The Problem With the 'Privacy Moderates'

Their lukewarm defense of civil liberties is more bewildering than outright rejection.

snowden we can reuters.jpg
The image most likely to make the heads of "privacy moderates" explode. (Reuters)

What if I told you that the surveillance state goes too far in secretly spying on innocent Americans -- but that Edward Snowden, the NSA contractor who exposed the scope of data collection, and Glenn Greenwald, the recipient of his leaks, shouldn't be regarded as exalted heroes?

That sort of non sequitur isn't my style. But if I wrote such a sentence in earnest, you'd know to identify me as a "privacy moderate."

These are the Americans who acknowledge, as a consequence of recent revelations, that the national-security state ought to be subject to more oversight, debate, scrutiny, and restrictions, but can't bring themselves to rhetorically ally themselves with the people championing those reforms. Instead, they contrive frames that enable them to criticize both the surveillance state and its antagonists, as if the excesses of both sides are commensurately important and worrisome. Sometimes they even attack critics of the NSA more energetically than the surveillance state itself. To borrow a phrase, their lukewarm acceptance of the civil-libertarian critique is more bewildering than outright rejection. They fail to follow their own judgment where it leads.

The "privacy moderate" has been everywhere in recent weeks, a non sequitur always at the ready. Yes, let's debate the tradeoffs between privacy and security, they say, but "Edward Snowden's no hero," they inject, as if excessive regard for Snowden poses a threat of some kind.

Even sensible analysis is becoming polluted by the pathologies of the "privacy moderate."

In Foreign Policy, James Traub grants that President Obama has presided over multiple "onerous programs," that "fear has become America's permanent state," that present methods of government surveillance must be "fixed," that the secret legal memos Obama is relying on should be published, that the state currently has "too much scope for information gathering," and that the status quo is tantamount to a surveillance state operating without the consent of the governed.

It is difficult to exaggerate the sweep and seriousness of those charges!

Yet Traub complains that it is excessive "to lionize Edward Snowden, the former NSA contract employee who exposed the programs, as a heroic defender of democracy in the face of authoritarian menace," adding that "surveillance, even on a giant scale, is not conspiracy, or murder."

Of course, no one has said that NSA surveillance is murder, and insofar as parts of the program are criminal, it is the definition of conspiracy, but set all that aside. If Traub regards the surveillance state as severed from the consent of the governed, excessive in scope, driven by irrational fear, and in need of fixing, why should he object to lionizing -- that is to say, treating as important and of great interest -- the person who made public the objectionable programs? If the surveillance state is operating apart from democracy, why isn't the person who revealed as much a defender of democracy, not in the face of "an authoritarian menace," but the sort of unchecked power that could lead to one? "Like a boil that can never be cured so long as it is covered up but must be opened with all its ugliness to the natural medicines of air and light," MLK once said, "injustice must be exposed, with all the tension its exposure creates, to the light of human conscience and the air of national opinion before it can be cured."

I am mystified by the "privacy moderate" who yearns for a debate about the surveillance state without anyone being so transgressive as to leak the information without which there would be no debate.

What I sense, but cannot prove, is the privacy moderate's desperation to avoid facing the full extent of the establishment's extreme behavior. Americans once condemned such excesses. The Obama Administration is nowhere near as morally odious as, e.g., the bygone East German state. But Americans didn't just criticize its surveillance apparatus, the Stasi, because the East German regime used it for evil. Quite apart from the character of the regime and its secret police, Americans found the very notion of secret, pervasive spying on innocent citizens repugnant. We found the notion of vast files kept on private citizens creepy, because that isn't the role the state ought to play in a free society. Today, the American state is engaged in intentionally spying on tens of millions of innocent citizens. It did its utmost to hide the truth about that spying.

Civil libertarians are objecting as if this is a historic scandal of the utmost importance -- and it is exactly that. Privacy moderates are obsessed with policing the objections for hyperbole. They can tell their grandkids, "When I found out America was secretly spying on tens of millions of innocents, I focused on criticizing the people who overreacted rhetorically." It's like the blogs that spent the run-up to the Iraq War obsessing about scattered Bush-Hitler signs at anti-war protest rallies, as if, absent push-back, the nation was ready to side with the sign-makers; or like a doctor who worries more about cosmetic scars than cratering white blood-cell counts.


