In popular history, clandestine operations, and their control by the executive, are a cancerous growth that began in the 20th century with the so-called "imperial presidency" and the rise of the Central Intelligence Agency and National Security Agency. This is fiction. Unfortunately, this fairy tale account of American history is gospel in far too many quarters. It was accepted as fact by the Church Committee in the 1970s, resurrected again in the majority report of the Iran-Contra Committee in 1987, and now finds renewed life on the libertarian right. As Jefferson noted, for the founders, the "laws of necessity, of self-preservation, of saving our country when in danger," overrode traditional standards of conduct or any written law. Enlisting their legacy in the cause of restricting or banning these operations can only be achieved by either distorting or ignoring their repeated use of underhanded means.
One of Washington's first acts upon taking command of the Continental Army in 1775 was to hire a spy to go behind the enemy lines and report on British activities in Boston. He devoted a considerable amount of energy to his role as intelligence chief, including using personal funds to pay for clandestine operations. These operations were essential to winning the war, he believed, and so sensitive, that he withheld information about them from the Continental Congress. As he bluntly noted in 1777, "there are some secrets, on the keeping of which so, depends, oftentimes, the salvation of an Army: secrets which cannot, at least ought not to, be entrusted to paper; nay, which none but the Commander-in-Chief at the time, should be acquainted with."
His commitment to espionage, however, was a pragmatic one. While Washington understood that success in the struggle between nations required the use of covert operations — and the employment of individuals who were ethically challenged — he was not particularly enamored with these tactics or with the types of individuals employed in these endeavors. In fact, Washington bemoaned in 1779 the "ambiguous characters" that were essential to conducting covert warfare, and warned his intelligence officers to constantly be on the lookout for double agents. Nonetheless, Washington believed that these operatives and their underhanded methods were necessary to defend American interests.
If he were alive today — and enmeshed in the debate over domestic spying — Washington would likely clash with the modern civil libertarian view of the sanctity of private communications. In other words, he would disagree with Kentucky Sen. Rand Paul's, Vermont Sen. Patrick Leahy's, or Michigan Rep. Justin Amash's moral outrage regarding government monitoring of private communications, despite their claims to the contrary. Covert mail opening, he believed, was an important national security tool and instructed his agents to "contrive a means of opening them [letters] without breaking the seals, take copies of the contents, and then let them go on." This type of intelligence gathering would provide "innumerable" advantages to the American cause, Washington argued. He was also comfortable using clergymen as intelligence agents. In 1778, he urged a chaplain to coax vital intelligence out of two captured British spies facing execution. Washington instructed the chaplain to exploit the fact that these men would want to get right with God, and by default with George Washington, before departing for the pearly gates.
There was an element of ruthlessness in Washington's approach to clandestine operations.There was an element of ruthlessness in Washington's approach to clandestine operations. In March 1782, he approved plans for a political kidnapping designed to grab the heir to the British throne while he was visiting New York City. Washington created a special team whose purpose was to kidnap the future King William IV, planning to hold him for ransom in exchange for the traitorous Benedict Arnold or use him as a bargaining chip to secure the release of American prisoners of war. The mission was called off after British intelligence was told of the plan and doubled the prince's guard, but if Washington had had his way, a future king of England would have been snatched off the streets and kept in bondage.
His practice of deception wasn't confined to the enemy. One of Washington's greatest triumphs during the war, the Yorktown campaign of 1781, succeeded in part due to his skill at deception. The general decided that, in order to convince the British that he intended to attack New York City instead of marching south, he needed to mislead not only the British military but American officials as well. He so wanted American authorities to believe that "New York was the destined place of attack, he would later recall to Noah Webster in 1788, that he continued to draw recruits from the Mid-Atlantic States who might be less inclined to enlist for a southern campaign. Washington's domestic disinformation campaign extended to his own army as well. As he put it to Webster, "pains [were] taken to deceive our own army; for I had always conceived, when the imposition did not completely take place at home, it could never sufficiently succeed abroad."
Washington and other veterans of the Revolutionary War, including Alexander Hamilton, who served at the center of Washington's intelligence network (along with Thomas Jefferson, James Madison, and John Jay, who served on the political or diplomatic side of the conflict), believed that the new government established in 1789 needed to rectify some of the problems that had impaired U.S. security under the Articles of Confederation. They sought to transfer the unilateral control that Washington exercised under the articles into the newly created Office of the Presidency, in order to allow for more shrewd and coherent foreign and defense policy, including the use of clandestine means.
General Washington's successful use of intelligence and deception during the Revolutionary War led President Washington to conclude that the new executive office needed a secret service fund to handle the "business of intelligence," as John Jay referred to it in The Federalist Papers. Washington believed intelligence operations were the exclusive province of the executive, a hard-earned lesson taken from the inability of the Continental Congress to protect secrets. He would have little use for the permanent intelligence committees of the House and Senate, seeing this as an infringement on his "executive power" as vested in Article Two of the Constitution, including his powers as commander in chief and his role as the nation's chief diplomat. All of the founders would be particularly concerned about the role of the House, since they intended a minimal role for that body in foreign affairs.
