Privacy SOS

by Christopher H. Pyle

Remarks to the Netherlands Intelligence Studies Association
Netherlands Defence Academy, Rijswijk, Netherlands | May 27, 2011
Thank you. I am delighted to be here and to be among such distinguished company.
This visit is something of a homecoming for me, and for my wife.  Nearly 400 years ago our families left Delfshaven for the new world. Like many dissenters from the Church of England, they came first to the Netherlands, which was not easy, because back then it was a crime to leave England without royal permission, and government spies kept them under surveillance. But back then failure to worship at the king’s church could lead to indefinite detention, so they didn’t have much choice. 
For most of the decade during which they lived in Leiden our ancestors enjoyed religious freedom. In 1619, however, their printing press at the University of Leiden was raided by what today would be called your counter-intelligence service. Our ancestors had been printing books critical of the British king and his church and smuggling them into England. The British ambassador objected. Indeed, he demanded that your government destroy the press and surrender the head printer for what would almost certainly have been a grisly punishment. Fortunately, some brave souls at the University of Leiden helped our printer to escape and in 1620 he was able to lead his congregation to New England. I thank you for that. 
My ancestors may not have realized it at the time, but they played a small part in a political revolution that would set standards for intelligence work in the centuries to come. At the start of the seventeenth century, there were basically two kinds of government to which unhappy Englishmen could look for guidance: the authoritarian kind typified by the French and Spanish monarchies, and the republican kind represented by the Dutch. My ancestors preferred the Dutch. By bringing their little church to Leiden, they asserted a right of self-government. By founding a colony in New England, they did the same. As part of the larger Puritan movement they challenged the divine right of kings and laid the foundations for a republican form of government. In the process, they ceased to see themselves as mere subjects of a king. With your ancestors setting the example, my ancestors began to think and act like self-governing citizens.   
The political movement of which my ancestors were a part ended interrogations by torture and trials by secret courts. In 1640, the Puritans persuaded Parliament to ban unlimited detentions without trial and in 1679 forbade the hiding of prisoners on off-shore islands where the writ of habeas corpus could not reach them. That revolution was completed in 1689 when the British Parliament forbade their new Dutch king to suspend laws he didn’t like, or to exempt his intelligence agents from the application of laws meant to restrain them. 
My ancestors, like yours, were profoundly skeptical of human nature. As Calvinists, they knew that power could be abused, and that unaccountable power would be abused most. That is why, during the eighteenth century, their American descendants developed an elaborate system of checks and balances for both state and national governments. Few Americans know it today, but the philosophical roots of their Declaration of Independence go back to your Famous Act of Abjuration of 1581. Long before John Locke proclaimed the principle, your ancestors and mine understood that “governments are instituted among men, and derive their just powers from the consent of the governed.” 
I mention this heritage not just because I am grateful for it, but because my fellow Americans have betrayed it so disgracefully in recent years. In their overblown fear of terrorism, they have allowed our intelligence agencies to practice the kind of lawlessness that my ancestors fled nearly 400 years ago. Indeed, the United States today is more like an elected monarchy than a constitutional republic. We elect our president every four years but, where matters of war and peace are concerned, he functions much like a Stuart king, only with a larger military and intelligence apparatus. 
Our president’s secret agents have seized people from foreign countries, tortured them, and hid them overseas, where they are said to have no legal rights that his agents need respect. Indeed, President Obama, like President Bush, claims the right to suspend the operations of laws he doesn’t like, or otherwise absolve his secret agents from any duty to obey those laws, including the laws against kidnapping, torture, and murder. President Obama also insists that his intelligence agencies have no obligation to obey the laws of the Netherlands, although he would scream bloody murder if your intelligence agents were to kidnap people off the streets of New York.
This is a major revolution in American jurisprudence and it has happened in my lifetime. My ancestors would be shocked to know that American presidents now insist that they are above the law, and that both Congress and the courts have let them get away with it. 
Of course, in any revolution of this scale there are a number of contributory developments that may rightly be called revolutionary, and it is about these I have been asked to speak today – revolutions that directly affect the intelligence services. My assignment, in other words, is to place these radical changes in context — historically, legally, and morally. 
