Posts Tagged ‘Snowden’

What’s not being talked about-

The Snowden revelations and U.S. Surveillance


This is the inaugural post for this portion of the blog – “What’s not being talked about”. Part of my “grouchiness” stems from reading and listening to the media on important issues and seeing major considerations and elements left completely unsaid and unaddressed. Very often these are the most important considerations and elements. The media and talking heads hold forth at length and fill reams of hard copy and millions of digital bits on distraction and irrelevancies, while the most fundamental questions slip silently by. It makes much of the public debate artificial and contrived.


And so it is I turn to the Snowden revelations on U.S. surveillance capabilities and practices. We have been witness to a continual Chinese water torture of revelations on the NSA and federal government’s abilities to read our email, scan our web habits, and compile personal data, and in real time watch our computer use. There is no doubt this drip, drip of revelations will continue.


And the response of the government and the pundits has fallen along several lines: First we have the John Kerry sorts of accusations that Snowden is a traitor and a coward; Then we have the whistleblower/patriot camp heavy on libertarian/civil rights themes; and against this debate we have the National Security arguments that these capabilities are exercised for our own safety and good – that it is all to prevent major terrorist attacks, etc. The next step down the ladder on this thread is that if you are doing no wrong, you have nothing to be concerned about; and it seems many take some sort of solace here, and pull their heads into their shells. At the other end of this are the civil rights arguments that our personal privacy protections under the fourth amendment are being seriously violated and that this is more important than the comparable handful of deaths and attacks we may or may not be preventing with these measures. (We’ll leave aside the country’s apparent willingness to except 10,000s of gun deaths as the price for the second amendment – but readiness to abandon all previous concepts of a right to privacy under the fourth amendment to prevent any one hypothetical death.)


We are all well familiar with the MSN/CNN/FOX talking head landscape of this “debate”. What is not being said?


Let’s step back to 7th grade civics class, shall we? (Perhaps I am dating myself by noting I come from an era where civics[1] was taught.) Fundamental to 7th grade civics was the notion of checks and balances – our three branches of government in competition for power, each with the some ability to check and frustrate the other. Later in life one of my favorite law professors would describe this as a dynamic tension between the branches, dynamic in that one might gain sway on an issue for a time, but with an election or a change in events or popular opinion the balance would shift. (We see this tension clearly now with a GOP House, and a filibustering minority in the Senate pitted against a democratic president, which both in turn look to the appointed and ratified judiciary to referee some of their conflicts.) So we have this system of checks and balances where competing powers are pitted against each other for the protection of our rights and the preservation of our form of government.

 [[1] Civics: the study of the rights and duties of citizens and of how government works – clearly there are several dated concepts in that: the mention of the duty of citizens! And the concept that government works – No longer taught in school and attacked regularly by one wing of our partisan infrastructure.]

Now let’s digress to an old sophism/truism: knowledge is power. Simple enough. And what is intelligence and surveillance, but the pursuit of knowledge and with it power?

 And here is where the problem begins to emerge. Intelligence is power and the pursuit of power. But it is something more – it is the pursuit of SECRET knowledge, secret power – much, if not most, of its value in fact comes from its secrecy; the fact that others do not have this information or are unaware that one has this information. Thus, having the enemy’s codes or battle plans are valuable as long as the other does not know we have it. And then there is the other sort of power that comes from secret knowledge – the fact that someone one has another’s secrets and lets them know it to use it to advantage. In short this is the power of extortion and blackmail; you will do, or not do, X or we will reveal your secret.

Now let’s venture back to that triangle of checks and balances between the Legislative, Judicial and Executive branches. Only the executive has direct and ready access to the secret power of intelligence/surveillance data. It is a secret power, one that it does not readily or willingly share with the other branches. Yes, Congress has its oversight committees coming from the reforms of the 70s after the Pike and Church committees, but this depends on a willingness of the executive to share and brief the few select privileged members of the Congressional committees. And our history is replete with many examples of Congress complaining it was kept in the dark or actively misled via these channels. And imagine what the worth of this oversight is when the executive can have near complete knowledge of the oversight committee members’ lives and dealings.

 The point here is that this dynamic tension of checks and balances relies on competing powers of the branches. But when one branch has a vast reservoir of secret power to draw on, the checks and balances can be neutered and made ineffective. When we read that all of our phone conversations are tracked, recorded and available to the executive we think first of our personal calls. And for most of us, we think this is of no interest to the executive and this does not affect us, end of story. But when one realizes this power extends to the ability to track all of the phone and cell phone contacts as well as the computer usage of the legislative and judicial members as well, this begins to look quite different. This secret power now leads almost inescapably to a totalitarian (or at least one party system – whether that is a nominal two party but de facto one party matters little).

 It leads one to wonder if the revelations that knocked major contenders out of presidential consideration were assisted through this secret power. I speak of the elimination from contention of John Edwards and Elliot Spitzer before the 2008 presidential campaign. Let’s be clear I am not saying these candidates were necessarily targeted and removed from contention from executive surveillance, but they do serve as examples of what is possible with the sort of information that is collected today.

 This sort of power – the revealing of secret information can greatly impact events, public opinion, and governmental outcomes. But there are other exercises of secret power that could be even more insidious – the use of secret power to extort or blackmail behavior and outcomes. When the executive knows the darkest secrets of justices, judges or Congress members it can gain the ability through blackmail and extortion to direct their behavior and make them implements of executive choice rather than part of the constitutional checks and balances. More subtle variations between these two extremes of course exist, where with secret knowledge parties can be managed subtly without their knowledge with stage craft and subtle manipulations.


These concerns and practicalities apply as well to that other constitutional protection, the fourth estate.


And so it is that these surveillance mechanisms and practices pose a direct and serious threat to our very viability as an elected constitutional democracy. With this immense secret power concentrated in the executive we can expect that eventually some political threat to the executive will result in the improper use of this power and once that Chinese wall is breached it will be repeatedly abused till it becomes a normal exercise of power.


These checks and balances exist because of the founders’ clear recognition of power to corrupt. As John Adams noted in Federlist #51:


But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions. [1788]


With these new immense surveillance powers how to we “oblige it to control itself “? This I would pose is by far the greatest question posed by the new surveillance state and its capabilities. I am not sure what the solutions to address these problems should be. Clearly part of it is limiting severely what can be collected. But that of course offers no guarantees that such restrictions will be honored. Some have argued putting the data into private hands offers some form of protection. Speaking for myself, I feel no safer having say AT&T and Verizon in control of such information or that it is any less a threat to our democracy. They have as much incentive to use it, sell it and exercise this power as any governmental character.


It would seem a necessary part is putting what data is collected outside of the control of the executive, perhaps with the courts. And then the executive would have to apply for a warrant for access. Of course this has its own limitations and problems.


In any case this article is about what is not being talked about. Perhaps if the more fundamental issues in this debate are allowed to float to the top, the resultant discussions can find solutions. How do we oblige government to control itself in an age of near total digital surveillance?