s to World War II in the mid-1940’s. 

The real debate seeking to determine if a large, secret intelligence agency ran counter to the values that the American people espouse started immediately prior to American victory in World War II.  On June 13, 1942, President Franklin D. Roosevelt issued an order that created the Office of Strategic Services (OSS).[28]  Prior to the creation of the OSS, intelligence gathering and operations were primarily conducted by either the State Department or the Armed Forces. 

It was in no way limited to those two entities however. There was an amalgamation of government institutions that possessed secret intelligence capabilities.  The Office of Naval Intelligence (ONI), which still exists today, was responsible for gathering intelligence critical to the Navy’s mission, the Federal Bureau of Investigation (FBI), Military Information Division (MID), War College Department (WCD), Army Signal Corps and the State Department are just a smattering of examples. [29]  The State Department also created the Bureau of Secret Intelligence under their umbrella and the State Department developed an attaché system to provide cover for military intelligence agents abroad.[30]  If a department of the Federal government had a need for intelligence, so long as they had the funds to provide a budget for it within their framework, they created their own intelligence gathering apparatus.  Like two corporations who seek a joint venture to maximize their benefits and limit their costs, government agencies could work together to create joint intelligence agencies that would fall under a particular agencies jurisdiction while the other still benefited from the access to intelligence and reduced cost to their budget. 

The existence of so many intelligence gathering arms of all the federal agencies, with each part having access to its own set of intelligence separate from the others, made it apparent that there was a need to consolidate the Intelligence Community into one body.  On June 13, 1942, that is precisely what President Franklin D. Roosevelt did when he created the Office of Strategic Services (OSS), but the OSS was not the first option that the President sought. 

The United States’ civilian leadership wanted to create the first peace-time secret intelligence gathering body.  Until 1947, the United States’ history of secret intelligence collection and clandestine operations were left to the agencies that dealt in foreign affairs and were heavily involved in war-time operations or pre-war preparations.  The new intelligence agency would be the United States’ first attempt to create an agency that would conduct espionage during peace-time and not for the purpose of conducting and winning wars against other nations.  The governmental department was to be named the Office of the Coordinator of Information (COI) and report to the President of the U.S.[31]  President Roosevelt’s vision never came to fruition as it was initially intended.  The OSS replaced the COI with the difference being that instead of being accountable to the President, the OSS reported to the Joint Chiefs of Staff (JCS) with the military moving to the forefront of American foreign policy with the war against the Axis Powers.[32]

The OSS was a short-lived agency, disbanded only 3 years later by President Harry Truman, but it did eventually emerge as the consolidated, peace-time intelligence organization that the civilian leadership had envisioned with the passage of the National Security Act of 1947.

An early accomplishment of the Intelligence Community following the conclusion of World War II was Operation Paperclip.[33] Operation Paperclip was the United States’ effort to harbor former German Nazis who were scientists, engineers, and cryptologists.  The U.S. accomplished this by bringing them to the U.S. and giving them citizenship or by offering them protection wherever they might be oversees serving the United States’ needs. 

Operation Paperclip worked with war criminals like Klaus Barbie (the Butcher of Lyon), Otto von Bolschwing (associate of Eichmann), and SS Colonel Otto Skorzeny (confidante of Hitler).  The CIA used Klaus Barbie in Bolivia to help capture Che Guevara.[34]  The CIA used Otto von Bolschwing to bolster their intelligence on U.S.S.R. operations in Germany.[35] The CIA used Colonel Skorzeny to traffic arms in Spain.[36] Do the actions taken in Operation Paperclip constitute the CIA being an anathema to the American body politic?  It can be argued that the United States’ use of such men is morally repugnant, but the question becomes more difficult to answer when you consider that each of the three men achieved results for the U.S. that were important to its security.

Furthermore, the other men that were brought in during the operation were mainly scientists and engineers who were responsible for giving the U.S. a working rocket program.[37] The former German scientists now turned American scientists are responsible for untold billions of dollars of revenue in patents and military technology for the U.S.  Looking further into the future, their rocket program allowed the U.S. to beat the Soviet Union to the moon.  The rocket program also allowed for the development of the missiles that were capable of delivering the United States’ nuclear warheads.  Could the U.S. have otherwise maintained an effective policy of containment against the Soviet Union during the Cold War without the rocket program?

Not every example is located in the grey area.  Some are very clear-cut and it’s perplexing that the Intelligence Community was able to get away such egregious acts.  One such instance was J. Edgar Hoover’s role as Director of the Federal Bureau of Investigation (FBI).  Director Hoover came into power originally under President Coolidge as the Director of the Bureau of Investigation (BOI), which later became the FBI under President Roosevelt.  He used FBI assets to secretly and illegally investigate elected officials whom he viewed as political enemies and others that he recognized as politically powerful, in order to keep himself in his position as Director of the FBI. 

