1

Game of Spies

SPIES, PATRIOTS, AND TRAITORS: AMERICAN INTELLIGENCE IN THE
REVOLUTIONARY WAR. By Kenneth A. Daigler. Washington,
D.C.: Georgetown University Press. 2014. Pp xviii, 317. $29.95.
LAWRENCE FRIEDMAN

ntelligence gathering and analysis have long played a critical role in
national security efforts. Historically, and with good reason, the extent,
reach, and effect of intelligence activities have remained in the
shadows, escaping the notice of many in government, as well as the
attention of the American public. In the age of the twenty-four hour news
cycle, though, this situation is beginning to change: rare since Edward
Snowdens revelations about what our intelligence services have been up
to, both domestically and abroad, has been the week in which some
intelligence-related activity has not made headlines.
1

In light of the Snowden revelations and other reports about the
intelligence activities in which the United States is engaged, some historical
context may be usefulboth to assuage our fears and to manage our
expectations.
2
For every generation mistakenly supposes that the startling
events of its time are the worst ever to have occurred, only to be confronted
with historical antecedents that give us some perspective on modern
events and offer lessons that may help us address their consequences.
How far back to go? In Spies, Patriots, and Traitors: American Intelligence
in the Revolutionary War,
3
Kenneth A. Daigler, a former Central Intelligence
Agency operations officer, goes back to the earliest days of the republic.

Professor of Law, New England Law | Boston.
1
At this writing, for example, the most recently-reported revelation concerns the Central
Intelligence Agencys improper searches of computer files maintained by the Senates
Intelligence Committee. See Carl Hulse & Mark Mazzetti, Obama Expresses Confidence in C.I.A.
Director, N.Y. TIMES, Aug. 2, 2014, at A13.
2
We use history to understand ourselves, and we ought to use it to understand others.
MARGARET MACMILLAN, DANGEROUS GAMES: THE USES AND ABUSES OF HISTORY ixx (2009).
3
KENNETH A. DAIGLER, SPIES, PATRIOTS, AND TRAITORS: AMERICAN INTELLIGENCE IN THE
REVOLUTIONARY WAR (2014).
I
2 Ne w Engl and Law Revi e w On Remand v. 49 | 1
What his comprehensive survey of national security-related intelligence
activities during the war for independence reveals would be no great
surprise to anyone who follows the news in the post-Snowden age. The
technology in the late eighteenth-century might have been analog, but
many of the techniques of tradecraft employed by both sides in the war for
independencefrom the cultivation of intelligence sources to the use of
covert action, counterintelligence and propagandaare still very much in
use today.
Daigler begins in 1753, with the story of George Washington before he
commanded the Continental Army. The royal governor of Virginia
dispatched Washington to investigate the threat posed by the French to
British occupation of the Ohio Territory.
4
The French incursion
foreshadowed the French and Indian War, and Washingtons experience
during that war would prove invaluable preparation for the future conflict
with England. Daigler notes that,
[b]y the wars conclusion, Washington had demonstrated a solid
understanding of intelligence collection beyond the traditional
military activities of scouting and reconnaissance. He had
demonstrated skills in elicitation, propaganda, deception, and the
use of collection agents. . . . Several years later, but well prior to
the start of the Revolution, Washington wrote to a friend, There
is nothing more necessary than good intelligence to frustrate a
designing enemy, & nothing that requires greater pains to
obtain.
5

From Washingtons education in intelligence activities, Spies, Patriots,
and Traitors moves to the Sons of Liberty and their united front campaign
against the British. This campaign, the forbear of later efforts in the Soviet
Union and the Peoples Republic of China, emphasized the objective of the
Sons of Liberty to create a mass movement that first opposed specific
British policies and then promoted political independence.
6
The radicals
used the tools of propaganda and political action to promote the idea of
economic freedom among their fellow colonists, an idea that appealed to
the general population and that allowed the radicals to move toward a
political confrontation with the British authorities.
7
At the same time, the
radicals were cultivating their own intelligence assets, and by the time the
first shots were fired the intelligence war had begun in earnest, with both
sides tasking various agents to uncover information about their opponents
actions and strategies.
8


4
See id. at 2.
5
Id. at 1415 (quoting Letter from Washington to Robert Hunter (Jan. 5, 1766), in 1 THE
WRITINGS OF GEORGE WASHINGTON 268 (John Fitzpatrick, ed. 193144)).
6
Id. at 17.
7
See id.
8
See id. at 4361. Though today we would classify some of these agents as spies, Daigler
2014 Game of Spi es 3
By the spring of 1776, the ground war in New England had come to a
close, as the British chose to focus their strategy on New York and the
South. Spies, Patriots, and Traitors turns at this point to the area in which
intelligence activities arguably tipped the scales in favor of the colonists:
the covert action in Europe that led to French support of the Patriot cause.
9

As Daigler observes:
Secret activities with France led to the covert assistance that
enabled the Continental Army to remain in the field until a
formal alliance could be negotiated. Covert action, consisting of
political action, propaganda, and paramilitary activities, played a
significant role in convincing the French of the determination of
the colonies to win their independence. Had France not been
convinced of such determination, the formal alliance would not
have been achieved.
10

The importance of winning France to the American side should not be
underestimated: French recognition would afford the Americans
opportunities for trade relations, loans, and alliances throughout Europe
that were essential to securing and maintaining independence.
11

