The Limits of Security and Secrecy

By William E. Smith

The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness ... They conferred, as against the Government, the right to be let alone --the most comprehensive of rights and the right most valued by civilized men. To protect that right, every unjustifiable intrusion by the Government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment.

These words by Justice Louis Brandeis, written in 1928, may seem almost quaint to a nation engulfed by Watergate.

But they are an implicit answer to the Nixon Administration's assertion that its actions in the Watergate case have been motivated by "national security." It is an adroit defense, because the phrase is so vague as to defy easy definition and it appeals, after all, to valid national concerns.

The Watergate coverup, the illegal wiretapping, the breaking and entering by White House operatives--all have been explained on the basis of this higher good.

What exactly is the national security, and how much invasion of privacy can be justified in its behalf? How much secrecy is really necessary? The difficult debate over individual rights v. the common good dates from the earliest days of the republic. Still, the fact that most of the fights over repression, loyalty oaths and the stifling of dissent are so long forgotten is an indication that in most cases the tumult was out of all proportion to the mouse that squeaked defiance.

"We have caught, it must be confessed, very few genuine spies or traitors," notes Yale History Professor David Brion Davis. "One must conclude that our security programs since the Smith Act [of 1940] have had less impact on foreign intelligence agencies than on domestic political life."

The U.S. had practically no security organization for most of the 19th century. Until 1893 the Justice Department relied on private detectives for its investigations; before World War I, the U.S. had only two Army intelligence officers and no professional counterespionage agency. But the nation emerged from the war with an embryonic surveillance apparatus as well as new espionage and sedition acts. Under these laws, 3,000,000 loyalty investigations were conducted by the American Protective League, an organization of 200,000 civilian vigilantes, which the Justice Department officially sanctioned; 6,000 enemy aliens were interned and 2,500 indictments were handed down, but not a single person was convicted of spying or treason.

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In 1919 Justice Oliver Wendell Holmes asserted that repressive measures were justified only when a "clear and present danger" existed. By such a definition, Franklin Roosevelt clearly had good reason to authorize the use of wiretaps in 1940 in matters involving "the defense of the nation." But his decision in the early days of World War II to intern 110,000 people in the U.S. only on the ground that they were of Japanese origin was obviously unjustified.

After the war, as the nation responded to the new threat of Communism, Attorney General Tom Clark persuaded Harry Truman to extend wiretapping to cases "vitally affecting the domestic security." This practice continued without serious limitation until 1967, when a Supreme Court decision limited the use of wiretapping without court warrants. The following year, Congress attempted to define the limits by requiring warrants in all cases that did not involve the national security. However, Attorney General John Mitchell went right on tapping the phones of suspected domestic subversives on his own authority in the name of national security--a practice that was not halted until the Supreme Court ruled unanimously last year that warrants were required for wiretaps in all domestic cases.

The number of legal federal wiretaps has widely fluctuated during the postwar era. In 1945 there were 519 wiretaps; in 1960, at the end of the Eisenhower Administration, there were 115. By 1964 the number had risen to 260, including a wiretap on the telephone of Martin Luther King, which Robert Kennedy had authorized because the FBI suspected that some of King's aides had Communist ties. Under Attorney General Ramsey Clark, the number of taps dropped to a low of 82 in 1968, and they were largely confined to foreign diplomats and their agents.

Last week Senate Republican Leader Hugh Scott, acting as a spokesman for the White House, sought to show that the present Administration has tapped fewer telephones than its predecessors. The number of national-security wiretaps during Nixon's first term amounted to 434, Scott declared, or about half the number (842) authorized during the Kennedy-Johnson Administration of 1961-64. The figures are misleading, however, since security wiretaps authorized by the Attorney General last year (108) were reported separately from those that were approved by federal judges at the Justice Department's request (206). Thus last year's total of 314 legal wiretaps was somewhat above average for the postwar period.

To a large extent, the hydra-like growth of the internal-security apparatus in the U.S. was a result of the wide latitude given the Central Intelligence Agency, the National Security Agency and other organizations during the height of the cold war. Much has been written about the "secret governments," but less has been said about the easy transfer of espionage techniques from the cold war abroad to the home front. Overseas operations--including even the disruption of lawful governments and a wide repertory of other "dirty tricks"--were perceived as necessary in the worldwide contest posed by aggressive Communism. When the same techniques were directed toward the activities of U.S. citizens at home who were suspected of subversion, the principle became obscure; the criterion, in the absence of any other, remained national security.

In an age of global detente, it is proper to ask whether the prevailing security operations are justified, and beyond that, the related question of whether the affairs of Government need be so elaborately shrouded in secrecy. In Justice Holmes' phrase, does a clear and present danger still exist? The answer is not easy to come by --partly because of the very secrecy that isolates the citizen from his Government.

