Editor's Note


About this Issue

In the years since September 11, 2001, the secret digital surveillance state has grown enormously. Although determining its precise outlines would obviously be impossible, a steady stream of leaks, hints, and public admissions has allowed us to trace its rise. By all accounts it has been astronomical. Given heightened security measures, heightened anxiety, and cheaper-than-ever data collection and storage, such growth was perhaps inevitable.

But what are the proper limits on the secret collection of information? Where do our constitutionally guaranteed civil liberties stand in this new era? Do the federal government’s increased powers of surveillance even accomplish the security tasks at hand?

Constitutional lawyer and columnist Glenn Greenwald argues this month that the digital surveillance state is out of control. It’s also failed to deliver on its promises of greater security. Rather than helping to find the needle in the haystack, we have only made the haystack bigger. In our new digital surveillance state, no one wins, except perhaps defense contractors.

Commenting on Greenwald’s essay will be Professor John Eastman, formerly of Chapman University Law School; Paul Rosenzweig, now of the Heritage Foundation and formerly Deputy Assistant Secretary for Policy in the Department of Homeland Security; and the Cato Institute’s own Julian Sanchez, a prolific journalist on the interface of technology and civil liberties.

As always, Cato Unbound readers are encouraged to take up our themes, and enter into the conversation on their own websites and blogs, or on other venues. Trackbacks are enabled. We also welcome your letters. Send them to jkuznicki at cato.org.

Lead Essay

The Digital Surveillance State: Vast, Secret, and Dangerous

It is unsurprising that the 9/11 attack fostered a massive expansion of America’s already sprawling Surveillance State. But what is surprising, or at least far less understandable, is that this growth shows no signs of abating even as we approach almost a full decade of emotional and temporal distance from that event. The spate of knee-jerk legislative expansions in the immediate aftermath of the 9/11 trauma—the USA PATRIOT Act—has actually been exceeded by the expansions of the last several years—first secretly and lawlessly by the Bush administration, and then legislatively and out in the open once Democrats took over control of the Congress in 2006. Simply put, there is no surveillance power too intrusive or unaccountable for our political class provided the word “terrorism” is invoked to “justify” those powers.

The More-Surveillance-Is-Always-Better Mindset

Illustrating this More-Surveillance-is-Always-Better mindset is what happened after The New York Times revealed in December, 2005 that the Bush administration had ordered the National Security Agency to eavesdrop on American citizens without the warrants required by law and without any external oversight at all. Despite the fact that the 30-year-old FISA law made every such act of warrantless eavesdropping a felony, “punishable by a fine of not more than $10,000 or imprisonment for not more than five years, or both,” and despite the fact that all three federal judges who ruled on the program’s legality concluded that it was illegal, there was no accountability of any kind. The opposite is true: the telecom corporations which enabled and participated in this lawbreaking were immunized by a 2008 law supported by Barack Obama and enacted by the Democratic Congress. And that same Congress twice legalized the bulk of the warrantless eavesdropping powers which The New York Times had exposed: first with the 2007 Protect America Act, and then with the 2008 FISA Amendments Act, which, for good measure, even added new warrantless surveillance authorities.

Not even revelations of systematic abuse can retard the growth of the Surveillance State or even bring about some modest accountability. In 2007, the Justice Department’s own Inspector General issued a report documenting continuous abuses by the FBI of a variety of new surveillance powers vested by the Patriot Act, particularly the ability to obtain private, invasive records about Americans without the need for any judicial supervision (via so-called “National Security Letters” (NSLs)). The following year, FBI Director Robert Mueller confirmed ongoing abuses subsequent to the time period covered by the initial IG report.

Again, the reaction of the political class in the face of these revelations was not only to resist any accountability but to further expand the very powers being abused. When then-candidate Obama infuriated many of his supporters in mid-2008 by announcing his support for the warrantless–surveillance expanding FISA Amendments Act, he assured everyone that he did so “with the firm intention—once [he’s] sworn in as President—to have [his] Attorney General conduct a comprehensive review of all our surveillance programs, and to make further recommendations on any steps needed to preserve civil liberties and to prevent executive branch abuse in the future.”

