Exiting the maze

That power must reside elsewhere, with the best and brightest, with those who have surveyed the perils of the world and know what it takes to meet them. Those deep within the security apparatus, within the charmed circle, must therefore make the decision, on America’s behalf, about how much democracy – about how much discussion about the limits of democracy, even – it is safe for Americans to have. (America against democracy – The Economist)

Until Snowden flew to Hong Kong, that’s how things were. Small wonder the reaction to his revelations often seemed so disproportionate to those of us on the outside. No provision had ever been made for well founded, fact based cross-examination of their surveillance activities. It was never meant to happen. They were to operate quietly in the shadows, always the watchers, never the watched.

The American public weren’t alone on the outside. Despite repeated efforts by NSA supporters and the White House to suggest otherwise, Congress didn’t fare much better. With the exception of those on the House and Senate Select Committees of Intelligence, they’ve been consistently stonewalled.

And, just to close the circle, any members of those committees who might want to share concerns with the public are prevented by law from doing so.

Two Democratic Committee members in the Senate, Ron Wyden and Mark Udall, spent years warning Americans that they would be “stunned to learn” of the radical interpretations of secret law the Obama administration had adopted in the secret FISA court to vest themselves with extremist surveillance powers.

Yet the two Senators, prohibited by law from talking about it, concealed what they had discovered. It took Edward Snowden’s whistleblowing for Americans to learn what those two Intelligence Committee members were so dramatically warning them about.

One needn’t conjure up a conspiracy to account for this somewhat grotesque outcome. Instead, “the NSA travelled down a slippery slope.”

At first, they focused on tracking traffic patterns. Some phone number in the United States was calling suspicious people or places in, say, Pakistan. It might be useful to find out whose phone number it was. It might then be useful to find out what other people that person has been calling or emailing, and then it might be useful to track their phone calls and email patterns. Before you know it, they’re storing data on millions of people, including a lot of Americans. Then maybe one day, they track someone-a phone number or email address they’d never come across before-engaged in some very suspicious activity. They wish that they’d been tracking this person for some time, so they could go back and see if a pattern exists without having to wait for one to emerge. Then they learn that they can do this; new technology makes it possible. So they scoop up and store everything from everybody. They even convince themselves that they’re not ‘collecting’ data from American citizens (as that would be illegal); no, they’re just storing it; the collecting doesn’t happen until they actually go retrieve it from the files.

The logic is in its own way undeniable and the institutional imperatives easy enough to understand. Trouble was, having crossed those various Rubicons they found themselves trapped. Justifiable as the individual elements all seemed, the totality of what they were doing no longer bore open scrutiny. No surprise perhaps that the only “sensible” response was a retreat even deeper into the bunker.

Which is pretty much where they, together with their voluntary (and involuntary) supporters, still find themselves. One has to wonder at the half life of the uneasy mixture of denial, bluster and threats they’re forced to fall back on. Certainly, it isn’t easy to see how this extravagant structure is going to be sensibly reined in.

At least not until (or more accurately if) America manages to break free of the fear that’s dogged their every step since 9/11. Fear, and anger, but then they’re so often fellow travellers. The fear has shapeshifted from piercing shock in the immediate aftermath to a generalised unease and ever present political paranoia about not being caught out again. Witness the recent evacuation of diplomatic posts across North Africa and the Middle East. Who knows what lies behind that: perhaps an utterly genuine threat, but it may equally be something relatively minor. Or even, perhaps, a low risk, high reward little feint from Al Qaeda.

?   ?   ?

Late on Wednesday the 24th of July, the US House of Representatives narrowly voted down an amendment to rein in the NSA’s bulk collection of phone records. At 205-217, it was far closer than almost anyone had expected. In American political terms, obsessed as they are with national security, this was pretty high on the Richter scale.

Perhaps the tide is beginning to turn. Perhaps the US will in time manage to haul itself back from this perilous course. It is in any case interesting that support for change is slowly drifting into the mainstream. Per Jay Rosen, whose recent article sparked mine: “When the CEO and editor-at-large of Foreign Policy magazine is saying: it took me a while, but now I see why Snowden was necessary… it means the elites in Washington are waking up to something big.”