Traub's core point is sensible, even vital:

The United States has erected this colossal machinery of information-gathering for one overwhelming reason -- to stop terrorism. In the name of fighting terrorism it has launched hundreds of drone strikes, shrouding that program in secrecy as well; preserved the prison at Guantanamo, holding prisoners with no prospect of trial and trying others in a military tribunal; converted the CIA into a paramilitary organ; and hounded journalists for publishing secrets. All of these policies have been promulgated by a president who was a scholar of constitutional law -- because the overwhelming fear of another terrorist attack has made what once might have felt repugnant to him seem necessary.

Fear has become America's permanent state -- and fear of fear. Thomas Friedman argued in the New York Times that it is best to accept the surveillance program as it is because another terrorist incident would make the American people demand much graver violations of liberty and privacy in the name of security. We are, that is, only one incident away from Glenn Greenwald's nightmares. But perhaps that's not so. Government officials wildly overreacted to the Boston Marathon bombing by locking down the metropolitan area; but the citizens themselves never lost their composure. Are Americans elsewhere more frightened than they are in Boston?

Barack Obama once promised to end "the color-coded politics of fear." He has jettisoned the color code, but he has made few inroads on the fear. The very fact that this civil libertarian president has approved so many onerous programs -- that he has acknowledged their necessity -- isn't necessarily a sign to Americans of how very great is the threat that faces them. Perhaps it's a sign that Obama knows that his opponents would try to whip up a national outbreak of hysteria should a major attack occur on his watch. And so he caters to that fear, and hereby helps keep it alive.

Two cheers for Traub!

He states, correctly, that excessive fear of terrorism is causing government officials to wildly, perhaps cynically overreact, and skewing national policy in all sorts of onerous ways. Saying so demonstrates more clear-thinking than a great part of establishment Washington, D.C. But if that is something you believe, it makes no logical sense to position yourself as an antagonist to Greenwald and Snowden, focusing a large part of your limited space on their perceived shortcomings. Criticizing them isn't verboten, just beside the point, unless the point is to remain a "very serious person."

The privacy moderate is deeply uncomfortable with the implications of being allied with Snowden and Greenwald, and against Bush, Cheney, Obama, Clinton, Brennan, Feinstein, and Clapper. The privacy moderate "knows" that Snowden and Greenwald are the radicals; yet the privacy moderate can't help but stumble toward a conclusion they're desperate to avoid: the establishment's policies have implications far more radical than the most strident voices opposing them. 

Says Traub:

It is hyperbolic, and even hysterical, to say, as Glenn Greenwald has, that the United States has a secret plan "to destroy privacy and anonymity not just in the United States but around the world."

In fact, the U.S. government is, right this second, pouring untold billions into what is ultimately an effort to monitor all digital communications; scan all mail; amass a fleet of surveillance drones that can hover in the sky for days on end; develop technology to scan all faces in crowds; assemble gigantic databases of biometric data; break all encryption efforts; indiscriminately spy on millions of citizens in friendly countries like Germany and Brazil; and share spy technologies with allies. None of that is in dispute. What's hyperbolic is calling people hysterical because they see the endgame of various plans to impose ever broader surveillance on whole societies. There isn't a government document somewhere titled, "The Plan to Destroy Global Privacy," but that is exactly what Western intelligence agencies will do if adequately funded and left, unopposed, to their own devices. Anyone who can't see that hasn't adequately grappled with the implications of Snowden's revelations, the history of spy agencies allowed to operate in secret, or the radical new capabilities that advances in data analysis and retention have given states (and are likely to give them in the near future if they aren't stopped).

As a matter of history, Constitutional theory, and policy, the people now running national security in the United States are surveillance-state extremists. The "privacy moderates" should stop treating them as if they're responsible centrists with whom compromise is the prudent course. Traub goes so far as to call Obama a "civil libertarian president." How can he possibly defend that?

There's one last part of Traub's piece I want to address. He writes:

... For passionate defenders of liberty -- one of the "unalienable rights" which, Thomas Jefferson proclaimed to the world, governments are established to safeguard -- the sweeping collection of "metadata" in the United States and of actual communications abroad is incompatible with democracy. The abuse is the act itself. But we do not live in Jefferson's world. Virtually all developed democracies have intelligence agencies; all spy on one another. We accept inroads on our liberty in the name of many goods -- security, convenience, and above all the pursuit of happiness.

It's true. We don't live in Jefferson's world. We live in a world where, even if the NSA was abolished, Americans would be far more secure from attacks foreign and domestic than in Jefferson's day, when multiple foreign powers could've credibly invaded and conquered us, and Americans on the frontier were engaged in ongoing skirmishes with understandably hostile Native Americans.