May 062014

I’m going to reiterate one of the major reasons why I oppose the government’s bulk suspicionless domestic surveillance programs revealed by Edward Snowden and others. I’m talking about something different but inseparable from important issues of constitutionality, statutory legality, effectiveness, and intrusiveness that are debated almost ad nauseam among lawyers, journalists, politicians, and nat sec personnel.

I’m talking about context. The context of the erosion of the rule of law.

It matters to me that this surveillance has been initiated and concealed in the context of a so-called “war on terror” that has already precipitated many other reprehensible government behaviors that even many defenders of the NSA’s programs are reluctant to defend.

When I consider these other government actions, such as the Iraq war and the manipulative public relations campaign (lies) waged by the executive branch in preparation for that war, and when I consider the regimes of indefinite detention and assassination-by-drone embraced by both the Bush and Obama administrations and subjected to essentially zero public oversight, I am much less likely to believe that the government will not abuse these surveillance powers that it now claims are so necessary to protect us from terrorists.

If the overall context of these domestic surveillance revelations was one in which the rule of law was held in high esteem and scrupulously observed, things might be different. But instead, consider the context in which we actually find ourselves: apart from specific instances of flagrant disregard for the rule of law (see e.g. the disgraces at Abu Ghraib and the lawyerly cover-up that featured Jay Bybee’s torture memos, the legal embarrassments perpetuated by John Yoo, and the immediate rejection by the newly-elected Obama administration of any suggestion that anyone who played fast-and-loose with the law under the G.W. Bush administration should be made to answer for themselves, let alone pay any actual penalties), we are told that since we are “at war” that that the rules are different.

Specifically, that since Congress passed the AUMF, we are told that the executive branch is now operating not under a peacetime legal regime, but under some vague “wartime” regime that grants it much more leeway, but that remains ill-defined and which continues to rely almost continuously on post-hoc legal justifications and concealment of its actions from the public. We are not told why Barack Obama authorizes drone strikes that routinely kill people in Pakistan. Never mind that we have not declared war on Pakistan (or on Yemen, where we also repeatedly assassinate people with drones). Never mind that the identity of the killed is often kept secret (they were “militants”) in the face of routine allegations by third parties that many of the people killed were civilians. Forget about Abdulrahman Al-Awlaki. Forget about the detainees in Guantanamo and about the likely fact that they’ve been tortured and the known fact that they’re being held indefinitely. Focus instead on this pseudo-wartime legal regime that we all seem to take for granted.

When will we know when it ends? When will “terror” be defeated? When will be able to return to the peacetime, constitutionally-governed legal regime that would presumably require far more transparency and inter-branch checks on executive power than what we’ve seen since the AUMF? Answer: we don’t have a fucking clue.

And that’s why I don’t have faith or trust in the NSA, the FBI, or the government in general that it won’t abuse the historically unprecedented regime of bulk suspicionless surveillance that we are asked to accept in the name of this vague “war” on terror.

Faith and trust, I admit, are idiosyncratic emotions, and the defenders of the NSA can choose for themselves to trust, to believe, and to hope for a better future through unleashing the benevolent powers of people like John Brennan and the rest of the Obama administrations nat sec apparatus.

But that seems a bit too credulous for me. I like the rule of law and I want it back.

If you like the current surveillance regime and want to keep it, repeal the AUMF and disclaim any pretentions to some vague “wartime” legal regime. If you like the AUMF and think we’re still at “war”, then don’t try to defend secret blanket surveillance by arguing that it’s all legal under statutes and the Constitution — why would you need to? It’s war, bud, and the only real crime in war is to lose.

Postscript: I would appreciate not distracting ourselves with debates about the character or motivations of Glenn Greenwald or Edward Snowden — irrelevant! We’ll stipulate if you wish that both are smelly turds! Now let’s focus on the questions at hand and move on!

And let’s focus for a few moments on the rule of law in this country, not on Vladimir Putin or on what happens in Russia — irrelevant! Putin is a he-man dictator who is 1000 times more masculine than Obama! So stipulated! Move on!

Jan 182014

Should reporter James Risen have to testify in the government’s criminal case against former CIA agent Jeffrey Sterling? Law professor Eric Posner thinks that he should.

Sterling is accused of leaking confidential information about a botched CIA plot to sabotage an Iranian nuclear reactor, and is suspected of being a source for a chapter in Risen’s book. If the government can compel Risen to testify that Sterling was his source, Sterling will almost certainly be convicted, and reporters like Risen will almost certainly find fewer people willing to talk to them about confidential information. This is one reason why Risen is so reluctant to testify — his work as an investigative reporter depends heavily on his promise to sources that he won’t reveal their identities. Risen is arguing that the Supreme Court should create a privilege for reporters from testifying in criminal cases about the identity of their sources.

