Congress as an arm of the surveillance state
Weekly sidebar: I had never thought about this!
I recently ran across a quite brilliant piece by Jennifer Luff entitled “Covert and Overt Operations: Interwar Political Policing in the United States and the United Kingdom,” which ran in the American Historical Review in 2017. I went looking for it because the period between WWI and WWII had caused me a serious case of writer’s block the last time I tried writing a book: I had a narrative going that the United States basically learned its surveillance practices from the UK and Europe as a facet of their handing off their colonial empires to us. But the U.S. went a little loopy after WWI, withdrew from European affairs, got pissy about the Brits spying on U.S. soil, never joined the League of Nations, replaced Woodrow Wilson with Warren G. Harding, restored some civil liberties that Wilson had infringed upon with the Espionage Act and the Sedition Act…You know, all that “America First” stuff. However, we also had Prohibition, which seems significant and problematic from a surveillance standpoint but in a manner quite uniquely American. So I kind of stalled out in the 1920s. Did they represent a continuity, a global “time out”? I just couldn’t figure out how to write that decade.
What I found in Jennifer Luff’s piece, though, was a completely different insight, in her comparative analysis of how the U.S. and the UK suppressed Communism. She’s addressing primarily the misconception that the United States was somehow more severe than the UK, the UK more “tolerant” or “moderate” in its approach to “the Red Scare” (i.e., the threat of domestic Bolshevism). She says that the UK was just as severe in its own way, but because Her Majesty’s Government has generally operated with far more secrecy than the U.S. Government, we honestly didn’t know what they were doing in the 1920s or 1930s until much more recently, with the belated opening of government archives, particularly those of MI5.
In the United States, by contrast, political repression was so much more out in the open that, by 1920, the newly-created American Civil Liberties Union (ACLU) was demanding congressional investigations into the Bureau of Investigation (BI, not yet the FBI), which they alleged had created a “nation-wide spy system.” Luff says that, “[b]y 1924, civil libertarians had succeeded in disabling both the statutory authority and the secret surveillance apparatus of the nation’s political police. In the following years, Hoover’s FBI turned its attention to chasing gangsters and ‘white slavery’ sex traffickers, and left the policing of radicals to local authorities.”
But here’s the little nugget Luff drops along the way that is causing me to totally re-think the notion of a surveillance state and how to measure and assess its nature and reach into citizens’ private lives and civil liberties:
“By the late 1930s…both executive and delegated political policing of citizens had been significantly curtailed, while congressional policing had begun to escalate. Covert surveillance had shriveled, while overt, democratic policing grew. The trajectory of American political policing was quite different from what theories of the surveillance state would predict…In Liberty and Coercion, Gary Gerstle describes antistatism as a dynamic that forced American officials to continually improvise new structures of governance. A powerful federal police force was, to this point, possible only during wartime, despite the wishes of people like J. Edgar Hoover: ‘His FBI had acquired the capacity—but not the authority—to root radicals out of American life.’ To Hoover’s dismay, by the late 1930s the U.S. had scarcely any capacity for policing radicals, in stark contrast to European states. Resistance to bureaucracy nevertheless enabled a form of ad hoc and popular political policing via the congressional committee.”
But wait, there’s more:
“[C]ivil libertarians denounced bureaucratic and executive authority, bracketing the uncomfortable fact that popular politics produced the legislative and political legitimation for much political repression. Analyzing the workings of American interwar surveillance and policing shows its essentially populist nature, mixing up antiradicalism with antistatism: trade unionists, intellectuals, and federal officials all came under scrutiny.”
Wowza on those italicized portions (those are my italics, not hers).
The thing is, the kind of comparative research she does in this piece is something I attempted myself. Back in 2013, when I was at the State Department, a senior official at the Bureau of Democracy, Human Rights and Labor asked me to write him a comparison of surveillance in the United States to that in the UK, France, Germany, India, Brazil and South Africa (basically, countries that were being critical of us in light of the Snowden disclosures about the NSA). He wanted a handy chart, which I most certainly could not produce—as you can see, comparative analysis is a complex enough topic that I’m pretty sure Jennifer Luff made her Ph.D. thesis out of it—but the one conclusion I could draw is that the United States has, bar none, the best legislative oversight of intelligence activities in the world. There is nothing anywhere in the UK or Europe that remotely compares to the House Permanent Select Committee on Intelligence (HPSCI) and the Senate Select Committee on Intelligence (SSCI), whose names are pronounced throughout the U.S. intelligence community, with considerable reverence I might add, as “Hipsy-Sissy.” No one in any other legislature has the ability to demand classified briefings, to conduct oversight, and most importantly, to control authorization and spending, like HPSCI/SSCI.