Not only has nothing like that occurred, but Congress has twice brushed aside the privacy and abuse concerns about the Patriot Act highlighted by the DOJ’s own report and long raised by Senator Russ Feingold. They did so when voting overwhelmingly to extend the provisions of that law unchanged: first in 2006 by a vote of 89-10, and again this year—with the overt support of the Obama administration—when it once again extended the Patriot Act without even a single added oversight protection. Even after The New York Times in 2009 twice revealed substantial and serious abuses in the very warrantless eavesdropping powers which Obama voted to enact, the administration and the Congress show no interest whatsoever in imposing any added safeguards. The logic of the Surveillance State is that more is always better: not just more powers, but in increasingly unchecked form.

And this is to say nothing of the seemingly more mundane, though still invasive, surveillance powers which receive little attention. When Seung-Hui Cho went on a shooting rampage at Virginia Tech in 2007, this passage appeared buried in an ABC News report on the incident: “Some news accounts have suggested that Cho had a history of antidepressant use, but senior federal officials tell ABC News that they can find no record of such medication in the government’s files.” Such “files” are maintained through a 2005 law which, the Government claims, authorizes it to monitor and record all prescription drug use by all citizens via so-called “Prescription Drug Monitoring Programs.” And there is a slew of other under-discussed surveillance programs whereby the U.S. government stores vast data on our private activities: everything from every domestic telephone call we make to “risk assessment” records based on our travel activities. A bipartisan group of Senators is currently promoting mandated “biometric ID cards” for every American as a purported solution to illegal immigration.

Not only has Obama, in the wake of this massive expansion, blocked any reforms, he has taken multiple steps to further expand unaccountable and unchecked surveillance power. For the last year, the Obama Justice Department has been trying to convince federal courts to extend its warrantless surveillance powers beyond even what the Patriot Act provides to encompass private email and Internet browsing records, a position which would allow the FBI and other federal agencies to acquire email and browsing records of American citizens—including those who are not suspected of any wrongdoing—without any warrants or judicial supervision of any kind. With defeat in the courts appearing likely, it was recently revealed by The Washington Post that the administration is agitating for Congressional action to amend the Patriot Act to include such Internet and browsing data among the records obtainable by NSLs.

Blocking Even Modest Safeguards

Worse still, Obama has all but single-handedly prevented additional oversight mechanisms on the intelligence community by threatening to veto even the modest oversight proposals favored by the House Democratic leadership. That veto threat just resulted in the removal of such mechanisms by the Senate Intelligence Committee from the latest rendition of the Intelligence Authorization Act. As Time’s Massimo Calebresi recently reported, these reforms would merely have required the Executive Branch to notify the full House and Senate Intelligence Committees “when they launch any covert action or other controversial program,” as well as vest those Committees with “the power to task the Government Accountability Office (GAO) with auditing any intelligence program” to ensure compliance with the law.

What makes Obama’s vehement opposition even to these mild safeguards so striking is that this lack of oversight was one of the principal weapons used by the Bush administration to engage in illegal intelligence activities. The Bush administration, at best, would confine its briefings to extremely vague information disseminated only to the so-called “Gang of Eight”—comprised of 8 top-ranking members of the House and Senate—who were impeded by law and other constraints from taking any action even if they learned of blatantly criminal acts.

That’s what makes the current oversight regime a sham process: it allows the administration to claim that it “briefed” selected Congressional leaders on illegal surveillance programs, but do so in a way that ensures there could be no meaningful action or oversight, because those individuals are barred from taking notes or even consulting their staff and, worse, because the full Intelligence Committees are kept in the dark and thus could do nothing even in the face of clear abuses. The process even allows the members who were briefed on illegal surveillance activities to claim they were powerless to stop illegal programs—which is exactly the excuse Democratic Senators who were briefed on the illegal NSA program invoked to justify their inaction.

Here’s how Richard Clarke explained the current “oversight” regime in July, 2009, on The Rachel Maddow Show:

MADDOW: Do you think that the current system, the gang of eight briefing system, allows the CIA to be good at spying and to be doing their work legally?

CLARKE: I think briefings of the gang of eight, those very sensitive briefings, as opposed to the broader briefings—the gang of eight briefings are usually often a farce. They catch them alone, one at the time usually. They run some briefing by them.

The congressman can’t keep the briefing. They can’t take notes. They can’t consult their staff. They don’t know what the briefings are about in advance. It’s a box check so that the CIA can say it complied with the law. It’s not oversight. It doesn’t work.

And yet, the more surveillance abuse and even lawbreaking is revealed, the more emphatic is Executive Branch opposition to additional safeguards and oversights, let alone to scaling back some of those powers.

