various problems with NSA defenses

This piece criticizing Edward Snowden and Glenn Greenwald, by a web developer named Mark Jaquith, is both an intelligent piece of writing and emblematic of the problems in this kind of piece.

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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authoritarianism from the inside

The conceit of this piece by Josh Marshall is that there's some great mystery to why some people feel differently than he does about whistleblowers like Bradley Manning and Edward Snowden. In fact it's brutally simple: Marshall sees nothing to fear from authority and the state, because he is one of the Chosen People of authority and the state. Meanwhile, those who are not among the elect fear and distrust authority, because it daily oppresses them. This fear and distrust is as rational as a thing can be, but Marshall cannot bring himself to believe in it.

Marshall has that in common with Jeffrey Toobin, Richard Cohen, and David Brooks: no reason to fear the police state. Why should they? They are, all of them, American aristocrats: white, male, rich, and properly deferential to anyone with a title or a badge or authority or an office. Of course they don't know why anyone would worry about limitless surveillance. They themselves have nothing to fear because they are the overclass. They can't imagine what it might be like to be Muslim or black or poor or to have any other characteristic that removes them from the ranks of the assumed blameless.

But the story of America is the story of people with reason to fear power. It's the story of how very dangerous it can be to find oneself outside of the overclass, how relentlessly the state and the moneyed work to crush difference. Marshall's notion that men like Manning and Snowden should simply have backed off and played by the rules is one of the most consistent and dishonest messages in American political history. It was the message delivered to the AIDS activists who are profiled in How to Stop a Plague. It was the message delivered to Martin Luther King and the rest of the Civil Rights movement. It was the message delivered to the suffragettes. It was the message delivered to the abolitionists. It was the message delivered to the American revolutionaries. In each case, self-serious men told those who perceived themselves to be oppressed and suffering to get on board and play by the rules, in deference to the community.

Would Marshall have told the Black Panthers that they should have colored within the lines? Would he have told them that they had nothing to fear from the state? Ask Fred Hampton if he had anything to fear from the security state. I don't know how Marshall would regard the Black Panthers. He might be the type of liberal to cluck his tongue at their radicalism. The other movements I mentioned have all become lacquered in bronze in the American mind, and I don't doubt that he'd rush to say that of course he would have supported their movements. And that, really, is the contemporary American liberal in its Platonic state: supportive of all resistance movements, so long as they live in history. Today's movements never rate. They are too challenging, too impolite.

That's part of Corey Robin's point, in this post. He points out that Brooks's limp appeals to family and community are in keeping with traditional methods used to bring radicals and subversives to heel. For someone like Brooks, there's no contradiction between communal fidelity and deference to power. His community is power. His family is the overclass. He wants you to defer to society because he knows no society but the society of the comfortable, of the safe, of the privileged. Perhaps Josh Marshall has, in the realm of pure theory, a greater regard for those who find themselves outside of the benevolent embrace of the American establishment. But as he demonstrates, he cannot see to really understand what it means to be disfavored by power, to be disfavored by government. Again and again in the past few days, we have read people delivering some version of the same argument. "I don't see what they have to worry about." That's the real crime, of the people who attack Edward Snowden instead of grappling with what it means to be a subversive in the eyes of the state: a profound failure of imagination.

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nota bene

Andrew Sullivan has replied to my post on the conflict between his conservatism and his skepticism towards Edward Snowden. I also encourage you to read Corey Robin, Conor Friedersdorf, and Hamilton Nolan on this issue.

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to understand terrorism and threat assessment, look to Aum

Consider, if you please, Aum Shinrikyo, the cult responsible for the terrible sarin gas attack on the Tokyo subway in 1995. And consider what it means for an appropriate response to terrorism.

I've been studying Aum recently, as a way to think through terrorism and the appropriate response to it. It's hard to imagine a more dangerous terrorist organization than Aum. Aum was a highly coordinated organization, with a clear chain of command and effective communication within the organization. It was fabulously well-funded, raking in millions of dollars from its devoted followers and pushing that money into complex and lucrative investment schemes. It had an incredibly devoted collection of followers, who were subject to constant brainwashing techniques and daily tests of loyalty and devotion. The network was vast, with cells and headquarters in dozens of countries. The ideology was mutable and portable, making it easier to spread; the cult's teachings incorporated aspects of Buddhism, Hinduism, Christianity, and others, which helped increase its appeal. Its technological expertise and capability were incredible. The cult attracted many of Japan's brightest minds, brilliant scientists from the top universities with advanced degrees in chemistry, biology, and technology. They poured their funds into advanced labs and workshops and gained access to extremely dangerous chemicals and weaponry. They had groups devoted exclusively to weaponry and defense, to intelligence and surveillance, to loyalty and retention. They had large compounds in remote locations, spread out through Japan and in the rest of the world. They had loyalists ensconced in the military, the police, the government, and the media. They enjoyed the protection of being an officially recognized religious group. And as their most basic and cherished belief lay in the imminent coming of the apocalypse, and their religious duty to speed it along, they were absolutely bent on murder and destruction.

