It appears that the NSA has been collecting both phone call metadata and actual phone call content from an unknown, but very likely vast, number of American citizens, and that this likely extends to other forms of communication such as email and text messaging. They may have been doing this in violation of the US Constitution while avoiding getting that issue before the courts, but they may also have been doing this in violation of the guidelines that the Foreign Surveillance Intelligence Act court has laid down—i.e. illegally.
The narrow political implications are different between those two possibilities, because unconstitutional actions that haven’t been specifically found unconstitutional yet do possess a veneer of deniability, whereas no such veneer exists for doing things already found illegal. Although the Justice Department is trying hard to manufacture such a veneer, by attempting to keep the court ruling itself a secret.
While blatant illegality of that kind does matter, the more important question here is one of what kind of society we wish to live in. If these kinds of governmental actions are acceptable to enough of the populace, they’ll continue and will be made legal, whereas if they’re not, there’s a chance that they can be made illegal and stopped. A small chance.
By design, it’s extremely difficult to figure out what they’re actually doing. Three relevant questions:
- Does it make sense for government agents to be granted a shield of secrecy concerning their doings?
- Should such a shield be time-limited only? (i.e. “operational secrecy”, but be made public after a reasonable time—10 years at the outside, not years after all concerned are dead.)
- How can meaningful accountability be maintained in light of such secrecy?
The answers from the US establishment:
- Yes, because we need to do Secret Things to prevent Bad People from doing Bad Things, and we couldn’t effectively fight the Bad People without those Secret Things.
- No, because some of the Secret Things need to be secret for a long time, maybe forever.
- We wouldn’t do anything wrong because we’re the Good People.
Disappointingly, this seems to be enough for a lot of people—including, sadly, David Simon, who argued for the necessity of massive electronic surveillance due to the threat of terrorism. This argument seems a reasonably popular one.
One of its rhetorical strengths is that the potential cost of terrorism is unquantifiable. It’s pretty easy to keep raising that by conjuring up ever larger catastrophes, right up to the classic of a nuclear weapon that would wipe out a major US city. Faced with that, with the potential of an entire city wiped out in an instant by madmen with dirty bombs, it must surely be correct to do whatever possible to prevent it, even if that means letting the government read your emails and listen to your phone calls.
How likely is such an attack? That’s also unknowable. While there are doubtless people who would like to accomplish such a thing, it’s actually not that easy, and they face significant obstacles.
The common response is that any chance of such a thing happening is too big a chance, therefore embrace the Panopticon. So what about other nuclear threats? What about the fact that the US military is itself a massive source of danger on that front, given its habit of misplacing plutonium. What about the chances of accidentally firing a nuclear weapon in this, or another, nation’s arsenal? That’s a threat of the same magnitude as the “terrorist suitcase nuke”, if not a greater magnitude. Our aversion to risk of nuclear catastrophe must here compel us to move towards disarmament, or at least drastic reductions in nuclear weapons and extremely strict controls over all nuclear materials. To say nothing of insisting on the highest levels of safety at nuclear power stations.
Of course, moves in those directions get rather less funding than the massive surveillance state. This might be because the US government has already figured out how to handle its massive nuclear capabilities with perfect safety, so the threat there is inconsequential, with the same applying to the power plants.
Or it could be because the massive surveillance state is something the government wants anyway, and will use the excuse of “terrorism” to push forward. This interpretation is backed up by, for example, the fact that the additional powers given to the security agencies in the PATRIOT Act were not drawn up in response to the 11 September 2001 attacks, but rather pulled together from various wish lists those agencies had for expanding their own powers.
Even assuming that the terrorist threat is as great as state supporters are arguing, there are still extremely significant costs associated with this kind of surveillance. Even if the primary goal of all of it is to “fight terrorism”, the power inherent in such an apparatus can very easily be turned to other things—and already has been, in the history of the United States. COINTELPRO is a classic example, and the fact that the FBI used its surveillance powers—a tiny fraction of the powers available to the government now—to blackmail Martin Luther King, Jr. should be an extraordinarily clear warning.
It’s a warning that the “I don’t have anything to hide so I’m cool if they know everything about me” people don’t understand, or underestimate. It’s not that you might have something to hide. It’s not that anyone taking part in politics might have their secrets exposed by the surveillance state (which sounds like a good idea for just a moment). It’s not “radical transparency”. It’s massive information asymmetry that would allow the government to selectively release information to influence—i.e. control—what remains of the democratic process. A crude example: imagine two candidates, both with secrets along the lines of extramarital affairs, or youthful drug experimentation, or extensive porn searches in their Google history. One candidate is an establishment darling, and the other is hostile to it and wants to shake things up. In our new surveillance state, data about their secrets is stored on NSA servers. Whose secrets do you think are more likely to get leaked? If they were to get leaked, what recourse would they have?
The answer isn’t, “don’t have dirty secrets if you run for office”—because here, they both did, and the message is rather, “don’t have dirty secrets and run for office opposing the status quo”. This kind of thing already goes on, but the expanded surveillance state makes it vastly larger and more pervasive.
If you truly believe the state should have such powers to protect you from “terrorists”, and that they should have those powers over all of your fellow citizens, it’s not enough to just argue in favor. You should be arguing for other controls, for oversight, for proof that they’re actually using those powers to protect you from what you’re afraid of and not instead using it for political intimidation.
The state is powerful enough already. There are a variety of approaches to mitigating the threat of terrorist attacks that do not involve ceding even more power to it; that those strategies are not being pursued is extremely telling in itself.
|||Or entire bombs.|
|||Although given the proliferation of laws in this country, you probably do and just don’t realize it.|