Thus, even when our National Security State gets caught red-handed breaking the law or blatantly abusing its powers, the reaction is to legalize their behavior and thus further increase their domestic spying authority. Apparently, eight years of the Bush assault on basic liberties was insufficient; there are still many remaining rights in need of severe abridgment in the name of terrorism. It never moves in the other direction: toward a reeling in of those post 9/11 surveillance authorities or at least the imposition of greater checks and transparency. The Surveillance State not only grows inexorably, but so does the secrecy and unaccountability behind which it functions.

The results of this mindset are as clear as they are disturbing. Last month’s three-part Washington Post series, entitled “Top Secret America,” provided a detailed picture of what has long been clear: we live under a surveillance system so vast and secretive that nobody—not even those within the system—knows what it does or how it functions. Among the Post’s more illustrative revelations: “Every day, collection systems at the National Security Agency intercept and store 1.7 billion e-mails, phone calls and other types of communications.” To call that an out-of-control, privacy-destroying Surveillance State is to understate the case.

More Surveillance, Less Safety

What makes this leviathan particularly odious is that it does not even supply the security which is endlessly invoked to justify it. It actually does the opposite. As many surveillance experts have repeatedly argued, including House Intelligence Committee member Rush Holt, the more secret surveillance powers we vest in the government, the more unsafe we become. Cato’s Julian Sanchez put it this way: “We’ve gotten so used to the ‘privacy/security tradeoff’ that it’s worth reminding ourselves, every now and again, that surrendering privacy does not automatically make us more secure—that systems of surveillance can themselves be a major source of insecurity.”

That’s because the Surveillance State already collects so much information about us, our activities and our communications—so indiscriminately and on such a vast scale—that it is increasingly difficult for it to detect any actual national security threats. NSA whistle blower Adrienne Kinne, when exposing NSA eavesdropping abuses, warned of what ABC News described as “the waste of time spent listening to innocent Americans, instead of looking for the terrorist needle in the haystack.” As Kinne explained:

By casting the net so wide and continuing to collect on Americans and aid organizations, it’s almost like they’re making the haystack bigger and it’s harder to find that piece of information that might actually be useful to somebody. You’re actually hurting our ability to effectively protect our national security.

As the Post put it in its “Top Secret America” series:

The NSA sorts a fraction of those [1.7 billion e-mails, phone calls and other types of daily collected communications] into 70 separate databases. The same problem bedevils every other intelligence agency, none of which have enough analysts and translators for all this work.

That article details how ample information regarding alleged Ft. Hood shooter Nidal Hassan and attempted Christmas Day bomber Umar Abdulmutallab was collected but simply went unrecognized. Similarly, The Washington Post’s David Ignatius previously reported that Abdulmutallab was not placed on a no-fly list despite ample evidence of his terrorism connections because information overload “clogged” the surveillance system and prevented its being processed. Identically, Newsweek’s Mike Isikoff and Mark Hosenball documented that U.S. intelligence agencies intercept, gather and store so many emails, recorded telephone calls, and other communications that it’s simply impossible to sort through or understand what they have, quite possibly causing them to have missed crucial evidence in their possession about both the Fort Hood and Abdulmutallab plots:

This deluge of Internet traffic—involving e-mailers whose true identity often is not apparent—is one indication of the volume of raw intelligence U.S. spy agencies have had to sort through … . The large volume of messages also may help to explain how agencies can become so overwhelmed with data that sometimes it is difficult, if not impossible, to connect potentially important dots.

As a result, our vaunted Surveillance State failed to stop the former attack and it was only an alert airplane passenger who thwarted the latter. So it isn’t that we keep sacrificing our privacy to an always-growing National Security State in exchange for greater security. The opposite is true: we keep sacrificing our privacy to the always-growing National Security State in exchange for less security.

The Privatization of the Surveillance State

Perhaps the most disturbing aspect of our mammoth Surveillance State is that the bulk of its actions are carried out not by shadowy government agencies, but by large private corporations which are beyond the reach of democratic accountability. At this point, perhaps it’s more accurate to view the U.S. Government and these huge industry interests as one gigantic, amalgamated, inseparable entity—with a public division and a private one. In every way that matters, the separation between government and corporations is nonexistent, especially (though not only) when it comes to the Surveillance State. Indeed, so extreme is this overlap that when Michael McConnell was nominated to be Bush’s Director of National Intelligence after serving for a decade as Vice President of Booz Allen (prior to which he was head of the NSA under Bush 41 and Clinton), he told The New York Times that his ten years of working “outside the government,” for Booz Allen, would not impede his ability to run the nation’s intelligence functions. That’s because his Booz Allen work was indistinguishable from working for the government, and therefore—as he put it—being at Booz Allen “has allowed me to stay focused on national security and intelligence communities as a strategist and as a consultant. Therefore, in many respects, I never left.

