Monday, May 15, 2006

Three notes on domestic spying

1) At a certain point, shouldn't we begin asking wholesale, publicly, openly what it is exactly we would like as a society? A more specific way of putting this in the present context is to ask what the limits are in the "war on terror." We know now that, unjustifiably (other than parroting the "war on terror" mantra) there are few limits internationally. The US will torture and then quibble legalistically over the language, pushing the burden of proof onto the Spanish Inquisition to defend its historical self against benign modern American interrogation practices. Is the Spanish Inquisition the limit?

And, domestically, are prostrate probes, chip implants? Isn't there a point at which Americans look at themselves and don't know or recognize what they see? Isn't there a point at which we're not "Nazis" or "fascists," but some new brand of execrableness that requires a new language to describe its offense to basic norms of decency? Shouldn't we begin to formulate the language that truly describes that new brand, rather than relying upon older tropes for pathological human-political behavior?

Complicity is not far-removed from direct participation. We look at populations that have ignored their nation's crimes and which have tolerated incremental domestic abuses as citizens who are complicit in the crimes themselves, even when the government of that nation is authoritarian. We use a language that summarizes an entire population under the rubric of its administration or of particular groups. No longer individualized, a people becomes simply the group that commits the evils. What of a democracy in which we have ostensive free speech, freedom of the press, and universal suffrage? This seems to me to raise the stakes on responsibility. At what point do the citizens of a democratic country take on responsibility for the abuses of their leadership? At the point at which they're no longer a democracy?

Again, what does the so-called war on terror justify? Every conceivable abuse? What does it justify and what does it not justify? Then, I hope we ask, why? Of course, to answer this question we should keep in mind that the "war on terror" is now at least as much a creation of this administration as it is of 9-11 if not more so.

2) The NSA compiles data on Americans via their phone records and emails giving the explicit lie to statements to the contrary by the president and his cronies. These are more clear lies. The language of "misleading" is no longer simply misleading but a lie itself. Then they say, "trust us." Is there a point at which Americans are no longer so gullible as to continue to trust this administration? Has this administration given any reason to trust them, whatever one's political persuasion? Recall even prior to the Iraq War - apart from the lies repeatedly made to US citizens and the global audience - the forgotten fact that the US demanded of Iraq that it reduce its conventional missile weaponry. Iraq did so. Then the US invaded. That's a cowardly bully's move. One might say that Saddam Hussein was gullible, and paid the price for it. One might also say that this administration has no integrity whatsoever in laying down limits to its bullying.

3) The telecommunication companies, for which I have little sympathy, give up phone records to the NSA in a climate of domestic terror by the administration, feared consequences for being uncooperative, and concomitant willful complicity. This administration's NSA uses the records to mine data on American citizens. Tonight I'm hearing the administration's new, yet old, argument that the telecoms may face charges for giving up customers' private information.

First, we should recoil in disgust at the administration's granting of greater rights to "customers" than to citizens. Second, recall this same technique, used elsewhere over and over by the administration. Cow potential critics or at least those disinclined to cooperate with questionable policies into cooperation through a series of threats and disincentives/incentives. Then, if one's machinations are discovered, blame those groups or individuals who were coerced into action by the very fact that they undertook the action under a state of coercion. Rove's and Bush's art is then to go one further and mock the bastard. This is cowardice at its worst - a cowardice that will sacrifice the next stupid sycophant that comes along to eternal damnation in the service of its own self-centered needs.

Rather pitifully as a sign of protest, I will be changing my telecom service and I hope that the telecoms involved in this case suffer. Their executives can rot in hell. At the same time, however, in this case the crime is again principally on the administration's side.

Steve G had a nice post today on the rhetoric of fascism. I agree with him that calling a government fascistic is an easy out for what should otherwise be real, concrete criticism. But, if so, let's find another term to apply to the present case because this administration continues to commit crimes and create a facilitating climate of terror within its own citizenry. "Fascism" may actually be too kind.


