I’m particularly appreciative of the responses to my initial essay by John Eastman and Paul Rosenzweig. Those two replies — especially the former — perfectly illustrate the continuous stream of manipulative fear-mongering over the last decade which has reduced much of the American citizenry into a meek and submissive faction for whom no asserted government power is too extreme, provided the scary menace of “Terrorism” is uttered to justify it.
That more-surveillance-is-always-better mentality is what allows Eastman and Rosenzweig to dismiss concerns over surveillance excesses a mere four weeks after the establishment-supporting Washington Post documented that our Surveillance State is “so large, so unwieldy and so secretive” that not even top intelligence and defense officials know what it does. For those who are so fearful of Terrorism and/or so authoritarian in their desire to exploit and exaggerate that threat for greater government power, not even the construction of a “Top Secret America” — “an alternative geography of the United States” that operates in the dark and with virtually no oversight — is cause for concern.
Eastman’s essay centers around one three-word slogan: We‘re at war! For almost a full decade, this has been the all-justifying cliché for everything the U.S. government does — from torture, renditions and due process–free imprisonments to wars of aggression, occupations, assassination programs aimed at U.S. citizens, and illegal domestic eavesdropping. Thus does Eastman thunder, with the melodrama and hysteria typical of this scare tactic: “Not once in his article does Greenwald even acknowledge that we are at war with a global enemy bent on destroying us.” A global enemy bent on destroying us! Scary: be very afraid.
By invoking The War Justification for America’s Surveillance State, Eastman wants to trigger images of America’s past glorious wars. He’s not particularly subtle about that, as he begins with a charming story of how his grandfather’s letters were censored during World War I (how censorship of a soldier deployed in a foreign war justifies surveillance of American civilians on U.S. soil is anyone’s guess). But, for several reasons, this war justification is as misleading as it is dangerous:
First, unlike for past wars (such as World War I), the current “war” has no possibility of any finite duration or definitive end. Even its most enthusiastic proponents — as well as the U.S. government — acknowledge that it is more akin to an ideological conflict (like the Cold War) than a traditional combat war. Islamic extremism is highly unlikely to end in the foreseeable future, to put it mildly. Thus, this “war” will drag on not for years but for decades, probably even generations. When President Obama unveiled his proposal for “preventive detention” last June, he said that “unlike the Civil War or World War II, we can’t count on a surrender ceremony to bring this journey to an end” and that we’ll still be fighting this “war” “a year from now, five years from now, and — in all probability — 10 years from now.”
Thus, people like Eastman who want to radically expand government power in the name of this “war” are not defending temporary alterations to the American political system. Rather, they are urging its permanent transformation. We are, as the military historian Andrew Bacevich has repeatedly documented, a nation in a state of “perpetual war.” War-justified powers will be vested in the government not — as people like Eastman imply — temporarily, but rather forever.
Second, Eastman’s fear-inducing, glorifying description of a handful of Muslim extremists — “a global enemy bent on destroying us” — is so hyperbolic as to be laughable. Earlier this month, the State Department published its annual Report on Terrorism. Among its findings, as highlighted by McClatchy’s Warren Strobel, was this: “There were just 25 U.S. noncombatant fatalities from terrorism worldwide. (The U.S. government definition of terrorism excludes attacks on U.S. military personnel). While we don’t have the figures at hand, undoubtedly more American citizens died overseas from traffic accidents or intestinal illnesses than from terrorism.”
Eastman wants to drastically expand the power of the American government and subject U.S. citizens to sprawling, unaccountable surveillance, all because he’s petrified of a handful of extremists hiding in caves who cause fewer deaths to Americans than stomach diseases (or, at least he wants Americans to be that petrified). That’s how America has become a nation racked with fear. Compare that mentality to what the U.S. did in the face of an actually threatening “global enemy”: the Soviet Union, which possessed a huge army and hundreds of nuclear-tipped intercontinental ballistic missiles aimed at U.S. cities.