So, honest to God, I had always thought of Congress as an important source of oversight of surveillance, in some ways more effective than the judiciary, and certainly not a source of surveillance and repression itself. We Americans have always prided ourselves, in contrast to “secretive Europe,” as “fighting our battles in the sunshine.” But here’s Luff saying, sure, we do that, we repress people out in the open, in Congressional inquiries, in the dreaded Questions for the Record (QFRs, pronounced “queue-fers”), in testimony, in a particularly demagogic manner, and she’s saying that’s not necessarily any better than what the UK does.
Two words exemplify why she’s spot-on: Joseph McCarthy. And he was in the Senate, no less. The Senate is supposed to be the “upper chamber” of Congress, the one that curbs the worst instincts of the mob. Wasn’t that supposed to be what George Washington explained to Thomas Jefferson to sell him on the merits of a bicameral legislature, as Jefferson poured his coffee from his cup into the saucer before drinking it? “We pour our legislation into the senatorial saucer to cool it”? Actually, this conversation most likely never happened (also, who drinks coffee out of a saucer?); nonetheless, Senate hearings have often been the site of public character assassinations on the basis of the witness’ supposed “radical beliefs” and associations, despite the pride the Senate takes in itself as “a place of sober second thought” (see https://www.senate.gov/about/origins-foundations/idea-of-the-senate/1897Hoar.htm).
Luff also makes some valid points about not being overly deterministic, something I am trying my best to watch out for, since that seems to be the knock against Jared Diamond’s Guns, Germs and Steel, on which I am heavily relying. Modern human societies don’t just turn out one way. Specifically, Luff says that too many of our scholars and social theorists are generalizing about “surveillance states,” suggesting that all liberal states trend inexorably towards a centralization of state power. The United States is definitely trending towards something these days, but a stronger and more robust federal executive branch? I don’t think so.
Moreover, the problem she has with modern civil liberties discourse is
“its resolute focus on autocratic executive power and its willfully averted gaze from the legislative enactment of repressive measures. A civil-liberties bromide repeated in the titles of numerous ‘sunshine’ laws and policies promises that ‘sunlight is said to be the best of disinfectants’: exposure and publicity are the means by which an informed public can fight political repression. This populist way of thinking continually brackets the moments when an informed democratic public elects to empower the state to police politics. Civil libertarians in our era are not only facing a problem of secrecy. We also have a C-SPAN problem, named after the American television channel that broadcasts congressional proceedings in all their numbing inanity: repression enacted in plain sight. Focusing on the bureaucratic imperative of political repression can blur the political will that sustains it.”
From her footnotes, I can see she’s reading all the same scholars that I am (partial bibliography at the end), and that she’s trying the same kind of comparative analysis that I tried. And yet her work yielded an insight I never thought of: repression enacted in plain sight.
In the most recent section of my book/article (posted here this past Sunday), I take what I thought was a complete inventory of the pre-1898 U.S. surveillance state. I thought I was being pretty thorough, even including the Pinkerton Detective Agency, with all that stuff they did with the labor unions in the 1880s. But I left out the U.S. Congress.
If I agree with Luff, though…I mean, Congress is, in theory, the branch of the U.S. Government that we think of as directly reflecting the will of the people (yeah, sure, there’s the gerrymandering problem, where it appears members of Congress are choosing their voters instead of vice versa, but that’s just on the House side; it doesn’t affect the Senate). So if I think Congress is part of the surveillance problem, if I think that the people of the United States are actively facilitating their own surveillance and repression, does that make me…anti-democratic? Do I still basically agree that “democracy is the worst form of government, except for everything else”? Or is it perhaps more accurate to state that I think democracy reaches a point of diminishing returns? If so, what is that point? Are we past it?
Does anyone know Jennifer Luff? She’s teaching political science at Johns Hopkins. I think I need to look her up.
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*Shared Luff/Ballard Bibliography
Michel Foucault, Discipline and Punish: The Birth of the Prison (New York, 1979) (a classic)
Alfred McCoy, Policing America’s Empire: The United States, the Philippines, and the Rise of the Surveillance State (Madison, Wis., 2009)(here, Luff points out the basic problem with this book, which is that it’s not J. Edgar Hoover-y enough)
C.A. Bayly, Empire and Information: Intelligence Gathering and Social Communication in India, 1780-1870 (Cambridge, 1996)
Martin Thomas, Empires of Intelligence: Security Services and Colonial Disorder After 1914 (Berkeley, CA, 2008)
Christopher Andrew, Secret Service: The Making of the British Intelligence Community (London, 1985)
Christopher Andrew, Defense of the Realm: The Authorized History of MI5 (London, 2009)
Several books on the FBI and J. Edgar Hoover by Athan Theoharis
Church Committee Report: U.S. Senate, Select Committee to Study Governmental Operations with Respect to Intelligence Activities (Washington, DC, 1976) (the Church and Pike Committees were the predecessor to today’s mighty “Hipsy-Sissy”).
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…No, seriously, have you ever seen someone drink coffee out of a saucer? Who does that? And weren’t the Founding Fathers tea-drinkers?