The Worth of War (23 page)

War gives states reason to mitigate their brutality and even—at least—go through the motions of soliciting citizens' views on matters of leadership and policy. I would, however, be remiss if I did not address the issue of war and state power—an issue that has begun to loom large for Americans.

War, as the late Charles Tilly often reminded us, expands state power.
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And, for better or worse, power justified by and created for use in war is, more often than not, converted into peacetime uses. Political economist Robert Higgs has shown that in the United States, after each of the world wars, many federal agencies built to support the war effort found new civilian tasks, survived postwar bureaucratic demobilization, and expanded the government's capacity to direct the nation's civilian economy and society.
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Thus, for example, after the end of the First World War, the War Finance Corporation, which had been created to help essential war industries secure adequate financing, lived on until 1925. That year, the agency was officially liquidated but was reborn in 1934 under the name Reconstruction Finance Corporation. Similarly, the Railroad Administration, which operated the nation's railroads during the war, was officially closed in 1920. Many of its powers, however, were then transferred to the Interstate Commerce Commission.

The same pattern was manifest after the Second World War. While many wartime agencies were dismantled, others were quietly renamed
or saw their functions and powers transferred to other agencies. Thus, when the Employment Service and the Reemployment and Retraining Administration were closed, their offices and functions were taken over by the Labor Department. When the Foreign Economic Administration was closed, its jurisdiction was assigned to the State Department. The Smaller War Plants Corporation was nominally closed, but was actually absorbed by the Commerce Department. The list goes on. An administrative state built by war redeploys some of its now-excess administrative capacity to regulate the civilian economy.

Some might welcome, or at least be untroubled, by such a postwar expansion of the government's mundane administrative capabilities. However, in a rather perverse conversion of swords into plowshares, coercive capabilities built for war may also be turned to peacetime uses. Indeed, following many periods of significant American military combat, legislation and institutional mechanisms created to further the war effort were not liquidated but were, instead, redirected at the government's domestic foes. Thus, even after the First World War ended, a number of radicals were prosecuted under the Espionage Act, which had been drafted to prevent opposition to the wartime draft. Similarly, the Bureau of Investigation, predecessor to the Federal Bureau of Investigation, was assigned the wartime responsibility of assisting the Committee on Public Information in building a favorable climate of opinion for the war effort by infiltrating and disrupting antiwar and pacifist groups such as the Socialist Party and the Industrial Workers of the World (“Wobblies”). With the end of the war, the Bureau of Investigation was not shut down but was, instead, assigned to investigate Communist influences in the United States. Bureau of Investigation agents led the 1919 and 1920 Palmer Raids aimed at rounding up suspected radicals. Under the authority of the still-in-force World War I Sedition Act, the bureau infiltrated suspect organizations with undercover informants and employed warrantless wiretaps to secure information.

In a similar vein, the 1940 Smith Act, enacted on the day the French capitulated to Nazi Germany, was aimed at compelling noncitizens
to register with the authorities and established penalties for those advocating or seeking the overthrow of the US government. During the war, a number of Nazi sympathizers were prosecuted under the act. For example, in 1942 the government prosecuted George W. Christians, founder of an organization calling itself the “Crusader White Shirts,” for attempting to spread pro-German literature to American soldiers. In 1944, thirty-three individuals accused of expressing pro-Nazi views were prosecuted under the act. When the war ended, the Smith Act was certainly not repealed. Instead, during the 1940s and 1950s the act was used to prosecute dozens of individuals accused of belonging to the Communist party. In 1949, ten defendants were sentenced to five years in prison and in 1956, 131 alleged communists were indicted and ninety-eight convicted and sentenced to lengthy terms in federal prison.

This discussion brings us to the main matter at hand—America's burgeoning regime of domestic secrecy and surveillance. Beginning with the First World War, the United States has undertaken the construction of massive programs of secrecy and surveillance justified by wartime and national security concerns. These programs, however, have survived every war, conflict, and national security emergency and now seem focused on the general American public posing, as we shall see, serious threats to popular freedom. It seems that beating swords into plowshares can produce very dangerous implements.

Government surveillance of communications, travel, and personal conduct has become a fact of American life. Revelations of extensive electronic surveillance by the National Security Agency (NSA) in the summer of 2013 caused considerable consternation in Congress and in the news media. Such surveillance, however, is not an entirely new phenomenon in the United States. As early as 1920, the Cipher Bureau, remembered today as the “Black Chamber,” an office jointly funded by the army and the State Department, and arising from a World War I program, secretly inspected telegrams in the Western Union system. After the war, the Black Chamber, headed by Herbert O. Yardley, was disguised as a commercial code company headquartered in a nondescript
New York City office building.
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Yardley and his superior, General Marlborough Churchill, head of the army's Intelligence Division, had secured an agreement from Newcomb Carlton, the president of the Western Union Telegraph Corporation, allowing the Black Chamber to monitor the nation's telegraph traffic.
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Secrecy of electronic communications had been guaranteed by the 1912 Radio Communication Act. The act was superseded by wartime legislation and circumvented in the war's aftermath. Between 1920 and 1929, when the Black Chamber was closed by Secretary of State Henry Stimson, Yardley and his staff sifted through millions of telegrams looking for evidence of foreign espionage activities. Yardley later claimed to have ferreted out numerous plots and conspiracies, but there is little evidence from his writings that random snooping through the telegrams of ordinary Americans did much to enhance the nation's security.