Eugene Robinson of the Washington Post did D.C. residents a big favor earlier this week when he courageously acknowledged the service Edward Snowden did for the United States… and for the global debate on rights and privacy in the big data era. I have myself been too slow to recognize that the benefits we have derived from Snowden’s revelations substantially outweigh the costs associated with the breach. It is time we move from the kind of Patriot Act thinking that overstates security threats to such a degree that we subordinate our basic freedoms to something more consistent with our historical systems of checks and balances. (“Declaring an End to the Decade of Fear” – David Rothkopf – – Foreign Policy)

Rothkopf goes further and suggests it’s time to dismantle the Department of Homeland Security and the Directorate of National intelligence and return their essential functions to whence they came. These two behemoths were, as he put it, “born of fear.”

Yesterday (Friday the 9th), the President chimed in. Much of his press conference was devoted to the uneasy balance between civil liberties and surveillance. He portrayed Snowden’s revelations as illegal, unnecessary and potentially destructive given that: he (the President) had already “called for a thorough review” and signed an executive order providing whistleblower protection to the intelligence community pre-Snowden; and, “there were other avenues available for somebody whose conscience was stirred”.

If we pay attention to actions rather than words, these contentions look shaky. Back in late June, post-Snowden, USA Today interviewed former NSA whistleblowers Thomas Drake, William Binney and J. Kirk Wiebe at length. Each had initially gone through all the appropriate channels to report their misgivings and only went public when those efforts failed completely. The results weren’t pretty; Drake, for example, was initially charged with 10 felony counts with potential prison terms totalling 35 years, only to have them dropped on the eve of the trial. The presiding judge was not happy, calling the government’s conduct “unconscionable”.

Each was convinced Snowden did the right thing in not following normal whistleblower procedures (if such a thing exists anymore). They thought their own experience provided more than enough evidence, but if that weren’t enough developments under the “Insider Threat Program” ought to do the trick.

Nevertheless, Obama did make some promises yesterday that he may to some degree be held to this time around, including this one in answer to a question.

What I’m going to be pushing the IC [intelligence community] to do is rather than have a trunk come out here and leg come out there and a tail come out there, let’s just put the whole elephant out there so people know exactly what they’re looking at.

We shall see. I’m not particularly optimistic, but at least there’s now a modicum of two-way traffic around this debate and the political pressure seems unlikely to dry up any time soon.

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19 Responses to Exiting the maze

  1. Michael says:

    The real problem with the extreme end of law enforcement is that secrecy hides ineffectiveness, incompetence and in some cases outright corruption. The more secret the operation the more impossible it is to resist acting immorally and illegally. This has been known since the time of Plato.

    • Ingolf says:

      Agreed, Michael. It certainly compounds whatever other evils may be present and makes their correction all the more difficult.

      • Michael says:

        It always amuses me to see how the secret services and military intelligence is portrayed in film – and the super-villains they fight. The reality of their failures is all to easy to find and it paints a much more mundane picture of human failings and the limits of technology. I wonder if some of the ill-fated adventures have been a case of people believing their own hype. The secrecy gives them veneer of competence they almost certainly don’t deserve and earns them a blank cheque to spend unwisely pursuing fantasies of their own paranoia.

        • john r walker says:

          It fascinates me that this vast security apparatus in the end , allowed so much access, to so much data, to people like Bradly Manning and Snowdon, in the first place.

    • marks says:

      Yes, the list of US intelligence failures is quite disturbing.

      The fact that Bradley Manning got so much information out, then followed several years later by Snowden indicates that not only was security woeful in Manning’s time, but that the US security services did absolutely nothing to fix the weaknesses.

      Makes you wonder how much others leaked to Russia, China and terrorist groups. Given how low in the food chain Manning and Snowden were, it is not the least bit inconceivable that this information was also available to Al Qaeda via similarly lowly operatives with more venal motives than Manning and Snowden. It would be rather ironic if it turned out that the main sources of Al Qaeda intelligence was, in fact, the US Government. It could so easily be the case.

      This pursuit of Assange, Manning and Snowden is more about covering up US security agency and Congressional oversight failure than any damage done by Assange et al.

      • Michael says:

        Despite all the hype, Al Qaeda’s methods seem quite low-tech. One of the US’s problems is that instead of tackling the real dangers they are tackling the outdated ones in their paranoid minds, the ones their organisations and tools are designed for.

  2. Alan says:

    Much of what followed 9/11 was simply ridiculous, horrible, tragic and often deeply unjust, but always ridiculous.