MT said...

I suppose for the record it ought to be noted that among legal scholars reasoned argument exists to the effect we have nothing to worry about. I haven't read it yet myself.

helmut said...

Thanks, MT. It looks interesting. But I wonder the extent to which NSA and FBI spying hangs together legally even with The Patriot Act,which is the subject of that paper.

Check out, also, this discussion by Jack Balkin:

"This last point is particularly relevant because the government's ability to issue national security letters was greatly enhanced by the Patriot Act, as discussed here. Most important for present purposes, the Patriot Act changed the old rule that the FBI could use National Security letters only to gain records concerning suspected terrorists or persons suspected of engaging in espionage. The Patriot Act allowed the FBI to issue National Security Letters-- which require virtually no independent supervision-- as long as the FBI officer believes that the information could be relevant to an investigation related to terrorism or espionage. Since there is almost no oversight over National Security Letters, and since the FBI works quite hard to avoid disclosing what it has done using National Security Letters and why it has done it, the practice is easily subject to abuse and overreaching, relying largely on the good faith of lower level agents and their professional capacity to restrain themselves. Indeed, the National Security Letter offers so few restraints on executive overreaching that it is not significantly different from simply dispensing with a warrant requirement altogether.

Once again, compare the FBI's own admissions with President Bush's previous statement. While the President assured us that the NSA was only looking into people with contacts to Al Qaeda and other terrorist organizations, he said nothing about the FBI, and the FBI admits that its use of phone call records is not limited to those suspects, but is aimed at members of the press."

MT said...

O.K., helmut, I don't think I've been so much at risk of complicity as at risk of being reactionary. I will hereby do my patriotic duty of musing on the root issues, and I will do it here in your comments so as not to pollute my blog with thoughts even murkier than usual. For starters, I don't see a God and so I don't see a God-given right to privacy. Moving onward, I don't see an express constitutional right to privacy. In fact--though I'm not master of the U.S. Constitution so this doesn't necessarily mean much--I don't even see a way to imply privacy from the text of the Constitution without invoking lifestyle and technology of either the framers' time or perhaps as late as J Edgar Hoover's. Our Constitutional protection against "search and seizure" seems certain to have been articulated with the idea of physical ruffling of coats and the invasions of curtained abodes by a few naked-eyed, mortally minded police. I guess I can see how to get from there to prohibitions against seizing and searching the contents of the letters we send to one another and to the interception and analysis of our telephonic transmissions, and by analogy from there to e-mail. Yet with regard to things that we have traditionally done in public that we could count on being pretty darn private just because the information was formerly costly and inefficient to collect and analyze, I run into trouble. The post office has always known exactly to whom we write and roughly how many sheets (by weight) how often. We've always disclosed pieces of our life story to strangers and tolerated passers by noticing our arrival or departure from home or almost every other of our regular destinations. And the acoustic waves of our voice have always reached places far away with at sufficient amplitudes to be detected by a hypothetical gadget more sensitive than the human ear. So to abandon that tack a moment and think about what I abstractly feel entitled to, privacy-wise, I think it's
(A) to my "reasonable expectations" (to borrow from legalese) at any and every given moment about who is going to know and to retain what about that which I am currently doing,
(B) to frequent easy opportunities to communicate secretly to others my feelings and/or knowledge of happenings not known widely, which might hurt people or my reputation or my interest in achieving a particular goal without competition or without anybody learning about it anything other than what I choose to let them know or risk them learning (again coming back to reputation).
(C)Security against blackmail.