As the NSA scandal revealed, private telecom giants and other corporations now occupy the central role in carrying out the government’s domestic surveillance and intelligence activities—almost always in the dark, beyond the reach of oversight or the law. As Tim Shorrock explained in his definitive 2007 Salon piece on the relationship between McConnell, Booz Allen, and the intelligence community, in which (to no avail) he urged Senate Democrats to examine these relationships before confirming McConnell as Bush’s DNI: “[Booz Allen’s] website states that the Booz Allen team ‘employs more than 10,000 TS/SCI cleared personnel.’ TS/SCI stands for top secret-sensitive compartmentalized intelligence, the highest possible security ratings. This would make Booz Allen one of the largest employers of cleared personnel in the United States.”

As the Post series documented, private contractors in America’s Surveillance State are so numerous and unaccountably embedded in secret government functions that they are literally “countless”:

Making it more difficult to replace contractors with federal employees: The government doesn’t know how many are on the federal payroll. Gates said he wants to reduce the number of defense contractors by about 13 percent, to pre-9/11 levels, but he’s having a hard time even getting a basic head count.

“This is a terrible confession,” he said. “I can’t get a number on how many contractors work for the Office of the Secretary of Defense,” referring to the department’s civilian leadership.

In sum, the picture that emerges from the Post series is that we have a Secret Government of 854,000 people, so vast and so secret that nobody knows what it does or what it is. That there is a virtually complete government/corporate merger when it comes to the National Security and Surveillance State is indisputable: “Private firms have become so thoroughly entwined with the government’s most sensitive activities that without them important military and intelligence missions would have to cease or would be jeopardized.”

As little oversight as Surveillance State officials have, corporate officials engaged in these activities have even less. Relying upon profit-driven industry for the intelligence community’s “core mission” is to ensure that we have Endless War and an always-expanding Surveillance State. After all, the very people providing us with the “intelligence” that we use to make decisions are the ones who are duty-bound to keep this Endless War and Surveillance Machine alive and expanding because, as the Post put it, they are “obligated to shareholders rather than the public interest.” The Surveillance State thus provides its own fuel and own rationale to ensure its endless expansion, all while resisting any efforts to impose transparency or accountability on it.

And as we acquiesce to more and more sacrifices of our privacy to the omnipotent Surveillance State, it builds the wall of secrecy behind which it operates higher and more impenetrable, which means it constantly knows more about the actions of citizens, while citizens constantly know less about it. We chirp endlessly about the Congress, the White House, the Supreme Court, the Democrats and Republicans, but this is the Real U.S. Government: a massive Surveillance State functioning in darkness, beyond elections and parties, so secret, vast and powerful that it evades the control or knowledge of any one person or even any organization.

Response Essays

Surveillance of Our Enemies During Wartime? I’m Shocked!

Reading Glenn Greenwald’s lead essay, “The Digital Surveillance State: Vast, Secret, and Dangerous,” I could not help but recall a visit to my great aunt a quarter century ago. She showed me a shoe box of old World War I letters sent home from the front in France by my grandfather, who was then serving as an ambulance driver in the American Expeditionary Force. The letters — from a U.S. soldier home to his mother and sister — had been cut up by U.S. military censors like paper dolls, lest they inadvertently fall into enemy hands and unwittingly reveal some minor tactical detail about … the ambulance corps! I’ve not confirmed it yet, but I seriously doubt that the censors obtained a warrant before intercepting my grandfather’s letters or taking the scissors to them.

Nor did they need to. Contrary to popular perception, fed by erroneous claims from the law professoriate and punditry, the Fourth Amendment does not require a warrant before any search or seizure can be undertaken. It simply requires that the search or seizure be “reasonable,” and while warrants are the peacetime norm for “reasonableness” (and even then, there are exceptions), they are not the norm in wartime. This most basic fact of war seems entirely lost on Greenwald.