Daigler next examines the story of Nathan Hale and the British
occupation of New York,
12
George Washington and the intelligence
capabilities he deployed,
13
the actions and motivations of the traitor,
Benedict Arnold,
14
and the more-advanced intelligence activities in which
the Americans engaged as the war progressed.
15
He devotes considerable
attention to the intelligence coup that led to victory at Yorktown:
Washington kept [the British] supplied with intelligence that indicated [an
American] attack on New York City. In addition to a general gossip
campaign within American circles, he focused . . . on individuals known to
be also reporting to the British on the city.
16
Finally, in two shorter
chapters, Daigler addresses the intelligence activities conducted by
Nathanael Greene in the Southern campaign
17
and the contributions of

reminds us that, at the time all the colonists were subjects of the British king, which means
that placing that label on an individual should be a carefully considered act. See DAIGLER,
supra note 3, at 4748.
9
See id. at 6292.
10
Id. at 241.
11
JOEL RICHARD PAUL, UNLIKELY ALLIES: HOW A MERCHANT, A PLAYWRIGHT AND A SPY
SAVED THE AMERICAN REVOLUTION 130 (2009).
12
See DAIGLER, supra note 3, at 93110.
13
See id. at 12644.
14
See id. at 14570.
15
See id. at 17194.
16
Id. at 221.
17
See id. at 195213.
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African-Americans to the intelligence effort.
18

Aside from providing historical perspective on the early development
of American intelligence activities, Spies, Patriots, and Traitors offers lessons
about the endurance of the American commitment to the rule of law.
Daigler devotes considerable attention, for example, to John Jays
counterintelligence efforts. Throughout the war, the British enjoyed great
success with their own intelligence activities and they were able to learn
much about the American military and diplomatic plans and
intentions.
19
Enter, for a brief time and with a limited geographic reach,
New Yorks Committee and First Commission for Detecting Conspiracies,
headed by Jay. Though much counterintelligence during the war reflected
little more than mob rule, Jay was able to construct a program that
permitted the adjudication of instances and accusations of treason and
spying in a fair and objective manneran effort that was substantively
more than merely an excuse to use emotion and rhetoric to condemn ones
enemies.
20
As Daigler describes it:
While the committees process took place outside the established
colonial legal system, it included many of the protections in that
system. The committee tried hundreds of cases, and accurate
records of the proceedings were kept. Under Jays leadership the
committees procedures went a long way toward legitimizing the
counterintelligence process, at least in the Hudson Valley.
21

Jay would later serve as a president of the Continental Congress,
Secretary of Foreign Affairs under President Washington, and, of course,
Chief Justice of the United States Supreme Court. His emphasis on the rule
of law while leading New Yorks Committeeon the establishment of
practices and procedures that operated to deter rash judgments about
alleged traitors and spiesreflects a concern for the rule of law that would
become a touchstone of the American constitutional order. In little more
than a decade, the framersJay among themwould embed in the text
commitments to such principles as individual fairness and institutional
accountability, through the due process clause, and the separation and
division of lawmaking powers among three branches of government.
Daigler concludes in the books summation that this constitutional
commitment to the rule of law has come with a price:
[O]ur culture and legal system place[] primary emphasis on the
rights of individuals and private enterprises. The right of the
government to protect itself or the country comes second. This
creates a friction point when it comes to counterintelligence

18
See DAIGLER, supra note 3, at 23240.
19
Id. at 112.
20
Id. at 113.
21
Id. at 116.
2014 Game of Spi es 5
matters. And this issue might well have been avoided if the
Continental Congress and the Continental Army had not been
too busy with other activities to establish legal frameworks for
counterintelligence investigations and adjudications during the
Revolutionary War. The downside is that the United States today
represents one of the softest targets for intelligence collection in
the world.
22

On this view, the so-called friction point between national security
and individual liberty is the real subject of the headlines we see daily in the
post-Snowden world: it forces us to considerand reconsiderhow we
should balance these seemingly competing concerns.
But it can be argued that the framers struck the balance for us. A
respect for rightsfor the rule of lawis not merely a cultural affectation,
but a principled understanding of how we as a nation ought to govern
ourselves. The Constitutions framers did not so much privilege liberty
over security as identify how the correct balance should be struck, allowing
us to determine whether, in a given instance, a claim of security should
prevail. The Fourth Amendment, for example, protects us only from
unreasonable searches and seizures; so long as the government has an
objectively reasonable basis to search an individual at a specific moment in
time, it may do so. And John Jay himself showed us that it is possible to
investigate security threats in the midst of crisis without resorting to purely
arbitrary determinations; principles of fairness can inform even the
extraordinarily difficult task of sorting patriots from loyalists. The
competing claims of security and liberty, in other words, need not be seen
as inevitably irreconcilable.
Henry Compton, a former operations officer in the Central Intelligence
Agencys Clandestine Services, recently observed that [t]he
transformative geopolitical trends of our time, many fueled by exponential
advances in technology, suggest that intelligence will play an even greater
role in an increasingly interdependent and complex world.
23
This may
prove to be an understatement, as we are just beginning to appreciate how
patterns of digital data can be mined to yield a great deal of intelligence
about our enemiesand about us, too. We accordingly should seek to
uncover what lessons we can from historical precedent about how best to
navigate this brave new world of intelligence, and Kenneth Daiglers Spies,
Patriots, and Traitors allows us to begin at our nations start, when the
desire for independence pulled us headlong into the game of spies.


22
Id. at 247.
23
HENRY A. CRUMPTON, THE ART OF INTELLIGENCE: LESSONS FROM A LIFE IN THE CIAS
CLANDESTINE SERVICE 3 (2012).