Even at the height of the Cold War, the United States enacted the FISA statute, which criminalized government eavesdropping on American citizens without warrants. Every President until George W. Bush — including Ronald Reagan — was able to keep the country safe while adhering to that surveillance safeguard. But while even the most hawkish Americans in the 1980s — facing the Soviet threat — understood that domestic eavesdropping should be conducted only with judicial warrants, the war cheerleaders of the current decade insist that the far less formidable threat from Muslim extremists means we must vest the government with the power of warrantless surveillance — even on American citizens, on U.S. soil. That’s how far we’ve descended into the pit of submission, thanks to the toxic mix of fear-mongers and the authoritarian cowards they exploit.
Third, there’s no “war exception” in the Constitution. Even with real wars — i.e., those involving combat between opposing armies — the Constitution actually continues to constrain what government officials can do, most stringently as it concerns U.S. citizens. But strictly speaking, we’re not really “at war.” Congress has merely authorized the use of military force but has not formally or constitutionally declared war. Even the Bush administration conceded that this is a vital difference when it comes to legal rights. In 2006, the Bush DOJ insisted that the wartime provision of FISA — allowing the Government to eavesdrop for up to 15 days without a warrant — didn’t apply because Congress only enacted an AUMF, not a declaration of war:
The contrary interpretation of section 111 also ignores the important differences between a formal declaration of war and a resolution such as the AUMF. As a historical matter, a formal declaration of war was no longer than a sentence, and thus Congress would not expect a declaration of war to outline the extent to which Congress authorized the President to engage in various incidents of waging war. Authorizations for the use of military force, by contrast, are typically more detailed and are made for the specific purpose of reciting the manner in which Congress has authorized the President to act.
The Bush DOJ went on to explain that declarations of war trigger a whole variety of legal effects (such as terminating diplomatic relations and abrogating or suspending treaty obligations) which AUMFs do not trigger (see p. 27). To authorize military force is not to declare war.
Indeed, the U.S. is fighting numerous undeclared wars, including ones involving military action — such as the “War on Drugs.” Given that our “War on Drugs” continues to rage, should the U.S. government be able to eavesdrop on accused “drug kingpins” or associates without warrants? After all, terrorists blow up airplanes but drug kingpins kill our kids!!! The mindset that cheers for unlimited presidential powers in the name of “war” invariably leads to exactly these sorts of expansions.
From its founding, the United States has been grounded in the need to balance security with freedom; that means sometimes sacrificing the former for the latter (which is why, for instance, the Constitution limits the state’s power to conduct searches or imprison people even though those limits will sometimes enable violent criminals to escape). People like Eastman evince no appreciation for that balance. Security is the only recognized value, and thus, like a frightened child calling out for a parent, they insist that the government must have unrestrained power to do what it wants to Keep Us Safe. A country wallowing in that level of blinding fear will not be great for very long.
Rosenzweig’s reply is much more substantive and reasonable, and I’ll leave it to readers to compare on their own our competing claims about the nature of the surveillance abuses and the lack of oversight and safeguards. I do, however, want to flag one component of his response as illustrative of the erosion of liberty which the United States continues to suffer and the way in which it has been normalized.
It was quite common during the “debate” over America’s torture regime for Bush defenders to resort to the defense that even if we engaged in harsh or even illegal tactics, they paled in comparison to, say, the torture techniques employed by Saddam Hussein. It’s not like we have rape rooms and mass graves, they’d argue (leave aside the fact that mass graves, at least figuratively, are exactly what we’re leaving behind in Iraq, among other places). Our descent into brutality and lawlessness was epitomized by the fact that this became our new standard: as long as we’re not as bad as history‘s most despicable monsters, there’s nothing to complain about.
Rosenzweig’s dismissals of America’s Surveillance State abuses is redolent of that severe bar-lowering. He pronounces, as though it’s comforting: “Whatever one may say about the United States, our system is far more protective of civil liberties and privacy than, say, China or Russia or any of a dozen other readily named nations.” The United States once proclaimed itself “the Land of the Free” and our President “Leader of the Free World.” We’re now reduced to this sloganeering boast: Not as Tyrannical as Communist Regimes!