Veteran journalists in Washington can recall a time when John Foster Dulles could be casually talked into releasing the Yalta papers for the public good; or when John Kennedy, just back from the Vienna summit, would regale friends with stories of what it was like to sit across from the table-pounding Nikita Khrushchev; or when Lyndon Johnson, with his notebook of secret papers on the Six-Day War, would read from it of an evening to visiting Governors or favored millionaires. None of it seemed to do any harm, and some of the knowledge may have helped.

To many observers of American Government, the practice of secrecy is as serious a threat to a free society as wiretapping. "Complacency about this problem," declares Vanderbilt University Professor Harry Howe Ransom, "can destroy the nation." In view of Daniel Ellsberg, who should know, people who have access to Government secrets tend to develop an "arrogance and contempt" for people who are not similarly plugged in. It is obvious that this criticism is not limited to the Nixon Administration; one has only to recall the way Lyndon Johnson used to chuckle over the FBI dossiers of friends, foes and the famous alike.

Not withstanding the bureaucratic instinct to stamp a document "secret" or at least "restricted" no one would deny that a government has the right to protect the confideniality of certain information. But what? The news of impending military activity in wartime is an obvious example; the technical details of weaponry and other scientific information are another. The technology of espionage itself requires protection: the codes, the methods and the identity of agents.

Some would argue that the details of policies and even of important personalities may also be privileged information, thus accounting for the Nixon Administration's preoccupation with leakage and its recruiting of "plumbers."

But was the national security really damaged by the disclosure in 1971 that Richard Nixon disliked Indira Gandhi, and that his Government had decided to "tilt" in the direction of Pakistan in the Indo-Pakistani war of that year?

His bias was pretty obvious to the Indians already. Was it really improper to report the first U.S. bombing of Communist positions in Cambodia in 1969, as some Administration sources have alleged? They argue that the disclosure bruised the President's credibility (as well as that of the Cambodian ruler of that period, Prince Sihanouk, who had tacitly approved the bombing). But the suspicion arises that the Administration was mainly concerned about reawakening the outrage of its war critics at home.

In an age in which virtually everything is perishable, even state secrets spoil quickly. Today's diplomatic maneuver becomes the substance of next year's memoirs; the latest weapon is soon duplicated (or stolen) by the enemy, or becomes obsolete. It is evident that a government has the right to require security clearances of some of its employees; it may even have the right, as some argue, to run checks on a few of its former employees for the rest of their lives, a sort of "distrust without prejudice" applying to individuals who had access to information of grave national concern. But rare is the man who is burdened with secrets of such value and duration that the nation can reasonably expect him to carry them to the grave.

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Perhaps the most perplexing question for many Americans is whether the Constitution is still capable of guaranteeing both the security of the state and the liberty of the individual. Yale Law School Professor Alexander Bickel believes that it is. "It is flexible enough to answer particular security needs," he says. But he draws a distinction between illegal activities and certain covert security activities that may be acceptable under the Constitution--such as legal wiretapping. "The President cannot decide for himself what is in the interest of national security," Bickel says. "National security does not exist outside the rule of law." In the Ellsberg case, for instance, the Administration could have proposed legislation--cumbersome as the process might have been--that might have permitted it access to Ellsberg's psychiatrist's files. Instead, it called in the goons.

"And that," says Bickel, "is intolerable." The next step, in the name of national security: the internment of Ellsberg, perhaps, and then of his relatives and his friends and his business associates. "If you start down that road," adds Bickel, "there is no end to it."

At the end of the 1971 trial of three University of Michigan students whose arrest had been partially based on wiretap information, Federal Judge Damon Keith observed that much of the Government's legal argument seemed to be based on the concept that "a dissident domestic organization is akin to an unfriendly foreign power and must be dealt with in the same fashion." On the contrary, said Keith, even the attempts of domestic organizations to attack and subvert the existing structure of Government become criminal only when they are carried out "through unlawful means, such as the invasion of the rights of others by use of force or violence."

What is unconscionable about Watergate and the other recent cases is not that the Government used wiretaps or other snooping devices, or sought to seize private documents that it believed to be relevant to the national security, but that it did these things with an utter disregard for the law. Where national security is involved, the principal consideration is not the tool that is used but the assurance that it will be used on a legitimate target in legitimate fashion. As Los Angeles Police Chief Edward Davis put it last week: "The catching of a felon never justifies the catcher becoming a felon himself."

A high U.S. official has declared: "The many abuses of the security system can no longer be tolerated. Fundamental to our way of life is the belief that when information which properly belongs to the public is systematically withheld by those in power, the people soon become ignorant of their own affairs, distrustful of those who manage them, and --eventually--incapable of determining their own destinies."

Indeed. The words are Richard Nixon's, written little more than a year ago.

qedWilliam E. Smith

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