The Sky Isn’t Falling

Glenn Greenwald paints a grim image of America as a giant “Surveillance State.” But the image simply doesn’t withstand scrutiny. Much as I admire Greenwald’s writings, his pointillist picture of “abuses” and “excesses” is, from my perspective, an inaccurate picture. The idea that Los Angeles will soon be a hotbed of Stasi-like surveillance is just not realistic.

Greenwald’s essay, essentially, makes four interrelated assertions:

  • The degree of surveillance in America is growing;
  • More than is reasonably necessary to protect against terrorism;
  • Without essential oversight; and
  • In a manner that is ineffective even on its own terms.

The first of these assertions is manifestly true, and no sane person would deny it. The second is a value judgment at odds with the opinion of a vast majority of Americans and, in the end, impossible to prove or falsify, though perhaps in the discussion we can debate it. The third and fourth propositions are demonstrably wrong, and are the subject of this brief response.

Oversight Is Robust

Greenwald’s principal complaint is that oversight of surveillance activity is inadequate. It must have been slightly embarrassing to have written that on the same day that the D.C. Circuit demonstrated the robustness of judicial oversight by limiting the use of GPS tracking surveillance systems.

Perhaps Greenwald sees court oversight as separate and apart from other institutions of control — but that would be a mistake. What we have seen, since September 11, is the growth of a robust and complex system of oversight and regulation of surveillance activity with many elements. It includes: courts that are willing to overturn executive branch action; investigative and legislative Congressional activity; the growth of investigative journalism in the blogosphere; the rise of the public interest groups (who are, in effect, the “canary in the mineshaft,” serving as an early warning system of abuse); and a more empowered and aware public.

To cite an example, nobody can doubt the extensive Congressional engagement over the past nine years on issues of surveillance. The Patriot Act has been considered substantively on four separate occasions. Various systems like Total Information Awareness and Secure Flight have been subject to repeated Congressional scrutiny. And with the Intelligence Reform and Terrorism Prevention Act and the Implementing Recommendations of the 9/11 Commission Act, Congress has twice made major substantive revisions to the structures and rules governing surveillance.

Non-governmental oversight is equally robust. I’m not one who views WikiLeaks as a beneficial development. But it would blink reality to deny its effectiveness as a check on governmental activity and to understand that the panoply of oversight ranges from the official to the informal.

Beyond these external mechanisms, Greenwald gives no weight to the truly significant structural changes we have made in internal institutional oversight of surveillance activity. The Department of Homeland Security was created with a statutorily required Privacy Officer (and another Officer for Civil Rights and Civil Liberties), the first of its kind in American history. Now Privacy Officers proliferate in virtually every Federal agency. More recently, Congress created a Civil Liberties Protection Officer within the intelligence community. Inspectors General in the various agencies have been active in their constructive review, with the IG at the Department of Justice being particularly effective. If the Administration were to staff the independent Privacy and Civil Liberties Oversight Board (a failure which I join Greenwald in decrying) it would be a significant further step. Surely Greenwald should at least be willing to acknowledge (if only grudgingly) the utility of these new structures.

Of even greater significance, the very same surveillance systems used to advance our counterterrorism interests are equally well suited to assure that government officials comply with the limitations imposed on them in respect of individual privacy. Indeed, there are already indications that these strong audit mechanisms work quite well. Recall the incident in the last Presidential campaign in which contractors hacked Barack Obama’s passport file. There was no lawful reason to disclose the file; it was done solely for prurient, political reasons. As a result, candidate Obama suffered an adverse consequence of disclosure which had not met any legal trigger that would have permitted the disclosure. The same was true of the Toledo Police Department employees who released “Joe the Plumber’s” tax returns. A strong audit function quickly identified the wrongdoers and allowed punitive action to be taken.

Finally, it is not beneficial to the debate to mischaracterize the precise contours of the law. Greenwald, for example, characterizes the National Security Letters (NSLs) as “the ability to obtain private, invasive records about Americans without the need for any judicial supervision.” But the truth is less scary: Under 18 USC §3511, an NSL recipient may file a petition for review of the NSL in District Court and the court may set aside the NSL request for records if compliance would be unreasonable, oppressive, or otherwise unlawful.

