Intelligence and Democracy: Issues and Conflicts

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Intelligence and Democracy: Issues and Conflicts

█ TIMOTHY G. BORDEN

There have always been conflicts between individual rights and national security interests in democracies. Limits on civil liberties during wartime, including restrictions on free speech, public assembly, and mass detentions, have been the most serious threats to individual freedom. Even in peacetime, counter-terrorist measures including profiling, detention, and exclusion, along with the use of national identification cards, have raised concerns about racism, constitutional violations, and the loss of privacy. With the passage of new anti-terrorist laws after September 11, 2001, these tensions have increased. Supporters of broader governmental powers insist that they are part of the increased security measures necessary to safeguard national security. In contrast, many civil rights groups fear that the infringement upon individual rights is another step in the erosion of democratic civil society.

Wartime measures. The severest restrictions on civil liberties have occurred in times of war. In September 1862, during the American Civil War, President Abraham Lincoln (1809–1865) suspended the right of habeas corpus in order to allow federal authorities to arrest and detain suspected Confederate sympathizers without arrest warrants or speedy trials. Well aware of the drastic nature of such a step, Lincoln justified it as a necessary wartime measure. After the United States Supreme Court found Lincoln's abrogation of habeas corpus an unconstitutional intrusion on Congressional authority, Congress itself ratified the measure by passing the Habeas Corpus Act in September 1863. Through 1864, about 14,000 people were arrested under the act; about one in seven were detained at length in federal prisons, most on allegations of offering aid to the Confederacy but others on corruption and fraud charges.

Generations of historians have debated whether the suspension of a basic constitutional right such as habeas corpus was indeed justified, even though Article 1, Section 9, of the Constitution allowed habeas corpus to be suspended "in cases of rebellion or invasion" in the name of public safety. The controversy continued through the Reconstruction Era (1866–1876) and the passage of the Ku Klux Klan Act of 1871, which reiterated the use of federal military intervention and suspension of habeas corpus to force state officials to secure voting rights, jury service, and equal protection under the law for all citizens regardless of race. When Reconstruction ended in 1876, the law quickly fell into disuse.

Another major conflict between individual rights and national security and intelligence interests occurred during World War I. Although President Woodrow Wilson (1856–1924) had campaigned in 1916 on a platform of keeping the United States out of the conflict that raged in Europe, public sentiment against the Central Powers, led by Germany and Austria-Hungary, grew after sensational reports surfaced of German atrocities against civilians and a plot to inveigle Mexico to join the war against the United States. Wilson responded by instituting a peacetime military draft in July 1917, and persuading Congress to pass the Espionage Act that same year. Amended by the Sedition Act of 1918, the Espionage and Sedition Acts broadened the arrest powers granted to federal agents in apprehending and detaining individuals suspected of treason or antiwar activity. About 1,500 people were arrested under the acts for refusing to comply with the draft, publicly criticizing American foreign policy, and voicing opposition to America's involvement in the war. The Industrial Workers of the World union and Socialist Party came under particular scrutiny, given their antiwar platforms; the Socialist Party even had its newspapers banned from the U.S. mail because of their antiwar editorials and reports. Socialist Party leader Eugene V. Debs (1855–1926) was also convicted and sentenced to a ten-year prison term under the Espionage Act for an antiwar speech he gave in Canton, Ohio, in June 1918. Debs was later pardoned by President Warren G. Harding (1872–1936) in December 1921.

After the conclusion of World War I in November 1918, the federal government continued to use the Espionage and Sedition Acts as the basis for mass arrests and intelligence gathering. The Russian Revolution of 1917 and the brief takeover of the Hungarian government in 1919 by communists, as well as the presence of an estimated 40,000 Communist Party members in the United States, fueled concerns by authorities over the potential threat of communist-inspired unrest. The fears increased after anarchist groups targeted several government and business leaders with bombs in April and May of 1919, a terrorist wave that culminated in a series of bombings in eight American cities on June 2, 1919. Under the orders of Attorney General A. Mitchell Palmer, federal agents began rounding up suspected communists and anarchists in November 1919. The Palmer Raids, as they became known, lasted until March 1920, and resulted in the arrest of 6,000 suspects. Palmer then announced that he had uncovered an anarchist-organized plot to stage a wave of violence on May Day, 1920. The day passed without incident and America's first "Red Scare" faded away, only to reappear later under McCarthyism.

The largest detainment of American citizens in the name of national security occurred with the internment of 110,000 Japanese-Americans during World War II. In the two months after the Japanese attack on Pearl Harbor on December 7, 1941, the U.S. Department of Justice ordered the detention of about 2,200 Japanese; 1,400 German; and 269 Italian nationals. After considering a large-scale roundup of all alien residents from the Axis Powers, the government decided to place Italian nationals under travel restrictions and prohibited them from using short-wave radios and owning guns. The restrictions on resident aliens from Italy were abandoned by the end of 1942. Fewer limits were placed on German resident aliens, although 254 of them were banned from specific military areas for security reasons.

In contrast, the 47,000 Issei living in the United States, Japanese-born residents who were barred under federal law from gaining American citizenship, and 80,000 of their American-born family members, called Nissei, were subjected to internment under Executive Order 9066, signed by President Franklin D. Roosevelt (1882–1945) in February 1942. The Roosevelt administration cited national security and sabotage risks for the decision, but exempted almost all of the ethnic Japanese living in Hawaii, whose freedom was vital to the island's economic survival. The mass detention was upheld by a U.S. Supreme Court ruling and was not lifted until December 1944. In 1988, Congressman Norman Y. Mineta, a former detainee, sponsored the Civil Liberties Act, which granted a payment of $20,000 to each detainee. Most contemporary scholars agree that the Japanese internment camps were not justified by intelligence or security demands, but were motivated by wartime hysteria, racism, and political lobbying by California farmers, who resented the success that some Japanese immigrants had as growers and gardeners in the region.

