Blaming the victims of limitless government secrecy. This is the the biggie. Over and over again, I've seen critics of Snowden and Greenwald referring to aspects we don't know about the program, those who implement it, or its capabilities, and suggesting that this ignorance is a defense of the surveillance state. This ignorance is in fact a terrible indictment of the surveillance state. That we don't know to answer these questions demonstrates what a terrible blow to democracy these programs really are. Democracy requires an informed public; that's part of the basic intellectual justification for democratic governance, going back to the ancient Greeks. When we as citizens are incapable of actually debating the particulars of a program enacted by our government, something is deeply wrong.
Jaquith uses this ignorance as a reason to criticize Greenwald and Snowden. In fact it's perhaps the biggest reason their revelations are so important. I agree with Jaquith that the distinction he identifies matters. What's bizarre to me is what he fails to understand: if Snowden had not come forward, he wouldn't know that there is a distinction to be parsed!
Squaring the "damage done" circle. As others have done, Jaquith suggests that this story is secretly no big deal, that if the feds lack unilateral and direct access to these communications, these are all revelations that we have heard before. (Specifically, he calls the story a "yawn.") I find the "ho-hum" pose aggravating on something of a visceral level. Personally, even if I knew everything that I know now ten days ago, I would be angered by the existence of a vast, expensive architecture of surveillance, operating under the specific edict to snoop on American citizens. Setting aside the emotional reaction, though, there's the simple contradiction between the response of the yawning crowd and the response of the "string 'em up" crowd. If you feel that what was revealed was not a big deal, it would be nice to send a note to Representative Peter King, who is calling for the prosecution of journalists who report these stories. And you might ask yourself why, as Eli Lake reported, the NSA is now in full "freakout mode" over the revelations. The security state is now scouring the earth to find Snowden, if they don't already have him. The reaction against Snowden is proof of the importance of what he's revealed.
Presuming innocence of institutions instead of individuals. Jaquith demonstrates a common but scary credulity towards government and corporations throughout his piece. He writes that, "the only way their story is true is if all the companies involved are lying, and the NSA is lying, and Senators Feinstein and Rogers are lying, and the President is lying, and the New York Times’ sources are lying." This, we are to take it, is supposed to be some sort of damning passage. Jaquith apparently finds the government's denials about a vast system of surveillance that they have worked tirelessly to hide from public view more credible than those casting light on those programs. He similarly seems to think that it's quite unlikely that a bunch of corporations, with every self-interested reason to deny the stories, would lie or obfuscate, or that their very carefully-worded responses (which contradict many facts in the public record) might be hiding something. As far as an anonymous source in the Times, well, how can I possibly adjudicate that? I don't know who this person is, what they benefit from speaking to the Times, or why they were granted anonymity. I remember some anonymous sources for the Times that, in the run up to the Iraq war, should have been viewed with more skepticism. You will forgive me for reading another anonymous source with several grains of salt.
Governments do not deserve the benefit of the doubt. The history of the American state— not the conspiracy theorist history, but the mainstream, documented history, supported with reams of declassified documentation, eyewitness testimony, and physical evidence— is the history of bad behavior, lawlessness, and deceit. One of the weird aspects of American intellectual life is that its the people who distrust the government who are treated like cranks, when we have a mountain of recent evidence that shows us why it should be the other way around. Jaquith should ask himself why he views the power and scope of the surveillance state with a yawn.
Not knowing the actual requirements of the FISA courts. Like many, Jaquith places an inordinate amount of faith in the FISA court process. I would argue that any secret court system, where the public has no ability to understand the proceedings or parse the results even after the fact, is inherently problematic. But even so: the FISA warrant process has many holes. Via Pascal Emmanuel-Gobry I read this fascinating blog post, which references investigative work by David Kravets of Wired. Kravets's reporting demonstrates the degree to which people like Jaquith, Andrew Sullivan, and Josh Marshall have underestimated the scope of these programs. For example, the NSA can investigate someone for a week before triggering a FISA request, and can continue to do so even if they must appeal a FISA rejection— rejections which almost never happen.
What's more, Kravets writes,
For example, an authorization targeting ‘al Qaeda’ — which is a non-U.S. person located abroad — could allow the government to wiretap any telephone that it believes will yield information from or about al Qaeda, either because the telephone is registered to a person whom the government believes is affiliated with al Qaeda, or because the government believes that the person communicates with others who are affiliated with al Qaeda, regardless of the location of the telephone.
This goes so far beyond the way that the program is represented by skeptics of Snowden. Do they know how broad these programs really are? Are they aware of just how much the government can do before bringing any accountability onto themselves, even the accountability of a secret court that rubber stamps almost every government request? I don't know. I do think that they are guilty of overestimating the amount of oversight in the system.
What makes this disturbing to me is that I don't think Jaquith is some sort of NSA stooge or government mouthpiece. Quite the opposite; he seems genuinely interested in parsing these distinctions and raises important questions. What worries me is that generally intelligence and sober people seem so often to fall into assuming the benign nature of these programs.
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