Eric Posner thinks Risen should lose that argument. Posner describes a world of deeply untrustworthy journalists and governments beleaguered with leaks. He concludes that in this world it makes no sense to hobble government prosecutions of dastardly leakers with grants of privilege to scurrilous reporters who want to indiscriminately disclose even the most valuable of secret programs. Although Posner does acknowledge that “a balance must be struck” between government secrecy and the need to inform the public of government wrongdoing, he seems convinced that rules favoring the work of investigative reporters will strike the wrong balance.

I must confess that I don’t recognize the world Posner apparently thinks we’re living in.

In the world I’m living in, the government has cloaked in secrecy far too much of what it does. If it has a problem with leaks, this is almost entirely the result of trying to keep secret wide-ranging programs that demand public discussion and consent if we are going to pretend that we live in a representative democracy. This includes the NSA bulk surveillance programs revealed by Edward Snowden; it includes the Iraq and Afghanistan war logs revealed by Chelsea Manning.  These leaks may be a problem for a government prone to excessive secrecy. They are the opposite for the health of our republic.

In the world I’m living in, journalists may indeed have failed to earn our trust, but not by indiscriminately disclosing valuable secret government programs, but by uncritically repeating what they’re told by government officials. I would call Posner’s attention back to the buildup to the Iraq war when journalists routinely repeated official claims that turned out to be untrue and deeply misleading. For me, any bad reputation journalists may have earned is the result of their failing to do their job and acting as stenographers and propagandists for the government.

With these background perceptions about the world we’re living in, I read Posner’s arguments and reject (almost) all of them. It may still be true that Risen ought not to have any privilege from testifying, but only if we actually do what Posner suggests as an alternative to excessive secrecy (but that I suspect he won’t be vigorously arguing for as soon as the Supreme Court declines Risen’s request).

Posner argues that because the act of disclosing classified information is a crime, it makes no sense to allow journalists who receive the leaked information to refuse to testify in prosecutions of these crimes. Worse, Posner seems to argue that we ought to be thankful that the government has chosen not to prosecute journalists for aiding and abetting these crimes.

I’d be happy to agree if only we lived in a world where journalism and leaking classified information were the same act (which they aren’t), or if we lived in a nation whose legal, political, and cultural traditions did not recognize the value of a free press (which they do), or if the idea of limits on the ability of the government to prosecute crimes was an alien concept (it isn’t), or if the only way to protect ourselves from terrorism was to live in a police state (it’s not).

Posner tries to persuade us that the press has “not earned our trust” by pointing to episodes of the press publishing information that the government wanted withheld (a 2005 article about the NSA, and a 2006 article about a Treasury Department program to monitor international monetary transfers). But this supports Posner’s argument only if one shares Posner’s worldview, and believes as Posner appears to believe based on his arguments in this article that the government should be the final arbiter of what gets published and what doesn’t. Posner says nothing about how or whether those disclosures were actually harmful, but I wish he would. Otherwise his examples just show that we still have an independent press in this country that — sometimes — doesn’t do what the government wants it to do. I remain thankful for that.

I suppose Posner might want to say that these leaks revealed no government wrongdoing, and that therefore they were leaks “that ought to be plugged.” But  it is far from clear that the programs Posner refers to revealed no wrongdoing. Furthermore, excessive classification and secrecy, even of activities that do not obviously violate the law, can themselves constitute “wrongdoing” when they become as ubiquitous as our government’s national-security obsessed programs have become.

Posner writes: “Leaking has also become such a problem because the government needs a vast unwieldy bureaucracy to supply the level of protection from terrorism that the public demands.” I will only say that invoking “public demand” as a justification for keeping secrets from the public might not be the most effective way of defending secrecy. How do we know that the public “demands” protection that they aren’t permitted to know about?

Posner does make one decent argument at the end of his post:

A reporter’s privilege that makes it harder for the government to prevent leaks just means that the government will redouble the screening, training, and monitoring. If it succeeds, we’ll have as little of the “free flow of newsworthy information” as we ever did, except at much greater cost to the taxpayer with ever more complicated, redundant, and awkward bureaucratic controls

He suggests instead a rule that leakers ought to be allowed to defend themselves by showing that they acted in the public interest by disclosing “grave wrongdoing.” Posner here acknowledges that “a balance must be struck” between the government’s need to keep some secrets and the public’s need for protection from government wrongdoing enabled by excessive secrecy. I agree. But the problem is that now we have neither the rule Posner suggests nor the reporter’s privilege that Posner dislikes. Right now, the balance between government secrecy and government accountability is tilted too far toward secrecy.

In this world, I think the reporter’s privilege Risen is seeking would improve the status quo.