Not once in his article does Greenwald even acknowledge that we are at war with a global enemy bent on destroying us. He does refer to 9/11 as an “attack,” but later describes it as a “trauma,” as if it were some multi-car highway accident that overloaded the local emergency rooms. Most tellingly, he describes Congress’s efforts to kick U.S. surveillance into high gear after the 9/11 attack as “knee-jerk,” and bemoans the fact that our surveillance efforts have not abated “even as we approach almost a full decade of emotional and temporal distance from that event.” Greenwald seems not to understand that the trigger date for a reduction in wartime surveillance efforts should be the conclusion of the war, not its onset! I will be more than happy to join Mr. Greenwald in expressing concern about our surveillance efforts if they are still in place ten years (or even one or two years) after the war ends, but I’d like to see us first defeat the enemy who would destroy us before unilaterally dismantling our efforts in the single most important front of this asymmetrical war.

Greenwald’s extremely flawed (and dangerous) mindset discolors the rest of his analysis, and I want to focus on his legal claims. They are numerous, but they all tee off a single contention, that the Bush administration’s surveillance efforts were “lawless,” and that when they were disclosed, Congress “legalized” them rather than repudiating them. The evidence for the “lawless” charge? Two federal district court judges (Judge Anna Diggs Taylor and Judge Vaughn Walker — yes, the same Vaughn Walker that just held California’s traditional marriage law unconstitutional) and an appellate court judge (Judge Ronald Gilman, writing in dissent!) have said so.

Judge Taylor’s laughably simplistic and erroneous decision has already been reversed on appeal, and Judge Walker’s is pending appeal, with the Obama administration vigorously challenging its holding. But even if that holding is upheld, it stands simply for the proposition that the surveillance program violated the Foreign Intelligence Surveillance Act (“FISA”). It does not resolve the following much more difficult questions: 1) whether the Authorization for the Use of Military Force (“AUMF”), Pub. L. No. 107-40, § 2(a), 115 Stat. 224, 224 (Sept. 18, 2001), passed by Congress one week after 9/11, gave authority to the President beyond that conveyed in FISA; and if it did not, 2) whether Congress’s attempt with FISA to curtail the President’s Commander-in-Chief powers, if applied in wartime, is constitutional.

On the former, the Supreme Court has already held that another federal statute — the Anti-Detention Act of 1971 — was superseded by the AUMF because detention of enemy combatants is a well-established incident of military authority in time of war. See Hamdi v. Rumsfeld, 542 U.S. 507, 518 (2004). Surely surveillance of enemy communications, which is what the NSA Surveillance program targeted, equally qualifies as a well-established incident of military authority in time of war.

But even absent the authority granted by Congress to the President under the AUMF, the President has authority of his own directly from Article II of the Constitution, authority that cannot be restricted by an Act of Congress. The open question is whether the ability to conduct surveillance of enemy communications during time of war, even if one end of those communications is within the borders of the United States, is part of the President’s constitutional authority. Existing Supreme Court precedent in analogous contexts strongly suggests that it is, and an intermediate appellate court decision dealing specifically with FISA expressly so states.

Here’s the ruling by the highest court to have considered the issue, directly on point: “We take for granted that the President does have [inherent authority to conduct warrantless searches to obtain foreign intelligence information], and, assuming that is so, FISA could not encroach on the President’s constitutional power.” In re Sealed Case, 310 F.3d 717 (U.S. Foreign Intell. Surveillance Ct. Rev. 2002) (emphasis added). As I elaborated upon in my 2006 testimony before the U.S. House of Representatives Permanent Select Committee on Intelligence, and again in my 2007 testimony before the U.S. Commission on Civil Rights, the point that the FISA Court of Review took for granted is well-grounded in Supreme Court precedent, in such cases as United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 319 (1936) (“[t]he President is the sole organ of the nation in its external relations,” “and Congress itself is powerless to invade” the President’s constitutional authority in that realm), United States v. Reynolds, 345 U.S. 1, 10 (1953) (upholding government’s claim of privilege to prevent disclosure of classified information about military electronics equipment), and United States v. Ramsey, 431 U.S. 606 (1977) (upholding warrantless searches of mail at the border and even at a postal facility inside the border, as an exercise of inherent sovereign power).