The first, and most disgraceful revolution is the use of torture on suspected terrorists.  As an American, and as a former intelligence officer, I find this a very painful development to talk about. Evidence obtained by torture has been inadmissible in British and American courts since the seventeenth century and in Continental courts since the eighteenth.  Torture was one of the crimes for which German and Japanese interrogators were prosecuted after World War II, and yet it was revived by both the United States and the United Kingdom following 9/11. 
The revival of medieval methods of interrogation, including water-boarding, cannot be blamed just on the intelligence agents who carried it out; it was a deliberate policy that the Bush administration imposed on a willing CIA and a sometimes reluctant military. It also turned out to be surprisingly popular. When pictures from Abu Ghraib were first published in the spring of 2004, a near majority of Americans expressed support for the practice. They wanted revenge for the attacks of 9/11, and they were easily persuaded that torture would save lives by forcing terrorists to reveal the location of ticking bombs. 
Proponents of torture said it was done to get valuable information in order to save lives. In fact, there is still no evidence that torture ever produced any information that intelligence agencies could actually trust, not even to track down Osama bin Laden. Torture did produce false information that was used by the Bush administration to justify its invasion of Iraq. Like that invasion, the torture of prisoners squandered the immense good will that Middle Easterners had for the United States following the attacks of 9/11. 
Worse, much of the torture was not done for information.  It was done for amusement, because President Bush and his aides made it clear that no one would be prosecuted for violating the Geneva Conventions. 
At Abu Ghraib, American interrogators and guards believed that the best way to get reliable information from Muslim prisoners was to humiliate them, both sexually and religiously. Our intelligence services inflicted the greatest humiliations on the most devout Muslims. What angered these prisoners most was not the physical abuse, but the sexual humiliation and the disrespect for Islam. Our intelligence agencies still won’t admit it, but that humiliation led to the deaths of countless allied troops and the prospect of endless warfare.  
And that has always puzzled me. How could intelligence officers, of all people, be so stupid?  Why didn’t they learn from the French experience in Algeria and the British experience in Northern Ireland? Wars on terrorism cannot be “won.” They can only be defused, and torturing people is no way to defuse hostilities.
Now, to torture someone first requires that you capture him, and that leads me to a second revolution in the intelligence business — the use of kidnapping for the purpose of torture. Here, again, the United States once led the world in demanding that law, not politics, govern the transfer of alleged criminals from one country to another. We called it extradition, and we exempted from extradition persons wanted for political offenses. Again, your ancestors and mine led the way. The Leiden City Council made no effort to track down the Pilgrims’ printer in 1619. After all, they remembered the Spanish Inquisition. In 1660 my New England ancestors refused to surrender the Puritan politicians who had authorized the execution of King Charles I.
The fact that our ancestors did not have the kind of intelligence service that puts bureaucratic cooperation ahead of justice or humanity certainly helped. Several of the British regicides were hidden in houses not far from my home, and when the king’s messenger demanded that their surrender, the lieutenant governor of Connecticut explained: “We honor his majesty, but we have tender consciences.”
A century later, French Jacobins asked the first president of the United States if he would please look the other way while they kidnapped Citizen Genêt, a Girondist, so that they could drag him before the guillotine. George Washington refused.  When the United States finally agreed to extradite some alleged criminals to some European governments, it refused to surrender “political offenders.” As a result, European revolutionaries like Louis Kossuth and Guiseppe Mazzini found asylum in the United States, just as my ancestors found asylum in the Netherlands. And to make sure that politicians would not surrender political fugitives for reasons of state, our government assigned that decision to an independent judiciary.
Of course, that has changed, too.  Starting in the 1980s, the United States, like most European governments, began to remove the political offender exception from its extradition treaties. By then, most Americans had forgotten their heritage as a nation of asylum. 
But it is worse than that. Since 9/11, the United States has done what Nazi Germany did in the 1930s — dispatched teams of secret agents to kidnap suspects from other countries. Our current president, Barack Obama, believes that he can order the CIA to kidnap suspected terrorists from the streets of Rotterdam or, in the alternative, have them killed here. This is the new normal in the United States.
It may also be the new normal in Europe.  You would know better than I, but it is clear that the police and intelligence agencies of Sweden, Italy, Macedonia, and Germany facilitated the CIA’s kidnapping. On the other hand, I was pleased to read recently that in 2007 and 2008 your military, along with the United Kingdom’s, refused to transfer captured Afghans to the Afghan National Directorate of Security, because of its reputation for torture and brutality. Unfortunately, the U.S. military did transfer prisoners to that brutal intelligence service.