Aug 082013

The House recently voted down an amendment by Justin Amash (R-MI and a former classmate of mine at the University of Michigan) to defund mass NSA surveillance. The breakdown of the vote is interesting. It was thoroughly nonpartisan, as it roughly split the Democratic and Republican caucuses in half. It also neatly split the House leadership from the rank-and-file, as Nancy Pelosi joined with John Boehner and virtually the entire House leadership in voting against the measure.  Democratic party booster and serial email spammer Debbie Wasserman-Schultz (D-FL) voted on the same side as the right-wing warmonger Peter T. King (R-NY). The opposing camps on this issue can’t be neatly described by the shorthand political terms we commonly use.

I suppose that because Justin Amash himself is a self-styled libertarian, we might be tempted to say that the vote on his amendment revealed a previously undiscovered groundswell of libertarian sentiment in the Congress. That’s true, but only in the sense of “if opposition to unchecked secret surveillance is libertarian, then we are all libertarians” — which isn’t very accurate or helpful.

A digression: I am fond of making fun of libertarians. I like to find examples of others (from Alain deBotton to China Mieville) who skewer libertarianism in witty ways. I think libertarianism as commonly described by its proponents is a thoroughly junior-high-school, adolescent political philosophy that is only marginally more helpful for navigating in the real world than anarchism or communism [and I will admit that I was explicitly an anarchist… when I was in the 8th grade]. Although some of my most intelligent friends call themselves libertarian, I take that about as seriously as they take me when I self-identify as an ancient elf from Gondolin.

But back to the subject: the Amash vote shows that there’s an important political split on one of the most vital issues of the day that isn’t captured by our common shorthand terms. So we tend to mis-label the sides, or worse, fail to notice often enough that it exists. So let’s think more about what the disagreement is really about. What else do the defenders of current NSA practices have in common? What beliefs does Barack Obama share with Peter King and Eric Cantor? Allow me to speculate.

One thing might be a belief in the seriousness of the threat of terrorism. If you really do think that your own life or even your entire country is in imminent danger from terrorists, you’re more likely to forgive secretive methods (almost any kind of methods) to respond to the threat.

Another might be a belief in the vastly superior effectiveness of blanket surveillance to defeat the threat. This might mean that you’re OK with keeping secrets and violating laws for purely utilitarian reasons — the other alternatives simply won’t work. If anyone out there seriously believes this, I wish they’d be more explicit about it.

You might instead be someone who simply trusts authority figures, i.e., you might be an authoritarian. I don’t mean to use this word in a pejorative sense. I simply mean that you might, contra Amash and his supporters, feel comfortable with a world in which government authority figures are given carte blanche to do whatever they feel is best for the country, and you aren’t troubled by the risks that those people might make grave mistakes, or be corrupted by power, or use their power to advance ends that they haven’t told you about and that you haven’t consented to. All of us, after all, believe this to some extent, or there wouldn’t be any such thing as “consent of the governed”, no “representative government.” Trust in authority falls on a spectrum, and the more authoritarian and credulous end of that spectrum is more likely to be untroubled by secret government surveillance, secret law, and unchecked executive branch power.

I think that some combination of these beliefs are shared by most of the people who aren’t outraged by  the NSAs surveillance regime. There are certainly other reasons not to be outraged,* but I’m betting that these three together capture most of what motivated people to oppose the Amash amendment and to prefer to focus on Snowden himself rather than on what he revealed about the government’s activities.

And what about the other side? Certainly a belief in “libertarianism” as freedom from surveillance motivates many of Amash’s supporters, but what else? There’s got to be something, since the Congress did not suddenly become one-half libertarian when Amash’s amendment came up for a vote.

Apart from blanket surveillance itself, the secrecy surrounding this surveillance is troubling. The lack of Congressional oversight (see James Clapper’s lying to Ron Wyden) and the classification of the FISA court’s decisions regarding the NSA’s programs will worry anyone who believes that inter-branch checks and balances are necessary to prevent abuses of power. The less authoritarian, less trusting, and less credulous you are, the more you’re going to oppose the NSA’s unilateral implementation of blanket surveillance, even if ultimately you don’t object to the surveillance itself.

There is a third reason why the NSA revelations are so odious to so many — the apparent disregard for the rule of law. It takes a lot of hoop-jumping to avoid the conclusion that vacuuming up everyone’s email and phone records regardless of individualized suspicion falls under the powers authorized by Congress when it passed the AUMF against AlQaeda, or that it fails to violate the Fourth Amendment’s prohibition on unreasonable searches and seizures. Coming on the heels of the Addington/Yoo era at the OLC, where corrupt lawyers contorted themselves to whatever degree was necessary to condone torture, and following the Obama administration’s absurd redefinition of the word “imminent” to mean whatever it had to mean to justify its targeted killing programs, many of us are far less likely to trust in lawyerly machinations when it comes to the legality of mass surveillance by the NSA.

So what to call the two sides in the split over NSA surveillance? Tyrants vs constitutionalists? Terroristarians vs Rule-of-law-itarians? I don’t know. Just don’t mention fascism, because that could never happen here.


*Tawdry reasons such as a congressman accepting campaign donations from military/industrial interests, etc.