Congress itself recognized in the AUMF that the President has inherent authority, when it noted that “the President has authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States … .” AUMF, Preamble, PL 107-40, 115 Stat. 224 (Sept. 18, 2001) (emphasis added). The AUMF preamble also reflects the view of Congress prior to the adoption of FISA, when it expressly recognized the “constitutional power of the President to take such measures as he deems necessary to protect the Nation against actual or potential attack …, [and] to obtain foreign intelligence information deemed essential to the security of the United States… .” 82 Stat. 214, formerly codified at 18 U.S.C. § 2511(3) (emphasis added).

Every presidential administration since electronic surveillance technology was developed has taken the same view. Indeed, the notion that Congress cannot by mere statute truncate powers the President holds directly from the Constitution is a common feature of executive branch communications with the Congress. Two examples from a thorough and persuasive 2006 report from the Department of Justice entitled “Legal Authorities Supporting the Activities of the National Security Agency Described by the President” (“DOJ Report”), are particularly revealing. 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.” DOJ Report at 8 (citing Foreign Intelligence Electronic Surveillance Act of 1978: Hearings on H.R. 5764, H.R. 9745, H.R. 7308, and H.R. 5632 Before the Subcomm. on Legislation of the House Comm. on Intelligence, 95th Cong., 2d Sess. 15 (1978) (Statement of Attorney General Bell)). And President Clinton’s Deputy Attorney General, Jamie Gorelick, made a similar point while testifying before Congress when amendments to FISA were being considered in 1994: “[T]he Department of Justice believes, and the case law supports, that the President has inherent authority to conduct warrantless physical searches for foreign intelligence purposes … .” DOJ Report at 8 (citing “Amending the Foreign Intelligence Surveillance Act: Hearings Before the House Permanent Select Comm. On Intelligence, 103d Cong. 2d Sess. 61 (1994) (statement of Deputy Attorney General Jamie S. Gorelick)). An equally compelling historical analysis, elaborating on the longstanding recognition of presidential power in wartime, was published by Cato’s own Roger Pilon in the 2009 Chapman Law Review. I commend that work to Greenwald’s attention as well.

In his dissenting opinion in Terminiello v. Chicago, 337 U.S. 1, 37 (1949), Justice Robert Jackson famously warned of the “danger that, if the court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact.” Nowhere is that warning more appropriate than in wartime, and arguably at no time in our nation’s history has it been more urgent than now.

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.


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.

Architecture Matters

In an astonishing New York Times op-ed last week, former homeland security advisor Richard Falkenrath greeted news of a technology ban announced by the rulers of the United Arab Emirates with “approval, admiration and perhaps even a touch of envy.” In the name of national security, the UAE—soon to be mimicked by Saudi Arabia and India, among others—was threatening to limit the use of Blackberry mobile devices unless their Canadian manufacturer, Research in Motion (RIM), agreed to restructure their secure network to allow the government easier access to encrypted messages.

Of course, the Emirates had their own conception of what counts as “national security”: The announcement came mere weeks after the arrest of Badr Ali Saiwad Al Dhohori, an 18-year-old activist who had been using BlackBerry’s Messenger service to plan a (canceled) protest against rising gas prices. Indeed, for those familiar with encryption technology, it was hard to see the proposed BlackBerry bans as a useful anti-terror measure: Committed criminals and jihadists would have no difficulty securing their communications with freely available software that could be installed on any number of laptops or smartphones—and would have advance warning not to rely on the security provided by RIM’s network.

But the proposed ban soon led RIM to agree to accommodate a number of authoritarian regimes known to practice pervasive monitoring and filtering of the Internet as a means of political and social control. The message was delivered loud and clear to its real targets: Ordinary BlackBerry users who might have incidentally benefited from the network’s security, but lacked the resources, commitment, and technical savvy of criminals and terrorists.

The BlackBerry controversy helps to illustrate why perhaps the most frequently invoked metaphor—one might say cliché—in surveillance studies is the Panopticon, a prison designed for total, centralized surveillance, first designed by the English political philosopher Jeremy Bentham but popularized by French theorist Michel Foucault. The significance of the Panopticon for our purposes is that it is an explicitly architectural metaphor: It exerts a structural disciplinary power that extends far beyond the individual acts of observation it enables. Ideally, the warders can put up their feet and watch Seinfeld reruns all day, trusting that it will be enough for the prisoners to be aware that someone always could be watching them. A group of academics and journalists who brought a lawsuit challenging the NSA’s warrantless wiretapping program in 2006 alleged that just such a “chilling effect” was afflicting their communication with foreign sources.