This not-so-small detail shows that Greenwald’s real complaint is not that oversight is lacking. Rather, he considers the level of oversight insufficient. It seems he wants NSLs to be subject to some form of relevancy requirement, just as grand jury subpoenas are, or perhaps a notice requirement. Those are reasonable positions to take – though I wouldn’t take them. But to leap from there to an overwrought condemnation of the America as a “Surveillance State” simply leaps too far. While reasonable minds can disagree, Greenwald seems to think that any disagreement with his concerns is “dangerous” and unreasonable.

Effectiveness

Greenwald’s other argument is that the system simply does not work. That would be a powerful indictment of our efforts, were it true. Thankfully, it is not.

To be sure, it is difficult to discern successes for surveillance techniques when those successes often occur in a classified domain. Rare is the case where a catalog of successes is declassified, as former DHS Secretary Chertoff did in May 2007.

But a careful observer can detect the outlines of other intelligence successes based on surveillance in recent events. When David Headley was arrested for allegedly seeking to commit terrorist acts in Denmark, news reports suggested that one of the key factors in his identification was his pattern of travel to the Middle East and his efforts to conceal those trips from the government. Review of his travel both provided the trigger to ask questions and the factual cross-check on the veracity of his answers. Likewise, when Najibullah al-Zasi was arrested, one factor that was publicly disclosed as a ground for suspicion was surveillance of his travel to Pakistan. And surveillance tapes from a shopping center in Bridgeport, Conn., played a modest role in the hunt for failed Times Square bomber Faisal Shahzad.

It is difficult to be certain how effective our surveillance efforts are, and Greenwald is right that the flood of data is increasing, not decreasing. But the evidence in the public record doesn’t support a claim that the surveillance we undertake is ineffective.

To be sure, failures result when our surveillance techniques are used ineffectively. That was the case with the 2009 Christmas bomb plot. Not only was Umar Farouk Abdulmutallab’s name provided by his father, but the gathered evidence suggests that other, less specific NSA intercepts existed that might have generated a suspicion of Nigerian travelers. Add in his reported purchase of a cash ticket and the alleged rejection of his visa application by the U.K., and the case seems to be the precise sort of concatenation of facts which, individually, amount to little but, collectively, paint a more cautionary picture. Greenwald is correct to portray this as a failure.

But even this complaint of ineffectiveness rings hollow. Opposition to data analytical techniques of the sort that would have made sense of the Abdulmutallab information has been a hallmark of privacy lobby. Programs like Secure Flight have languished because of opposition from privacy advocates who should not now be heard to condemn the ineffectiveness of the systems they have worked so hard to hobble. Though Greenwald would surely disagree, one answer to the ineffectiveness claim is more and better analytical techniques, not abandonment of the essential enterprise.

The Sky Is Not Falling

Finally, two other points are worth making to highlight matters of real concern.

First, Greenwald’s critique would be far more persuasive if it were offered in a more even-handed manner, with an internationalist perspective. 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. And yet, Greenwald seems to think that concern over Chinese activity is nothing more than an effort to distract Americans from what they should really be concerned about – American abuses. That kind of false moral equivalence drains his critique of much of its persuasive value.

But even more troubling, I fear that Greenwald’s “the sky is falling” approach to surveillance will inevitably lead the public to disregard his complaints. As his essay makes clear, his concerns are held only by a minority of Americans. As efforts to portray America as a “Surveillance State” grow shriller, the disregard for those efforts will only grow deeper — and that would be a shame. Real abuses — like MKUltra, not the hypothetical ones that Greenwald posits — have happened in the past. I don’t want Americans to simply ignore alarms about real abuses in the future because they’ve grown inured to the sound of the siren.

Also from This Issue

Lead Essay

  • The Digital Surveillance State: Vast, Secret, and Dangerous by Glenn Greenwald

    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.

Response Essays

  • Surveillance of Our Enemies During Wartime? I’m Shocked! by John Eastman

    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.

  • Architecture Matters by Julian Sanchez

    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.

The Conversation