Is it really a comfort to anyone that the American Surveillance State is not as invasive or out-of-control as Russia’s and “a dozen other nations”? Moreover, that premise is highly debatable. As I noted in my initial essay, quoting The Washington Post: “Every day, collection systems at the National Security Agency intercept and store 1.7 billion e-mails, phone calls and other types of communications.” And consider this 2007 chart from Privacy International, a group that monitors the surveillance policies of nations around the world. Each color represents the level of the nation’s privacy and surveillance policies, with black being the most invasive and abusive (“Endemic Surveillance Societies”) and blue being the least (“Consistently upholds human rights standards”):
Note that this chart is consistent with Rosenzweig’s “defense” of the American Surveillance State that “our system is far more protective of civil liberties and privacy than, say, China or Russia or any of a dozen other readily-named nations.” For a society claiming to be devoted to principles of individual liberty and restrained government power, is that supposed to be some sort of comfort that we do not, in fact, now live under an out-of-control, increasingly entrenched and inherently abusive Surveillance State?
Read: The Surveillance State Thrives on Fear
In this post, I want to note one aspect of what Julian has written with which I agree. I particular, I am of the view that changing technology is creating a world in which huge amounts of data are becoming pervasively available for analysis. And the automation of analysis of that data may well work a sea change in how we approach privacy.
What is surprising to me is how little of what Julian (and Glenn) seem to worry about has anything to do with this fundamental change. Let’s leave aside (just for this post) our differences about the implementation of National Security Letters and FISA warrants and see if we can’t at least agree that they aren’t fundamentally different from administrative subpoenas and Title III warrants. Yes, I know, the issuing authorities are different and the standards of issuance are different, and that matters to Glenn and Julian more than it does to me.
But at the highest level of discussion they are in all respects similar in operation to existing law enforcement tools — they have rules; they are governed by laws; and they are subject to the potential for abuse. But that abuse is also a well-known phenomenon and we would no more eliminate FISA warrants because of potential intelligence abuses than we would Title III warrants because of law enforcement abuses.
Why is that? Because we think the costs of doing so outweigh the benefits (or, to put it conversely, the advantages we gain from having these tools outweighs the dangers that arise from them). This is a calculus we make all the time in law enforcement and intelligence activity. To put it most prosaically, we arm police because doing so stops crime and the gains we get in stopping crime outweigh the abuses that arise from police who misuse their weapons, or so we think.
To be clear, my point here is not to assert that my weighing of values is the right one or that my assessment of the relative costs and benefits is correct. Though I’m quite certain of my views, what I am asserting is that these sorts of questions all share enough characteristics that we know how to discuss them.
The surprise, for me, is that we don’t spend enough time talking how the changing nature of surveillance changes that paradigm. There is a crying need for that discussion (as the recent case involving GPS surveillance, United States v. Maynard, demonstrates).
I think one of the reasons that we don’t is that we are locked into concepts of privacy that were developed before the data analysis revolution. One thinks of the old DOJ v. Reporters Committee case where the Supreme Court developed the concept of “practical obscurity” to define a principle of privacy. In practice that concept is eroding. And given the utility of this sort of data analysis, and the likely persistence of the terrorist threat, it is as a matter of practical reality unlikely that governments will give up these analytical tools anytime soon, if ever. A realistic appraisal suggests that these tools are likely a permanent part of the national landscape for the foreseeable future.
Yet I join Julian in thinking that the use of such analytical tools is not without risks. The same systems that sift layers of data to identify concealed terrorist links are just as capable, if set to the task, of stripping anonymity from many other forms of conduct — personal purchases, politics, and peccadilloes. The question then becomes how do we empower data analysis for good purposes while providing oversight mechanisms for deterring malfeasant ones?