Today, Yardley's Black Chamber seems a quaint relic of a long-forgotten past, as Americans find themselves subject to more or less constant government surveillance via electronic interception of telephone calls, examination of email communications and social media postings—to say nothing of ubiquitous security cameras now tied to crowd-scanning software, traffic monitoring, airport searches, and so forth. And, while Yardley and his staffers sifted through transcripts of telegrams by hand, peering at their contents, today the work is done by computers and analytic methods that allow the government to process and analyze enormous quantities of data looking for possible indications of illicit activity among seemingly disparate bits of information.
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Some in Congress and in the media are concerned with citizens' privacy, as well as their own, while police and intelligence agencies aver that their surveillance activities are of critical importance in the nation's ongoing struggle against crime and, of course, terrorism. Testifying before Congress in 2013, NSA officials, unwittingly echoing the assertions of their forebear, Yardley, declared that the agency's eavesdropping program had averted dozens of possible terrorist attacks. Needless to say, since the matters were highly classified, no actual
proof of these assertions was proffered, and many members of Congress, including Senate Intelligence Committee Chairman Patrick Leahy (D-VT) expressed doubts about the agency's claims. Later the NSA conceded that its domestic surveillance programs had possibly thwarted only one terrorist plot, rather than the dozens initially claimed.
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Many Americans seem satisfied to believe that they are the beneficiaries rather than the potential victims of government surveillance. Those who have nothing to hide, goes the saying, have nothing to fear.
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This view is, of course, rather naive. As law professor Daniel Solove shows, surveillance can entrap even the most innocent individuals in a web of suspicions and allegations from which they may find it extremely difficult to extricate themselves.
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Be that as it may, to couch the issue of government surveillance purely in terms of the conflict between security and privacy interests is to miss the larger question of political power in which this debate is embedded. Hobbes famously observed that the end or purpose of knowledge is power.
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That is, both individuals and rulers seek knowledge about one another in order to exercise or resist the exercise of power. This Hobbesian observation becomes especially significant if we consider the role of knowledge in the context of popular government.

Popular government requires that citizens possess a good deal of knowledge about the actions of the state. Knowledge is necessary to permit citizens to evaluate rulers' claims and to hold rulers accountable for their conduct. In essence, citizens must undertake their own surveillance of the government and its officials as a precondition for exerting influence over them. This idea is captured in the ancient Athenian practice of the audit (
euthyna
) in which all civil and military officials, including even priests and priestesses, were periodically required to undergo detailed public examinations of their actions.
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The results might then be debated in the popular assembly (
ecclesia
) which was, of course, open to all male citizens who had performed the requisite period of military service. In this way, surveillance through the audit directly empowered the citizenry.

At the same time, citizens' ability to exercise power also requires
that they have considerable protection from the state's scrutiny. In point of fact, privacy may be a prerequisite for effective popular political action. To begin with, those intent on expressing anything but support for the groups in power need privacy to plan, organize, and mobilize, lest their plans be anticipated and disrupted. Terrorists are hardly the only ones who need privacy. Even in the mundane realm of partisan politics, the efforts of the party-out-of-power can certainly be compromised if the government becomes privy to its plans. Recall that the Nixon administration thought its surveillance activities, including the work of the infamous “plumbers' squad,” could help it to undermine Democratic campaign plans in 1972.

Known political dissidents, moreover, always face some risk of official reprisal. Accordingly, at least some citizens may refrain from acting upon their political beliefs for fear that they will draw attention to themselves and become targets for tax audits and other government efforts to find evidence of criminality, cupidity, or other misconduct conduct that can be used against them. This is a realistic concern given a recent past in which agents of the FBI, seeking to compile damaging information on civil rights leader Dr. Martin Luther King Jr., secretly videotaped King's extramarital trysts and forwarded the tapes to his wife. More recently, in an echo of Richard Nixon's demand that the Internal Revenue Service investigate individuals on his “enemies list,” so-called Tea Party groups and other conservative organizations found themselves the recipients of special scrutiny from the IRS. Privacy for political activities is, like the secret ballot, an important element of political freedom.

Indeed, this notion of the relationship between privacy and freedom of political expression is at the heart of the Constitution's Fourth Amendment, prohibiting unreasonable searches. While many currently see the Fourth Amendment as related to evidence in mundane criminal cases, the framers were well aware of the fact that government intrusions into private homes were often aimed at identifying papers, manuscripts, and books that might point to nascent efforts to foment political discontent.
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Individuals whose private papers evinced dissenting
political opinions might then be prosecuted for the crime of seditious libel (i.e., criticism of Crown officials) to forestall any public expressions of their views. As Justice Brennan wrote for a unanimous court in the 1961 case of
Marcus v. Search Warrant
, “The Bill of Rights was fashioned against the background of knowledge that unrestricted power of search and seizure could also be an instrument for stifling liberty of expression.”
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In her dissent in a recent case, Justice Ginsburg called attention to this original purpose and meaning of the Fourth Amendment as an instrument for protecting liberty of political expression.
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