Comforting the NSA and Afflicting Its Dissenters
No serious defense of the surveillance state can ignores its anti-democratic abuses, its lawbreaking, and its record of punishing whistleblowers.
In a New Republic article on NSA surveillance, Yishai Schwartz defends the U.S. government against the critiques of whistleblower Edward Snowden and his supporters. This defense warrants close scrutiny, because several of the arguments offered echo misinformation spread by national-security state officials.
The article begins by analyzing scenes in the Laura Poitras documentary Citizenfour where Snowden is holed up in a Hong Kong hotel, anxious that authorities might burst through the door and arrest him at any moment. "The implication is that Snowden has been targeted and persecuted by the government because he is a dissenter," Schwartz writes. "This is false. Snowden is a dissenter, but he is also a law-breaker. And the latter is the reason he has been targeted .... The government seeks to punish Snowden in order to make an example, but it is an example to future law-breakers (and in particular, those who expose classified information), not to deter future dissenters. Snowden happens to fit into both categories, but most dissenters do not, and they have nothing to fear."
Tell that to NSA whistleblower William Binney. In 2007, a dozen FBI agents stormed into his house with weapons drawn. "One of them ran upstairs and entered the bathroom where Mr. Binney was toweling off after a shower, pointing a gun at him," The New York Times reported. "Agents carried away a computer, disks and personal and business records .... Mr. Binney spent more than $7,000 on legal fees. But far more devastating, he said, was the N.S.A.’s decision to strip his security clearance ... costing him an annual income of $300,000."
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Or consider Thomas Drake, who was careful to avoid revealing classified information in correspondence with a reporter about NSA waste, fraud, and abuse. Jane Mayer documents the trumped-up charges used to persecute him and destroy his career. Or ponder Jesselyn Radack's story.
Is Schwartz unaware of these people? Surely he is at least familiar with Poitras, whose film he is reviewing. She committed no crimes when making documentaries about Iraq and Gitmo, yet wound up on a secret government watch list, subjecting her to harassment, interrogations, and equipment seizures. The claim that lawful dissenters "have nothing to fear" is demonstrably false.
A bit later in Schwartz's article, he objects to the argument that "our surveillance programs are unnecessary, that increases in government capabilities inherently infringe on our liberty, and warns ominously that dictatorships begin their oppression with the collection of data," countering that "surveillance is essential to countering threats from both terrorists and state espionage in the world today."
This generalized endorsement of surveillance is incoherent and useless. Nearly everyone agrees that counterterrorism and defense policy ought to involve some surveillance. Snowden himself is a proponent of many types of lawful, targeted surveillance. Is the phone dragnet that logs metadata of all calls made in the United States "essential to countering threats"? The panel of independent experts convened by President Obama doesn't think so. Is mass surveillance of all cell-phone calls in the Bahamas "essential"? NSA critics have made specific arguments against particular spying programs. Disputing those arguments requires defending specific programs, not "surveillance" generally.
Schwartz next turns to whether we ought to worry about the NSA's powerful surveillance capabilities. "I am confident that the government officials could break into my house, and I am equally confident that they won’t," he writes. "That is because there are laws, and effective oversight that forces officials to comply with those laws. A similar logic applies to the abuse of my data."
The analogy is deeply flawed. The legal and practical protections that prevent government agents from breaking into one's house are far stronger than the data protections the NSA has subverted for years in secret courts. When the press exposed an illegal program of warrantless wiretapping, the result was retroactive immunity for the lawbreakers. How can that go unmentioned in an assessment of official compliance with the law?
And Schwartz's confidence that the government won't wrongfully break into houses is itself suspect. As Radley Balko and Joel Berger put it in a 2006 article in The Wall Street Journal: "Hundreds of innocent families and civilians have been wrongly subjected to violent, forced-entry raids .... Home invasions can also provoke deadly violence because forced-entry raids offer very little margin for error. Since SWAT teams began proliferating in the late 1980s, at least 40 innocent people have been killed in botched raids."
Out of ignorance, Schwartz presumes that the government is not violating the rights of innocents in one realm, then cites that false belief as if it proves that the government wouldn't abuse its power in another realm where just such abuses are documented.
Schwartz goes on to attack Snowden in a particularly unpersuasive way:
Snowden couches his policy disagreements in grandiose terms of democratic theory. But Snowden clearly doesn’t actually give a damn for democratic norms. Transparency and the need for public debate are his battle-cry. But early in the film, he explains that his decision to begin leaking was motivated by his opposition to drone strikes. Snowden is welcome to his opinion on drone strikes, but the program has been the subject of extensive and fierce public debate. This is a debate that, thus far, Snowden’s and his allies have lost. The president’s current drone strikes enjoy overwhelming public support. So citing his opposition to a widely debated policy as his motivation for increasing transparency is, well, odd. But it’s also illustrative. Snowden’s leaks aren’t primarily aimed at returning transparency or triggering a public debate; they are about creating his preferred policy outcomes, outcomes that usually involve a weaker state.
This is a fantastical description of the debate over drones. The White House has repeatedly invoked the state-secrets privilege in lawsuits attempting to stop drone strikes as a violation of the Constitution. The American public was not permitted to see the legal rationale for a drone strike that targeted and killed a U.S. citizen until earlier this year, long after Snowden decided to become a whistleblower. To this day, the government suppresses information on the number of innocents killed in drone strikes.
"In refusing to release to Congress the rules and justifications governing a program that has conducted nearly 400 unmanned drone strikes and killed at least three Americans in the past four years, President Obama is ignoring the system of checks and balances that has governed our country from its earliest days," John Podesta declared in a March 13, 2013, Washington Post op-ed. "And in keeping this information from the American people, he is undermining the nation’s ability to be a leader on the world stage and is acting in opposition to the democratic principles we hold most important."
To this day the drone debate is a case study in executive-branch officials subverting democracy by withholding information from Congress, sidestepping the judiciary, and denying the public information vital to a policy debate; the matter was even worse when Snowden first decided to become a whistleblower. To cite it as an example of democracy in action betrays deep confusion about American democracy.
Since the September 11 terrorist attacks, many U.S. officials in many different parts of the government have blatantly violated the Constitution, U.S. law, and duly ratified treaties. They've invoked national security to cover up their wrongdoing. At times, they've gone so far as to commit perjury to hide the truth. And almost none of them has ever been charged or prosecuted. As the national-security state engages in serial abuses to a degree that hasn't been equalled in the United States since the days of J. Edgar Hoover, it is abetted by commentators who proceed as if the most worrisome legal violations are actually being perpetrated by dissenters who expose illegal government behavior. These commentators invoke the rule of law as if whistleblowers violate and threaten it more than powerful officials, whose misdeeds they elide and ignore. Even the illiberal faction at The New Republic should know better.