Time Essay: The Limits of Security and Secrecy

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.