I mention this because it highlights my lone point of agreement with the critics of Glenn Greenwald’s masterful—though, depressingly, far from comprehensive—summary of the explosive growth of American surveillance since 9/11. For it is, as Paul Rosenzweig argues, a “pointillist” portrait that emphasizes particular “abuses” and “excesses.” And this really does risk missing the forest for the trees—though pace Rosenzweig, I believe that if anything it understates the potential problems with the burgeoning surveillance state. More disturbing than the quantitative increase in surveillance Greenwald 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.

Some of those qualitative changes are themselves driven by increases in the quantity of surveillance requests. A Sprint executive captured by security researcher Christopher Soghoian at last year’s ISS World surveillance conference explained how his firm was dealing with a growing number of demands from law enforcement:

[M]y major concern is the volume of requests. We have a lot of things that are automated but that’s just scratching the surface. One of the things, like with our GPS tool. We turned it on the web interface for law enforcement about one year ago last month, and we just passed 8 million requests. So there is no way on earth my team could have handled 8 million requests from law enforcement, just for GPS alone. So the tool has just really caught on fire with law enforcement. They also love that it is extremely inexpensive to operate and easy, so, just the sheer volume of requests they anticipate us automating other features, and I just don’t know how we’ll handle the millions and millions of requests that are going to come in.

Debates about surveillance policy typically focus on the formal legal constraints on government monitoring, but physical and technological architecture are often as important determinants of the real scope of surveillance in practice — a point pithily summed up by Lawrence Lessig’s maxim that “code is law.” Consider, as a thought experiment, the difference between a society in which police may, pursuant to some legal process, install cameras and microphones in private homes, and a society in which, pursuant to precisely same process, they may activate the cameras and microphones required to be installed in all homes.

The plummeting cost of data storage, the increasing ubiquity of network communications, and the vastly increased capacity of law enforcement to fruitfully analyze “transactional data” subject to far more anemic protections than the contents of communications all combine to make an extraordinary degree of monitoring both more feasible and more attractive to investigators, even holding constant the legal framework within which that monitoring occurs. A few decades ago, intelligence agents might have found it convenient to compare a list of everyone reading unsavory publications with a list of people who share group memberships with a suspicious number of subjects already under investigation—but they would have had no practical way of doing so. Now it is not only feasible, but inundated telecom providers and profit-seeking contractors are racing to find plug-and-play solutions that make the process ever cheaper and easier.

There’s also ample evidence suggesting that individualized, subject-based monitoring of communications themselves is yielding to a broader algorithmic approach that seeks to monitor entire data streams. John Yoo, who wrote the (now repudiated) memoranda providing the legal basis for the NSA wiretapping program, for example, has described a system in which “computers are initially searching through communications first and only bringing correlations to the attention of a human, to a security officer when there’s a certain level of confidence that they might involve terrorism.” Where once we identified targets and then looked for suspicious behavior or incriminating communications, the “new” approach—whose closest precedent may be the NSA’s scandalous SHAMROCK program uncovered by the Church Committee’s investigations in the 1970s—involves monitoring behavior patterns and communications streams in search of targets.

To the extent that intelligence surveillance has been moving to this model, it is a mistake to view (for instance) the explosion in the use of National Security Letters to acquire transactional data as a separate concern from legislation authorizing broad “programs” of surveillance or “roving” wiretap warrants that specify neither an individual target nor a particular communications facility to be monitored. These are complementary pieces of a broader investigatory strategy geared toward identifying targets.

I’ll have more—much more—to say about the specific empirical and legal arguments raised by our discussants as the conversation continues here. But the crucial macro-level point I’d like us to bear in mind is that the architectural shift in surveillance is potentially much more significant than a temporary spike in the number of warrants or NSLs issued over the past decade. History provides abundant proof that this sort of large-scale monitoring, even when undertaken for initially legitimate purposes, invites abuse. And perhaps still more worrying, even in the absence of such abuse, the scope of state control is in myriad ways a function of what James C. Scott, in his seminal Seeing Like a State, has dubbed the “legibility” of populations. Surveillance infrastructures and databases built for benign purposes tend to persist even when their administrators cease to be benign.

The Conversation

The Mythical Griffin

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.

The Precautionary Principle

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?

Antique Privacy

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?

The Surveillance State Thrives on Fear

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”):

Surveillance Societies

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?