Closely allied to the torture of prisoners in the war on terrorism is a third revolution in jurisprudence – the creation of special courts that don’t have to hold fair trials.  This, too, is a radical change for the Anglo-American legal system which had, over the centuries, gradually standardized justice through a single system of courts with uniform procedures, rights, and rules of evidence.
Unfortunately, in 2001 President George W. Bush created military commissions to try alleged terrorists and then exempting those commissions from having to follow the regular rules of evidence. His purpose was clear. He wanted courts that would be susceptible to command influence. He wanted the judges to admit evidence based on torture, so that every defendant would be convicted, and he wanted to hide the unjust proceedings from public view by trying the prisoners at a secluded military base on the island of Cuba. These tribunals, like the prison they are part of, have become an embarrassment to the United States. President Obama would prefer to shut down them down, but conservative members of  Congress won’t let him. So much to my country’s disgrace, these special courts are now gearing up to try alleged terrorists.
The fourth revolution I wish to talk about involves how the United States deals with war criminals today.  In 1945, representatives of the allied powers met to discuss what to do with Nazi officials after the war. Winston Churchill and Anthony Eden were in favor of lining them up against a wall and shooting them. Joseph Stalin wanted a show trial of Germany’s generals, after which he would kill them all. The United States demanded real trials, with due process of law, and the other allies reluctantly agreed. Military tribunals run largely by civilians were held at Nuremberg and, for all their limitations, were not just show trials. About one-third of the German defendants charged at Nuremberg were acquitted for lack of evidence.
Of course, some people objected to these prosecutions, because what the Nazis did was technically legal under German law. And that is true.  To be legitimate, the critics said, law has to be applied equally to winners and losers, and the standards imposed at Nuremberg would never be applied equally in the Soviet Union, and maybe not the United States.
And now we know that is true. When President George W. Bush authorized the torture of prisoners in Iraq, Afghanistan, and Cuba, as well as in Morocco, Egypt, Syria, Poland, Romania, and Thailand, he betrayed the promise of Nuremberg. President Obama has done the same, by refusing to prosecute those responsible.
According to the Bush and Obama administrations, the Constitution and laws of the United States, as well as the Geneva Conventions and the UN Convention Against Torture, are now optional and that, too, is a revolution in American jurisprudence.
Of course, not all revolutions are legal, political, or moral. Some are technological; others are organizational, and it is to these I would like to turn in the short time I have remaining.
The fifth revolution on my list is Google, or internet search engines. When I joined Army intelligence in the 1960s, we were just beginning to experiment with computers. Most of our files were on paper. We stored them in a giant black warehouse in Baltimore, Maryland, and retrieved them with a cherry-picker that rode down the aisles on rails. Today the entire contents of that immense warehouse can be stored on a single laptop computer and remotely accessed by thousands of intelligence analysts from thousands of other computers, all with the storage capacity of that giant warehouse. 
In the 1960s, it took a lot of work to enter the information on computer punch cards, so there was some reason to be selective. No longer.  Intelligence agencies today collect information indiscriminately. When garbage about you or me gets into the system and is passed on to other computers, there is no way to remove the stain from your reputation or mine. Each time an analyst does a search, he has to wade through this garbage, and is tempted to believe it, especially if comes back from other agencies without  its original source notations.  
I used to think that the sheer quantity of information about us would eventually bury our analysts in garbage, but Google now does much of the sorting for them. The advent of search engines, which get smarter by the day, has led our National Security Agency to start building two giant electronic warehouses, one in Idaho, the other in Texas. The agency plans to store all the wiretaps and e-mails it doesn’t have time to read now, and then look at them later should you or I become “persons of interest.” 
One result of this technology, of course, is the death of privacy. The Fourth Amendment to the American Constitution guarantees “the right of the people to be secure in their persons, houses, papers, and effects.”  The tenth article of your constitution says something similar. When the government wants to read our correspondence, it is supposed to have good reasons to do so, and to present those reasons to an independent judge. No longer. The rise of unregulated computers, including computers that can search telephone conversations, has destroyed privacy in the United States.