If the state were trustworthy and if it only let a few sworn officers know my secrets, on which they were not allowed to act except under special and sensible circumstances with which I was on board, then I wouldn't worry about any of those things. But to the extent it's not trustworthy, I care a lot. We survive and succeed through social interactions, making our reputations arguably our most important assets, not to mention the emotional and psychological importance they have to us. Reputation is based largely on information, the dissemination of which we conscientiously if rarely consciously manage (we don't have to think about not going to school naked, for example). I don't see how we could be our vain mortal competitive human selves if either we didn't have this control or were living at a risk of anything and everything we do becoming known to who-knows-who (it cramps the style of a lot of people apparently just to think there's a god watching). This isn't in the Constitution, and neither expressly are their words I can think of that limit how much trust our government should be able to ask of us seeing as the framers checked and balanced and allowed juries for everything with such particularity. But I suppose distrust of government of all kinds is penumbrally in there or certainly in the other writings of the framers. And there's that pursuit of life liberty and the pursuit of happiness that got fleeting mention in the Declaration. So perhaps that does entitle me to distrust my government and so to fuss about items A, B & C, these being essential to the pursuit of happiness. And yet it's the military that owns all the intelligence and technologies that provide us warning, so if they tell me more important things than my reputation are at stake--my life and/or liberty--I almost have no choice but to trust them. I have only slightly more choice as to trusting them on strategic options, this being what they spend gazillions of person hours thinking about while I'm shopping online. So where I think I've reached in this meander is that the choice is impossible, or that it has to be by gut and guesswork as to who in government to trust how much for what, and whether you're feeling lucky. My instinct right now is to stall for time, allow the current government no snooping rights whatsoever, and await a new band of representatives who hopefully will be more trustworthy or at the very least more transparent. Sorry you asked? I guess philosophy should be left to professionals.

MT said...

The paper's intro suggests to me it sketches the kinds of data and what it's possible to do with them, but you're right that it may be beside the point, especially with regard to legal justifiability. Balkin sure does manage to make the technicalities sound important. I can't help thinking that if the White House ever had to answer in any way for what it does, it might hit some legal snags.

Anonymous said...

Helmut, I think you exaggerate the execrableness to which the United States has fallen. That's not to say that we shouldn't be alarmed and doing something to change the direction of this government, just that real Fascism and Communism have done much, much worse than is currently going on in the United States.

A new word might be a good idea, I suppose, but it might also take away the focus from where it needs to be--on those government actions that make some of us wonder if the US is the country we want it to be.

And it's worth asking what we want it to be. The emphasis on security and fear as against our history and heritage, by the government and the media have distorted everything.


helmut said...

Aaah, just ranting.... I am serious about finding the right new language, however. That language can help us describe contrastively what it is we think the US ought to be. So far, we don't seem to have the language for either.

More soon, MT. Gotta think about that.

In the meantime, feel free to shop at smizqo.

helmut said...

MT - About privacy, I think much of it is a mythologized byproduct of social convention anyway, which gives privacy an inextricably public dimension. As a practical matter, I don't really care if someone reads my personal emails or listens to my phone calls either. I prefer that that not happen, but I don't see any need to worry about their content as long as this remains a relatively free society.

But, on the other hand, I can imagine someone who has a private life that extends fairly far beyond the bounds or ordinary public norms and who prefers that it not be made public (say, someone who has a predilection for eating boogers, as Steve G used as an example today, or unusual sexual practices). That may be nasty, or beyond ordinary public norms of appropriate behavior, but it should also be allowed to remain private. Even if it does remain private in the sense of not making its way back to your spouse or friends or coworkers, there may be real harm in simply knowing that someone else - your government - has the information. So, at least for this reason (and maybe others), I can see this all being considered an abuse of the rights of individuals in an ostensibly free society.

The problem for me is that:
1) this government continually denies doing things that it knows are offensive to social norms and public ideals, then equivocates when it's caught in the act. This has happened over and over for 5 years. Trust is a real problem. In this sense, I don't trust this administration to do the right thing in general nor to maintain citizen privacy, even in your "reasonable expectations" sense. I think we agree on this.
2) This is an administration that relies on intimidation internationally and domestically. In this sense, it doesn't inspire trust either. Rather the opposite - it instills a sense of fear and plays off those fears. That, to me, is one solid sign of an anti-democratic government.