In his first annual message to Congress, Washington requested a "secret service" fund that would be controlled by the president and would allow the chief executive to conduct secret operations free from congressional oversight. The president's request was approved by Congress in 1790, with the support of Rep. James Madison, and with it Washington was granted the authority to avoid the usual reporting procedures mandated by Congress — the president was in essence given a blank check to conduct secret operations that he alone deemed to be in the national interest.
The spycraft apparatus that Washington built lived on after he left — and grew.The spycraft apparatus that Washington built lived on after he left — and grew. No president was more temperamentally inclined to resort to clandestine schemes than Thomas Jefferson. The Sage of Monticello is frequently portrayed as a champion of deference to Congress and the patron saint of openness and accountability, but in fact he was a precursor to the imperial presidents of the 20th century. Jefferson utilized the secret service fund to a greater degree than almost any early American president, using it as something of a personal slush fund with which to bribe Native American tribes to cede territory, and funding the first covert operation designed to overthrow a foreign government. Dating back to his time as an American envoy in France, Jefferson was enamored with clandestine operations, including at one point attempting to covertly acquire a study of a plan from the Spanish government outlining a path for a canal through the isthmus of Panama, and utilizing a source in Holland to acquire information on the inner workings of the Dutch government and plant stories in the Dutch press favorable to Americans interests.
Echoing Washington, Jefferson believed that it was the executive's prerogative to direct the secret instruments of the American government. In 1807, Jefferson wrote to George Hay, a federal judge who also happened to be James Monroe's son-in-law, that "all nations have found it necessary, that for the advantageous conduct of their affairs, some of these [executive] proceedings, at least, should remain known to their executive functionary only." He noted on an earlier occasion that "the Senate is not supposed by the Constitution to be acquainted with the concerns of the executive department … nor can they, therefore, be qualified to judge of the necessity which calls for a mission to any particular place … which special and secret circumstances may call. All this is left to the President." In light of this, it comes as no surprise that Jefferson utilized private citizens for sensitive operations as a means of circumventing congressional oversight due to that body's penchant for leaks. In one instance, in 1804, Jefferson used a private citizen to carry a secret letter to an American envoy in France, which contained an elaborate cipher and a statement in support of using private channels for public business.
In a sense, early U.S. attachment to spycraft was a practical choice. Both Jefferson and Madison were drawn to covert operations because they allowed them to project American power on the cheap without having to maintain a large standing military. One can see this in Secretary of State Jefferson's policy toward Native American tribes, which involved bribery as a means of persuading them to concede territory. Jefferson succinctly summarized his views in an April 1791, letter to James Monroe, who would become the country's fifth president: "I hope we shall drub the Indians well this summer, and then change our plan from war to bribery" — a policy he was able to fully implement after he was elected president.
In a secret letter written in 1804 to future president William Henry Harrison — then governor of the Indiana Territory — Jefferson urged Harrison to expand the number of trading houses in Indian-controlled territory so that prominent Indian leaders would accrue large debts and be forced to pay them off with land concessions. Additionally, President Jefferson authorized a covert operation to overthrow the King of Tripoli — the first of its kind undertaken by the United States — that involved recruiting a disgruntled family member to do America's bidding. Jefferson would later dissemble about this operation to Congress, particularly regarding his decision to abandon the American-created mercenary army designed to place the disgruntled family member on the throne.
The celebrated Lewis and Clark expedition authorized by Jefferson in 1804 was more of an intelligence operation than an effort to discover new species of flora and fauna.The celebrated Lewis and Clark expedition authorized by Jefferson in 1804 was more of an intelligence operation than an effort to discover new species of flora and fauna. Jefferson's proclivity for the dark side can also be seen in his lobbying effort to persuade his friend President Madison to retaliate for the British burning of the White House by hiring arsonists in London to burn down St. Paul's Cathedral.
James Madison, the architect of the Constitution, had served as Jefferson's Secretary of State and was well aware of his boss's appreciation for the unseemly necessities of foreign relations, although he seemed to have somewhat less enthusiasm for scheming than Jefferson. In 1805, Secretary of State Madison procured a prostitute using money from the secret service fund in order to enhance the visit of a foreign envoy from Tunisia — the fund being designed in part to facilitate "foreign intercourse." Madison, although more deferential to Congress than Jefferson, conducted his own covert operations which were designed to secure parts of Florida for the United States by inciting "spontaneous" uprisings in Spanish-held territory. In response to criticism, Madison provided misleading accounts to Congress and to foreign governments of his administration's actions. On the eve of the War of 1812, Madison spent $50,000 from the secret service fund to purchase mail from a suspected British agent who claimed he could prove that New England Federalists had conspired to secede from the union.
One can dismiss the founders as irrelevant to the debate over contemporary intelligence issues by claiming that the United States has evolved beyond their unenlightened ways. But enlisting them in the cause of restricting or banning these operations is a distortion of history. These operations are as American as Washington, Jefferson, and Madison. The fairy-tale version of the founders that denies this dark side, is spun by libertarians on the right and liberals on the left. Like it or not, it's not true.
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