Indiscriminate data collection also threatens to reduce the number of people willing to run for election to public office, because intelligence agencies sometimes leak the results of their “research” to opposition candidates, political parties, or the news media. For example, the state of New York once had an attorney general with the courage and authority to prosecute Wall Street stock brokers for their crimes – the very crimes that led to the world-wide recession. Eliot Spitzer was so good at his job that the voters of New York elected him governor. Unfortunately, his election was overturned when a federal intelligence agency discovered that Spitzer was laundering money to pay prostitutes and couldn’t resist leaking that information to the press. What its investigators did to that crusading attorney general can now happen to almost anyone who runs for high office, so fewer people like him dare to enter politics.
Of course, this was not the first time that the files of a U.S. intelligence agency have been used against political adversaries. In those pre-historic days before computers, President Richard Nixon was forced to resign because his staff used former CIA agents to burglarize the offices of the Democratic Party. They also created an “enemies list” and targeted the people on it for reprisals. Meanwhile, the Federal Bureau of Investigation ran programs of “dirty tricks” against civil rights and anti-war groups, and blackmailed members of Congress to vote for its appropriations and oppose efforts to investigate its wrongdoing. And that was before computers.
This brings me to the last revolution that I will have time to talk about today, and that is the huge growth in the intelligence community. When President Dwight Eisenhower was leaving office in 1960, he warned Americans to beware of the “military industrial complex. By that he meant not only the armed forces, but the political network of corporations, lobbyists, politicians, and military units that stood to profit from a more militaristic foreign policy. 
In the 1950s, fear of Communism made the military-industrial complex a political force in its own right, and so it remained even after the Soviet Union collapsed. More recently, fear of terrorism has radically expanded the intelligence and security agencies and their corporate suppliers. Today, the United States has 16 federal intelligence agencies, more than 72 state and municipal intelligence units (like your regional units), and hundreds of corporations that do surveillance and security work.   
President Eisenhower was right; the military, industrial, intelligence apparatus that was created for the successful prosecution of wars now generates wars, or expands their scope, in order to prosper. In their enthusiasm to prove the relevance of their skills, our armed forces and intelligence agencies have forgotten that the best weapons against terrorists don’t shoot. The best weapons defuse conflict by rebranding terrorists as criminals, making them enemies of all mankind. 
Osama bin Laden’s greatest accomplishment was to provoke Americans into to such fury that they forgot their nation’s heritage and thereby alienated the very people whose support they needed most. I often wonder how long it would have taken our intelligence agencies to track bin Laden down, had they not tortured prisoners and thereby persuaded millions of Muslims that the the United States and its allies were waging war on Islam. 
Finally, it is worth remembering that Bin Laden was not captured and killed by those agencies that spy on the politics of ordinary citizens. He was found by narrowly-focused investigations targeted against specific persons within his circle, and conducted in the languages they used – not the languages we use. 
At this moment in history, I am particularly concerned with bureaucratic bloat, because it tends to turn intelligence officers into amoral creatures — “good soldiers” who leave their political and moral judgments at the security desk. The larger the intelligence agency, the more its agents are likely to trade personal integrity to personal advancement.
So what is to be done?  The first step is to value our legal heritage and push back against those who would disgrace it.  We must resist the short-term, vengeful thinking of politicians, no matter how emotionally satisfying revenge may feel at the time. We must think harder about how to defuse wars we cannot win. And, above all, we must not let politicians bully intelligence agencies into committing crimes, as White House officials did  in the United States.
Now I am not so naïve as to believe that defending the integrity of what intelligence agencies do is not without risk.  But subtle people can minimize the risk. Low level employees can create a paper trail, so that their superiors can’t pretend later that they didn’t know that crimes were being committed. If asked to commit a crime, or conceal the commission of a crime, a subordinate can request that the order be put in writing. Or he can file a memorandum for the record, where future investigators are sure to find it. He can also leak the truth, but do so anonymously. Or he can expose the crimes, knowing full well that he may suffer reprisals.
Finally, wise intelligence officers should never promote a cult of secrecy. Secrecy has its place, of course, but everyone in an intelligence agency will be safer when superiors cannot be certain that their wrongdoing will remain hidden. And our societies will be safer, too, because the power that intelligence agencies can inflict upon an enemy can always be turned on us.

© 2011. Christopher H. Pyle

© 2021 ACLU of Massachusetts.