Old concepts of privacy (I call it “Antique Privacy” just for fun) focused on prohibitions and limitations on collection and use — and those are precisely the conceptions which technology is destroying. In this modern world of widely distributed networks with massive data storage capacity and computational capacity, so much analysis becomes possible that the old principles no longer fit. We could, of course, apply them but only at the cost of completely disabling the new analytic capacity. In the current time of threat that seems unlikely. Alternatively, we can abandon privacy altogether, allowing technology to run rampant with no control. That, too, seems unlikely and unwise.
What is needed, then, is a modernized conception of privacy — one with the flexibility to allow effective government action but with the surety necessary to protect against government abuse. Perhaps we can agree on that and begin thinking of privacy rules as both protective and enabling?
Read: Antique Privacy
In another post, I’ll talk about some of the things that Glenn and Julian have said that I actually agree with. In this short first post, however, I want to continue the stylized disagreement.
Julian writes: “More disturbing than the quantitative increase in surveillance Glenn documents — and it is disturbing, when we consider that the sheer number of National Security Letters and FISA warrants issued annually dwarfs any plausible estimate of the number of terror supporters in the United States — are the qualitative and structural shifts in the nature of that surveillance.”
I wonder if he really means to be saying what he seems to be saying. In what world would the number of warrants and NSLs equal the number of terrorist supporters? None that I know of, no more than there is a world where the number of inbound customs inspections doesn’t dwarf the number of suspected customs violators. Julian can’t possibly expect government to use a 1-to-1 ratio of investigative resources to anticipated offenses, can he? To identify who is a terrorist (or a criminal or a civil customs violator or… well, just about anything) we must, of necessity, cast our net widely.
The much more interesting question — the one that Julian doesn’t address — is “how broad is too broad”? In other words, what is the “right” ratio? The reason he doesn’t of course, is that the question of proportionality is almost impossible to answer in this context.
I infer that Julian and Glenn join John Mueller, who is quite well known for his view that the threat from terrorism is wildly overstated. If you think that is the case, then of course you think the current levels of surveillance are disproportionately large.
But is Mueller right? One can certainly say that others think he is not. For example the Commission on the Prevention of Weapons of Mass Destruction concluded that “Unless the world community acts decisively and with great urgency, it is more likely than not that a weapon of mass destruction will be used in a terrorist attack somewhere in the world by the end of 2013.” Graham Allison of Harvard, estimates that “on the current trend line, the chances of a nuclear terrorist attack in the next decade are greater than 50 percent.” Those are pretty grim prospects.
Now, I’d be happy to take the Allison/WMD Commission side of the debate if we wanted to have that discussion. But my point for this short post is much more limited. I don’t have to win the debate, only have my colleagues acknowledge that my view might, just might, be right — that is, that the prospects of such a catastrophe are not implausible.
And if they agree with that point then we come to the crux of my disagreement with Julian and Glenn: In the context of many social problems (most notably global warming, but also a host of other environment, health, and safety contexts) lots of commentators argue in favor of the precautionary principle — that is, the principle that “there is a social responsibility to protect the public from exposure to harm, when scientific investigation has found a plausible risk.”
Shouldn’t we apply the precautionary principle to terrorism as well? And if we should, then isn’t the right answer to err on the side of taking steps to protect the public from the potential for catastrophe?
Read: The Precautionary Principle
I will have a great deal to say in a future post about the legal argument advanced in John Eastman’s contribution to this roundtable, which seeks to cobble together a preclusive presidential power of foreign intelligence surveillance from spit, chicken wire, and dicta. But I want to rebut quickly one particular talking point I’ve seen repeated periodically since the debate over the NSA’s warrantless wiretapping program began five years ago, and which I’ve found particularly irritating because it so clearly inverts the meaning of testimony given by the late Attorney General Griffin Bell during the hearings leading up to the passage of the Foreign Intelligence Surveillance Act (FISA) of 1978. Eastman cites Bell as follows:
Griffin Bell, President Jimmy Carter’s Attorney General, testified during debate in Congress over the adoption of FISA that, although FISA did not recognize any inherent power of the President, it “does not take away the power [of] the President under the Constitution.”