Director Hoover also ran illegal counter intelligence programs that monitored the actions of Martin Luther King Jr., Eleanor Roosevelt, President John F. Kennedy, Robert Kennedy, President Eisenhower, President Ronald Reagan, Presidential Candidate Thomas Dewey, etc.[38] Each President from President Roosevelt to President Nixon wanted to remove him from his post, but they all also decided that the potential political liability was too great as a result of the nature of the intelligence Director Hoover was able to amass. 

Director Hoover’s actions are examples of when intelligence organizations can become an anathema to the American body politic.  Baron John Acton’s once said that, “power tends to corrupt, and absolute power corrupts absolutely”. That statement is as true today as it was when he wrote those words in 1887.  Men are fallible creatures.  When J. Edgar Hoover died in 1972, Congress recognized that public officials who were allowed to acquire too much power could begin to use their office and organizations in a way that would allow it to become an anathema.  To prevent this from happening Congress passed a law that only allows the Director of the FBI to hold their office for a maximum of 10 years.

An example of an entire organization moving towards the clearly defined area of anathema is the CIA in the late 1960s and early 1970s.  After Watergate, Congress convened a committee that became known as the ‘Church Committee’ in the Senate to investigate allegations of the illegal use of CIA assets.  Watergate ended the era of little-to-no government oversight of the Intelligence Community.  The New York Times published an article that revealed what it called the ‘Family Jewels’.  The family jewels were the illegal actions taken by the CIA that the Church Committee discovered.  They included the attempted assassination of foreign leaders of various countries, i.e., Congo, Dominican Republic, and Chile, the illegal wiretapping and surveillance of journalists, and the infiltration of foreign states’ police forces.[39]

The Church Committee made recommendations that eventually led to the creation of Select Intelligence Oversight Committees in both houses of Congress to return the CIA to more stringent civilian oversight.  The investigation also led to the passage of the Foreign Intelligence Security Act that created a system for the CIA to request surveillance warrants from independent judges who could reinforce the impartial civilian control over the Intelligence Community to prevent the Intelligence Community from becoming anathema to the American body politic.[40]

A pattern begins to emerge in American history where each generation faces its own unique threat and responds to that threat in a manner that they see fit.  It’s only after the threat has been beaten and the next generation rises to lead, that the actions the previous generation took are given a critical eye to ensure that no legacy remains that may allow the Intelligence Community to become an anathema.  Today’s generation faces the threat of terrorism.  Current leaders have used the CIA’s predator drones to assassinate high profile terrorists in countries like Yemen and Pakistan,[41] used a meta-data collection program, and passed the Patriot Act.

The CIA also runs an extraordinary rendition program in which they take high profile terrorists who possess vital intelligence and transport them to ‘black sites’ in Eastern Europe.[42] The CIA also transfers the terrorists to Middle Eastern nations who are more liberal in their interrogation techniques.  The point of the program is to take individuals that would not ‘break’ under interrogation techniques authorized in the U.S. and place them in an environment outside of U.S. law that allows for harsher interrogation techniques to get the intelligence the CIA desires.[43]

These are a few examples of how the United States’ current generation is dealing with the threat that faces them in the form of global terrorism.  What steps the next generation will take to prevent the CIA from becoming anathema to the American body politic no one can yet say.  There are those who argue global terrorism is a tactic and not an enemy that can be defeated.  Communism was an ideology and ideas cannot be conquered; yet the U.S. still claimed victory.  If history is a good indicator the U.S. will overcome this threat that currently faces them and the necessary steps will be taken to bring the Intelligence Community back into balance with the people it represents through its actions.

Conclusion

To paraphrase Nietzche, the ideal world does not exist; we exist in the real world.[44] As much as one might wish to argue against the necessity of covert intelligence organizations in an open society, there are critically important reasons for the U.S. having such an apparatus to protect its people. 

Covert intelligence organizations and agencies serve a vital function in allowing for the moral use of the state’s power.  They can only be an anathema when they become corrupt and abuse the power they are entrusted with.  Each generation faces their own unique threats and responds accordingly.  With each response the enemy adapts and the intelligence organizations are forced to innovate new ways to meet the adapting threat that push the moral boundaries of the open society they represent. 

As Hans Morgenthau notes,

“Universal moral principles cannot be applied to the actions of states in their abstract universal formulation, but that they must be filtered through the concrete circumstances of time and place.  The individual may say for himself: “Fiat justitia, pereat mundus (Let justice be done, even if the world perish),” but the state has no right to say so in the name of those in its care.  Both individual and state must judge political action by universal moral principles, such as that of liberty.  Yet while the individual has a moral right to sacrifice himself in defense of such a moral principle, the state has no right let its moral disapprobation of the infringement of liberty get in the way of successful political action, itself inspired by its moral principle of national survival.”[45]

The state has a moral obligation to ensure its national survival.  To prevent covert intelligence organizations from becoming an anathema to an open society, the American body politic must continue to educate its citizenry on its responsibility to exercise personal responsibility.  Each citizen must remain aware of the actions that are taken by those who represent them in their name and use their elected representatives to make the necessary reforms when actions are being taken that are not in keeping with the collective moral underpinnings of American society.  Being an anathema and anathematic actions are the difference between tyranny and democracy.

End Notes