THE BLOG
03/23/2014 11:08 am ET Updated May 23, 2014

Open Diplomacy, Wartime, and the Modern Surveillance State

References to open diplomacy and its long history have been surprisingly absent from recent public debates and discussions about security and privacy, including the NSA and the PRISM program, Edward Snowden's leaks and the Chelsea Manning Trial, the advent and ramifications of WikiLeaks, Sen. Diane Feinstein's accusations about the CIA, and debates over events in the Crimea, in Syria, and elsewhere.

According to recent Pew Research Center surveys, most Americans are skeptical that NSA changes "will increase privacy protections," worry that national security imperatives have overridden domestic protections, and lament the lack of "adequate limits on the government's data collection." Record numbers of documents are being censored and rejected for Freedom of Information Act requests. A turn to the historical dimensions of our contemporary challenges reveals not just how we arrived here but also shows some possible paths forward.

As the U.S. rose to world power from the turn of the 19th century though the early 20th century, many policy makers contended that diplomacy should be conducted in the public gaze and in the presence of representatives of all states, rather than be shrouded in secrecy and confined to those with a direct interest in its outcome. Advocates of what came to be known as "open diplomacy" also tended to be firm believers in privacy rights. At the same time that they held that individuals had a right to privacy they argued that the public should have free and unrestricted access to knowledge about government actions, abroad and at home, and should act proactively to shape their relationships with the state and surveillance. Over the course of the ensuing century the aims of open diplomacy have endured and deepened even as its practices have deteriorated alongside the development of the modern surveillance state. The exigencies of a large national security-oriented state combined with new threats, new conflicts, and amplified by new technologies have been central to this decline. It is time to return to a capacious view of open diplomacy combined with stronger protections for privacy.

The use of an array of techniques of surveillance are integral to the effective gathering of intelligence to maintain the peace and protect citizens. However, we now live in an age of byte-and-bit-ization. As Snowden and other "hacktivists" are quick to point out, this process is gradually making us all -- individuals, groups, and even states -- into units to be measured by and with information. It is this information that now constitutes our public and private selves. It represents us in most every way. Philosopher Colin Koopman aptly terms this the rise of "info politics." Such a concept seems familiar. Yet we have very little sense of how fully our digital selves are monitored by public agencies and agents, by corporate entities, or by tech-savvy individuals.

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The imperatives of security after 9/11 combined with ever-more-rapid transitions in online activities and connections between tech companies and the state, particularly in terms of the tracking and marketing of digital selves, have reshaped our contemporary information universe. The result: the sheer amount of data gathered and compiled about individuals and groups -- largely in secret -- may be worst of all. It presents enormous challenges not just in terms of privacy or analysis but also in terms of oversight and duration. Of course, egregious and illegal uses of surveillance and harassment against civil rights activists and political radicals and dissenters, such as enacted by J. Edgar Hoover's FBI from the 1920s through the 1960s and epitomized by the so-called FBI "war on Martin Luther King Jr." are not new. What is new is the ubiquity, reach, and ease of oversight today, as well as many of the techniques and the secrecy related to state as well as private information gathering activities.

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Since the 1770s Congress resolved to make the U.S.'s diplomacy more democratic. It aimed to limit central power and secrecy by informing the domestic public of political actions at home and abroad and by adopting a rights regime that prioritized personal privacy as set against state rights. Thus we see the inherent connection between an open form of diplomacy and individual liberties. The Bill of Rights' First Amendment posits a nearly unconditional freedom of speech while the Fourth Amendment privileges privacy against "unreasonable search and seizure" and makes the "home" as well as "papers and effects" of individuals and groups off limits to government and other citizens unless there are extraordinary reasons to transgress them. Indeed, as one recent commentator has noted, the Fourth Amendment is so vital and expensive that it could almost be classified as a "top secret" because of how much "useful information its test and the case law surrounding it" provide to potential enemies even as its protections have been undermined in recent years. Unfortunately, it is no longer so easy to demarcate the home, papers, effects, or even pronouncements of individuals, much less to determine how they can be vouchsafed.

Congress's efforts to make U.S. diplomacy more transparent included a push for a template treaty with which to start all international negotiations. This was to be premised on an egalitarian, unilateral, and non-entangled vision of commercial exchange embodied by the Model Treaty of 1776 (the treaty structure upon which the U.S. formed the alliance with France that helped win the Revolutionary War). Later efforts at transparency also tackled the production and dissemination of information. Congress funded the publication of a compendium of diplomatic communications, treaties, negotiations, and other documents that became known as "Foreign Relations of the U.S." (FRUS). This series, prepared and issued by the Department of State since 1861, is a compilation of selected, generally unedited documents directly from the files of the Department of State, the White House, and other agencies. It presents a historical view of American foreign policy and now comprises more than 450 individual volumes.