The quotation is accurate enough, but some context is needed to determine precisely what Bell intended. Eastman clearly takes him to mean that the president has a constitutional power to conduct foreign intelligence surveillance that supersedes any statute enacted by Congress, and therefore is not affected by FISA. But there is an obvious alternate reading: that there simply is no preclusive presidential power to conduct domestic surveillance, and therefore no possibility of a conflict with FISA.
Fortunately, we can resolve the ambiguity decisively by referring to Bell’s own prepared testimony from those very hearings:
I would particularly call your attention to the improvements in this bill over a similar measure introduced in the last Congress. First, the current bill recognizes no inherent power of the president to conduct electronic surveillance…. Whereas the bill introduced last year contained an explicit reservation of Presidential power of electronic surveillance within the United States, this bill specifically states that the procedures in the bill are the exclusive means by which electronic surveillance, as defined in the bill, and the interception of domestic wire and oral communications may be conducted.
This really could not be clearer. If Bell had meant to suggest that the Constitution established a core presidential power to conduct electronic surveillance, immune to congressional regulation and therefore unaffected by FISA, then this passage would be utterly unintelligible. How, on that interpretation, could it possibly be an “improvement” to reject any explicit recognition of such inherent power, and instead assert that FISA provided the “exclusive means” for electronic surveillance? On such a reading, after all, Congress could never truly establish the “exclusive means” by which such surveillance might be conducted, since the president would always necessarily retain the constitutional authority to disregard the specified constraints.
Bell’s testimony makes sense only on the second interpretation: FISA does not “take away the power [of] the President under the Constitution” because the president has no preemptive power with which FISA could conflict. He has, at most, discretion to determine how such surveillance ought to be conducted in the absence of congressional direction. I find it telling that this decontextualized quotation has been so widely cited by supporters of Bush’s warrantless wiretapping program when Bell’s own testimony makes it clear beyond reasonable dispute that its intended significance was precisely the opposite of that imputed to it by presidential apologists. It is one thing, after all, to suggest that Bell’s interpretation of presidential powers was mistaken; it is quite another to twist his words so as to turn that interpretation on its head.
Read: The Mythical Griffin
Julian Sanchez draws our attention to the wider picture: The surveillance state extends beyond one or another potentially objectionable program. Its roots are structural, in the ease with which data can be collected and analyzed today. It is and will continue to be very important to get the legal and technological architecture of surveillance right. Creating mechanisms and institutions that safeguard the innocent and prevent abuses of power is an enormous challenge. Even building an abuse-free surveillance state would not do, because we cannot guarantee that it will be managed only by benign administrators.
Read: Architecture Matters
Paul Rosenzweig argues that Glenn Greenwald has underestimated the continued oversight function of Congress, the media, and public-interest watchdog groups. He adds that effectiveness — while difficult to measure — appears to have been reasonably good. He concludes that privacy and civil liberties advocates need to save their fire for genuinely abusive programs, not mere threats or possibilities of abuse.
Read: The Sky Isn’t Falling
John Eastman argues that the U.S. Constitution grants the President the authority to conduct surveillance of national enemies during wartime, including electronic surveillance. The Foreign Intelligence Surveillance Act cannot properly encroach on this power, and in fact it does no such thing. Warrantless wiretaps are therefore both strategically appropriate and constitutional. The nation remains at war, and such measures will remain appropriate at least until the end of hostilities.
Read: Surveillance of Our Enemies During Wartime? I’m Shocked!
In his lead essay, Glenn Greenwald argues that the digital surveillance state is out of control. It intercepts our phone calls, keeps track of our prescription drug use, monitors our email, and keeps tabs on us wherever we go. For all that, it doesn’t appear to be making us safer. Accountability has been lost, civil liberties are disappearing, and the public-private partnerships in this area of government action raise serious questions about the democratic process itself. It’s time we stood up to do something about it.
Read: The Digital Surveillance State: Vast, Secret, and Dangerous