In almost every sense, this is the worst case scenario for terrorism. This is what people imagine when they think of the destructive potential of terrorism.

Yet what's as remarkable as Aum's potential for mayhem is how little of it, on balance, they actually caused. Don't misunderstand me: Aum's crimes were horrific, not merely the terrible subway gassing but their long history of murder, intimidation, extortion, fraud, and exploitation. What they did was unforgivable, and the human cost, devastating. But at no point did Aum Shinrikyo represent an existential threat to Japan or its people. The death toll of Aum was several dozen; again, a terrible human cost, but not an existential threat. At no time was the territorial integrity of Japan threatened. At no time was the operational integrity of the Japanese government threatened. At no time was the day-to-day operation of the Japanese economy meaningfully threatened. The threat to the average Japanese citizen was effectively nil. 

Just as important was what the Japanese government and people did not do. They didn't panic. They didn't make sweeping changes to their way of life. They didn't implement a vast system of domestic surveillance. They didn't suspend basic civil rights. They didn't begin to capture, torture, and kill without due process. They didn't, in other words, allow themselves to be terrorized. Instead, they addressed the threat. They investigated and arrested the cult's leadership. They tried them in civilian courts and earned convictions through due process. They buried their dead. They mourned. And they moved on. In every sense, it was a rational, adult, mature response to a terrible terrorist act, one that remained largely in keeping with liberal democratic ideals. 

All of the evidence we've acquired since 9/11 suggests that Al Qaeda is not like Aum. Al Qaeda is not nearly as coordinated. It is not nearly as hierarchical. It lacks basic inter-organizational communication or leadership structure. It lacks clear goals and leaders who can articulate them. It lacks operational infrastructure. It lacks clear sources of funding. It lacks technical and scientific expertise. It appears now to have always been a loosely connected fellowship of groups and sects, often at odds with one another philosophically and practically, lacking the kind of cohesion or leadership necessary to coordinate major attacks. All or most of that was true before more than a decade of international military and legal assaults on the organization. The near-total inability of Al Qaeda to wage large-scale destruction has been seen in the lack of mayhem caused by the group in recent years. The Boston Marathon bombing, waged not by Al Qaeda itself but merely by sympathizers, failed to killed more than three people despite having taken place amidst a literal throng of humanity. Again, a terrible tragedy and a horrific crime. But by any rational, adult estimation, nothing resembling a national threat to the United States.

Yet despite the near-total failure of Islamic terrorists to actually harm the United States in a meaningful way, we learn every day of vast new encroachments on our civil liberties and alterations to our basic way of life, enacted in response to our fear of terrorism. To debate the wisdom and prudence of this is to step into a weird world where claims no longer require evidence and assertions qualify as proof. People tell me constantly: there's vast throngs on terrible terrorists out there, and we have to give up our freedoms to fight them! And I ask: where? Who? In what numbers? Of what destructive capability? How do you know? Where's your proof? Always: nothing. No meaningful response at all. They just know.

That is the definition of irrationality. In the years following the subway attack in 1995, Japan did not live in a post-Aum world. They did not allow their day-to-day lives to be defined by those attacks. A dozen years after 9/11, our national character has been totally consumed by Al Qaeda and fear of it. It underpins everything we do. It has infected our culture. I don't know why so many otherwise rational, sane adults are so incapable of looking at this threat rationally, of disconnecting their legitimate moral revulsion from the sober threat evaluation that is the responsibility of citizens in a dangerous world. We have examples of adult responses to terrorism. Instead, we betray ourselves, in every sense a terrorized, terrified people.

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Andrew Sullivan's two selves

Few writers have devoted more of their writing to understanding themselves than Andrew Sullivan. That is not a dig. The process of self-examination can be an essential guide to understanding broader issues in the world. I would in fact say that this process has been one of the more successful ways to explore political questions of the past century or so. The end result has been that we have a lot of material on what Sullivan's particular brand of conservatism amounts to. This is probably best expressed in his book The Conservative Soul, a text I've read through twice. On the second read through, undertaken within the last four months, I read it not as an explanation of a particular writer's politics, but as an object lesson in how far someone can stray from their philosophical commitments without changing them.