Peacetime measures: The FBI and CIA. Although the United States and Soviet Union were nominally allies during World War II, a resumption of anticommunist sentiment characterized the American political scene after the war. The Taft-Hartley Act of 1947 banned members of the Communist Party from holding leadership positions in American labor unions, and the continuing investigations by the U.S. House Un-American Activities Committee (HUAC) regularly made headlines. The 1950 McCarran Act required all Communist Party members to register with the U.S. Attorney General and allowed the U.S. Justice Department to arrest and detain resident aliens who were subject to deportation hearings. The Federal Bureau of Investigation (FBI) participated in the growing Red Scare by conducting another roundup of suspected Communist agents, using the powers it retained under the 1940 Smith Act, which permitted the arrest of any individual inciting the overthrow of the government.

The leading anticommunist crusader was Wisconsin Senator Joseph McCarthy (1908–1957), who accused the U.S. State Department of being infiltrated with communist spies in a speech before a West Virginia audience in February 1950. McCarthy's charges stunned the nation, even though it was later proved that he had fabricated them. Under McCarthyism, as the period came to be known, hundreds of government workers were fired as a result of so-called loyalty investigations. In the Senate's Army-McCarthy Hearings in 1954, it was revealed that McCarthy had launched an investigation of the Army after it had rejected one of his aides for a commissioned post, and the Senator's public support diminished. Later censured by the Senate, McCarthy died in 1957 as a symbol of the worst excesses of America's anticommunist hysteria.

Despite the controversies engendered by the role of the FBI and Central Intelligence Agency (CIA) during the McCarthy era, it was not until the 1960s that the agencies came under intense scrutiny for their practices. The FBI was widely praised for its investigation of crimes against civil-rights activists during the decade, yet its infiltration of students' and antiwar groups, particularly those opposed to America's involvement in the Vietnam War, raised suspicions that it routinely violated the constitutional rights of American citizens. The CIA, officially established in 1947, also came under criticism for its involvement in overthrowing foreign governments that were perceived as being hostile to the United States, especially if they were aligned with the Soviet Union. The failed Bay of Pigs invasion of Cuba in 1961 with a group of CIA-trained Cuban exiles was a major embarrassment to the Kennedy administration and was later cited as an example of the disregard of American intelligence agencies for international law. Reforms in the 1970s put stricter limits on the activities of both the FBI and CIA, including narrower prerogatives for collecting intelligence, conducting operations, and initiating covert activities.

Intelligence and democracy conflicts around the world.

Democratic countries other than the United States have also faced the conflict between maintaining the individual rights of their citizens and conducting vital intelligence and security operations. While the United States government moved to reassure the public that its civil liberties would be safeguarded, however, some nations have responded somewhat differently in the face of imminent terrorist threats.

The threat of terrorist attacks by its neighbors had been a constant presence in Israeli life, particularly since the first bombings by the Palestine Liberation Organization (PLO) in 1965. The PLO's terrorist campaign against Israel became acute during its Intifada (or "shaking off") of Israeli authority in the Occupied Territories in 1987 and again in 2001. Ranking the threat of terrorism as one of the state's most pressing concerns, Israeli law allowed the indefinite detention of suspected terrorists without trial and forbid public shows of support for terrorist groups. Although the measures were condemned by some in the international community as selectively applied against non-Israelis, the country's leaders consistently defended the practices as a necessity for survival in the face of imminent and ongoing terrorist threats.

The United Kingdom has also faced international criticism for its actions against the Irish Republican Army's violence in protest of the British presence in Northern Ireland. Under the Prevention of Terrorism Act of 1974, British authorities could arrest suspected terrorists without a warrant and detain them for a week without bringing charges against them. While being interned, detainees were subjected to a range of harsh practices that included "hooding"—being isolated and forced to wear a hood over their heads—noise bombardment, and sleep and food deprivation.

Post-September 11 developments. After the terrorist attacks of September 11, 2001, on the United States, the government moved to enact stricter counter-terrorist measures that once again raised concerns about the sanctity of individual civil liberties. On October 26, 2001, President George W. Bush signed the Patriot Act into law, giving the FBI and CIA broader investigatory powers and allowing them to share confidential information about suspected terrorists with one another. Under the act, both agencies could conduct residential searches without a warrant and without the presence of the suspect and could seize personal records on the spot. The provisions were not limited to investigating suspected terrorists, but were allowed in any criminal investigation. The Patriot Act also granted the FBI and CIA greater latitude in using computer tracking devices such as the Carnivore (DCS1000) to gain access to Internet and phone records.

The United Kingdom also passed a new counterterrorist bill in December 2001, the Anti-Terrorism, Crime, and Security Act. The act allowed authorities to detain suspected terrorists for up to six months before reviewing their cases and for additional six-month periods after that. As in the United States, watchdogs in the United Kingdom criticized the new law for potentially infringing upon a basic civil liberty, in this case the right to avoid unlawful detention and gain access to a speedy trial.

The controversy over post-September 11, 2001, measures also extended to the screening of passengers on commercial airlines. The Computer Assisted Passenger Prescreening System (CAPPS), which had been selectively used before September 11, now came into wider usage in American airports. CAPPS looked at numerous factors to determine whether a passenger represented an elevated risk of being a terrorist, including how the plane ticket was bought, whether it was a round-trip or one-way ticket, and where the flight originated, and a 2001 U.S. Department of Justice review ruled that it was not discriminatory. Despite this reassurance, some Arab rights groups maintained that CAPPS unfairly singled out individuals of Arab descent based on racial profiling.