    The Atlantic has a write-up today about the great dissent of Oliver Wendell Holmes. Before Holmes read that from the bench, he was apparently visited by other members of the supreme court, urging him not to proceed with his dissent because of the state of the country and need to protect the country. Today those judges would probably cite national security.

    Obama’s incoherent press conference shows what happens when national security becomes a a complete excuse for anything the government wants to do. Apart from the appalling horror, tragedy and injustice, government simply becomes ridiculous.

    It also happens to nations with minuscule refugee problems that persuade themselves that nothing else matters so long as the boats stop coming.

    • Ingolf says:

      I wouldn’t characterise Obama’s press conference as incoherent, but it was patronising and generally presumptuous. Or, as someone I have a lot of time for said:

      “Our government? Ah well, the spectacle of narcissistic self delusion yesterday was disgusting.”

      Thanks for the pointer to the Atlantic article. That led me to read Holmes’s dissent. Very good; I particularly liked this:

      “In this case, sentences of twenty years’ imprisonment have been imposed for the publishing of two leaflets that I believe the defendants had as much right to publish as the Government has to publish the Constitution of the United States now vainly invoked by them.”

  3. Ingolf says:

    John,

    Yes, the numbers are just staggering.

    Of the 4.9 million people with clearance to access “confidential and secret” government information, 1.1 million, or 21 percent, work for outside contractors, according to a report from Clapper’s office. Of the 1.4 million who have the higher “top secret” access, 483,000, or 34 percent, work for contractors.

    Snowden, as a system administrator, was in a far more select group of about 1000. Apparently the NSA is planning to cut their numbers by up to 90%. Huh.

  4. Paul Frijters says:

    Ingolf,

    yes, agreed with all of this. Yet, I also have to say that all of this was already clear at the time of wikileaks and if I go through those old threads on Troppo now I see lots of ‘serious’ people who argued against such leaks and for the necessity for cover-ups. This penchant to ‘look away whilst others are looking away’ of people who know better but who have a position in the establishment is always disappointing to see. Glad to see some of these same people now coming on board on this issue.
    It would be nice to see some reward for the ones who bore all the ridicule though. Despite his tendencies for paranoia, we owe a lot to Julian Assange. He deserves more active support from the Australian government.

    • Ingolf says:

      Paul, absolutely.

      Simple consideration of the societal upsides of openness vs the downsides of secrecy ought to be enough to settle the issue in principle. The obligation of proving their case should always fall on those in favour of surveillance and closed systems.

      You’ve got me curious about “those old threads” and these “serious” people! I wasn’t looking in on Troppo during that time; could you point me to a few of them?

  5. Paul Frijters says:

    Hi Ingolf,

    the following is the main one that summarizes what blogging Australia said at the time:

    http://globalvoicesonline.org/2010/12/04/wikileaks-julian-assange-oz-hero-or-villain/

    and for the thread I started:

    http://clubtroppo.com.au/2010/12/01/whereto-for-wikileaks/

    • Paul Frijters says:

      Ingolf,

      you might also want to go through this thread:

      http://clubtroppo.com.au/2010/12/08/the-wikileaks-saga-continued/

      where I made the following observations on how Australian officials were behaving:

      (Australian response) The first reaction in Julian’s home country was to straighten the backs and fall in line with what our big ally seemed to be doing. The prosecutor general made threatening noises towards Julian Assange and several politicians condemned wikileaks in strong wordings, calling the publication of the leaks illegal even though Ben Saul argued quite quickly that the leaks were most likely not illegal. Yet, it is clear that, down the line, the Australian government and its departments will have to become involved in the defense of one of its citizens. Julian Assange has been demonized by foreign leaders and there have been calls for his assassination, even though he has not been charged with anything yet and even though it is very doubtful that he can be convicted of anything at this moment. What else is our government to do once the dust settles down, but to heed the demands that will undoubtedly come from his friends and family in Australia to insist on due process and freedom of movement for one of its citizens? We are hence at the moment in a little time bubble where our politicians and some commentators join in with the demonization of an Australian citizen by foreigners (though Gillard’s latest reaction was much more careful than her first one), whilst after the bubble bursts these same people will have no choice but to stand up for the rights and good treatment of this Australian citizen (calls for this have apparently already been made). I even dare say that there will come a time when Australia will be proud of an Aussie who is, like a lone outback crusader, trying to hold large governments to account by revealing their internal deliberations.