Sullivan has written of himself often as a conservative in the tradition of Edmund Burke and Michael Oakeshott, who (with apologies to Corey Robin) are known in the popular telling as standard bearers for a kind of conservatism of skepticism. This skepticism is not a skepticism in the sense of a narrow materialism or aggressive atheism. It is instead a skepticism towards people and institutions, towards both their goodness and their capability. It's a kind of conservatism that leads one, for example, to oppose welfare programs not out of a rejection of their purported ends but out of doubt that these programs can reliably reach those ends, or that they can do so without destructive unintended consequences. Sullivan's conservatism, I have always understood, is predicated on the notion that even fundamentally good people are corruptible and fallible and that the road to hell is paved with good intentions. This, to me, is the message of The Conservative Soul.

This commitment, outlined in a book published in 2007, has been severely challenged by the events of 2008. The presidency of Barack Obama has changed Sullivan's politics and his writing, by my estimation. His support for Obama is neither unconditional nor free from criticism. But it is considerable, and defined by a deep belief that Obama is playing both a political and policy "long game." In this telling, any apparent failure, scandal, or bad decision of the Obama administration can be understood as merely one part of a master plan that will lead to victory, both political and moral. (Sullivan recently wrote about his desire to find a better cartoon character to represent Obama's political advantage over the Republicans; Sullivan has repeatedly used the Roadrunner's dominance of Wile E. Coyote as an allegory for Obama's mastery of the GOP.) Sullivan's regard for Obama has also involved an iconography that has been, at times, somewhat disconcerting for someone of my temperament.

As I've said, there is no fair accusation that Sullivan has shielded Obama from proper criticism. As someone who argues with the truly zealous Obama defenders on a daily basis, he cannot be accused of the kind of unhinged hero-worship that has grown among some partisan Democrats. Yet I still find myself disturbed and confused by this transformation. If you asked me to define one trait that would be least reconcilable with the conservatism espoused in The Conservative Soul, it would be deference to a particular leader. I cannot square the recognition that all political leadership is subject to corruption and failure with the kind of faith Sullivan regularly shows in Obama. And this becomes a deeper confusion when you see how this trust has filtered down from Obama to the people and programs beneath him.

This faith in the goodness and constraint of a particular government has reached, I hope, it's zenith in Sullivan's yawning response to a vast system of government surveillance that must involve thousands of people with disparate agendas and different characters. Here, more than ever, I would think a conservatism of skepticism, which recognizes the ample possibility for human failure, would create great suspicion and criticism. Even if you have far more faith in Obama's goodness than I do, even if you think that goodness is represented in his senior advisors, you have to recognize the vast potential for abuse in a system like this. The history of powerful human systems is a history of their corruption. All it takes is a small group of people working within such a program, one which by design lacks accountability and external review, for this kind of information be used to silence dissent, to pursue personal vendettas, or to unfairly harm without due process. This country should know very well the destructive power of functionaries and bureaucrats when they are armed with power and a lack of accountability

Just today, Sullivan wrote this:

the tradition I have long studied and thought about is not a conservatism finding solutions to problems. It is about finding solutions to problems you suspect may not be solutions at all, and may be moot once you’ve done your best; it’s about the elusive nature of prudential judgment; the creation of character through culture; the love of what is and what is one’s own; and a non-rational grasp of the times any statesman lives through. It is about a view of the whole that keeps politics in its place. It is, in the end, a way of being contingently in the world.

How can these beliefs possibly be reconciled? How can a man who admits the elusive nature of prudential judgment trust the judgments of thousands of totally unaccountable government functionaries? How can he believe that a system bent on total secrecy and total  denial of oversight or restraint would represent a culture that could instill character? How could he look at this vast, dehumanized and dehumanizing surveillance system and not see a potentially failed solution to a problem that is, in perspective, a fact of life in the modern world? I cannot reconcile the philosophy with the individual commitments. I no longer really know how to read Andrew, at this point.

Perhaps this is a consequence of 9/11, and the way that the one-time destructive power of a small group of disparate lunatics challenged the American psyche, in a way that has caused many people to lose any notion of proportion or of rational threat estimation. Or more simply, maybe I've simply been misreading Sullivan's discussion of his own politics. Whatever the case, I would like for Sullivan to consider the possibility that he is placing far too much faith in a bureaucratic apparatus that contains a multitude of agendas and all of the potentially for mismanagement and bad behavior that engenders... a scary thought, when that apparatus is connected to military power. These programs are run by people, and people are fallible and frequently immoral. (It's worth noting that many of the people working in these programs are the same people who worked under the Bush administration that Sullivan has rightfully criticized.) It would take so little for all of this to go wrong.