Oversight, too, was built into the regulatory apparatus in the form of House appropriations, the Senate Foreign Relations Committees and related sub-committees, and the professional non-partisan expertise of the superb historians of Office of the Historian at the Department of State. From this FRUS series to the Congressional Record (a compendium of everything said or submitted to the record in the Congress) there is a long and honorable tradition of transparency in American governance. Most U.S. citizens and observers are surprised to learn just how much diplomatic and political information is made public. Yet the slowness of declassification, restrictions on Freedom of Information Acts, and budget cuts have dramatically slowed down the publication of FRUS, which is but one example of the many current and historical limitations on timely and transparent information getting to the public. A possible and extreme remedy for such obfuscation has been and continues to be to reveal key details: to leak classified information.

The question of when and how diplomacy should be done openly is always most pressing in wartime. It took on heightened significance against the background of World War I, which was largely seen as the result of secret diplomacy and defense pacts as well as political machinations. When considering why and how the world went to war it seemed to many, including Woodrow Wilson, that if governments were to be democratically accountable in the domestic sphere, then it followed that they should be similarly accountable in the international sphere, where, it was believed, a thinking public might prevent such terrible conflicts. During and following World War II the concept of "national security" developed alongside a state regime premised on Cold War defense spending, diplomacy, and espionage (at home and abroad) and in most important ways this has only amplified over time. Congress made fine-grained distinctions between the broader powers of foreign surveillance and the more limited powers and jurisdiction of domestic intelligence gathering. During after both world wars, such limitations often went by the wayside. Secrecy became and remained essential to the conduct of intelligence gathering, military operations, and foreign service yet presented a major tension in so doing. What are the appropriate limits of efforts designed to protect lives, methods, and critical information? How public should these efforts be? There is now, as there was during the crises of WWI, WWII, and especially the Cold War, a strong incentive to overreach.

These are the essential connections and ruptures at stake today. In the abstract it would seem that generally open democratic politics seem to beget generally open diplomacy, and vice versa. If one falters, the other falters as well. However the history shows that such a theoretical view has not held in practice. In fact, particularly in times of conflict and crisis, the pendulum swings toward the restriction of rights, enhanced surveillance, and more secret diplomacy have been significant. The Espionage Act of 1917 and the Sedition Act of 1918 sent scores of Americans to jail -- such as socialist five-time candidate for president Eugene Debs, who spoke out against the constitutionality of the draft as detailed in my recent book Promise and Peril. These laws permitted the widespread censoring of the mail and press in wartime to prevent dissent from the American war effort. Ironically - perhaps tragically - this is the same law by which Chelsea Manning was recently tried. There have been seven such prosecutions during the Obama years. There were a scant three such efforts in the previous ninety years.

The Espionage Act originally prohibited "any attempt to interfere with military operations, to support U.S. enemies during wartime, to promote insubordination in the military, or to interfere with military recruitment." In 1919, the U.S. Supreme Court unanimously ruled in Schenck v. United States that the act did not violate the freedom of speech of those convicted under its provisions. As Geoffrey Stone has shown in his brilliant book Perilous Times: Free Speech in Wartime: From the Sedition Act of 1798 to the War on Terrorism, the constitutionality of the law, its relationship to free speech, and the meaning of the law's language have been contested in court ever since. [Note: Among those who have been charged with offenses under the Act were Victor Berger, Julius and Ethel Rosenberg, Daniel Ellsberg, Manning, and Snowden.]

Wilson presided over the constraints of free speech in wartime and heightened surveillance in 1917 and 1918. He pushed for censorship yet rejected overturning habeas corpus rights (as Lincoln had during the Civil War). At the same time as he called so vociferously for open diplomacy. So, how do we reconcile these trends and what might Wilson's wartime example illuminate for us now?

Wilson and a host of pro-war progressives such as Walter Lippmann and John Dewey, among others, believed that the first of his vaunted "Fourteen Points" (an address in January 1918 laying out the principles upon which WWI might be brought to an end) expressed the goals of open diplomacy and a corollary vision of privacy rights: "Open covenants of peace, openly arrived at, after which there shall be no private international understandings of any kind, but diplomacy shall proceed always frankly and in the public view." Such an effort, of course, as Col. Edward House, Wilson's confidant, opined, was designed to "clearly to prohibit treaties, sections of treaties or understandings that are secret, such as the [Triple Alliance], etc." The phrase "openly arrived at" need not cause difficulty, they explained. Wilson argued to the Senate, according to House, "that the phrase was not meant to exclude confidential diplomatic negotiations involving delicate matters. The intention is that nothing which occurs in the course of such confidential negotiations shall be binding unless it appears in the final covenant made public to the world."