      • Ingolf says:

        Paul, I read your two pieces and the threads that followed. Thanks again for the links.

        As you know, my default position is pro-openness. Still, some of the arguments put by Ken in particular are valid. The quote he included from Clay Shirky seems about right although I think independent actors (like Wikileaks) are a useful, and occasionally essential, corrective to governments’ inherent tendency towards secrecy.

        Surveillance is another matter. There, the required burden of proof to justify it ought to be far higher.

        • john r walker says:

          Ingolf feel that this ‘government’ obsession with piling up masses and masses of data has another downside- a sort of Goedlian limiter – knowing so much, can actually mean ,understanding less and less.

        • Paul Frijters says:

          Ingolf,

          I am less sanguine and less forgiving about those things. The arguments used against wikileaks were essentially the most reasonable ones that could be found by the insiders. The point is that insiders will always look for the most reasonable arguments that might, in some state of the world, indeed be important and salient. If you focus blindly on the internal logic of those particular arguments and forget what is really going on and at stake, you get lost: because we are looking at a defense by insiders and with freedom of information so important to the running of our country, it is exactly the use of reasonable sounding arguments that one closer inspection are not really that salient or important, that is the most troublesome. I am thus bothered more by the insider who says ‘wikileaks embarassed us with the saudis and this may make for an uncomfortable afternoon, thus Julian is a purile wrecker’ than by the army general who openly states he doesnt want the general public to know what he is doing and we are just to trust him with all the information. I hear the same message from both, but one is uncouth and honest whilst the other is in an insiduous way the most dishonest. When supposedly honourable people go along with reasonably sounding defenses of bad things, they lose their honour. As to names, I did not want to single out anyone because we are talking about a sliding scale here and even reasonable people will get seduced by the thinking of their group. If you have to have a scapegoat, use the prosecutor general who was sabre-rattling against Assange. He was supposed to represent all that was good and proper and yet jumped the gun to show his true colors.

  6. Ingolf says:

    John,

    I’m sure that’s true, if I’ve understood you correctly. We’re all in danger of getting buried by stuff.

    On the other hand, even though I absolutely don’t think they should be piling up all this data, in terms of your comment I can see how having it available for subsequent perusal when something triggers the desire could be very useful indeed.

    What we really need to do is examine our fears with the aim of finding a far more sensible trade-off between security and privacy. Maybe that process is slowly getting underway. Maybe. Trouble is, in recent decades risk has come to be seen as unacceptable, something to be eradicated. That attitude would also have to be overturned before any meaningful change is possible.

    Paul,

    You’re right, I am a little more sanguine. Not about surveillance, but about government confidentiality.

    If we had strong FOI provisions, truly robust whistleblower protection, the abolition of any laws with even a hint of anti-sedition flavour and otherwise solid protection for free speech, I think the system would work tolerably well.

    In times of strife and discord (e.g. post-9/11), outfits like Wikileaks would probably spring into action from time to time. I’m all in favour, provided it’s done with a modicum of sanity.

    Oddly enough, complete (or near complete at least) government openness might actually work pretty well. It would soon so devalue individual revelations that hardly anyone would pay the slightest bit of attention. At least not unless it was earthshattering. So there’s probably a decent argument for such an approach. Can’t see it happening, but that’s a separate issue.

    Realistically, I don’t think there’s some ideal state of openness versus secrecy that we can reach. It’ll always be a tussle, sometimes more desperate than at others.

    • Paul Frijters says:

      I dont see anything wrong with near-complete openness (excepting such things as nuclear technology) either, but, perhaps unlike you, I think the marginal societal benefit of less openness beyond the absolute minimum is almost immediately negative in nearly all cases (even 9/11 circumstances) and all that secrecy then serves is the interest of the few at the expense of the many. Defending the few can be expedient when you cant change the system, for sure, but disappointing nevertheless.

      • Ingolf says:

        I think the marginal societal benefit of less openness beyond the absolute minimum is almost immediately negative in nearly all cases.

        Good way of framing the issue, and probably right. If you have a useful example or two, I’d be interested. Would you prefer live release of (almost) everything, or can you see value in allowing some processes to operate under a (minimal) disclosure delay? Like, for example, delicate diplomatic negotiations.

        By the way, accepting certain realities doesn’t necessarily mean defending them.

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