I don't expect anyone to have a fully articulable or consistent political philosophy. I don't. My politics are filled with weird tensions and paradoxes and contradictions. I just wish that someone who has spent so much time trying to articulate his political philosophy would take a step back and consider how that commitment fits with his affection for a particular leader, and perhaps, rediscover some of his skepticism.

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Reminder: Obama promised to end the Bush-Cheney surveillance state

One of the constant defenses offered of Barack Obama by his many zealous defenders is that any particular awful conservative thing he does is something he never promised not to do. "You fell in love with a liberal fantasy in 2008! You can't blame him for what he never said he'd do." Well, as with prosecuting medical marijuana dispensaries and closing Guantanamo, it's not true here, either:

For one thing, under an Obama presidency, Americans will be able to leave behind the era of George W. Bush, Dick Cheney and "wiretaps without warrants," he said. (He was referring to the lingering legal fallout over reports that the National Security Agency scooped up Americans' phone and Internet activities without court orders, ostensibly to monitor terrorist plots, in the years after the September 11 attacks.) 

It's hardly a new stance for Obama, who has made similar statements in previous campaign speeches, but mention of the issue in a stump speech, alongside more frequently discussed topics like Iraq and education, may give some clue to his priorities.
In our own Technology Voters' Guide, when asked whether he supports shielding telecommunications and Internet companies from lawsuits accusing them of illegal spying, Obama gave us a one-word response: "No."

 But of course, there is only one variable in the calculations that Obama loyalists perform: did Obama say or do it? Then it is right. Besides, if you don't like what Glenn Greenwald's reporting has revealed, you can always engage in innuendo about COMMUNIST CHINA!

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I can deal with anything but the apathy

More and more often I find myself fearing that the central political divide of our time, the crude division between government and business that has become a kind of stand-in for all of our major disagreements, simply won't be relevant anymore. It won't because institutions of all types and kinds will be slowly crushing us in some vast bureaucratic machinery, on the command of distant and shadowy and unaccountable figures that we can neither access or understand. Whether it's the NSA or Google or Chinese hackers, there's forces out there fucking with you that you can't control. Whether you call them government or corporation or conspiracy will prove irrelevant. When Major League Baseball is engaged in all sorts of quasi-legal investigations and influence, we've reached a point of repressive systems, not just repressive governments.

I can deal with fighting this stuff and losing. I can't deal with the proud apathy that pops up around all of this. The terrible thing about being increasingly trapped in these systems— besides the obvious, I mean— is that it makes people more and more likely to act like they have no control. So many people I see are reacting to these many revelations with some version of "there is no alternative." I can at least accept the learned helplessness, that classic Democrat, Droopy Dog "we can't do anything, siiiiiiiigh" attitude. It's a kind of bullshit self-defense, where you are responsible for nothing because you preempt personal responsibility by saying you're bound to fail. But at least it acknowledges these problems as problems. What I truly cannot stand is the studied pose of blase and indifference. "Hey, what revelations are we really seeing here?" Hey, times change. Hey, it's technology, you can't fight it. Hey man, that's the world. It's the worst kind of cool kid pose, where something bad is asserted to be no big deal, because to accept it as a big deal would be to risk the carefully manicured pose of "cool" apathy. That's what I can't stand: watching human rights be given away in the name of posturing.

I called these intrusions authoritarian on Facebook. Somebody made fun of me. "You sound like some conspiracy loon!" I wondered what it would take to convince him of the term's use. How far are you willing to go before you will grapple with how bad things can get? How important is not sounding like "that kind of person"?

The best book ever written about totalitarianism isn't actually 1984. It's A Tale of Two Cities. And in that book, the most commonly repeated image, the central symbol, is of a giant eye. What Charles Dickens understood, and what the book argues, is that there is no such thing as freedom without privacy, that being truly free means being free to do things that you don't want other people to know about. And what I insist is that all the people who are busily denying that these revelations really mean anything recognize: if we give up these rights, we are choosing to do it. Every aspect of this is a product of human choice. We might be trapped in systems. But those systems are made up of human beings, and they are choosing to erode our basic freedom. Nothing can be chalked up to slogans or "the arc of history" or technology or Just the Way Things Are Going to Be. If our rights are getting eroded, it's because we're choosing to let them. Tell that to the defeatists and the apathetic alike.

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