Herein lies the rub, then, as now. There are legitimate needs for diplomacy to be conducted out of the public view, at least until accords can be reached. So, too, there are reasons to push for surveillance of threats to citizens and the state, at home and abroad. Even some curtailment of free speech may be permissible and needed in extraordinary times. But the threshold must be high for undertaking such operations. And they must be limited in duration. After all, security, secrecy, and surveillance seem to mutually reinforce each other. President Obama knows as much. In fact, he attempted to undermine this triad via Executive Order (EO) 13526. The order against excessive secrecy and classification is clear: "In no case shall information be classified... in order to: conceal violations of law, inefficiency, or administrative error; prevent embarrassment to a person, organization, or agency... or prevent or delay the release of information that does not require protection in the interest of the national security." And yet the U.S. government is not following this EO or related laws. The Wilsonian conundrum endures.

According to Chase Madar and other journalists, an internal government review by the Information Security Oversight Office (ISOO) as well as other investigations have found that, using EO standards to assess classification practices, at least 35 percent of the classified documents examined did not meet the classification criteria as of 2009.

The problem with poor oversight of government classification has been growing for decades -- at least since Nixon's administration prosecuted Daniel Ellsberg for leaking the Pentagon Papers but also dating from before Wilson -- and since 2001 it has exploded. Now, more than 4.2 million people have classification clearance. A whopping one million hold "Top Secret" clearance. But even though there are millions of low-level government employees and contractors with the authority to classify documents, most of these classification decisions are never reviewed. Today, as at the height of the Cold War, most classifiers err on the side of caution: they make documents and information secret.

Attacks on secret diplomacy and state surveillance in the name of national security in the WWI and post-war era, again during the Cold War, and through the present have all-too-often been conceptually sloppy, as G.R. Berridge has suggested in an astute essay on theories of diplomacy. Such criticism frequently fails "to distinguish among keeping secret the content of a negotiation, keeping secret knowledge that negotiations are going on," the actual need for secrets in intelligence gathering, the imperative to compile information secretly from targeted individuals and groups domestically and abroad for legitimate national security reasons, and keeping secret (for a time) "the content of the results of negotiations or directed surveillance." As Berridge and other scholars rightly note, the most cogent and successful of these attacks have been on these last elements -- on so-called secret treaties and heinous state secrets that ought to be revealed to the international community. These are the pivots on which turn today's debates over free speech whistleblowing and national security regarding WikiLeaks, Manning, and Snowden.

As government makes increasing requests based on "national security" concerns for data from the very businesses that collect so much about each of us, transparency becomes an ever-more-vital concern. The historical pattern here is clear. There seems to be a direct connection between the diminishment of openness in diplomacy and intelligence gathering with the deterioration of privacy rights exemplified by the various and multifaceted transgressions of Facebook, Google, and numerous other firms.

The fact that technological development has outstripped existing laws and that there is a lack of oversight regarding privacy rights are central problems and present enormous challenges. But it is the concept and practice of "wartime" itself that may be the greatest impediment to meaningful change today. As legal historian Mary Dudziak has shown in her insightful book entitled War Time, the intellectual history of the concept of "wartime" delimits it as exceptional and finite. Wartime, however, is a type of exception that has legal and political ramifications that often become normalized; it represents a period in which the rights that the State-particularly the commander-in-chief-are inherently amplified; and it no longer seems to have a clear end point.

The amorphous nature of wars since at least the dawn of the Cold War in the mid-1940s has meant that the U.S. has more or less been at war for generations, without a formal declaration of war since December 8, 1941. This, in turn, has precipitated the ever-burgeoning war-industrial-intelligence complex, a system that has only grown more complex and invasive given new technologies and the pressures of fighting an ill-defined yet all-consuming global War on Terror. "When we understand that 'wartime' is an argument," Dudziak asserts, "rather than an inevitable feature of our world, then we can see that it need not cause us to suspend our principles."

With no specific "end" to conflict in sight, even as U.S., British, and remaining NATO forces draw down from Afghanistan, it is all the more important to take stock of -- and push back against -- the enhanced surveillance developments and diminished open diplomacy and privacy rights generated in the service of a wartime state over the past decade. One first step in this push back is for all of us to be more proactive in becoming informed and policing the boundaries of our own privacy rights, particularly online and in terms of digital information. A second positive direction for moving forward in what will likely be a prolonged battle will be to seriously employ President Obama's Executive Order for increased declassification and oversight. A third direction precipitated by leaks such as Snowden's and the efforts of WikiLeaks will be to hold President Obama and numerous politicians to their pronouncements, promises, and proposals to scale back anti-terrorism data collection, to limit NSA surveillance, and to severely curtail unannounced and unauthorized corporate privacy rights intrusions.

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